LINGUIST List 32.1775

Thu May 20 2021

Review: Discourse Analysis; Forensic Linguistics: Leung, Durant (2020)

Editor for this issue: Jeremy Coburn <jecoburnlinguistlist.org>



Date: 25-Feb-2021
From: Geoffrey Sampson <sampsoncantab.net>
Subject: Meaning and Power in the Language of Law
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Book announced at https://linguistlist.org/issues/31/31-3584.html

EDITOR: Janny H. C. Leung
EDITOR: Alan Durant
TITLE: Meaning and Power in the Language of Law
PUBLISHER: Cambridge University Press
YEAR: 2020

REVIEWER: Geoffrey Sampson, University of Sussex

SUMMARY

The genesis of this book was a 2014 international conference at the Harvard–Yenching Institute, which brought together law, linguistics, and anthropology scholars interested in the various relationships between law and language. The institute was founded to foster intellectual cross-fertilization between America and, originally, China – now Asia more broadly. (“Yenching” is a literary alternative to the name Peking/Beijing for the current Chinese capital, and when the institute was founded was the name of a university there.) The gap of time between conference and publication is explained by further discussion and critical exchanges having occurred after the face-to-face conference.

After an editorial introduction, the book contains thirteen chapters by different contributors, as follows (I re-order the sequence slightly in order to bring closely-related chapters together):

Laura Nader, in “The unspoken language of the law”, argues that, in the USA, discussions of law both in the mass media and by academic lawyers and linguists systematically avoid using certain apparently-relevant vocabulary items, including “injustice” and “corporate crime”, and avoid examining the meanings of some words that are used, e.g. “rule of law”, “terrorist”.

Alan Durant, “Seeing sense”, discusses a range of key law-related concepts, such as “law” itself, “authority”, “equitable”, and others, claiming that not only are they each polysemous in ways that have been little noticed by philosophers of law, but that this semantic vagueness or complexity serves a social purpose.

Christopher Hutton, “Hiding in plain sight”, begins from the principle of English law that a word in a statute means what it means in ordinary usage, unless it has explicitly been given a special definition, and goes on to analyse this concept of “ordinary language”, with reference to recent cases about transsexual marriage.

Katsuo Nawa, “Effects of translation on the invisible power wielded by language in the legal sphere”, examines constitutional law in Nepal, a country that was never colonized and where, consequently, no European language has ever had official status, but where nevertheless modernization of its legal system has involved importing various Western legal concepts that sometimes clash with the assumptions embodied in the Nepali words used to translate them. His main example relates to the “right to religion”: “religion” is not a language-universal category, the Nepali word equated with it is ‘dharma’, but ‘dharma’ is inherently a property of a community, not a matter for individual choice. Likewise, Janny Leung’s “Ideology and political meaning in legal translation” is a theoretical discussion of problems arising when statutes are translated between languages of societies having very different legal histories, as when Hong Kong laws are translated from English into Chinese.

Janet Ainsworth, “Law and the grammar of judgement”, examines how the operation of law can be in part controlled by structural features of the language in which it is operated. For instance, the significance of witness testimony in Turkish is affected by the fact that Turkish verb forms encode the distinction between an action being reported from the speaker’s direct knowledge or only from inference or other indirect knowledge: Turkish grammar has no equivalent for the neutral English “he came …”.

Marco Wan’s “The language of film …” paraphrases Richard Sherwin as saying that “in an age in which the law has become inextricably intertwined with elements of popular culture, lawyers need to cultivate their ‘visual literacy’ in order to understand the visual jurisprudence of cinema and the image”. Wan exemplifies this visual literacy by explicating a Hong Kong film about a Chinese variety of vampire in terms of clashes between Chinese and Hong Kong law since the 1997 handover. (It is important to bear in mind that this chapter was written before the developments of the last few years in Hong Kong; I wonder whether, in 2012, Wan himself would describe what is happening there as “continuing negotiation between the new, Chinese legal order and the persistence of the common law values and concepts” – negotiation is a two-sided matter.) I should say, though, that I am probably not the right person to comment on the vampire film as unconscious political metaphor, having little knowledge of popular culture.

