Sink every impulse like a bolt. Secure
The bastion of sensation. Do not waver
Into language. Do not waver in it.
Seamus Heaney, Lightenings1
This essay is about how language functions in law, and how prospective legal
agents - young lawyers, law students - are initiated into a complex linguistic
culture through various modes of instruction that are, more often than not,
nontransparent as to the linguistic ideology that underlies them. Thus it
confronts two approaches to legal education: one, which cuts across both
lay and certain "professional" approaches to legal instruction, approaches
law as a discipline, a body of knowledge to be mustered and mastered in
the form of rules, precedents, policy arguments and the like. The other
approaches legal practice and instruction as a complex linguistic culture,
where the forms enumerated, rather than the "essence" of law, are offered
as profitable to master because they tend to constitute the culture of communication
of legal discourse, on top of being the kind of argumentation that is generally
triumphant in the legal institutional context. The rule-oriented approach
sees language as a means to organize, express and pronounce social norms
that in some sense are conceived as nonlinguistic or extralinguistic entities,
although lawyers will generally agree that even if that were the case legal
and other social norms are accessible only through linguistic formulations
that express them. The linguistic approach might use something of an Occam's
razor: if norms are only accessible, pronounceable and manipulatable in
their linguistic aspect, why insist on their "nonlinguistic reality"? Is
there a sense in which a norm is different from its linguistic formulation?
At the conclusion of this essay, I attempt to show how these two "approaches"
to legal argument are institutionally superimposed on each other in a way
that is essential of law's requirment for social rationalization. This ideology
of superimposition - rhetoric through representation - in turn drives the
most prevalent modes of legal instruction and pedagogy.
However, before attempting to draw pedagogical insights, the bulk of this
essay studies how notions of language use apply to legal performance. There
are various ways to attempt such a study; the one employed here works through
a nontechnical survey of some major approaches in the philosophy of language.
Language springs from culture, practice and their historical dimensions,
while law and legal instruction, ever since Hellenic times, were seen as
paradigmatic contexts for the application and study of social language.
Thus, the present inquiry will attempt to address the relations between
language and action as a history of ideas centered on the following questions:
What, as lawyers and speakers, do we do with words? What are the modes of
language used in legal argumentation (and in litigation in particular)?
How do we train and initiate prospective lawyers into a linguistic culture
and ideology that underly these questions? With no claim to exhaustiveness,
this essay proposes to delineate, trace and reconstruct the main features
of three interacting language functions significant in legal practice and
theory: rhetoric, representationalism and performativity. The examples discussed
are narratives of institutionalized and customary law that share linguistic
attributes with literary forms and even theological puzzles.
Socrates: [T]he aspiring speaker needs no knowledge
of the
truth about what is right or good ... In courts
of law no
attention is paid whatever to the truth about such
topics; all
that matters is conviction ... Never mind the truth
- pursue
probability through thick and thin in every kind
of speech;
the whole secret of the art of speaking lies in
consistent
adherence to this principle.
Phaedrus: That is what those who claim to be professors of
rhetoric actually say, Socrates.
Plato, Phaedrus2
Perhaps the most intellectually engaging - as well as politically potent
and morally outrageous - approach to language in the classical world was
the rhetorical paradigm, taught by such formidable sophists as Gorgias and
Protagoras.3
According to this paradigm, the language most common and most effective
in social interactions - notably in politics and in litigation - is persuasive
language. Language is not and cannot be representational, as Socrates (and
much later, Aquinas, Leibnitz and the early Wittgenstein) thought, and what
is more important, representation of nonlinguistic things - a cow in a meadow,
an emotion, good and evil - is simply not the point about using language.
Rather, the game of language is that of manipulating hearers to act in ways
conforming with the speaker's interests. A linguistic interaction is first
and foremost manipulative, and all the rest - conveying thoughts, making
people laugh, representing facts (or states of affairs or what have you)
- must be interpreted in view of this general principle. Gorgias himself,
a skeptic in matters epistemic, claimed that even if we do - by accident
- stumble across some referential "truth", we could not convey it to others,
not as a matter of competence but because of language's inherent shortcomings
in representing anything extralinguistic.4
In other words, before all else comes politics: the formation of society
and manipulation within it through language, as an instrument of power,
an exercise of the will. The only valid sense of "truth" is not that which
language represents but that which language creates in social mediums. What
one does with language is inducing people to act in certain ways - such
as side with one in a debate, rule in one's favor, obey one's commands,
etc. Such a view is not cynical because it does not follow that language
masquerades as civic virtue since the rhetorical capacity to effectively
master language is civic virtue. Gorgias could have given as an example
of effective manipulation of persuasive language the great antisophist himself,
Socrates, a consummate performer of the persuasive arts masquerading in
unavoidable representations of "truths." Language, claimed the Sophists,
has no inherent dependency on any nonlinguistic metaphysics and its use
is therefore independent from any concept of knowledge, except for that
of rhetoric itself.
In the middle-middle ages5
the understanding of language as rhetoric, was all but sidelined - as a
scholastic approach - by a naturalistic paradigm, which aspired to perfect
- as humanly possible - representation in all matters "natural," including
the normative and the legal. Medieval philosophy considered such matters
as not given to social construction or convention, but primarily as matters
of factual truths of universal, divine validity. Thus, according to Thomas
Aquinas' monumental Summa Theologica, rules of law are natural
much in the same way that the rules of the physical world are, and both
kinds share the same divine source. Legal rules are to be discovered rather
than created, inferred from the eternal law of divine origin rather than
constructed.6
Law is not about power but about justice and the common good, and language
- as used by correct political institutions - is for effectively applying
and translating these metaphysical abstractions into civic and political
practice.
Human Law is to be shaped primary through inference from "Natural Law,"
by which Aquinas denoted the subset "Eternal Law" that is accessible to
rational inquiry. Inference, let us recall, was - and in many circles still
is - perceived not as a narrative mode but as an iron-clad logical form
that pertains to guarantee that an argument's conclusion - in this case,
propositions of Human Law - follows from the premises, namely propositions
of Natural Law. Nevertheless, it is a mistake to interpret Aquinas' jurisprudence
in excessively rigid terms. Aquinas does leave room for contingencies, for
construction, for internalizing context and even for arbitrariness, as Human
Law must apply - by ways of coordination, determination, and application
- to factual contingencies.
For instance, from Natural Law's premise of
the sanctity of life,we infer that
people must not be exposed to undue hazards, but whether this requires that
motorists drive on one side of the road or the other is a question no inference
can answer. Such action must be coordinated - that is what matters, not
the regulation's specific content.7
While justice, perhaps, requires that litigants be granted rights of appeal,
it has little to say concerning the exact length of the appeal period -
a question of determination - although it perhaps does dictate a contextual
"domain of reasonableness," ideally formed as an equilibrium of the respective
interests of review and of res judicata.
However, can language be trusted to fulfill its representational function?
During the Renaissance, Francis Bacon grieved that to a large extent language
does not fulfill this function and that it would require a radical purification
in order to succeed. More than a means of understanding, language was deemed
an impediment: it imposed its own cultural biases, vocabulary and equivocal
systems of meaning on our worldview in a manner that veils the world and
obscures our perception.8
Kant would later speak of epistemological "categories" that are necessary,
constitutive postulates of reason,9
but Bacon sought to rid science from "the idols of the market," as he termed
prepurified representational language in his search for perfect systems
of representation and communication.
