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Review of  Speaking of Language and Law


Reviewer: Piotr Węgorowski
Book Title: Speaking of Language and Law
Book Author: Lawrence Solan Janet Ainsworth Roger W. Shuy
Publisher: Oxford University Press
Linguistic Field(s): Discourse Analysis
Discipline of Linguistics
Issue Number: 27.3211

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Review:
Reviews Editor: Helen Aristar-Dry

SUMMARY

“Speaking of Language and Law: Conversations on the Work of Peter Tiersma” edited by Lawrence M. Solan, Janet Ainsworth and Roger W. Shuy is a tribute to the life and work of Peter Tiersma, who passed away a year before the publication of the volume. It contains 17 short excerpts from Tiersma’s writings, along with commentaries from 32 scholars from the fields of law and (forensic) linguistics. The editors express hope that “the excerpts and new contributions stands as a testament both to the vitality of the inquiry into questions of language and law and Peter Tiersma’s contributions to it” (p. xiii). The volume then aims to bring back some of Tiersma’s main ideas and extend them in the collection of essays. As such, it would be suitable for researchers working in the areas of language and law, serving as a reminder of Tiersma’s work alongside responses generated by it. At the same time, it brings together a number of key writings and would be of interest to researchers new to the field, graduate students, or perhaps even undergraduates of higher levels, as a way of introduction to his wide-ranging work. The volume includes a complete bibliography of Tiersma’s works, while name and subject indexes at the end facilitate navigation through the book. The book is divided into six different parts, two of which also contain sub-sections. The thematic groupings are not only helpful for the reader but also give testimony to the breadth of Tiersma’s scholarship.

PART I Legal Language and Its History

The book opens with Chapter 1 “On the Origins of Legal English” which is an excerpt from Tiersma (2012). Chapter 2 “Why is Legal Language So Conservative?,” reprinted from Tiersma’s 1999 book Legal Language, discusses the use of archaic forms. Chapter 3 “Writing the Law in England,” which is taken from the later book by Tiersma (2010), also looks at the history of law and the way it moved from oral tradition to written statutes. Chapter 4 “Some Myths about Legal Language”, an excerpt from Tiersma (2006), deals with the problem of writing law in plain English and the challenges that this attempt brings. In the first piece of commentary on Tiersma’s work in the volume Frederick Schauer tackles in Chapter 5 “On the Relationship Between Legal and Ordinary Language” the distinction between language of the law and law itself. In Chapter 6 “Legal Language and its History” Ronald Butters reflects on the history of legal language and points out that technological advances will necessarily bring about change too. Chapter 7 “Philosophical Hermeneutics in the Age of Pixels: Hans-Georg Gadamer, Peter Tiersma, and Dasein in the Age of the Internet” by Frank S. Ravitch looks at the relationship between technology and tradition in the understanding of law. Edward Finegan in Chapter 8 “The Language of Lawyers and the Language of Plumbers” takes up the conversation with Tiersma by showing examples of situations where the distance of legal language from ordinary English, despite their apparent similarity, can have serious consequences. In the final chapter of the section “’Words, Words, Words’-But What’s in a Legal Text” Dieter Stein suggests that “the law is not in the words, and the words are really indexical of the existence of the law” (p. 54).

PART II The Language of Contracts and Wills

Chapter 10 “Text, Tape and Pixels in Making of Wills” by Peter Tiersma discusses the technological advancements and the limited impact they have had on making wills. Tiersma proposed a change in approach, recognising formal and informal wills, with varying degrees of textuality allowed. In Chapter 11 “Reassessing Unilateral Contracts”, an excerpt from an article originally published in 1992, Peter Tiersma shows how unilateral offers are in fact promises. Chapter 12 “Philosophy of Language, Unilateral Contracts and Law” by Brian H. Bix provides a commentary on Chapter 11, arguing that the insights from the philosophy of language often do not challenge concepts from the legal doctrine, but on occasion it happens, as Peter Tiersma demonstrated. Chapter 13 “How to Do Legal Things with Words” by Sidney W. DeLong is a reaction to Peter Tiersma’s writings on the application of speech act theory to legal doctrine? In DeLong’s words Tiersma’s suggestion was a bold move which allowed scholars to “step over the boundaries of speech act theory and natural language into the jurisdiction of ethics and law” (p. 81). Peter Goodrich illustrates in Chapter 14 “Tiersma Contra Mundum: in Defence of Promises” some ways in which the reasoning suggested by Peter Tiersma would have helped to resolve some legal cases (Browning v. Johnson 1967). Chapter 15 by Jeffrey M. Lipshaw “Formalism, Speech Acts, and the Realities of Contract Formation” takes Tiersma’s suggestion to recognise performative utterances in the electronic format even further to dismiss the legal concept of “mutual intention of the parties” (p. 90).

