Reception and Response

Hearer Creativity and the Analysis of Spoken and Written Texts

Graham McGregor, R. S. White

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317367154
• Edition: 1
• Topic: Social Sciences
• Subtopic: Media Studies
• Index: Social Sciences

Originally published in 1990. Each of the 12 chapters in this book build upon an approach to the analysis of spoken and written texts that is centred upon the recipient rather than the producer, for the abilities of listeners and readers deserve much attention. This book should be of interest to students and lecturers of linguistics, literary studies, English, education, communication studies and psychology.

Part one
Contexts of responsiveness

Chapter one
Attending the hearing: listening in legal settings

Peter Goodrich

Introduction

The Queen Charlotte Islands form a small archipelago off the coast of mainland British Columbia. Lyell Island is the largest of the group and has been inhabited since before the Dutch and subsequent British discovery and colonization of western Canada, by the Haida Indians. The island is covered by primordial forest and its traditional economy is based upon woodcraft and fishing. In early 1985, and without consulting the inhabitants of the islands, the government of British Columbia granted a logging licence to an American company, Western Forest Products Ltd. to exploit the islands for lumber. By a variety of means, which included inserting metal spikes into the trunks of trees and a non-violent blockade, the Haida Indians prevented Western Forest Products Ltd. from commencing logging. On 6 November 1985, Western Forest Products Ltd. issued a writ naming the president of the Council of Haida nations, Chief Richardson, as defendant in an action for an injunction seeking to prevent any further interference with logging on the island. The case of Western Forest Products Ltd. v. Richardson and Others¹ came before the Supreme Court of British Columbia and was heard by Justice McKay in the following week.

At the preliminary hearing of the case, the Haida Indians appeared before the court unrepresented by lawyers and endeavoured to argue their preliminary case without legal assistance. During argument Justice McKay on several occasions attempted to persuade Chief Richardson to employ Counsel and eventually adjourned the case for three days during which time he urged the defendant to obtain representation. For the period of the recess, Chief Richardson persisted in refusing legal representation, partly on the ground of cost but primarily on the ground of not wishing to create an illusion of justice: 'the issue of our lands is too important to leave in the hands of lawyers who are unfamiliar with our people'. He was also reported as remarking that 'for whatever reason, [Justice McKay] does not want us to speak for ourselves'. It should also be noted in this context, first, that in Haida custom any dispute over land or the use of land was traditionally settled by consent, negotiation and participation rather than by adjudication, and, second, that logging of the islands threatened not simply the community and lifestyle of the Haida but their existence as a nation, insofar as its economic consequences would force large numbers of the community to leave the islands.

On the first day of the trial Chief Richardson appeared before the court in full ceremonial dress accompanied by eighteen elders of the Haida nations but without lawyers. The significance of the ceremonial dress, a button blanket, is that the embroidery on the blanket symbolically depicts both the status of the wearer within the Haida nation and also denotes the wearer's relationship to and rights over traditional lands. No comment was made as to the ceremonial dress nor was evidence allowed as to its significance. Despite subsequently expressed doubts, Justice McKay allowed Chief Richardson to speak to the court and to call witnesses. At the risk of vastly oversimplifying a court transcription that runs to over a thousand pages, the following sequence of arguments were heard - though arguably heard only in a notional sense - by the court. Draped in red and black button blankets, all witnesses called addressed the issue of the Haida's arrival in and occupation of the Queen Charlotte archipelago. Noting that the writ served on the Haida made reference, as was until recently the standard form for common law writs, to the 'grace of God', Chief Lightbrown and others retold at length the mythological history of the Haida arrival in the islands. God, whom they referred to as the 'Great Spirit and Creator', had granted the islands to the Haida at the beginning of time for their use and occupation. They had a right 'to stand on the islands' and to act as caretakers from that moment at the dawn of time when the first Indians had emerged, according to Haida legend, from a clamshell carried by a raven and dropped on the sands of the islands.

A series of further anecdotal narratives, mythologies and traditional poems were presented to the court as evidence of the ancestral claim of the Haida to the islands. Several Haida artists explained at length the character and symbolism of their art forms, of their totem poles, masks and carvings all of which also spoke to the integral relationship of the Haida to the land, of their love of it and respect for it. They had been there since time began, yet were threatened by a writ and a property right that ran only to a hundred or so years. After the island's forests had been reduced to stumps by the loggers, the intruders would leave but the Haida would remain to inhabit what was left of their destiny and their island. They would have nowhere else to go. Of the other anecdotes and histories presented the most striking occurs towards the end of the evidence, when one of the women elders sang traditional songs to the court for a full afternoon. The songs repeated ancestral legends and evidenced again that in Haida custom and art, inhabitant and nature were one; that as occupiers of the islands the Haida do not differentiate themselves from their environment but rather see their culture and community as being inextricably and intrinsically bound up in the land. She ended her songs weeping. Chief Richardson concluded his defence by appeal to natural justice, which he argued invested the Haida cause with a spirit of truth that pre-existed and would long survive any ruling as to law.

