Language and Law (Anthropology)

Introduction
The emergence since the 1970s of social scientific and humanistic studies of law that orient to its linguistic, discursive, and textual features has added both empirical and critical theoretical perspectives to a study of legal language that diverges dramatically from what once was the domain of technicians of legal text and rhetoric. Resonant with the “linguistic turn” of the social sciences and the “sociocultural turn” of humanities, researchers with backgrounds in sociology, anthropology, linguistics, philosophy, semiotics, and literature, among others, have converged around the structure and use of language and discourse in the expression and operation of the law. The earliest work in this area focused on the face-to-face interactions that constitute the legal process, including witness examination, judge-lawyer or judge-litigant exchanges, plea barging discourses, and even juror deliberation and lawyer-client interactions that happen out of public view. Much of it was conducted by social scientists and legal scholars taking seriously the main thesis of American legal realism, that law must be understood in the details of its actual processes, discursive or otherwise, and not just through the interpretive logics and internal histories of its legislative and judicial texts. More recently however, law and humanities scholars, as well as some social scientists, have returned to the language of legal texts, analyzing how their content is informed by narrative tropes from their sociocultural surround, but likewise by their materiality and mediation as documents, records, and files, of which the circulation between social actors figure importantly in law’s making. While their different disciplinary commitments result in different positions on a variety of methodological concerns—i.e., the need for empirical data to support their claims, the possibility and necessity of posing larger critical and/or normative interventions, and/or the value of offering policy reform recommendations, among others—most of these studies nonetheless concur on a basic vision of language use as a medium not only for reference to, but fundamentally for construction of social realities and orders. Legal language is thus understood as a central mode for the exercise of social power through law, and, increasingly, a focus of inquiry that figures centrally in sociolegal studies that considers how law is always a hermeneutic and empirical phenomenon. What counts as legal language scholarship is necessarily broadly scoped, ever widening, and susceptible to varied opinions about how to delimit it. Legal language scholarship is taken here to be all analyses of law—from both the social sciences and the humanities—that suggest a commitment to understanding law’s discursive and textual dimensions and their impact in shaping law’s force in the world. In the following sections, provided first is a list of texts that offers an overview of law and language scholarship, then a section listing Journals dedicated to sociolinguistic, semiotic, and interpretive approaches to law. The article then presents organized additional key scholarship, according to its origins in social scientific or humanities disciplines, with subheadings in each of these sections as relevant to important themes in the law and language literature.
General Overviews
A number of works have been published that offer overviews of law and language scholarship. But, given the breadth of the field, and the productivity of its analytics, most of these overviews provide a view of only portions of this scholarship. Danet 1980 is perhaps the earliest overview of the emerging field of language and law scholarship, approaching the matter from a sociolinguistic perspective. Levi and Walker 1990 is an important early collection of chapters from many late-20th- and early-21st-century leaders in conversation analytic, linguistic anthropological, and forensic linguistic approaches to legal discourses. Mertz 1994 reflects its author’s training as both a linguistic anthropologist and a law scholar with interests in critical theories of law and American legal realism, and also scholarship on the language of non-Western dispute discourses and dispute resolution processes. In the latter, the author follows up on the important review piece published in Brenneis 1988, which takes up the question of the language of disputing more broadly—in formal and informal settings, and in both Euro-American and non–Euro-American cultural contexts. This same period saw the publication ofShuy 1993, a volume reviewing how language is treated as evidence in criminal proceedings and the problems that often come with its misuse. Brooks and Gewirtz 1996 takes up the field of legal storytelling, reviewing it for its commitments to critical race, classical rhetorical, and literary theoretical takes on law. Two important volumes come from the University of Chicago Press’s Series in Language and Legal Discourse: Conley and O’Barr 1998, and shortly thereafter, Solan and Tiersma 2005 (cited under Before and After the Trial). Both are introductions to language and law scholarship, with the former taking up scholarship that considers the microdetails of law’s language practices as constitutive of law’s social force, while the latter considers language practices in the contexts and content of criminal law and its administration. Other reviews have appeared that consider aspects of law’s textualities, including Amsterdam and Bruner 2002 (cited under Legal Narrativity), an important study of narrativity in Supreme Court opinions; Solan’s forensic linguistic study of statutory language (see Solan 2010, cited under Legal Texts, Materiality, and Meaning-Making); but also Hull 2012a and Mawani 2012 (both cited under Legal Texts, Materiality, and Meaning-Making) that consider the way documents, and documentation, figure in law’s social force. Finally, Richland 2013 provides a recent overview of legal language scholarship, attempting to cast the net broadly to consider how early-21st-century work in the field reflects the growing interface between linguistic anthropology, actor-network theory, and legal narratology.
Brenneis, Donald. 1988. Language and disputing. Annual Review of Anthropology 17:221–237.
DOI: 10.1146/annurev.an.17.100188.001253Save Citation »Export Citation »E-mail Citation »
Combining legal anthropology and discourse-oriented linguistic anthropology, this essay offers an early take on analyzing Anglo-American courtroom language in the broader context of dispute interactions (both “legal” and nonlegal) from cultures across the globe. Provides a useful summary of methodological commitments of this literature—including the use of audio recording, transcription and its close analysis, and the reliance on public data.
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Brooks, Peter, and Paul Gewirtz. 1996. Law’s stories: Narrative and rhetoric in the law. New Haven, CT: Yale Law Review.
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An edited volume from a leading scholar of law and literature (Brooks) and a law scholar interested in legal storytelling (Gewirtz), the volume considers the use of narrative and storytelling as elements of legal practice, and also the ways in which literature about law might offer insights into the hermeneutic dimensions of law. An important volume that is still cited for bringing law and literature scholarship in conversation with legal practice, and vice versa.
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Conley, John M., and William M. O’Barr. 1998. Just words: Law, language, power. Chicago: Univ. of Chicago Press.
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An overview of legal language scholarship that focuses on how power works through the law. The authors argue for combining macroanalytic Foucaultian understanding of discourse with a microlinguistic analysis of law talk in various contexts of use. Includes chapters on the “revictimization” of rape victims through witness examination, mediation interactions, natural history of disputes, discourses of law in cross-cultural perspective, and discourses of law in historical perspective. A second edition appeared in 2004.
