Category Archives: Pragmatics

More on The Language of the Law

Over at Volokh Conspiracy, Will Baude has commented on my post about the language of the law. Will and his co-author Steve Sachs recently had a paper titled “The Law of Interpretation” published as a lead article in the Harvard Law Review. They have a view of the rules of legal interpretation that differs from McGinnis and Rappaport’s and is fairly similar to mine:

In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.

However, Baude sees his (and Sachs’s) conception of legal rules as differing somewhat from my description of legal interpretation as process of explicit reasoning:

I take [Goldfarb’s] point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utter­ance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.

I’ll deal with these points in reverse order.

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“Thank you for that submission.”

One of the areas where law and linguistics intersect is in the study of the linguistic interaction of participants in court proceedings—an area known as “courtroom discourse.” Publications in this field tend to have titles like Discourse Dynamics in the Courtroom, Exploring Courtroom Discourse: The Language of Power and Control, and Power Relations in Courtroom Discourse.

While I’m a participant in courtroom discourse, this is an area of linguistics that I haven’t focused on, and I don’t know much about it. However, I recently came across some raw data that might be of interest to those in the field. I’m making it available here in the interest of science.

The data in question consists of the transcript from a criminal proceeding in Australia, excerpts from which are set out below. Please note that a certain amount of stage-setting will be necessary, before we get to the relevant discourse segment, but patience will be rewarded.

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