3.7.3 The discourse of law (research essay)

The discourse of law is an extremely complicated topic that has many sub discourses and is influenced internationally. However, when studying the discourse, one may wonder if there is one set way of studying the topic. There is no one way of studying the topic because there are so many variations within the discourse of law. One of these variations include topic of law, the type of law that one studies has its own sub discourse, this is to say that criminal law and contract law are very different than each other in both practice and language used, so one should not study different sub discourses together, as the differences between them are quite stark. Another one of these variations is international law, from country to country around the globe laws are very different and have very different motives, so one should also not. However, there are some general tendencies that most agree on. One of these tendencies is that these discourses change. Whether or not one looks at the overall discourse of law, or a smaller sub discourse, they change for many different reasons. 

In order to look at a specific literacy one must understand discourses by itself. One article that discusses the idea of discourses is “What is Literacy?” by James Gee. He addresses the fact that discourses are fluid. Discourses are changing all the time, this can be due to many things, such as culture, advances in the field, and changes in language. So, when there are changes within the culture of a country that influences the laws, which in turn changes the discourse of law. One of these changes is a change in language. When language changes over time as new concepts and words come about, so do laws. This is because changes in language affects the entirety of that language. The author also says that some discourses carry a social power with them (19). This is very applicable in the case of the discourse of law. The ability to use the discourse of law gives that person power because they can then manipulate laws, which in turn affects anyone who must abide by those laws. Gee says that another aspect of discourses that is important to understand is that discourses are resistant to change from within (19). This applies to laws as well, unless something changes in the world, the laws will not change. This is because discourses can only move forward as a whole. Discourses are fluid and always changing and because of this they cannot regress. Gee says one of the most important aspects to understand about discourses is that there are many sub discourses within discourses (18). For example, in the discourse of law there are many different practices such as trial law, patent law, and contract law would all be sub discourses underneath the discourse of law. There would also be sub discourses beneath those sub discourses. Gee also says that discourse should not be compared (18). This is because all the different discourses have different ideologies and reasons for those ideologies that they hold. This is to say that every discourse is so specific that they cannot be compared to one another. Overall, discourses are a very complex topic that can span across any topic. These discourses are always changing because the world around them changes.  

One author that explores this idea is Jeanne L Schroder in the book The Four Discourses of Law and Arthur Jacobson’s Legal Premium. In this book the author discussed four main sub discourses underneath the overall discourse of law. These sub discourses are university discourse, analysts’ discourse, hysterics discourse, sexuation and non-correlation. University discourse is the study of law in an academic setting. This is meant to help teach new lawyers; however, this can be used in a professional setting when studying cases. The analysts’ discourse is mainly used in a professional setting when discussing a current case that they are working on. One distinction that the author makes between this discourse and others is that it is the sub discourse that uses spoken language the least. Schroder says, “The analyst addresses the analysand through an absence of speech (42)”. They are saying that when looking at law through the lens of the analyst one must first look at texts. This is because in order to analyze something in the discourse of law one must look at past laws and documents and then elaborate on your analysis. Also, in most cases the analysis is put into written form. This written analysis is often studied in the university discourse. So, university and analysts discourse have some overlap in their uses and practice. The hysterics discourse studies the common usage of law language and how it is perceived and used by the general population. All of these discourses work together in order to form the overall discourse of law. All of these sub discourses work together to form the overall discourse of law and are interdependent on each other in terms of their evolution and changes. For example, the way people are taught about the law is dependent on the way that it is used at that time, both professionally and in common usage. Also, common usage effect the professional usage of language in the workplace. All these different discourses work together in order to change the overall discourse of law and the other sub discourses.  

In the article “Is ‘Global Value Chain’ a Legal Concept?” by Klass Hendrik Eller the author discusses how the globalization of business is changing the discourse of law. This is because it involves many different discourses around the world need to come together in order to make global business happen. These different discourses come from the different laws and regulations that they need to work around. These different laws and law systems come together in order to create a global business. The author says that the Global Value Chain, “need[s] to be understood as organizational arrangement and simultaneously as a stage in the evolution of a global political economy (Eller)”. This reflects the fluidity of discourses. When a new discourse is being formed, it originates from other discourses coming together. A common misconception is that discourses can come from nothing and one day they exist. However, every new discourse is derived from other discourses. This is because nothing is ever truly original, it is always derived from a preexisting concept. For example, for the relatively new concept of a global value chain is not new, it is a compilation of many other discourses that already existed. The new discourse is not just a bunch of discourses shoved together, but it has many nuances and wrinkles that the earlier ones did not have. So, while the discourse may not be completely original it is distinct. The author also says that the Global Value Chain is not, “a ‘legal concept’ in a strict sense that might command the application of particular rules, I propose to understand them as a ‘legal heuristic’(Eller)”. This is saying that this new discourse of global business does not have rules that you must follow. It more has guidelines, and everyone who can use this discourse can have their own interpretations. For example, a lawyer from the US would have a different understanding and interpretation of laws than a lawyer from Japan, however these are both valid interpretations. Due to the fact that these different lawyers come from different legal systems and therefore different discourses, they are analyzing these from their own knowledge of the law, which is different. So, because there are different understandings of the law there will be different interpretations, but both are valid. The idea of the global value chain and its formation relates to Gee’s argument on discourses when he says that discourses are resistant to change from within. This is also applicable to this because without changes in global business there will not be changes within the discourse. Without changes in international law regarding business and trade there will not be changes in the discourse.Overall, there are always emerging fields and discourses and the process that goes into that is extremely complex. As the globalization of business continues to span across the globe so will the concept and discourse of the Global Value Chain will follow.  

