6.1 A General Model
As the legal systems of the US and the UK are not significantly dissimilar references to both will be made in the presentation of a general model of legal discourse.
Walker (1987) in her study of the taking of pre-trial depositions in the American legal system concluded that power is ‘role-connected’, that is, formally constituted (p.78). The examiner in the deposition has the right to compel responsive answers from a witness while at the same time restricting the witness right to question the examiner. Further power over the witness is exercised through the nomination and sudden shifts of topic, and also the manipulation of question form. This linguistic power rests on a very solid base of socio-cultural power (society sanctions them as ‘authorised participants’ in the resolution of formal disputes) and legal power (their subject positions as ‘authorised participants’ are located in and derive power from the formal legal setting of adversary law.) (p. 58). As will now be seen, she provides many examples of the features of linguistic power.
In an informal exchange a question may be paired with a direct answer, a shrug, a blank stare, the hearer leaving the scene etc. But in what Walker calls ‘legal adversary interviews’ (LAIs) such responses would not be valid as the second-pair part of an adjacency pair (Sacks, Schegloff, and Jefferson 1978), for an answer in such a context must be responsive to the question to such a degree that any lack of Gricean cooperativeness can be punished by law. For Walker such questions have an ‘epistemic command function’, that is, they are orders ‘that the respondent’s knowledge be displayed in appropriate form’ (pp. 59-60). As for the witness’ relation to asking questions, she quotes a publication of the American Bar Association: if asked a question by the witness, ‘The examiner.. .should explain to the witness that it is not appropriate for the examiner to answer questions during the deposition’ (Summit 1978, quoted p.61).
In a trial, where these same power relations are in force, an attorney must ensure that a clear line of discourse is constructed in order to assist the judge’s and jury’s understanding. However, in a deposition this is not so and the examiner is free to jump from topic to topic at will. Indeed, this is even recommended. Summit (1978) again: ‘People will not knowingly and willingly make damaging admissions. The witness must be disorientated, losing all sense of the context of questions’ (quoted Walker p.62). Nor is this the only form of manipulation.
Questions necessarily play a central role in LAIs and examiners and attorneys have had plenty of experience in manipulating question forms. Imwinkelreid (1980) notes that wh- questions are non-leading whereas yes/no questions afford the examiner more control of the witness. He recommends the following as a form of tight control: ‘You can make a declarative statement and add a very short sentence such as “Isn’t that true?” at the very end’ (quoted Walker p.68). Morill (1976) further suggests that a ‘cross-examiner should never give a witness the chance to explain his answer by asking the question, “Why?”’(quoted Walker p. 68).
All these linguistic devices, then, ensure that in legal settings the power in the subject positions, relations and contents of the discourse lies predominantly in the hands of the ‘authorised participants’ rather than in the hands of the lay participants.
While Walker touched on the social and legal sources of power in passing, Goodrich (1987) in his extensive study of legal discourse, sees them as central to the understanding of law and language usage. For him, ‘legal language, like any other language usage, is a social practice and…its texts will bear the imprint of such practice or organisational background’ (p.2). These social conditions have fed through to (and are themselves determined by) the legal setting and have helped shape the dominant discourse in that particular social order which can be described ‘in terms of its systematic appropriation and privileging of legally recognised meanings, accents and connotations (modes of inclusion), and its simultaneous rejection of alternative and competing meanings and accents, forms of utterance and discourse generally, as extrinsic. unauthorised and threatening (modes of exclusion)’ (p.3). This provides the context for ‘a hierarchical (stratified), authoritarian (distanced), monologic (uniaccentual)) and alien (reified) use of language’ (p.3).
