Document Type
Article
Abstract
We live in a dialogical world. The normative environment around us is many-voiced. Legal activities like drafting, negotiating, interpreting, judging, invoking, and protesting the law take place in dialogical encounters, all of which presuppose entrenched forms of social dialogue. And yet, the dominant modes of thinking about the law remain monological. How can we bring our legal conceptions into alignment with the dialogical world in which we live?
The present article follows in the footsteps of a Bakhtinian dialogical theory of language that challenges the roots of contemporary positivist conceptions of law and language underpinning large swathes of legal academia and the legal profession—including recent approaches to legal interpretation called corpus linguistics. Against this backdrop, the article aims to develop a richer and more textured dialogical jurisprudence to encompass the various aspects, activities, and genres where legal language is employed.
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Citation Information
Etxabe, Julen.
"The Dialogical Language of Law."
Osgoode Hall Law Journal
59.2 (2022)
: 429-515.
DOI: https://doi.org/10.60082/2817-5069.3783
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss2/5
References
1. Mikhail M Bakhtin, "Discourse in the Novel" in Michael Holquist, ed, The Dialogic Imagination (University of Texas Press, 1981) 259 at 294 [Bakhtin, "Discourse"].
2. Alton L Becker, Beyond Translation: Essays Toward A Modern Philology (University of Michigan Press, 1995) at 287. https://doi.org/10.3998/mpub.13805
3. Ann-Marie Slaughter, A New World Order (Princeton University Press, 2005). https://doi.org/10.1515/9781400825998
4. On the significant work done by Indigenous scholars, see Christine Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge, 2011); Irene Watson, Aboriginal Peoples, Colonialism and International Law (Routledge, 2015); John Borrows, Freedom and Indigenous Constitutionalism (University of Toronto Press, 2016); Gordon Christie, Canadian Law and Indigenous Self-Determination: A Naturalist Analysis (University of Toronto Press, 2019). On the internal pluralism of law, see Kirsten Anker, Declarations of Interdependence: A Legal Pluralist Approach to Indigenous Rights (Ashgate, 2014).
5. The most poignant exposition of this critique can be found in Bakhtin's close collaborator Valentin Voloshinov's book, which has been sometimes attributed to Bakhtin (see infra notes 25, 26). See Marxism and the Philosophy of Language, translated by Ladislav Matejka & I R Titunik (Harvard University Press, 1973) [Voloshinov, Philosophy of Language].
6. According to Desmond Manderson, the discussion of Bakhtin has been thin and often simply gestural, even in a field of study as attentive to language as law and literature. See "Mikhail Bakhtin and the Field of Law and Literature" (2016) 12 L Culture & Humanities 221 at 222-23. One early and significant exception is Peter Goodrich, who can be considered a precursor of sociolinguistic and discourse analysis. See Legal Discourse: Studies in Linguistic, Rhetoric and Legal Analysis (MacMillan, 1987) [Goodrich, Legal Discourse]. For a socio-legal approach to Bakhtin, see Mariana Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Routledge, 2015). For other attempts to bring Bakhtinian ideas to law, see e.g. Charles Hersch, "Bakhtin and Dialogic Constitutional Interpretation" (1994) 18 Leg Stud F 33
Robert Rubinson, "The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse" (1996) 101 Dick L Rev 3.
7. Legal positivism is a longstanding tradition starting with Bentham and Austin that gained momentum in the twentieth century with the major works of Hans Kelsen and HLA Hart.
8. Though not exactly identical, for the most part I will use legal positivism and analytical jurisprudence interchangeably. To be sure, it is possible to be a legal positivist and not an analytical philosopher, and vice versa. For important exponents of the Italian school, see Anna Pintore & Mario Jori, eds, Law and Language: The Italian Analytical School, translated by Zenon Bankowski, Simona Stirling & Anna Pirrie (Deborah Charles, 1997). In the Spanish-speaking world, see Manuel Atienza & Juan Ruiz Manero, A Theory of Legal Sentences (Kluwer Academic, 1998).
