New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

5 Studies in Language and Society 27-53 (2013)

Abstract

How does language mediate action, communication and relations in legal settings not "contaminated" by the mediation of professional counsel? What is its interaction with, and what does it do to the concerns that drove litigants to seek institutional justice in the first place (or are cast into defensive roles?) How to approach these question in the context of communities diversified by ethnicity, gender, language, religion, education, income, age — whose members nevertheless meet in the same courtroom, where they must speak to authority as well as to each other in the role of institutional antagonists?

This paper, presenting empirical and interpretative work, analyzes legal language through the rhetorical, argumentative and narrative structures employed by self-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two levels of linguistic diversity: the polyphony of competing argumentative strategies expressed by antagonistic litigants in multicultural settings, and the "internal" polyphony, or "monopolyphony," expressed by "relational" litigants who negotiate and shift between such strategies in real time. This linguistic infrastructure frames the two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case, and authentic expression of their justice-related concerns, moral standing and other social parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, and acknowledges tradeoffs that lay litigants make between them. In this research, however, litigants were observed to resist such tradeoffs, requiring their relational concerns to count as rhetorically compelling; indeed, this was their main requirement from the court. This essential tension of linguistic performance, between authentic expression and institutional efficacy, in fact becomes a definition of justice. As the standard rule-orientated bias of courts is generally not equipped to accept such linguistic strategies, the tension remains unresolved, although it is at times mitigated by effective monopolyphonic performances.

Data for this study was collected in six different small claims courts in Israel's ethnically and culturally diverse northwestern region. The study focuses on overlapping ethnic, gender, age and cultural parameters rather than on social stratification and economic status emphasized by previous research.

Date of Authorship for this Version

3-2014

Keywords

Legal language, legal ethnography, empirical legal studies, language ideology, self-representation, polyphony, legal rhetoric