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Review of Bernard S. Jackson, Making Sense in Law.
Linguistic, Psychological and Semiotic Perspectives (Liverpool: Deborah
Charles Publications, 1995 hbk., 1996 pbk.), pp.xii + 516.
by
Therese Budniakiewicz
(author of Fundamentals of Story Logic,
1992)
(This review appears in The Legal Studies Forum
XX/4 (1996), 465-71, published by the American Legal Studies Association,
and is here reproduced with the kind permission of the journal and its editor,
James R. Elkins.)
Bernard S. Jackson is a major figure in legal semiotics,
having pioneered the application of the Greimassian school of semiotics
to law. He has established the theoretical foundation of this interdisciplinary
field of enquiry through two scholarly books (Jackson 1985 and 1988). His
earlier and long-standing interest in ancient law has also led him towards
cognitive developmental psychology. Making Sense in Law branches
out from his research on "legal theory" and presents his ideas
in a way that makes them readily accessible to the student of law. Making
Sense in Law was initially developed from a course on "Law, Linguistics
and Psychology" in the Faculty of Law at the University of Liverpool
and it retains its pedagogical orientation, aiming to integrate a new form
of interdisciplinary legal studies into the university curriculum. Broad
and evaluative in content, the course encourages students to step outside
the traditional context of legal analysis in order to develop larger perspectives
on law and legal institutions, one of which is the ability to appreciate
law from the layperson's point of view. Making Sense in Law has two
objectives in viewing law from this wider angle: first, to review the contributions
of linguistics and psychology to sense construction, and to suggest that
they benefit from being brought together within the semiotic framework;
secondly, to show law students how all this can be usefully applied to legal
phenomena. The last three chapters, in particular, review empirical work
on witness perception, courtroom interaction, and the communication of deliberations.
The ample references in the footnotes on almost each page and a 32-page
bibliographical index make the work a valuable sourcebook for pursuing these
topics in greater depth.
The book seeks to show that "making sense" in
legal practice depends upon more general processes of sense construction
which are non-legal in origin. Making Sense in Law builds upon the
"common sense" which the juries are often instructed to use and
which lawyers themselves must also inevitably use, where they are the adjudicators
of fact.
Using some extracts from a case heard in the Crown Court
in 1993, the author analyzes at length all the subtleties and difficulties
of a judge's oral communication which, addressed to the jury, is simultaneously
directed to judges who will be called on to review the case at the appellate
level. At one point the judge explains the elements of the crime (here possession
and supply of prohibited drugs) but he does so in legal rather than "narrative
language" (436). Concepts such as "objective standpoint,"
"reasonably and proportionately," "serious harm" may
be clear to lawyers only because of their conventional practice but they
are not to a lay jury. The judge's final instructions to the jury also present
a similar linguistic and technical problem. The author quotes a study which
found only 30% accuracy in comprehension and recall of the trial judge's
instructions (443).
Yet, despite their problematic comprehension of the law
(the negative side of making sense), the jury does make sense of the whole
trial process and of many other judicial phenomena as well. The ways in
which they do so involve areas of sense construction that can profitably
be studied by aspiring and practicing lawyers:
Lawyers think that they are trained in legal language,
and that it is this which distinguishes them from laypersons. In fact,
examples such as these indicate the narrow scope of the specialized linguistic
knowledge they possess. Lawyers are trained in legal concepts, and in the
abstract terms which express those legal concepts. They are not trained
in grammar, stylistics or discourse analysis (let alone, normally, in psychology
or semiotics.) But it is at these latter levels, very frequently, that
vital components of sense construction are located (439).
In other words, legal knowledge--what Judge Posner called
"the nuts and bolts of legal reasoning, doctrine, and practice"--is
never sufficient to account for what is happening in the courtroom. Connecting
law to other disciplines which study meaning and the "vital components
of sense construction" makes explicit all those levels of sense--innate,
social, professional--which subtend concrete discourses and texts of all
kinds and allow behavior to be understood. It can stimulate the lawyer to
fruitful reflections on the "fundamental cognitive structures which
make data intelligible to us" (all of us, including lawyers) and on
"the narrative stereotypes of behavior which inform the particular
sense we make" (12).
The first four chapters out of the twelve which make up
the book deal with linguistics, philosophy of language, and processes of
sense construction through language. First, language is considered as an
abstract system (Saussure's langue), from the dimensions of sound,
meaning, the set of relations which make sentences cohere into a text, and
the reference it makes to an outside or extra-linguistic world. Next, language
is considered in use (Saussure's parole), in speech and writing.
Language-use takes into account the behavior and objectives of the users
of the language, and is often termed "pragmatics," because of
its emphasis on what the speaker is doing, not merely what he or she is
saying: asserting, promising, naming, pointing, persuading, conversing.
J. L. Austin's "speech acts" are reviewed here together with an
interesting alternative model by Sbisà and Fabbri, "negotiable
speech acts"; rhetoric; and Grice's maxims for what constitutes a conversation.
Jackson tells us that it is in the aspects of language-use that "legal
languages display some of their most characteristic peculiarities"
(46). Speech act theory is a useful contribution to our understanding of
the types of sense which are created by legal declarations, questions, warnings,
and commands. For example, the counsel's question to a witness in court
does not perform the speech act of questioning (requesting information)
as much as a host of other speech acts, depending on the purpose of the
speaker in raising the question, such as inviting friendly witnesses to
tell their story, challenging hostile witnesses, asserting facts, and so
on.
Within any community which speaks a particular language,
there are smaller groups which differ from each other in the particular
ways in which they use language. Jackson uses the term "semiotic groups"
to refer to these groups which have their own conventions of language or
their own "jargon." Professional languages are one example. Two
concepts, those of register and genre, are used in discussing these issues.
The display of power in language is also considered and its correlation
to gender.
Although the entire book focuses on how legal phenomena
do make sense, the chapter on legal language concentrates instead
on the difficulties and the problems encountered by the general public when
reading what they perceive as "legalese." By quoting a striking
remark of two linguists, Crystal and Davy, Jackson seems to support their
view as well as the concerns of the consumer movement for a "Plain
English" version of legal texts: "Of all the uses of language
it [the legal language] is perhaps the least communicative, in that it is
designed not so much to enlighten language-users at large as to allow one
expert to register information for scrutiny by another" (112). Both
the positive and negative reasons for maintaining a legal style are presented
and are, in fact, equally persuasive with the exception of the "small
print." When analyzing the problematic features of legal writing, the
layperson's perspective is implicitly adopted and promoted. One interesting
example of the twisted legal style which makes even a short sentence difficult
to understand is the following one: "innocent misrecollection is not
uncommon" (119). In one experiment only 26% of subjects correctly paraphrased
it. The proposal of a "two-document solution," one for the citizen
and the other for the lawyer, seems like a reasonable compromise, even though
the legal profession is likely to oppose it. But with the advent of the
Internet, Jackson sees the day when the citizen may obtain comprehensible
legal information at little or no cost with just a click on the mouse.
continued: click here
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