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Danet, Brenda. 1980. Language in the legal process. Law and Society Review 14.3: 445–564.
DOI: 10.2307/3053192Save Citation »Export Citation »E-mail Citation »
Introduces many of the normative, theoretical, and empirical themes that are developed later in the literature, including the role of legal language in the construction of social worlds, as a mode of legal power, the relationship between language form and use in law, and the effects and possibilities of reforming legal language.
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Levi, Judith N., and Anne Graffam Walker, eds. 1990. Language in the judicial process. New York: Springer.
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An influential edited volume of which the contributors would go on to be leaders in law and language scholarship, including Susan Berk-Seligson, John M. Conley and William M. O’Barr, Douglas Maynard, and Austin Sarat. One of its chief strengths is showing the interdisciplinary spread of legal language scholarship, including sociolinguists, conversation analysts, linguistic anthropologists, legal academics, and forensic linguists.
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Mertz, Elizabeth. 1994. Legal language: Pragmatics, poetics, and social power. Annual Review of Anthropology 23:435–455.
DOI: 10.1146/annurev.an.23.100194.002251Save Citation »Export Citation »E-mail Citation »
Review of scholarship on legal language, placing some of it in the context of linguistic-anthropological scholarship, especially around issues of performativity, (meta)pragmatics, and language ideology. Mertz also discusses studies of legal language from within the legal academic establishment, considering how the relationship between law, power, and language has been taken up by critical race theory and feminist legal studies.
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Richland, Justin B. 2013. Jurisdiction: Grounding law in language. Annual Review of Anthropology 42:209–226.
DOI: 10.1146/annurev-anthro-092412-155526Save Citation »Export Citation »E-mail Citation »
Reviews legal language scholarship since Mertz 1994, with an eye toward theorizing the field through notions of Jurisdiction and Perpetuity—concepts borrowed from Anglo-American law and redeployed as a way of understanding how legal language specifically works to (re)produce law’s legitimacy, authority, and power through specific metaphors of institutional space and time.
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Shuy, Roger W. 1993. Language crimes: The use and abuse of language evidence in the courtroom. Oxford: Blackwell.
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A benchmark work in the field of forensic linguistics by one of its leading voices, Shuy talks about how sociolinguistic approaches to language use can upend many of the assumptions about language and communication that tacitly inform how language evidence (such as taped conversations) are relied upon in criminal proceedings. The volume is a good combination of reflections from his own experiences as an expert witness and trenchant linguistic analysis. Reprinted in 1996.
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Journals
Language and law scholarship have only recently emerged as a distinct subfield of sociolegal scholarship large enough to support its own journals. As a result, some legal language scholarship from the 1970s to the mid-1980s appear in the mainstream journals of sociolinguistic and linguistic anthropology subfields (e.g., Language in Society and Research in Language and Social Interaction) and perhaps most commonly, the interdisciplinary journals of sociolegal scholarship (e.g., Law & Society Review and Law & Social Inquiry). Since the mid-1980s, and increasingly in the early 21st century, journals that specifically attend to law’s linguistic, discursive, and literary features have appeared that have become go-to sources for peer-reviewed scholarship on legal language from around the world. These include the International Journal of the Semiotics of Law, the International Journal of Speech, Language and the Law, Law, Culture and Humanities, and Law and Literature.
International Journal of Speech, Language and the Law.
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Founded in 1994 under the title Forensic Linguistics, the journal, which changed its name in 2003 to reflect a broadening of foci beyond forensic language analysis, still predominantly features both experimental investigations related to the forensic use of linguistic data, qualitative and quantitative analyses of legal speech, and methodological discussions about the role of linguistics in forensic investigation. A unique feature of the journal is its regular inclusion of acoustic and phonetic analyses in addition to linguistic scholarship.
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International Journal of the Semiotics of Law.
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A bilingual journal (English and French) founded in 1987, featuring scholarship on legal language grounded in semiotics, philosophy of language, sociolinguistics, and rhetoric.
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Language in Society.
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A top venue for the publication of sociolinguistic research, the journal focuses on empirical scholarship concerned with language use in social life. The journal is one of the oldest and most respected journals of sociolinguistic research, and draws from a broadly scoped international readership and editorial board. Given its commitment first and foremost to sociolinguistics, the featured articles of interest to scholars of law and language come predominantly from scholars with formal training in sociolinguistics and linguistic anthropology.
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Law and Literature.
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Edited by Peter Goodrich and focusing on scholarship that explores the literary dimensions of law; literature that has law and legal matters as their themes; and how work in each might productively speak to each other about the hermeneutic, textual, and rhetorical dimensions of law and legality.
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Law & Social Inquiry.
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An interdisciplinary journal publishing qualitative and quantitative social science scholarship on law. Sponsored by the American Bar Foundation, the research arm of the American Bar Association, the journal features research by legal academics and social scientists from around the world, including many of the leading names in law and language scholarship.
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Law & Society Review.
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The journal of the Law and Society Association, LSR has been in existence since 1966 and has global recognition as a leader in the publication of law and social science scholarship. Committed to publishing empirical work—broadly scoped to include both historical, qualitative, and quantitative analyses of legal phenomena—some key works in legal language scholarship have appeared in this journal over the years.
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Law, Culture and the Humanities.
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Reflecting the increasing bifurcation of interdisciplinary sociolegal studies along the empirical and interpretivist divide, this journal was started in 2005 and is edited by a leading law and society scholar, Austin Sarat. It focuses on law and literature, legal history, law and cultural studies, legal hermeneutics, and jurisprudence.
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Research in Language and Social Interaction.
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A leading journal for the publication of empirical research on the use of language in interaction, it has been a regular site for the publication of legal language scholarship from scholars trained in conversation analysis, discourse analysis, and communication studies. The journal has been in existence since 1969, but was known as Research in Linguistics until changing to its current name in 1987.