Gregory Matoesian and Kristin Enola Gilbert, “Let the fingers do the talking”, discuss the idea that the effectiveness of legal advocacy depends heavily not just on the words used but the body-language used with them. They illustrate this by detailed analysis of a video recording of the defence counsel’s closing speech in a 1991 American case where William Kennedy Smith was acquitted of rape.

Meizhen Liao, “Questions about questioning”, contrasts the respective roles of questioning in Chinese and U.S. courtrooms via detailed numerical logs of questions of various types in one case from each country. He finds, for instance, that wh-questions are the commonest type in China but yes-no questions are commonest in the USA.

Siddarth Narrain, “Law, language and community sentiment”, examines the history of legislation and case law in India, before and since independence, with respect to the tension between the free-speech principle and the substantial risk there of inflaming emotions likely to lead to disorder across the Hindu–Moslem divide. He finds that various factors in this history have created “a potent cocktail that has allowed for a dangerous mobilization of claims of hurt sentiment”.

Chris Heffer, “When voices fail to carry”, discusses a notorious English case from 2013 in which the defendant Vicky Pryce was convicted of perverting the course of justice by saying that she rather than her husband had been driving a car that was caught speeding; she invoked the unusual defence of marital coercion. The reason why the case attracted national attention was that the husband, Chris Huhne, who had allegedly forced her to lie in this way in order to avoid penalty points on his driving licence, was a Cabinet Minister. But the interesting legal point was that the jury (whose deliberations, in English law, are secret, with severe penalties for jurors who subsequently reveal anything said in the jury room) submitted a list of written questions to the judge concerning how they should go about their task. To Heffer (and to me) the questions seemed intelligent and bespoke sincere effort to take the jury’s duty seriously. But the judge saw them quite differently, and the media sided with him; columnists with whose views I usually agree wrote things like “Vicky Pryce trial has exposed a breathtaking level of ignorance and stupidity”. Heffer argues that, although the judge’s summing-up was “in many ways exemplary”, it nevertheless failed to “project his voice” to the jury adequately, and the jury’s questions likewise failed to project in the converse direction. Heffer offers an elaborate framework for analyzing “voice projection” in this sense.

Lawrence Solan and Silva Dahmen, “Legal indeterminacy in the spoken word”, discusses the fact (completely familiar to phoneticians, but not obvious to legal professionals) that words in everyday talk are often not uttered distinctly enough to be identified with certainty by a transcriber, so that two sides in a criminal case may hear an utterance in ways with very different legal implications – in one of their examples, the prosecution’s version of an utterance ran “Conspiracy charges, they could hit him on that, too?”, while the person who was being spoken to claimed that it ran “Stephen Charles represented him on that one too”. Because American courts are not sufficiently alert to this problem, the authors say that they have not evolved adequate routines for dealing with such conflicts.

Finally, I can represent Peter Goodrich’s concluding chapter, “The said of the unsaid”, only by offering a sample extract – I excerpt a passage which is entirely typical of the chapter, and not dependent for its interpretation, so far as I can tell, on anything which precedes or follows:

“Inertia is a mode of post-ignition, of rolling on in the wake of an event – a push, a stun, a terror – while remaining within the limits and confines of the timidity that intimidation engendered. Thus the meandering course of a style, the prolixity of diction, the hesitations and deflections that anticipate and defend against reproof and exclusion. It is the latter threat, the spectre of denunciation, of exposure and expulsion, that keeps the undertow of the unsaid, precisely so as to remain amongst the said, so as to belong and to institute, even if what is instituted is in effect nothing, an ever present not yet, a thought to come. The second stage, the degree Nero of stupefaction, and even now I speak from experience, lies precisely in avoidance, in the reigning in of thought so as to guarantee and preserve membership of the ‘in terrorem’ group, the site of institutional reproduction where the said is promulgated – and remains to be promulgated – while the unsaid subsists in its silence, in the nowhere of theory.”