PART III Speech and Action

The Meaning of Silence in Law

Chapter 16 “The Language of Silence: Implication and the Role of Conversation” is an excerpt from Peter Tiersma’s article published in 1995 in Rutgers Law Review, where Tiersma argues for a communicative approach to silence. Chapter 17 “Symbolic Destruction” provides an excerpt from Tiersma (1993a). The first commentary in this sub-section, Chapter 18 by Elizabeth Mertz “Law’s Metalinguistics: Silence, Speech, and Action,” demonstrates how Tiersma’s contribution exemplifies ways in which law deals with the tacit linguistic ideologies. In Chapter 19 “The Sounds of Silence” Malcolm Coulthard shows how Tiersma’s interest in silence can be realised in various legal settings: in police cautions, using warnings, or perhaps committing plagiarism through silencing original author’s words and ideas quoted. Chapter 20 “Speech or Silence: Within and Beyond Language and Law” by Meizhen Liao shows that Tiersma’s ideas also have implications for the Chinese legal system.

Consenting

Chapter 21 “The Language of Consent in Rape Law” is an excerpt from Tiersma’s (2007a) chapter in Janet Cotterill’s collection on language of sexual crime. Peter Tiersma suggests consent is a mental state, and therefore has to be inferred. Furthermore, consent can either be voluntary or involuntary, and in the latter case questions can be raised as to whether it really is consent. In this light, he suggests redefining rape law to shift the focus from the victim’s state of mind to the ‘means rea’ of the accused. In Chapter 22 “‘Inferring’ Consent in the Context of Rape and Sexual Assault” Susan Ehrlich demonstrates the power of Tiersma’s work on consent by presenting a case where the defendant was acquitted in lower courts based on implied consent before the acquittal was overturned by the Supreme Court of Canada (R. v. Ewanchuk 1995). Ehrlich demonstrates how the lower courts saw the complainant as silent and passive, which corresponds with Tiersma’s (1995) scholarship on silence. In Chapter 23 “Felicitous Consent” Tim Grant and Kerrie Spaul respond to Tiersma’s stance on consent by agreeing that consent is a mental state and must be communicated: “For Tiersma the communication of consent is a matter of evidence of the mental state, whereas for us the communication is a necessary constitutive element of consenting.” They lay their position out (p. 145) and juxtapose Tiersma’s ideas of an understanding of consent as a speech act with Cowart (2004) who rejects the idea of involuntary consent. They go on to argue that consent “is socially required only when there is some likelihood of it not being given” (p. 147). Grant and Spaul also look at the UK Sexual Offences Act 2003 and briefly discuss it in the context of Tiersma’s analysis. Gregory Mateosian in Chapter 24 “Reflections on Peter Tiersma’s ‘The Langauge and Consent in Rapee Law’” extends the considerations on consent to witness examination in the courtroom, demonstrating how hegemonic ideologies are made manifest and reproduced. The patriarchal system reproduced by aggressive adversarial questioning means that the issue of consent will always be important. In Chapter 25 “Speaking of Consent” Gail Stygall suggests re-conceptualizing the concept of rape in a different legal context, namely the enforcement of contracts of adhesion, that is pre-printed forms which have already been drafted and need to be filled and signed. She concludes that “consent in contracts of adhesion is elusive” (p. 155).

Defaming

Chapter 26 “Defamatory Language and the Act of Accusing,” opening the sub-section entitled “Defaming,” is an excerpt from Tiersma’s article on language of defamation (Tiersma 1987). It demonstrates how defamatory language necessarily involves the speech act of accusing, and sets it aside from similar speech acts such as blaming and accusing by demonstrating the importance of the propositional content. In what follows John Conley comments on Tiersma’s engagement with linguistic theory to enhance our understanding of a legal phenomenon. In chapter 27 “Defamation as Speech Act: A Theory that Works” he finds it difficult to fault Tiersma’s model and adds that it is very rare for the law to use theories outside its sedimented methods. Roger Shuy in Chapter 28 “Applying Tiersma’s Defamation Theory to Defamation Cases” shares examples of legal cases where he was able to put Tiersma’s ideas into practice as an expert witness. The final piece of commentary on the subsection, Chapter 29 “Scarlet Letter or Badge of Honour? Semantic Interpretation in Changing Contexts of Culture” by Krzysztof Kredens, offers a slightly different perspective on Tiersma’s paper. Kredens demonstrates how constantly changing societal norms add another layer in analysis of defamatory language.