Leaping a good historical distance and unpardonably overlooking much of
what we pass by (such as Spinoza's use of multilayered rhetoric, simultaneously
conveying meanings on different levels to savants and to the multitudes,
and Leibnitz's Characteristica Universalis, which purported to delineate
a perfect representational language and a "calculus of truth"), we come
to meet with representationalism as it is confronted by the emerging question
of power. Friedrich Nietzsche, the enfant terrible of Western philosophy,
developed a philosophy (or "psychology," after his own appellation) according
to which the "will to power" is the fundamental ontological fact, and language
is an instrument in the service of the will's necessity to act in a social
world, to exercise power over others.10
Even when representational, Nietzsche saw language as culturally constructed
and subject to pragmatic needs,stemming from two interconnected concerns:
a survival-and-attainment interest that depends on classifications11
and communication. 12
Classifications and categorizations, Nietzsche argues, are both artificial
and mistaken - but not arbitrary, and useful as such: they serve practical
needs, such as distinguishing a class of edible articles from poisonous
ones. As such the truth of classifications is irrelevant, indeed it must
typically be ignored. Language and cognition are not about correctly representing
the world but about laying the foundations for action.13
This position should also be distinguished from pragmatism because Nietzsche
regarded our reliance on and dependence upon linguistic classifications
as a fault, a weakness, that a new psychology could overcome.
It is intriguing to observe in Nietzsche's discussion of communication a
precursory affinity to the later Wittgenstein.14
Language, Nietzsche claims, is to be seen first and foremost as a social,
public phenomenon that develops and lives in the social sphere (as opposed
to the private). Surely, language is representational in that it serves
to communicate content to others; but communication in the first place is
a medium for the will to act in the world - it frames the social world of
action. Thus, language is rhetorical and performative first, and representational
only instrumentally with little concern for "truth" and subject to its primary
functions.
Alice felt dreadfully puzzled. The Hatter's remark seemed to
have no sort of meaning in it, and yet it was certainly English.
Lewis Carroll, Alice in Wonderland15
In the nineteenth and twentieth centuries, the positivist and the Marxist
movements seeded change even within the parameters of the representational
paradigm. In the latter approach especially, the vocabulary of social explanation
shifted from the natural to the cultural, to an artificial, constructed
reality. As for the so-called "logical positivists" in the twentieth century,
the problem of representation became acute. They thought of natural sciences,
and physics in particular, as a model of all valid knowledge: ahistorical
(sometimes misleadingly termed "analytical") propositions capturing empirically-verifiable
(or later, falsifiable) regularities about those aspects of the world that
may be thus represented. Such an approach inevitably centered around the
question, how is representation - and even "perfect representation" - possible,
and what are the conditions for it? This question was paramount for the
positivists as much as it was for the early Wittgenstein, who answered it
to his complete (yet transitory) satisfaction in the Tractatus Logico-Philosophicus,
where segments of language are viewed as "pictures" of reality and a sentence,
rather than referring, "shows" its meaning. Hence, Wittgenstein wrote, "A
proposition is a picture of reality. A proposition is a model of reality
as we think it to be."16
No other approach, Wittgenstein argued, could explain how speakers understand
sentences they have never encountered, let alone form them (from a different
approach, this problem was later settled by Chomsky's theory of generative
grammar).17
Likewise, sentences or propositions cannot be explained because every explanation
merely puts forth another sentence, or proposition; they can only be "shown."
The "picture theory" features representationalism at its height. Interestingly,
note Wittgenstein's inclination toward epistemological idealism expressed
by pictures pertaining not to the world "as it is" but "as we think it to
be," where "think" should take on the wider sense of cogitum in a
collective plural tense rather than the monologic singular (in contrast
to Descartes). We have not dealt with epistemology directly here, yet it
is important to emphasize that representationalism does not imply naive
realism nor linguistic transparency: it does not imply that we have access
to the world "as it really is," i.e., to the impenetrable ontological something
that Kant called "the thing in itself."18
Even in the relatively early Tractatus, Wittgenstein effectively
tells us that as states-of-affairs are accessible only linguistically, our
ways and manners of devising schemes of representation will preempt any
possible knowledge of the world, or at least of those components of the
world that are given to representation in the first place.
The logical positivists and the so-called "Vienna Circle" were greatly influenced
by the picture theory,19
which helped them form the positivist postulate of representation, grounded
a conception of meaning. Reiterating Alice's concern, they asked
which segments of language are meaningful, and which not. Their solutions
converged on propositions, or statements, subject to the "verifiability
principle" that claims for a proposition to be meaningful it must be either
analytic (i.e. tautological - "the ball is round") or empirically verifiable
(or, as was later substituted by Popper, falsifiable - "the ball is red").20
Using verifiability as a meta-semantic criterion for distinguishing meaningful
propositions from nonsense, the logical positivists who introduced it proposed
thus to dispense with many traditional philosophical questions as "pseudo-problems,"
for no conceivable proposition that would seek to represent any answer for
them could conceivably be empirically verifiable - e.g., propositions of
transcendental ethics.21
Different authors argued for different levels of force for the verifiability
requirement. Waismann, representing that part of the Vienna Circle that
originated the concept, stated the principle that a proposition that is
not verifiable conclusively is not so at all, and thus meaningless; it is
the aim of philosophy (although not its sole aim) to purge all discourse
of such talk.22
This extreme formulation received as much critique from within the school
as from without.23
This position excludes every universal statement, statements about experiences
of others, etc.; it even has the odd effect that the opposite of many meaningful
propositions (whether true or false) instead of being of the opposite truth
value, is meaningless.24
Even more annoyingly, the application of the verifiability principle to
itself created the obvious problem that as a proposition it is obviously
not analytical, nor is it in any conceivable way empirically verifiable.25
Philosophically, logical positivism has since lost much of its appeal as
a theory of knowledge, as the very concept of knowledge shifted from analytical
to historicist and sociological terms.26
Nevertheless, logical positivism still seems to appeal to "common-sensical"
approaches and retains some of its attraction, if not for many philosophers,
then at least for quite a few scientists and a considerable body of lawyers
- especially those preoccupied with projects of proper demarcations of "legal"
propositions as opposed to propositions only masquerading as such while
being expressions of moral or political commitments.
In view of the next linguistic paradigm to be discussed - performativity
- it is important not to confuse the early Wittgenstein with the logical
positivists. What they shared, and where they both erred - according the
performative paradigm - was not just in their approach to meaning, that
privileged the representational function of language(a bias that J.L. Austin
dubbed "the descriptive fallacy,"27)
but in approaching language strictly as a medium of meaning. For
Austin, language consisted not merely in a system of meaning but in a framework
and agent of social action: in doing things other than representing
"facts" or "states-of-affairs." Moreover, Austin attacked logical positivism
both by systematically developing the notion of "doing" things with nonrepresentational
language, as well as by invoking rhetoric, a class of "things which, treated
as statements, were in danger of being dismissed as nonsense" by the positivists
as they are "intended not to report facts but to influence people in this
way or that."28
Latter-day critics frequently remark that "many writers . . . in linguistics
and the social sciences . . . have assumed that referential communication
[a kind of representational talk] is the only function of language."29
In view of legal theory, we must note an important position shared by the
early Wittgenstein and the logical positivists, as it influenced several
legal positivists: the view of the world as the "totality of facts."30
The legal relevance is that, accordingly, as long as norms are inhabitants
of the (social) world, they must also be considered and treated as (social)
facts. This is a position relevant to the seminal jurisprudential question
that Richard Posner paraphrased in terms of "legal ontology"31:
whether law is all just a matter of social facts, or can it not be properly
conceptualized without recourse to normative categories that are not
social facts (such as first-order ethical theory - a "correct"
theory - whether socially pervasive or not.)32
However, the relationship of linguistic theory to this jurisprudential inquiry
must be treated elsewhere. 30
He gave man speech, and speech created thought,
Which is the measure of the Universe.
