Chapter 3: Literacies across the disciplines
3.7.1 The discourse of law (synthesis)
English 102, October 2020
Law is an extremely dense topic, with a lot of subcategories and topics of study. However, one thing that runs through all of the practices of law is the language used in laws and in the courtroom. There are many different forms of law that are practiced almost everywhere around the world. These different forms are called sub discourses and are smaller, more specific subsets of a larger discourse. The discourse of law has many sub discourses. However, the overall language of the law has a lot of implications. A word used in criminal law can have a different meaning than when it is used in contractual law. However, in the dictionary it may mean something entirely different. This is why it is so important to study the discourse of law, because it is so complex and impactful.
The first thing that must be done is to identify what a discourse is. A discourse, in James Gee’s “What is Literacy?” he explains it as, a group’s use of language on a certain subject that is mostly accepted by others (18). This has a lot of implications, he then says that this use of language comes from a lot of different places, the use of the language carries ideas, values, and viewpoints with it and it is reflected in the language (19). So, this means that discourses on law will vary from country to country and that cultures values will be reflected in that discourse. For example, American law is more than likely to be very different than Japanese law. The law and language used, though there may be some overlap in words used, carries a different meaning and context. Gee also states that when using the discourse, you give it a voice, infuse it within your own personal values, beliefs, and culture, and ultimately change the discourse as you use it (20). This can be seen easily within the discourse of law. For example, the differences between the constitution and modern-day laws written is stark, the language, ideas, and values are very different. This is because throughout the three hundred years that the United States and its people have been practicing law things have changed such as the language and ideals that people use. Gee also comments on the social power that comes with discourses (19). The discourse of law is no doubt an example of one of these discourses. Many people who are decision makers and people in power do have the discourse of law.
Within the broader discourse of law, there are many small subtopics within that larger discourse. In this article by B.V Bhatia they closely examine the different subtopics of law and how they add to the overall discourse of law and how the subtopics interact with each other. V.K. Bhatia starts her article by explaining that the study of linguistics for law has been a recent development. She then goes on to say that these developments are not because of any recent development in the study of linguistics, but it is due to the developments in the study of law. She makes distinctions between these two different developments As V.K Bhatia says in her article, “Language of the Law”, there are two basic ways to break down the discourse of law, through the spoken word, and through the written word (227). It is important to make the distinction between these two methods of communication because within them there are even more categories and usages. Along with this there are specific words and discourses for each of these categories. Within the spoken discourse there are some uses, professional, academic, and professional; within the written discourse there is academic, judicial, and legislative (227). This relates to Gee’s argument about the person using the discourse giving it a voice and ultimately changing it. Depending on the situation and circumstances that you are using the discourse of law the meaning and usage of things changes. One would not use the same language used in case law to explain something to a jury, a lawyer would use regular nomenclature in order to convey the message to the jury. That some person would not use the language they used to explain something to a colleague as they would to a jury. The use of the discourse changes the discourse on a day to day basis.
The discourse of law is everchanging and there are many subcategories within the larger discourse of law. John Peter Gibbons starts his book Language and the Law with the idea of common law. Gibbons says, “there has never been a time since the Norman conquest when the English of the law has not been in tune with common usage” (i). He starts off with this idea because it highlights the malleability of the language of the law. It is always changing and cannot be stopped. He shows that the language of the law is far from in its own bubble and is resistant to change. He embraces this and says that is necessary(ii). It is necessary for a few different reasons. One being that new times come with new language and new problems to deal with. For example, if the language of law was kept from the Norman conquest, how would laws about texting and driving be written. For new eras, there are new ideas, new values, and new things that need laws that would not be able to be written if the language of law did not change. This is why it is a necessity for the language of the law to change. This relates to Gee’s point when he talks about how discourses are everchanging because of ideas, values, and individual usage. These two authors are explaining the same idea in different ways. While Gee talks in generalities, Gibbons hones in on the particular topic of law and shows how and why that discourse changes. As John Peter Gibbons says in his book Language and the Law there is not one set discourse of the law, there are so many subcategories that are each changing in their own ways and that each specific discourse only speaks for itself and there is no broad discourse of law that can be studied (14). This relates to Gee’s “What is Literacy” when he talks about sub discourses. He says that every person has their own specific use of the discourse; he also says that institutions are built through buildings and books, but bodies of knowledge are everchanging and is not institutional (18). These relate because both establish sub discourses and acknowledge that for each discourse there are more discourses within those. This is a crucial component of understanding discourses, for every discourse there is always a subset of that one. Another crucial component that they both acknowledge is that discourses are always changing and are never stagnant.
The two previous authors have shown how language of the law is everchanging and have taken a more holistic approach to the discourse of law and all that it entails. However, the next author, Justin Richland, takes a more direct approach at the language of the law. He looks at the real application of the language, how it is used every day in and out of the courtroom. He shows how certain terms, phrases, and practices have come about in law. He says in his article “Jurisdiction, Grounding Law in Language”, there is a gap between the strict discourses of written, spoken, and legal actions. He also says that in many instances these fall in the gap between the three discourses (228). He is saying that even though there are certain words, phrases, and actions that are specific to these sub discourses underneath the overall umbrella of law, however in more times than not these are overlapping ideas. So, rather than show that these are all distinct discourses like the previous articles studied, Richland decides to highlight the similarities between the discourses and how they work together to make up the larger discourse of law. This relates to Gee’s argument when he says that discourses carry ideas and values with them. These different discourses carry the specific words with them and when the different sub discourses meet, they form the larger discourse of law. These different discourses all have their own uses and nuances that the other ones do not. This is why it is extremely hard to look at the overall discourses of law; because while they may share some words, all these different sub discourses have different applications and meanings for the same word. So, it is hard to accurately study the discourse of law.
Law is an extremely complex discourse that has many different implications. One word can have many different meanings depending on the context that they are used. These definitions are also changing all the time. Gee says that bodies of knowledge cannot be institutionalized and are always changing. This is very true for the discourse of law as it is used constantly around the world in many different forms. It is very difficult to look at an overall discourse of law because of how many sub discourses there are. So, one needs to look at sub discourses in order to fully understand the law. This is because the same word may mean different things in two different discourses. The law is impactful and important in society today, and it is important to understand how to interpret the discourse of law.
Bhatia, V. K. “Language of the Law.” Language Teaching, vol. 20, no. 4, 1987, pp. 227–234.,
Gibbons, John. Language and the Law. Longman, 1994.
Richland, Justin B. “Jurisdiction: Grounding Law in Language.” Annual Review of Anthropology Vol. 42, 2013, www.jstor.org/stable/43049299?Search=yes&resultItemClick=true&searchText=language+in+law&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dlanguage%2Bin%2Blaw&ab_segments=0%2Fbasic_search_SYC-5462%2Ftest&refreqid=fastly-default%3A7c2f0c804a1bacd6fca0a011f2df3c31&seq=13#metadata_info_tab_contents.