Gibbons 1999
Gibbons 1999
John Gibbons
INTRODUCTION
Aside from the work of applied linguists, there is important related work
on language and the law in the fields of literature, communication, philosophy,
legal studies, and psychology. Word limits mean that there is not space to discuss
all of these issues, although a comprehensive theorized understanding would
demand their inclusion. Indeed, each of the major areas in the review that follows
merits a lengthy review of its own, but even these topics cannot be treated in more
than a passing manner in a review such as this: Rather than repeat this warning in
each section, I make it now.
1. Communication
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LANGUAGE AND THE LAW 157
2. Law
Law consists both of a code of laws and processes for applying them and
disputing their application. This distinction, between the static or codified, and the
dynamic and dialogic aspects of the law is useful, although the two interact, and
the boundary is fuzzy (for instance 'precedent' operates as means of converting the
outcomes of dynamic legal processes into static bases for interpretation). Law of
this kind appears to have developed long before writing as part of the regulatory
system of human societies, as can still be seen in the "traditional law" of orate
cultures. (There is a substantial anthropological literature.) Religion has also
played a role in the development of law—an important predecessor of Common
Law courts were the Ecclesiastical courts; for example, Islamic or Shari'ah Law is
the basis of many legal systems around the world, although not entirely: Saudi
Arabia has non-Islamic traffic courts. There are, in addition, many 'local' legal
systems, but these have often blended with two secular legal systems which have
evolved into many variants around the world. Roman Law, also known as the
Inquisitorial system, developed from ancient Roman law and is found in much of
continental Europe, East and South East Asia, Latin America, and parts of Africa
and the Middle East. Common Law, also known as the Adversarial system,
originated in England and Wales and can be found where English speakers have
ruled, including England and Wales, North America, much of Australasia and
Oceania, South Asia, Singapore and Malaysia, and parts of Africa and the Middle
East.
LEGAL LANGUAGE
The law in literate societies is a social institution which has become highly
specialized, predominantly written, and since it involves the imposition of societal
norms, associated with the deployment of power. These three characteristics are
marked in the language of the law. The development of the language of the law
thus reveals 1) the move from speech to writing, 2) specialization and technicality
(e.g., legal dictionaries), and 3) the use of power (Atkinson and Drew 1979).
158 JOHN GIBBONS
Jackson (1994:201) writes, "The cognitive structures of the law have come
to reflect written forms of consciousness." Danet and Bogoch (1994) document
the linguistic consequences of the move from spoken to written legal texts, and also
the return to more orate forms in incipient post-literate uses of video recording and
photography, perhaps as part of a more profound cultural change from aurality to
visuality. Judges too may 'translate' from written to spoken form for the benefit of
jurors (Phillips 1985).
serve power purposes. However, witnesses may resist and may indeed use tactics
of their own.
Three additional focal areas of legal language research include speech act
analysis, discourse interaction, and critical discourse analysis. Speech act analysis
in the law has mainly concerned itself with the nature of certain language crimes
such as threats and broken promises (see 'language crimes' below) and with the
major speech act of 'enactment' (Kurzon 1986), the form of words by which
statutes put out by a parliament or other ruling body become law. Enactment
formulae are found in many legal systems. (I have examples from Germany, Italy,
Egypt, the USA, Australia, and the UK, and Pardo [1994] describes one for
Spanish.) Jackson (1997) challenges the notion that these are in fact enactment
speech acts.
At the discourse level, Hale and Gibbons (forthcoming) show that two
levels of reality are manifested in courtroom language: the primary courtroom
reality and the secondary reality of the events under litigation, which are projected
through the courtroom reality. Concerning the primary reality, Maley (1994)
provides a taxonomy of legal genres, and Atkinson and Drew (1979) and Harris
(1984) represent examples of conversation analyses of courtroom discourse. A
well established way of conceiving the representation of the secondary reality is to
view it as narrative, and in fact to see prosecution and defense cases as containing
competing narrative representations of the same reality. Bennett and Feldman
(1981) describe these as competing "stories." There has been sustained interest in
this type of analysis (Brooks and Gewirtz 1996), and courtroom narratives are not
limited to the particular events under litigation; they may be stories of the witness'
life, loves, and previous contacts with the law, and their appraisal might benefit
from literary imagination (Bonier and le Roux 1997, Nussbaum 1995). Work has
also been done on interaction in other legal settings such as dispute resolution and
lawyer-client interaction.
The great majority of the references given above are written in English
about English. There is, however, considerable work in and about other
languages, though space does not permit me to give this area full coverage.
