Linguistics and Law

Jeffrey P. Kaplan

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429832437
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

Linguistics and Law offers a clear and concise introduction to making sense of the law through linguistics. Drawing on lexical semantics, syntax, and pragmatics to interpret both written and spoken laws, this book:

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• addresses how to interpret legal documents such as contracts, statutes, constitutional provisions and trademarks;

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• provides thorough analyses of "language crimes" including solicitation, perjury, defamation, and conspiracy, as well as talk between police and criminal suspects;
• analyzes the Miranda warning in depth;

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• tackles the question of whether there is a "language" of the law;

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• draws on real-life case studies to aid understanding.

Written in an approachable, conversational style and aimed at undergraduate students with little or no prior knowledge of linguistics or law, this book is essential reading for those approaching this topic for the first time.

Chapter 1

Introduction

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.

1.2 The US judicial system

1.2.1 Courts

There are two main categories of courts in the US, the federal system and 50 state systems. Basically, the federal courts deal with federal laws and the state courts with state laws. Each system has trial courts and appellate courts, where a losing party at trial can appeal. Big exception: In a criminal case, the prosecution can’t appeal a trial verdict of not guilty. Under certain circumstances, a losing party in a state system can appeal to the federal system. The federal system has two appellate levels, namely 13 circuit courts of appeal (so-named because in the nineteenth century judges “rode circuit” to hear cases, traveling by horseback to different locations), and the Supreme Court, which is the final arbiter of “what the law is.”

1.2.2 Types of cases

Our system is adversarial. The idea is that the battle between two sides, each making its best argument from evidence and law, will tend to produce truth, as decided by a neutral fact-finder, a jury or judge. In a criminal case, the defendant, charged with committing a crime, is opposed by the government, represented by a prosecuting attorney. In jury trials, jury unanimity is required for conviction, using the high standard of belief by jurors that the defendant is guilty “beyond a reasonable doubt.” If the defendant is found guilty, the state will impose punishment, almost always imprisonment for a period of time. In a civil case, the defendant has been accused by the plaintiff of having committed a tort (a “civil wrong”). The standard of proof is much lower than in criminal cases, preponderance of the evidence, that is, the defendant is more likely than not to be responsible for the harm to the plaintiff. Most commonly, if the plaintiff wins, the defendant has to pay the plaintiff money (“damages”). A winning plaintiff can be awarded compensatory damages, for costs like medical expenses or harm to property incurred because of the defendant’s tort, and sometimes punitive damages, when the fact-finder (judge or jury) wants to punish the defendant for egregious behavior.

1.3 What this book is not about

1.3.1 A broad area: language and law

Linguistics and law is part of a broader field of “language and law,” which includes topics like legal interpreting; communication in legal contexts with speakers of minority languages, and with children; and laws governing language rights of linguistic minorities and policies of language planning, including educational programs like bilingual education and English as a second language. Few countries are truly monolingual, and many have large populations speaking different languages. There is a range of ways countries use law to address issues arising from the use of different languages. This fascinating area will not be addressed.

1.3.2 Author identification

Sometimes linguists consult to attorneys to provide evidence on whether some particular individual authored a certain document, or to provide evidence against that conclusion. When they do, they adduce linguistic facts, for example, occurrence of unusual word collocations, punctuation or capitalization patterns, or other possible linguistic giveaways as to identity or non-identity. Such work contributed to the resolution of the “Unabomber” case of the 1970s, 80s, and 90s. Despite the appeal of using linguistic analysis to determine authorship, there are problems, which have deterred some linguists from undertaking such work. To provide scientific evidence for author identification (or non-identification), the procedures used must be precisely stated and replicable, not just anecdotal. Replicability requires a large quantity of data, ideally lots of texts produced by a suspect author and lots of texts produced by others that are on some well-defined basis comparable. It can be hard to reach or even approach this ideal, making it hard to apply sophisticated statistical tools to provide quantified evidence. This area is complex enough to make doing justice to the various controversial parts of it impossible in a book of this length.

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...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Chapter 1 Introduction
• Chapter 2 Detention and arrest
• Chapter 3 Miranda
• Chapter 4 Understanding recorded talk
• Chapter 5 Crimes of language (and one tort)
• Chapter 6 The “language” of the law
• Chapter 7 Contracts
• Chapter 8 Statutory and constitutional interpretation
• Chapter 9 Trademarks
• Chapter 10 Conclusion
• Appendix: brief introduction to phonetics and phonology
• References
• Index