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Legal Lexicon and Narrative
Friday 10:45-12:15
Towards a forensic lexicography: "Situation altering" utterances and the linguistic structure of perlocutions
As noted by legal scholar Franklyn S. Haiman, theories of linguisticpragmatics have come to play a prominent role in evaluating
arguments relating to the issue of protected speech (Haiman 1993). However, in
spite of the popularity of introducing pragmatic-linguistic theories, and
in particular, that branch of ordinary language philosophy known as
"speech act theory" into debates on the scope of the First Amendment, legal scholars still remain divided according to their interpretation of how speech act theory should be invoked as an evaluation metric in cases whichallege, for example, the use of "hate speech" or some other form of linguistic behavior which is considered to have functions and effects other than the conveyance of propositional content. It is these forms
of linguistic behavior which Kent Greenawalt, in his (1989) book *Speech,Crime, and the Uses of Language* terms "situation-altering utterances," which he defines as utterances which function as "a means for changing the social context in which we live" (57). While both scholars invoke speech act theory in their discussions of these "situation-altering utterances," Haiman and Greenawalt nevertheless fundamentally differ according to the extent they believe such utterances should come under the purview of
the First Amendment.
I argue that the source of the dispute might lie in the focus of currentlinguistic-pragmatic theory on the structure of the "locutionary" and"illocutionary," as opposed to "perlocutionary" aspects of
linguistic behavior (viz., those aspects of linguistic behavior which
generate certain effects in the recipient). This is not to say that
traditional linguistic theory has ignored the topic of perlocution; on the contrary,the celebrated Oxford philosopher John Austin, in his seminal *How to dothings with words* (1962), devoted much energy to elaborating
upon possible ways that the integrity of the distinction might be maintained.Nevertheless, Austin himself admits to the difficulty of
intuitively isolating perlocutionary force insofar as "it is difficult to say
where conventions begin and end" (1962: 119), and that, for example, "A
judge should be able to decide, by hearing what was said, what locutionary
and illocutionary acts were performed, but not what perlocutionary acts
were achieved" (p.122)
In this paper, I argue that while it may be true that, as Austin suggested, a judge may not be able to tell what perlocutionary acts
have been achieved in a particular case on the basis of hearing what was
said, given new theoretical advances in the field of professional lexicography,it is possible for a linguistic specialist in lexicography, acting in
the capacity as an expert witness, to empirically justify the points in
which speech becomes something more than a vehicle for the communication
of propositional knowledge which is protected by the First Amendment. As
a theoretical basis for the forensic identification of "damaging speech"
as opposed to "communicative speech," I explain new lexicographic
procedures that the linguist can employ in expanding the microsociological content
of a particular utterance, content traditionally lumped together under therubric of perlocution. In previous articles, I have suggested
that traditional approaches to the lexicography of speech act words have
been inadequate insofar as they have failed to include a principled account ofthe microsociological reflexes of the words used to conventionally
execute a given speech act, and I have suggested formal tools to remedy
this inadequacy. In this article I review these tools available to the
linguist in the capacity of expert witness, and demonstrate their
particular efficacy in resolving certain issues in First Amendment
theory using data from actual cases in which the scope of First
Amendment protection is at issue.
Bibliography:
Austin, J. L.(1962). How to do things with words. Cambridge, MA, Harvard
University Press.
Greenawalt, K. (1989). Speech, crime, and the uses of language. New York,
Oxford University Press.
Haiman, F. S. (1993). "Speech acts" and the First Amendment. Carbondale,
Illinois, Southern Illinois University Press.
Colonel Mustard in the dining room with the candlestick: Sending the reader structural clues regarding who's doing what to whom in legal narratives
Contrary to prevalent belief, the greatest percentage of interpretive clues in prose are sent to the reader not by word choice but by structure.Readers derive more information from where information is located
than from its definable meaning in isolation. We should be attempting to
help writers come to understand consciously the structural signals that they have long known and used intuitively in their role as readers.
To investigate this, I will deconstruct and reconstruct the following three examples, based on principles that presume what most readers
expect to find in certain structural locations. The three examples may look harmless enough at first glance; but I shall try to demonstrate
the following surprising interpretive outcomes:
#1 succeeds in misleading a large percentage of its readers;
#2 sends exactly the opposite decision that the writer intended concerning
a multi-million dollar business decision;
#3, the opening paragraph of a statement of facts in a legal brief, may
lose the case for the lawyer who wrote it -- without lawyer or judge ever
being totally conscious of how that happened.
1. Andrus also concedes that surface coal mining operations will destroy
wildlife. He contends that "while reduced populations will result from
increased human activity in the areas and from the loss of habitat, no
adverse long-term impact is anticipated."
2. The utilization of dextropropoxyphene products has been increasing
gradually since 1981. Sales of these products have risen significantly in1983 as a result of several factors, including the withdrawal of Zomaxfrom the market in March 1983 and the Tylenol scare in 1982. Totalprescriptions for dextropropoxyphene products continue to show strong
and consistent growth since the removal of Zomax.
3. J sold all its assets and liabilities in 1956 to BCC. As part of this
transaction a single share of J common stock was retained by BCC tocontinue the J trade name and corporate form, although J no longer conducted business as an independent manufacturing entity. Thereafter
BCC manufactured the J power press line until the defendant, A,
purchased BCC's entire manufacturing operation in 1962.
The social indexicality of a legal argument
We rent words, Bakhtin wrote. When these words are invoked as a vehicle
for persuasion, and overlaid with gesture, the speaker adopts a dialogic
stance which is recipient designed to project and adopt all the social
and cultural voices the rented words speak. An analysis of the tropes,
the choice of syntactic structure, the word selection, and the gestures
used in the argument of an attorney underscores the transformative power
of language. Such an examination of courtroom language helps define just
how the complex semiotic event of an oral argument indexes the interplay ofthe institutional strictures of the courtroom with the social values
in which language is contextualized.
This paper will examine an offer of proof given by defense attorney F. LeeBailey in the trial of The People of the State of California vs. OrenthalJames Simpson. Bailey was endeavoring to convince the Court that he shouldbe permitted to cross-examine L.A. Police Detective Mark Fuhrman about hisuse of the "n" word. Bailey initially was successful in securing a favorable ruling, but the ruling was subsequently reversed. In hisexplanation of the reasons for reversal, the judge specifically pointed toBailey's artful use of language which precipitated his initial decision.He only reversed his decision when the prosecution had sufficient time tomount a defense to Bailey's argument which had initially compelled afavorable ruling due to Bailey's linguistic acumen.
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