1.1 What this book is about
Imagine being arrested. You are given the Miranda warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law…” In this quintessentially adversarial situation, you are told not only that silence is permissible but also that saying anything is likely to put you in legal jeopardy. Why would anyone under arrest say anything? But they do. A large majority of people arrested waive their right to silence, with estimates ranging from 78% to 96% (Wrightsman & Pitman 2010:157).
Imagine a less scary situation: you’ve been pulled over by a police officer. Maybe you’ve been speeding. After you have shown the officer your license, registration, and insurance card (what a relief that you remembered to put the insurance card in the glove compartment), the officer nicely says the following: “Do you mind if I look in your trunk?” Should you take this as a courteously worded command which must be obeyed, or a polite request for permission which can be refused?
In important areas, law is deeply linguistic. Not only are most laws written, in statutes and constitutions; also encoded in written language are the obligations and rights represented in contracts and wills. Most of the time, laws, contracts, and wills work fine, doing what they are intended to. But despite authors’ best efforts, sometimes these legally operative texts have to be interpreted by courts, because unforeseen situations have arisen that the texts don’t account for.
How can linguistics, the science of language, help us understand such things, and even help courts deal with them? That’s what this book is about.
In Chapter 2, we’ll use the lens of linguistics to help make sense of what happens when a person is “detained” or arrested by police. Police can detain you, without arresting you, for a variety of reasons: They may think you have committed an “infraction” such as speeding, or that you can provide information relevant to a criminal investigation. The police can ask you anything they want. In some places in the United States, you are required to answer (truthfully!) what your name is, but nowhere in the US do you have to answer much more than that, if anything at all. The police might want to search you or your car. If they don’t have a search warrant (as they almost never do, in a detainment), they need to get your permission. There are exceptions. For instance, if they suspect you might have a weapon, they can pat you down, whether you like it or not. The police know all this. Few detainees do. The police use smart conversational moves to try to get you to answer questions or consent to a search. In this chapter, we’ll look at the linguistics of police–detainee conversation.
If police have “probable cause” to believe you have committed a crime, they can arrest you. Obviously, this is much more serious than just being detained. If you are arrested, the police have to give you the Miranda warning. In Chapter 3 we’ll look at the warning and issues around it. Specifically:
- the linguistics of the language of the warning;
- the sometimes-fuzzy distinction between free and compelled confessions;
- “speech acts” by arrestees (such as requests for an attorney);
- how courts have found arrested individuals to have waived Miranda rights; and
- how Miranda has been whittled away by Supreme Court decisions.
Chapter 4 will look at the difficulties involved in understanding surreptitiously recorded conversations, for example those made when a police agent wears a wire. Such recordings can be hard to understand, because of background noise, overtalking, and the fragmented nature of conversation. These problems can give rise to misperceptions due to listener expectations or bias. Linguistic analysis can sometimes help interpret such hard-to-understand recordings. Relevant areas include phonetics (how speech sounds are produced, and the structure of the sound waves of speech), phonology (organized patterning of speech sounds), and dialectology (regional and social differences in speech). These fields can help make clear what words were said. What speakers intended to communicate can be addressed by discourse analysis and pragmatics (how what is communicated can differ from what a person literally says).
Chapter 5 will look at the linguistics of four different categories of language crimes and other wrongful acts: perjury (lying under oath about something important), a violation against the judicial system; defamation, a violation against a person (and not a crime, but a tort, something that one can be sued for); solicitation of a crime, a violation against society; and conspiracy to commit a crime, another violation against society.
Chapter 6, on the “language” of the law, will look at the words used by lawyers and the syntax of lawyerly sentences.
Chapters 7 and 8 deal with interpreting legal documents like contracts and laws enacted by government. If an operative legal document – one that does something binding – is hard to understand or ambiguous, or seems to do the “wrong” thing, how do – and should – courts handle this interpretive problem? Problems can involve word meaning (lexical semantics) and the syntactic structure of sentences. And there’s a logically prior question: Suppose what a contract or statute (a formally enacted law) says is different from the intent or purpose behind it. Should the actual language prevail, or the intent or purpose?
Chapter 9 will consider trademark law and how linguistics can help resolve, or at least help us understand, trademark disputes. Trademarks are symbols of businesses. Mostly they’re linguistic: words and phrases, often names, like “Gillette,” “McDonald’s,” and “Sony.” Not always; images and physical forms, like McDonald’s’ golden arches, can be trademarks. Sometimes the issue in a trademark dispute is how similar sounding a new trademark is to an existing one. Phonetics and phonology can help. Lexical semantics can address how similar in meaning two competing trademarks are. Trademark fights can also be about whether a trademark word has, as a paradoxical price of business success, become widely used to refer to a thing without reference to its corporate ownership, and to other similar products or services. Examples: “xerox,” “kleenex,” “band-aid,” “cellophane,” and “frisbee.” Here, grammar can help: Has the trademark become a common, rather than proper, noun, or even a verb?
Chapter 10 will summarize and look to the future.
1.4 Who this book is for, and what background is assumed
This book is primarily intended for undergraduates with no background in either linguistics or law but interest in both. You’ll get introduced to the areas of both that you’ll need as the need arises in the chapters that follow, with a bit of an introduction below to topics in semantics and pragmatics that will be particularly important. And the Appendix has an introduction to phonetics and phonology, which, if you have no background in linguistics, you’ll need for Chapter 4.
In the area of semantics, the denotation of an expression is the set of its possible referents. The referent of an expression is what a speaker uses the expression to refer to – something in the world. If I tell you “President Trump’s hand looked tiny,” the referent of the expression President Trump’s hand in that expression is – ready for it? – President Trump’s hand. Common nouns – hand, car, escalator, ladder – have vast numbers of possible referents. But none of those words has a referent until it’s used in an actual utterance. What it has is a denotation, the set of (for example) hands, past, present, future, imagined, imaginable, unimaginable but possible. Common nouns, and all words except grammatical-function words such as conjunctions (like and and or) and determiners (like a and the), also have senses, which are basically “meanings,” which you can learn from a dictionary definition or an example (“That’s a ladder,” “That’s red”).
Proper nouns – names – don’t have senses, just referents. Iowa means that state. Benjamin Franklin means that guy. New York means that city, or state; the apparent adjective and the name of an English city is irrelevant to the meaning of New York today.
Pragmatics is about context-sensitive meaning. The two areas of pragmatics that will be important in this book are speech act theory and Gricean implicature. Speech act theory is about things speakers do with language: assert, ask, thank, congratulate, promise, warn, appoint, christen, and others, but not sew or admire. Not surprisingly, asserting, etc., are called speech acts.
Gricean implicature is so named because of its originator, the British philosopher of language Paul Grice (1975). Implicatures are strongly invited inferences, reasoned conclusions about what a speaker meant to communicate. The reasoning is based on what a speaker literally said, the context of utterance, and some presumably universal expectations people have about human communication. Example: If you tell me your friend Jane has two children, you invite me to infer (that is, you implicate) that Jane has exactly two children, even though she could have three or more without your having technically lied; if Jane has three or more children, she has two, which is what you said. You misled me, but you didn’t actually lie, by implicating exactly two. The implicature arises based on the assumption that speakers are expected to provide enough information...
