Language and Power in the Legal System - Coursework Example

Name: Tutor: Title: An exploration of how the power of language is used in courtrooms Course: Date: Introduction The study explores how the power of language is used in courtrooms. This will involve a critical analysis of the issues of power and language in the legal system. Basically, the study will examine how lawyers, judges as well as other legal participants construct significant concepts of consent and provocation. Therefore, a critical analysis of how language affects the different issues fairness and equality or justice, how the law is figuratively structured by race as well as how lack of proficient English language skills may cause disadvantaged judgment in the legal system. Language is of central significance within the legal system because there would be no laws without language. It is important to note that court judgments, legal proceedings and legislations use specific linguistic forms. Generally, legal cases concern issues of interpretation and ambiguity relating to the words used in a conversation, a legal provision or terms used in contracts. Therefore, the legal profession values the significant role played by language in particular, the oratory skills, how plain language is used as well as the legal argument and reasoning. The use language is considered crucial to legal systems particularly in special respect that lawmakers purposely use language to formulate laws. Similarly, courts use language to explain their grounds of legal judgments or decisions taken against individuals who commit crimes. Therefore, it is worth mentioning that philosophers of law must clearly comprehend the meaning and uses of language. This understanding creates two major philosophical interests within the area of law and language; the interest in using of language in law and the interest in applying the philosophy of language so as to address problems associated with the nature of law (Endicott 2010, pp.2-3). Lexical struggle in courts: a case for Aboriginal Australians and the State Eades, Diana (2006, p. 153) examines that lawyers understand the power of words such as the commonly-used law textbook as cited in Mauet (2000, p.25) titled ‘Trial Times’ informs lawyers that themes and labels are the key trial vocabulary that used as psychological anchors expected of the jurors to either accept or adopt during the trial process. It can be noted that after developing the case theory, it is important to condense it in terms of themes and labels which linguistics refer to them as ‘lexical items’. Mauet (2000) terms such labels as the ways to refer to other people and events at the trial and these labels convey meanings and values particularly to the jury. This is because how people characterize issues determines how others perceive them (p.510). The struggle over understanding labels, descriptions or lexical items is entirely what Eades (2006, p.154) refers to as ‘lexical struggle’. She explains further that word choice is crucial in the adversarial legal system, indicating that lexical struggle plays an integral role in the cross-examination. This is because cross-examination is purposely used to weaken the credibility of the witness by implying that either the person cannot be relied on or not trustworthy or in some way their story is either contradictory or stated in an inconsistent manner. Therefore, in order to overturn the story provided by the witness, the major strategy used by cross-examining lawyers is contesting on word choice, for instance, we will see. A Pinkenba case is a good example of how lexical struggle is used in the cross-examination of the six police offers that were charge with the act of unlawful deprivation of some three Aboriginal boys in Australian court hearing. In this case, Eades notes that the state exercises a legitimated and perpetuated control over the movements of Aboriginal young people in a more linguistic control over the victim-witnesses. Basically, struggle for word choice was analyzed based on the processes of overt correction as well as covert substitution of the lexical item to determine if the processes are expressed in the speaker’s speech concerning their experience. It was discovered that lawyers and witnesses struggle to give names to speech act that caused the competition car ride and issues related to the characters of boys. However, verb force is one major lexical item that was considered the subject of overt debate to understand its meaning particularly in the case of youngest witness that were forced by the police to enter the cars. One of the lawyers rejected the lexical item which the witness used to label his experience, against the real meaning of the term ‘verb forced’. The struggle over the word meaning led to naturalization of the defense counsel as well as its correction (p.155). Based on the ideological struggle over the meaning and choice of words, it is important to point out that the most troubling lexical strategy is the existing struggle between lawyer and witness in regard to the naming, labeling or description of a particular event or individual subject considered central to the common issues examined within the legal argument of a given defence or what Mauet refers to ‘the defence theory. Generally, it is evident from the Pinkenba case that Aboriginal