One of the backbones of discourses as described by Gee is that discourses carry social power with them. This concept is explored within the article “Power of discourse in free trade agreement negotiation” by Yan Wang. In the article he explores real world applications of how countries use discourses in order to “win” free trade agreement negotiations. Since different countries have different laws for international trade, they all have their own specific discourse. In free trade agreement negotiations leverage is power. So, whoever has the power usually gets what they want in these negotiations. Wang theorizes that one way that one can get power in these negotiations is to negotiate out of your own discourse. This does not only mean that they would be speaking in the language that one party uses, but they will also be controlling the rules that are set. Some of these rules might be certain restrictions that one country has that another doesn’t, this gives the party that is using their discourse a distinct advantage. This is because they know the ins and outs of the laws and regulations that they put in place, while the other party wouldn’t know them as well. Wang says, “To enhance rule control, the US and EU have chosen their Free Trade Agreement partners, designed the Free Trade Agreement rules, and offered offensive-defensive exchange strategically”. The first step that the US uses is picking their partners in these negotiations. They usually try to pick trade dependent countries so that they more than likely have to follow the US’ discourse for free trade agreement negotiations. Wang says another tactic that has been used in order to get leverage in these negotiations is template contracts. The US develops a template contract that spells out all the rules and regulations that need to be followed by the party that is trading with the US. With these template contracts, the US automatically gets the free trade agreement negotiations in their discourse. One of the major issues that arise with these are when they cannot target trade dependent nations, such as China. Not only does China have a larger market than the US, but they also have very different laws. So, in these cases China usually has an upper hand in negotiations because the other countries must adapt to their discourse due to the state-owned corporations. This can also be extrapolated to other discourses of law. One example is trial law. One reason that the prosecution goes first in the proceedings is because they have to prove, in civil cases, that the defendant is guilty beyond a preponderance of the evidence. This means that they would be more likely than not guilty. So, the prosecution gets the first and last word because they need to prove that the defendant is guilty. So, because they need to prove something, they get the first word, so the jury hears their side first, and the defense must work in the discourse of the prosecution to refute those claims.  

In the article “Language and the Law” by John Gibbons he discusses the law and how language is used in law and how language influences law. Gibbons breaks up the discourse of law into two distinct sub discourses, grapho-phonic and lexico-grammatical discourses. The grapho-phonic sub discourse consists of the text that makes up the laws and even the judge’s instructions to the jury (Gibbons). The lexico-grammatical includes the spoken words and syntax of the discourse of law (Gibbons). Gibbons then goes into how the language of the law changes over time. Gibbons says,” The development of the language of the law thus reveals 1) the move from speech to writing, 2) specialization and technicality (e.g., legal dictionaries), and 3) the use of power”. The author says that in the move from text to speech there is an evolution of language used in the law. This is because when one reads case law the cases use a very complex language, so when a lawyer reads this and has to convey this to a jury, they need to put it in terms that they would understand. In that translation the truest meaning may be lost. This is because in case law they use verbose language, but it is also concise, and it means exactly what it says. So, when it is translated some of that meaning is lost. However, if that case is nullified through trial the fixes that they make may not be one to one, as the original message was lost. This is how language evolves through the move from speech to writing because when those changes are made the language evolves. Another factor in the evolution of the discourse of law is specialization. When new specializations in law come about, such as global business and trade, the laws and language of the past do not directly apply to the new discourses. So, the new specialists need to take the old language and laws and adapt them to the new specialty. When this transfer happens, the language evolves for not only that discourse, but all the discourses.  

