Review of Just Words Law, Language and Power

THE FIELD OF LAW AND LANGUAGE
The collaboration for nearly twenty-five years of a professor of law, John Conley, and a professor of anthropology, William O.Barr, at Duke University, has yielded some of the most well-known and ground-breaking work in studies of language and the law. This fruitful partnership has resulted in a seminal new book Just Words: Law, Language and Power (hereafter JW), which may well mark the coming-of-age of the area of scholarship which the authors term .law and language. What constitutes the field of .law and language? For Conley and O.Barr (hereafter C&O.B) it is the merger of the two traditions of sociolinguistics and law and society (or sociolegal scholarship). The former began to incorporate the language of the law into its studies in the 1970s, and the latter began to concern itself with language in legal settings at about the same time.
However, not everyone would agree with the authors’ delineation of the field of .law and language. in this way. For example, Levi’s important 1994 bibliographic guide to social science research on .language and law. in the USA indicates that studies of language in legal settings to date have covered all the major areas of linguistics (phonetics and phonology, morphology and syntax, semantics and pragmatics, sociolinguistics, psycholinguistics and discourse analysis, including conversational analysis).
Although Levi uses the term .language and law. (cf. C&O.B .law and language.), C&O.B imply that they and Levi are talking about the same .field. (p. 5). This appears also to be the same field that is called by many scholars .forensic linguistics’, as exemplified in the title of this journal and the International Association of Forensic Linguistics (IAFL). Discussion over the use of this fairly new term at IAFL conferences, and on the forensic-linguistics e-mail discussion list, indicates that it is being conventionally used in its broadest sense to refer to linguistic studies of language in legal settings (in the same way as Levi’s .language and law.) and in its narrow sense to refer to the use of linguistic analysis as expert evidence in court.
Actually, C&O.B are not excluding any type of linguistic analysis in their field of law and language, but they see sociolinguistics at the core, because their focus is on .the most important theoretical issue in law and language: the use of linguistic methods to understand the nature of law and legal power. (p. 6).
Despite indicating that their .law and language. field is the same as Levi’s .language and law., they are also in effect calling for something new: namely the merger of law and society studies and sociolinguistics’ In outlining the approaches of these two areas, C&O.B point to how the weaknesses of each approach can be addressed by their merger. Sociolinguists are increasingly making observations about the social contexts of language, without answering the ‘so what?. questions’ And the field of law and society has been ‘so successful in its basic objectives [of showing how law really works in practice] that additional instances of biases and shortcomings often serve more to underscore what has come to be general knowledge than to produce genuinely new insights about how law works’ (p. 12).
So in merging the two fields, C&O.B are in effect arguing for a synergy: a new approach emerging from the combination of aspects of the two fields’ First, there is the sociolinguistic attention to detailed microanalysis of actual language in its context (also found in studies in the disciplines of conversational analysis and ethnomethodology). Second, there is law and society’s analysis, usually at the macro level, of how the law .fails to deliver on its biggest promises, especially the equal treatment of all citizens’. The focus of this new approach, resulting from the combination of these two fields, is on discovering .how the power of law actually operates in everyday legal settings’ (p. 14).

PATRIARCHY IN THE LAW
Readers of earlier work by the authors may be surprised to see that a recurring theme of this book is the patriarchal nature of law, with which their previous writings have not been much concerned, but which has been a major focus of sociolegal scholarship. In this new book, C&O.B develop a forceful argument about how the law enacts patriarchal domination, bringing together evidence from four seemingly disparate areas of research in language and the law, and developing a thought-provoking argument. These areas of research are:
l the revictimization of rape victims in courtrooms (ch. 2),
l the seeming gender bias in the way in which mediation works (ch. 3),
l stylistic variation in the speech of witnesses (ch. 4), and
l the logic of legal accounts by litigants in small claims courts (ch. 4)
In Chapter 2 the authors rely primarily on the impressive work of the sociologist Matoesian (1993, 1995) whose detailed conversational analysis of the courtroom revictimization of rape victims, situated in a broader analysis of the power dynamics of rape, exemplifies exactly the kind of research called for in JW.
C&O.B’s reflection on Matoesian’s work concludes that the linguistic strategies analysed are in fact not unique to rape trials: .they are all strategies of domination. common to cross-examination (p. 32). What is most poignant in the rape trial is that .they are strategies of domination employed in the service of one accused of domination.(p. 32). Despite apparent breakthroughs in law reform (e.g. with rape shield laws), women continue to be dominated, even while giving prosecution evidence as victims of rape.
