Using sociolinguistics to study the legal process

1. What is sociolinguistics?

2. What is meant by 'the legal process'?

3. Some basic sociolinguistic principles

4. Introducing spoken language in the legal process

5. What can sociolinguistics contribute to the study of the legal process?

6. The impact of written legal language on spoken legal language

7. Different kinds of sociolinguistic analysis

8. Transcription

9. Different legal systems around the world

10. Outline of the book

11. How to use this book

12. Notes on terminology

13. Anglocentric orientation of this book

Assignments and further research

Using sociolinguistics to study the legal process

Language is central to the legal process: written laws, judicial decisions, police interviews, competing claims in a dispute, courtroom evidence, legal argument, mediation hearings, all of these events or products of the legal process are carried out through language, whether written or spoken or both. Lawyers have to be 'good with language' to succeed in their profession. Indeed, some might argue that success in any legal process depends to a considerable degree on the linguistic dexterity of participants, including witnesses, litigants and legal professionals.

This book is intended as a textbook for a university or college postgraduate or advanced undergraduate course in which sociolinguistics is used in an examination of the legal process. Some students will know nothing about the legal process, and some will know nothing about sociolinguistics. This chapter aims to address these two gaps at a fairly introductory level, so students from both backgrounds can go on to use the substantive chapters as part of the same course. Further background about sociolinguistics and law will be provided as necessary throughout the text.

1. What is sociolinguistics?

In the simplest terms, sociolinguistics is the study of language use in its social contexts. While linguistics primarily analyses the structure of language, sociolinguistics analyses language function and use. Modern sociolinguistics has developed since the 1960s, and most of the founders of various sub-disciplines within sociolinguistics are still alive today. Sociolinguistics often requires an understanding of principles and methods from linguistics, and there is often no hard and fast boundary between sociolinguistics and linguistics. Strictly speaking, some of the approaches, studies and publications discussed in this book would be described as '(socio)linguistic', or 'linguistic and sociolinguistic'. But to avoid repeated clumsiness, I will use sociolinguistics to refer to the analysis of language function and use, with the understanding that this often also incorporates some study of language structure. If you do not have a background in sociolinguistics, you are recommended to read Holmes (2008).

2. What is meant by 'the legal process'?

All societies have systems of law which govern acceptable behaviour and which comprise social mechanisms for dealing with disputes. It is common to distinguish between formal and informal legal systems, just as between formal and informal education. This book is concerned with language in formal legal systems. For reasons explained in Section 9 below, the primary legal focus will be the common law legal system found in countries such as Australia, England, New Zealand, the United States and most of Canada. Legal anthropology mainly examines informal legal systems (sometimes referred to as 'customary law'), and readers interested in pursuing this area should start with Conley and O'Barr's (2005: Chapter 6) introduction to the area. The terms 'legal system' and 'legal process' can often be used interchangeably. I will mainly refer to the legal process because the interest of sociolinguists is in what happens in the process, specifically what people do in interactions that take place within the legal system.

3. Some basic sociolinguistic principles

Sociolinguistics is concerned with the complex relationship between language and society. There are three main ways in which this relationship can be conceptualised. First, much sociolinguistics in the 1960s–1990s proceeded from the axiomatic assumption that language reflects society. Such an assumption would view the hierarchical ways of addressing people in the courtroom – such as calling the judge your honour – as a reflection of the hierarchical authority structure of courtrooms. Second, an influential axiomatic assumption reverses the direction of the relationship between language and society, so that the hierarchical authority structure in courtrooms would be seen partly as the effect of such language usage as calling the judge your honour. This view that language determines aspects of society, or culture, or even thought, is associated with the work of early 20th century American linguistic anthropologists Benjamin Lee Whorf and his teacher Edward Sapir, and is often referred to as 'the Whorfian hypothesis'.

Like so many other earlier dichotomies in the social sciences, these two opposite ways of thinking about the relationship between language and society have been deconstructed in the later part of the 20th century. Twenty-first century sociolinguistics assumes a dynamic and reciprocal relationship between language and society, so that language usage at the same time both reflects and shapes society. This third view can be seen as part of the wider approach in the social sciences, in which the earlier dichotomy between social structure and agency is also rejected, in favour of an understanding that the two are inseparable: it is the agency of individuals in social groups which creates, shapes, maintains, reinforces and changes social structures, which in turn limit and enable the agency of individuals. This axiomatic understanding of society underpins the best sociolinguistic work on language in the legal process. Indeed, the legal process is an ideal institutional site for the examination of this dynamic interrelationship between social structure and agency, as we will see. To understand language usage in any specific legal context is impossible without an examination of structural institutional aspects of the legal system. On the other hand, sociolegal studies of the law can be greatly enriched by an examination of situated language practices...