9. See Brian Bix, Law, Language, and Legal Determinacy (Oxford University Press, 1993). Hart himself appeared to find important lessons in JL Austin, though it is unclear whether he internalized them (see infra note 176). Joseph Raz too appears to have borrowed from Austin, though with questionable effect (see infra note 328). I do not wish to engage in a sustained argument about ordinary-language philosophy, although in one important sense, the path of analytical philosophy runs contrary to ordinary-language philosophers such as Gilbert Ryle, Wittgenstein, Paul Grice, and Austin, who did not mean to simplify philosophical problems by bringing them down to ordinary language, but rather intended to show that ordinary language was already fecund ground for philosophical investigation. At any rate, legal positivists who attend to ordinary language (e.g., the speech-act theory of John Searle) emphasize the rule-governed character of language and hence the qualities of language that are system-like (see infra note 175 and section VIII, below).
10. See Julie Dickson, Evaluation and Legal Theory (Hart, 2001) [Dickson, Evaluation]. See also Andrei Marmor, Philosophy of Law (Princeton University Press, 2011).
11. Andrei Marmor mentions another core positivist commitment, namely, the idea that
law is essentially a means or instrument that can be put to good or bad uses. See "Legal Positivism: Still Descriptive and Morally Neutral" [Marmor, "Still Descriptive"] in Law in the Age of Pluralism (Oxford University Press, 2007) 125 at 128. For a general critique of the instrumental view of law, see Brian Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006). https://doi.org/10.1093/acprof:oso/9780195338478.003.0005
12. Jules L Coleman has argued somewhat contentiously that the separability thesis (staunchly defended by Hart) is not central to legal positivism. See "Legal Directives and Moral Reasons" (Lecture delivered at Princeton University, 6 November 2008), online (pdf): lapa.princeton.edu/sites/default/files/COLEMANLegal_Directives_and_Moral_Reasons.pdf. Likewise, John Gardner argued that the positivists only agree on the sources thesis, whereby the criteria to decide whether a norm is legally valid depend on its sources, not its merits. See Law as a Leap of Faith (Oxford University Press, 2012) at 21.
13. For a thorough critique, see Margaret Martin, Judging Positivism (Hart, 2014).
14. For a similar argument addressed to the field of analytical jurisprudence, see Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Hart, 2005).
15. See Dickson, Evaluation, supra note 10.
16. On the assumptions of the "new realists" see Julen Etxabe, "Law as Politics: Four Relations" (2020) 16 L Culture & Humanities 24. For the argument that socio-legal scholars "forget" about language, see Marianne Constable, "Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law" (1994) 19 Law & Soc Inquiry 551 https://doi.org/10.1111/j.1747-4469.1994.tb00770.x
Marianne Constable, "Thinking Nonsociologically about Sociological Law" (1994) 19 Law & Soc Inquiry 625. https://doi.org/10.1086/492477
17. See e.g. Andrei Marmor, The Language of Law (Oxford University Press, 2014) [Marmor, Language of Law].
18. For powerful critiques of positivism, see Peter Fitzpatrick, Sociology of Law and Crime: The Mythology of Modern Law (Routledge, 1992); Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (Routledge-Cavendish, 2007); Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton University Press, 2005). See also Panu Minkkinen, Thinking Without Desire: A First Philosophy of Law (Hart, 1999). For a deconstructive and feminist perspective, see Drucilla Cornell, The Philosophy of the Limit (Routledge, 1992).
19. On space, see Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere (Routledge, 2015). On the senses, see Sheryl N Hamilton et al, eds, Sensing Law (Routledge, 2017). On sound, see James EK Parker, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi (Oxford University Press, 2015). On movement, see Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling Place (Routledge, 2016). On materiality, see Cornelia Vismann, Files: Law and Media Technology, translated by Geoffrey Winthrop-Young (Stanford University Press, 2008). See also Hyo Yoon Kang & Sara Kendall, "Contents, Introduction & Contributors" (2019) 23 Text Culture 1. On performance, see Marett Leiboff, Towards a Theatrical Jurisprudence: Space, Materiality, and the Normative (Routledge, 2020). For an excellent compendium, see Margaret Davies, Law Unlimited: Materialism, Pluralism, and Legal Theory (Routledge, 2017).
