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 sociolinguistic 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.
- 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