The Language of Law School This page intentionally left blank

Ideology
. Thus, from multiple directions,
there is support for the idea that the apparently abstract process of legal reasoning is
actually deeply imbricated in social context and change. Here I would agree with Winter’s
critique of attempts by legal theorists such as Sunstein to delineate an abstract structure
of legal reasoning without adequately theorizing a social dimension; in this respect,
Edward Levi did indeed do a better job than many of his successors (although I would
also agree with Winter when he dissents from Levi’s “uncritical celebration of analogi-
cal reasoning in law”; just because this reasoning process does incorporate changing social
norms over time does not mean that it does so fairly; Winter, 
A Clearing in the Forest
,
257–258).
25. For further discussion of “normative importation” in law, see Yovel, “The Lan-
guage beyond Law,” “What Is Contract Law ‘About’?,” and “Rights and Rites.”
26. Philips,“The Language Socialization of Lawyers.”
27. Elkins, “The Legal Persona.”
28. Woolard, “Language Ideology,” 27.
29. Silverstein, “The Uses and Utility of Ideology,” 128–129.
30. Gal and Irvine, “The Boundaries of Languages and Disciplines.”
31. Morris, “Not Thinking Like a Non-Lawyer.” Morris shares my view that there is
a distinctive linguistic approach associated with law, which lawyers generally attempt to
summarize in the somewhat misleading phrase “thinking like a lawyer.” (Note the inter-
esting folk-Whorfian theory iconically associating language and thought; for more com-
mentary on this issue, see Mertz, “Language and Mind.”) As Morris notes, lawyers have
no corner on the market of rigorous thought, but like all professionals they have a special-
ized professional discourse; they “think like lawyers” when they employ this discourse just
as doctors “think like doctors” when they use the discourse and accompanying orienta-
tion to which they are professionally trained.
32. Hirsch, 
Pronouncing and Persevering
, 234–235.
33. Matoesian, “Law and the Language of Identity,” 41.
34. Philips, 
Ideology
, 82.
35. Williams, 
Alchemy
.
36. This is the case because use of law by definition invokes the power of the state to
resolve actual or potential disputes, allocate benefits, exact punishment, and so forth. See
270
Notes to Pages 214–217

---

Merry,
Getting Justice
, for an incisive description of the paradoxical dilemma that this cre-
ates for litigants. There does exist a substantial ethnographic, psychological, and clinical
literature now demonstrating that people come to the law with a variety of expectations
and desires, and that in many cases, litigants want above all to have their stories heard or
to be treated fairly. Cunningham, “Lawyer as Translator”; Lind and Tyler, 
The Social Psy-
chology of Procedural Justice.
37. Constable, 
Just Silences
. Constable and I do still seem to differ in our understand-
ing of the social, and we also diverge because I continue to feel that it is important to in-
clude issues of power in the analysis of law, though without permitting them to erase all
other considerations. However, I am persuaded by Constable’s warning about the reduc-
tive dangers of an analytic stance that translates everything legal into matters of “power.”
Woolard expressed a similar concern in her 1998 article, when she mentioned that mem-
bers of a discussion group to which she belonged
were struck by the apparent absurdity of nineteenth-century philology’s relentless
reading of spiritual qualities from linguistic structures. We wondered if the single-
minded reading of power into and out of communicative practices that has charac-
terized our own late-twentieth-century sociolinguistics will look as ludicrously
obsessive in another century’s retrospective and whether we should not attend to some
of these other dimensions of social subjectivity [eg., identity or affiliation]. (Woolard,
“Language Ideology,” 28 n. 8)
Of course, Woolard here is speaking of communicative practices generally, not legal lan-
guage in particular, which I take to be one kind of communicative practice in which power
dimensions become more clearly ubiquitous. However, in talking about a partially inde-
pendent metalinguistic level, my work (like that of a number of other anthropological lin-
guists) reaches beyond analysis of power to talk about epistemology, which, as we have
seen, intersects with questions of identity and personhood, of narrative and agency, of
morality and context, and a number of other dimensions that cannot be understood in
terms of power dynamics alone.
38. Winter,