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Social Science of Legal Language
Social scientific investigations of legal language have been dominated by various subfields of what is generally referred to as sociolinguistics, a branch of language analysis that, in its various dimensions, attempts to understand language not as an abstract grammatical and syntactic system (á la formal linguistics), but rather as it is situated in contexts of actual language use by humans engaging each other in sociocultural activities of communication that at once inform, and are constituted by, those language practices. The scholars who take up the investigation of legal language-in-use draw inspiration from a number of different analytic antecedents, among them: ethnomethodology and Conversation Analysis, ethnographies of speaking, pragmatics and metapragmatics, forensic linguistics, psycholinguistics, and Critical Discourse Analysis. Scholars of legal language from all of these disciplinary subfields (of sociology, anthropology, psychology, and linguistics) nonetheless adhere to the notion that it is in its moments of actual use that the sociocultural significance of language is realized, not only for empirical inquiry by social science, but as meaningful to the interlocutors themselves. For some time this has meant an analytic focus on the face-to-face interactions of various modes of legal practice, most notably in the discourses of courts of Anglo- and European legal traditions, with some forays into the disputing discourses of non-Western legal systems, including Islamic Qadi courts and the hybrid contexts of certain (post)colonial legal systems. Only more recently, and with inspiration from scholarship in the humanities and science studies, have scholars in these traditions taken up legal texts, as objects susceptible to analysis as both semiotic and material forms that signify and circulate in ways that are critical to the making of bureaucratic (juridical, regulatory, and political) institutions. In so doing, the social science of legal language has taken up not only the more traditional domains of sociolegal scholarship—i.e., judicial decision making; juridical procedures; and evidentiary practices in court, including civil and criminal justice policing and punishment—it has also been attuned to the key modes of social constructivist and critical cultural studies in its attention to the ways in which narrative, textuality, and the circulation of discourses and documents have figured in the making of law, power, and its semiotic force in the world. A few of these themes are taken up in the subsections here.
In the Courtroom
Perhaps the single most common theme of social scientific investigations of legal language has been the study of different dimensions of courtroom discourse, whether in civil or criminal proceedings, of interactions between judges, litigants, attorneys and jurors, or witness examination and cross-examination exchanges. In all of these contexts, the themes of power and the social construction of truth, witness credibility, and sociocultural notions of race and gender have figured prominently.Atkinson and Drew 1979 offers a detailed conversation analytic approach to courtroom interaction and the way in which talk shapes the larger institutional processes of which it is a part. Bennett and Feldman 1981, writing more from a political science perspective, explores the role of storytelling as a mode of legal reasoning and persuasion in litigation contexts, while Conley and Conley 2009explores the role of narrative in jury deliberation. Conley and O’Barr 1990 is an influential combination of linguistic and legal anthropological inquiry into small claims court interactions in the United States. Ehrlich 2001 and Matoesian 2001 take up the question of the ways in which language is used in the courtroom argumentation and witness examination phases of rape trials, exploring the ways in which lawyers’ selective use of questioning techniques cast doubt on witness credibility in ways that sidestep rape shield laws designed to protect victims who testify. Credibility is at issue inJacquemet 2009 in which the author considers the ways in which the performance and contestation of the reliability of witness testimony play a central role in the famous Camorra mafia trials in Italy. Finally, Philips 1998 takes up related issues of the role that everyday beliefs and politics both back and get produced in the ways in which judges interact with courtroom actors.
Atkinson, J. Maxwell, and Paul Drew. 1979. Order in court: The organisation of verbal interaction in judicial settings. Atlantic Highlands, NJ: Humanities Press.
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A study of courtroom interaction in the United Kingdom from two scholars trained in ethnomethodology and conversation analysis—sociolinguistic fields committed to the way in which interaction constitutes the ordering and coordination (and thus the “doing”) of the larger social activity of which it is a part. Provides detailed analyses of transcribed recordings of hearing openings and witness examinations to explore the interactional organization of such language activities as “accusing,” “excusing,” “justifying,” and “blaming.”
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Bennett, Lance, and Martha Feldman. 1981. Reconstructing reality in the courtroom: Justice and judgment in American culture. New Brunswick, NJ: Rutgers Univ. Press.
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An early empirical analysis of courtroom narrativity, revealing how lawyers in Anglo-American courtrooms make discursive choices to present evidence in trials to jurors in ways that comport with everyday narrative conventions.
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Conley, Robin H., and John M. Conley. 2009. Stories from the jury room: How jurors use narrative to process evidence. In Studies in law, politics, and society. Vol. 49. Edited by Austin Sarat, 25–26. Bingley, UK: Emerald Group.
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Complementary to Bennett and Feldman 1981, this piece uses transcripts of juror deliberations to show how jurors rely on narrative conventions to discursively evaluate and make meaningful the evidence presented at trial. Jurors take up and sometimes provide alternative storytelling frames within which to discursively perform their own sense of the significance of legal evidence and the verdicts they come to base on those understandings.
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Conley, John M., and William M. O’Barr. 1990. Rules v. relationships. Chicago: Univ. of Chicago Press.
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Analyses of audio recordings of small claims court hearings that considers the role that judge-litigant interaction plays in assessments of litigant satisfaction concerning the addressing of their legal claims. Describes two orientations informing judge and litigant argumentation styles—rule-orientation and relationship-orientation—and argues that litigants experience the most satisfaction whose own (rule- or relationship-)orientation matches the orientation of the judge who hears their complaint.
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Ehrlich, Susan. 2001. Representing rape: Language and sexual consent. London and New York: Routledge.
DOI: 10.4324/9780203459034Save Citation »Export Citation »E-mail Citation »
Relies on conversation analytic–inspired investigation of recordings of interactions in two hearings in a sexual assault case (one a university inquiry, the other a criminal trial) to explore the ways in which legal discourse and its constraints shape the production of gendered representations and their enactment before and through the law.
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Jacquemet, Marco. 2009. Credibility in court: Communicative practices in the Camorra trials. 2d ed. Cambridge, UK: Cambridge Univ. Press.
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One of the few sociolinguistic ethnographies of witness examination in a civil law system. And in a language other than English. The author investigates how credibility and veracity are discursively constituted and contested in interactions in the trials of a large criminal organization in Naples, Italy. Explores the use of narrative and question-and-answer strategies deployed by witnesses and the judges and attorneys with whom they interacted.