20. Writing in 1984 and again in 1987, Peter Goodrich was able to correctly pinpoint that despite the central importance of language for legal theory and legal practice, there was virtually no coherent or systematic account of the relation of law to language. Even worse, he considered, the occasional incursions of modern jurisprudence into the field had been exercises aimed at asserting or defending the positivistic view of law. See Peter Goodrich,
"Law and Language: An Historical and Critical Introduction" (1984) 11 JL & Soc'y 173 at 181 [Goodrich, "Law and Language"]; Goodrich, Legal Discourse, supra note 6 at 1. The voluminous literature on law and language since Goodrich's diagnosis may require qualifying his statement, but as this article seeks to demonstrate, it cannot entirely dispel it. On the language of law, see Peter M Tiersma & Lawrence M Solan, eds, The Oxford Handbook of Law and Language (Oxford University Press, 2012); Michael Freeman & Fiona Smith, eds, Law and Language, vol 15 (Oxford University Press, 2013). On language as a material, embodied, and gestural-i.e., "multimodal"-practice, see Gregory Matoesian & Kristin Enola Gilbert, Multimodal Conduct in the Law: Language, Gesture and Materiality in Legal Interaction (Cambridge University Press, 2018). For a concise and helpful introduction to the various trends in law and language scholarship, see Penelope Pether, "Language" in Austin Sarat, Matthew Anderson & Catherine O Frank, eds, Law and the Humanities: An Introduction (Cambridge University Press, 2010) 315.
21. For a Heideggerian approach noting the musicality of language, see Mark Antaki, "No Foundations?" (2014) 11 No Foundations: An Interdisciplinary J L & Justice 61.
22. Voloshinov, Philosophy of Language, supra note 5 at 94 [translation slightly modified].
23. The prestige of Bakhtin as a literary theorist is underscored by his monographs on Dostoevsky. See Problems of Dostoevsky's Poetics, ed & translated by Caryl Emerson, vol 8 (University of Minnesota Press, 1984) [Bakhtin, Dostoevsky]; Mikhail Bakhtin, Rabelais and His World, translated by Helene Iswolsky (Indiana University Press, 1984) [Bakhtin, Rabelais]; Mikhail Bakhtin, "The Bildungsroman and Its Significance in the History of Realism (Toward a Historical Typology of the Novel)" in Caryl Emerson & Michael Holquist, eds, Speech Genres and Other Late Essays, translated by Vern W McGee (University of Texas Press, 1986) 10 [Bakhtin, Late Essays]. On Bakhtin as social theorist, see Michael Gardiner, The Dialogics of Critique: M.M. Bakhtin and The Theory of Ideology (Routledge, 1992). See also Ken Hirschkop, Mikhail Bakhtin: An Aesthetic for Democracy (Oxford University Press, 1999). On Bakhtin's early phenomenological works, see Augusto Ponzio & Susan Petrilli, Philosophy of Language, Art and Answerability in Mikhail Bakhtin (Legas, 2000). Of the extensive bibliography on Bakhtin, see especially Tzvetan Todorov, Mikhail Bakhtin: The Dialogical Principle, translated by Wlad Godzich, vol 13 (University of Minnesota Press, 1984) [Todorov, The Dialogical Principle]; Craig Brandist, The Bakhtin Circle: Philosophy, Culture, and Politics (Pluto Press, 2002) [Brandist, The Bakhtin Circle]; Michael Holquist, Dialogism: Bakhtin and his World, 2nd ed (Routledge, 2002); Frank Farmer, ed, Landmark Essays on Bakhtin, Rhetoric, and Writing, vol 13 (Routledge, 1998). For an excellent brief introduction, see Alastair Renfrew, Mikhail Bakhtin (Routledge, 2015).
24. See especially Mikhail M Bakhtin, "The Problem of Speech Genres" in Bakhtin, Late Essays, supra note 23, 60 [Bakhtin, "Speech Genres"]; Mikhail M Bakhtin, "The Problem of the Text in Linguistics, Philology, and the Human Sciences: An Experiment in Philosophical Analysis" in Bakhtin, Late Essays, supra note 23, 103 [Bakhtin, "Text"].
25. The problem of authorship is a vexed one since the Soviet linguist Vyacheslav Ivanov raised the idea that Bakhtin was behind these writings. Bakhtin spoke reluctantly about the subject, but when challenged acknowledged that he wrote three books for his friends: Voloshinov (Freudianism (1927)) and Philosophy of Language (1929)) and Medvedev (The Formal Method in Literary Scholarship (1928)). See Sergey Bocharov, "Conversations with Bakhtin" (1994) 109 PMLA 1009 at 1013-14. In a letter to V.V. Kozhinov, dated 10 January 1961, Bakhtin wrote that these books were written in the "closest creative contact" and are based on a "common conception of language," which nevertheless does "not diminish the independence and originality of each" (ibid at 1016). Bakhtin continued: "To this day I hold to the conception of language and speech that was first set forth, incompletely and not always intelligibly, in these books, although the concept has of course evolved in the past thirty years" (ibid).
