The Linguistification of Value

An outline and brief contextual grounding of Part 1 of University of Hong Kong Professor Chris Hutton’s Language, Meaning and the Law which embeds current schools of thought regarding the overlay of language and the law in historical relief.

1)    Theoretical Frameworks

a)     Legal Theory and Language

i)      Formalism and Realism

(1)  Formalist law had originally asserted that law (like prescriptivist language in many senses) could operate in a vacuum. “Oliver Wendell Holmes is sometimes understood as an early exponent of ‘legal realism’, a trend in American jurisprudence associated with a sociological understanding of law and a rejection of strong claims about law’s autonomy (Holmes [1881] 1967: 5)” (Hutton 11).

(2)  Often times we may reach areas of static interpretation with regards to words. “At the heart of realism is a critique of language. Law is enthralled by its own language, and has lost sight of the distance between legal terminology and sociological reality” (Hutton 12).

ii)    Radical Approaches to Law

(1)  Marxism

(a)   The whole ‘language as power’ piece; law representing the interests of those with the most social cache (in trademark law, potentially larger corporations, etc). “At the heart of many radical critiques of law are various versions of Marxism. A simple way to explain the Marxist view of law in liberal democracies is that law operates as a reflection of class interests and the capitalist system. Lawyers, especially judges, are members of the ruling class, and the processes, language and ritual trappings of law, with its defence of private property interests, are a veil behind which economic interests operate” (Hutton 15).

(b)  Language is totally contingent on the social context it is placed within. There can and ought not be a divorce ideally, except for pragmatic reasons within law. “Language and linguistics have merged in recent years as a key topic for Marxist and post-Marxist theory. Marxist philosophies of language would agree on the relevance of the ‘social’ as a category for language, and reject ideas of the autonomy and self-sufficiency of language as a transparent system for the exchange of ideas” (Hutton 16).

(c)   The more we attempt to unravel questions of meaning, however, the more difficult it may for us to render a coherent ruling. “Like commodities, words and ideas circulate with apparently stable and well-grounded meanings and values, but to understand language we need to contextualize it, and the more deeply language is contextualized, the more its stability and transparency appear problematic” (Hutton 16).

(d)  This deals a lot with the trademark value derived by companies from the words they use. The ‘brand’ itself is worth far more in many instances than the actual commodity. “The materialist understanding of history as proceeding from concrete social forms to increasingly abstract ones is reflected in an understanding that words with time acquire new, increasingly abstract meanings and metaphorical associations (Jones 2001: 239). For the literary critic Raymond Williams (1921-88), words are ‘condensed social practices, sites of historical struggle, repositories of political wisdom or domination’ (Eagleton 1998: 317-18). Contemporary ‘hypercapitalism’, a global system of electronic exchange and information trading in which currencies themselves are the primary traded commodity, is constituted by an economy of knowledge. This involves the ‘linguistification of value’, ‘the commodification of language and thought’, a political economy of language, thought and technology where ‘language in the strictest sense – spoken or written words – is the ultimate coordinating element in which social perceptions of value are created, modified, and mediated’ (Graham 2006: 51, 59, 57). Thus language is the ‘only analytical entry we have’ (Graham 2006: 65). In the global knowledge economy, the ultimate fetishised object is language itself” (Hutton 16).

(e)   “Goodrich’s statement that ‘a critical linguistic orientation [. . .] suggests that the separation or isolation of questions of law and legality from wider considerations of discursive processes as a modality of power and of inter-group or class relations is hollow ideologically’ (Goodrich 1987a: 81) would be shared ground between Marxists, critical sociolinguistics and what has been termed ‘Critical Legal Studies’ (CLS)” (Hutton 17).

iii)   Law and Economics

(1)  Trademark law may operate ex ante but the argument may be that peoples’ individual interactions with language are so difficult to determine completely that they must be evaluated ex post. “Another way of looking at language within a law and economics framework is from the point of view of before the fact (ex ante) and after the fact (ex post) determinations. The ex ante view of language is that its basic meanings or values need to be fundamentally determined by the system in advance of the context in which words are used, and the addressee is primarily the decoder or receiver of the message, otherwise communication cannot proceed.  This is the view promoted within mainstream linguistic theory. The ex post view is that it is primarily the addressee or the reader within a particular contextual situation or the community of readers within a social context who assign value, as in Fish’s concept of the ‘interpretative community’ (Fish 1980: 321)” (Hutton 24).