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Matoesian, Gregory M. 2001. Law and the language of identity: Discourse in the William Kennedy Smith rape trial. Chicago: Univ. of Chicago Press.
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Examines the William Kennedy Smith rape trial to show the social construction of evidence by analyzing discursive strategies and linguistic ideologies that align with normative notions of sexually gendered identity. Matoesian argues that the “patriarchal logic of sexual rationality” (p. 6) is taken as a gender-neutral yardstick by which to judge the victim’s behavior.
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Philips, Susan U. 1998. Ideology in the language of judges: How judges practice law, politics and courtroom control. Oxford: Oxford Univ. Press.
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Using linguistic anthropological theories of language ideology, the author explores how, despite claims to neutrality as required by law, judges’ differing political opinions shape their concepts of legal due process and also how they use language to enact their visions of due process. Data from interactions in formal court proceedings support her claims that the legal language practices revealed by these interactions are informed by ideologies expressed through beliefs about language.
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Before and After the Trial
Some of the most influential sociolinguistic work on the language of criminal justice considers critical pretrial interactions between police and persons detained for investigation, including interrogations, and confessions. Shuy 2005 and Shuy 1993 (cited under General Overviews) and Solan and Tiersma 2005 are key works that consider pretrial criminal justice interactions, while Maynard 1984is an important contribution to the study of plea bargaining interactions. But the importance of interactions between potential legal subjects and legal actors has been central to the social science of civil legal processes as well, and include interactions between claimants and law clerks, attorneys and clients, and even in mandatory mediation exchanges between claimants held prior to trial.Felstiner, et al. 1980 is a key early theoretical work on how interaction outside of court might lead to civil litigation in the first place. Of equal significance has been more recent scholarship that has explored the everyday conceptualizations that people have of law, captured by the concept of “legal consciousness” and studied through an inquiry into the narratives that subjects tell when asked to relate their experiences of and understandings about law’s place in society. This is most directly considered in Ewick and Silbey 1998, though Merry 1990 and Yngvesson 1993 also consider notions of legal consciousness in engagements between nonlawyer participants in civil legal proceedings, including courtroom personnel and the litigants that interact with them. Finally, Mertz 2007 is a deep investigation of the role of language in law school education, exploring how the training of lawyers primarily involves a shift in their legal consciousness accomplished largely through changing their habits of language use.
Ewick, Patricia, and Susan Silbey. 1998. The common place of law: Stories from everyday life. Chicago: Univ. of Chicago Press.
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An influential and oft-cited study by two qualitative sociologists, analyzing findings from interviews with over four hundred US subjects from diverse socioeconomic backgrounds on their experiences of law. Finds three general types of narratives of law, and argues that these narratives reveal three general theories of legality (sometimes called “legal consciousness”) as either something remote and objective, a tool to be manipulated, or arbitrary and to be resisted.
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Felstiner, William, Richard L. Abel, and Austin Sarat. 1980. The emergence and transformation of disputes: Naming, blaming, claiming. Law and Society Review 15.3: 631–654.
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An early, influential theory piece that argues for the need to explore how disputes emerge from social life to become legal conflicts, and the role of language therein. The themes of the article are later taken up in Conley and O’Barr 1998 (cited under General Overviews) and supplied with discourse data that empirically support the theories first developed herein.
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Maynard, Douglas W. 1984. Inside plea bargaining. New York: Plenum.
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Uses conversation analytic and ethnomethodological approaches to analyze transcripts of plea bargaining interactions as the discursive production of negotiations between judges and lawyers representing criminal defendants. Explores the ways in which those interactions turn on assessments of defendant’s character, management of caseloads, and legislative restrictions on judicial discretion to evaluate the normative claims that plea bargaining meets the requirements of justice in US legal systems.
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Merry, Sally E. 1990. Getting justice and getting even. Chicago: Univ. of Chicago Press.
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A study of legal consciousness in which the author tracks how working-class disputants in New England discursively construct their disputes before, during, and after their experiences in hearings before lower courts. Though it doesn’t offer interactional data, it does have data that allows for the comparison of different narratives of disputants’ problems over the “life” of the conflict.
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Mertz, Elizabeth. 2007. The language of law school: Learning to “think like a lawyer.” Oxford: Oxford Univ. Press.
DOI: 10.1093/acprof:oso/9780195183108.001.0001Save Citation »Export Citation »E-mail Citation »
Law scholar and linguistic anthropologist studied student-teacher interactions in first-year US law school courses, which are understood as the most significant component of formal legal professionalization. Argues that analyses of discourses and texts from classes reveal how students are trained to suppress the ethical and political dimensions of the conflicts studied, in favor of the supposedly dispassionate language of legal categories and logics.
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Shuy, Roger. 2005. Creating language crimes: How law enforcement uses (and misuses) language. Oxford: Blackwell.
DOI: 10.1093/acprof:oso/9780195181661.001.0001Save Citation »Export Citation »E-mail Citation »
Offers an accessible account of the ways in which language is used in the investigation of crimes, the interrogation of suspects, and the prosecution of criminal defendants in cases involving fraud, murder, bribery, and others. Describes the use of regularly patterned discursive strategies used by police, witnesses, and prosecutors in different interactional moments before and during trials, and how linguistic evidence, despite its significance, is often misunderstood in the criminal judicial system.
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Solan, Lawrence M., and Peter M. Tiersma. 2005. Speaking of crime: The language of criminal justice. Chicago: Univ. of Chicago Press.
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An overview of issues of language use in criminal justice, showing how misconceptions about language in that system can lead to unjust outcomes. The authors focus on (1) language issues in police and suspect interaction, (2) types of linguistic evidence that is permissible (or not) during trials, and (3) crimes committed by language (solicitation, conspiracy, bribery, threats, and perjury).
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Yngvesson, Barbara. 1993. Virtuous citizens, disruptive subjects: Order and complaint in a New England court. New York: Routlege.
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An analysis of disputing discourses in three New England towns and how subjects are met by the institutional “gate-keepers” of the court (law clerks, legal secretaries, etc.) who determine whether to discourage filings of “junk cases” based on claimants’ abilities to express claims in the language of legal rights. Argues that language practices and their evaluation by institutional personnel may undermine subjects’ access to legal fora.
