46 Similarity
One need only think of the process by which legal texts become precedents to
understand this approach. An important aspect of the authority of the legal opin-
ions issued by U.S. courts is their appeal to prior cases as precedents. Thus, a judge
writing a new legal opinion will commonly draw on previous cases; each citation
or quote is essentially a claim that this new decision rests on previously established
principles and law.^9 It would be possible to understand the text of a case that is
invoked as precedent as a statically conceived entity that exists apart from context—
a chunk of case law easily extracted and placed in various settings. This kind of
static model might indeed proceed to consider the role of context, but it would
begin by assuming the unit of analysis—the precedent—as prefigured, defined
apart from its contexts. Even if the meaning of that static text is thought to de-
pend on some aspects of context—typically the “original” context of its writing—
the precedent would nonetheless be thought to exist apart from any subsequent
invocation. Instead, the new reformulation emerging from linguistic studies
would understand the creation and use of precedent as a complex interactive
process wherein our very perception of the original text as a precedent depends
on a segmentation of some part of the precedential text that removes it from its
setting in the prior case and recontextualizes it in a subsequent legal case. It is in
a very real sense not a precedent until it is reconstituted as such. In this creative
process, the precedential text as it is now conceptualized is in one sense recre-
ated and reconfigured.^10 At the same time, aspects of the precedential text (includ-
ing features of the prior context it is deemed to carry with it) now shape the new
textual context in which the prior text is being invoked. There is a blurring of the
line between text and context. Interestingly, legal actors’ self-understanding of this
process vacillates between a fairly naïve conception (in which the new opinion is
really just taking a set precedent from the older case) and one that accepts the idea
that invocation of precedent involves an inevitable transformation at some level.^11
The linguistic anthropological framework, as we have seen, also points to the
centrality of ideology, of metalevel understandings of what it is we are doing when
we use spoken language (see Chapter 2). This is no less the case when the language
in question involves written texts. Here as well, researchers have come to see the
ideologies of text and language at work in particular settings as crucial to the in-
terpretive process.^12 The ideas that speakers and readers have about spoken and
written language are not neutral, and they shape how that language is understood
and used. Through analyses of the use of written and oral texts across societies,
scholars have isolated a core ideology that has governed much of Western think-
ing about textuality, an approach that could be characterized as a “referentialist”
or “textualist” ideology. This ideology, which is explored below in greater depth,
views written texts as in a sense self-contained, as carrying determinate meaning
that inheres in the written words themselves. What is central about texts, in this
view, is their referential or semantic content, and that content or meaning exists
within the writing, the written text.
Anthropological linguists and sociolinguists have demonstrated, however, that
when written texts are mobilized for human use, they necessarily depend on and
create context in order to have meaning.^13 This has drawn increased scholarly at-
tention to the way written texts connect with their contexts of use, as, for example,