Shelley, Prometheus Unbound33
Perhaps more than any other line of thought, thinking
about language in the twentieth century has been influenced and challenged
by what became known as the "linguistic turn" in philosophy and later
in anthropology and linguistics.34
The fundamental idea was again Wittgenstein's. At its most basic, the
linguistic turn is a thesis concerning how we know and construct the world
as a product of cognitive activity. The mind's instrument is language:
thinking or cogitating "about" the world is done in language and in language
only - there is no thought without word. "About" here is in quotation
because the linguistic turn's concept of "world-language" denies the mutual
independence of language and world, thus the one cannot, strictly speaking,
be merely "about" the other. "Aboutness" is no longer a relation between
signifiers and presupposed signified, extra-linguistic entities and talk
"about" must be reinterpreted as formative rather than representational
in the positivistic sense.35
From this perspective language is not a neutral, or "transparent" device
through which thought and cognition travel intact. Our thoughts are shaped
by the device that is available to them, the language in which they occur.
Our propositions, even if they purport to represent a non-linguistic reality,
are linguistic. We have no direct, non-linguistic access to truths
"about" the world (physical or social or normative). What we cannot say
we cannot know, let alone communicate. According to the more extreme branches
of the linguistic turn, the world and all its attributes and phenomena
- physical and social - are constructions of linguistic cultures, committed
not only to such things as the limits of linguistic structure but also
to language's ideology and thematic character.As Ferdinand
de Saussure, the founder of modern linguistics, remarked, the very notion
of linguistic meaning depends on differentiation of signs, i.e., on variance
("apple" is different than "pear" as a matter of the English language,
not horticulture, and speaking through this realization is termed "metalinguistic
awareness," the awareness of language's semiotic character - that it is
a system of signification apart from the things it signifies).36
A noun-based language necessarily gives a somewhat different view of the
world than a verb-based language, and perfect translations, as that "gentle
deconstructionist" J.B. White shows, are impossible.37
In English one may say "it's raining"; in Hebrew "the rain is coming down."
In English "it's hot," in French "it's doing hot," in Hebrew "hot." If
we are talking differently about the world - and we are - then we must
be constructing different world-views as we go. These world-views become
ideological (a notion further discussed below) once they underline normal
talk: for instance, in the quotation from Shelly above, the reference
to the masculine case "man" is given as the standard or general case of
"human", other forms of denotation being derivatives.38
Through communication we may "inhabit each other's world" to formidable
effects of sharing, but the prospect of a perfect, universal system of
representation and communication is not attainable.
Linguistic pluralism is enough of a challenge to communication, but a
fragmentation of the Kantian categories of reason - a plurality of irreducible
and only partly translatable world-views - seems a much more complex challenge
to communication. Diversity does not challenge communication on account
of faulty or imperfect competence, but as a matter of imbedded "linguistic
ideologies," the grammatical infrastructure that underlies every language.39
Some linguistic variances may indeed seem minor, but language is saturated
with content, an ideological content at that. Every descriptive utterance
makes a claim, a response to the questions "what counts?" and "what, of
all the possible ways to talk in any given context about any given state-of-affairs,
counts?" Kant's critique of pure reason - the notion that knowledge is
shaped by necessary modes of cognition from which concepts emerge - was
universal: all rational agents shared reason's building blocks such as
causality, space, time, quantity, quality, number.40
Power and politics were sidelined, but in a pluralistic world
of interests, passions and power, discourse is shaped by contingent, not
universal, factors that are inherently political.
In different discursive contexts we ask, e.g., who counts by default
as a paradigmatic person and who is alienated by standard linguistic practices?
Who gets to determine what the "normal language," the standard, correct
linguistic approach is in different social contexts?41
Language has become, instantly, political. Using language is no more merely
a matter of signification, a relation between a system of signs and signified
"things." While language may function partly in this representational
capacity, it has come to be seen primarily a matter of communication and
also of power. Of communication because, as Jürgen Habermas put it in
his dialogical notion of "discourse ethics," an initial level of consensus
and cooperation - "inhabiting the other's world" and addressing her
qua human - is not merely required in any linguistic exchange but
is universally implied by the very act of communicating with the other.42
Meaning and performance are not analytical definitions of clear-cut "sense
and reference"43
or performances of preordained "procedures,"44
respectively, but ongoing, dynamic intersubjective practices: they
are determined through-and-by practice and linguistic exchange, not presupposed
by them.
Michel Foucault implicitly rejected Habermas' notion and worked to examine
the modes by which language-as-power is both free of any "discursive-ethical"
presuppositions and yet does not merely respond to the social sphere,
but shapes it.45
Francis Bacon's famous dictum, "knowledge is power," is put on its head:
it is not presupposed, representational and referential knowledge that
empowers social agents but power relations that frame what counts and
validates knowledge in different historical settings. Discourse itself,
Foucault and his followers argued, is a shifting structure of power: who
gets to speak? What do we speak of, and how? What counts as knowledge?
Whose voice counts and how did it get that way? How do such classifications
as between normality and perversion, health and sickness, sanity and lunacy,
lawfulness and criminality, emerge in history, not as a matter of language
"capturing" by reference any "natural" distinctions but as a matter of
shaping and determining discourse in an eternal play of multiple power-centers?46
An ideology of representation frequently obscures language's manipulative
functions and the ways in which it constructs itself: language users appear
to refer to, and thus represent, some "transcendent facts" about the world
while actually manipulating concrete contexts through the manifest (and
often innocent, if not entirely benevolent) representational claims ("manipulations"
here should be read in its technical sense, one not necessarily subject
to intentionality).47
Language, in Nietzsche and in Foucault, does not merely work within a
presupposed cultural framework but is the main agent through which the
cultural framework is shaped, in and through a history of use. Performativity
- doing things with words - thus refers not merely to acts or "moves"
within a presupposed language-game (e.g. naming or marrying), but also
to linguistic acts that construct the language-games as well as the consciousness
that follows from them.
Representationalism becomes an agent of obscuring rather than informing:
social agents perform through manipulations of language that purports
to represent extra-linguistic "facts" - i.e. outside the scope of choice
or action of the speaker - while actually constructing speech on its grammatical,
ideological and denotational levels. Yet, such non-linguistic realities,
if we take the linguistic turn seriously, cannot be talked about: reality
is only accessible through language and what we call "the world" is not
the "totality of facts" as in Wittgenstein's Tractatus Logico-Philosophicus
but the totality of talk.48
The age-old distinction at the bases of representationalism between word
and object (to play on the title of a seminal work by Quine),49
mots and choses (to play on Foucault),50
should be reinterpreted in performative terms: the way we talk about things
constructs the things.
