Making sense in law: Linguistic, psychological, and semiotic perspectives.
By Bernard S. Jackson. Liverpool: Deborah Charles Publications, 1995. Pp. xii, 516. Cloth, £45.00; Paper, £19.95.
Reviewed by Glenn Frankenfield, University of Maine at Farmington (firstname.lastname@example.org), and John Frankenfield, J.D.
Glenn Frankenfield is Professor of English at the University of Maine at Farmington, where he teaches linguistics, with a special interest in psycholinguistics. John Frankenfield is an attorney in general practice.
© Copyright 1996 Language in the Judicial Process. All rights reserved.
Bernard Jackson’s book grew out of a cross-disciplinary course he teaches at the University of Liverpool, where he is Queen Victoria Professor of Law. In it he attempts to bring to bear on our understanding of the law current research in linguistics, psychology, and semiotics. Throughout, Jackson also stresses the central role of narrative in the construction of meaning in law.
The challenge inherent in Jackson’s task is enormous. The immensity of the task is illustrated by the opening chapter, which begins with a discussion of language as an abstract system; the discussion is grounded in early Chomsky, however, not current linguistic theory. Further, the linguistic examples appear to have been chosen less as heuristics for novel legal analysis than as illustrations of acknowledged problems in the language of law. Being told that a witness’s tone of voice can affect our impression of her testimony does not lead to new insight. Nevertheless, early examples illustrate the depth of miscommunication that pervades the Anglo-American legal system, e.g., legal terms that not only differ in meaning from their nonlegal homonyms, but that can themselves, depending on context, bear one meaning or more than one meaning.
Even as we acknowledge to ourselves the level of misunderstanding possible, however, we wonder whether the communication gap between the legal profession and the public is as great as Jackson claims. He makes much of the difference between legal and lay interpretations of guilty, not guilty, not proven, and innocent. It is not our experience that lay people have difficulty with these distinctions, or that professionals can ignore nonlegal senses. In fact, everyone cares about the separate meanings at different times, the law recognizes the differences, and no barrister or lawyer can neglect to address the potential merger of meanings without risk of failing to make sense to the court. To the extent that creation of narrative entails coherence achieved through the negotiation of shared meanings, this is an exemplary arena for its display.
In Chapter Four Jackson refers to recent evidence that sense construction in law is defined predominantly by the way lawyers talk about the law and negotiate its meanings with each other. After that, however, he devotes most of the rest of the chapter to a discussion of the unintelligibility of legal documents. It is not entirely clear how improving the intelligibility of legal documents is to aid the practice of law if in fact legal construction occurs primarily in conversation, though Jackson does propose that we supplement the technical precision of much legal drafting through the increased use of narrative examples. Such examples could provide the essential context for presentation to a factfinder at trial in the case of a dispute over the proper application of a statute.
Much of the chapter is devoted to lengthy textual analyses that leave the reader in the dark about how, exactly, such analyses might be applied to making sense in law. The extensive discussion of Plain English revisions of legalese concentrates on the usual culprits, e.g., passives, nominalizations, and tortuously embedded phrases. Some of the comments on the reasons for the density of legal texts are revealing; we are reminded that one purpose of legal writing is for one expert to register information with another expert, not to communicate with a client or other non- specialist. Another is to convey a sense of order and control as in the rhetorical rhythm of the truth, the whole truth, and nothing but the truth. Such remarks insightfully relate language forms directly to meanings the law may wish to express, implying that areas of legal concern are ordered and controlled, rather than fluid and negotiable.
Much of Jackson’s intention is to show us that meaning in law cannot be understood purely within the legal domain; lawyers must understand meaning within a larger domain, one that includes, but is not limited to, the legal arena. Thus, in Chapter Two, Jackson turns his attention from language as a structure to language as a form of human behavior. Here he is concerned with the construction of sense through speech acts, and he begins to move toward the heart of his argument in Chapter Five, where he discusses semiotics, the study of general theories of sense construction. We see that Jackson wants to account for the making of sense in law by examining how other disciplines–particularly linguistics, semiotics, and psychology–view the ways in which people generally engage in the construction of meaning, and we begin to understand that these disciplines share a semiotic function. When, in Chapter Six, Jackson returns to a consideration of the formal properties of language, and relates them to the importance of narrative, he makes a similar point. There he emphasizes the theme of underlying innate structures, and notes that an action bias in the narrative theory of Greimas is paralleled by various accounts of linguistic universals. It is not language that is universal, but the capacity to construct sense by various means of signification. Thus narrative is a fundamental category of understanding. We have no doubt that exposure to these perspectives constitutes valuable training for attorneys.
