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Review of  Law at Work


Reviewer: Lelija Socanac
Book Title: Law at Work
Book Author: Baudouin Dupret Michael Lynch Tim Berard
Publisher: Oxford University Press
Linguistic Field(s): Discourse Analysis
Sociolinguistics
Issue Number: 27.3300

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Review:
Reviews Editor: Helen Aristar-Dry

SUMMARY

''Law at Work”, edited by Baudouin Dupret, Michael Lynch, and Tim Berard, offers a distinctive ethnomethodological approach to legal activities and insights into the study of law at work. Ethnomethodological and conversation analytic (CA) studies examine law-in-action, which means that they describe interactionally organized performances of legal activities. They show in detail how the actions of lawyers, witnesses, judges, and juries draw upon ubiquitous interactional competencies while performing situated legal work (Garfinkel 1967). The focus on how law is performed and how it works in practice can lead to insights on the centrality of language use in law.

The volume consists of an Introduction, eleven chapters divided into three sections, and an Index. In the Introduction, the editors explain the methodologies adopted in the book, innovative approaches with respect to the traditional research in the area of language and law, and the overall organisation of the volume. According to the editors, four major themes can explain the specific contributions of ethnomethodology to the study of law: 1) the relationship between law in action and ''law on the books”; 2) the ''missing what'' of law-and-society research and statistical legal studies; 3) the local orders of practice that are missed by ''hyper-explanations'' and 4) the alternative re-orientation offered by ethnomethodological research on the legal work. They elaborate the four themes mentioned above as follows:

1) Law as a social phenomenon cannot be reduced to legal codes (''law on the books”), although statutes, case law, and rules of evidence are integral to the practice of law. A more adequate understanding can be gained through the close description of both professionals' and laypersons' orientations to legal categories as they emerge from actual encounters in legal forums, in the context of practical casework.

2) In most socio-legal studies, scholars have addressed the nature of law but ignored the phenomenon of legal practice. As a result, little or no attempt has been made to investigate the specific competences through which lawyers produce and coordinate legal actions in particular circumstances. This disinterest in practical actions results in the ''missing what” in the study of legal work (Garfinkel 2002, 99n). Socio-legal studies should describe and analyse how legal categories are used, rather than treating them as self-evident prescriptions for action.

3) Hyper-explanations use abstract concepts that are (arguably) relevant to all social institutions and actions, such as the basic functions of bureaucracy, stages of development in theories of modernity, and theories of power and domination. Legal institutions and authority often have a central place in such explanations, but the specific practices that constitute legal activities tend to be subordinated to overarching concepts defined by a theory of the constitution of society. On the other hand, ethnomethodologists and conversation analysts ''insist that we must first understand what is happening as a local phenomenon'' before assuming that a ''variable or concept such as power is relevant” (Dingwall 2000, 906). Legal work involves practical and daily activity embedded in legal environments which both constrain what can be achieved in particular situations and provide resources for accomplishing such work. For ethnomethodology and CA, legal contexts provide conditions for action, while at the same time being constituted in and through such actions.

4) The ethnographic studies often use methods of participant observation in which the analyst develops a practical (and sometimes professional) competence with legal activities as a condition for analysing legal work, while the CA studies examine recorded and transcribed exchanges and focus on the way that participants rely upon ''ordinary'' practices of language in interaction.

The eleven chapters are organized into four sections: 1) Practical Action, Situated Interaction, and Salience of Law; 2) Practical Pedagogies in the Performance of Legal Activities; 3) Speech, Text, and Technology in Testimony; and 4) Deviance, Membership Categories, and Legalities. Each section begins with a brief summary of the theme and of the chapters in the section.

The section on ''Practical Action, Situated Interaction, and Salience of Law'' examines the salience of law to actions in the courtroom. The three chapters in this section present case materials and explore how participants in legal work orient to legal relevancies while contending with the contingencies of the particular case.

In Chapter One: ''The Practical Grammar of Law and its Relation to Time'', Baudouin Dupret and Jean-Noël Ferrié address members’ orientations to the temporal dimension of the law, and the role that time and history can play in such an approach. The practical grammar of law is reflected in its intertextual organization. The sequential nature of law in action results in people orienting to past and future stages of the process, relying on the former and anticipating the latter. When legislating or adjudicating, members weave the sequential thread of the law through the associations they make among sites, actants, texts and authorities in dialogue with one another. After introducing their approach, the authors examine a series of laws, legislative amendments, and judicial rulings in Egypt concerning a woman's right to divorce her husband. The key point here has to do with the status of Shariah as the principal basis of family law. The authors also show how the practical actions are produced in relation to the historical context of Egyptian legislation and previous legal settlements.