Notably, there is a new series on legal language in various countries
(Rechtssprache des Auslands [Legal language of countries]) consisting, at the time
of writing, of Cavagnoli and Wolk (1997) on Italian, and Byrd (1997) on English.
There is also a new series on legal language "Rechtslinguistik—Studien zu Text und
Kommunikation" [Legal linguistics—Studies in text and communication] edited in
Germany. One should note also the journal, LLengua i Dret [Language and Law]
published in Barcelona, which has papers in Catalan, French, English, and
Spanish.
One source of this difficulty is that legal discourse may be addressing two
audiences, both a lay audience and a legal audience. For instance, police cautions
must not only communicate to the person being cautioned, they must also be
admissible in court as having fully performed that function. This explains in part
the inertia, and even resistance, when it comes to using plain language for legal
purposes. Another source of resistance among police and lawyers is their
understanding of the types of social message conveyed. Most work in this area has
assumed that only prepositional information is communicated by, for example,
police cautions. It is clear, however, that complex and technical language also
carries a social message concerning the power and authority of the person using it.
Resistance to a lessening of this power and authority is not surprising.
The technical, written, and power laden nature of legal language makes the
language of the law notoriously impenetrable for non-lawyers. The situation is
even worse for those who have a low proficiency in the language of the legal
process, such as many second language speakers or the deaf. Writtenness and
technicality will reduce effective participation in legal processes by children, the
illiterate, and the mentally handicapped. It may also affect speakers of other
dialects or sociolects. Power asymmetries may impact particularly on the
LANGUAGE AND THE LAW 161
as resistance by jurors because they have their own understanding of justice, and
they are not prepared to accept the version manifested in the legal system
(Lieberman and Sales 1997). This type of problem can be handled in part by
educating jurors, but this approach is still in its infancy.
One means of addressing some of the problems outlined above, where they
impact upon second language speakers, the deaf, or even second dialect speakers,
is through the use of legal interpreters or translators. Legal interpreting is a
substantial academic field in its own right, so only a brief foray into two major
issues is possible: access to appropriate interpreting/translation services, including
interpreter supply and certification; and the specific nature of legal interpreting and
translation.
'conduit' that converts word for word from one language into another (Hale 1997).
A second issue involves the problems raised by legal interpreting itself, given the
complex technical nature of legal language. Berk-Seligson (1990) and Hale (1997)
describe problems in Spanish-English interpreting, particularly register features. A
third issue is a conceptual mismatch between understandings of the law when
witnesses or accused are from a different cultural background. To give just one
example of a problem, Hale and Gibbons (forthcoming) mention that certain
courtroom formulae such as "I put it to you that..." are embedded in Common
Law concepts, and a literal interpretation, which is probably the best an interpreter
can do, cannot convey this conceptual frame to a person from a Roman Law
background. This is why Morris (1998) refers to legal interpreters as a "necessary
evil." There is a wide consensus that lawyers and police require explicit training
in the nature of interpreting, in what interpreters can and cannot do, and in how
best to use interpreters. Again, such training varies greatly from place to place.
LEGISLATION ON LANGUAGE
1. Language rights
Around the world there have been many efforts to provide rights under
law to linguistic minorities, both in the prevention of discrimination and in the
right to use their language (6 Riagain and Nic Shuibhne 1997). The Mercator
website <http://www.troc.es/ciemen/mercator/index-gb.htm> is a rich source of
information on the largely successful attempts of European linguistic minorities
such as the Catalans, Basques, Bretons, and Welsh to gain some official legal
status for their languages. In Canada too, over recent decades, the place of French
has been greatly strengthened, particularly in Quebec and New Brunswick. In
other countries, a bloody pursuit of minority language rights continues—for
instance Kurdish in Turkey and Albanian in Serbia. Kaplan and Baldauf
(forthcoming) note that the U.S. appears to be moving in the reverse direction to
most other countries. Under the influence of the U.S. English movement, the U.S.
has been moving to outlaw the use of minority languages for institutional purposes,
and legislation to this effect has been introduced in many states of the U.S. A
balanced account of the debate can be found in Edwards (1994:166-170).
3. Language crimes
There are various language acts that have been legislated against.
Offensive language is prescribed in many Common Law jurisdictions, but, in
reality, prosections are rare—social norms have weakened, and many people lack
the hypocrisy to prosecute others for behavior they engage in themselves. Where
prosecutions do occur, they tend to be used as means of addressing agendas other
than bad language, as can be seen in the prosecution of aborigines for swearing by
the New South Wales police, who themselves have a reputation for bad language
(Taylor 1995, Walsh 1995).