Many parts of the book are probably best understood as surveys of disciplines (as would be appropriate in the course Professor Jackson teaches) rather than as innovative guides to the practice of law. For example, Chapter Three focuses on sociolinguistics, the study of variations in the way people use language. Here Jackson explores meanings attached to different registers and genres by various speech communities, finally focusing discussion on power differentials in language, particularly those characteristics that purportedly distinguish men from women. The discussion is inconclusive (in the end, Jackson himself asks: “are there differences between the ways men and women construct sense?” (110)), but more to the point, there is little application of the discussion to the issue of constructing meaning in the law, except to note that women (or men) may or may not be better witnesses in court. In general, specialists who consult relevant sections to discover how their discipline applies to the law will be disappointed.
Jackson’s view of semiotics, represented in Chapter Five, is informed primarily by the linguistic branch founded by Greimas, rather than the more philosophical school of Pierce. It assumes a deep structure narrative with a subject whose goal is the performance of an action. Examples presented by Jackson suggest that narratives with a clear subject of a (stereotypically) believable action are more likely to be sustained than competing narratives with more complex subjects or less believable actions, even when the latter contain evidence falsifying the former. Jackson rightly comments that “a very worrying disjunction emerges between the ‘rationalist model of adjudication’ … and the semiotic construction of truth” (166). Such conclusions regarding the importance of narratives and particular narrative structures are of considerable significance to practicing attorneys. Even in cases where the factfinder has little or no discretion, an acceptable narrative is essential to obtain support of judge or jury. In cases where there is a serious factual dispute or a novel legal question, a strong narrative is frequently more important than the underlying legal issues. The form in which this narrative is put could be crucial.
Chapters Seven and Eight pursue lengthy reviews of developmental theory (Piaget and Bruner) in general, and moral development (Freud, Piaget, Kohlberg, Turiel, and Gilligan) in particular, and ask how we develop our capacity to make sense of rules. Some of Jackson’s suggestions in these sections are probably his weakest, i.e., that the law requires formal mental operations different from those of other professions, or that the history of legal drafting is parallel to the history of cognitive development. The surveys, however, lead to a discussion of the feminist critique of the maleness of the law, and, ultimately, the very important question of what kind of legal system we want to have. Granting privileged status either to a rule-based approach or to a relational approach to adjudication may have profound consequences. Again, Jackson raises salient issues, but discussion of them is extremely brief, while description of the intellectual background, although commendably clear, is disproportionately long.
From the point of view of an attorney who does little appellate work, the most important and useful portions of Jackson’s book coincide with situations in which he envisions the presentation of information at trial. For example, juries frequently need to assess the relative credibility of witnesses. In Chapter Nine Jackson asks what aspects of personality and emotion determine the judgments jurors make on the basis of limited information and within the constraints of the legal system. He also explores the mind-body split that seems to underlie a legal discourse in which cognition is preferred over affectivity. Not only are there courtroom constraints against emotional expression, but issues such as “loss of control” show the precedence of cognition, and imply a cognitive base for the construction of emotional sense in the courtroom. Jackson’s discussion should be required thinking/reading for trial attorneys.
The book is effective in achieving Jackson’s goal of elucidating “processes of sense construction as they contribute to the determination of fact” (16). It ends with chapters that discuss the roles of judge and jury in arriving at their approximations to the truth. Perhaps most appropriate is Jackson’s recognition in Chapter Eleven that the appearance of truth is the basis on which the factfinder will choose which narrative to trust. Thus the construction of a witness may be more important than the evidence she gives. Above all is the importance of choosing a narrative around which facts can be developed to support the requested outcome. Jackson has been successful in bringing home to us the significance of a semiotic, as opposed to a rationalist, perspective on making sense in law, hereby placing himself squarely in the legal realism school of jurisprudence.