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A Clearing in the Forest
, 11.
39. Id., xiv.
40. As Brenneis notes, “This is clearly not just a matter of cognition; it rather draws
upon the whole gambit of cultural views of personhood, intention, and action, drawing
its strength from specific shared understandings of the complex relationships among truth,
desire, excitement, and aesthetics.” Brenneis, “Telling Theories,” 7. And all of this just
begins the story, for having considered the level of culture, we also have to take into ac-
count the patterning that anthropologists and sociologists have at times distinguished as
“social structure” as well: asking how kinship, economy, politics, religion, education, law,
and other institutions structure our relationships and inscribe the possibilities for action.
41. See Mertz and Weissbourd, “Legal Ideology and Linguistic Theory,” for an analy-
sis of this issue in both legal and linguistic theory.
42. Given the highly favored status in legal circles of the metaphor RATIONAL AR-
GUMENT IS WAR, cognitivists might warn us that this is an uneven choice! One strength
of Winter’s cognitivist analysis is that it moves analysis of analogy beyond the myth of an
even playing field, opening the door to a more socially grounded examination of why cer-
tain analogies and metaphors might be likely to prevail in certain circumstances. On the
other hand, the individual-cognition-focused method of much of the work in the field limits
a fuller examination of the broader social and linguistic dynamics at work in particular
cases. The power of one metaphor over another is not merely a matter of its fit with some
Notes to Pages 217–218
271
universal human embodied sense, but is also a function of the social and discursive set-
tings in which they are deployed.
An even stronger constraint of this kind exists in linguistic analysis drawing on the
principles of generative grammar derived from the highly influential work of Noam
Chomsky. In a sophisticated invocation of this approach to study the language of judges,
for example, Solan convincingly critiques judges’ use of linguistic justifications for their
decisions. Solan,
The Language of Judges
. Solan draws on the asocial analytic tools of gen-
erative grammar to show us that language structure cannot possibly provide the pre-
dictable, determinative results sought by judges. Thus, judges wind up reaching into
linguistic justifications selectively, as is convenient for the results they wish to achieve:
“Judges do not make good linguists because they are using linguistic principles to ac-
complish an agenda distinct from the principles about which they write.” Id., 62. But, as
I have demonstrated, judges’ agendas are nonetheless heavily linguistic in a different
sense, organized around metalinguistic principles that are analyzable using a different,
more socially grounded branch of linguistics.
We do not have to end our understanding of legal language when we have specified a
set of available metaphors (without attempting a
socio
linguistic analysis of the circum-
stances under which they are used by different people, and to what ends). And we can move
beyond a (well-grounded) critique of judges’ failure to be consistent in their invocation
of acontextual grammatical principles to a substantive linguistic analysis of what they
are
doing with language. But (in an attempt to impose some of my own metapragmatic struc-
turing here!), let me say that these quibbles with fellow analysts of language-and-law should
not be taken to indicate disrespect for their rigorous and thought-provoking entries into
the discussion. In each case, there are areas of substantial agreement among the conclu-
sions reached by different forms of linguistic analysis, despite some of our marked differ-
ences in approach.
43. It is for this reason that I am not drawn to the agenda proposed by some (not
all) conversation analysts, those who seem bent on posing a stark choice: we can either
analyze all spoken exchanges (including legal ones) as instantiating certain rules for con-
versation, devoid of any wider social or institutional contexts or power dimensions, or
we can analytically reduce all spoken exchanges to mere reflexes of wider social power,
without any sensitivity to individual differences (or, indeed, to the data at all!). Travers,
“Understanding Talk.” Although adherents to this view pose the choice as one between
relatively pure descriptivism and imperialist theorizing, of course even the “descriptive”
accounts of conversation analysts are shaped by tacit theoretical agendas, so that the event
is not described exactly as it would be understood by the participants themselves. (And
one could certainly argue that unanalyzed theoretical agendas pose more of a hazard to
scientific analysis than do clearly acknowledged ones.) But in either case, it seems need-
lessly combative and reductive to pose a choice between attentiveness to the particulari-
ties of different speech situations and analysis of wider social and institutional inputs
when both are necessary and important to a full understanding of the dynamics at work
in language use. See Conley, “Power Is as Power Does.” This more comprehensive view
has been in evidence for some time among some scholars of law and language, whose
varied approaches to the question range from Hirsch’s ethnographic work based on
lengthy fieldwork in Kenya, through the courtroom ethnographies of Philips and O’Barr
and Conley, to Matoesian’s analyses based on videotapes and transcripts. These schol-
ars also bring a multitude of disciplinary and theoretical perspectives to their work, from
anthropological linguistics to conversation analysis, and from a neo-Marxist-inspired
focus on hegemony to analyses of culture and metalinguistics whose roots can be traced
as much to Durkheim, Weber, Geertz, Sapir, Whorf, Jakobson, and Silverstein as to any
272
Notes to Page 218
other school of thought. Thus, any attempt to lump this group together and character-
ize them all as adherents of a nonexistent, monolithic “language and power” school is
indicative of a superficial understanding of the scholarship, and therefore unlikely to
be particularly useful.
44. J. B. White,
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