FORENSIC LINGUISTICS
There is not a consensus on the meaning of this term. Some people in the
field would include all the areas discussed in this review under this label, others
would include only some of them. Here I am taking the term in the strict sense of
'the field of the provision of linguistic evidence.' As such, it may include
language crimes, but the description and definition of language crimes need not
involve expert testimony. Such evidence is typically given in court, but it may also
involve aid to the police, to insurance companies, or, for example, to companies
on copyright issues. Although the journal Forensic Linguistics deals with many
language and law issues, including for instance legal interpreting, its contents over
the four years of publication have predominantly concerned forensic linguistics.
LANGUAGE AND THE LAW 165
1. Admissibilitv
The types of information that linguistics can offer to the law fall into two
main categories: 1) issues of authorship (i.e., whether a particular person said or
wrote something) and 2) problems of meaning and communication. These issues
can be addressed across all aspects of communication mentioned in the
introduction, in both spoken and written form. Identification of authorship is often
more reliable in the negative, since it is often possible to say with certainty that
two language samples come from different people, even if it is not always possible
to say with certainty that two samples come from the same person.
Phonetics. There are two principal means of voice identification, the ear
or a machine. The ear may be untrained, as in the case of earwitnessing, which
provides evidence of limited dependability, or linguistically trained, which may
offer greater reliability (Schiller and Koster 1998). The machine analysis of voices
is a major sub-field with regular conferences. It fell into disrepute when the FBI
made excessive claims concerning spectrographs, which were misleadingly
renamed 'voiceprints.' The important work by Hollien (1990) and Kunzel (1987)
and others, allied to technological developments, has now increased both the
reliability of findings and caution in their use. Various voice features are used in
identification, but vowel formants still predominate. Hollien (1990) also discusses
the sound 'signatures' left by telephones, tape recorders, etc.
Handwriting and type. Found, Dick and Rogers (1994) discuss the
numerous features of handwriting that may permit identification. With the steady
reduction in the use of handwritten material, emphasis has turned to the
identification of typefaces, printers, and programs.
This technique involves word counts of various types, and the measurement of the
co-occurrence of fairly common linguistic items such as 'the + adjective + noun';
it is proposed that individuals vary considerably from each other on such features.
It uses a statistical technique 'cusum' (Farringdon, et al. 1996) to analyze the data.
It has been widely attacked for the reliability of the statistics (Smith 1994). Even
Bissell (1995:59), a supporter, writes "word-count analysis, using cusums or other
techniques, can form only part of an investigation into authorship." Linguists have
also doubted the validity of the technique, questioning whether there is any
identificatory potential in parameters such as 'the number of words beginning with
a vowel'; "there is no generally accepted support for such a proposition"(Canter
and Chester 1997:259). The controversial nature of the technique can be seen in
the two utterly opposed reviews of Farringdon, et al. (1996) in Forensic
Linguistics (1998, 51). Johnson (1997) provides an alternative approach based on
word counts of vocabulary shared between writers.
PROSPECT
At present there is a need for broad introductions to language and the law.
While none is available to me at the time of writing, Gibbons (forthcoming) is in
preparation, and there are unverified suggestions that a number of other texts are in
preparation. The language and the law field may be about to experience more
explosive growth.
ANNOTATED BIBLIOGRAPHY
Each section is introduced by the editor and ends with a reflection on the
section from a lawyer. The content has a substantial Australian element.
Of particular note are Maley's survey of the language of the law, Eades'
account of unfortunate contacts between aborigines and the law, and
Brennan's disturbing analysis of lawyers' questioning of children. The
collection is not comprehensive since it does not cover drafting and
interpretation of the law, legal interpreting, or legislation on language.
Hollien, H. 1990. The acoustics of crime: The new science offorensic phonetics.
New York: Plenum.
Levi, J. N. and A. G. Walker (eds.) 1990. Language in the judicial process. New
York: Plenum.
This is probably the most widely referenced book on language and the
law. It contains important papers by leading figures on the language of the
courtroom, interpreting, court reporting, and forensic linguistics.
Shuy, R. 1993. Language crimes: The use and abuse of language evidence in the
courtroom. Oxford: Blackwell.
This carefully crafted and elegantly written text examines many of the
features of the language of judges. Solan shows that judges use linguistic
argument as the basis for their decision making, but their argumentation is
often linguistically flawed. In particular, they often argue for a 'plain
meaning' interpretation where the law is clearly ambiguous. The book is
weakened by a dependence on formal linguistics, ignoring the additional
illumination that might be thrown by a functional approach.
UNANNOTATED BIBLIOGRAPHY