To an extent building on the Sapir-whorf hypothesis, 51
knowledge is no longer a mental representation but a social, intersubjective,
mostly institutional construct Epistemological idealism, relativized and
somewhat turned on its head, has found its performative agent as well
as its engine: language frames reality through a semblance of representationalism
in an ironic play of power and domination. The problem with language is
not that it lacks the power to represent things, but that its power is
almost too strong: it constructs its object(s) and is arguably an out-of-control
cultural and political play of masks. Indeed, some of the most significant
work done by feminist, race and critical legal scholars aims at exposing
domination whereby ideological biases and political bents codified by
ostensibly neutral, procedural, liberal or formal language (while not
mutually-exclusive, these are different categories).52
What, in turn, of legal language? For legal realists such as Oliver Wendell
Holmes language is what manipulates a legal agent - notably a court -
to act in a certain way. Whether language pretends to represent something
(such as legal doctrine) may be useful, but that is not its specifically
legal usage: in court, claims of representation are one more mechanism
of rhetorical manipulation. This observation takes us away from representationalism
and through rhetoric to the most fascinating aspect of language, its use
for doing things in the social world.
Throughout the years, like a clandestine society
guarding a secret heritage, lawyers have preserved the rhetorical paradigm
while not fully professing it. For in the histories of legal process,
even when the judges of old were the decision-makers who counted, language
belonged to the lawyers. All lawyers do in courts of law is linguistic,
and lawyers always thought of language as being primarily a device for
manipulating courts to distinct courses of action.53
In the modern era, the relationships between players and language in the
legal game has shifted. To a growing degree and in several key areas of
practice, judges seized language, through a process of textualization,
as this class intensified its institutional production of canonical texts.54
Official court reporting came into the world, both co-existing with and
replacing the reports based on documentation by agents of commercial publishing
houses, as was the British custom of yore.55
Lawyers are social agents with limited power to use performative language
in the sense in which a judgment rendered by a court is performative (a
performance that in modernity has taken on a textual form, namely an "opinion".)
In order to seize that language, lawyers must pass through the courts
and the judges, must infiltrate textuality. The principle itself is not
entirely new, only intensified: quite early in Western history the legal
canonical text ceased to be identified with the guild of Cicero's heirs
in favor of Sir Edward Coke's siblinghood of judges. Legal language, in
the generic form of the judicial opinion, made its appearance on
the stage of history as a text. These texts cannot be understood
by means of either representationalism or rhetoric alone, for they do
not represent action, they are the action; and they do not merely
manipulate agents to act by way of persuasion, they do so by constituting
a validating reason for action, namely, a command. The performative
paradigm gave both representationalism and rhetoric such a twist as
to alter them forever.
According to the performative paradigm, the basic unit of speech is not
a such-or-such grammatical entity (such as a word or a sentence), nor
is it conceived in terms of meaning, whether according to semantic or
pragmatic or other approaches. Speech is an act, and language is
something you do things with. Representing facts is one thing you
can do, but you can also promise, swear, assert and otherwise constitute
reality rather than merely report it. When I say, in proper settings,
"meeting adjourned" or "I name this ship the Titanic," I do not
represent a fact and I do not merely manipulate others do act in some
way; I create a fact in the world, a reason for action, in Razian terms:
the meeting is adjourned, a ship is named.56
These facts can afterwards serve as reasons for action - the gatherers
will go home, the maritime agent will use the name for denotation - but
that is generally true of facts of the world.
It is also true that as a by-product a speaker may simultaneously report
the act she is performing.57
Of course, that reality will be of a peculiar nature, for you cannot -
other things being equal - effect nature in the comfortable way in which
Joshua commanded the sun to linger over the endangered Giv'on.58
Barring magic - the radical performative action that through the ages
served many a legal function - the realm of performative language is the
social, normative world. Norms are special in that there is an important
sense in which they are available to us only through language, but that
does not mean that they are "merely" linguistic entities. The descriptive
"rules" that report natural phenomena (e.g., "law of gravity") are also
accessible only through formulations and while these formulations certainly
are linguistic entities (such as the equations describing gravity), nature
itself is not. Norms, too, exist in a non-linguistic sense: if you owe
me five dollars, that is a fact - a social, normative fact - even if its
effects and implications depend upon the language that describes it and
the ways in which it is interpreted by a community of interlocutors. I
will not renounce the debt if, in the historical ways in which semantics
changes, the phrase "X owes Y five dollars" no longer refers to an obligation
of payment.
The Oxford philosopher J.L. Austin was the first to provide a more or
less comprehensive discussion of the performative paradigm. According
to Austin's colorful tongue, "when I say 'I do'… I am not reporting on
a marriage, I am indulging in it."59
Language thus conceived has a constitutive role in both maneuvering in
as well as shaping the social universe, and language users do things with
language somewhat like they do things in general. To promise, according
to the performative paradigm, is akin to chopping a tree: these are both
acts, and both constitute facts, one a physical effect, the other a normative
effect. Yet there is an important difference, in that chopping a tree
is not done with signs, and therefore arguably needs no interpretation.
Everything done with language consists of manipulation of signs - phonetic,
textual, body gestures etc. - so the constitution of speech acts, unlike
some other acts, is dependent upon interpretation.60
This, then, is perhaps a good place to examine, in the context of this
study, the reception and interpretation of communicative acts and how
their meaning depends on their understanding as being representational,
performative or rhetorical.
Let us take this inquiry of the interpretation
of performative acts - in this case, promises - to a faraway, Norwegian
wood, where Peer Gynt and Solveig enjoy the kind of domestic bliss they
were denied in Ibsen's existential drama.61
Peer has just returned to the solitary hut after a day's labor (given
Peer's tastes, this example appears to be a counterfactual). Solveig greets
him and asks how he has employed his time. "Why, I've chopped down a tree!"
he answers, pointing to the object in question, which he barely manages
to carry behind him. "Have not" - Solveig indignantly replies - "I see
no trunk, only branches and needles; this will never do to warm our home
in the chill of the night. Furthermore, it is green and will not burn
well. "'Tis not a tree at all." Peer is furious. "I never knew you
wanted it for burning, anyway" says the impractical youth. "But you promised
to bring a tree! Did you not utter the very words 'I'll be bringing a
tree when I come back'? Thus did you promise, and consequently I spent
the day building a hearth for it, which is now useless" "Aye, those words
I said, but that was merely an expression of my inclination on the method
of passing the time of the day, not a promise at all. And anyway, a tree
it is!"
Solveig and Peer do not agree on two things (at least). One, is whether
or not Peer has performed the act of delivering a tree (a representational
question). The second is, whether or not he committed himself to doing
so by performing the speech-act of promising (a performative question).