26. Even considering that Bakhtin wrote the core ideas of the books, attributing every statement to him is not a straightforward issue, because Bakhtin admitted that he did not write these books as he would have had they been published under his own name. See ibid at 1015, 1017. Moreover, we cannot exclude that Voloshinov or Medevedev finished or adapted the texts along the patterns of this "common conception of language" (ibid at 1017).
27. In typical dialectical fashion, Marxism and the Philosophy of Language situates its own conception of language between two antagonistic trends: abstract objectivism and individualistic (or expressive) subjectivism. Whereas Saussure is the leading figure in the objective trend, subjectivism finds its roots in Romanticism and the work of Wilhelm
von Humboldt (with Hamann and Herder as predecessors). See Wilhelm von Humboldt,
'On Language': On the Diversity of Human Language Construction and its Influence on the Mental Development of Human Species, ed by Michael Losonsky, translated by Peter Heath (Cambridge University Press, 1999) at 49. For Humboldt, language is activity and unceasing process of creation (energeia) realized in individual speech acts, rather than ready-made product (ergon). In this subjectivist trend, the laws of language creativity are the laws of individual psychology. Some of the best well-known linguists in Bakhtin's time were Karl Vossler and his school (e.g., Leo Spitzer). Vosslerites rejected positivism and the premises of Cartesian rationalism and argued that the vital feature of speech does not consist in the grammatical forms, which are shared and stable but in stylistic concretization of these abstract forms that individualize any given utterance. See Voloshinov, Philosophy of Language, supra note 5 at 51. Bakhtin found much to admire in Vossler, but Bakhtin's different focus on the social, historical, and dialogical dimensions of language, together with his rejection of psychologism, makes his conception of language noticeably different. For a recent, masterful reconstruction and defence of the expressive view of language see Charles Taylor, The Language Animal: The Full Shape of the Human Linguistic Capacity (Belknap Press, 2016). Taylor's book has the great virtue of showing how the objectivist position remains alive in contemporary analytic philosophy, cognitive theory, and pragmatism.
28. According to Saussure, "In separating language [langue] from speaking [parole] we are at the same time separating: (1) what is social from what is individual; and (2) what is essential from what is accessory and more or less accidental." See Ferdinand de Saussure, Course in General Linguistics, ed by Charles Bally & Albert Sechehaye in collaboration with Albert Riedlinger, translated by Wade Baskin (Philosophical Library, 1959) at 14.
29. Ibid. Saussure states that "[t]he linguistic sign unites, not a thing and a name, but a concept and a sound-image" (ibid at 66). The first he calls signified [signifié] and, the second, signifier [signifiant]. See ibid at 67. Their link is arbitrary because the bond between one and the other is unmotivated or without natural connection (i.e., it could be represented just as well by any other sequence). See ibid at 65-70.
30. Ibid at 20. "[I]ndeed," Saussure writes, "the science of language is possible only if the other elements are excluded" [pas mêlés]" (ibid at 15).
31. Ibid. The comparison is not fanciful, for "of all comparisons that might be imagined, the most fruitful is the one that might be drawn between the functioning of language and a game of chess" (ibid at 88). See also Section VIII, below.
32. Saussure, supra note 28 at 23.
33. Ibid at 113, 110.
34. Ibid. According to Saussure, "Language is characterized as a system based entirely on the opposition of its concrete units" (ibid at 107). Hence, the often-repeated statement about which much has been made by post-structuralism that "in language there are only differences" (ibid at 120).
35. Ibid at 14.
36. Chess is one of the favourite metaphors of HLA Hart (see Section VIII, below).
37. Most famously, see Hans Kelsen, Pure Theory of Law (1934), 2nd revised & enlarged German ed, translated by Max Knight (University of California Press, 1967).
38. Supra note 28 at 88.
39. Ibid at 111.
40. Ibid at 122, 113.
41. Ibid at 91, 99-100.
42. See e.g. Norberto Bobbio, A Theory of the Legal Order (Giappichelli, 1960).
43. Supra note 28 at 9. For a criticism, see Voloshinov, Philosophy of Language, supra note 5 at 78-82.
44. Voloshinov, Philosophy of Language, supra note 5 at 66.
45. Bakhtin, "Discourse," supra note 1 at 288.
46. Voloshinov, Philosophy of Language, supra note 5 at 82.
47. Ibid at 68.
48. Ibid at 94.
49. Ibid at 68.
50. On reification as the conversion of a human concept into an external thing, whereby a reified law is said to "strive," "desire," "make claims," "aspire," et cetera, see Desmond Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice (University of California Press, 2000) at 160ff. See also Davies, supra note 19 at 30 (arguing that "[l]aw does not do anything or say anything itself, and it is not even an identifiable thing-all these are shorthands for the actions of human beings enmeshed in material contexts who use an imaginary of law to relate and engage") [emphasis in original].
