Language and Law

by

Justin B. Richland, Anna Weichselbraun

• LAST REVIEWED: 27 March 2014
• LAST MODIFIED: 27 March 2014
• DOI: 10.1093/obo/9780199766567-0022

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 of Shuy 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.17.100188.001253

  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.

• Brooks, Peter, and Paul Gewirtz. 1996. Law’s stories: Narrative and rhetoric in the law. New Haven, CT: Yale Law Review.

  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.

• Conley, John M., and William M. O’Barr. 1998. Just words: Law, language, power. Chicago: Univ. of Chicago Press.

  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.

• Danet, Brenda. 1980. Language in the legal process. Law and Society Review 14.3: 445–564.

  DOI: 10.2307/3053192

  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.

• Levi, Judith N., and Anne Graffam Walker, eds. 1990. Language in the judicial process. New York: Springer.

  DOI: 10.1007/978-1-4899-3719-3

  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.

• Mertz, Elizabeth. 1994. Legal language: Pragmatics, poetics, and social power. Annual Review of Anthropology 23:435–455.

  DOI: 10.1146/annurev.an.23.100194.002251

  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.

• Richland, Justin B. 2013. Jurisdiction: Grounding law in language. Annual Review of Anthropology 42:209–226.

  DOI: 10.1146/annurev-anthro-092412-155526

  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.

• Shuy, Roger W. 1993. Language crimes: The use and abuse of language evidence in the courtroom. Oxford: Blackwell.

  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.