PART IV interpreting laws

Chapter 30 “Dynamic Structures” in an excerpt from Tiersma (2010) dealing with the technological changes, which the legislative process does not necessarily catch up with as it insists on keeping official physical copies of laws as originals. Tiersma suggests ways in which the law making practices could become more dynamic, such as for example by the judges being able to make comments or even modify bills online (p. 184). Chapter 31 “The Textualization of Precedent” is another excerpt from Tiersma’s work (2007b) suggesting that traditionally unwritten common law, as opposed to statute law, is becoming increasingly written down – a process which Tiersma calls “textualization” (p. 192). He shows examples of how this practice takes place pointing out differences in quoting previous opinions by American and British judges. In the first piece of commentary in this section Lawrence Solan concludes Chapter 32 “Talk about Text as Text” by saying that “judges act as much as lawgivers as the law interpreters they profess to be” (p. 201). In Chapter 33 Jeffrey Kaplan tries to evaluate Tiersma’s suggestion to include both the focus on the text of the law as well as the intentions behind it. Kaplan argues for a clear demarcation between interpretation and construction, and by looking at a specific case (D.C. v. Heller 1993) he shows how Tiersma’s idea for the courts to be both textualist and intentionalist could be operationalized. Chapter 34 “Between Paper and Pixels – How the Form of Modern Laws Changed their Function” by Dru Stevenson shows how codification, among other factors such as changes to information management systems, has led to proliferation of statutes.

PART V Language and criminal justice

Crimes of language

Chapter 35 “The Language of Perjury: Speaking Falsely by Saying Nothing” is an excerpt from Tiersma (1990). The chapter deals with one of the areas extensively researched by Tiersma – silence, and shows how not saying anything can actually communicate a lot. Tiersma suggests that the legislation should reflect the fact rather than requiring witnesses to state something which they do not believe to be true. Chapter 36 “Threats” by Solan and Tiersma is an excerpt from their 2005 book Speaking of Crime: The Language of Criminal Justice. In it the authors define what threats are, trying to differentiate them from other speech acts, such as warnings or promises. In Chapter 37 “How we Play Games with Words in the Law” Janet Ainsworth comments on Tiersma’s work on perjury asking why the crime is rarely charged despite anecdotal evidence to the opposite effect. She suggests that the role of attorney as a co-producer of testimony needs to be taken into consideration. Chapter 38 “Toward a Communicative Approach to Law- and Rule-Making” by Philip Gaines also offers a commentary on the subject of perjury. Gaines argues that the law and the American Bar Association Model Rules of Professional Conduct aim to prevent juries from being misled, but in order to be effective the definitions offered by them need to be viewed in the light of communicative approach, suggested by Tiersma, rather than literal meaning. Susan Berk-Seligson authors Chapter 39 “Threats: A Paralinguistic Approach to the Analysis of Speech Crime,” in which she reports narratives of people who felt threatened. Berk-Seligson asks whether narrating experiences rather than quoting actual threat would be a successful strategy in court.

Criminal justice and everyday speech

The sub-sections opens with Chapter 40 “The Judge as Linguist,” which is an excerpt from Tiersma (1993) showing how judges often undertake linguistic analyses in their rulings. In Chapter 41 “Applied (Forensic) Linguistics in Autochtonic and Allochtonic Use” Hannes Knifka uses Tiersma’s writing as a springboard to think about the relationship between linguistics and law and suggests that a distinction between autochtonic and allochtonic terms, that is terms originating within and outside of a discipline in question, could provide an important theoretical perspective. Chapter 42 “The Sound of Silence: Miranda Waivers, Selective Literalism, and Social Context” by Richard A. Leo offers an example of a case where the courts failed to see the communicative intent of the invocation of Miranda Rights. In Chapter 43 “Words Alone” Laurie Levenson applies Tiersma’s work on perjury to Clinton’s impeachment trial. In the section’s final chapter “Sizzling Irons: Speaking of Criminal Justice” Frances Rock shows examples research interviews with suspects showing how Tiersma’s engagement with pragmatics can be applied in the legal setting of policing.