If you say so.

EVALUATION

Like most books comprising chapters by different contributors brought together temporarily by a conference, this one is a mixed bag, in terms of themes but also of quality.

Overall I believe it draws attention to many linguistic issues that are well worth lawyers’ attention. To a linguist it may seem strange that Solan and Dahmen need to spell out at such length that everyday continuous speech is not uttered with silent gaps between the words, and that not all the phonemes in the isolation forms of words will actually be represented in the speech signal. But to lawyers this is evidently not well known – specific legal cases they quote make that clear; and if the legal profession is not familiar with this issue, it surely needs to be.

More than one contributor draws attention to the fact that meanings of words in everyday language are inherently vague, not subject to precise definition. This was perhaps the central concern of philosophy in the English-speaking world during the later half of the twentieth century, but it remained unfamiliar to many linguists – I have discussed the follies of much of what is called “linguistic semantics” elsewhere, e.g. Sampson (2001). Some contributors to the book reviewed write as though this indeterminacy of ordinary language is a novel idea, or is perhaps relevant only or chiefly in legal contexts – that is not so (I recommend Lakatos 1976 to readers who suppose that words can have watertight definitions in ANY area of thought); but it is an important fact about human language which is clearly very significant for law, hence well worth repeated discussion in this book.

In some chapters I felt that promising work had been left in a less persuasive state than it might have been. After Matoesian and Gilbert have explained that counsels’ closing speeches form the “legal crescendo of a case”, allowing jurors to see “which lawyer REALLY BELIEVES his side should win”, I wondered why they studied only the defence’s closing in their sample case; it was the winning side, but could one have predicted that by comparison with the prosecutor’s body-language?

A more serious problem relates to Liao’s comparison of Chinese and American trials. He gives abundant numerical data on incidence of questions in his sample, but makes no attempt to back up his claims about differences between China and America with significance tests. Without using these, there seems to be no way of knowing that higher counts for yes–no than wh- questions in the American trial but the reverse in the Chinese trial, for instance, are anything more than random fluctuations – in view of the low overall number of questions in the Chinese case, on the face of it that looks quite possible. In fact a chi-squared test quickly shows that these differences are highly significant (p < 0.005), but it ought not to be left to the reader to discover that. (Even if significant, of course, the finding does not necessarily establish a contrast between American and Chinese courtroom practice in general; only one case from each country is studied, so the numerical differences might equally well reflect differences between the facts relevant to the particular cases, or other variables. Liao warns that caution is required “because of the small scale of the study”, and it is reasonable to illustrate a potential line of research by a small-scale example, but a researcher ought to do a proper job on the limited data he has assembled.)

I also wondered whether the very elaborate theoretical framework Heffer defines in order to analyse failures of what he calls “voice projection” added much to his interesting account of communication breakdowns between judge and jury in the Vicky Pryce case. But that account is surely well worth pondering by anyone who cares about the functioning of the jury system.

A few contributions seem different in kind from the bulk of the book. I have already mentioned the closing chapter; but Laura Nader’s opening chapter is also surprising. Authors’ contributions are not sequenced alphabetically, so presumably the editors placed Nader’s chapter first because they felt that it in some sense established a background for later contributions; yet it scarcely reads like my idea of academic prose. It is shrilly political (it is a safe guess that Nader was not a Trump voter), and I found it hard to see how most of it related to language, even “unspoken language”. Much is about how the American movement towards “alternative dispute resolution”, initiated by Chief Justice Warren Burger in 1976, has “eviscerate[d] the best tort system in the world”. Even where Nader gives examples of “unspoken language”, as I mentioned in the Summary section, they seem unpersuasive. One would not expect converse terms like “justice” and “injustice” to be discussed separately, since propositions about one logically imply propositions about the other: if justice is rare, injustice is common, and vice versa. Surely it is natural to label discussion of paired concepts like these with the word which is simple rather than the word derived by prefixation? And I should like to see evidence for Nader’s unsupported claim that the concept “rule of law” was under-discussed in America. (It was certainly not so at the time in Britain. Tom Bingham, ex-Lord Chief Justice, published a much-admired book under that title in 2010, and the influential annual BBC Reith Lectures were given by Niall Ferguson in 2012 on “The Rule of Law and its Enemies”.) In a discussion of the difference between civil and criminal cases, Nader makes a statement that I can only interpret as a claim that two firms which caused cancers by contaminating a drinking-water supply in Woburn, Massachusetts, successfully leant on state prosecutors not to file a criminal case. I know nothing of the facts there, but surely such a serious accusation ought to be supported by some kind of evidence? We are given none whatever.

