Words and Language
Interview as Discursive Form
Order in Court
The concept of terra nullius was used by white invaders as justification for their assumption of sovereignty over a land which was not theirs. Because they saw no evidence of cultivation under the ground or animal husbandry they dismissed the inhabitants as primitive nomads who had no use for the land and did not need it. Because they saw no tangible evidence of intellectual baggage or economic boundaries it was just as easy for them to dismiss a whole continent's inhabitants as not only stateless but also virtually mindless in their terms. They felt justified therefore in imposing their killing dominion by the superior force of guns against which Aboriginal people were powerless - and in attempting to write on what they saw as little more than tabulae rasae their set of laws, customs and religion. Needless to say these latter made little sense at that time to groups of people with sophisticated laws, languages and religion of their own and with their own clearly demarcated 'countries'. The newcomers saw no reason to change or accommodate their laws (based on ownership and husbandry) to the circumstances in which they found themselves except in answer to their own particular needs or ends. There was no question of listening to, or learning from, the original inhabitants.
It would be good to think that time, justice and enlightenment had erased the traces of such initial blunders and that we were all, black and white alike, now 'equal in the sight of the law' and enjoying its protection fairly. To work on the assumption that this is so however is but to perpetuate injustices of long standing by refusing still to listen to the Aboriginal people who claim that little has changed for them except the terms and methods of their subjection.
Though there are many areas in which Aboriginal people are discriminated against in our society and various processes by which this comes about, the area and the nature of their dealings with the law and their disadvantages in that area are worthy of particular consideration. Aboriginal people who have been able, and some have, to remain within their tribal boundaries and within the law which is also life to them are relatively secure from the particular hazards which have attended the involvement of those amongst them who because they had no other choice have had to survive within the alien structure of White law and White society. It is with the difficulties of the latter that this thesis concerns itself.
These difficulties arise not because of the nature of our laws in themselves. Some Aboriginal people would in fact prefer to be judged under the Whiteman's law since Aboriginal law can be very cruel and very harsh. What, then, is the problem? The problem, as Aboriginal people see it, is that in the enforcement and administration of White law in their regard its very own principles are transgressed in a way which disadvantages them to a greater degree than most.
That some of the effects of the law's administration are good and some bad may be taken for granted; that the bad effects are most overwhelmingly experienced by an oppressed and powerless minority in a society which looks upon itself and likes the world to see it as a democracy is another matter. And, whatever the facts' of the matter, it takes little imagination to recognise that if a large part of the Aboriginal population see themselves as so discriminated against (which they do), such a perception is likely to result in negative consequences. For to suggest to an Aboriginal person that 'the law', as currently practised in White society, could be defined as a set of rules set out by a higher authority for the good of the community as a whole, and that the lawmakers and enforcers are not themselves outside these rules but are equally subject to them, is, in the current climate of opinion no less than historically, to present him or her with a notion at once incomprehensible and ironic. Bitter humour is the most predictable response and s/he is likely to support incredulity with impressive data from either personal experience or family history.
Nor is this perception confined to Aboriginal people - it is shared by concerned White people both amongst the general public and, increasingly, by members of the legal profession also. As noted by The House of Representatives Standing Committee on Aboriginal Affairs (1980:9), "the law is perceived by Aboriginals as part of the white community and culture which has not only alienated them but also dispossessed and oppressed them".
According to Rees (1982:36) the Australian legal system has not only refused to recognise that Aboriginal concepts of law and justice are different from those of White Australians but has failed to provide Aboriginals with equal protection under White laws. Rees nevertheless suggests that the police should not bear the brunt of all the criticism. To a very large extent, he says, the police have simply been the White community's instrument of oppression. The attitude of the White Australian community to Aboriginals, Rees reminds us, though it has changed during the 200 years of European occupation, has merely done so by progressing through stages of annihilation and neglect to a policy of 'assimilation'. In the past few years while many proposals for self-determination and recognition of Aboriginal customary law have been considered many such proposals seem still, to a large extent, to have remained proposals merely and have had little impact on entrenched White attitudes and practices with regard to Aboriginal people.
Official policy and philosophy leans heavily towards a concept of multicultural 'dynamic equilibrium' between all groups within the major community in Australia at the present time, and government actions and jurisdiction are, ostensiby at least, directed towards that end. Arguments regarding 'equality' however such as those surfacing in the continuing Aboriginal Land Rights debate reflect an unmistakable contamination of this 'dynamic equilibrium' model by the 'fusion' or 'assimilation' model. While this latter model might seem, in theory, to fit more neatly the mythologised ideal of 'democracy' in the popular imagination, in practice it has the effect of perpetuating an existing and dangerous disequilibrium.
One of the many ways in which such disequilibrium manifests itself is in the very real discrepancy which exists between the imprisonment rates for Aboriginal people and those for the population as a whole. As estimated in 1987 and recorded by Muirhead (1988:99) Aboriginal people in Western Australia comprise only 2.69% of the community as a whole and yet they represent 30.91% of the prison population.
It would appear that as long as the dominant 'White' ideology persists (as it currently does) in viewing the Aboriginal 'plight' as stemming solely and exclusively from social conditions arising from such factors as alcoholism and improvidence, which, given the correct formula and set of specifications, could in due course be 'put right', it runs a double risk: of repeating old mistakes, and of blinding itself to what Aboriginal people themselves see as being both a central aspect and a constituent factor of a continuing underlying malaise.
This is expressed with simple linguistic economy and astonishing frequency by Aboriginal people of all ages: "They won't listen to us".
While the 'non listening' by Whites to Aboriginal voices as it is perceived by Aboriginal people themselves covers a wide range of communicative encounters, each and all of them worthy of careful consideration, those particular aspects of communication which involve them in our 'justice' system seem particularly worthy of scrutiny at the present time when, increasingly, both at home and abroad, attention is being focussed on, for example, such issues as the disproportionate number of Aboriginal deaths in custody. As cited by Graham (1989:2), according to James Muirhead, Q.C., if White people were being gaoled and dying at the same rate as Aboriginal people over the period of eight years (1980-1988) under review by the Royal Commission 8000 (eight thousand) would have lost their lives in custody during that period. Graham (1989:11) in his book Dying Inside sees the apathy of a society content to see gaols "full of people who are not criminals but who do have severe health and social problems, and where the environment is so depressing and debilitating that some die inside" as reflecting a picture of our society as "brutal, coarse and ruthless ... with pagan values".
Because of the very conditions under which so many Aboriginal people have to live, brought about in large measure by the historical legacy of White domination, there may well be a greater proportion of Aboriginals doing things (or perhaps by virtue of their greater visibility seen to be doing things) which could lead to their conviction even if they were White. (Some analysts indeed argue that because the Nyungar is not unambiguously defined as either Aboriginal or White this fact renders him or her more likely sometimes to obey and sometimes to break the white man's rules - rules of 'sharing' in particular which are paramount in Aboriginal society but looked at quite differently in ours.) It would, therefore, be an unjustifiable overstatement to suggest that negative aspects of communication such as come under the heading or in the ambit of legal discourse necessarily constitute the single causative factor behind the gross anomaly of the over representation of Aboriginal people in our prisons and detention centres. Nevertheless I would suggest that by clarifying some central aspects of discourse as they apply to Aboriginal contact with representatives of the law it can be shown that those negative aspects do in fact contribute significantly to what is now widely acknowledged and recognised as a most undesirable and unacceptable phenomenon.
The recognition of the 'formidable properties and powers of language' - 'of the Word' and 'of the pen' - is unarguably of ancient origin and might seem to need little further in the way of elaboration in the computerised 1990's. Yet in this no less than in other fields of human endeavour analysts continue to probe and tease apart some hitherto unexamined aspects of the complexities surrounding this most fundamental and basic, while at the same time problematic, of human attributes in order the better to illuminate and understand it.
One of the more recent, if not the most recent, approaches to such an endeavour has come to be known as Discourse Analysis. At first glance discourse analysis might seem to have much in common with classical antecedents such as rhetoric, literary criticism, linguistics and semiology. Perhaps it can be said of discourse analysis however that it is at one and the same time all and none of these, drawing on them as it does and yet eluding categorisation as a single practice with fully established rules and methods of its own.
While acknowledging the multifaceted nature of discourse analysis, Potter and Wetherell (1987:186-7) nevertheless usefully isolate three areas of research in particular in which they have observed an increasing interest in this craft: the first - the examination of the role of miscellaneous texts "as potent constructions of social life which, through the achievement of particular versions of the world, encourage evaluations and actions from their readers"; the second has to do, they suggest, with the issue of persuasion "in terms of the process of interaction between producer and recipient, and the detailed linguistic format of the persuasive text"; the third, they say (quoting Thompson 1984) encourages discourse analysts to address concerns in the area of ideology: "in the presentation of situations of domination and exploitation as legitimate and proper, to mask the existence of these situations, and to reify current social relationships as natural, or, indeed, essential". In the course of the present exercise I have found it useful to draw on many such various theoretical perspectives to assist in understanding some of the forces at work in the discursive construction of the Aboriginal person as a 'criminal'.
The Nyungars of Western Australia residing in Perth and the surrounding metropolitan area, with which the present study is most intimately concerned, are a good example of the plurality, diversity and yet overall pan-continental connectedness of Aboriginal people. Their status ranges from a member of Parliament to the poorest, least 'educated' and the unemployed, and will at any one time more than likely include some visitors or prisoners from tribal areas. They are, if only sparsely, represented in a variety of 'White' fields, such as education, the media, the legal profession, community service, the arts and established churches and others. My own, most direct, acquaintance is with the many fringedwellers of the Swan Valley on the outskirts of the metropolitan area who tend to view themselves as "grassroots" Aboriginal people and closer to their tribal brothers and sisters than to the blacks who have succeeded in obtaining a secure foothold in 'White' society.
