Abstract
My concern in what follows is to frame, to outline and to exemplify, the general characteristics of a concept of legal discourse or, in the terms of the preceding chapter, a materialist rhetoric of law. Substantively my procedure, one which I will by and large assume to be self-explanatory, will be that of translating the topology of discourse already proposed, into a schematic account of legal discourse. There are, however, two preliminary points to be made, both of which may broadly be said to concern the scope and potential development of what is admittedly a nascent discipline.
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Notes and References
The terminology is that of P. Q. Hirst, On Law and Ideology (London: Macmillan, 1979) pp. 106–22 and appendix 1.
Most notably, in the present context, F. Burton and P. Carlen, Official Discourse (London: Routledge & Kegan Paul, 1979) chapters 4 and 5 and passim
B. Edelman, Ownership of the Image (London: Routledge & Kegan Paul, 1979) pp. 19–35, 109–13
A. J. Greimas, Sémiotique et Sciences Sociales (Paris: Editions Seuil;, 1976) pp. 79–128
J. Lenoble et F. Ost, Droit, Mythe et Raison (Bruxelles: Facultes Universitaires Saint Louis, 1980) pp. 81–120
Other studies of specific aspects of legal language, analysed from a socio-linguistic or loosely discursive perspective, include J. M. Atkinson and P. Drew, Order in Court (London: Macmillan/Social Science Research Council
P. Carlen, Magistrates’ Justice (London: Martin Robertson, 1976)
W. O’Barr, Linguistic Evidence (London: Academic Press, 1982)
W. L. Bennett and M. S. Feldman, Reconstructing Reality in the Courtroom (London: Tavistock, 1981)
Edelman, Ownership of the Image, p. 26.
Lenoble et Ost, Droit, Mythe et Raison, pp. 8–9.
Ph. Gerard, ‘Compte Rendu’ (1982) Revue Interdisciplinaire D’Etudes Juridique, 181–92.
The psychoanalytic model used is that of G. Deleuze and F. Guattari, Anti-Oedipus (New York: Viking Press, 1977).
A.J. Greimas, Semiotique et Sciences Sociales, p. 79: ‘Our pursuit, over a number of years, of a method (semiotic) of semantic analysis would have failed if its procedures were not applicable to the elucidation of any discourse; if the models proposed were not capable of providing an account of the modes of production, of existence and of functioning of any text whatsoever.’
See F. Jameson, The Political Unconscious (London: Methuen, 1981) pp. 46–9, 121–27, for a particularly acute account of the inadequacies of such a methodology.
For a briefer and less effective treatment, cf. J. Larrain, The Concept of Ideology (London: Hutchinson, 1979) pp. 132–40.
J. Culler, Structuralist Poetics (London: Routledge & Kegan Paul, 1975) provides an account of Greimas’ earlier work.
Cf. Greimas, Semiotique et Sciences Sociales, pp. 88–90.
see P. Goodrich ‘Review’ (1982) 10, International Journal of the Sociology of Law, 448
P. Goodrich, ‘Antinomies of Legal Theory’ (1983) 3, Legal Studies, 1
F. Burton and P. Carlen, Official Discourse, p. 27.
C. Metz, Psychoanalysis and Cinema (London: Macmillan, 1982) pp. 152–3, comments most appositely with respect to current usages of those terminologies (metonymy, syntagm and so on): ‘But as soon as you try to take it a bit further, you come up against the fact that in their respective areas of origin each of these notions has a fairly complex past of its own; and so, getting to grips with anything more than insubstantial cliches or fashionable catchphrases — since a concept always goes back to the place of its elaboration in the history of knowledge even, and especially, if it is to be carried over to another field — requires some degree of willingness to work back through the problems, not to remain trapped in a position which knows nothing of its antecedents.’
With the exception of a brief discussion of Saussure, A Course in General Linguistics (London: Peter Owen, 1966).
F. Burton and P. Carlen, Official Discourse, p. 28.
Burton and Carlen, Official Discourse, pp. 31, 95–6,103–4.
F. de Saussure, Course in General Linguistics, pp. 123ff.
L. Hjemslev, Prolegomena to a Theory of Language (Wisconsin: Wisconsin University Press, 1961) distinguishes between relations in absentia and relations in praesentia
A. Martinet, Elements of General Linguistics (London: Faber & Faber, 1964) between the now standard terms of paradigm and syntagm.