Carlen (1976) in her study of the London Magistrates Courts also saw the same process of domination and exclusion. While “...the alternative performances evocative of unpermitted social worlds...” are suppressed
Formal delineations of behavioural, motivational and justificatory meanings are translated into a judicial language and logic which assigns legitimacy to one set of social relations, to those social relations which emanate from and protect the institution of private property and the prevailing modes of capitalist production... (p.12)
In this setting ‘[e]veryone acts their certain roles…You’ve got your clerk, your magistrate, your usher. Everybody performs at the right time, on cue, and I think at times perhaps the tendency is to forget that the other actor in the play hasn’t had so many rehearsals’ (probation officer quoted p.24.) A forceful example from Carlen which illustrates many of the points made in this discussion is the following. An employee of a department store is accused of stealing one pound from her employers. When asked to plead she repeatedly admits that she did it.
(1) Magistrate: Do you plead guilty or not guilty?
(2) Defendant: Yes, I did it.
(3) Magistrate: No, I’m asking you whether you plead guilty or not guilty. You must either use the words ‘guilty’ or ‘not guilty’.
(4) Defendant: [Looking towards probation officer] She said, ‘Say guilty.’
(5) Magistrate: No. You must say what you want to say.
(6) Defendant: Yes, I’ll say what you like. I did it.
(7) Magistrate: No. You must use the language of the court.
(8) [To probation officer] Did she understand?
(9) Probation Officer: Yes, she understood.
A detailed analysis of this is not necessary. It suffices to note that every turn of the defendant (2, 4, 6) is invalidated with a “No” from the magistrate (3, 5, 7), who in each of these turns offers contradictory advice. Further, the authorised participants – the magistrate and the probation officer – refer to the defendant in the third person as if she were not present (8 and 9). The defendant for her part complies completely with her subordinate subject position and twice explicitly refers to her willingness to forfeit her right of making her plea in her own way (4 and 6) to the authorised participants. Carlen comments, ‘To deprive the defendants of their usual mode of communicating is a technique which weakens their ability to define the situation in their own terms at the beginning of the trial’ (p.112). Walker also notes that in depositions witnesses, ‘report a feeling of frustration at being denied the right to tell their stories in their own way’ (p. 79).
In the section on Power it was noted that one of the weapons in the armoury of professionals is their ‘jargon’ (Fairclough p. 64). The discussion here on Law has now reached the point where a more detailed look at the language of law itself, the ‘jargon’, is appropriate.
Leith (1983) noted that as a standard form of English came to dominate other forms and other languages used in England some traces of the latter e.g. French and Latin, remained in legal discourse (habeas corpus etc.) But it is not simply a matter of vocabulary. The discourse of law is notoriously opaque and has frequently led to campaigns for plain English, some of which have had partial success. Some of these campaigns have been championed by legal personnel and it is worth quoting in full the opening sentence of an article from one such campaigner.
We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to become cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that has, according to one critic, four outstanding characteristics. It is : (1) wordy, (2) unclear, (3) pompous, and (4) dull. (Wydick 1978:727)
Wydick goes on to provide forty pages of damning evidence against such language usage but a single example suffices here. It comes from the California Penal Code.
Any person who, by means of any machine, instrument or contrivance or in any manner, intentionally taps, or makes any unauthorised connection, whether physically, electrically, acoustically, inductively or otherwise, with any telegraph or telephone wire, line, cable, or instrument of any internal telephonic communications system, or who wil fully and without consent of all parties to the communication, or in any unauthorised manner , reads, or attempts to read, or learn the contents or meaning of any message, report, or communication while the same is in transit or passing over such wire, line or cable, or...(p. 741)
This sentence, of which only half is reproduced here, contains 242 words and eighteen separate thoughts. ‘No wonder,’ comments Wydick, ‘it is hard to swallow’ (p. 741). White it is an example of the written code it is difficult to imagine that such a discourse does not inform lawyers’ spoken discourse in the courtroom also, though, clearly, not to such a contorted degree. This jargon, in combination with the control and manipulation documented above, as well as social and legal status, clearly creates asymmetrical power relations between authorised and lay participants in legal interactions strongly in favour of the former.