51. Voloshinov, Philosophy of Language, supra note 5 at 81.
52. See also Boris Gasparov, Beyond Pure Reason: Ferdinand de Saussure's Philosophy of Language and Its Early Romantic Antecedents (Columbia University Press, 2013) at 117.
53. Voloshinov, Philosophy of Language, supra note 5 at 78 [emphasis added]. In Nietzschean vein, Voloshinov writes: "Despite the vast differences in cultural and historical lineaments from the ancient Hindu priests to the modern European scholar of language, the philologist has always and everywhere been a decipherer of alien, 'secret' scripts and words," that is,
"always and everywhere priests" (ibid at 74).
54. Goodrich, Legal Discourse, supra note 6 at 33. See also Harold J Berman, "The Origin of Western Legal Science in the European Universities" in Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983) 120.
55. Bakhtin, "Discourse," supra note 1 at 270. For grammar as a project of political uniformization at the service of Empire, see the fascinating account of Ivan Illich
about Antonio de Nebrija's project to build the first grammar of any modern European tongue (Castilian) in 1492, offered to Queen Isabella. See Ivan Illich, "Vernacular
Values" in Lawrence J Trudeau, ed, Literature Criticism From 1400 To 1800: Volume 251
(Gale, 2016) 148. https://doi.org/10.1002/tl.20206
56. Bakhtin, "Discourse," supra note 1 at 270.
57. Ibid at 270.
58. Robert M Cover, "The Supreme Court, 1982 Term-Foreword: Nomos and Narrative" (1983) 97 Harv L Rev 4. For an explanation, see Julen Etxabe, "The Legal Universe after Robert Cover" (2010) 4 Law & Humanities 115 at 125-29.
59. Voloshinov, Philosophy of Language, supra note 5 at 19. Voloshinov states that:
[T] he word is the most sensitive index of social changes, and what is more, of changes still in the process of growth, still without definitive shape and not as yet accommodated into already regularized and fully defined ideological systems…The word has the capacity to register all the transitory, delicate, momentary phases of social change [emphases in original].
The word "refracted," is a term employed both by Voloshinov and by Bakhtin. See ibid at 24; Bakhtin, "Discourse," supra note 1 at 302, 324, 332.
60. See Bakhtin, "Text," supra note 24 at 127. Bakhtin speaks of "[t]he microworld of
the word" (ibid).
61. For an attempt to bypass it, see Donna Haraway, Staying with the Trouble: Making Kin in The Chthulucene (Duke University Press, 2016).
62. Bakhtin, "Discourse," supra note 1 at 276.
63. Ibid at 281. For a discussion, see Voloshinov, Philosophy of Language, supra note 5 at 78-80. For terminology, see Todorov, The Dialogical Principle, supra note 23.
64. Bakhtin, "Speech Genres," supra note 24 at 88.
65. Voloshinov, Philosophy of Language, supra note 5 at 80.
66. This is related to what, borrowing from Friedrich Waissman, Hart called the "open texture of language." For a discussion, see Brian Bix, "H.L.A. Hart and the 'Open Texture' of Language" (1991) 10 Law & Phil 51. https://doi.org/10.1007/BF00144295
67. Voloshinov, Philosophy of Language, supra note 5 at 102.
68. Ibid at 100.
69. Ibid. As Voloshinov writes, "Meaning is the effect of interaction between speaker and listener produced via the material of a particular sound complex" (ibid at 102-03
[emphasis omitted]).
70. Ibid at 86. Throughout the article I have tried to avoid the use of gendered English, including slight adjudgment to some of the translations, except when this could not be done without substantial alteration. See the text accompanying infra notes 83 and 156, below.
71. Ibid at 80.
72. Ibid at 102 [emphasis added].
73. Ibid.
74. Ibid. Bakhtin explains that dialogical interaction comprises not only face-to-face encounters but all sorts of verbal and non-verbal communication, including bodily gestures (e.g., raising a fist, raising the eyebrow) and tone (e.g., higher or lower pitch, warm or stern timbre). Communication can also occur silently between participants who are at a distance from one another. For example, a book, which is a "verbal performance in print," is also an element of such communication (ibid at 95).
