Hostname: page-component-586b7cd67f-2brh9 Total loading time: 0 Render date: 2024-11-28T00:09:19.169Z Has data issue: false hasContentIssue false
  • English
  • Français

Rule-Centrism Versus Legal Creativity: The Skewing of Legal Ideology Through Language

Published online by Cambridge University Press:  02 July 2024

Bernard Weissbourd  and
Elizabeth Mertz
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

This paper takes as an example of Anglo-American legal ideology the work of legal philosopher H.L.A. Hart, analyzing it in light of current linguistic theories. Linguists have proposed that ideological reflection can be affected in particular ways by the structure of the language used to convey it. We find that Hart's theory, with its emphasis on decontextualized rules and prerequisite conditions, fits the linguistic predictions. The paper concludes with the suggestion that the effect of language structure on cultural and/or legal ideologies is, however, socially and culturally circumscribed.

Type
Research Article
Information
Law & Society Review , Volume 19 , Issue 4 , 1985 , pp. 623 - 659
Copyright
Copyright © 1985 by The Law and Society Association

Footnotes

*

An earlier version of this paper was read and discussed by the Workshop on Language, Law, and Society at the University of Chicago. We thank our colleagues in the Workshop for their helpful comments. We would also like to acknowledge the guidance given us by Richard Lempert and three referees for the Law & Society Review in improving the original manuscript.

References

ATKINSON, John M. and Paul, DREW (1979) Order in the Court. Atlantic Highlands, NJ: Humanities Press.CrossRefGoogle Scholar
AUSTIN, John L. (1975) How to Do Things with Words. Oxford: Clarendon Press.CrossRefGoogle Scholar
BAKHTIN, Mikhail M. (1981) The Dialogic Imagination. Austin: University of Texas Press.Google Scholar
BAR-HILLEL, Y. (1954) “Indexical Expressions,” 63 Mind 359.Google Scholar
BENVENISTE, Emile (1971) Problems in General Linguistics. Coral Gables: University of Miami Press.Google Scholar
BERGER, Peter and Thomas, LUCKMANN (1967) The Social Construction of Reality. Garden City, NY: Doubleday.Google Scholar
BLACK, Max (1962) Model and Metaphors. Ithaca: Cornell University Press.CrossRefGoogle Scholar
BLACKSTONE, William (1854) Commentaries on the Laws of England (Incorporating Alterations by James Stewart), Vols. I and II. London: V.R. Stevens and G.S. Norton.Google Scholar
BOHANNON, Paul (1957) Justice and Judgment among the Tiv. London: Oxford University Press.Google Scholar
BOHANNON, Paul (1963) Social Anthropology. New York: Holt, Rinehart and Winston.Google Scholar
COMAROFF, John L. and Simon, ROBERTS (1981) Rules and Processes: The Cultural Logic of Dispute in an African Context. Chicago: University of Chicago Press.Google Scholar
CONLEY, John M. (1982) “The Law,” in W.M. O'Barr, Linguistic Evidence. New York: Academic Press.Google Scholar
CONLEY, John, O'BARR, W.M. and E.A., LIND (1979) “The Power of Language: Presentational Style in the Courtroom,” 1978 Duke Law Journal 1375.Google Scholar
DANET, Brenda (1984) “Introduction,” 4 Text 1.Google Scholar
DANIELS, Stephen and Robert, HAYDEN (1984) “The ‘Master Pattern’ of Case Dispositions and the Myth of the Golden Age of Trials.” Paper presented at the Language, Law, and Society Workshop, The University of Chicago, May 11.Google Scholar
DWORKIN, R.M. (1977) “Is Law a System of Rules?” in Dworkin, R.M. (ed.), The Philosophy of Law. London: Oxford University Press.Google Scholar
FALLERS, Lloyd (1969) Law without Precedent. Chicago: University of Chicago Press.Google Scholar
GEERTZ, Clifford (1973) The Interpretation of Cultures. New York: Basic Books.Google Scholar
GLUCKMAN, Max (1955) The Judicial Process among the Barotse of Northern Rhodesia. Manchester: Manchester University Press.Google Scholar
HALLIDAY, M.A.K. and R., HASAN (1976) Cohesion in English. London: Longman Group Ltd.Google Scholar
HART, Herbert L.A. (1954) “Definition and Theory in Jurisprudence,” 70 Law Quarterly Review 37.Google Scholar
HART, Herbert L.A. (1961) The Concept of Law. Oxford: Clarendon Press.Google Scholar
HONORE, A.M. (1977) “Real Laws,” in Hacker, P.M.S. and Raz, J. (eds.), Law, Morality and Society. Oxford: Clarendon Press.Google Scholar
LEVI, Edward (1949) Introduction to Legal Reasoning. Chicago: University of Chicago Press.Google Scholar
LUKÁCS, Georg (1971) History and Class Consciousness. Cambridge, MA: M.I.T. Press.Google Scholar
MAINE, Henry (1972) Ancient Law. London: Dent. (First published in 1861.).Google Scholar
MERTZ, Elizabeth and Bernard, WEISSBOURD (1985) “Legal Ideology and Linguistic Theory: Variability and Its Limits,” in Mertz, E. and Parmentier, R. J. (eds.), Semiotic Mediation: Sociocultural and Psychological Perspectives. New York: Academic Press.Google Scholar
MOORE, Sally Falk (1978) Law as Process. London and Boston: Routledge and Kegan Paul.Google Scholar
O'BARR, W.M. (1981) “The Language of the Law—Vehicle or Obstacle?” in Heath, S. and Ferguson, C. (eds.), Language in the U.S.A. New York: Cambridge University Press.Google Scholar
Ferguson, C. (1982) Linguistic Evidence: Language, Power, and Strategy in the Courtroom. New York: Academic Press.Google Scholar
O'BARR, W.M. and John, CONLEY (1976) “When a Juror Watches a Lawyer,” 3 Barrister 8.Google Scholar
PEIRCE, Charles S. (1931) Collected Papers of Charles Sanders Peirce, Vols. I and II. Cambridge, MA: Harvard University Press.Google Scholar
POUND, Roscoe (1954) An Introduction to the Philosophy of Law. New Haven, CT: Yale University Press.Google Scholar
ROSEN, Lawrence (1981) “Equity and Discretion in a Modern Islamic Legal System,” 15 Law & Society Review 217.Google Scholar
SEARLE, John (1969) Speech Acts. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
SILVERSTEIN, Michael (1976) “Shifters, Linguistic Categories and Cultural Description,” in Basso, K. and Selby, H. (eds.), Meaning in Anthropology. Albuquerque: University of New Mexico Press.Google Scholar
Selby, H. (1979) “Language Structure and Linguistic Ideology,” in Clyne, P., Hanks, W. and Hofbauer, C. (eds.), The Elements: A Parasession on Linguistic Units and Levels. Chicago: Chicago Linguistic Society.Google Scholar
Hofbauer, C. (1984) “The Culture of Language in Chinookan Narrative Texts; or On Saying that … in Chinook,” in Nichols, J. and Woodbury, A. (eds.), Grammar Inside and Outside the Clause. Cambridge: Cambridge University Press.Google Scholar
TAPPER, C.F.H. (1973) “Powers and Secondary Rules of Change,” in Simpson, A.W.B. (ed.), Oxford Essays in Jurisprudence (Second Series). Oxford: Clarendon Press.Google Scholar
WEBER, Max (1978) Economy and Society. Berkeley: University of California Press.Google Scholar
WHORF, Benjamin Lee (1978) Language, Thought and Reality. Cambridge, MA: M.I.T. Press.Google Scholar