R. Jakobson, Selected Writings, II (The Hague: Mouton, 1971) 567, 565 (my italics).
R. Jakobson and M. Halle, The Fundamentals of Language (The Hague: Mouton, 1956) pp. 90–6; R. Jakobson, ‘Linguistics and Poetics’ and R. Jakobson and C. Levi-Strauss, ‘Charles Baudelaire’s “Les Chats’”, both in R. and F. de George (eds), The Structuralists (New York: Anchor, 1972) pp. 95–120,124–46. For an extensive treatment of the problems of treating cinema technique as a language, cf. C. Metz, Film Language (Oxford: Oxford University Press, 1974).
For a convincing rejection of such a hypothetical defence, cf. R. Fowler, Literature as Social Discourse (London: Batsford, 1981) pp. 129–41.
F. Burton and P. Carlen, Official Discourse, pp. 31, 51–2, 89.
Cf. W. T. Murphy and R. W. Rawlings, ‘After the Ancien Regime’ (1981) 44, Modern Law Review, 617
(1982) 45, Modern Law Review, 57, pp. 618–23.
For example, Z. K. Bankowski and G. Mungham, Images of Law (London: Routledge & Kegan Paul, 1976)
T. Mathieson, Law, Society and Political Action (London: Academic Press, 1980)
R. M. Unger, Law in Modern Society (New York: Free Press, 1976)
F. Burton and P. Carlen, Official Discourse, pp. 95–103.
Cf. in a slightly narrower context, H. Collins, Marxism and Law (Oxford: Oxford University Press, 1983) pp. 34–45, 52–74.
H. Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard University Press, 1945) pp. 216ff.
K. Burke, A Rhetoric of Motives (Berkeley: University of California Press, 1969) pp. 27–8
cf. also J. Lenoble et F. Ost, Droit, Mythe et Raison, p. 83, where they comment that ‘Legality would be nothing if it were not supported by a network of institutions, a tradition of ideas which always encloses and delineates the domain within which legal discourse can exercise its textual practice.’
See for example, P. Carlen, Magistrates’ Justice, pp. 18–38
T. Mathieson, Law, Society and Political Action, pp. 77–111
See for example, J. A. G. Griffith, The Politics of the Judiciary (London: Fontana, 1985) pp. 17–39
A. Paterson, ‘Judges, A Political Elite?’ (1974) British Journal of Law and Society, 118
D. Garland and P. Young, The Power to Punish (London: Heinemann, 1983) especially chapters 1 and 9.
P. Carlen, ‘On Rights and Powers’ in D. Garland and P. Young (eds), The Power to Punish.
For critical evaluation of the socio-linguistic and broad class contours of educational success and failure, viewed in the overall terms of socialisation, cf. M. A. K. Halliday, Language as Social Semiotic (London: Arnold, 1978) chapters 3 and 5.
Also B. Bernstein (ed.), Class, Codes and Control, vol. 2 (London: Routledge & Kegan Paul, 1974)
M. D. F. Young (ed.), Knowledge and Control (West Drayton: Collier Macmillan, 1971) part I
D. Kairys (ed.), The Politics of Law (New York: Pantheon, 1982) p. 53.
Cf. also, R. M. Unger, ‘The Critical Legal Studies Movement’ (1983) 96, Harvard Law Review, 561, pp. 666–70: ‘the real message of the [legal] curriculum is the [teaching] that a mixture of low-level skills and high-grade sophistic techniques of argumentative manipulation is all there is — all there is and can be — to legal analysis and, by implication, to the many methods by which professional expertise influences the exercise of state power…. The shared lesson [of legal teaching] is that the order of thought and society is contingent and yet for all practical purposes untransformable. They preach an inward distance from a reality whose yoke, according to them, cannot be broken. They distract people by enticing them into a hierarchy of smart alecks.’ (p. 669).
T. Mathieson, Law, Society and Political Action, pp. 89–111.
N. Poulantzas, State, Power and Socialism (London: Verso, 1978) p. 81.
The point is also made less directly in F. Burton and P. Carlen, Official Discourse, chapter 4 and pp. 78–85.
