Abstract
Language of law is traditionally expected to be unequivocal, but in legal practice, it is far from being so ideal. The problem, generally, does not stem from poor legal drafting (although it sometimes does). Rather, openness to interpretation is inherent in legal discourse, and, as the authors of many chapters in this volume demonstrate, multiple ways of interpretation lead to contradictions and arguments in the course of adjudication and administering justice. In Chapter 12, Vogel poses a question that can be used as an epigraph to the volume as a whole: ‘How can we make legal interpretation more transparent?’ (p. 289). The answer to this question bears little optimism if we take into account all the pragmatic and linguistic hindrances that stand in the way of performing legal practices and that have become objects of scrutiny in this volume. Contributors to the volume argue that a wide range of factors cause opacity of law and require considerable inferential work: dependence of legal interpretations on contexts, chronological changes and fluctuations of legal meanings, cultural gaps in legal translation, flexibility of legal categories that appear as a result of collective work over an uncertain period of time, intertextuality and interaction of a legal text with a larger body of law, susceptibility of judgements to political influence, contradictions between dictionary definitions, and lexical and structural imperfections.
The words ‘inference’, ‘implicature’, ‘context’ and their derivatives are used frequently throughout the book. Although adopting different theoretical approaches and practising various methodologies on heterogeneous data that come from German, Canadian, English, American, Russian, Chinese and other legal backgrounds, the contributors are unanimous in that they ‘see meanings as invariably context sensitive’ (Makmillen and Fee, p. 234) and that ‘legal meaning is a pragmatically-conditioned category’ (Vlasenko, p. 249). These assumptions along with the basic claim that ‘legal work is work within texts and language’ (Vogel, p. 288) mark the pragmatic turn in law. In the concluding chapter, Stein offers a very rational explanation why law, unlike other sciences, has not been affected by pragmatism so far. He claims that a set of beliefs about language as a stable system with fixed rules – ‘no variation, no change, one form, one meaning, forever’ (p. 341) – forms the standard language ideology in the domain of law, which becomes threatened by ideas of flexibility and context-dependence.
The pragmatic approach, however, does not automatically mean better and fairer justice. For instance, Olsen (Chapter 9), whose paper is embedded in the framework of feminism and critical legal studies, illustrates rather convincingly that the pragmatic approach to law is a double-edged sword: in some cases, the freedom of interpretation boils down to choosing formalised modes of reasoning instead of resolving the conflict between an abstract principle and substantive justice.
The volume develops a pragmatic approach to law also in the sense that the contributors not only theorise, but they attempt to resolve very practical problems with a view to improving legal systems. Horn (Chapter 2) proposes a taxonomy of deception, Liao and Sun (Chapter 3) examine cooperation and metapragmatic control in the courtroom, Allot and Shaer (Chapter 4) offer a classification of sources for underdetermination in law, Schneider and Zielasko (Chapter 8) distinguish between the concepts of insulting and abusive behaviour, Condello and Arapinis (Chapter 7) discover analogies and similarities in legal reality while Vlasenko (Chapter 11) and Makmillen and Fee (Chapter 10) explore the usage and reliability of dictionaries in the legal sphere. These are some of the applied issues critically considered in the book.
Indisputable advantages of the volume, as I see them, cover a few principal aspects. First, all the contributors take up the challenge to explore a real, nonnormative picture of language in law and discover the sources of conflicts and inconsistencies in it. Second, it states explicitly that law is inherently opaque and subject to numerous ways of interpretation, and this changes the traditional perception of legal language as capable of delivering straightforward messages. From this, it can logically be inferred that ambiguity in law is inevitable and should be taken for granted. The book also shifts the focus from attempts of linguists and legal practitioners to reach ideally clear language to endeavours to construct inferences and offer interpretations that would be conducive to fair justice. Finally, the volume features elements of social constructionism, which has not been a popular paradigm within legal studies until now but for a very few exceptions (cf. Galdia, 2014, reviewed by Dubrovskaya, 2016). As Vogel puts it, ‘Both the world of norms and the world of things must be constituted by the world of texts’ (p. 289). Altogether, innovative dimensions of the pragmatic turn may have influential theoretical and practical consequences for legal studies.
The question remains whether it is possible to avoid inferential mistakes and bridge all the semantic gaps that are caused by time, cultural differences, personal biases and beliefs of those working with legal discourse. No ultimate solutions can be offered yet; however, the volume contributes to developing awareness of the challenges that professionals face when making decisions and managing lives of laypeople.
The legal mosaic from different cultures offered in the volume does not give an impression of an incoherent mixture. Rather, it forms a multifaceted picture and assists readers in understanding theoretical and conceptual issues that are culture-independent. Minor inconsistencies in specific papers are not worth listing here as they do not ruin this picture. Therefore, the book can gain international readership, including legal linguists, discourse analysts, legal practitioners and legal philosophers.