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Law as Language

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Abby Shepard

on 8 November 2014

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Transcript of Law as Language

Two traditions that do not see law as rhetoric:
1) law as “
authoritative command
" (685)
2) law as “
institutional sociology
” (685)
Law is “a system of institutionally established and managed rules” (685)
Law is defined “by defining what rules are, or by analyzing the kinds of rules that characterize it.” (685)
Merges with Positivism
Our world is a set of bureaucratic entities manipulated by rules of law.
Law is a machine used to attain certain ends with the smallest possible costs. (686)
Marie-Claire Belleau
and Rebecca Johnson
Peter Goodrich
Sanford Schane
Contract Formation as a Speech Act
7.2 Speech Act Theory
James Boyd White
Two Traditional Ways of Seeing Law
Goodrich's Thesis

Law and Language: An Historical and Critical Introduction
Goodrich's Text
Critique & Discussion
Law as Language
Tania Clercq
Abby Shepard
Shilin (Victoria) Zhou
Theoretical Approaches to Law
Professor Kirsten Anker
November 4, 2014
What does it mean to say that "law is language"and "language is law"?
John Austin: Performative Acts
John Searle: Speech Acts
"Speech Acts" in Shakespeare
The Merchant of Venice
Act IV, Scene I. Venice. A court of justice.

In groups, analyze the text of the play to find "speech acts"
History of Theory on Law and Language
Law as an assemblage of signs
Language as empirical, observable phenomena
pulling back the "veil of mystery" of ordinary language, so as to understand the nature of law
Command Theory
: top-down laws as commands of the sovereign
Positivist approach: claim to neutrality
: analytical jurisprudence
analyzing key concepts so as to understand the nature of law
: language is a neutral instrument, a tool
Meaning comes from an external source
Positivist approach: textual interpretation, focus on
, claim to neutrality and universality
: defining law, clarifying the nature of law
View law from a linguistic standpoint to better understand its socio-historical, political and ideological origins, influences and effects.

Note the legal profession and (positivist) theory's "superb oblivion" to these influences and to its own hidden ideology.

Put law in context by analyzing the way legal language/discourse shapes society and individuals.
Sociolinguistic and rhetorical analysis of legal language at four levels:
i. Institutionalisation
ii. Lexicon and Syntax
iii. Semantic appropriation
iv. Ideology

i. Institutionalisation
legal discourse is produced within "specific, highly restricted, institutional settings" (187)

ii. Lexicon and Syntax
legal institutions are unique because of their language, their "archaic and specialized vocabulary", elaborate code (188)
impersonal, self-contained, obscure, inert
The Merchant of Venice
Identifying Rhetoric in the
Multani v. Commission scolaire Marguerite Bourgeoys
, [2006] 1 SCR 256, 2006 SCC 6
Text of
The Merchant of Venice
: http://shakespeare.mit.edu/merchant/index.html
Goodrich himself uses the obscure, impenetrable language which he criticizes lawyers and legal theorists of using.
Do you think his use of obscure and difficult language is intentional? Is it meant to poke fun or to provoke?

It seems like Goodrich uses many words, concepts and expressions from the field of linguistics – yet he himself is not a linguist.
Isn’t it questionable with regard to his expertise/competence, and thus his legitimacy?
Law as a Rhetorical Activity

Further reading
Paul M. Perell. “
Deceived with Ornament: Law, Lawyers and Shakespeare’s The Merchant of Venice
” at 3rd Colloquium, Law Society of Upper Canada (Toronto: Oct 2004) online: <http://www.lsuc.on.ca/media/third_colloquium_paul_perell.pdf>.
I Beg to Differ: Interdisciplinary Questions about Law, Language and Dissent
Mossop v. Canada
,[1993] 1 SRC 554
comparison (metaphor, simile, analogy)
hyperbole (exaggeration)
euphemism, etc.
Example Rhetorical Devices
In groups, take 10 minutes to:
read the excerpt from the Supreme Court of Canada
decision, and
identify the rhetoric used
but don't worry about labels!
Speech can create acts, thus it

e.g. "I now pronounce you husband and wife."
this creates the marital state

statements that describe events or states
e.g. "It is raining today."

Subject = 1st person (I, we)
Directed to a 2nd person (you)
Tense = present, active
Test =
pronounce you husband and wife.")
Performance of an act can come about through speech. Speech may be just as valid as a physical act.

e.g. "I bet you the Canadiens will beat the Blackhawks tonight."
may be accompanied by a handshake (physical act)

Five types of speech acts or
Dissent opinion (J. L'Heureux-Dubé):

"The complainant Mr. Mossop and his male companion Mr. Popert first met in 1974 and lived together from 1976 on in a jointly owned and maintained home."

Majority opinion (J. Lamer):

"Mossop testified that the two men have known each other since 1974, and have resided together since 1976 in a jointly owned and maintained home."
Noetic space
Imagination, creativity, emotions, passions, beliefs, desires, feelings, etc.
Mossop v. Canada
, [1993] 1 SCR 554
Comparing how majority, concurring and dissent judges use language
Relationship between the two men:
same-sex living arrangement
couple / companions

Jeremy Bentham
John Austin
H.L.A. Hart
Four levels of analysis (cont.)

iii. Semantics
generic legal meaning attributed to disputes, imposed on events
rhetoric of law: sovereignty, power, rights, duties (liberal individualism)
assumed universality, neutrality, political and ethical desirability

iv. Ideology
"the law constitutes a concrete sociolinguistic belief system" (190)
law fixes legal meaning to acts and thus evades questioning its own origins, foundations or effects
"the legal use of language rewrites the individual", thus manipulating and transposing diffuse, complex human beings into static categories (191)
Goodrich's Text (cont.)
Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life
Law as Rhetoric
Law is “a branch of rhetoric.” (684)

Rhetoric is “the central art by which community and culture are established, maintained, and transformed.” (684)

Therefore, “rhetoric is continuous with law, and like it, has justice as its ultimate subject.” (684)

The ancient Greek definition of rhetoric (Plato): “The art of persuading people about matters of justice and injustice.” (684)

Three aspects of a lawyer’s work:

To persuade, you must
speak a language
that your listener regards as valid and intelligible
Culture-specific, context-specific
Law as a set of resources made available by culture for speech and argument

2) Creation
of rule-meaning
making and remaking law through arguments
“... legal rhetoric is always argumentatively constitutive of the language it employs.” (690)

Everytime a lawyer speaks, (s)he establishes a
rhetorical community
of which (s)he is a part
ethical character or socially constitutive nature of legal rhetoric
Law is both a “social activity (a way of acting with others), and a cultural activity (a way of acting with materials found in the culture.)” (691)

"Law is an art of persuasion that creates the object of its persuasion, for it constitutes both the community and the culture it commends” (691).

“Law is not only a bureaucracy or a set of rules, but also a community of speakers, a culture of argument perpetually remade by its participants.” (691)
Is language always rhetorical?

Do you find his "law as rhetoric" argument convincing?

Do you think White's theory could replace Positivism entirely?
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