PART VI: Jury instructions

The section opens with two excerpts from Peter Tiersma, showing the history of jury instructions (Tiersma 2001) and, in Chapter 46 “Capital Instructions: Comprehension as a Matter of Life or Death” an excerpt from Tiersma (1999), demonstrating why it is of paramount importance that juries understand what they are supposed to do. Both chapters stress the need for reform of pattern jury instructions read out irrespective of the nature of the exact case. Chapter 47 “Navigating the Rocky Road” by Bethany Dumas shows an example of how narrativizing some of the legal terms might be helpful for the lay juries to understand legal terms. Chris Heffer in Chapter 48 “Authority and Accommodation: Judicial Responses to Jurors’ Questions” demonstrates how jurors’ attempts to engage with language of the law are met with legal professionals’ ignorance of the realities of laypeople’s capabilities to understand to legal terminology. Heffer argues not only for greater comprehensibility of jury instructions but more importantly for understanding the jurors’ perspective. The final chapter of the volume, “Jury Instructions Written for Jurors: A Perennial Challenge” by Nancy Marder, comments not only on the language of jury instructions but also on the importance of the delivery, which is especially important in the digital age.

EVALUATION

The editors have managed not only to bring some of the most important of Tiersma’s readings into one place, a task which was aided by Peter Tiersma himself when he was still around (p. xvi), but also have achieved, true to the volume’s subtitle, to generate a discussion around the questions raised by Tiersma’s scholarship. This is partly thanks to the good organization of the volume. It is clearly structured and having the excerpts at the beginning of each part with the essays serving as commentaries following them works really well. The variety of contributors, coming from different disciplines as well as geographical areas, is one of the main strengths of the volume, as it allows for multiple disciplines to be represented. However, this strength can at times turn into a disadvantage. For a linguist some of the chapters with a more legal focus are not very accessible (and I am not sure whether the opposite would be true), dwelling on legal intricacies and quoting some of the regulations with which an average reader might not be familiar. In most places, however, legal cases are explained in enough detail so overall the reader can follow the main argument. After all, people like Peter Tiersma who feel equally at ease in both law and linguistics and can communicate this to wide audiences of people are rare.

I am convinced that this latest addition to the “Oxford Studies in Language and Law” series will find its place in many departmental libraries, both in law and linguistics. A lot of research still needs to be undertaken in the areas taken up in the book, but the volume provides a good summary of the state of the discipline(s) by revisiting some of Peter Tiersma’s most influential ideas and in many places suggesting the ways in which they can be taken on and carried forward.

REFERENCES

Cowart, M. 2005. Understanding Acts of Consent: Using Speech Act Theory to Help Resolve Moral Dilemmas and Legal Disputes, Law and Philosophy 23: 495-525.

Tiersma, P.M. 1987. The Language of Defamation, Texas Law Review 66: 303-350.

Tiersma, P.M. 1990. The Language of Perjury: “Literal Truth,” Ambiguity and the False Statement Requirement, Southern California Law Review 63: 373-431.

Tiersma, P.M. 1992. Reassessing Unilateral Contracts, U.C. Davis Law Review 27: 269-78.

Tiersma, P.M. 1993a. Nonverbal Communication and the Freedom of “Speech,” Wisconsin Law Review 1993: 5125-1569.

Tiersma, P.M. 1993b. The Judge as Linguist, Loyola of Los Angeles Law Review 27: 269-284.

Tiersma, P.M. 1995. The Language of Silence, Rutgers Law Review 48: 1-99.

Tiersma, P.M. 1999. Legal Language. Chicago: University of Chicago Press.

Tiersma, P.M. 2006. Some Myths about Legal Language, Journal of Law, Cultures and Humanities 2: 9-50.

Tiersma, P.M. 2007. The Language of Consent in Rape Law. In Cotterill, J. (ed.) The Language of Sexual Crime. Houndmills: Palgrave, 83-103.

Tiersma, P.M. 2007b. The Textualization of Precedent, Notre Dame Law Review 82: 1187-1278.

Tiersma, P.M. 2010. Parchment, Paper, Pixels: Law and the Technologies of Communication. Chicago: University of Chicago Press.

Tiersma, P.M. 2012. A History of the Languages of Law. In Tiersma, P. and L.M. Solan (eds) The Oxford Handbook of Language and Law. Oxford: Oxford University Press, 13-26.

Tiersma, P.M. and Solan, L.M. (2005) Speaking of Crime: The Language of Criminal Justice. Chicago: University of Chicago Press.

CASES CITED

Browning v. Arthur Johnson, 422 P.2d 314 (1967).

D.C. v. Heller, 508 U.S. 223 (1993).

R. v. Ewanchuk (November 7, 1995) Alberta Court of Queen’s Bench, Edmonton, Alberta.
 
ABOUT THE REVIEWER:
I am a doctoral student at Cardiff University, where I completed a MA in Forensic Linguistics. My research project, which is part of a large AHRC grant “Translation and Translanguaging: Investigating Linguistic and Cultural Transformations in Superdiverse Wards in Four UK Cities,” employs linguistic ethnography to investigate the ways in which Police Community Support Officers communicate in their work with members of the public.

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