Nader is careless about facts that are not politically sensitive. She repeatedly refers to the Subanun people of the Philippines, well known to linguists through the work of Charles Frake, as “Subanum”. She says that John Rawls published his famous book “A Theory of Justice” in 1999 – the date was 1971, when the world was much more interested in abstract philosophy than it became by the turn of the century. A reader who starts this book at the beginning might not expect to find the sober, evidence-based scholarship encountered in later chapters.

A clue to what may be going on here comes in the lead co-editor’s own Chapter 10, which is itself quite “political”. Janny Leung suggests, for instance, that the continuing role long after independence of English in the Malaysian legal system represents “a form of linguistic recolonization”. I am sceptical about whether this is a meaningful idea; Richard Powell (2020, reviewed by me in Linguist List post 31.928) examined the issue via extensive empirical research, and his findings portray the retention of English as a very practical rather than ideological phenomenon. But it is apparent that one co-editor, at least, wants to present a survey of relationships between law and language in political terms, and perhaps placed Laura Nader’s contribution (and possibly also Peter Goodrich’s) where they are in an attempt to establish an ideological framing for the book as a whole. If so, some intervening chapters will have disappointed her. The word “power” in the book title is relevant to Leung’s and to Nader’s chapters, but by no means to every chapter.

Here and there the book contains a modest crop of minor errors or misprints. P. 41, “bank” as side of river and as financial institution ultimately stem from the same root. P. 79, J.L. Austin’s essay “A plea for excuses” referred to the connexions men have found worth marking, not “marketing”. P. 84, when Hutton mentions a decision of the European Court of Human Rights in the course of his analysis of the common-law concept of ordinary language, he should perhaps have pointed out that most ECHR judges come from civil-law rather than common-law traditions. P. 124, I am not familiar with “imaginary” used as a noun – is this a misprint for “imagery”? P. 189, surely it was Thomas Macaulay rather than Jeremy Bentham who introduced sections limiting free speech into the Indian penal code? P. 191, it is an overstatement to say “the whole of socialist philosophy was based on a theory of class war” – that was true of Marxism, but there have been other versions of socialism. P. 239, Liddell and Scott’s standard dictionary does not give “purpose” as a sense of Greek ‘skopos’. P. 249, “civilian lawyer” should read “civil lawyer”.

On balance I see this as a worthwhile book. Several chapters deploy linguistics to shed light on legal problems in a way that could potentially be of real benefit to the law (though I did not find much in the book which draws on law to give us new insights into language).

REFERENCES

Lakatos, Imre. 1976. Proofs and Refutations. Cambridge University Press.

Powell, Richard. 2020. Language Choice in Postcolonial Law. Springer.

Sampson, Geoffrey. 2001. “Meaning and the limits of science”. In Sampson, Empirical Linguistics, Bloomsbury.


ABOUT THE REVIEWER

Geoffrey Sampson graduated in Chinese Studies from Cambridge University, and his academic career was spent partly in Linguistics and partly in Informatics, with intervals in industrial research. After retiring as professor emeritus from Sussex University in 2009, he spent several years as Research Fellow at the University of South Africa. He has published contributions to most areas of Linguistics, as well as to other subjects. His latest books are ''The Linguistics Delusion'' (2017), and ''Voices from Early China'' (2020).



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