Cf. U. Eco, A Theory of Semiotics (Bloomington: Indiana University Press, 1976) chapter 2 especially pp. 139–51, and pp. 276–314
R. Barthes, S/Z (London: Jonathan Cape, 1975).
For a general characterisation, see N. Poulantzas, State, Power and Socialism, pp. 89–90: ‘No-one should be ignorant of the law — that is the fundamental maxim of the modern juridical system, in which no-one but State representatives are able to know the law. This knowledge required of every citizen is not even a special subject of study at school, as if everything were done to keep him in ignorance of what he is supposedly obliged to know.’
R. Fowler, Literature as Social Discourse, pp. 28ff.
Cf. also M. Bakhtin, The Dialogic Imagination (Austin: Texas University Press, 1981) p. 284, ‘Style organically contains within itself indices that reach outside itself, a correspondence of its own elements and the elements of an alien context. The internal politics of style (how the elements are put together) is determined by its external politics (its relationship to alien discourse). Discourse lives, as it were, on the boundary between its own context and another, alien, context.’
Cf. H. Davis and P. Walton (eds), Language, Image, Media (Oxford: Basil Blackwell, 1983), especially chapters 3,5, and 14.
Cf. for example, H. Garfinkel, Studies in Ethnomethodology (New Jersey: Prentice Hall, 1967)
H. Sachs, ‘An initial investigation of the useability of conversational data for doing sociology’, in D. Sudnow (ed.), Studies in Social Interaction (New York: Free Press, 1972) pp. 31–74
R. Barthes, Elements of Semiology (London: Cape, 1967) pp. 89–95.
O. Ducrot and T. Todorov, Encyclopedic Dictionary of the Sciences of Language (Oxford: Basil Blackwell, 1981) p. 21.
M. Bakhtin, The Dialogic Imagination, p. 342.
I am here making use of a much more general set of linguistic categories elaborated in R. Fowler, Literature as Social Discourse, pp. 24–46
R. Fowler et al. (eds), Language and Control (London: Routledge & Kegan Paul, 1979) chapters 2,6 and 7 and 10
G. Kress and B. Hodge, Language as Ideology (London: Routledge & Kegan Paul, 1979) chapters 4, 6 and 7
See also D. Crystal and D. Davey, Investigations of English Style (Bloomington: Indiana University Press, 1969) chapter 2.
cf. P. J. Jalbert, ‘Some constructs for analysing news’, in H. Davis and P. Walton (eds), Language, Image, Media, pp. 288–90
Photo Productions Ltd v. Securicor Transport Ltd. [1980] 1 AER 556, pp. 556–7.
R. Fowler et al. (eds), Language and Control, p. 41, remarks upon the formality, ritual and impenetrability which is frequently associated with a heavily nominalised style.
M. Bakhtin, The Dialogic Imagination, pp. 305–8.
Cf. particularly, W. T. Murphy and R. W. Rawlings, ‘After the Ancien Regime’, pp. 634–51 — their examples being assertion, repetition and inadequate motivation generally.
See also R. B. Ferguson, ‘The Horowitz Thesis and Common Law Discourse’ (1982) 2, Oxford Journal of Legal Studies, 42–6; and
F. Burton and P. Carlen, Official Discourse, pp. 104–7
R. Fowler et al. (eds), Language and Control, pp. 120–31
H. Davis and P. Walton (eds), Language, Image, Media, pp. 40–3.
See also A. Norrie, ‘Freewill, Determinism and Criminal Justice’ (1983) 3, Legal Studies, 60
M. Barker and A. Beezer, ‘The Language of Racism’ (1983) International Socialism, 108
J. Wren-Lewis, ‘The Story of a Riot’ (1982) Screen Education, 15
Cf. H. Davis and P. Walton (eds), Language, Image, Media, pp. 95–9 where C. L. Lerman usefully analyses ‘dominant discourses’ into four thematic processes of topic transformation.
See R. Fowler et al. (eds), Language and Control, for a similar, though broader, analysis, pp. 198–213.
I am here somewhat misusing a distinction made by G. Therborn, The Ideology of Power and the Power of Ideology (London: Verso, 1980) pp. 27–9, between ego-ideologies and alter-ideologies.
