Language and the law contributes to the recent profusion of scholarship on the role that language plays in making and enacting law by focusing on four specific legal linguistic issues: ambiguity and/in language, legal fictions and metaphor, performative speech acts in hearsay doctrine, and commissive speech acts in contract law. Aimed toward a general audience, the book provides long and well-written articulations of legal concepts (e.g., plain-meaning, parole evidence, hearsay evidence, the rule of lenity, contract law) and linguistic concepts (e.g., metaphor, count nouns, speech act theory), along with in-depth and close analyses of court cases. This makes the book interesting for readers who have expertise in one or the other field.
The first two chapters are concerned with words and phrases: the term ambiguity in chap. 1 and the legal fictions “attractive nuisance” and “the corporation as a person” in chap. 2. As he does throughout this book, in paying close attention to a particular word or phrase Schane reveals the range of meaning that a word or phrase can have in a legal context, as well as the depth of reasoning that lies behind the most commonplace legal decisions. In an analysis of appeals based on an ambiguous word in a contract, he identifies four types of ambiguity that are “built into the very structure of language” (p. 180). In chap. 2, he further focuses on the structure of language by looking at legal fictions and metaphor. He suggests that a legal fiction “is a way of adapting ‘old’ rules to ‘new’ uses … while at the same time preserving the authority of the older rule” (56). The “attractive nuisance,” for example, is a legal fiction that holds those with ungated swimming pools accountable for a child getting into the pool, using the fiction that the child was lured into the yard, not trespassing. This fiction allows the court to come to a conclusion that the community feels is just without reversing centuries of trespassing laws.
Chaps. 3 and 4 are both concerned with longer units of discourse, the sentence and the document, respectively. Schane uses speech act theory to elucidate the reasoning behind the hearsay principle in evidence law in chap. 3 and the promise in contract law in chap. 4. Speech act theory provides a heuristic for discerning hearsay (out-of-court statements repeated in the testimony of the person they were said to as a way of proving the truth of the matter asserted) from non-hearsay (out-of-court statements used in testimony, but not presented for their truth value). In chap. 4 he considers the role of the “promise” as a historical and cultural construct and the felicity conditions embedded in the contract itself. In both chapters, Schane proposes that speech act theory offers a supplemental heuristic for parsing legal discourse quickly in the course of hearing testimony.
Schane is not critical of the law but rather invested in showing how legal scholars can learn from and borrow the analytic tools of linguistics, while suggesting that language scholars should not overlook the wealth of data available in the language of the law.