Chapter Two: ''Aspiring Magistrates: Entry Exams and General Traineeship at the Court of Lecce'' is based on extended ethnographical research conducted by the late Luisa Zappulli in an Italian court. Karen Hough completed the chapter by working with notes and a rough draft. The chapter focuses on trainees who had recently passed their qualifying exams and were in the course of training as magistrates under the supervision of an experienced judge. The authors frame their analysis with a contrast between formal law, as taught in law school, and the enactment of cases in court. In-depth interviews enabled the authors to document the distinct points of view of the experienced practitioner and the novices on the salience of law to the practices of the magistrate.

In Chapter Three: ''Practical Solutions: Praxiological Analysis of Judgments in Civil Hearings'' Pedro Heitor Barros Geraldo uses handwritten transcripts of courtroom interactions to recover revealing moments in interactions between the judge and litigants at a French District Court. In addition to explaining how the salience of law is integrated into discursive exchanges between professional and lay participants, the author investigates the issue of how law is integrated with ordinary interactional practices and lay knowledge, while also retaining institutional specificity.

This theme is pursued further in Section II: ''Practical Pedagogies in the Performance of Legal Activities'', which focuses on explicative transactions, i.e. interactive procedures that both accomplish legal work and instruct novices on how to take part in such work.

Chapter 4: ''Hearing Clients' Talk as Lawyers' Work: The case of the Public Legal Consultation Conference'' by Shiro Kashimura analyses informal consultations between lawyers and clients in civil and criminal cases at a stage prior to going to court. The author examines how law professionals and lay participants manage to communicate in ordinary language, while also shaping accounts of events in terms of legal relevancies. The chapter uses a conversational analytic approach to the interactional sequences, and focuses on how the lawyer ''hears'' the client's story , while showing interest in the details and shaping the story to highlight legally relevant terms and themes.

In Chapter 5: Producing Records of Testimony: Some Competent Legal Methods for Incompetent Trials'' Kenneth Liberman examines exchanges in criminal trials in the Australian Outback involving Aboriginal witnesses and defendants. In these cases, problems with understanding that are endemic to lay-professional exchanges are compounded by those associated with deep differences between the languages and ways of life of Aboriginal and Anglo-Australian participants. When the questioning takes the form of leading questions by cross-examiners, affirmative answers can be damaging to a witnesses' case and the asymmetry of interactional contexts can lead to important consequences.

The section on ''Speech, Text, and Technology in Testimony'' concerns various ways in which technologies of writing, recording, and relaying events enter into the moment-to-moment conduct of legal work. It shows how the communication technology through which testimony is generated and coordinated – through the interactional machinery of interrogation, through verbal and literary reports, or through a video link – has consequences for the sequential and logical organization of testimony.

In Chapter 6: ''Reporting Talk When Testifying: Intertextuality, Consistency, and Transformation in Witnesses' Use of Direct Reported Speech'' Renata Galatolo discusses reported speech, which is traditionally classified in terms direct reported speech (DRS), indirect reported speech (IRS) and free indirect reported speech (FIRS) (Coulmas 1986). It is commonly agreed that DRS is not a literal transposition of what was actually said at a different time and in a different situation. The discourse attributed to the original speaker, reported in a different context, is subject to re-contextualisation. The original speaker’s words are subject to an operation of selection and are reported only partially (Clark & Gerrig 1990). The author shows how the apparently same quotations, depending on their sequential positioning and on very small variations, can function as evidence of very different versions of facts.

Chapter 7: ''Turning a Witness: The Textual and Interactional Production of a Statement in Adversarial Testimony'' by Michael Lynch focuses on a single fragment of testimony, which is extracted from a series of writings, depositions, and courtroom testimonies by the parties to a highly publicized civil trial in the US involving the teaching of creationist doctrines in publicly funded schools. The principal parties were the witness who was quoted, the lawyers who interrogated him, and the judge. The analysis traces the fragment through a chain of written documents and testimonies, to show how the adversary parties and the judge worked it into a quotable statement attributed to and (arguably) acknowledged by the witness. The chapter uses court materials to document how the witness’s testimony was turned into a supportive statement for the adversary side. The analysis shows how law at work involves an intricate reading and rereading of written texts within a series of interactional exchanges between interrogators and witnesses.