community does not support the naturalization of the defense counsel, and thus its complaints was taken for courtroom hearing, which clearly shows that the boys have the responsibility or power to represent their community in such ideological struggle. Therefore, it is crucial for such individual in the society to have the power of making word choice and meanings as an exercise of social and ideological power (Eades 2006, p.158). Language and the Normative of law In regard to the subject of language and the normative of law, Hart (1994) examined that a legal system involves power-conferring and duty-imposing rules that must be validated through a rule of recognition or commonly referred to as ‘social rule’. Therefore, it is through this crucial rule that that use of words has been considered relevant to show normative nature of law. Hart provides a detailed view of social rule as a regular pattern of conduct guided by special normative attitude which is reflected in firm disposition of people to emulate such behaviors as their future principles of conduct as well as their standards of criticism (p.255). This implies that Hart’s major concern was on speech acts where he intended to show that parties involved in the practice often make normative language. It is apparent that Hart’s attention was on understanding what individuals actually do as they make normative statements rather than what they assert. The fundamental reason for the existence of a social rule is to ensure a critical reflective attitude towards specific patterns of behavior. This should be regarded as a common standard that displays itself in a criticism manner which includes self-criticism, acknowledgements that the criticism and demands for conformity are justified. Therefore, these critical reflective attitudes are characteristically expressed in the normative view of terms such as right and wrong, must, should or ought (Hart 1994, p.257). A symbiotic relationship exists between the legal system and powerful or regulated interests that mutually benefit as they become more composite and all-encompassing. It should be noted that the symbiosis that occurs between law and power is fractal in nature, and thus can be easily observed at different levels of hierarchy within the legal system. Research shows that laws that were initially formulated for specific reasons can as well be applied for various purposes regarding unpredictable societal changes, which in turn influence the use of laws in a more richly cross-related and self-reinforcing criticism loops. Therefore, increased complexity that results from the expansion of the legal system diversity, specialization and redundancy, benefits those groups which can best exploit its growing ecological niches. This implies that the language of cause and effect should be improved on to include the enablement of incompletely unpredictable strategy spaces that can be used jointly to develop self-reinforcing power structures. In such a case, the power of language can be demonstrated where the law is used to regulate social behaviors by radically changing the power structures embedded in society. Since the legal system covers a wide range of human conduct, it is relevant to consider the possibility that laws are significant adjacent-possible niches that benefit the powerful and detriment the powerless (Devins & Kauffman 2013, pp.2-14). Law is language because it is a social institution that is manifested both in linguistic institution and in non-linguistic ways. However, it is important to note that laws are normally coded in language, and thus the process of making the law are simply mediated through language. For example, the legal system ensures that the beliefs and values of a society are put into action. This implies that the language law genuinely helps individuals involved in addressing the language issues as well as problems that occurring in the real world of Applied Linguistics (Gibbons 1999, p. 156). The law within literate societies is recognized as a social institution that is commonly written and highly specialized. The fact that it is concerned with aspects of societal norms related to deployment of power, the characteristics of being predominantly written in a more special way are reflected in the language of the law. This means that the use of language of the law shows a shift from speech to writing, the use of power as well as documentation of the legal dictionaries that is termed as ‘specialization and technicality’ of the legal language. Thus, the cognitive structures used in the law reflect the written aspects of consciousness (Jackson 1994, p.201). Understanding Sociolinguistics and the Legal Process In her book titled ‘Sociolinguistics and the Legal Process, Eades, Diana (2010, p.4) explains how sociolinguistics is used in the analysis of the legal process. Supporting the ideas of Conley and O’Barr (2005), Eades noted that social inequality is reproduced within the legal system, and thus she strongly believes that accurate sociolinguistic analysis is crucial to the understanding of how law works in terms of its strengths and shortcomings. A critical sociolinguistic approach helps to understand language beyond its descriptive patterns so as analyze the patterns used in the examination of the legal process (p.12). Eades (2010) emphasizes that