In focussing on the communication dimension of the problematic relationship between Aboriginal people and the White legal system this thesis sees the decision in court as a link in a chain of transformations linking a world of events, where crime is said to have occurred, to the judicial decision and to the sentencing of the alleged offender. It argues that the set of transformational sites constituted in this chain by pre-trial interviews (with police and defence lawyers) represents a crucial stage. The thesis will therefore concentrate on this area, establishing the forms and forces at work and the possibilities for distortion. It sees Aboriginal people living in or near cities and towns such as the fringedwelling Nyungars of Western Australia as a group which is especially misunderstood, and for this reason deals particularly with them. They, like their brothers and sisters in or near other cities and towns in Australia, tend to be dismissed as not proper Aboriginals' because on the one hand they do not conform to the stereotype of the full-blood' or tribal' Aboriginal - the mythologised noble savage' - nor have they abandoned their Aboriginality sufficiently to be comfortably absorbed into White' society.
Without their generous co-operation and eloquent voices no such exercise as this one would be feasible or possible.
The process of physically and psychologically appropriating the Aboriginal person into the White judicial apparatus could probably be described as taking place simultaneously on various inter-related ideological planes: criminological, anthropological', sociological', cultural', or economical', among others. However, in view of the powerful part words and language play in the process these can be seen and treated as the axis or pivotal point towards which all other aspects ultimately converge.
Paulo Freire (1975:57-59), in making an analysis of the levels of consciousness in Latin American reality invokes the notion of a "culture of silence" - an analysis, as he points out, which does not preclude its application to other areas in the Third World, nor to those areas in the "metropolises" which identify themselves with the Third World as "areas of silence". The past and currently available discourses on' Aboriginal people are in fact maintained, facilitated and permitted by just such a "culture of silence", in large part arising from the peculiar quality of the relationship initially engendered by the position to which Aboriginal people were relegated at the time of occupation of their country and the disruption of that culture by which they had heretofore lived, thought and had their being. Understanding the "culture of silence" notes Freire (1975:58-59), presupposes an analysis of dependence as a relational phenomenon which gives rise to different forms of being, of thinking, of expression, those of the "culture of silence" and those of the culture which "has a voice".
Though the context in which these societies relate to each other is the same, the quality of the relationship is obviously different, in each case being determined by the role which each plays in the total context of their interrelation.
One of the major political tensions in Australia today, recognised and exploited by opposing parties, is generated by the still relatively faint but increasingly insistent murmurings in that same culture of silence - Aboriginal voices are increasingly being heard to question the injustices under which they have lived and continue to live, and to force a critical re-examination of the much-vaunted catch-cry of equality' with which rulers seek to justify them.
"For Aborigines", observes Tatz (l979:86) "the ultimate indignity is the sovereignty of those who control the gathering and dissemination of the written and spoken word concerning their situation". Thanks to the fact that Aboriginal writers, broadcasters, singers, artists, poets, film-makers and playwrights as well as political activists and pressure groups' are increasingly making their own voices heard after a century and a half of being spoken for by white colonists, their discourse is slowly succeeding in drawing white Australian, if not world-wide, attention not only to their needs and their rights, but also to the massive levels of disjunction which continue to exist in the area of black/white communication. Evidence of the conflict has long been a feature of our co-existence; it shows little if any signs of abating in 1989 and this despite the investment of considerable financial and human resources by successive State and Federal governments, and numerous commissions of enquiry into the True State of Affairs' relating to the Aboriginal problem'. "The chorus of Aboriginal cries, their chants of discrimination, have become so loud, so repetitive, so provable, as to gain credence and validity in the public mind" (Tatz 1979 p 18). Even so, Aboriginal people are under little illusion that the overarching White ideology still remains, at its best, tainted with the old colonial paternalism so admirably documented by Anna Haebich (1988) in her work For Their Own Good.
Stephen Muecke (1982:100), exploring "available Discourses on Aborigines" observes:
... it is not true to say that we are all positioned in the same way in relation to the dominant or available discourses. Discourse theory tends to disrupt the notion that language is a tool' which individuals can employ more or less skillfully to express ideas that have their sources in individual psyches. ... it is important to remember that individuals are born into language and have no say in its formation; rather individuals are formed by language, and in particular by its discourses.
It is in this way, according to Muecke, that available ways of talking about Aboriginal people are open to discussion and criticism: ways which, at the present time and due to contemporary political and sociological pressures, may at one level be changing yet at another both retaining and reinforcing the characteristics by which they can, he claims, be described. He isolates three dominant forms: the Anthropological, the Romantic, and the Racist, which he describes as tracks which "sometimes cross each other, sometimes double back on themselves, and sometimes even Blacks use them". Muecke takes Foucault's description of anthropology as his starting point: "a discourse which takes for its object of study a transcendental concept of man" - asking the question "What is man?" and thereby confusing the empirical and the transcendental such that philosophy sleeps again in a double fold' of dogmatism. From this philosophical space, argues Muecke, a set of discursive practices emerge "which depend on relationships of dominance in the colonial encounter". He cites Foucault as having situated ethnology:
within the particular relation that the Western ratio establishes with all other cultures; and from that starting point it avoids the representations that men in any civilisation may give of themselves, of their life, of their needs, of the significations laid down in their language; and it sees emerging behind these representations the norms by which men perform the functions of life ...
The unexamined notion of a "Western ratio" in itself raises questions about taken-for-granted assumptions of the very sort Foucault and Muecke appear to challenge. For it begs the very question as to how, given that ethnology as ethnology must necessarily constitute a looking-outward-at, such an activity could, by virtue of its very nature and its definition of itself, be other than it is - even if and when practised by non-Westerners, including Aboriginal people. It could be argued that any description or representation, as opposed to dialogue and consensus, must ever and inevitably result in some degree of mystification. The fact that Anthropology, set up as an authoritative and seemingly objective account, "has shaped an avoidance of issues important to Aboriginal people" should therefore come as no surprise, given the very objectivity claimed. Suffering and oppression are both emotive and subjective, and, as pointed out by Paulo Freire (1975:78), critical consciousness is something which is brought about "not through an intellectual effort alone, but through praxis - through the authentic union of action and reflection".
Muecke (1982:106) makes the point that Anthropological, Romantic and Racist discourses share certain features - all three being essentially grounded in notions of difference'. They articulate the differences at different levels and at the same time maintain the power to articulate the terms in which difference can be stated: the anthropological in the domain of knowledge'; the racist in dismissiveness or obsession; the romantic in a form of mythologising based on the notion of a utopian past which nostalgically and effectively mystifies the present.
Racist discourse, through a series of metaphoric displacements, functions to designate a people as something other than adult, white, perfection, the attributes of which tend to be self-determination, discipline and individualism.
The second feature of racism, says Muecke, is that of essentialism, or geneticism: "This structures discourse in such a way that social conditions or whatever is going on, are seen as the effect of peoples' genes, their essential racial difference".
Muecke (quoting Kress and Hodge) gives grammatical examples of the manner in which people materialise their anthropological, racist or romantic attitudes by selecting certain sentence constructions, grammatical categories and tropes:
The grammatical placement of the discursive object positions this object in relation to the speaking subject. This relation is habitually read as a social perception, whether the speaker intends this reading or not.
Events or processes take place in the daily lives and activities of Nyungars which because of their nature are seen by representatives of the law (though not necessarily always by the Nyungars themselves) to be indictable offences against law and order. Intervention by police is usually the first phase of an ensuing progression involving the transformation of those processes into the necessary material facts' of legal discourse suitable for examination and negotiation in a court of law. There is a certain irony in both the ambiguity and the appropriateness of a word which derives at one and the same time from the Latin factum - something done' and factum - made'. For certainly things are done, offences committed, but equally, and with serious consequences for the individual and his society, other things are also made'.
How then are the facts' that have been done' transformed into the infinitely more powerful facts that are made'? The suggestion that legally-tenderable facts are somehow arbitrarily constructed from the basic building blocks of lived experience need not posit the existence of a conspiracy theory. The consideration alone that writing, as apart from spoken communication, becomes central in the law-enforcement process is in itself significant. As noted by Goody and Watt (1980:331), any writing "establishes a different kind of relationship between the word and its referent, a relationship that is more general and more abstract, and less closely connected with the particularities of person, place and time, than obtains in oral communication". The time-hallowed customary practices of the legal process itself, when adhered to uncritically and unquestioningly by its practitioners, do not seem to lend themselves easily to the possibilities for alternative strategies, quite apart from any other determinants which may well also be involved: and this, in spite of the fact that the same "particularities of person, place and time" do in fact become the pivotal points for the ultimate decision regarding the fate of the accused.
The suggestion that many Aboriginal clients are at a particular disadvantage in this area can be theorised from more than one vantage point. While language as an element is not by any means the only factor at issue in the legal process, as mentioned earlier it does occupy the natural pride of place and central importance. Unlike, for example, many European countries, especially the smaller states whose inhabitants acknowledge the existence of languages other than their own and take them into account, historically the majority of settlers in Australia (apart from a handful of anthropologists and sociologists, police officers used to serving in Aboriginal areas, and missionaries of various creeds) for the most part blithely ignored or were unaware of the fact that the original inhabitants of this land spoke many different languages albeit of the same group' while at the same time retaining their Aboriginal commonality. It is even possible that many contemporary Australians are still unaware that some, although sadly too few, of these languages have managed to survive and are quite widely spoken in some areas. - a situation which centres like the Alice Springs Aboriginal Broadcasting Service and C.A.A.M.A. - Imparja may well do something to change. And further, as noted by Kaldor and Malcolm (1979:409),
Far from being primitive' as many people think even today, all these languages were highly developed and complex and reflected equally complex cognitive structures in their grammatical and lexical distinctions.
In a society which valorises Standard English' as the most acceptable transactional norm, the fact that the Nyungars of W A (as indeed also do the Aboriginal inhabitants of sister cities and states around Australia who are born into an English-speaking environment) have their own distinctive dialect, can seem of little account, or its status be under-rated.
The universal currency of Standard English' and its grammar as a dialect has certain advantages in that competence in this area is shared globally by a large number and wide variety of peoples and nationalities and its usefulness can be measured in Esperanto'-like terms. Underpinning this competence, however, is a tendency towards the insidious idea that other languages or dialects than one's own are somehow inherently impoverished or lack grammar'. Perhaps one of the most socially and philosophically-valuable contributions modern linguistics has made is to challenge and render specious any such notions and to recognise and validate the claim that a characteristic form of talking within a specific speech community has its own rules of grammar, contains its own separate registers of use, and carries also a set of rules regarding appropriate speech behaviour according to situation and context.
