Word of the Law

Word of the Law: Approaches to Legal Discourse

Dennis R. Klinck
Copyright Date: 1992
https://www.jstor.org/stable/j.ctt7zt3g0
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  • Book Info
    Word of the Law
    Book Description:

    Approaches to legal discourse.

    eISBN: 978-0-7735-8284-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. iii-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgements
    (pp. xi-xiv)
  4. 1 Introduction
    (pp. 1-7)

    Ezra Pound once remarked that when one is young, one concerns oneself with style. Paradoxically, when I was young and a student of literature, I did not think of myself as being very interested in style, but now that I am not so young and a student of law, I find myself writing a book largely devoted to style.

    One reason for this change is my growing (and perhaps self-serving¹) consciousness of “significant form”² or “presentational meaning,”³ of the fact that “FORM COMMUNICATES”⁴ — largely the result of my being wrested from one discursive universe into another.

    Perhaps I can elaborate....

  5. 2 Language and Thought
    (pp. 8-45)

    When asked what he would do first if invited to administer a country, Confucius replied: “It would certainly be to correct language.” He went on to explain:

    If language is incorrect then what is said does not concord with what was meant; and if what is said does not concord with what was meant, what is to be done cannot be effected. If what is to be done cannot be effected, then rites and music will not flourish. If rites and music do not flourish, then mutilations and lesser punishments will go astray. And if mutilations and lesser punishments go...

  6. 3 Language and Signification
    (pp. 46-86)

    In Book Three ofGulliver’s Travels, Jonathan Swift has his narrator, Lemuel Gulliver, describe some of the projects being carried out by professors in the School of Languages at The Grand Academy of Lagado. One of these was:

    ... a Scheme for entirely abolishing all Words whatsoever: And this was urged as a great Advantage in Point of Health as well as Brevity. For, it is plain, that every Word we speak is in some Degree a Diminution of our Lungs by Corrosion; and consequently contributes to the shortning of our Lives. An Expedient was therefore offered, that since Words...

  7. 4 Interpretation
    (pp. 87-132)

    Any legal scholar oblivious to the claims that have been made recently for “interpretation” (or, as it is more popularly known, “hermeneutics”⁴) in law would have to have been in a state of anaesthesia for the past ten years.⁵ Thus, for example, Ronald Dworkin has written that “legal practice is an exercise in interpretation not only when lawyers interpret particular documents or statutes, but generally.”⁶ And Gerald Bruns asserts that “law is not only asortof hermeneutical discipline; rather, it can be taken as exemplary of what it means to understand and interpret anything at all,”⁷

    Such claims are...

  8. 5 “Legal Language”: Structure, Function, Expectation
    (pp. 133-170)

    In Part IV of Swift’sGulliver’s Travels, Gulliver describes the English legal profession to his Houyhnhnm “Master”:

    I said there was a Society of Men among us, bred up from their Youth in the Art of proving by words multiplied for the Purpose, thatWhite is Black, andBlack is White, according as they are paid. To this Society all the rest of the People are Slaves . . . .

    It is likewise to be observed, that this Society hath a peculiar Cant and Jargon of their own, that no other Mortal can understand, and wherein all their Laws...

  9. 6 Rhetoric: Structures of Argument and Discourse
    (pp. 171-207)

    In preceding chapters, I have considered some of the problems inherent in what has been called “the formalist and essentially patriarchal myth of a determinate and univocal language of legal authority.”² That “myth” is said to involve among other things, characterizing legal reasoning as a kind of “demonstration”—that is, deducing from certain premises conclusions dictated by logical necessity.³ Among the problems sometimes said to inhere in such a model are the following. First, the data or premises of the law are not facts, which are supposedly capable of empirical verification, but values, which ostensibly are not. Thus, the basic...

  10. 7 Legal Diction
    (pp. 208-251)

    In Chapter 5, I outlined some general considerations that should be kept in mind in discussions of “legal language.” One of these was the “lexicogrammatical” or formal features of legal discourse. I promised, in that chapter, to go on to consider in greater detail what some of the formal features characterizing legal language might be. And, in Chapter 6, I referred toelocutioas one of the elements in the classical rhetorical account of discourse, again promising to discuss in detail its two major aspects — diction and syntax. This takes us to what might be described as an inquiry into...

  11. 8 “Syntax”
    (pp. 252-290)

    In Chapter 7, I discussed aspects of selection in legal language: characteristics of what is commonly regarded as typically legal diction, possible motivations for this kind of selection, and its rhetorical consequences. I move now to the subject of combination, or “syntax,” which, as Bolinger notes, means, etymologically, “a putting together.”² As I have already mentioned, diction and syntax are not always readily separable. With reference to an expression like “His contention is . . . ,” a discussion of the word “contention” may be largely lexical: the word itself has various features (it is a noun, latinate, and polysyllabic);...

  12. 9 Narrative
    (pp. 291-334)

    In recent years there has been a growth of interest, among those concerned with discourse analysis, in narrative. As Seymour Chatman some time ago observed, “[t]he study of narrative has become so popular that the French have honored it with a term —la narratologie.”²But this interest is not limited to professional students of discourse: it seems to have become trendy for intellectuals of diverse types to interlard their discourse with the word “story” — as if to suggest that everything is narrative.³

    In this chapter, I propose to outline some aspects of the recent preoccupation with narrative, to discuss some...

  13. 10 Metaphor
    (pp. 335-370)

    Wayne C. Booth is just one writer who has remarked on the contemporary upsurge of interest in metaphor. Writing in 1978, he facetiously observed: “I have . . . extrapolated with my pocket calculator to the year 2039; at that point, there will be more students of metaphor than people.”⁴ This wide interest in metaphor is attested by the presence of many anthologies on the subject,⁵ and by extensive bibliographies.⁶ In law, too, it has become not uncommon to encounter commentary with the word “metaphor” in the title.⁷

    Why this burgeoning interest in metaphor? There are, as we shall see,...

  14. 11 Critical Evaluation of Texts
    (pp. 371-407)

    In his essay “Criticising the judges,”⁵ Robert Martin characterized the writing of the late justices of the Supreme Court of Canada Rand J. and Laskin C.J.C. as “abysmal,” On the other hand, he points to the “grace and felicity” of the judgments of such jurists as Lords Mansfield, Atkin, Reid, and Denning.⁶ And, in a reversal of the accustomed pattern of academics criticising judges, we find a judge commenting on the style of an academician’s writing in the Honourable Samuel Freedman’s observation that “every page” of a book introducing the Canadian legal system “is written in clear, simple, translucent prose.”⁷...

  15. 12 Conclusion
    (pp. 408-412)

    To the extent that my book is an “introduction,” it is inconclusive. It is a series — not exhaustive — of explorations, of questions, of tryings. And, as I said in my introductory chapter, part of its tentativeness lies in its use of many idioms, or languages. Perhaps what ties it together, ultimately, is the broad theme that language is important to law, and that thinking about legal language from various perspectives might give us greater insight into that universe of discourse that is the law.

    In the course of an undertaking like this, which extends over several years, one inevitably grows,...

  16. Bibliography
    (pp. 413-440)
  17. Index
    (pp. 441-458)