sociolinguistic research and the legal education is crucial in exposing the problematic perception about language and variation which enables second dialect speakers to access equality within the law. This also applies to individuals from diverse cultural backgrounds that use different ways to communicate or directly impact on the manner in which they examined in the legal system (p.256). In a different case, Eades (2000) argues against answers to the questions intended to silence Aboriginal witnesses in court. She examined that for the past two decades, courtroom discourse structure has been the major focus of various linguistic and sociolinguistic analysis. Eades emphasizes that a number of studies have reported on strong power imbalances specifically between the witness and the lawyer or judge, magistrate. As linguistic strategy used in silencing witnesses, Eades critically considers silence as a verb and noun. She uses the word silence in two major ways on the one hand as, as a transitive verb which means the manner in which the legal professionals control witnesses from telling their experiences and on the other hand, silence is used as a noun from its ordinary English meaning as the pauses within a conversation where no party is heard speaking (p. 161). Although the use of silences at courtroom hearing of witnesses’ evidences may seem not to be important in many studies, it creates a significant indication of communicative style differences existing between Aboriginal and non-Aboriginal people. Therefore, Eades notes that the outcome of the act involving legal professionals silencing Aboriginal witnesses has not been recognized within the courtroom interactions as key silence or pause used to hinder the witnesses from talking. Thus, witnesses are only allowed to use short answers to the yes-no questions which limits them from giving their full stories or experiences or simply being silenced to enable lawyers or judges to embark on their next question (p.167). This implies that the power of language is used in courtroom hearings as it is quite clear that witnesses can be silenced in two major ways. For example, witnesses are not given enough time to say what they intend to say and thus subjected to limitations of rules of evidence which instead gives the person asking questions absolute power to control the discussion at hand. Secondly, the investigation involving the actual courtroom interactions will reveal the power of language in particular, use of silence to prevent witnesses from explaining their experiences. The power of the syntactic structure of various questions asked in the process of control in courts has also been analyzed in the sociolinguistic literature. Eades notes that a number of studies have generated typologies of conduciveness, control and coerciveness or manipulative question forms as cited in Harris 1984, Matoesian 1993, Danet et al.1980 where the above four terms are synonymously used in these literature. Specifically, control in all these literature concerns the imbalances existing between witness and lawyer. It also involves the extent to which a lawyer can present his or her interpretation of the issues of evidence based on constraints resulting from the types of questions asked as well as the answers only allowed to give. It has been argued that yes-no questions do not often coerce, control or silence witnesses as little emphasis has been given on the extent to which witnesses either agree or disagree to the yes-no questions. Therefore, it is not important to asses how often coercion or control is exercised in cases involving syntactic type of questions alone (Eades 2000, p.168-171). The effect of legal language depends on context, and thus it is considered as an instance of general problem in communication. However, philosophers of language decided to approach this issue by establishing the difference between semantics and pragmatics. Therefore, they have found that it necessary to distinguish the really meaning of a linguistic expression from the effect expected in the use of that particular expression by a specific user of the language in a given context. Pragmatics has been perceived as an underdeveloped study within the legal theory because the term pragmatics can be used as opening subject for all the works that legal scholars and theorists involve in to defend certain interpretations of legal language. For example, when the parties involved in the dispute comprehend the meaning of particular expressions in question as well as theorizing the natural world of interpretation (Endicott 2010, p.30). Furthermore, it has become controversial as to whether the legal pragmatics is related to the general application of the pragmatics of language. Marmor (2008) argues that contextual background is not fully embedded in law to enable the content asserted be seen as different from what is already conveyed in the usual way of conversation. However, Marmor agrees that the law has distinguishable feature that is not demonstrated in the ordinary conversation because legal systems require institution and processes that can help in adjudication of disputes concerning the use of language that arise due to its context-dependence (p. 423). Language, Power and Control in exploring Courtroom Discourse Language is perceived as a powerful tool used for