In the article “Discourse Analysis in a Legal Context” by Roger W. Shuy the author explores the idea of discourse analysis as a tool that can be used in a legal context. The usage of discourse analysis first arose from the use of a wiretap. In a case a wiretap had been used to try and get incriminating evidence on the defendant, but they also took a video of the encounter. The prosecution had a “smoking gun line” where they had gotten him to confess to the murders. However, the videotape of the conversation showed that he was out of hearing distance and the party wearing the wiretap had whispered the question into the microphone and the defendant was responding to a completely different question. Shuy says, “This case opened the door for discourse analysis in many other criminal cases over the years”. This is because discourse analysis could be used in the future. This case opened the door for analysis of the conversation could be used with the use of the wiretap. The transcript of the tape may look very bad for the defense, but when the defense is allowed to use discourse analysis to contextualize the conversation that often helps their case. This is because language is an extremely complex discourse with many nuances. These nuances usually arise during speech. The different ways that people can say different words brings a whole new meaning to the words that may not be shown when written down and read as a transcription. The sub discourses of written and spoken word are very different than each other and when something that was spoken is written down some of the original meaning can be lost. This is extremely important that this idea can be explored within a courtroom. The purpose of the courtroom is to give justice to both parties, and unless one can explore the way that something was said it may be unfair to one of the parties and justice will not be served. One field that addresses the use of discourse analysis is voice analysis. With the new technology that is arising throughout the world in terms of computers and an increased ability to manipulate videos and recordings discourse analysis is an increasingly prevalent field within the field of law. The author says that discourse analysis is used to analyze whether a recording could have been spliced together. This practice of using discourse analysis is usually used in defamation cases. When the suing party presents a tape that they believe was manufactured and applies to slander or libel they will use a discourse analyst in order to determine if it did indeed meet the qualifications for slander or libel. One of these qualifications are whether or not the statement was asserted as a fact or whether or not it was an opinionated statement (Shuy). Overall, the discourse of language is extremely complex and there are many nuances that need to be analyzed if language is used within legal proceedings.  

In the article “The Relevance of Discourse Analysis to Legal Practice” by Rosemary Huisman she tackles the idea of how language changes and are changed by the discourse of law. She starts by saying that discourses are “Language as social practice, determined by social structures” but they also determine social structures. This relates to Gee’s point on the fluidity of the discourses. Not only do the discourses get affected by the changes in culture and language but the discourses also change culture and language in return. Huisman goes onto say that, “The use of specifically legal language, marked in its lexical choice, reinforces the institutional separateness of legal practice from general social practice”. This relates to Gee’s point on the power of discourses. The author suggests that the use of specific legal language creates a divide between the people who use that language and the general population that does not. However, it is possible that it is not simply the words, but the connotation that has surrounded the terms used in legal practice. Laws have one inherent purpose and that is to restrict people. So, laws are viewed as restrictive and the language used within the laws are given the connotation of a restrictive word. Also, lawyers are the people who are in charge of understanding, writing, and changing laws. So, as people who change and write restrictive documents are viewed, by a vast majority of people to control them. The connotations that arise from the nature of laws and the people who write them may reflect the, “the institutional separateness of legal practice from general social practice” as Huisman says.  

In the Article, “Discourse Analysis of Legal Discourse with Reference to Dickens, Cozzens, Kafka, Lee, and Melville” by Heba Enien they look at the differences in language used in law in different countries around the world. Enien came to the conclusion that in the discourses of English, French, and Arabic legal systems much of the language used is similar in denotation and connotation. Enien says,” the legal discourses of these languages are greatly similar in their contents of laws, being tools of social (in)justice and control”. This means that this because laws have the same nature no matter what country they are in, to control justice or injustice. Many times, these laws have similar goals, such as murder laws, or burglary laws. So, they would have similar ways of saying exactly what is illegal and what is not. The reason that the laws have similar language is that at the end of the day, words have definitions, and the law tends to use absolute language, or words with absolute definitions. These words with absolute definitions span across many different languages and cultures and in many cases are in language used in laws. The words themselves are not but the same concepts and definitions show up throughout the laws in these many different countries. The author does talk about how in the verbal aspect of the legal discourse has many variations that can be brought about stress on a word or inflection of the voice. They make the distinction between the written and spoken discourses of law because they are very different. These verbal and written discourses also play off of one another and influence each other. The spoken word may get put into the law and the law can be read aloud in a courtroom which would then affect the law if it is amended. There are many different discourses around the world and many of them have common through lines that many of them share. 

Overall, discourses are a very complex topic. In the case of the discourses of law, there are many similarities and differences within the topic. While the contents of all of the sub discourses may be very different, many of them have similar structures. Most of the discourses have some things in similar, such as, an everchanging nature, the ability to influence other discourses, and many carry social power with them. However, there is not one set way that one should study discourses. Every discourse has their own nuances and beliefs that they developed by themselves. While other discourses may influence the ideas of another discourse, this does not mean that these two discourses are the same, or that they should be studied together. But one thing that is constant throughout all dialogues is that they are always changing over time and they are not only influenced by other discourses, but by culture and language as a whole. 

Works Cited 

Eller, Klaas Hendrik. “Is ‘Global Value Chain’ a Legal Concept?” De Gruyter, De Gruyter, 7 Apr. 2020, www.degruyter.com/view/journals/ercl/16/1/article-p3.xml.  

“What Is Literacy?” Negotiating Academic Literacies: Teaching and Learning Across Languages and Culture, Routledge, 2008, pp. 51–62.