Additionally, Solveig, relying on Peer's utterance, treated it rhetorically
- as a reason for action, something that persuades her, in reliance, to
take on a complementary task. They both agree that some distinct words
were uttered (a "rhetic" act, as it were), but for some reason that does
not settle the issue. In the matter of the tree, the word "tree" seems
important, but the agreement on the word is not an agreement on representational
meaning. Solveig's act of requesting a tree was made in a particular communicative
context and for a particular reason (in the sense of purpose or
interest ). In that context a tree must be something that burns lengthily,
and anything else is not a tree, botanical classifcations be damned. Indeed,
Solveig relies on this context to do the work of constituting the meaning
of her speech-act. Peer, ever engaged in daydreaming of grandeur and distinction,
missed that point. He is a forest man, and trees are those tall evergreens
that the forest holds in abundance. They are very pretty, Peer thinks,
and so he chops one down for embellishing their home. The trunk is but
a colorless, heavy bulk. The branches, on the other hand, are beautiful
with their fresh green needles, and so he brings his tree home to Solveig,
and both will freeze for it at night.
What about the promise? I think that the interpretation of whether Peer
performed an act of promising or not should be approached in a similar
manner: that is, relying on communicative context to do much of the work
of constituting the performative effect. The constitution of a speech
act, thus, cannot be wholly dependent upon the words employed, nor on
the intentions of the person who performs it. Like other acts, one may
attempt to do one thing, and in reality (fallible as we are) do the other:
context does its work whether we aim for it or not, correctly predict
it or not. One might attempt to promise, marry, curse, name a ship, say
the truth or sing the Blues, yet fail. The failure may be due to a speaker's
incompetence or ignorance (e.g., making a wrong assumption about what
singing "the Blues" requires, or what is true, etc.), yet many times a
speaker will find that failures are due to an interpretation she did not
expect because the interpretation is a separate performance that does
not depend on her anymore. The outcome might be that, unwillingly, Peer
has indeed performed a different physical act than he promised. That act
is real and valid as any he may have intended. It seems that interpreting
is a performance very much dependent upon context and conventions, and
even when it does attempt to treat language as a representational
device and uncover intentions (as it may do but is not confined to doing),
it is the outcome of the interpretation that matters in social interactions,
whatever the actual, historical intentions were. Communication thus takes
on a life of its own.
Moreover, the speech act interacts with its normative medium (which is
the relevant "context" in the case of performatives) to produce a normative
fact (such as an obligation) or a state-of-affairs, arranged according
to Hohfeldian matrices.62
Indeed that is the manner in which the common law understands speech acts.
In the infamous case of Bardell v. Pickwick, Dickens, with all
his contempt for the law, quite accurately captured his times' revolution
in the law of contracts, from a subjective "meeting of the minds" rationalistic
doctrine to an interpretative, intersubjective one that looks less to
the intentions of an utterer in performing a speech act and more to an
interlocutor's right to rely on a "reasonable" interpretation of it. 63
The formation of a contract was no longer subject to an inquiry of mental
states - "I did not intend to promise," as Peer says - but to the conventional
interpretation of the communicative acts of the parties, whether
characterized as "conduct" or "language" ones. In so called "private"
law, espeicailly where parties' liability on their antagonists' determental
reliance on commicative acts is sometimes seen as the normal if not the
underyling strcuture of all claims64
- courts increasingly shift from factual questions of the mold "what
has occrred?" to the normative one, "how is a party entitled
to rely on any given comminicative act?" The representational and
reconstructive approach to facticity becomomes instrumental in a tacit
translation to a language of claims.
We may observe how this analysis of law as discourse and as practice finds
expression in legal pedagogy and initiation. Law professors and other
agents of legal instruction, direct and indirect ones - professionals,
peers, colleagues, antagonists - surf the translation from a language
of facticity to that of normativity, from cases to doctrine to policy,
a nonlinear movement of abstraction and subsequent "applications."
First-year law-school classes tacitly follow this mold. Professors initiate
students into the facticity/normativity shift rather than explicate it,
train and lead discussions through it rather than make it explicit. The
pattern of discourse is played out rather than becoming an object of discourse.
The metadiscursive elements - e.g., the question how the language through
which law is conceptualized shifts between facticity and normativity -
remain, by and large, in the background. More advanced classes or advanced
stages of first-year classes may approach the metadiscoursive framework
of facticity-to-normativity more directly, not merely working through
the discursive structure but making it the object of discussion, as well.
For instance, an instructor teaching a basic contracts or torts class
may still pose to her students such facticity-reconstructing questions
as "what was a party's intention? What did they do?" only to
shift to ones regarding the normative effects of the reconstructed facticity:
"What claim may emerge from this narrative reconstruction?"
The open question, "How is the move from particular facticity to
general normativity performed?" is, to a large extent, the beginning
of what "learning to think like a lawyer" means, even before
engaging students in more advanced performances such as "application"
of norms to factual states-of-affairs or the challenges of policy arguments
(the priority is ideological - pedagogical and discursive - but not rigidly
sequential or temporal).65
In common law systems in particular - and where the Socratic method is
intensively employed all the more - instructors typically begin a course
of study with particular cases, emphasizing an ideology of facticity;
but as classes advance discussions tend to abstract from cases, as various
policy arguments, theoretical frameworks, and textual interments of doctrine
and codification are gradually introduced.66
Arbitrarily-chosen cases are then transformed from narrative and facticity
to archetypes, while some are reduced to mnemonic devices for memorizing
and invoking portions of doctrine, or a theoretical ambiguity, rather
than textual portions of reconstructed facticity given to normative "application."67
Interpretation is no longer merely factual but normative, and any claimed
difference between interpretation and application is gradually revealed
as a mirage.68
Let us now return from legal pedagogy to the role of performative language
in both carrying out legally-significant acts and their conceptualization.
In the normative universe persons generally have the power to create certain
types of norms - obligations and rights, etc. (that is why contracts,
wills, torts etc. are usually classified as areas of "private law"
- not because they deal distinctively with individuals, but because their
ontology is of discrete persons that are the source for norms, rather
than one based on positions of authority, such as a legislature, administrative
agency or other "public law" body). Let us be introduced to
Ed, who at one time wishes to present Suzanne with a gift, a wonderful
Cézanne purchased in that auction at Vince so long ago. Being a
contemplative person, he ponders the situation and concludes that in some
way he inhabits a position that enables him to change several peoples'
normative universes - their arrays of normative relations, such as duties
and rights - and to that he refers as a power. For one thing, he
is about to give something away, thus renouncing any "title"
to it and creating rights concerning that object whose new bearers did
not hold prior to the act. Ed may decide to give away the coveted painting
under condition that it be exhibited some of the time at the local YMCA,
and both Suzanne and the "Y" will suddenly have rights and obligations
they did not have before, pertaining to the object, to each other, and
to third parties.69
However, there is potential trouble: Suzanne may refuse to accept the
gift, whether conditioned or not, and thus exercise what we may term (following
the legal theorist Wesley Hohfeld) an immunity from Ed's power of giving.70
Instead, she may offer to buy it, or co-found a corporation to which it
be transferred, in which she and the museum will hold half of the shares
save one each, and Ed will keep the remaining two shares to decide possible
disputes; and so on. However, whatever they choose to do, they will do
it with language. Language does not represent action, it thus performs
it. Nor does it serve merely as a rhetorical device to drive or motivate
players to designated action. Language does not (or not merely) report
or describe reality (cf. the representational paradigm) - nor is it used
just as an instrument of persuasiveness, as a device for manipulating
others, themselves inhabiting positions of power, to act (cf. the rhetorical
paradigm); rather, it primarily constitutes reality. To be precise,
it will constitute realities of a specific nature: those of the social-normative
universe.
the normative universe people generally have the
power to create certain types of norms - obligations and rights, etc.