American linguist William Labov (1980:179-215), challenges and invalidates such deprivation or deficit theories in his work and describes the general setting in which they arose in America where there was a high degree of failure at school among Negro children and segregated ethnic groups in central urban ghettos, and upon which he pronounces (1980:180) as follows:
... the myth of verbal deprivation is particularly dangerous, because it diverts attention from real defects of our educational system to imaginary defects of the child; and ... leads its sponsors inevitably to the hypothesis of the genetic inferiority of Negro children which it was originally designed to avoid.
According to Gumperz (1972:220), the current state of our knowledge "provides little justification for associating absolute differences in verbal skills with class or ethnic background". It would be more useful, he suggests, to assume that different social groups use different verbal devices for the transmission of social meaning. Lexical elaboration', Gumperz's paraphrase of Bernstein's term for the code which relies most heavily on the expression of non-referential meaning through words, is one of these devices but by no means the only one. Similar information, as Gumperz observes, can be conveyed through style-shifting, intonation, vocabulary, topical selection and like devices. Gumperz distinguishes between "linguistic competence ... the speaker's ability to produce grammatically correct sentences" and "communicative competence ... his ability to select from the totality of grammatically correct expressions available to him forms which appropriately reflect the social norms governing behaviour in specific encounters".
For this reason it is important to recognise that cross/dialectal communication is a special situation and deserves to be treated as such. It is simply not good enough to assume, for example, that when a lawyer or a policeman interviews a Nyungar difficulties arise because the Nyungar can't or won't speak clearly or communicate effectively due to a lack of linguistic competence on his part or because his language is in some way defective. (Nor does it require much imagination to conceive of the lack of confidence such an implication may engender in the person subjected to it, and of its potentially silencing power.) Such assumptions validate the task of the dominant participant, in addition to his task of communicating with his client, in trying somehow at the same time to coach him in the appropriate legal discourse. The fact is that the Nyungar simply has a different way of talking with which he may communicate admirably within his own speech community and in other situations than when he is interacting with representatives of the law. The lawyer or policeman, through no fault of his or her own may not be linguistically or communicatively familiar with it.
In addition therefore to the double transformation via Standard English' effected firstly, verbally, by means of police/suspect or lawyer/client interview, and secondly, semantically and graphologically, in terms of the police recorded statements', confessions', or records of interview', or the lawyers notes on the case, Aboriginal people are placed at one extra additional remove in terms of communicative viability by virtue of the fact that they belong to a different speech community initially.
Events' may or may not be accompanied by words. Sometimes the words themselves constitute an offence and, for the purposes of law, are treated as events, eg verbal assaults, obscene language, libellous statements; sometimes events may combine both actions - disorderly conduct', and words - abusive language', which mutually reinforce the offence. Such crimes as violence against the person, housebreaking, the illegal use of motor vehicles, receiving stolen goods, on the other hand, are relatively independent of verbal language at the event' stage. At the reconstruction stage of the legal process however, language, both verbal and written, but especially written, takes over as the powerful determining factor in subsequent developments and the fate of the individual or individuals concerned. The general reliabilty or claim to validity of this single factor, once it has been appropriated by the legal machine and somehow thereby hallowed by association, is rarely challenged. If it sometimes is, it is usually with regard to accidental and superficial questions of exactitude or fact' rather than with the less concrete but more essential normative validity claims. As noted by Kress and Hodge (1979:5):
Language fixes a world that is so much more stable and coherent than what we actually see that it takes its place in our consciousness and becomes what we think we have seen. And since normal perception works by constant feedback, the gap between the real world and the socially-constructed world is constantly being reduced so that what we do see' becomes what we can say.
The sequence of discursive acts or texts' involved in the legal process is one which is at once subject to fluctuation and variation in the manner of its language use and yet both prospectively and retrospectively constrained and determined by the formal demands of that institution's universe of discourse.
Foucault (1978:49) speaks of discourses as not groups of signs (signifying elements referring to contents or representations) but rather "practices that systematically form the objects of which they speak". "Discursive formation" he sees as existing whenever one can describe, between a number of statements, "... a system of dispersion (wherein) between objects, types of statement, concepts, or thematic choices, one can define a regularity (an order, correlations, positions and functionings, transformations)."
The discursive construction of the Aboriginal individual as the object of which the law speaks and upon which it pronounces takes place therefore along the lines of predictable and legitimated practices which s/he is ill equipped to resist. For as noted by Foucault (1969:68):
in our societies as in many others the property of discourse - in the sense of the right to speak, ability to understand, licit and immediate access to the corpus of already formulated statements, and the capacity to invest this discourse in decisions, institutions, or practices - is in fact confined (sometimes with the addition of legal sanctions) to a particular group of individuals.
Foucault explores (1978:58-59) what he calls "the procedures of intervention" that may be legitimately applied to statements in the process of their formulation. He speaks of "techniques of rewriting", "methods of transcribing", "modes of translating quantitative statements into qualitative formulations and vice versa", "the way in which one transfers a type of statement from one field of application to another", "the methods of systematising propositions that already exist, but in a separated state; or again the methods of redistributing statements that are already linked together, but which one rearranges in a new systematic whole ...".
Such procedures can be seen to be applicable and practised in the sphere of activity under scrutiny here. And while the precise anatomy of the anonymous body of mostly unspoken and unwritten rules upon which the discursive formation of the law is based may not so easily perhaps be traced, it is possible to observe, and draw some tentative conclusions from, the process of those rules in action.
In order fully to appreciate the procedures of intervention' indicated by Foucault it becomes necessary to view these interventions at two distinct if interdependent levels: distinct because they involve both speech and writing, interdependent because it becomes increasingly difficult in our so-called literate' society to mark the precise borderline between these two activities. If I misunderstand my partner in a communicative exchange what I effectively do is to re-write', if only figuratively, what s/he is saying. Such re-writing' can take place without any visible material signs being traced during the course of ordinary conversation in a comparatively unregulated way. The re-writing which occurs along the Chain of Discourse in which an Aboriginal person accused of breaking the law is involved however takes place according to pre-determined rules of a particular discursive formation of a special sort and will be explored in greater depth in Chapters Five and Six.
The interview as text is text 2 in the evolutionary chain of texts from event' or happening' in the world to the final passing of judgement in court and handing down of sentence. The interview as text is normally however the one missing link in the whole corpus of available data. Attempts to answer the question as to why this should be so are as many as they are varied but fail to justify an absence so troubling in its implications and of such far-reaching interest and concern.
The statement' as text is text 3 in that same chain and evolves from and is constructed at the same time as text 2. Significantly, it is as carefully preserved and religiously validated as the former is effectively consigned to silence. It is not usually possible to speak of a typical' police/Aboriginal interview except by hearsay. It is possible, however, to speak of a typical statement because of the tangible existence of the latter. I shall look (Chapter Six) at two available recorded police/Aboriginal interviews and compare them with their resultant statements'. I have thought it reasonable to hypothesise that the relationship obtaining between them is typical of the relationship between other statements and the interviews upon which they in their turn have been based.
The policeman, and the defending lawyer, are participants with the suspect in speech events which at one remove would appear to be very different from each other. The interview between the suspect and the policeman takes place either near the scene of the offence or some time later at the police station. The policeman is on the side of the law and his interest is, by virtue of his role, in the prosecution of a culprit. The interview with the lawyer is likely to take place either in the latter's own rooms, at the remand centre or in an interview room outside the court. The lawyer, while not being opposed to the law, is nevertheless on the side of his or her client to defend him or her against possible injustice in the administration of that law. There is evidence to suggest, however, that these two somewhat different events may have much more in common from a discursive point of view than perhaps might be expected, one of the more obvious common denominators being the ritual process of message reformation or transformation required in each case. For neither lawyer nor police officer, even if either be an expert linguist and have unlimited time at his or her disposal, can be absolutely certain that s/he has perfectly understood the interviewee at each stage of the interview and that the written textual outcome of that interview, upon which s/he will have to rely in court, is an accurate rendition of the exchanges in which they have both participated.
The effects of the legitimation of such interrogation and interviewing procedures relate directly to the findings of a pilot study conducted under the auspices of the New South Wales Bureau of Crime Statistics and Research in 1980. The study examined police-defendant encounters, as recorded in the files, and attempted to assess the importance of the interrogation process upon the later stages of the case. It established in particular the frequency with which confessional evidence is relied upon by the Crown and summarised as follows (Stevenson 1982:140-141) what it considered "the more important findings which emerged":
1.The vast majority of defendants (95%) made confessions or damaging statements when interviewed by the police. The frequency of such confessional evidence is much higher than has been reported by any overseas study.
2.The single most important factor affecting the decision to plead guilty was the nature of the confessional evidence against the accused.
3.Although written confessions were less common than verbal confessions, in nearly 80% of cases there was written' or oral and written' confessions.
4.In relation to the question who confesses?' the most significant factor appeared to be the nature of the offence. It is somewhat surprising that those charged with more serious offences more frequently supplied incriminating statements.
5.The defendants generally confessed within a relatively short period of initial police contact.
6.The type of confessional evidence (oral, written, oral and written) presented at trial bore a correlation to the overall rates of guilty and not-guilty verdicts. Defendants who allegedly made verbal confessions only were more frequently acquitted.
7.In all the trial cases the Crown relied on police witnesses and in the overwhelming majority of cases the police witnesses gave evidence of alleged admissions made by the accused.
8.A substantial proportion of trial time was spent contesting confessional evidence.
9.In only one trial case in which a voir dire was held to determine the admissibility of the confessional evidence did the accused succeed in having the evidence excluded.
10.In 50% of the trial cases the accused made an unsworn statement from the dock and in only 10% of cases did the accused give sworn evidence from the witness box.
11.The giving of a caution, at least as presently worded and administered, seemed to be of little or no significance in regulating the relationship between the suspect and the police during interrogation. Many defendants volunteered or blurted out' damaging admissions and most defendants apparently waived their right to silence even after being cautioned.