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In Western, Non-Western, and (Post)colonial Contexts
Given the centrality that language is increasingly understood as playing in the social science of law, it is no surprise that legal anthropological explorations of non-Western legal traditions have also had their share of language-oriented scholarship. One might even argue that it was a famous dispute between legal anthropologists Max Gluckman and Paul Bohannan over the analytic value and translatability of legal concepts in the Anglo tradition to describe concepts in non-Western legal systems that may have ushered in the late modern reorientation of legal anthropology away from defining what is or isn’t law, and toward questions of legal processes, pluralism, and power. Today, a wealth of anthropological scholarship explores the ways in which language has figured centrally to the texts and discourses of non-Western law, attesting to the enduring vitality of a legal language approach to studying law in a variety of sociocultural traditions. Goldman 1993, Hirsch 1998, andMessick 1992 are key examples of this corpus, exploring the way language mediates disputing processes in Papua New Guinea, Tanzania, and Yemen, respectively. Likewise, important scholarship is also being undertaken that explores the ways in which Anglo-American legal language is being translated into, talked past, or talked against other modes of law talk, including those of many (post)colonial courts and other tribunals of the global North where, given transnational flows of material and human capital, so many peoples of the global South increasingly find themselves imbricated. Eades 2008 argues that problems of language and communication in the ways Aboriginal Australians encounter the adversarial systems of Australian law help explain why they are disproportionately represented among Australia’s prison population. Communication and language in the Australian legal system may be contributing to the vast overrepresentation of Aboriginal Australians. Trinch 2003 and Berk-Seligson 2009 are important works on similar issues of miscommunication and misrepresentation that emerge when non-English speakers find themselves the subject of the legal discourses of various legal actors, including lawyers, judges, and police, and how the use of evidence from these engagements influence the legal proceedings of which they are a part. Richland 2008 considers the way in which language use of civil proceedings in the trial court of the Hopi Tribal Nation reveals how contemporary Native American jurisprudence bears the influence from both Anglo-American and uniquely Hopi language practices and beliefs. Finally, Ng 2010 considers a similar engagement between different language practices and beliefs in Hong Kong’s courts, where Cantonese has been recently added to English as the official languages of a legal system that still bears the structure and procedures of the British common law system.
Berk-Seligson, Susan. 2009. Coerced confessions: The discourse of bilingual police interrogations. Berlin: Mouton de Gruyter.
DOI: 10.1515/9783110213492Save Citation »Export Citation »E-mail Citation »
Explores the problems surrounding confessions of defendants with limited English skills in the US criminal justice system. Considers the various elements of the pretrial processing of detainees, from the administering of Miranda warnings to the interrogation of detainees, the elicitation of confessions and the issues with admitting evidence of these practices in court, to highlight the general failure of US criminal justice systems to require adequately trained interpreters and translators for defendants.
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Eades, Diane. 2008. Courtroom talk and neocolonial control. Berlin: Mouton de Gruyter.
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Prominent sociolinguist and Aboriginal rights advocate argues that the failure of the Australian legal system to acknowledge the cultural and communicative differences between Aboriginal English and Australian English speakers, which underwrite the significant power differentials between the groups in the legal system, puts the former at an unjust disadvantage. Calls for more studies that analyze both the micro and macro processes of structural oppression and resistance when Aboriginal litigants confront Australia’s courts.
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Goldman, Laurence. 1993. The culture of coincidence: Accident and absolute liability in Huli. Oxford: Clarendon.
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A critique of theories of absolute liability in classical legal anthropology and their correlates in recent theories of intentionality in linguistic anthropology. Relies on transcripts of dispute discourses in the traditional courts of the Huli peoples of Papua New Guinea to argue that the ways in which responsibility is linguistically encoded in Huli cannot be appreciated without a close and careful reading of the language as it is used in disputes involving attributions of responsibility.
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Hirsch, Susan. 1998. Pronouncing and persevering: Gender and the discourses of disputing in an African Islamic court. Chicago: Univ. of Chicago Press.
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An analysis of dispute interactions in the Swahili Islamic courts of coastal Kenya reveals that despite language ideologies that posit discrepancies in the social capacity of men and women regarding marital relations, women actively use legal processes to push against marital hardships, securing victories within the ideologies of gender difference, while sometimes reinforcing their positions as subordinate to men.
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Messick, Brinkley. 1992. The calligraphic state: Textual domination and history in a Muslim society. Berkeley, CA: Univ. of California Press.
DOI: 10.1525/california/9780520076051.001.0001Save Citation »Export Citation »E-mail Citation »
Historical and ethnographic work investigating Sharia law in Ibb, Yemen. By analyzing discursive and textual practices, traces changes in the legal and educational system introduced by Ottoman reformers. Argues that the Western evolutionary model of “progress” from oral to literate forms of law do not apply to Yemen or even Islam. The Yemeni/Islamic “theory of knowledge” rested upon an assumption that privileges orality, and the interpretive “openness” of the texts critical to understanding the force of Sharia law documents.
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Ng, Kwai. 2010. The common law in two voices: Language, law and the postcolonial dilemma in Hong Kong. Palo Alto, CA: Stanford Univ. Press.
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Explores the impact of the introduction, post-reunification (1997), of the introduction of Cantonese in the Anglo-style, common law courts of the formerly colonial Hong Kong. Explores the ways in which English and Cantonese and ideologies about both shape the kinds of arguments and interactions that can be made in court, and whether and how principles of legal formalism, social relationship, and cultural meaning are given voice in Hong Kong’s bilingual courtrooms.
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Richland, Justin B. 2008. Arguing with tradition: The language of law in Hopi tribal court. Chicago: Univ. of Chicago Press.
DOI: 10.7208/chicago/9780226712963.001.0001Save Citation »Export Citation »E-mail Citation »
Considers how Anglo-style courts of the Hopi Tribal Nation navigate competing demands of legal legitimacy according to common law principles of adversarial jurisprudence and Hopi conceptions of tradition. Transcripts of audio recordings of courtroom interaction in Hopi and English reveal how differences in notions of normativity, authority, and legitimacy are constituted in English and Hopi languages, and how court officers, lawyers, and litigants navigate those differences to produce a contemporary Hopi tribal jurisprudence.