(that is why contracts, wills, torts etc. are usually classified as areas
of "private law" - not because they deal distinctively with individuals,
but because their ontology is of discrete persons that are the source
for norms, rather than one based on positions of authority, such as a
legislature, administrative agency or other "public law" body). Let us
be introduced to Ed, who at one time wishes to present Suzanne with a
gift, a wonderful Cézanne purchased in that auction at Vince so long ago.
Being a contemplative person, he ponders the situation and concludes that
in some way he inhabits a position that enables him to change several
peoples' normative universes - their arrays of normative relations, such
as duties and rights - and to that he refers as a power. For one thing,
he is about to give something away, thus renouncing any "title" to it
and creating rights concerning that object whose new bearers did not hold
prior to the act. Ed may decide to give away the coveted painting under
condition that it be exhibited some of the time at the local YMCA, and
both Suzanne and the "Y" will suddenly have rights and obligations they
did not have before, pertaining to the object, to each other, and to third
parties.63
However, there is potential trouble: Suzanne may refuse to accept the
gift, whether conditioned or not, and thus exercise what we may term (following
the legal theorist Wesley Hohfeld) an immunity from Ed's power of giving.64
Instead, she may offer to buy it, or co-found a corporation to which it
be transferred, in which she and the museum will hold half of the shares
save one each, and Ed will keep the remaining two shares to decide possible
disputes; and so on. However, whatever they choose to do, they will do
it with language. That language does not represent action, it performs
it. Nor does it serve merely as a rhetorical device to drive or motivate
players to designated action. It does not (or not merely) report or describe
reality (cf. the representational paradigm) - nor is it used just as an
instrument of persuasiveness, as a device for manipulating others, themselves
inhabiting positions of power, to act (cf. the rhetorical paradigm); rather,
it primarily constitutes reality. To be precise, it will constitute realities
of a specific nature: those of the social-normative universe.
In litigation (which is not exhaustive of legal practices but only the
one most exposed to mass media), lawyers hold very restricted performative
powers in the sense described above. The genuine masters of the performative
functions of language are the judges, or juries, who use it within the
context of institutional power. Their language creates and unmakes normative
facts. While many things that matter to people happen in courts, institutionally
what matters primarily is the judicial or jury decision. To get a
piece of the performative cake, the lawyers resort to the rhetorical paradigm
and try to manipulate judges and juries to apply their institutionally-mandated
performative language in accordance with the interests they represent.
This depiciton is far from complete because, in addition to their rhetorical
roles, trial lawyers do posses some performative powers, while judges
and even juries, on top of their performative roles, use language to both
represent and persuade the multiple audiences they confront. Language is thus
said to be multifunctional: it anchors meaning, it performs, and
it reflexively reaffirms and at times alters the conventions of its own
use and its own structure (a level denoted "metapragmatic" by the linguist
and anthropologist Michael Silverstein).71
Juries may even produce texts, such as when they are asked to render a
Special Verdict or a General Verdict Accompanied by Answers to Interrogatories.
In the former case, juries are required to "return only a special verdict
in the form of a special written finding upon each issue of fact."72
In the latter case, the court itself submits written queries on matters
of fact and "direct[s] the jury both to make written answers and to render
a general verdict."73
However, it is erroneous to consider the verdict as strictly performative
and the answer as wholly representational and rhetorical because in cases
where the verdict obviously does not follow from the jury's own statement
of fact, the answers may control the verdict (as long as they are consistent
among themselves).
It is not surprising that in common law cultures, contemporary legal theory
focuses less on the somewhat abstract concept of "Law" as it does upon
the actual practices of courts and other legal institutions. This empirically-inclined
approach, which falls under the general heading "legal realism" (it is
one perspective of legal realism, not the exclusive one), is perhaps still
best represented by Oliver Wendell Holmes, according to whom the "Law"
is not a code or a set of rules but, essentially, no more than what the
courts end up doing.74
The lawyers, who always suspected if not fully believed this, see it as
their business to maneuver the courts - rhetorically - to act -
performatively - in ways agreeable to the interests they represent.
Of course, the game has metarhetorical rules (or strategies), a central
one being that effective rhetoric should mask as representational speech
- that it be delivered in forms of assertions about the law "saying" or
"being" so-and-so, that the evidence "shows" such-and-such, etc. It is
not what you say that matters, but what you achieve by saying it. The
lawyers' influence on the normative universe qua lawyers is typically
indirect; they manipulate the holders of the institutional, performative
power, who are the courts. In the rhetorical function of their performance,
trial lawyers echo the ancient sophists' challenge, to which representational
knowledge of doctrine, rules, precedents and most everything else that
is so exactingly taught in law schools is subject: "What is there greater
than the word which persuades the judges in the courts, or the senators
in the council, or the citizens in the assembly, or at any other political
meeting?"75
A schematic rendition of the lawyer's view of these linguistic interactions
is presented in the following figure.76
It is paramount to emphasize that even a non-critical, "professional"
lawyerly approach to language will not take the following distinctions
as linguistic categories, which - as functional designations -
they indeed are not. These distinctions are offered as the salient
linguistic aspects of language-use in typical legal interactions.
The multifunctionality of all these interactions and the senses in which
all speech acts are performative are explored below, where I examine how
law's drive to rationalization requires obscuring even these functional
delineations.
Figure 1: A classification of linguistic function in litigation
| Speaker------> |
{rhetorical-----> manipulation} |
Hearer/Agent -------------> |
Action |
| Litigant/Lawyer (and in jury trials,
instructing judge) etc. |
inter alia involving, or masked
as, representations: of facts,
legal doctrine, moral argument, etc. |
Judge, Jury |
performative
in respect to a normative/institutional medium |
Before concluding, I wish to examine another deeply
entrenched medium for performative language, one that nevertheless concerns
legal practices in intriguing ways. For this let us go to Genesis 1,
where the role of language in the creation of the world is every bit as
fascinating as the act itself and goes back to the original and most radical
act of creation - that of making being over nothingness through an utterance.
"And God said let there be light and there was light": What exactly did
the biblical God do when he pronounced his first and most radical fiat?77
How was it possible for him to use a word for "light" prior to the creation
of light? Before there was something for the word "light" to refer
to, not temporally and contingently as a historical matter, but as a matter
of ontological impossibility? And why did God choose language, of all
means at his omnipotent disposal, to create a world? Why not just will
it? And what can be the relevance of this radical narrative to conceptions
of such apparently-distant linguistic performances as the practice of
trial litigation, forming contractual relations, and writing this text?
In the Biblical creation narrative, the performative paradigm is employed
to break down the distinction between the "natural" world and the social,
normative one. Is that a definition of mystical action, the ability to
blur distinctions by use of performative language? Other puzzles demand
our attention: "God said" - why did he have to actually pronounce
the words? What need for articulation to perform in the service of an
omnipotent will? Why was there a need for language at all? After all,
what the creator sought to perform was doing something (such as
chopping a tree), not saying something (such as talking about it
or manipulating someone to do it).
The world could not have been created by physical means because physical
mediums (such as space and time) and physical stuff (such as matter and
energy) are parts of the world, and these by definition did not exist
prior to creation. "All things were made by Him; and without Him was not
any thing made that was made."78
There was existence - God existed - but as what latter-day physicist may
term by analogy a "singularity," not as a generally applicable principle.