12.Few defendants obtained legal advice prior to or during the police interrogation. Furthermore in seven of the ten cases in which the defendant did obtain legal advice it was alleged that the defendant had made damaging admissions at some time prior to the obtaining of legal assistance.
The study claimed (1982:141) that there could be little doubt that the questioning of the suspect at the police station and the Crown evidence of the encounter was "of critical impact on the decision to plead guilty and the subsequent disposition of the defendant's case". One of the weaknesses inherent in the study, and noted by Stevenson in her report, (1982:106) was the fact that "the dynamics of the process cannot be recreated from the court records containing the police account and, in some instances, the defence account, of the encounter ..."
So if, as seems to be the case, such a heavy reliance is placed on a text constructed as a result of verbal transactions between suspect or witness and police officers, then, although it is only one formulation in a series it would appear to be the most crucial one: it is at one and the same time an object which has been discursively produced and a space within which other and similar objects appear and reappear. Significantly, they are transcribed according to the perceptions of particular agents, according to a system of rules which ensure their legitimate acceptance in a particular context - the context of the orderly court. They are accepted as evidence'.
To be there and witness an event is probaby as close as one can get to the truth' of what happened. Much of the communication or lack of it which takes place between Aboriginal people and representatives of the law, both lawyers and police ostensibly involves attempts by means of the interview' to effect a truthful reconstruction of an event or events situated in the past' which have resulted in an individual or a group being charged with having broken the law.
The word interview' carries with it, as its etymological derivation from the Old French, entrevoir, implies, the concept of a seeing' subject and a seen' object, a viewer' and a viewed'. As such it immediately poses a challenge to any communication theory which posits a notion of equal standing between participants in such a speech encounter or functioning language game'. The interview contrasts with the notion of dialogue or natural' conversation. It is a game of stimulus and response involving demanding and receiving information - question and answer, or statement offered for confirmation or denial. It has characteristic rules, knowledge of which and assent to which by participants both constitute its legitimating and justificatory grounds and facilitate its structuration. It is also an exercise in which both the lawyer and the police officer, albeit in their different roles, occupy an unquestioned position of power in relation to the interviewee. For the latter, while it is the site of the only opportunity s/he has to speak of or for himself or herself, it is at the same time the one where s/he is likely to be at the greatest disadvantage in endeavouring to do so.
"A policeman is a detective until he arrests a suspect; after that he becomes the prosecutor" seemed a particularly telling comment by a senior police inspector with whom I came in contact in the early stages of my research. The idea of the police officer or detective assuming the role of prosecutor, while inimical to the notion of British or Australian justice, is legitimated in practice. For when, as has been noted, there is an asymmetrical power relationship between participants in the police/Aboriginal interview situation this can most effectively facilitate the assumption of the role of prosecutor' by the police officer concerned.
The goal-oriented activity in which police officers and interviewees are engaged demands for its fulfilment that an unambiguous outcome should be the result. Since the police officer is in charge and the goal for him is clear and well defined it is not surprising that texts such as those of interviews - which for a linguist, anthropologist, sociologist or psychiatrist provide valuable sources of insight and information - must needs in the formation of the statement', and by a process of permissible tamperings', be stripped of all that might be construed as of ambiguous or polysemic content - anything in fact which may not be immediately assimilable and clear to judge, jury or magistrate as the "facts of the matter" - "the truth, the whole truth and nothing but the truth".
Such characteristic regularity' as does seem to exist between many if not all of such confessional or witnessing statements may well show evidence of what Foucault (1978:28-29) calls "synthesising operations of a purely psychological kind (the intention of the author, the form of his mind, the rigour of his thought, the themes that obsess him, the project that traverses his existence and gives it meaning) ..." Some such "synthesising operations" would indeed seem to be in operation each time the disorderly but meaningfully rich stuff of the cross-cultural exchange which constitutes the police/Aboriginal interview is transformed into the factual' one-dimensional, and, above all, legitimated, texts or systematically organised presentations of reality" (Kress and Hodge 1979:15) our courts accept or reject, but mostly accept, as valid and influential documents in the process of dispensing justice.
As noted by Kress and Fowler (1979:79) "the interview is a peculiar conversation in that it is an intense stereotyping of the power differences encoded in discourse generally".
The basic fact is that the interviewer has power qua interviewer. He is in control of the mechanics of the interview: he starts it, he has the right to ask questions, he selects the topics which may be introduced and ... he even has the prerogative to ask questions so designed structurally that no new information can be introduced.
The interviewee only has the right to ask questions in the very rare, and often merely token, situation of being given explicit permission to do so.
The reality referred to in the text of the "statement" while purporting to be the reality of the event in the world which it describes, in fact refers primarily to the encounter between police officer and suspect in the context of their interview and is primarily the expression and codification of that encounter.
The frame or context for the police officer is a "case" to be "cleared up" and he has a recognised and legitimated "method" for accomplishing this task. His thought and his language will inevitably be defined for him according to this particular reality' and will inevitably be influenced by it: a discursive situation more conducive to "anti-dialogue" than to true dialogue.
As observed by Bacon and Landsdowne (1982:11) sociologists have concluded that police see themselves as "criminal catchers". The policeman has been described as viewing criminal procedure "with the administrative bias of the craftsman", and as "tending to resent those critics who measure his value against abstract principles of legality and justice rather than against the reality of his workaday world". But critics like Habermas, who argue that the rationalisation of discourse "involves emancipation from distorted communication not technical efficiency in satisfying pre-defined goals" (Silverman and Torode P 344), would class such a craftsmanlike' strategy as being a total travesty both of legality and of justice.
According to Goffman (1974:247): "a strip of activity will be perceived by its participants in terms of the rules or premises of a primary framework, whether social or natural, and that activity so perceived provides the model for two basic kinds of transformation - keying and fabrication". Such "keying", "bracketing" or "orienting remarks" provide the boundaries within which the activity can take place and the "fabrication" referred to by Goffman (using as he does the analogy of the role-playing of actors in Western dramaturgy) enables the participants to act out the roles demanded of them in carrying out and completing the activity in which they are taking part. The framing of the activity is thus essential to its process and while the notion of frame is problematic in the sense that the activity itself is part of larger and more complex activities which are themselves also framed (and while out-of-frame activities can sometimes intrude within any particular frame) nevertheless it is a useful methodological concept in the analysis of communication. The frame' within which the interview takes place is one in relation to which, and taking account of which, the participants will structure the various moves they will make within its immediate context: it suggests, as the word itself implies, an area of fixed boundaries within the limits of which the events that take place are shaped and influenced by the existence of such boundaries. In the case of communicative events, such framing constitutes a "superordinate message about how the communication is intended" (Tannen 1984:23). Hence within the frame (police/witness interview at police station) the police officer will initiate the enquiries; make the opening moves; solicit rather than proffer information; control the spatio/temporal boundaries; direct the thematic content. He or she further assumes that in so doing s/he is participating in a clearly-defined, goal-oriented activity whose tacit rules and implications are understood as well by his interlocutor as they are by him or her. The fact that none of these assumptions is made verbally explicit suggests two things at once: (a) that the frame itself depends on a shared cultural context, and (b) that its structuring subjects select the units of significance of which it is composed.
A shared cultural context' in the case of a police officer and an Aboriginal person is not, clearly, intended to suggest a common culture, but to indicate that though coming from different cultural backgrounds they do nevertheless share certain presuppositions and understandings both about the overarching socio/political framework within which they operate and the more immediate purposive situation. Such "salient contexual information" or "mutual contextual beliefs" (Bach and Hamish 1979:5) is the working basis for the activity or transaction in which they are mutually involved. In other words, a prerequisite for the meaning-making potential of the interview itself is some knowledge or assumptions on the part of participants about the circumstances under which such an interview takes place, and, in addition, some knowledge about the future uses if any to which the outcome of the transaction - in the case of the police interview, its "documented representation" (Garfinkel 1967:202) - will be put. Garfinkel, in describing how in the case of clinical records the folder contents "much less than revealing an order of interaction, presuppose an understanding of that order for a correct reading", defines the "contingent" nature both of the compiling and of the reading of a folder's contents and points (p 192) to the "intricate and sensitive" ties between records and the social system that services and is serviced by these records.
The accumulated material (in the case of the medical record) will be read in a different way, by different clinicians, for different purposes in accepted and acceptable medical practice. Social scientists on the other hand must of necessity transform such material to the status of comprehensive answers to questions. In doing so they rephrase the actual folder contents "so as to produce something like an actuarial document that ... possesses the desired properties of completeness, clarity, credibility ..." (Garfinkel p 190). The transformed content of the record will then lend itself more readily than the original material to various kinds of social scientific analyses, on the assumption that there exists "a defensible correspondence between the transformed account and the way the information was meant in its original form".
Such respected methodological practices as on the one hand the use of medical folders and on the other the use of the "documented representation" of interviews have been unproblematically institiutionalised through repeated use for particlar purposes. Those purposes in and of themselves tend to prescribe "prevailing rules of practice" in that the reporters actively seek to act in compliance with rules of the clinic's or the policing procedures that "for them and from their point of view are more or less taken for granted as right ways of doing things" (Garfinkel:1967:201). The order thus understood and acted upon, however, as Garfinkel observes, is one that is more appropriate to a pragmatic interest in the order itself than one that strives for theoretical clarity.
Framing is as much constitutive of the context therefore as constituted by it. In other words, the ideological structure of the interview both defines and is defined by the set of strictly limited choices of which it is formed. The primary and most significant limitation is imposed by the process by which the text comes into being - language itself. This happens by virtue of the fact that the superordinate message about how the communication is intended - i.e. its framing - imposes certain practices and rituals which intersect with and effectively transform or reshape the signified to conform with the activity contained within its boundaries.
The discursive constraints under which participants in a speech activity operate can sometimes lead to minor and reparable dysfunctional communication; equally they can generate quite serious because disregarded disjunctures. Overarching the level of interaction and negotiation, however, and affecting both, are the relations of power as they obtain between participants: power as examined in terms of institutional power by Foucault or in terms of language as ideology as explored by Kress and Hodge (1979). When these relations are asymmetrical, as clearly they frequently are, then otherwise felicitous conditions for communication are weakened and the "truth value" of its outcome is open to question.