75. Bakhtin, "Discourse," supra note 1 at 279.
76. Ibid at 280.
77. Ibid.
78. Ibid.
79. Most current statutory interpretation has moved from trying to decipher what the legislature intended, towards a more objective determination of the public meaning of the legislative text, often called the "communicative content" of the legislative text. For a critique of such communicative models in jurisprudence, see Mark Greenberg, "Legislation as Communication? Legal Interpretation and the Study of Linguistic Interpretation" in Andrei Marmor & Scott Soames, eds, Philosophical Foundations of Language in the Law (Oxford University Press, 2011) 217. https://doi.org/10.1093/acprof:oso/9780199572380.003.0010
80. Todorov, The Dialogical Principle, supra note 23 at 55. Two additional elements are "context" and "contact (ibid at 54).
81. Ibid at 56 [translation slightly modified].
82. Bakhtin, "Discourse," supra note 1 at 368.
83. Ibid at 293-94 [emphasis added].
84. Brandist, The Bakhtin Circle, supra note 23. See also Craig Brandist, "The Official and the Popular in Gramsci and Bakhtin" (1996) 13 Theory Culture & Society 59. https://doi.org/10.1177/026327696013002004
85. Rudolph von Jhering, The Struggle for Law, 5th German ed, translated by John J Lalor
(Callahan & Co, 1879). More recently, Foucault criticizes Habermas for having forgotten power relations in his communicative model. See Michel Foucault, "The Subject and Power" (1982) 8 Critical Inquiry 777 at 786-87 . https://doi.org/10.1086/448181
86. Bakhtin, "Discourse," supra note 1 at 294.
87. Ibid.
88. Bakhtin, "Speech Genres," supra note 24 at 85.
89. Ibid at 78.
90. The social dimension also separates Bakhtin from the subjectivist (or expressivist) school of Vossler. See supra note 27.
91. Bakhtin, "Speech Genres," supra note 24 at 71.
92. Voloshinov, Philosophy of Language, supra note 5 at 93.
93. See supra note 27.
94. See M M Bakhtin & P N Medvedev, The Formal Method in Literary Scholarship: A Critical Introduction to Sociological Poetics, translated by Albert J Wehrle (Johns Hopkins University Press, 1978) at 120 [Medvedev, The Formal Method].
95. Valentin Voloshinov, "Discourse in Life and Discourse in Art" (1926), in Neal H Bruss, ed, Freudianism: A Critical Sketch, translated by I R Titunik (Indiana University Press, 1987) at 100 [Voloshinov, "Life and Art"].
96. Ibid at 105.
97. Ibid.
98. Voloshinov, Philosophy of Language, supra note 5 at 95.
99. "Speech Genres," supra note 24 at 60 [emphasis in original]. For Bakhtin, "[t]he wealth and diversity of speech genres are boundless, because the various possibilities of human activity are inexhaustible, and because each sphere of activity contains an entire repertoire of speech genres" (ibid).
100. For the improbable, crucial, legal significance of a simple adverb such as "nevertheless," see Otto Preminger, The Anatomy of a Murder (Columbia Pictures, 1959).
101. Bakhtin, "Speech Genres," supra note 24 at 81 [emphasis in original].
102. Ibid at 91.
103. Ibid at 69.
104. Ibid at 93.
105. Ibid at 73. On the key differences between utterances and sentences, see Tzvetan Todorov, "Theory of the Utterance" in The Dialogical Principle, supra note 23, 41. See also Susan Petrilli, "Communication, Dialogue, and Otherness in Mikhail Bakhtin's Metalinguistics" (2008) 1 Russian J Communication 266. https://doi.org/10.1080/19409419.2008.10756716
106. Bakhtin, "Speech Genres," supra note 24 at 73.
107. Ibid at 74.
108. Ibid at 82.
109. Ibid at 74.
110. Ibid.
111. Ibid at 72.
112. Ibid at 76 [emphasis in original].
113. Ibid at 71.
114. Ibid at 83.
115. Ibid at 84.
116. Ibid at 95. According to this, even the cry of a nursing infant is addressed to someone. See Voloshinov, Philosophy of Language, supra note 5 at 87.