In Chapter 8: ''Is there Someone in My Videoconference Room? '': Managing Remote Witnesses in Distributed Courtrooms”, Christian Licoppe and Laurence Dumoulin examine court hearings in which one or more witnesses testifies through a video link to a remote site. Their study uses conversation analysis to compare the temporal and sequential organization of the video-linked testimony with the organisation of testimony when witnesses are present in the courtroom along with other parties in the hearing.

Section IV: ''Deviance, Membership Categories, and Legalities” shows how membership category analysis (MCA) provides a suitable resource for studies of law at work, as it highlights the way in which vernacular characterizations of persons, actions, and environments are presented and contested in relation to formal legal categories. In all three cases, characterizations of actions and persons do normative work to cast or mitigate blame.

In Chapter 9: ''Hate Crimes, Labels, and Accounts: Pragmatic Reflections on Hate Crime Law in the USA'', Tim Berard suggests a way to integrate an ethnomethodological treatment of membership categories with a constructivist orientation to the labelling of deviance. The author discusses accusations of ''hate crimes'' and defences against them that present the expressions of motives in question as exercises in free speech. The differences between such characterizations open up questions about how specific labels are objectified through legal work.

In Chapter 10: ''Descriptions of Deviance: Making the Case for Professional Help'' Sally Hester and the late Stephen Hester also use an ethnomethodological approach to membership categories in their analysis of referral sessions in which teachers and educational psychologists review cases of students who were deemed to be ''deviant''. The hearings are informal, but they involve some elements of a trial, in which the behaviour of the student is reconstructed from available records and recollections. The authors conclude that descriptions are always selections from alternatives, that they are contextually contingent and recipient designed and that they are deployed in order to accomplish specific actions.

In Chapter 11: ''Discursive Cartographies, Moral Practices: International Law and the Gaza War'', Lena Jayyusi analyses contested accounts of civilian deaths during the 2008-2009 Gaza War. The contested issue was whether Israeli military actions that resulted in publicly documented death and destruction in civilian neighbourhoods in Gaza violated international law. One of the contested categories is that of civilian casualties, and the extent to which civilians are distinguished from ''enemy combatants''. A related principle is that of proportionality: was the harm done to civilians proportionate to the military needs of the party inflicting it, and was it necessary and last resort? The fundamental disjunction in the war was that between an account of self-defence advanced by Israel and an accusation of war crimes advanced by opponents of the war. What is at stake was not simply an opposition between statements couched in terms of international law, but a disjuncture between what ''anybody'' could see and carefully crafted, defensively designed public statements.

EVALUATION

An extensive body of scholarly literature focuses on the search for universals or the essence of law, while this collection demonstrates that law is highly diverse, and that we cannot understand either its practical or moral dimensions without considering specific examples. Rather than treating law as a body of doctrines, the studies in this volume closely examine specific legal practices and social interactions produced in national and international settings, using a variety of ethnographic, ethnomethodological, and sociolinguistic methods. Although each chapter focuses on a particular type and setting of legal work, together they cover a wide range of institutional procedures, geographical regions, and interactional practices. The book addresses what actually happens in legal practice, allowing readers to truly see law at work.

The volume is very well organized and highly cohesive so that individual chapters clearly contribute to each wider topic. It will be very valuable for anyone interested in the ethnomethodological approaches to law today since it provides an excellent overview of the field, and offers a collection of articles that are interesting, informative, and well written.

Overall, this is a highly relevant, well researched and well-edited book which will certainly inspire future research. It will be of interest to anyone interested in legal interactions and discourse.in the legal settings.

REFERENCES

Clark, Herbert H. & Gerrig, R.J. 1990. ''Quotations as Demonstrations”. Language 66(4): 764-805.

Coulmas, Florian (ed.). 1986. Direct and Indirect Speech. Mouton de Gruyter.

Dingwall, Robert. 2000. ''Language, Law and Power: Ethnomethodology, Conversation Analysis and the Politics of Law and Society Studies.” Law and Social Inquiry 25: 885-911.

Garfinkel, Harold. 1967. Studies in Ethnomethodology. Englewood Cliffs, NJ: Prentice Hall.

Garfinkel, Harold. 2002. Ethnomethodology’s Program: Working out Durkheim’s Aphorism. Lanham, MD: Rowman and Littlefield.
 
ABOUT THE REVIEWER:
Lelija Socanac is Associate Professor at the Faculty of Law, University of Zagreb. She is the head of the Centre for Language and Law and the Foreign Language Department. Her research interests include multilingualism, contact linguistics, (historical) sociolinguistics, critical discourse analysis and legal linguistics.

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