Modality' in grammatical and semantic analysis refers to contrasts in mood signalled by the verb and associated categories (Crystal 1980:227). Kress and Hodge (1979:127) suggest that there are a large number of ways of realising modality: non-verbal and verbal, "through non-deliberative features (hesitations, ums. ers , etc) and deliberate systematic features, which include fillers (sort of), adverbs (probably, quite, better), modal auxiliaries (can, must), and mental-process verbs (think, understand, feel), and intonation". According to Kress and Hodge, the speaker translates uncertainty about status in the power situation into uncertainty about the status of his utterances: "a speaker uses modalities to protect his utterances from criticism. A large number of modalisers indicates considerable fear on the speaker's part and vulnerability, rather than intellectual uncertainty". When, however, the end products or outcomes of such interviews are preserved in written form, this ensures for such products that, while the co-operative principle' may not have been in force or have been violated during the interview itself, the literariness' alone of the texts based on such interviews, whether they be "confessions", "statements", "records of interviews" or "verbals", can effectively obscure such violations from subsequent readings and presentations. And, quite apart from the individual interrogator's or recorder's intentions, they become part of and are validated by, the discursive formation of which they have now become a part.
Michael Halliday (1979:79) observes, in Language as Social Semiotic, that the speaker-hearer relies heavily on the social system for the decoding of a text. He also says that participants in an encounter or interaction accord each other certain statuses and roles and that they do so partly by means of attention to the text - the meanings that are exchanged. The context in which meanings are exchanged are, according to Halliday, part of the meaning-making mechanism itself. Two things emerge from this that are relevant to both lawyer/Aboriginal and police/Aboriginal interaction. With regard to the first statement it can be argued that in defining the social system to which most White lawyers and most White policemen belong one is not really defining the social system to which most Aboriginal people belong. With regard to the second statement, it is true that at times the Aboriginal person complies in according to himself or herself an inferior status and role in the interaction situation with lawyers as he does with police. It is also true, however, that s/he quite frequently, and perhaps more than is commonly acknowledged, endeavours to re-negotiate his or her allocated role to better advantage. The fact that s/he so frequently fails to gain such advantage seems to be a result not so much because of the conscious intention of an individual lawyer or an individual policeman (though instances suggesting this could be cited) but because of the discursive process involved. In the police/Aboriginal interview the police officer occupies a site of intersecting areas of power and authority: firstly his or her legitimate authority as representative of the law per se and all that this connotes; secondly, his or her particular authority as perceiving agent of that law, both to question his or her interlocutor and to transcribe spoken into written statements; thirdly, and perhaps most importantly, the weight of an authority and power accidentally accruing from the silent but nonetheless powerful signifier of his or her skin colour.
The Nyungar, by contrast, in any such interview, occupies a site of relative powerlessness and vulnerability, evoked initially by his or her association, however innocent, with the breaking of a law or laws; secondly, by his or her lack of control over both the verbal exchanges of the interview and, more especially, over the discourse of the typed statement'; thirdly, by the cultural assumptions activated by his or her skin colour (assumptions which constitute for the police officer or lawyer unquestioned, unproblematical, sociological facts' or givens').
Challenges to such assumptions are resisted and sometimes summarily dealt with. For example, an assumption by an arresting officer that most blacks are drunks can constitute the given' in his interaction with a Nyungar - and in turn determine his approach. An Aboriginal man describing one such typical encounter narrates -
I got arrested ... I got clipped under the ear for nothing ... he kept on saying to me what did you have to drink?' and I said I don't drink I'm a teetotaller. I drink tea - maybe cool drink - glass of milk - drink of water'. Oh' he said you're only just havin' a go at me'. See an I think that's when I think I really got him harassed and he got wild. You see that's when he clipped me. But I was only speaking out the truth. But he looked down on me straight away. ... It stuck in my mind too that they've sort of got you judged before they even come in contact with you. That sort of thing. They've got you worked out in their way which is wrong.
My informant's knowledge (that he never drank alcohol - that he was, in his words, a teetotaller') constituted a challenge to the arresting officer's knowledge' regarding Nyungars in general: a challenge to knowledge simultaneously translated into a challenge to power. The Aboriginal speaker's "but I was only speaking out the truth" suggests that he was unlikely to have anticipated the effect which his speaking that truth' - his knowledge - would have on the police officer. The particular knowledge' of the police officer which informed his act in this instance need not necessarily have been a matter of personal prejudice merely but part of the regime of knowledge which constituted the institutional site which gave him firstly the authority to interrogate and, secondly, the authority to validate the truth' of the utterances/statements resulting from that interrogation. For as noted by Foucault, cited by Morris and Patton (1977:46):
each society has its regime of truth, its 'general politics' of truth: that is the types of discourse it harbours and causes to function as true; ... the techniques and procedures which are valorised for obtaining truth; the status of those who are charged with saying what counts as true.
The important thing to bear in mind is that in any form of authoritarian discourse the form itself carries powerful messages over and above the sense or information its verbal manifestation linguistically contains. These overarching messages can have the effect of supporting or contradicting the literal' sense of the words or even of deflecting that sense in a way that creates a totally different meaning. One of the factors contributing to the asymmetrical power relationship between the police officer and the Nyungar is the fact that the former is a "statutorily defined person" (Foucault 1978:51) whose utterances and statements are indissolubly linked to the values, power and ideology of the defining and conferring authority - the law - and by extension the state itself. These are the institutional sites from which the police officer makes his discourse and derives his special quality and prestige. In employing such a discourse the police officer makes use of certain basic rules of ordinary conversation: this both masks and facilitates the special nature of the activity and enables a gradual process of step-by-step attrition to take place which culminates in a written text which has been drained of any evidence of coercion. Outside of, and seemingly uncontaminated by, ideology, the statement', whether it be made by a witness, confessed' by the accused, or the verbal' or record of interview', presented by police officers in court, remains the ultimate and most often used weapon against the disarmed subject: the voice by which s/he is spoken as opposed to the voice in which s/he might conceivably prefer to speak if s/he were really free to do so. Such a text effectively deprives the interviewee of any subsequent power over his or her words and places them in the hands of statutorily-approved agents to use as they see fit.
The relationship which exists between the originating speech event in the exact specificity of its occurrence and the written statement' therefore (quite apart from the problematic relationship of that speech event to the biographical event of its origin) can be at the same time partly true but equally false: true at the level of denotation and exclusion - "the truth and nothing but the truth"; false at the level of connotation and inclusion since it is not in fact "the whole truth". For the surviving text has been transposed and transformed to fit the requirements of another context - another frame. The contrived validity which underpins it has only been made possible by the involvement, willing or unwilling, of the person purported to be its originator at a time when that person still retained, if only to a very minor extent, a degree of autonomy.
This is not to say that a mutually-satisfying consensus is never possible. Participants in a communicative encounter can give each other the freedom to restate, confirm or deny, or otherwise check and re-check that the intention of each has been realised. This is distinct from the extra-linguistic objective truth' of the matter and relates to "that form in which the speaker or writer chose to present reality" (Kress and Hodge 1979:17). People do not always "tell the truth". An Aboriginal person may be arrested while driving a car owned and licensed by his brother or cousin. When asked to give his name he may choose to give the name of the brother or cousin rather than his own since a quick computer check by the particular officer of the car's registration number could cause further immediate problems for him. He constructs for his own protection an extralinguistic reality' which he then encodes for the arresting officer. The fact that an untruth may be employed in this manner as a result of a particular situation ethic places the onus on the police officer to seek and find evidence of the truth' in a legitimate other way than by necessarily expecting his addressee to incriminate him or herself: "the law against self-incrimination was the great change from trial by ordeal and Star Chamber justice" (Tubbs 1985:121).
As far back as 1926 the Russian philosopher-linguist Bakhtin was outlining his theory of the enonce - a theory which took into account the said' - le dit', and the unsaid' - le non dit'. Bakhtin foregrounded the part intonation had to play in the act of discourse (Todorov 1981:46):
Intonation is always at the boundary between the verbal and the non-verbal, the said and the unsaid. In intonation, discourse enters in immediate contact with life. ... Intonation is the most supple and most sensitive conduit of the social relations that exist between interlocuters in a given situation ... Intonation is the sound expression of social evaluation.
Bakhtin was at pains to avoid a mechanical interpretation of discourse as addressor-addressee-message, with the speaker having sole autonomy over the import of his utterance; rather he conceived of the utterance as a creation in which both participants played a part.
A perspective formulated by Bakhtin and described by Todorov in The Dialogical Principle proposes that a verbal utterance is always a social construct, in the sense that what is said is in a constant state of dynamic process fuelled simultaneously both by the addressor and the addressee: what is said and how it is said is influenced as much by the person or persons to whom it is addressed as by the person who speaks. In 1928 the Russian theorist Medvedev (Todorov 1981:87) was replying to the formalists when he labelled as radically false' their proposed model of literary communication which he represented as follows:
A (the author) and B (the reader) between whom social relations are for the moment constant and immutable; X (the message) which is simply transmitted from A to B by means of literary discourse.
In reality, according to Medvedev, relations between A and B are in a constant state of formation and transformation and continue to be modified in the very process of communication. Consequently it is not possible to speak of a preconstituted message' which can be labelled X. It is more correctly understood as being in a state of formation or becoming, in the process of communication between A and B:
Nor is it transmitted from the first to the second, but constructed between them, like an ideological bridge; it is constructed in the process of their interaction. (cited Todorov p 88).
The principle of such dialogic' relationships has a bearing on the theory elaborated by Habermas that the structure of ideal discourse is free from constraint only when for all participants there is a symmetrical distribution of chances to select and employ speech acts, when there is an effective equality of chances to assume dialogue roles in conditions involving freedom' and justice'. According to Habermas (Silverman and Torode 1980:34):
Pure intersubjectivity is determined by a symmetrical relation between I and You (We and You), I and He (We and They). An unlimited interchangeability of dialogue roles demands that no side be privileged in the performance of these roles: pure intersubjectivity exists only when there is complete symmetry in the distribution of assertion and disputation, revelation and hiding, prescription and following, among the partners of communication.