social manipulation. For example, linguistic utterances are commonly used or abused in courts purposely to favor the defense or accusations. Furthermore, the inter-semiotic interaction between the front and back stages helps to isolate from a subjective reality so as to symbolize instances. Specifically, this enables one to comprehend the inter-semiotic working between the daily and each activity to key institutional social structures or processes of power and control within a particular discourse community. It is noteworthy that relating the aspects of power and control within the courtroom is more related to the interpretation of the linguistic utterances as well as their uses and abuses. However, such interpretation of the law positively contributes to the dynamic needs of institutionally developed functions in particular, of judges and lawyers, citizens or legislators (Wagner & Cheng, p.250). This implies communication whether verbal or non-verbal is a requirement of interaction expected in matters of law and power within the courtroom. Language Alternation in Courtrooms: a case for Kenyan and Malaysian Courtrooms In their chapter two of the study to investigate language alternation in Kenyan and Malaysian courts, Powell and David (2011) aimed at comparing the language alteration in the courts of this two multilingual societies known as Kenya and Malaysia. The main objective for making the comparison was to understand the different aspects in which languages are being alternated, focusing on four distinct patterns common the two countries. The four patterns include lexical code-mixing in which words selected from a single language are embedded in utterances together with lexico-grammatical matrix found from another. The authors also based their comparison on the pattern of code-switching where a speaker is involved in the juxtaposition of clauses and their sentences in various languages. Code-shifting was also another pattern for their comparison in which a speaker is expected to use a single language with one interlocutor as well as a different language with a different interlocutor. Lastly, Powell and David used non-convergent dialogues where two speakers communicate in different languages but are able to understand each other without necessarily being helped by an interpreter. It was discovered that in Malaysia, code-switching was prevalent, and thus courtroom interlocutors often switch languages for various reasons such as the need for clarification, metaphorical or actual citation as well as coercion and emphasis. A number of these motivations that lead to courtroom language alternation have also been examined in Kenyan Courtrooms. In particular, where defense lawyers often use English to challenge police witnesses who are not proficient in the language regardless of whether the police witnesses have used the Kiswahili language quite well to state their witness (pp.227-250). Based on this courtroom observation, it is relevant to mention that this comparative investigation is a clear indication of how bilingualism within courtroom settings can provide insights into individuals concerned developing motivations for exercising language alteration. This increases the complex nature of the legal discourse. In this case, therefore, it can be argued that even though the practice of language alternation is generally used for discursive reasons to coerce or separate courtroom participants, language alternation can as well be used to enhance the workings of the law. In so doing, the law would help to solve issues transparently without necessarily sacrificing the interests of justice. Conclusion It is evident from the above discussions that court judgments, legal proceedings and legislations use specific linguistic forms. Therefore, the power of language in legal cases concern issues of interpretation and ambiguity relating to the words used in a conversation within the courtroom or legal provision. The symbiosis between law and power is fractal in nature, and thus can be easily observed at different levels of hierarchy within the legal system. It important to distinguish the really meaning of a linguistic expression from the effect expected in the use of that particular expression by a specific user of the language in a given context. Word choice is crucial in the adversarial legal system, which implies that lexical struggle has a central role in the cross-examination of a legal case. Cross-examination is basically used to weaken the credibility of the witness, suggesting that either the person cannot be relied on, not trustworthy or in some way their story is either contradictory or stated in an inconsistent manner. Therefore, in order to overturn the story provided by the witness, the major strategy used by cross-examining lawyers is contesting on word choice. Courts use language to explain their grounds of legal judgments or decisions taken against individuals who commit crimes. Therefore, it is noteworthy to say that philosophers of law must clearly understand the meaning and uses of language. Bibliography Conley, J. M & O'Barr, W. M., 2005, Words: Law, language and power (2nd ed.), University of Chicago Press, Chicago. Devins, C & Kauffman, S., 2013, “Toward a new perception of Law and Society: Complexity and Power in the Legal System”, retrieved November 22, 2013 