Legal Language and American Law 217to spoken practice operates to conceal the politically laden, structured diversity
found in judges’ actual use of language, despite judges’ own metalinguistic as-
sertions to the contrary. In this study, we have examined in detail the core tenets
of this U.S. legal interpretive framework and have reconfirmed the central role
of linguistic ideology to legal epistemology.
The introduction of metalinguistic mediation into our model of law brings
with it an interesting paradox. On the one hand, I have outlined the way linguistic
filtering conceals the impact of social power, in the process contributing to the
perpetuation of social inequalities through law. Future lawyers and judges are
trained in a metalinguistic structure that directs attention away from some aspects
of social norms and contexts, permitting the professionals charged with perform-
ing legal analysis to ignore systematic inequities in society and in the administra-
tion of the legal system itself. At the same time, this metalinguistic level is not simply
a reflex of power dynamics, transparently converting the interests of the powerful
into legal results. As Patricia Williams and others have pointed out, relatively pow-
erless members of society have occasionally prevailed in legal settings.^35 And not
every problem addressed by the legal system is reducible to a straightforward cal-
culus in which the contesting parties stand for power interests in the wider soci-
ety; nor do the people involved in legal cases uniformly understand themselves or
their choices in these terms. Of course, where law intercedes, issues of power are
never very far away.^36 But it is important to recognize as well how linguistic me-
diation introduces an irreducible dynamic of its own, imbued with cultural cre-
ativity and responsive to particular contexts and people. In this sense, I take seriously
Constable’s admonition against reducing our understanding of law and justice to
a monolithic focus on power.^37
In demonstrating that language and culture together bring dynamics of their
own to bear on legal processes, findings from linguistic anthropology can be said
to partially parallel insights drawn from the cognitive sciences. For example, Win-
ter has argued that regularities in the structuring of “cognitive and cultural infra-
structures” explain core aspects of legal reasoning.^38 He contrasts this view with
the assumptions of a standard or narrow “rationalist” model, which understands
reason as “linear, hierarchical, propositional, and definitional.”^39 The process of
analogical reason that is fundamental to law can seem arbitrary when judged by
this rationalist model, but when analyzed in terms of embodied cognitive catego-
ries and structures (metaphors, for example, or image schemas), legal reasoning
seems far more principled.^40 The cognitive approach described by Winter is in some
ways complementary to the linguistic anthropological analysis undertaken in this
book, while also differing in some important respects. For example, the two ap-
proaches both look to aspects of pragmatism and social context in parsing legal
epistemology, although their emphasis in this regard is quite different. Similarly,
both forms of analysis insist that there are regularities, anchored to context and
culture, that are often ignored by dominant paradigms focusing on propositionality.
In this sense, both perspectives push us to look past an either/or mentality which
insists that either legal reasoning is entirely governed by a narrow, positivist ratio-
nality, or it is not ordered at all. On the one hand, attempts to generate static, propo-
sitional rules that can predict legal decision making fail, because they are too sterile