Peter Goodrich

Legal discourse : Studies in linguistics, rhetoric and legal analysis.

Preface - Table of Cases - Introduction: Law and Language - PART 1 LINGUISTICS AND LEGAL THEORY - The Science of Language - The Language of Legal Faith - The Role of Linguistics in Legal Analysis - Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language - Law as Social Discourse: A Topology of Discourse - Law as Social Discourse: Legal Discourse - Conclusion: Legal Theory and Legal Practice - Bibliography - Index

Oedipus Lex: Psychoanalysis, History, Law

This text offers a reading of legal history and institutional practice in the light of psychoanalysis and aesthetics. It explores the unconscious of law through historical and contemporary examples. The book provides an anatomy of laws melancholy and boredom, of addiction to law, of legal repressions, and the aesthetics of jurisprudence. It retraces the geneaology of law and invokes the failures and exclusions - the poets, women and outsiders - that legal science has left in its wake. In addition, the text analyzes the role and power of the image of law and details the history of laws plural jurisdictions and traditions of resistance to law. It also explores mechanisms of repression and representation as constituents of modern subjectivity, using medieval texts and early appearances of feminism as resources for the understanding and renewal of legal scholarship.

Introduction: Psychoanalysis and Law

On Friday 4 May, 1984, while watching the Prime Minister of Quebec speaking on television, a disaffected young corporal in the Canadian army formed the idea of massacring the government of Quebec. Denis Lortie subsequently described this initial impulse in terms of a desire to attack the National Assembly and eliminate the ruling arti quebequois, a party which had ‘done harm to the French language’. He would thus ‘destroy something which wanted to destroy the French language’. In various other formulations, Lortie expressed a wish to save the language by killing the government: ‘I will do some harm so as to do some good.’1

Modalities of Annunciation

It is one of the oldest political axioms relating to legal trial that justice must not only be done but ‘must be seen to be done’. That requirement of visibility or display imposes strict theatrical requirements upon the staging of individual presence and speech before the law. The present study begins by analyzing familiar semiotic and liturgical aspects to appearance in court in terms of the restrictions of time, place, position, dress and action. It is then argued that these rigorously coded pragmatic features of the trial are directly related to linguistic peculiarities of courtroom dialogue. Discursive restrictions upon forms of address, time and tone of speech, narrative content and forms of reference combine to create a powerfully orientated genre of legal paraphrase in which symbolic recognition of the authority of the court is the overriding message conveyed or, more properly, announced by the law.

The Masters of Law: A Study of the Dogmatic Function

Any discussion of dogma should begin with the recognition of a quite basic problem. The notion of a ‘dogmatic function’ is quite out of place in the epistemological framework which is ordinarily used to classify studies of the reproduction of industrialised society and its constituent organisations. My own work in these areas is certainly unclassifiable, and, were it not for the fact that it has found a small but erudite audience, it would probably be discounted as the work of a charlatan.

Rhetoric as Jurisprudence

It is altogether appropriate that the term rhetoric, which in one of its aspects refers to the study of grammatical ambiguities,’ should itself bear a diversity of meanings. In its most ancient definition it was quite simply and diffusely the study of all forms of public speech. The subsequent history of rhetoric, however, to which I will return below, was one of reduction, restriction and quite frequently disparagement. The most common modern acceptations of the term are pejorative or poetic and bear little trace of the discipline which was originally to have charted the interrelations of language and power. Ordinary usage now defines rhetoric as the specious, bombastic or deceitful use of language; rhetoric, in other words, is the abuse of language; while within the scholarly division of disciplines it generally fares little better as the study of linguistic forms or devices, located at the level of the word and divorced from any serious consideration of their content or use. At the risk of oversimplifying, rhetoric may plausibly be referred either to a pre-scientific theory of ideology or to a formalistic aesthetics.

Psychoanalysis in Legal Education: Notes on the Violence of the Sign

There are few more explicit linkages between knowledge and authority than those to be found within the disciplinary tradition and discourse of law. Within the canon of legal drafting and advocacy there can be no valid arguments save those from authority, no interpretations save those supported by citation of maxims, principles or analogues, no ruling other than the ex cathedra pronouncement and promulgation from the bench. In psychoanalytic terms, however, the self-enclosed authority and certitude of legal discourse, of statute (statutum) and of judicial ruling, is simply no more than one instance of a more general linguistic contract which binds the word (sign) to its meaning and discourse to the social rationality of the symbolic.3 The authority figures or ‘knowers’ of law, variously elders, arkhons, pontiffs, sovereigns, judges, jurists, rhetors and professionals are simply instances — further metaphors — of an absolute knowledge, of the word which was there at the beginning (genesis) and of its patriarchal source.4

The Science of Language

In terms of the history of the social sciences, the latter quarter of the nineteenth century was characterised in no uncertain manner by neoKantianism. The revival in question was aimed at rehabilitating the Kantian concept of science as a system, unified essentially by the idea of a system, rather than by any more realistic or historical classification of its subject matter.2 The most notable and far-reaching effects of this revival were to be the constitution of the sciences of linguistics and of law. In both cases, the major portion of the nineteenth century had been dominated by attacks upon the received othodoxies of universal grammar and of exegetical legal studies, respectively, and their displacement by the uncertainties of creationist and historical methodologies. It was only towards the beginning of the twentieth century that the fully scientific and objective status of the disciplines in question could again be proclaimed and the community of the faithful be reassured. The manner of such reassurance was strikingly similar within the disciplines of language and law. It may be characterised broadly as that of the project of constituting autonomous sciences or axiomatic normative systems, whose principal value adherence was to transpire to be the positivistic postulate of order and of the logic of its internal development within a social life rationalistically conceived as being governed and regulated by imperative linguistic and legal codes.

The Language of Legal Faith

In discussing the broad historical context of Saussure’s peculiarly explicit formulation of an autonomous science of language, I placed considerable emphasis upon the extensive philological tradition to which this science belongs. While Saussure’s formulation of the object of linguistics as the language system is most normally, and quite accurately, examined in the more modern terms of its dependence upon the neo-Kantian conception of scientific methodology which to varying degrees pervaded all the social sciences during the second half of the nineteenth century, the wider context and the history of linguistic study deserve recollection.2 In common with the entire spectrum of medieval European humanistic scholarship, it is the rediscovery and reception of the works of the classics of Hellenic and Roman civilisation within the confines of the monastery and of the university which originally demarcated and defined the scholarly disciplines.3 If philology was the methodology of such recovery and transmission in general, and exegesis of the written monument or of the petrified written form was the characteristic mode of dissemination, then it is not hard to see that the later developments of an objective grammar or of language studied as a code are broadly consistent, if secularised, representations of earlier textual traditions. Thus if Indo-European linguistics could take the classical languages as their fully formed and autonomous object of investigation, the more modern project of a scientific linguistics merely extends the philological methodology to the concept of grammatical structure, and further rationalises and universalises the normative consistency of the classical texts into a set of rules that are now to be taken as the laws governing language as such.