Interestingly, this concept of consensus is characteristic of Aboriginal modes of thought and communication and has been documented by many anthropologists.
One useful way of trying to decide what something is is to decide what it is not. It could reasonably be said that the type of communication involved in the interaction between Aboriginal and lawyer or between Aboriginal and police officer is not always, if it is ever, modelled on the notion of communicative ethics', as that term is defined by Habermas and by means of which a rational consensus' can be brought about.
As outlined by McCarthy (1984:325) Habermas's theory of communicative ethics is grounded in the "fundamental norms of rational speech". Based firmly on the principle of unconstrained and unrestricted dialogue within the bounds of which all participants must have the same chance to initiate and perpetuate discourse, communicative ethics has as its fundamental requirement and frame of reference that communication be permitted and facilitated in a totally non-coercive way. Such a dialogical framework takes full account also of subjective as well as objective aspects of communication and includes individual interests, wants, needs and desires. As noted by McCarthy (1984:328) "interests are neither empirically found nor simply posited - they are shaped and discovered in processes of communication. Autonomy requires ... not the suppression of inclinations but their insertion into, or formation through, nondistorted communication".
Despite the fact that such an ideal speech situation could only ever, even in the best of all possible worlds, be approximated rather than realised, Habermas insists that such an ideal, connected as it is with an ideal form of life is the only rational basis for communication purporting to establish the "truth" of any situation. Not only he says must there be unlimited discussion with equal opportunities for all sides but also this discussion must be free from all constraints of domination of any sort or in any of its many forms. Such communication would of course include linguistic conceptualisations of traditional notions of both justice and truth. In fact he would argue that truth' cannot in itself be analysed independently of freedom' and justice'. The good and true life' therefore which is the goal of critical theory is inherent in the notion of truth and is anticipated, even if it is not always realised, in every act of speech.
It would be difficult to argue against the logic of such propositions in the name of justice. I hope to argue however that the institutionalisation of speech and writing within the legal framework places particular and serious obstacles in the way of approximating the ideal of undistorted communication between representatives of the law and many of its subjects.
In a similar manner Paulo Freire (1972:60-96) explores the notion of dialogue' and anti-dialogue' - adding a further dimension to the concept of ideal discourse by including such conditions as "love, hope and mutual trust". Dialogue, Freire sees as "a horizontal relationship between persons: a relation of "empathy" between two "poles" who are engaged in a joint search. The "poles" of the dialogue Freire sees as being linked by "love, hope and mutual trust". Only when they are can they join in "a critical search for something". This search', for Freire (1976:136) is the active element in communication and requires the condition that "the verbal expression of one of the Subjects must be perceptible within a frame of reference that is meaningful to the other Subject".
If this agreement on the linguistic signs used to express the object signified does not exist, there can be no comprehension between the Subjects, and communication will be impossible. The truth of this can be seen in that there is no separation between comprehension (intelligibility) and communication as if the two comprised different moments of the same act. On the contrary, intelligibility and communication occur simultaneously.
The important point is that neither Habermas nor Freire simply invokes an unattainable transcendental ideal existing in some Utopian vacuum but demand rather as a necessary concomitant condition of communication that it should be governed by, in the case of Habermas for example, binding consensual norms', and in the case of Freire comprehension' or agreement on the linguistic signs'.
Freire (1976:138) further elaborates his concept of communication by citing Urban who classifies acts of communication as occurring basically on two levels: the sphere of emotion' and the sphere of Knowledge'.
In the first case ... communication manifested on an emotive level operates by contagion'. In this type of communication one of the Subjects evokes a certain emotional state in another (fear, joy, hate, etc.) and can be influenced by this state. Alternatively s/he can get to know this state in the Subject manifesting it.
On the second level communication is seen as operating between Subjects about something which mediates them and which is accessible to them as a "knowable fact". The topic which mediates can be a "concrete fact" - such as, for example, techniques of some kind or a "theorism".
In both these cases true communication is not ... the exclusive transmission of Knowledge from one Subject to another, but rather his co-participation in the act of comprehending the object. It is communication carried out in a critical way.
Paradoxically, the successful completion of the process of anti-dialogue, which is a necessary feature of many if not all of the police/Aboriginal texts, requires and employs that aspect of the communication process described by Urban as belonging to the sphere of emotion in order to facilitate such completion. Perhaps the most dynamic of the emotive factors is fear, under any of its forms. It could be argued that the conditions under which the interrogation of a suspect takes place are, very frequently, conditions of fear.
On an emotive level therefore communication can and does take place between interrogator and suspect: between Subject A and Subject B, and when police officers (as they do) observe with feeling "Believe you me they understand all right" they are in fact describing what they correctly perceive to be efficient communication at this experential level. It is quite another matter to treat the outcome of such efficient' communication at one level as reflecting a totally effective' communication.
In the sphere of Knowledge', Freire's condition of communication as requiring that "the verbal expression of one of the Subjects must be perceptible within a frame of reference that is meaningful to the other Subject" while a potential obstacle to effective communication (given the differences between the signifying systems of the law and the signifying systems of Aboriginal people - differences which can be explored at more than one level) does not therefore in itself constitute an insurmountable problem for the police officer in his construction of an efficient record', interpretation', translation', of the meaning of his encounter with an Aboriginal person in the interview/interrogation situation. It does, however, highlight the unlikelihood of the occurrence of such dialogic communication as in a democratic' society and under the aegis and rationale of a just law might be conceived of as the only acceptable option. And since, even if in the very nature of things, communication may never be a passive reception of the signs communicated by one person to another, but more an "active struggle" (Silverman and Torode, 1980, pp 3-19), at least such a struggle' should be acknowledged for the unequal contest that it is and some efforts made to restore the balance. The interview situation is a classic example of such inequality. Goldschlager (1982:11) suggests that the form of a discourse can be considered as another discourse that must be read in a different frame of reference which can carry a powerful message which is not expressed by the words themselves - a "discourse of the structure", in contrast to the "discourse of the words". He speaks of statements "whose goal is to direct the life and social behaviour of the receiver, placing him under the guidance and authority of the emitter". Imperatives are described by Goldschlager as the most obvious grammatical example of a direct power set up: one gives orders, the other obeys. Questions need not in the ordinary course of events and in casual conversation always be taken as imperatives - although, following the chaining' rule of adjacency pairs, they frequently are. In the structure of the interview', however, the implication of a question is that it virtually commands an answer - thus assuming de facto the nature of the imperative, if not its grammatical form.
Even if it were possible to posit the occurrence of an ideal dialogic encounter "free of fear, favour or affection" between two individuals sharing the same experiential background, and possessing goodwill and a wish to communicate with each other, the likelihood of the messages exchanged being faithful reproductions of their extralinguistic or ideal form is remote. Vladimir Ivir (1981:51-59) in his study of formal correspondence' and equivalence' argues that in translation from one language to another it is possible to distinguish between formal correspondence' and equivalence'. Translation equivalence he sees not as a static relationship between pairs of texts in different languages but rather as "a product of the dynamic process of communication between the sender of the original message and the ultimate receivers of the translated message via the translator - who is the receiver of the original message and the sender of the translated message". Messages, according to Iver, are "configurations of extra-linguistic features communicated in a given situation" and their encoding in a text is governed not only by the resources of their author's language and by his command of that language but also by his assessment of the nature of the sociolinguistic relationship between him and his addressee/s. Equivalence, according to Iver (1981:53) holds between messages which change "as little as possible and as much as necessary to ensure communication". This "relativity of communication" (and he includes in this any communication, and not just that involving translation) is of crucial significance each time an act of translation takes place. And translation in its broader sense is the nature of the activity occurring when, as in statements', verbals' and lawyers' submissions, "a text is produced as a coded expression of a particular configuration of extralinguistic features and is decoded to enable the receiver to receive the message".
The Aboriginal person speaks to a policeman or to a lawyer. What he or she says and how s/he says it is governed as much by the situation in which he or she finds himself or herself at this particular moment, and by the relationship set up in that situation between suspect and interrogator, as it is by his or her command of language and by his or her own particular ideolect. Unlike utterances whose nature is dialogic, however, what s/he says becomes a text over which s/he subsequently has no control. The real addressee of the message is neither the lawyer nor the policeman but the Court'. The language or discourse of the court is not the language that s/he normally speaks but a language guided by a particular ideology and systematically employed in the preservation and maintenance of that ideology. Of necessity a process of translation must inevitably take place: a process which could aptly be described as involving "a systematically organised presentation of reality" (Kress and Hodge 1979:15); the unique individual becomes voiceless and is henceforth spoken by' a to him or her foreign and alien discourse from which s/he is progressively and effectively distanced or excluded. The success of this activity can be measured by the manner in which it succeeds in making first others, and ultimately himself or herself, unaware both of his or her real condition and the circumstances of his or her predicament.
Such prescriptions as the above regarding valid and undistorted dialogic communication could well be summarily dismissed on two grounds in the context of communication between Aboriginal people and representatives of White law. Firstly it could be argued that such unrestricted dialogue is simply not viable and would constitute a considerable waste of time for lawyers and for police officers operating in circumstances where their activities are circumscribed both by time, money, and lack of resources. Secondly, and more seriously, it could truthfully be said, and Aboriginal people in their own comments frequently support this contention, that Aboriginal people generally are reluctant to enter into true dialogue either with those they consider to be members of the White establishment or those they have been conditioned to regard as adversaries rather than as friends.