His was an act of radical creativity: he did not form the world
from pre-existing stuff, as several European myths narrate (e.g. the Greek
and the Norse ones) but created it over utter nothingness
save his own existence. That is the radical aspect of Biblical creation,
and the reason that it cannot conceive of any mean other than an act of
will for creation.
Yet, puzzles concerning the role of language appear to persist. According
to the Biblical narrative, the language of creating existed prior to creation.
"The Word" - the divine principle later incarnated according to the Christian
narrative79
- was not the only thing that existed "in the beginning," as the word
or concept "light" preceded the phenomenon (however, did not the Biblical
God create the concepts as well?). Thus the word "light" could not have
been accounted for by anything we understand by a theory of reference
(and according to radical creation it could not have a sense, either)
because as far as concepts can be said to "exist" they too were not yet
created. Should not we then put the emphasis on "let there be
light"? Armed with our arsenal of talk about language we now realize that
this is not a puzzle that concerns representation but performativity.
The linguistic performance created the entity. When God "said" (sic. "let
there be light") He did not "talk" - the emphasis here is not on articulation
- he acted. It was the performance of creation, not one of reference
or representation, that is the point of the first speech-act ever uttered.
80
Thus, interpreting the Biblical narrative on its own terms requires the
hermeneutics of the performative paradigm of language, albeit applied
here to different realms then the social-normative one usually associated
with it.
When did God lose the monopoly over blurring the distinction between the
Natural and the Social is probably impossible to determine. Humans practiced
magic from times immemorial (and still do); and that is what magic is
precisely about: linguistic manipulations that effect realms other than
the social-normative. For a short while, let us play along with the uses
of magic as manipulation of power on this premise (that is, not as a mere
superstition reducible to psychological explanations). Certainly, we are
more used to external points of view that rationalize what some people
refer to as magical practices. We explain them in terms of psychology,
sociology, politics, economics, literature and so on.
Interpreting social practices is tricky - and magic is a social practice,
even if it presumes to involve natural and supernatural forces in those
aspects of human life that are generally understood as social. The interpretation
of social practices differs from understanding natural phenomena mainly
in that we attempt to understand something that is already pre-interpreted
by the practitioners themselves. This observation does not mean that we
must accept their views, but we must realize that their interpretation
is part of the phenomenon we examine.
On the rising slopes of mount Kiliminjaro in Kenya lives the Chagga nation.
The anthropologist Sally Falk Moore recounts how, when a Chagga person seeks
justice from another (such as compensation for an injury or the return of
an object of contested ownership), she may go to a Kenyati civil court,
or to a local chief's court, but she can also engage in a self-executing
procedure, which consists in casting a ritualistic malediction on her antagonist.
81
The curse is conditional: it will take effect unless the other party redresses
the wrong that the curse indicates. The linguistic formula consists usually
of calling upon spirits to avenge the wrongdoing. If the cursed party has
no blame, she will be immune to the spirits' malevolence and could not care
less for the curse. If, however, she considers herself subject to the malediction,
she will most probably contact the maledictant and negotiate the removal
of the curse. The practice has a political dimension too: finding recourse
in magic and refraining from relying on an institutionalized court is also
an enhancement of one's autonomy and personal power, even an act of defiance
and sometimes resistance directed at institutionalized power. Among the
Chagga (although not everywhere where magical practices are used for dispute
resolution) not very much is needed to engage in ritual malediction. The
language is ritualistic, but the vocabulary, given the context, is rather
ordinary, and every competent adult is capable of performing it (of course,
to different levels of formidability). No "professional" competence is necessary,
and so no lawyers are required.
The relevant point for our discussion is realizing
the centrality of performative and rhetorical functions in "legal" malediction.
The rhetorical paradigm is absent (according to the internal point of
view) because the "plaintiff," so to speak, does not need to persuade
anyone of the merits of her case. Her antagonist, it is assumed, knows
of her own fault or innocence (this may be true, I think, only in rather
simple disputes). Nevertheless, a strong rhetorical performance may intimidate
and drive a person to consider the risks she is taking by her opposition;
it may be instrumental in negotiations for compromise. Representationalism
fades into the background, as producing evidence while addressing the
spirits is unnecessary because unlike judges they are omniscient and will
not adhere to an unfounded claim.
How do lawyers use language, and what happens to
them in law school, in terms of initiation into a discourse and a practice?
Whatever the precise answers to these questions are, they cannot be confined
to either of two prevalent lay conceptions: first, it is not the case
that legal language is predominantly representational in that it signifies
rules and other normative or legal entities; and second, it is not the
case that it is predominantly rhetorical in the narrow sense of partisan
persuasion. In both functions, whether a lawyer attempts to make an argument
that the law "is" such-and-such or that an authorized agent should act
in a given manner, performative functions of language are applied. This
application is the case even when the speaker, whether novice or veteran,
is unaware or vaguely aware of the various performative aspects and effects
of her performance. Those, I think, are best described in terms of linguistic
ideology and the ways in which it shapes legal discourse and responds
to law's typical modes of justification and rationalization.
82
As an example, consider the so-called "Socratic method,"
so prevalent in law-school instruction. Under this technique students
are examined - "grilled" is a term often used - on both matters of facts
and doctrine relating to case assignments.
83
The instructor’s relentless questioning pilots the student towards a single
acceptable answer, formed in a single acceptable terminology.
84
While the instructor performs speech-acts that on a surface-level are
questions, she frames the surface-dialogue in a monological sense, discarding
contributions that do not fit neatly into the pigeon-holes of the discourse
into which legal inductees are expected to be initiated. This kind of
instruction is rarely about pluralism or creativity: it is about the ability
to give a pre-conceived account of an interaction (e.g., a case) in a
pre-conceived language. The emphasis is on representation, almost to the
exclusion of other linguage functions but not necessarily because law
professors consider representationalism more salient in legal argumentation
than rhetoric or performativity.
The Socratic method is used mostly in first-year classes: it is supposed
to induct students into a representational approach to rhetoric. In other
words, the ideology here is that a good i.e., acceptable or rhetorically
effective legal argument is, 1) representational (“the law/fact is such
and such,”) 2) fulfills the felicity conditions of talk that is rhetoric-as-representation,
namely, true in the sense that it is acceptable to the court as
a description of a state-of-affairs, whether legal or otherwise. “True”
here must be conceived in a generally non-referential manner, one that
would be acceptable to Gorgias or Protagoras: it is a criterion for acceptability
within the legal practice, not an assertion about states-of-affairs outside
it.
The standard of representational acceptability does not relate a-priori
to matters outside the courtroom, although claiming such a relation may
prove a potent rhetorical strategy. Courtroom language is fascinating
in that it is both highly positivistic — arguments about what the law
“is” may seem preferable to those framed in terms of what the law ought
to be — yet referential only in the limited sense of what it attempts
and manages to do in court. This complexity is at the root of many misunderstandings
about the ideology of legal argument. On the one hand lawyers are blamed
as opportunistic rhetoricians concerned only with “winning” a case, on
the other as naive positivists who talk about law and factual reconstruction
in rigidly positivistic language. The fracture between the two linguistic
ideologies contributes to their image as mercenary speakers with little
if no integrity or discursive consistency. Whether integrity is to be
found in any other sense in legal discourse, this image is unfounded.
