Third Legitimation Code Theory Conference, Abstract: Knowledge and Rhetoric

Title slide for the talk.

The Third Legitimation Code Theory Conference (#LCT3 on twitter) is coming up this year and I have submitted a paper co-authored with Shi Chunxu (who runs the LCT Research Group in China & works on legal discourse with LCT and Systemic Functional Linguistics).  We have a couple of manuscripts in the works - so hopfully they will be published soon.  For now here is the abstract for our conference paper:

Title: Knowledge and Rhetoric:  A Specialization Analysis of Courtroom Argumentation

Abstract: Legal cultures grounded on abstract principles or rhetorical appeals to moral feelings would seem to be diametrically opposed.  Yet, in courtroom argumentation, there is a balance between interpreting events with legal statutes; and moral evaluations of character and intentions (Shi, 2017). The mix of epistemic and social elements suggests a problem: what is the basis of legitimation in courtroom argumentation and what stance-taking strategies do defence lawyers and prosecutors use to influence the outcome of court cases? These problems are not merely of theoretical interest. The judicial field is a key arena of struggle closely related to the field of politics (Bourdieu, 1986: 815) – legitimation within the courtroom is a fulcrum for the operation of power. This operation also has important pedagogic implications for legal education as understanding the social practices of the judicial field is crucial for aligning graduate qualities with the professional standards of legal practice. The rapid transformation of China’s legal system since 1979 and the corresponding expansion of legal education, credentialism, and tightening professional standard bring these issues to the fore (Zhou, 2009; Ji, 2017). 

To address this question, this paper employs the Specialization dimension of Legitimation Code Theory (LCT) to analyse transcripts of 20 court cases from the People’s Republic of China that involve several different types of criminal offenses. Specialization codes allow for insight into the basis of courtroom strategies, differentiating between claims that emphasize or deemphasize relations between knowledge and the object or method of study (epistemic relations) or claims that stress or downplay the importance of relations between knowledge and the author of the claim, either because of their ways of knowing or subjective characteristics (social relations) (Maton 2014:29).  We apply these concepts to courtroom discourse and develop a translation device (Chen and Maton, 2016) to facilitate the Specialization analysis. We operationalize epistemic relations in terms of appeals to legal principles, processes of fact construction and interpretation; and social relations in terms of evaluation of moral character and the subjective intention of defendants.  

Courtroom argumentation is orientated towards legal principles and the supremacy of the law. However, the law allows a range of strategies and the specialization analysis reveals code shifts and clashes occur in such institutional contexts. Defence lawyers and prosecutors both engage in strategies that emphasis epistemic relations and social relations, depending on the affordances of the relevant legal statutes and range symbolic resources available. Statutes that define a crime and the criteria to judge if a crime has been committed provide relatively stable technical meanings; while statutes that outline grounds for the mitigation of sentences leave more latitude for the interpretation of people.  This legal context and the facts of the case provide the constraints and resources that lawyers exploit to enact different argumentative strategies. Emphasis of the law and rhetorical appeals to moral feeling are two potential paths to follow. 

Despite the objectivity characteristic of legal language and judicial ideology (Bourdieu, 1986), Specialization analysis also reveals the social and axiological aspects of legal practice that are often concealed. This study offers an operational understanding of Specialization codes in legal discourse and provides a case study of social relations within a field that obscures or downplays these relations in its self-representation. These findings have implications for understanding the ideology of the judicial field in China and pedagogy that neglects the rhetorical aspects of courtroom argumentation.

References
Bourdieu, P. (1986). “The force of law: Toward a sociology of the juridical field”. Hastings Law Journal, 38, p.805.
Ji, W. (2017). “The ideal and path of legal education reform in China”, Legal Education in the Global Context: Opportunities and Challenges, London: Routledge, pp. 267-78. 
Maton, K. and Chen, R.T, (2016) “LCT in qualitative research: creating a translation device for studying constructivist pedagogy”, Knowledge building: Educational studies in legitimation code theory, London: Routledge, pp.27-48.
Maton, K. (2014). Knowledge and Knowers: Towards a Realist Sociology of Education. London: Routledge.
Shi, C. (2017) Affiliation Through Value Negotiation in Chinese Criminal Courtroom Argumentation, PhD Thesis, Shanghai Jiao Tong University, China.
Zhou, S. (2009). “The Reform Strategy of Legal Education in China”, Global Business & Development Law Journal, 22, pp. 69-73.

Presenting the talk at LCT3, Wits University.