To use such arguments however to justify the imposition of techniques which cannot in themselves be justified constitutes no less than a travesty of justice in itself. Nor can the former argument, that true dialogue would be a waste of time, necessarily be validated as is evidenced by the considerable expenditure of time and money invariably spent on many cases even when initial interviews and interrogations were conducted in a spirit of anti-dialogue'. And as for the latter argument, that Aboriginal people will be reluctant anyway to dialogue, Paulo Freire's reference (1976:118-119) to the "consciousness of the oppressed" goes no small way towards explaining this phenomenon. The reasons he says lie in the historical, sociological and cultural conditioning which has formed this consciousness. And while Freire speaks of the oppressed peasants of Latin America, and the nature of the "rigid, vertical structure of relationships" between them and the landowners, the same in principle can be said for Aboriginal Australians:
With no experience of dialogue, with no experience of participation, the oppressed are often unsure of themselves. They have consistenty been denied their right to have their say, having historically had the duty to only listen and obey. It is thus normal that they always maintain an attitude of mistrust towards those who attempt to dialogue with them.
Freire goes on to say that this distrustful attitude is directed also towards themselves. "They are not sure of their own ability. They are influenced by the myth of their own ignorance". No doubt exceptions may well be cited and certainly occur but they do nothing to alter a fundamental malaise which still remains to be seriously challenged.
According to Sacks (cited Coulthard 1981:70) any conversation is a string of at least two turns and he isolates a class of sequences of turns called adjacency pairs having the following features:
They are two utterances long; the utterances are ordered - the first must belong to the class of first pair parts , the second to the class of second pair parts ; the utterances are related, not any second pair can follow any first pair part, but only an appropriate one; the first pair often selects next speaker and always selects next action - it thus sets up a transition relevance and expectation which the next speaker fulfils, in other words the first part of a pair predicts the occurrence of the second, Given a question, regularly enough an answer will follow'.
As Coulthard (1981:70) points out, for some pair parts, such as greeting - greeting the second pair is reciprocal, for others such as question - answer there is only one appropriate second. In either case the first part provides specifically for the second therefore the absence of the second is noticeable and noticed'. Another feature of conversation described by Sacks is that "a person who has asked a question has ... a reserved right to talk again, after the one to whom he has addressed the question speaks. And in using this reserved right he can ask a question. This particular rule is referred to by Coulthard (1981:71) as a chaining rule and allows for those long sequences of question-answer adjacency pairs which are typical of the interview and of the cross-examination or interrogation, all of which impose particular constraints: they do not, for example, allow for the protective strategies utilised in ordinary conversation to avoid having to answer an unwelcome question - strategies such as seeming not to hear, or the skilful change of topic or any of those many devices which enhance the greater structural complexity of natural conversation, while allowing the participants more room to negotiate' or save face'.
Subtle shifts like these can arise when categorising different kinds of viewing' which problematise any simple basic formula however and the relations of power can so vary as between viewer' and viewed' as to throw into question any possibility of arriving at a stable descriptive model. The politician being interviewed on radio or television can by a mere change of intonation or well-chosen turn of phrase skilfully invert the positions of viewer' and viewed'. A celebrity being promoted by means of a print or electronic medium can use the process as a method of furthering a particular polemic which, since it is directed towards reader/listener as addressee, sets up a relationship of an entirely different order, transforming the viewed' into active agent or Subject. Such disjunctive moves are tolerated and even encouraged in interviews of a public nature - they have the effect of naturalising' the speech event and simulating a true dialogue or communicative encounter, in the interests of mass media rhetoric. They have no place, however, in the practice of the lawyer/client interview and if they have a place in the police/suspect interview, which they sometimes do, the control of the move is invariably held by the police. To expect an Aboriginal person to say nothing', other than to give his or her name and address, when interviewed by a police officer (a course of action, or inaction, which in theory at least is his or her right) is in effect, to ask him or her at one and the same time not only to resist a powerful authority figure and in so doing to disregard the conventional folk wisdom of a cultural group, but also to appear to subvert a basic and accepted Western' norm of communication. S/he is unlikely to accept this as a viable alternative to compliance, having been taught from infancy, and learned from personal or vicarious experience, that a Nyungar simply cannot win in an encounter with the law'. Submission to authority, even though it may not ensure his or her ultimate freedom, will at least, s/he is likely to believe, spare him or her immediate physical pain.
The function of the lawyer/client interview is ostensibly one of consumer service: a lay client has employed a professionally-competent lawyer to represent him or her in a court where formalities of language and orthography are so specialised and ritualised as to be outside the former's capacity to perform. In consequence one might reasonably assume that such an interview is a crucial source of material for the lawyer from which both to acquaint himself or herself with the client in whose name s/he will speak (s/he will represent' him or her) and with his or her client's experience of the events under scrutiny so that s/he can defend' him or her in the adversary situation of his or her courtroom appearance. In the case of lawyers, they sometimes, without necessarily informing their clients regarding this particular strategy, indulge in a stretch of dialogue determined by the dyadic hostile adversary mould of the courtroom, with the well-intentioned aim of drilling' them for their encounter with the prosecution. This would provide one possible explanation, if not necessarily justification, for the rather badgering nature of such moves, although it would seem doubtful that such short-lived training courses could be expected to yield results, especially if the aims were not explained. On the other hand, if indeed the lawyer were simply testing the performance of his client, as a guide in making a decision as to whether to call on him or her to give evidence in court, it would be to depart rather radically from one and all of the normative rules for interaction as theorised and to place the Nyungar in an even more unfamiliar speech situation, (given that Aboriginal cultural norms for question and answer sequences are more sensitive anyway than they generally are for Whites as illustrated by Sansom (1980:24-25) among others.
In fact, most interviews between lawyers and their Aboriginal clients seem to start with requests for the usual personal and biographical details such as are familiar to Whites in similar situations seeking "legal aid". Such questions can be more mystifying and problematic for some Nyungars accused of breaking the law, or by their witnesses, for more reasons than one. Time past can by them be measured not so much in days, weeks and months, or by remembered dates, as by certain numbers of "pension days". Marital status' can be seen as much more fluid and renegotiable than in many White communities. The word dependent' is an unfamiliar one and in any case extremely difficult to define with precision in a community where sisters', aunties', brothers' and grannies' are all interdependent. (Even the word grannie' is ambiguous here for it can apply with as equal ease to little children of mixed sex as it can to old ladies: "all the little grannies" signifies small children and not grandmothers.) Questions about employment, bank accounts or property can seem strangely irrelevant in the circumstances of their disinheritance.
Kress and Hodge (1979:85-102) explore some of the many ways in which the classification of the real world occurs in discourse. As put by them - "The real world doesn't exist in discourse without being classified". This classification of reality however, and the classification of that classification is, according to them, "never to be wholly trusted". They illuminate the various modalities' employed in such classifications. They define modality as "the minimal obligatory classifications which must be performed on every utterance by the speaker himself". And they are "the speaker's indication of generality, truth and validity, and range of applicability to the whole and to its individual parts". They are, in short, of crucial importance in every utterance and in every exchange. Their misreading in an exchange by one of the participants, or their suppression in the process of reclassification of the text in which they occur, can profoundly alter the truth value' of the resultant text.
The classification of reality which occurs during an interview can of course be affected by the status of the participants. As noted by Kress and Hodge, there are restrictions in specific situations where one speaker is very much inferior to the other participant and has to wait for permission to speak'. This is surely the case both in the lawyer/client and the police/suspect or witness situation. Many such speech events if measured against a model of dynamic and interactional dialogue fall so far short of valid communication as indeed frequently to render questionable the truth claims of the resulting classifications. One of the ways in which such classification occurs is by means of an asymmetrical power relation unobtrusively established by the very nature of the exercise in which the participants are involved - unobtrusive because accepted as the rule' - it is an intrinsic part of the system'. As noted by Kress and Hodge (1979:95):
... a question requires an answer, so the questioner is also controlling the behaviour of the hearer. In this respect the questioner's classification is (+power). This makes questions ambiguous about the distribution of power between the participants. It is therefore a highly convenient form for mystifying power relationships.
The question and answer exchanges which tend to be the most constant feature of most interviews, particularly so in the case of interviews between police officers and suspects or witnesses, and between lawyers and their clients, are a good example of the above, as they are also of the class of sequence of turns in conversation categorised by Sacks as adjacency pairs'. They provide a clear opportunity for one person in an exchange virtually to compel another person to speak to him or her, and, additionally, to have control over the content or topic of that same exchange.
The ways in which such power relations are mediated are of course many and varied and are part of the agonism' intrinsic to communication in and of itself.
As previously noted, such devices can be seen and heard to be skilfully used in the media by experienced speakers, including politicians, to manipulate their answers in ways which can achieve a reverse mastery' for them. Because of the additional constraints contingent upon the institutional settings of the law in the context of lawyer/client or lawyer/witness interview however such reversals are far less likely to occur there. There are many ways of course by means of which an interview can be modified in terms of the authority wielded by the speaker. John Sinclair, for example postulates the abstract three-part or triadic' nature of the dyadic conversational exchange as a way of explaining how users of language attempt to control what happens during the course of their speaking. He isolates three moves' in each exchange which he names, in order of their occurrence: P or posit - as the first move in the exchange; R or react - as the second move in the exchange; and D or determine - as the third and terminal' move in the exchange. D's importance resides in the fact that it provides acknowledgement and feedback. It also provides a space whereby through discursive self-reference there is an opportunity for either speaker to assume control of the next move and effect what Sinclair calls a plane change' by means of which the previous interactive force can be cancelled and a new one established.
Sequences of exchanges employing the two moves only of posit and react - PR/PR suggest, Sinclair would argue, a strong authority from the P speaker. He or she does not feel required to give feedback to the second speaker; does not either allow him or her in consequence to participate in the structuring of the discourse, and does not seem to mind what view of it s/he has.
As with many useful models however - as means to particular ends - this one also can be applied in more than one way and both types of exchange can be seen at times to be interchangeable in their capacity either to facilitate or coercively manipulate communication. There is, it need hardly be said, no one prescriptive model which will suit all purposes and intentions. For, as noted by Hodge (1988) the difference between triadic and its opposite, at least on the surface, is not that the one is authoritarian but that while authoritarian PR exchanges can be totally explicit and one-sided as a system, PRD is a system which can incorporate feedback in those who are controlled as to whether they have been successfully controlled or not. And, as Hodge points out, although the third controlling element in a triad may often either be a silence or not necessarily a verbal component at all it is nevertheless an effective method of modelling one discourse into another. Hodge sees a connection with the Bernsteinian notion of restricted and elaborated codes - each can be as successfully employed as the other in valid as they can in coercive, manipulative or distorted communication. It can be said in the present context therefore that when there is a one-sided manipulation of either type of exchange in the police/Aboriginal or lawyer/Aboriginal interview this, in addition to the inherent constraints and expectations already existing in those frameworks, is further to constrain the interviewee's power to structure the direction of that communicative event.
