Language and Power in a Place of Contingencies: Law and The Polyphony of Lay Argumentation

This article analyzes legal language through the rhetorical, argumentative and narrative structures employed by non-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case; and authentic expression of their justice-related concerns, moral standing, and other extra-legal parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, respectively, and acknowledges tradeoffs that lay litigants perform between them. In this research, however, litigants were observed to resist such tradeoffs, requiring that their relational concerns count as rhetorically legitimate. In this they express a conception of justice that is removed from the formal structures of rule-breach-remedy familiar to law. This essential tension of linguistic performance, between authentic expression and institutional efficacy, in fact becomes a definition of justice. As the standard rule-orientation bias of courts is generally not equipped to accept such linguistic strategies, the tension remains unresolved. The work then moves away from this context to examine the tension in institutional justice in general, building on the critique to discuss relational v. institutional structures as jurisprudential types. The last section of the work returns to the prior discussion of the linguistic performance in the place of justice to expound a model of “situational tragedy” (as a category of the human condition) that underlines the special position of justice; this portion builds on Hegel’s notion of the centrality of tragedy as a rival category to politics. Data for this study was collected in small claims courts in Israel’s northwestern region. The study focuses on ethnic, generational and other cultural parameters