Lawyers care about effective rhetoric, but legal institutions force them
to make representational assertions, governed by constraints of relevance,
coherence and narrative conventions, for the former to count as rhetorically
effective. Basing rhetoric on facticity either by lawyers or judges
is a primary constituent of law’s mode of justification and hence of
rationalization.85
It is the skilled rhetorician whose claim is accepted on factual grounds
that the case or the law is such-and-such. Litigators may care for representationalism
only as far as it propels their argument, yet they are constrained by
the institutional norms of the legal discourse in framing their arguments
mostly although not exclusively, in representational language. Even
Daniel Webster, faced with an impossible case “on the facts” relating
to his miserable client, reverts to factual argument concerning human
nature.86
Merely telling the court that it should perform in such-and-such a manner
may ring well outside legal practice-as-discourse, yet within it a certain
form of positivism reigns. The basis for action is framed in factual language,
even when the object of facticity is a norm.
The Socratic method does not merely tell or preach this brand of positivism:
it recreates a context for students to perform on the ideology, take part
in it and assume it. Later during the students’ training, this approach
will be further developed through workshops, moot court competitions and
the like, alongside doctrinal classes. Whereas advanced students may encounter
instruction contexts that encourage and require more advanced rhetorical
skills, the ideology of facticity-as-rhetoric remains the most salient
aspect of legal-linguistic performance.
The linguist Michael Silverstein analyses linguistic performatives in
what we may term “surface” and “deep structure” functions or "consecutive
functions".87
Surface performatives are largely akin to Austin’s illocutionary acts,
the strict social-action sense of “doing by speaking” in such acts as
promising, ordering, naming, etc. Some surface performatives are less
obvious than others and more dependent on context: recall that Peer Gynt,
in the above example, denied performing a promise, instead claiming to
have made a descriptive assertion of his inclination an ostensibly non-obligatory
speech-act, unfortunately upon which Solveig relied. Other performances
are even less transparent and are sometimes analyzed as “indirect speech
acts,”88
where the semantic content of an utterance is pragmatically (i.e., contextually)
transformed into a different performative act. For example, the utterance
“can you pass the salt?” in the context of a dinner is more likely a request
and not a question, and repetitive requests for strong condiments at the
dinner-table may amount to an expression of discontent with the quality
of the food."Interactional" performatives, according to Austin, are purely
conventional and presuppose what he termed "procedures" - the recognized
social conditions for performing them (e.g., the correct manner of marrying
according to the Church of England doctrine and the necessary and sufficient
conditions that marrying presuppose).
89
As non-obvious as the communicative function of some performative utterances
is, deep-structure or "constitutive" performatives tend to be even less
transparent to both casual and discursive speakers. Through the linguistic
interaction, speakers frame what Bakhtin called the “general language”
of the interaction: the correct verbal approach to talk of the matter
at hand.90
"Constitutive" performatives - more precisely, the constitutive-performative
function of certain portions of speech is quite correctly characterized
as metalinguistic, because their particular function is to constitute
the first-order language of the linguistic interaction. What is the phraseology,
imagery, vocabulary and grammar that are appropriate for the given linguistic
exchange? As any such choice tacitly responds to the question surrounding
what matters and what aspects of social reality are the salient ones for
this interaction, this talk. Clearly then "constitutive" functions of
performatives are at the core of the metalinguistic notion of linguistic
ideology.91
All discourses are presupposed by linguistic ideologies, including legal
talk and legal pedagogy. At time the ideology surfaces as when "constitutive"
performative functions become the object of talk, as in "politically correct"
language or shifts in social relationships. Consider, e.g., the awkwardness
that seems to perpetually underscore shifts from equivalents of "thou"
to equivalents of "thee" in languages that maintain the distinction, as
documented, ridiculed, and admired as a vehicle for rich interpersonal
expression by Thomas Mann in The Magic Mountain.
92
Linguistic ideologies frame the Socratic method's approach to facticity
and to the relationship between representationalism and rhetoric. By pressing
a certain ideology of legitimate talk, the Socratic method is performative
in Silverstein's second, "deep structure" sense, which does
not merely serve utterers in performing speech acts but constitutes the
language and discourse in which such performances may be undertaken. Thus
all institutional, and probably all discursive talk, is performative in
its meta-claim that such-and-such is the acceptable language in which
to perform in the "surface" sense, where the distinctions between
rhetorical, representational and performative speech may be functionally
(but not morphologically!) observed.
The focus of this discussion
is the normative universe (of which law and legal discourse are subsets),
which means that normativity is the relevant phenomenon, irreducible to
either mental or linguistic constructions. If a person holds a right or
claim to a certain object, that in itself is a fact of the case as much
as anything else about that object that it exists, that it is green,
that circumstances exist that do not allow that person to exercise her
will in accordance with the extent of the right she holds, etc. Rights
are intersubjective facts they depend on discourse and emerge from it
but that is their nature qua normative facts, not a reductive
critique of their phenomenological status. Nevertheless, I fully accept
that communicative apparati and linguistic interactions (broadly conceived)
are the typical, if not sole, agents of action, in the normative universe
in general and in law in particular. How is this possible? How can language
be the medium through which phenomena that are not reducible to linguistic
terms are constituted and manipulated? Only a complete, intersubjective
theory of performative language, freed from the confines of standard speech
act theory and its confinement to intentionality, may address that concern
a project yet to be undertaken.
A main theoretical claim employed in this article is that the paradigms
of language examined are aspects of language’s multifunctionality
and that according to all three, speech acts work in dependence on the
social context of their inception, which in turn constitutive of their
normativity. Although several studies of legal language refer to
this claim, they largely fail to analyze what linguistic performance
exactly does in those contexts, instead concentrating almost exclusively
on different approaches to linguistic meaning.93
The question addressed here was, in what sense rhetorical, performative
and representational linguistic acts are distinct, not morphologically
but functionally, i.e., how meaningful legal language-segments perform
in different modes even though the performance cannot be attributed to
single or distinctive linguistic units alone when speech acts are not
so-called “morphologically differentiated.”
This essay largely followed a phenomenological approach, according to
which linguistic paradigms are not mutually-reducible. Interesting efforts
that follow different strategies e.g., to ground performativity in representationalism
(by some philosophers) or in rhetoric (by some literary theorists) - are
at best brushed by here, not because they do not matter but because they
respond to a different question, namely “what is it about language that
allows for these functional paradigms to work?
94
No doubt, every scholar of language will have chosen somewhat different
sets of dilemmas and examples to discuss. This essay makes very modest
claims as to what the proper canonical components of the study of social
language are. It uses discussions of language to present three linguistic
paradigms as aspects of language’s multifanctionality, with perhaps
some priority to performativity when social action is considered.
95
By “performativity” I meant something distinct enough to claim for its
relative independence from rhetoric, yet argued that performativity is
intimately connected with normative media and with interpretation, even
when the basis for interpretation is not representational (e.g. the fact
of a promise versus its content). Not less significant, language is performative,
but intentions or designs or the will are not; and like any intentional
action, language operates in the world in modes that may or may not concord
with the intentions or will of its speakers. Even the omnipotent Biblical
God did not create a world merely by willing it and resorted to speech
acts. At least in this we are made in his image - or he in ours.
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