iv)   Conclusion

(1)  Law keeps itself safe from subjectivity, however, by removing itself from ordinary social life and practices. “The autonomy of law within liberal jurisprudence is held to reflect its impartial distance from the language, categories of thought and prejudices of ordinary social life” (Hutton 29).

b)    Systems Theory, Normativity and the ‘Realist Dilemma’

i)      Description and Prescription in Linguistics

(1)  Trademark law as verbal hygiene as per Cameron’s description. “Law, in [Deborah] Cameron’s terms, is a massive institution of verbal hygiene” (Hutton 32). The law prohibits statements that are made to mislead in commercial transactions (misrepresentation) or in advertising (trade descriptions) […] it protects ownership in creative products through copyright, and brand identity through trademark protection and the prevention of ‘passing off’” (Hutton 32).

ii)    Conclusion

(1)  This is why we might sometimes get trademark findings in cases that are more or less out of touch with current social or linguistic reality. “Linguistic structuralism, with its view of language as an autonomous system of sub-systems, is one of the intellectual pillars of modern systems theory. The subjectivity of the speakers, the dimension of time, local and historical context and a direct relationship to reality have been radically excluded in the service of methodological purism” (Hutton 44).

(2)  Utterance meaning being contingent is a hugely crucial piece of the puzzle so that we make sure we’re not generalizing about peoples’ encounters with language in the marketplace. “Legal questions that involve determining the ordinary meanings of words are contextual, interpretative and normative questions. Logically, they are not representable within the system, and potentially open up statements made by linguistics in the forensic contest to realist challenge. Campos (1995: 973) makes this point in terms of a context-neutral model (linguistics) being applied to a context-sensitive set of problems (law): ‘Textual meaning always occurs in the context of, and indeed is generated by, the intentional semantic context of a particular utterance.’ Since utterance meaning is contingent, ‘you can’t have a true theory of linguistic practice’” (Hutton 45).

(3)  Even the understanding of ‘meaning’ that linguistics bring to bear in cases is not fully flushed out theoretically and subject to a great deal of interpretation. “The study of meaning within linguistics, semantics, is ‘confused, fragmented, and underdeveloped’, and this raises doubts about ‘whether linguists should be regarded by courts as experts on meaning in ordinary language’ Goodard (1996: 268, 270)” (Hutton 46).

(4)  “For the linguist interested in law’s search for meaning, the ideal would be that descriptive objectivity in relation to language could be put at the service of the normative objectivity of the law. If law itself at a particular juncture recognizes the need for a descriptive answer to a question of meaning, then this act of framing the interpretative question offers the linguistic at least a potential role within the interpretative practices of law” (Hutton 46).

c)     Philosophy, Law and Language

i)      Philosophy, language and social order

(1)  How does logophobia and languages ability to manipulate and ‘mislead’ consumers play into the existence of the Doctrine of Foreign Equivalents and its stated goal to protect consumers from purposeful confusion caused by certain foreign language marks meant to mislead them? “Logophobia in various forms pervades discussion of the language of law: ‘All languages threaten to take over the mind and to control its operation, with all this implies for one’s feelings, for one’s sense of self, and or the possibilities of meaning in one’s actions and relations’ (White 1987: 1966)” (Hutton 54).

ii)    The linguistic turn in philosophy as a turn to law

(1)  “Williams (1945-6: 72) argued that, given the ‘imperfections of language’, jurisprudence was ‘badly in need of semantic analysis’” (Hutton 55).

d)    Issues in Legal Interpretation

i)      Dilemmas of legal interpretation

(1)  “The place of definition within law is deeply controversial (Harris and Hutton 2007: 133-95)” (Hutton 69).

(2)  Meaning is not only contextually and definitionally understood, therefore, but may also be contingent in some way on how people understand what it is they’re somehow being asked to believe or do when encountering a product. “The meaning of a word is dependent on context and ‘the purposes for which its meaning is required to be elucidated’ (Goode 2004: 21)” (Hutton 69).

ii)    The ‘literal’, ‘golden’ and ‘mischief’ rules

“It is often pointed out that words and expressions have more than one dictionary meaning, and general terms (‘vehicle’) have to be clarified by reference to a particular sub-meaning” (Hutton 73).

Works Cited:

Hutton, Christopher. Language, Meaning and the Law. Edinburgh: Edinburgh UP, 2009. Print.