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Trinch, Shonna L. 2003. Latinas’ narratives of domestic abuse: Discrepant versions of violence. Amsterdam and Philadelphia: John Benjamins.
DOI: 10.1075/impact.17Save Citation »Export Citation »E-mail Citation »
Explores the ways in which Latinas’ narratives of domestic violence are afforded and constrained by the legal advocates they meet when deciding whether to take legal action. Trinch explores how the co-construction of these narratives are informed by the different stages in the legal process in which they are produced, and also in the ways in which English and Spanish are deployed as interlocutors that move between the two when telling these stories.
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Legal Texts, Materiality, and Meaning-Making
Alongside the steady interest in detailing the discursive details of legal language in face-to-face interaction, a growing body of scholarship has returned to the formalism of legal texts as material and semiotic phenomena that likewise can be understood only in their contexts of use and circulation. This interest in documents, records, and files joins a linguistic anthropological concern with processes of entextualization, de- and recontextualization, and intertextuality (i.e., the ways in which linguistic phenomena are figured as “things” that can be abstracted from particular moments of use and treated as stable and discrete across other moments of use) with a concern in the social study of science and technology that explores how media technologies (books, audio, and video recordings, even systems of scientific classification and categorization) shape and constrain the constitution and circulation of the information they order and circulate. When brought to the study of legal texts, scholarship undertaken in this vein explores the ways in which different political and legal institutions are figured as coherent bureaucratic wholes by the ways in which their documents and their material and semiotic qualities move by and between social actors who are brought into relationship through their circulation and storage. In so doing they offer a view of legal language that is often elided in the banality of bureaucratic regularity, but which figures centrally in the exercise of its institutional force. Hull 2012a offers an important review of this emerging trend, while Hull 2012bexemplifies the author’s own linguistic anthropological and material investigation of legal documents in Pakistani bureaucracy. Latour 2010 offers a similar perspective on French legal bureaucracy, albeit one grounded in the school of thought called Actor Network Theory, which he helped to found.Riles 2006 is an edited volume of which the contributions consider the textuality and materiality of documents from the perspective of legal anthropologists and lawyers, while Solan 2010 and Tiersma 2010 explore legal textual interpretation and the material forms of legal record keeping and circulation from the authors’ unique perspectives as legal scholars and forensic linguists. Mawani 2012 offers a review of the emergent literature on the sociology of legal forms particularly in historical and contemporary (post)colonial contexts, while Vismann 2008 offers a Foucaultian genealogy of the file as a particular technology of legal power and authority in different moments in history.
Hull, Matthew. 2012a. Documents and bureaucracy. Annual Review of Anthropology 41:251–267.
DOI: 10.1146/annurev.anthro.012809.104953Save Citation »Export Citation »E-mail Citation »
An important review that explores the emergent anthropology of documents by an author with commitments to both a linguistic anthropological and science studies approach to the topic. Provides one of the few comprehensive overviews of the ways in which these two fields of research can be brought into productive conversation with each other.
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Hull, Matthew. 2012b. Government of paper: The materiality of bureaucracy in urban Pakistan. Berkeley, CA: Univ. of California Press.
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An ethnography of the semiotics and materiality of documents, and the beliefs of the importance of documents in the postcolonial bureaucratic context of Islamabad. Explores the ways in which documents, their archiving, and circulation are understood by state and nonstate actors as central to the articulation and pressing of personal and political rights to property, economic resources, and access to government programs.
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Latour, Bruno. 2010. The making of law: An ethnography of the Conseil d’Etat. New York: Polity.
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The author, a leading theorist of science and technology studies, investigates the everyday constitution of administrative law in France’s Conseil d’Etat. In his characteristic way, Latour focuses not just on what the actors themselves do, but also on the way files make up the work of the Council, using his familiar concept of “inscription” and “tracing” to see the way documents flow and organize the way people act and move.
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Mawani, Renisa. 2012. Law’s archive. Annual Review of Law and Social Science 8:337–366.
DOI: 10.1146/annurev-lawsocsci-102811-173900Save Citation »Export Citation »E-mail Citation »
Author is a sociolegal scholar with an interest in the historical sociology of legal forms in the articulation of colonial and (post)colonial state arrangements. The essay introduces the notion of law as archive in a way that affords a review of the relevant critical scholarship of law’s role in the constitution of contemporary sociopolitical arrangements through the ways in which the documents produced in and by law get used, often uncritically, as historical evidence of the past.
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Riles, Annelise, ed. 2006. Documents: Artifacts of modern knowledge. Ann Arbor, MI: Univ. of Michigan Press.
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Editor is a law scholar and anthropologist whose own research considers how international legal and corporate institutions operate largely through the discourses and texts that produce not just information about the social phenomena they control, but often the phenomena themselves. Includes a reflection on how the logics of ethnographic writing and anthropological theorizing of Western bureaucratic organizations often echoes, in disarming ways, the logics and epistemologies of their ostensible human subjects.
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Solan, Lawrence. 2010. The language of statutes: Laws and their interpretation. Chicago: Univ. of Chicago Press.
DOI: 10.7208/chicago/9780226767987.001.0001Save Citation »Export Citation »E-mail Citation »
Investigates a common theme in legal academy—statutory interpretation—and uses linguistic and psychological scholarship for explanations on why there is disagreement about the “ordinary” meaning of words. Argues that competing legal theories about the language of a statute compel judges to make arguments based on extrinsic evidence (legislative history or legislative intent) that ignores the relevant context for effective interpretation, according to linguistic and psychological analyses.
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Tiersma, Peter M. 2010. Parchment, paper, pixels: Law and the technologies of communication. Chicago: Univ. of Chicago Press.
DOI: 10.7208/chicago/9780226803074.001.0001Save Citation »Export Citation »E-mail Citation »
A historical overview of the ways in which three different technological innovations in legal media—writing and literacy, mass print production, and digital modes of textual circulation—shape the way in which legal language is articulated, circulated, and communicated, and how law is understood as carrying social force.
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Vismann, Cornelia. 2008. Files: Law and media technology. Palo Alto, CA: Stanford Univ. Press.
