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.
- 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.
- Winter, A Clearing in the Forest, 11.
- Id., xiv.
- 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. - See Mertz and Weissbourd, “Legal Ideology and Linguistic Theory,” for an analy-
sis of this issue in both legal and linguistic theory. - 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