from, Endicott, T., 2010, “Law and Language”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.) retrieved November 22, 2013 from, Eades, D., 2006, “Lexical struggle in court: Aboriginal Australians versus the state”, Journal of Sociolinguistics”, Vol. 10, No.2, pp.153-180. Eades, D., 2000, “I don’t think it’s an answer to the question: Silencing Aboriginal witnesses in court”, Language in Society, 29, 161-196. Eades, D., 2010, Sociolinguistics and the Legal Process, Multilingual Matters Publishers. Gibbons, J. (ed.), 1999, “Language and the law”, Annual Review of Applied Linguistics, 19, 156 173, Longman, Harlow. Hart, H.L.A, 1994, The Concept of Law, 2nd edition, Clarendon Press, Oxford. Jackson, B., 1994, “The semiotic features of a judicial summing up in an English criminal court”, International Journal for the Semiotics of Law, Vo.7, No.20, 201-224. Marmor, A., 2008, “The Pragmatics of Legal Language,” Ratio Juris, 21, 423–452. Mauet, T., 2000, Trial Techniques (5th edition), Aspen Publishers, Inc. Gaithersburg, Maryland. Powell, R. & David, M.K., 2011, ‘Language Alternation in Kenyan and Malaysian Courts’, In A. Wagner (ed.) Explorations on Courtroom Discourse. pp. 227-250, Ashgate Publishing, Farnham. Wagner, A., & Cheng, L. (eds.), 2010, Exploring courtroom discourse: the language of power and control, pp.227-250, Ashgate, London. Read More

This is because cross-examination is purposely used to weaken the credibility of the witness by implying that either the person cannot be relied on or not trustworthy or in some way their story is either contradictory or stated in an inconsistent manner. Therefore, in order to overturn the story provided by the witness, the major strategy used by cross-examining lawyers is contesting on word choice, for instance, we will see. A Pinkenba case is a good example of how lexical struggle is used in the cross-examination of the six police offers that were charge with the act of unlawful deprivation of some three Aboriginal boys in Australian court hearing.

In this case, Eades notes that the state exercises a legitimated and perpetuated control over the movements of Aboriginal young people in a more linguistic control over the victim-witnesses. Basically, struggle for word choice was analyzed based on the processes of overt correction as well as covert substitution of the lexical item to determine if the processes are expressed in the speaker’s speech concerning their experience. It was discovered that lawyers and witnesses struggle to give names to speech act that caused the competition car ride and issues related to the characters of boys.

However, verb force is one major lexical item that was considered the subject of overt debate to understand its meaning particularly in the case of youngest witness that were forced by the police to enter the cars. One of the lawyers rejected the lexical item which the witness used to label his experience, against the real meaning of the term ‘verb forced’. The struggle over the word meaning led to naturalization of the defense counsel as well as its correction (p.155). Based on the ideological struggle over the meaning and choice of words, it is important to point out that the most troubling lexical strategy is the existing struggle between lawyer and witness in regard to the naming, labeling or description of a particular event or individual subject considered central to the common issues examined within the legal argument of a given defence or what Mauet refers to ‘the defence theory.

Generally, it is evident from the Pinkenba case that Aboriginal community does not support the naturalization of the defense counsel, and thus its complaints was taken for courtroom hearing, which clearly shows that the boys have the responsibility or power to represent their community in such ideological struggle. Therefore, it is crucial for such individual in the society to have the power of making word choice and meanings as an exercise of social and ideological power (Eades 2006, p.158).

Language and the Normative of law In regard to the subject of language and the normative of law, Hart (1994) examined that a legal system involves power-conferring and duty-imposing rules that must be validated through a rule of recognition or commonly referred to as ‘social rule’. Therefore, it is through this crucial rule that that use of words has been considered relevant to show normative nature of law. Hart provides a detailed view of social rule as a regular pattern of conduct guided by special normative attitude which is reflected in firm disposition of people to emulate such behaviors as their future principles of conduct as well as their standards of criticism (p.255). This implies that Hart’s major concern was on speech acts where he intended to show that parties involved in the practice often make normative language.

It is apparent that Hart’s attention was on understanding what individuals actually do as they make normative statements rather than what they assert. The fundamental reason for the existence of a social rule is to ensure a critical reflective attitude towards specific patterns of behavior. This should be regarded as a common standard that displays itself in a criticism manner which includes self-criticism, acknowledgements that the criticism and demands for conformity are justified.

Read More