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Investigates how media technologies, in particular relating to the management of files (documents in the broadest sense) shaped and produced the law. Offers a historical and genealogical analysis of semiotic technologies and the changing ideologies that adhere to them in the development of modern Euro-American state administration. Attends to the materiality of files to show how regimes of orality and literacy are constrained and afforded by these qualities.
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Humanities Scholarship of Legal Language
When sociolegal studies first started turning toward questions of law and language in the 1970s, the majority of legal academics had little or no training in the methods of social science, with only a handful holding PhDs of any type. Given that professional and academic training in law largely involved, and still involves, training in the exegetical practices of statutory and case law analysis, and the rhetorical practices of oral argumentation that go with it, it is perhaps not so surprising that members of the legal academy wishing to explore law’s language would turn for inspiration to disciplines in the humanities where textual analysis and interpretation were also the dominant mode of analysis—in particular to literature and literary theory, philosophy, and history. Of these efforts in the United States academy, the field of law and literature has perhaps gained the strongest following, involving scholarship that explores both the literary components of legal writing and discourses, but also the ways in which law figures in key literary works, both in the Western canon and increasingly elsewhere as well. Other emerging fields of humanities scholarship relevant to students of law and language are law and cultural studies and Legal Semiotics.
Legal Narrativity
One particular subgenre of law and literature scholarship that has impacted the social science of legal language is that which has taken up questions of legal narrativity, insofar as questions of courtroom storytelling and the narrative structure of legal texts, like Supreme Court opinions that echo some of the empirical inquiries into the discourses and texts of law investigated by sociolinguists of different stripes. White 1985 and Brooks and Gewirtz 1996 (cited under General Overviews) are benchmark works that take the lessons of the law and literature movement and apply them to an understanding of law’s narrativity, while Cover 1983, Jackson 1988, and Amsterdam and Bruner 2002 take on questions of legal narrativity from legal philosophical, semiotic, and psychological perspectives, respectively. Even more specifically, a body of scholarship known as “oppositional storytelling” (Delgado 1989 is a key example), which has been used in various ways by legal academics claiming the mantles of critical race theory and/or feminist legal theory (see West 1993 for a feminist legal approach to law’s narrativity), have also attracted a following among social scientists of legal language who are also interested in the ways in which law’s narrative qualities work a hegemonic force silencing the voices of marginalized social groups along lines of race, class, gender, and/or sexual difference. Finally, one should be aware of critics of the law as a narrative perspective in a variety of its genres, as exemplified in Farber and Sherry 1992 and Posner 1997, and reviewed and responded to by a leading proponent of legal narrativity in Brooks 2006.
Amsterdam, Anthony, and Jerome Bruner. 2002. Minding the law. Cambridge, MA: Harvard Univ. Press.
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Amsterdam is a leading constitutional law scholar, and Bruner is one of the foremost theorists of narrative and its cultural psychological dimensions. Together they offer perhaps the most persuasive argument for the rhetorical force of narrative textuality in the crafting and reasoning of Supreme Court jurisprudence, using some of the most important opinions in the Court’s history, on issues of death penalty, racial segregation, abortion, and others, offering psycholinguistic and narrative analyses of their texts.
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Brooks, Peter M. 2006. Narrative transactions—does the law need a narratology? Yale Journal of Law & Humanities 18:1–28.
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Brooks argues for applying the analytic toolkit of narratology to illuminate the law’s own decision-making process. He shows, based on court decisions, to what extent justices are aware of the storytelling elements in the process of reaching a verdict. Closes with a brief treatment of the court’s decisions as the definitive narratives of a particular case and highlights that the court produces its own long history and continuity through its performance of authoritative language.
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Cover, Robert M. 1983. The Supreme Court, 1982 term—foreward: Nomos and narrative.Harvard Law Review 97:4–68.
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Argues that law is a symbolic system of meaning making and ordering (a nomos) constituted in and through narrative that does symbolic violence to alternative meaning making and orders (nomoi) with which it must share social and symbolic space, but with whose meaning making it is incompatible. Presents example of Supreme Court jurisprudence during its 1982 term constituting a narrative universe. An influential article for critical legal studies, critical race, and feminist legal theory, setting the stage for narrative jurisprudence.
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Delgado, Richard. 1989. Storytelling for oppositionists and others: A plea for narrative.Michigan Law Review 87.8: 2411–2441.
DOI: 10.2307/1289308Save Citation »Export Citation »E-mail Citation »
Delgado is a leading legal scholar of critical race theory and the founder of a school of legal writing and critique called “narrative jurisprudence” or “oppositional storytelling,” which argues that the narrative force of law captures even that scholarship that would write against it, unless that writing is conducted in genres of storytelling that take alternative forms. This essay is his most explicit theoretical argument in support of his approach to critical legal scholarship.
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Farber, Daniel A., and Susan Sherry. 1992. Telling stories out of school: An essay on legal narratives. Stanford Law Review 45:807–855.
DOI: 10.2307/1229198Save Citation »Export Citation »E-mail Citation »
Both a review and critique of the “narrative jurisprudence” movement in critical race and feminist theory, challenging the notion that women and people of color necessarily have a narrative “voice” that is systematically silenced in mainstream narrative framing of legal texts and discourses, and that “oppositional storytelling” jurisprudence does not work as legal scholarship in aiding in understanding the law and its narrativity.
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Jackson, Bernard S. 1988. Law, fact, and narrative coherence. Roby, UK: Deborah Charles.
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Slim but dense volume that deploys a narrative approach to the trial inspired by the semiotics of A. J. Greimas, offering one of the few analyses of legal narrative that attempts to show how the different discursive components of legal processes and texts—oral arguments, witness examination and cross-examination, even statutory language and judicial opinion—can be understood as confronting each other in the larger narrative format of the trial.
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Posner, Richard A. 1997. Narrative and narratology in classroom and courtroom. Philosophy and Literature 21.2: 292–305.
DOI: 10.1353/phl.1997.0057Save Citation »Export Citation »E-mail Citation »
Written by a legal academic and federal judge best known as a leading figure of the school of thought called law and economics. He offers a critique of what he calls the “legal narratology” movement for overstating the similarity between law and literature in ways that ignore the differences between fact and fiction and the real world effects of legal opinions.