The testimony presented to the court was extremely novel in legal terms. It took the form of symbolic dress, mythologies, legends, stories, poems and songs together with more prosaic arguments as to Haida customary law of dispute settlement and land claims. Unreserved² judgment was given by the court the day after argument ended. Justice McKay observed that the court would not normally have allowed argument of the political kind heard but that, in view of the fact that the Haida had no other arena available to them, he had been prepared to listen and generously recommended that a record of the evidence presented should be kept for posterity. The judgment itself was extremely brief. The evidence presented as to the Haida title to and relationship with the islands was not legally relevant to the case being heard which simply concerned interference with a valid logging licence. In law he had no alternative but to grant an injunction and he proceeded to do so while absolving himself of any moral responsibility by remarking in time-honoured form that 'while people sometimes think that judges have the power to do what they want, they must in fact act according to law; they administrate the law but cannot make policy'. In short, although it was the only arena available to the Haida, the court was not prepared to countenance their arguments which related not to law but rather to those more intangible courts of politics, history and moral reason. In those arenas the Haida might well be vindicated and justice be seen to lie down on their side; but in the meantime the trees and their livelihood would have been prised from their lands and their nation dispersed. ³

The apparently emotive example of legal deafness presented in Western Forest Products Ltd. v. Richardson and Others is in fact no more than a vivid illustration of the procedural peculiarities and stringent evidential rules of relevance and admissibility that pertain to all forms of legal dialogue. Routine hearings for rent arrears, repossession of goods bought on credit, unfair dismissal, maintenance, breach of the peace, social security appeals or incompletely performed contracts exhibit identical disparities between expectations of audience and the reality of routine processing of claims before tribunals and the lower courts. As is reasonably accurately articulated in popular presentations of the legal community, the law, both as an institution and as a profession, represents itself as an arcane and elite pursuit. Its image of a language is that of a peculiarly legal reasoning, that of the logic of rules, and its forms of utterance reflect the idiosyncracies and inaccessibility of a language that is 'learned' in both senses of the term. In the most obvious of senses, legal dialogue is exclusory in the same manner that medieval usage of Latin was exclusory, namely that the language of legal communication is not a vernacular usage but rather a closely-guarded and professionally-governed specialist register whose lexicon and syntax reflect the historical influence of two alien, and one obsolete, specifically legal dialects (Mellinkoff, 1963). Against the background of that history it should be born in mind that before any lawyer is equipped to 'estreat recognisances', 'escheat' property, pass 'fee simples', attend to 'res judicata', counsel in 'voir dire' or plead 'ex turpi causa non oritur actio' they have applied in excess of six years to the acquisition of the language and techniques of the legal register. As the case of the Haida Indian land claim well illustrates, however powerful the arguments or cause, however justified the case in terms of natural justice or moral competence, it is unlikely to be to the advantage of the laity to speak for themselves in legal settings, they are unlikely to be heard. It is rather to their benefit to join the community of legal language and to place their civility and their fate in the hands of the profession.

It is to that profession and language, to the complex particularity of a legal audience, that the present essay will turn in endeavouring to outline certain of the more salient features of listening in legal settings. Throughout, my theme will be that irrespective of the aura of rationality and of specialism that surrounds legal hearings, they are best depicted not in terms of the law's own image, that of impartiality and the inexorable necessity of the application of pre-existent rules of statute and precedent, but rather in terms of the uneven exchange that characterizes the flawed dialogue or 'distorted communication' of most contemporary bureaucratic discourses. What underpins and prolongs the unilateral monologue of most legal auditoria is not the exquisite precision of scientific expression but is simply political expedience and the linguistic manifestation of the vested interest of economically and sexually dominant social groups.

Legal auditoria

The books of the law run to many volumes. If one includes the full panoply of historical and contemporary law in force, together with the synopses, commentaries, doctrinal and procedural writings, updates and treatises on method, it runs to many libraries. It is a literal impossibility to know the law, and even if one expended an entire existence in legal repositories, one could only ever know part of the law. While much law is available in literary form to those trained in the art of finding and reading it, it should also be observed that many decisions are not reported, and that many that are transcribed are not published but are only available in court libraries to which the judiciary alone have access. Even were one to accept for the sake of argument that the physical availability of law rendered the majority of legal rules accessible, in a broader sense the unequal distribution of legal knowledge gives the profession or community of lawyers an inevitable advantage or superiority in the forms and utility of legal discourse. In both linguistic and rhetorical senses dialogue before the law is likely to be heavily weighted in favour of legal actors, a point which I will pursue in terms of legal audience by examining first the pragmatic contexts of legal address, and second the specific linguistic forms of legal argumentation.

The image of law as a pre-eminently rational enterprise, as the inexorable application of axiomatic rules, is predicated in the main upon doctrinal systematizations of statutory law and the reported decisions of a very small number of higher courts. It is primarily upon the strength of textbook studies of a relatively small number of appeal court decisions - most notably those of the High Court, the Court of Appeal and the House of Lords —that notions of the certainty and completeness of legal regulation are derived. Invested with a high degree of ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Original Title
• Original Copyright
• Contents
• Notes on Contributors
• Introduction
• Part one Contexts of responsiveness
• Part two Listener response and communication
• Part three Responsive readers