M. Bakhtin, The Dialogic Imagination, pp. 289–90.
For a recent analysis, see D. N. MacCormick, Legal Right and Social Democracy (Oxford: Oxford University Press, 1982) chapter 1, or, for a more critical account
R. M. Unger, Law in Modern Society, pp. 106–81
Cf. T. Mathieson, Law, Society and Political Action, pp. 140–5
N. Poulantzas, State, Power and Socialism, pp. 86–92
E. B. Pashukanis, Law and Marxism, (London: 1978) pp. 109–34
A useful analysis of this debate is found in M. Foucault, Power/Knowledge (Brighton: Harvester Press, 1980) pp. 78–133.
M. Foucault, The History of Sexuality (London: Allen Lane, 1979) p. 92.
Ibid., pp. 93ff. For a useful summary, cf. H. Dreyfus and P. Rabinow, M. Foucault: Beyond Structuralism and Hermeneutics (Brighton: Harvester Press, 1982) pp. 71–8, 184–204
also C. Gordon, ‘Other Inquisitions’ (1979) 6, Ideology and Consciousness, pp. 23–44
Cf. P. Q. Hirst, ‘Law, Socialism and Rights’, in P. Carlen and M. Collison (eds), Radical Issues in Criminology (London: Martin Robertson, 1981) pp. 58–105.
On informal justice, see, for example, S. Henry, Private Justice (London: Routledge & Kegan Paul, 1984).
M. Foucault, The History of Sexuality, pp. 100ff.
See particularly Guardian Newspapers Ltd. v. Secretary of State for Defence [1984] 3 AER 601, 603, 621, where the House of Lords repudiates the ‘evocative’ language of ‘constitutional rights’ and ‘entrenched provisions’ as irrelevant to the determination of the scope of s. 10 of the 1981 Contempt of Court Act.
M. Bakhtin, The Dialogic Imagination, pp. 336–42.
For a useful analysis of related points in the context of courtroom language, cf. W. O’Barr, Linguistic Evidence, pp. 61–93, where he broadly elaborates a model of linguistic strategies and inequalities of power between speakers in terms of socially significant and legally significant styles of oral presentation.
See J. Lenoble et F. Ost, Droit, Mythe et Raison, pp. 115–20, for an incisive analysis of the inherent contradiction between the Kantian methodology implicit in the systemic, deductive conception of legal reason and the principles of Equity conceived as the individualised treatment of particular cases.
Cf. also D. N. MacCormick, ‘Formal Justice and the form of legal argument’ in Etudes de Logique Juridique (Bruxelles: Edition Juridique, 1976) pp. 110 et seq.
M. Pecheux, Language, Semantics and Ideology (London: Macmillan, 1982) pp. 123–6, 216–18
J. Lacan, Ecrits (London: Tavistock, 1977) chapters 3 and 9
R. Jacoby, Social Amnesia (Brighton: Harvester Press, 1975) pp. 119–51
Bromley London Borough Council v. Greater London Council [1982] 1 AER 135. Italics throughout this section are mine.
The rule against explicit reference to Hansard is found in Davis v. Johnson [1979] AC 264.
Respectively, Roberts v. Hopwood [1925] AC 578, Lord Sumner pp. 605–6
Secretary of State for Education and Science v. Metropolitan Borough of Tameside [1976] 3 AER 665, p. 681ff.
P. Morriss, ‘Should we subsidise Public Transport?’ (1983) 54, Political Quarterly, 392, p. 398.
See also A. C. Hutchinson, ‘The Rise and Ruse of Administrative Law and Scholarship’ (1985) 48, Modern Law Review, 292.
Cf. S. Glaister, Fundamentals of Transport Economics (Oxford: Basil Blackwell, 1981) pp. 86–91
A. Grey, Urban Fares Policy (Saxon House, 1975) chapter 6
C. A. Nash, Economics of Public Transport (London: Longman, 1982) chapter 2
P. Morriss, ‘Should we subsidise Public Transport?’ p. 394.
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© 1987 Peter Goodrich
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Goodrich, P. (1987). Law as Social Discourse II. In: Legal Discourse. Language, Discourse, Society. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-11283-8_7
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