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West, Robin. 1993. Narrative, authority & law. Ann Arbor: Univ. of Michigan Press.
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Considers the contributions that a narrative analysis of law can offer for a feminist jurisprudence, and argues that a theory of legal texts that considers their narrative underpinnings reveals the problematic moral grounding on which rests both legal principles, and much of the critiques that engage it on those same grounds.
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White, James Boyd. 1985. The legal imagination. Abr. ed. Chicago: Univ. of Chicago Press.
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Develops ways of comparing legal language activities with other language activities, including narrative, in order to ask questions about the force of language in a variety of settings. Legal education instructs lawyers-to-be in the manipulation of language, while at the same time manipulating the lawyer’s command of language. He gives examples of figures and authors from classic literary and scholarly works to describe how language works to canalize ways of thinking and experiencing, including in law.
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Law, Rhetoric, and Theory
One of the important contributions that humanities scholarship can make to the study of language in law is to critically interrogate taken-for-granted elements of legal practice that may not necessarily have empirically obvious dimensions. Law and humanities scholarship has been particularly adept in asking about the ways in which legal language doesn’t signify, either discursively or textually, and how in certain contexts it is the deafening silence of law, as much as its speech, that can carry its substantial social force. This is a central theme in Constable 2005, which argues for a reinvigoration of rhetorical approaches to legal language, while Sarat 2010 pursues the silencing effects of legal language with contributions from history, literature, and language philosophy. Cormack 2007 andDorsett and McVeigh 2012 offer, respectively, literary and critical theoretical rethinking of a central legal concept—jurisdiction—as a way of thinking of the way language and language practices constitute law’s power and authority.
Constable, Marianne. 2005. Just silences: The limits and possibilities of modern law. Princeton, NJ: Princeton Univ. Press.
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Takes issue with the “sociolegal positivism” constituting the social science of legal language that remains silent on issues of justice in favor of an empirical assessment of its phenomenological experience in speech and text. Offers a nonsociological analysis of law and language by returning to theories of rhetoric that, as the author claims, can hear more than the empirical forms of language by attending to silences.
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Cormack, Bradin. 2007. A power to do justice: Jurisdiction, English literature, and the rise of the common law, 1509–1625. Chicago: Univ. of Chicago Press.
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Explores how the literary theme of jurisdiction in sixteenth-century–English literature reveals the ways in which common law institutions and actors, in its early stages of development, were centrally preoccupied with questions of the scope and legitimacy of its power in relation to other sources of social authority, including ecclesiastical courts, maritime courts, and the courts of equity.
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Dorsett, Shaunnah, and Shaun McVeigh. 2012. Jurisdiction. London: Routledge-Cavendish.
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Takes seriously the etymology of the word “jurisdiction” as legal speech, and couples it with the conventional understanding of jurisdiction to critically theorize how the language of law at once announces and delimits legal power and legitimacy over people, places, and things. Pays attention to how jurisdiction can speak to foundational speech acts of legal institutions and the most quotidian details of everyday legal practice.
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Sarat, Austin, ed. 2010. Speech and silence in American law. Cambridge, UK: Cambridge Univ. Press.
DOI: 10.1017/CBO9780511750724Save Citation »Export Citation »E-mail Citation »
Collection of essays from legal historians, literary theorists, and language philosophers concerning the ways in which law shapes and constrains subjects capacity to speak authoritatively, and/or demands their silence, in certain specific contexts of use, including especially contexts of political perjury.
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Legal Semiotics
As the study of signs and their use, semiotics may have originated in the scholarship of Charles S. Peirce, one of the progenitors of American Philosophical Pragmatism, a school of philosophical thought that has certain important resonances with American Legal Realism. But while the field of semiotics would begin to assert considerable influence on certain strands of linguistic and cultural anthropological and critical theory scholarship starting in the 1970s, its influence in the study of legal language and signs has only more recently emerged. Cacciaguidi-Fahy and Mooney 2009 offers an introduction to the still-nascent field of legal semiotics in the first issue of the first journal dedicated entirely to its study. Earlier works such as Kevelson 1988, Kevelson 1990, Jackson 1988 (cited under Legal Narrativity), and Jackson 1996 offered earlier examples of the promise of legal semiotics from perspectives grounded in the semiotic theories of Peirce and Griemas, respectively. Given Peirce’s own claims that law’s interpretive logics anticipated his sense of the pragmatic workings of signs-in-use, it is not hard to imagine that a robust school of legal semiotics may be the not-so-distant future of law and language scholarship.
Cacciaguidi-Fahy, Sophie, and Andrea Mooney, eds. 2009. Special issue: The promise of legal semiotics. International Journal for the Semiotics of Law 22.4.
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Special issue based on a roundtable that sought to consider the epistemological, methodological, and conceptual advances made in the semiotics of law. The papers consider jurisprudence as science, rhetoric in law, mimetic theory and semiotics, Bentham’s theory of language and its relevance to law today, international law as a language expressing a normative order, and the interaction between international and domestic law and the undermining of the separation of powers.
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Jackson, Bernard S. 1996. Making sense of jurisprudence. Liverpool, UK: Deborah Charles.
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Lays out the possibility of a semiotic approach to “deciding what . . . law is” (p. 2), relying on theories developed by the French semiotician A. J. Greimas, while also drawing from elements of formal linguistics, psychology, and positivist legal philosophy.
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Kevelson, Roberta, ed. 1988. Law and semiotics. Vol. 1. London: Springer.
DOI: 10.1007/978-1-4613-0959-8Save Citation »Export Citation »E-mail Citation »
A collection of essays from various authors exploring different ways signs and sign-systems figure in the language and texts of Anglo-American law. Includes a good introduction to Peirce’s sometimes-difficult semiotic theories and its application to law.
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Kevelson, Roberta. 1990. Peirce, paradox, praxis: The image, the conflict, and the law. Berlin: Mouton de Gruyter.
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An exploration of the ways in which law figured centrally in Peirce’s theory of signs, as well as the ways in which Peirce’s semiotics can subsequently be used to analyze Anglo-American law. Describes paradox and conflict as the central engines of legal meaning making and semiosis more generally, as understood by Peirce.
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