Language and Power in a Place of Contingencies: Law and the Polyphony of Self-Representation

5 Studies in Language and Society 27-53 (2013)

NYU School of Law, Public Law Research Paper No. 14-03

32 Pages Posted: 5 Jan 2014 Last revised: 12 Feb 2014

See all articles by Jonathan Yovel

Jonathan Yovel

NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law; Yale Law School

Date Written: February 2014

Abstract

How does language mediate action, communication and relations in legal settings not "contaminated" by the mediation of professional counsel? What is its interaction with, and what does it do to the concerns that drove litigants to seek institutional justice in the first place (or are cast into defensive roles?) How to approach these question in the context of communities diversified by ethnicity, gender, language, religion, education, income, age — whose members nevertheless meet in the same courtroom, where they must speak to authority as well as to each other in the role of institutional antagonists?

This paper, presenting empirical and interpretative work, analyzes legal language through the rhetorical, argumentative and narrative structures employed by self-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two levels of linguistic diversity: the polyphony of competing argumentative strategies expressed by antagonistic litigants in multicultural settings, and the "internal" polyphony, or "monopolyphony," expressed by "relational" litigants who negotiate and shift between such strategies in real time. This linguistic infrastructure frames the two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case, and authentic expression of their justice-related concerns, moral standing and other social parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, and acknowledges tradeoffs that lay litigants make between them. In this research, however, litigants were observed to resist such tradeoffs, requiring their relational concerns to count as rhetorically compelling; indeed, this was their main requirement from the court. This essential tension of linguistic performance, between authentic expression and institutional efficacy, in fact becomes a definition of justice. As the standard rule-orientated bias of courts is generally not equipped to accept such linguistic strategies, the tension remains unresolved, although it is at times mitigated by effective monopolyphonic performances.

Data for this study was collected in six different small claims courts in Israel's ethnically and culturally diverse northwestern region. The study focuses on overlapping ethnic, gender, age and cultural parameters rather than on social stratification and economic status emphasized by previous research.

Keywords: Legal language, legal ethnography, empirical legal studies, language ideology, self-representation, polyphony, legal rhetoric

JEL Classification: K4, K41, K49, K12

Suggested Citation

Yovel, Jonathan, Language and Power in a Place of Contingencies: Law and the Polyphony of Self-Representation (February 2014). 5 Studies in Language and Society 27-53 (2013); NYU School of Law, Public Law Research Paper No. 14-03. Available at SSRN: https://ssrn.com/abstract=2374794

Jonathan Yovel (Contact Author)

NYU School of Law - Straus Institute for the Advanced Study of Law and Justice ( email )

New York
United States

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203.435.5911 (Phone)

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