117. Ibid [emphasis added].
118. Voloshinov, Life and Art, supra note 95.
119. On attunement, see Becker, supra note 2.
120. Thomas Kent "Hermeneutics and Genre: Bakhtin and the Problem of Communicative Interaction" in Frank Farmer, ed, supra note 23, 33 at 42.
121. "Speech Genres," supra note 24 at 95.
122. In an incomplete text published posthumously, Bakhtin alludes briefly to the figure of the "superaddresee,"-a "third" whose absolutely just and responsive understanding is presumed. See Bakhtin, "Text," supra note 24 at 126. There is no need to presuppose a metaphysical entity here, which is why Michael Holquist's interpretation of the superaddressee as "the a priori of all speech" and the closest to "something like a God concept in Bakhtin" cannot be accepted. See Bakhtin, Late Essays, supra note 23 at xviii. Bakhtin is clear that "[t]he aforementioned third party is not any mystical or metaphysical being (although, given a certain understanding of the world, he can be expressed as such)" (Bakhtin, "Text," supra note 24 at 126-27). Rather, "he is a constitutive aspect of the whole utterance, who, under deeper analysis, can be revealed in it" (ibid). In different historical times, this superadressee has acquired different ideological forms: God, absolute truth, the court of dispassionate human conscience, the people, and the court of history or science. This is not an a priori condition existing outside discourse. For obvious reasons, too, the addressee has nothing to do with the "reading public" located outside the work. See Voloshinov, "Life and Art," supra note 95 at 114-15.
123. Bakhtin, "Speech Genres," supra note 24 at 96-97.
124. "No word lacks tact" (Medvedev, The Formal Method, supra note 94 at 95).
125. Voloshinov, Philosophy of Language, supra note 5 at 86. I thank James Boyd
White for the image.
126. Bakhtin, "Discourse," supra note 1 at 281.
127. Bakhtin, "Speech Genres," supra note 24 at 68.
128. Although this is not a terminology employed by Bakhtin, it may be practical here to distinguish between hearing and listening.
129. Bakhtin, "Speech Genres," supra note 24 at 69.
130. Ibid.
131. Bakhtin, "Discourse," supra note 1 at 282.
132. Bakhtin, "Speech Genres," supra note 24 at 68.
133. Voloshinov, Philosophy of Language, supra note 5 at 102. See also Bakhtin, "Text," supra note 24 at 125.
134. See Marianne Constable, Our Word is Our Bond: How Legal Speech Acts (Stanford University Press, 2014) at 33. Stanley Cavell's "passionate utterances" are neither constative nor performative but focus on the "you." A passionate utterance such as "I insult you" or "I seduce you"-or even "I persuade you"-does not do what it says in the same way as the performative "I promise…" does and requires a hearer who is attuned to it in a particular way. See Stanley Cavell, "Performative and Passionate Utterances" in Philosophy the Day After Tomorrow (Belknap Press, 2005). For the importance of the auditory sense in law, see Parker, supra note 19.
135. Maurizio Lazzarato, "Mikhail Bakhtin's Theory of the Utterance," translated by Arianna Bove (2009), online: https://www.generation-online.org/p/fp_lazzarato6.htm.
136. Ibid.
137. Bakhtin, "Discourse," supra note 1 at 281.
138. See infra notes 167-168 and accompanying text. See also infra note 282. For a theory of
"plain" or "literal" meaning based on a "universal" or "baseline" context that remains largely invariant across competent speakers of a given language-system, see Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-making in Law and in Life (Oxford University Press, 1991).
139. Bakhtin, "Speech Genres," supra note 24 at 68-70. For an attempt to develop a more complex differentiation, see Erving Goffman, Forms of Talk (University of Pennsylvania Press, 1981) 124 (distinguishing between "animator," "author," and "principal").
140. Bakhtin, "Speech Genres," supra note 24 at 70.
141. MM Bakhtin, "Author and Hero in Aesthetic Activity" in Michael Holquist & Vadim Liapunov, eds, Art and Answerability (University of Texas Press, 1990) at 225 [emphasis in original] [Bakhtin, Art].
142. See MM Bakhtin, Toward the Philosophy of The Act (University of Texas Press,1993) https://doi.org/10.7560/765344-004
at 36 [Bakhtin, Act]. In this text dating to 1919-1921 and published posthumously,
the emotional-evaluative relation with the objects of experience acquires an
ontological-existential dimension that transforms mere possibility into the actuality of being-as-event