Turning to an area where law reform has recently moved some dispute resolution out of the courtroom, C&O.B examine the language of mediation, particularly in divorce proceedings, in Chapter 3. They argue for the use of microlinguistic analysis to examine the contention that this process is still subject to manipulation by the powerful, and that as a result, many women are losing out. While such a claim is being made at the level of macro-discourse, the first substantiations at the level of micro-analysis are very telling, and the authors draw here on the work of Garcia (1995) and Greatbatch and Dingwall (1989). While this work shows some linguistic strategies which are used by mediators to dominate one party, the evidence is by no means conclusive that this bias is consistently against women, and C&O.B recognize the need for more study. However, in the spirit of drawing together strands of macro and micro analysis from disparate areas of language and the law research, the authors briefly discuss .a convergence of circumstantial evidence in support of the claim that mediation disadvantages women. (p. 58). Although mediation is widely considered to be .a good thing., C&O.B consider it open to the charge of being a .tool for oppressing women. (p. 58) and their prediction is that the powerlessness of women will be increased by its use. This prediction contextualizes in an immediately practical way the responsibility of researchers to further investigate this area, and demonstrates the significant implications which could flow not only for research on language and law, and language and gender, but also for addressing continuing inequity in the legal process’
In Chapter 4 (‘speaking of Patriarchy.) C&O.B revisit their own most comprehensive earlier empirical research in further support of their argument for microlinguistic analysis of the way that the law continually reproduces women’s powerlessness’
Their early ground-breaking research on language variation in the speaking style of witnesses (eg Conley, O.Barr and Lind 1978; O.Barr and Atkins 1980; O.Barr 1982) has had considerable impact on the language and gender literature. In this 1970s study Conley and O.Barr, and their colleagues in the Duke University Law and Language Project, highlighted the fact that the features of speaking style attributed by Lakoff (1975) to women are used by both men and women in their courtroom study. They emphasized that it is not gender which is the determining variable but the speaker’s status in society and situational power, and they renamed Lakoff ‘s .women’s language. as .powerless language.. In a similar way their more recent research on the logic of litigants’ accounts in small claims courts downplayed ‘social variables’ such as gender, race and ethnicity (see Conley and O.Barr 1990: 79). Their study found that litigants differed according to whether they formulated and expressed their problems to the court in a rule-oriented or a relational approach. While their analysis does include a little discussion of Gilligan ‘s (1982) work on male and female moral reasoning patterns, in this 1990 study they are quite cautious in attributing any primacy to gender in the explanation of the differentiation between rule-oriented and relationship- oriented litigants, claiming that gender alone can not account for the complex patterning they found.
But in JW they contextualize both of these earlier studies within the bigger picture of sociolegal studies which argues that there are many ways in which the law is unarguably patriarchal. C&O.B say that they did not realize at the time of their earlier research that it has .important implications for understanding the subtle workings of the law’s patriarchy . (p. 65).
In their 1970s study C&O.B and their colleagues had acknowledged that women appear to use powerless language more frequently than men, and they suggested that this is due .at least in part, to the greater tendency of women to occupy relatively powerless social positions’ (O.Barr and Atkins 1980: 104). In revisiting this study in JW, C&O.B examine the implications of this relationship between speaking style, gender and power in a more critical way. They argue that the fact that the legal system gives less credence to those who speak in a powerless style, and that men are more likely to have learned a powerful speech style than women, indicates .a manifestation of the law’s patriarchy at the most elemental linguistic level. (p. 75). In this stimulating re-examination of the issue of powerless and powerful language, the circle is completed: in their 1970s study they renamed women’s language as powerless language, and in JW they say that powerful language is .a distinctively male style. (p. 63).
And in discussing their small claims courts research in JW, C&O.B move from the recognition that the rules-versus-relationships dichotomy implicates some common gender stereotypes, acknowledging that there is a tendency for rule-oriented litigants to be male and relational litigants to be female. The ability to use rule-oriented accounts is an acquired skill, they assert, in which the acquisition depends on exposure to the culture of business and law. As it is largely men who have had access to these domains, and it is predominantly rule-oriented accounts which are preferred in litigation, then it follows, indirectly, that .relational litigants . which often means women . .have a harder time gaining access to justice than do their rule-oriented counterparts’ (p. 73).
Thus in Chapter 4, their re-analysis of their earlier studies in a more critical perspective leads them to conclude that .legal patriarchy, in the sense of favoring male interests, is realized in the linguistic details of courtroom interactions’ (p. 75). The argument is that the patriarchy of the law is realized and enacted in indirect but powerful ways’ Through the law taking typically male ways of interacting as the norm, and privileging them, women are dominated in these different ways in various legal contexts’ It is the active way in which this domination is carried out which is the focus of JW, and C&O.B make a strong case that microlinguistic analysis is central to the illumination of the process of how our society enacts patriarchy through the law.
Despite being first engaged and then basically convinced by their argument, I wanted more detailed evidence to substantiate some of C&O.B’s claims’ This was particularly so with regard to their conclusion in JW that what they had convincingly analysed in their 1970s study as powerful language is .a distinctively male style. (p. 63). In JW the argument is based on indirect evidence, as discussed above, that this powerful language style is both learned and used by the powerful, who are predominantly men. I felt that their argument could have benefited from some consideration of recent developments in sociolinguistic studies of male and female language/speech styles, much of which is based on microlinguistic analysis (e.g. Holmes 1995; Coates 1989; Tannen 1993). Of particular relevance would seem to be the recent adoption of a social constructionist approach which argues that the dichotomous male-female categories are inadequate and inaccurate (e.g. Schiffrin 1996; Holmes 1997), and which uses microlinguistic analysis to show .the diverse realizations of the dynamic dimensions of masculinity and femininity. (Holmes 1997: 217). For example, how does the literature which identifies a more co-operative style as more feminine and a competitive style as more masculine (e.g. Aries 1996; Coates 1997) relate to C&O.B’s analysis of relational versus rule-oriented litigants (shown in their 1990 study to be a continuum, a finding seemingly not included in this briefer discussion in JW)? I look forward to further discussion of this issue, by scholars more expert in this area than myself.
A related concern is that C&O.B’s use of the term .distinctively male style. appears to imply a gender-exclusive speech style, yet on the basis of their own work it is clearly gender-preferential rather than genderexclusive.