Kress and Hodge (1979:85-102) describe the speech model in terms both of semantic category: Statement, Command and Question, and Surface Forms: Declarative, Imperative and Interrogative. They show how any semantic category may be realised by any one of the surface forms and make the very salient point that each one of the three forms involves a specific role-relation between speaker and hearer. For example, the surface form of the interrogative classifies the speaker as (-knowledge) and, in some situations (-knowledge) would imply (-power), so that the asker of a question could be classifying him or herself as (-power). They see this classification as "transitory" however since, as they put it, "there is also a more stable classification arising from social context and interaction as (+expert)". Such stable classifications according to Kress and Hodge (1979:94-95), "invert the transitory classification made for the duration of a speech event". The point most clearly to emerge is that in actual discourse the three forms of the speech model interact in a complex way, the complexity being both "rule-governed and well motivated". As noted by Kress and Hodge "the interrogative can be used to give commands and an imperative structure can be used to ask a question".
A question therefore is ambiguous about the distribution of power between the participants and is therefore "a highly convenient form for mystifying power relationships". This is as well illustrated in the context of an interview between lawyer and Aboriginal client as it is between police officer and Nyungar. For while each is at one level an individual human encounter which if it is to succeed must take into account some aspects of valid dialogic communication, at another level it exploits human expectations in a manner which poses some disturbing problems regarding the rights and freedom of the individual.
The fact that such exploitation can take place relies, paradoxically, on the very expectations and assumptions which facilitate and make possible valid dialogic conversation and the preservation of those same rights and freedom. It relies on the now-acknowledged "rules of organisation" which are known, largely as a result of the work of ethnomethodologists, to be both germane to and an essential component of any interaction.
Ethnomethodologists, in analysing naturally-occurring conversations, describe and explicate the "competences" which ordinary speakers use and rely on when they engage in intelligible conversation interaction. The basic outlook of conversation analysis is summarised by Heritage (1984:241) in terms of three fundamental assumptions:
1.interaction is structurally organised;
2.contributions to interaction are contextually oriented;
3.these two properties inhere in the details of interaction so that no order of detail can be dismissed a priori, as disorderly, accidental or irrelevant.
Now that it is known, says Heritage (1984:235) how strongly interaction is organised and to what level of detail that organisation extends, "it is clear that human conduct could not be so coherent, and meaningful, and in such subtle and nuanced ways, in the absence of such an organisation".
The expectations of the participants in any speech event therefore are implicitly grounded in an intuitive awareness of, and reliance upon, such organisation, and the rules which support it, and they are unlikely, except for perverse or pathological reasons, to subvert it. A conversation such as an interview' despite, or perhaps because of, the restrictions of its specialised' setting is no exception. And while such underlying organisation no doubt makes possible the rational pursuit of the interactional aims of such an exercise, it also ensures for the dominant partner a pretty reliable framework within which he or she can feel secure in employing the various ideological and linguistic strategies best suited to his or her purpose.
As noted by Kress and Fowler (1979:63) any interviewer has power qua interviewer over interviewee:
He is in control of the mechanics of the interview: he starts it, he has the right to ask questions, and he has the privilege of terminating it. Through his choice of questions he selects the topics which may be introduced and he even has the prerogative to ask questions so designed structurally that no new information can be introduced. The interviewee only has the right to ask questions in the very rare, and often merely token, situation of being given explicit permission to do so.
When I suggest that an Aboriginal person is inscribed' into the White legal apparatus I have selected a particular use of the term which seems to me more appropriate and advisable than its other linguistic applications. I use it in the precise mathematical sense of drawing a geometric construction inside another construction so that the two are in contact but do not intersect. I use this term because although the Aboriginal person in our society, particularly the West Australian Nyungar or city and fringedweller, is likely to have early and conflicting contact with representatives of the law (which frequently results in an entrapment establishing a repetitive pattern lasting throughout the greater part of his or her life, until s/he is too old, too alcoholic, too ill or too tired to be more than a feeble irritant to the forces of law and order') the evidence suggests that such contact, while it may well prove the vigilance and efficiency of law-enforcement agencies, at one and the same time fails to modify the behaviour it sets out to challenge and adds fuel to longstanding feelings of resentment and hostility which do nothing to foster notions either of equality' or equilibrium'.
So while the discursive forces of White law continue to be marshalled against the discursive domain of Aboriginal people the two, as a general rule, fail to engage in a dialogically creative way with one another. Notwithstanding this however such inscription' as all too frequently occurs continues to be validated and legitimated by White law. The key site for such validation and legitimation is of course the Courtroom itself.
From the respectful bow due to the presiding judge or magistrate by anyone entering or leaving the courtroom to the silence' observed at appropriate times by all but the participants, the ritual of the hearing, the ceremony of the court procedure, is bound by custom and regulation to a particular form of protocol or etiquette which is largely, though not entirely, evidenced in the choice of language used and the ways of speaking employed. The peculiar significance of this in regard to the outcome of any particular case resides in the fact that by the time the account of the events leading up to the performance in court is presented, its material form, and by extension its content, has at each preceding stage in the chain of discourse been pre-determined by the imminent demands of that pending protocol. In other words, what happens in the court can precontaminate in one way or another not only the interview with the police but also, even if inadvertently, the interview with the lawyer. It is useful therefore, if only briefly, to consider some aspects of the courtroom performance with particular reference to the language used.
It is important to consider the implications inhering in the distinction between the discursive formation and semantic content of spoken language or language in action' on the one hand and written language or language in reflection' on the other. One has to ask whether the range of meaning options available from the particular variety of written language constructed with the courtroom situation in mind has been narrowed to the point where the resultant impoverishment of semantic content is capable of negating the validity of texts upon which central and crucial evaluations and judgements are based.
Foucault would call this a system of rarefaction'. He refers (Young 1982:52-53) to the various "procedures of exclusion" whereby in every society:
the production of discourse is at once controlled, selected, organised and redistributed by a certain number of procedures whose role is to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous, formidable materiality.
Foucault argues that the most obvious and familiar of these procedures is the "prohibition" - that we do not have the right to say everything, that we cannot speak of just anything in any circumstances whatever and that not everyone has the right to speak of anything whatever:
In the taboo on the subject of speech, and the ritual of the circumstances of speech, and the privileged or exclusive right of the speaking subject, we have the play of three types of prohibition which intersect, reinforce or compensate for each other forming a complex grid which changes constantly.
Discourse is in fact according to him one of the places where
... politics (exercises) in a privileged way some of (its) most formidable powers. It does not matter that discourse appears to be of little account, because the prohibitions that surround it very soon reveal its link with ... power.
Discourse is "not simply that which translates struggles or systems of domination, but is the thing for which and by which there is struggle, discourse is the power which is to be seized".
Perhaps nowhere are such absolute claims to understanding and being understood symbolised with more resounding optimism and forceful clarity as in the impressively synchronised courtroom oath enjoining witnesses "to tell the truth, the whole truth, and nothing but the truth". In other words, to engage in, and find appropriate, the discourse of law and law enforcement is, by and large, both to preserve and to perpetuate its many effects. And with regard to groups of individuals who come into contact with the law, they must to a very large extent allow themselves to be inscribed in and spoken by that discourse even while they believe that they are being spoken for. And while there may very well be a real sense in which such voluntary submission may be a necessary part of the process for all participants, some may be disadvantaged more than others by this means.
Put simply, two things are especially characteristic of the process of law: firstly, the fact that language plays a central part - primarily (but in certain very important respects not exclusively) oral language; secondly, the fact that the language used is not the kind of language used in ordinary' conversational exchanges. (This is especially evident in court proceedings but is both prefigured or prospected' by the language forms considered appropriate in official or formal police discourse and is subsequently reinforced by the official language considered appropriate by officers and executives of the Department of Corrections'.) This universe of discourse' or institutionalised cognitive field' of the law can be metaphorically viewed as a three-stage structure therefore because it could be argued that without the second or central-stage justification of legal discourse at the courtroom level the first (pre-trial) and third (post-trial ) stages would not be so easy to validate and might be divested of their sometimes arbitrary power and force. Atkinson and Drew (1979:9) have this to say:
Although there may in principle be no clear or absolute solution to the problem of how and where a precise line is to be drawn between legal and other styles of talking, there can be little doubt that in practice members are well able to identify and use such a contrast. It is obviously not necessary to be a trained professional lawyer to be able to recognise that there is something distinctive about the kinds of verbal exchanges that take place in courts of law as compared with conversations in more everyday settings, even though it might not be easy to provide an exhaustive specification of the similarities and differences involved. For all practical purposes there is a definite and objective contrast which is plain for all to see, and it is thus not only a fact or topic that is available for inspection, evaluation preservation or alteration but it also a device which can be used as a resource for doing ... interpretive work.
One could, at one level, attempt a comparison along the interaction-ritual' lines suggested by Irving Goffman in his study on "face-work" (1959) in which he describes the elaborate, if largely unconscious, or spontaneous, rituals by which in everyday encounters people interact socially without violating the "sacred-ness" of self or others. It could be said that while the instinct to save face' is a universal one and the strategies or rituals employed by different cultures are different, both in degree and in kind, and vary between individuals and groups depending both on their learned social skills and their inner motivation, the particularly distinctive feature, and one that is readily observable in any court proceeding, is that this universally-recognisable ritual is dispensed with and a different and more positivistic one put in its place in which sacred-ness' resides not so much in the person as in truth', not so much in context or circumstance as in fact' and due process'.
Given, however, that different societies have seen the need to embody special procedures in their legal systems the justification of legal discourse in Western courtroom practice is further outlined by Atkinson and Drew (1979:7-8) as follows:
(But) the open textured character of language is such that the more familiar ways in which conversational discourse is organised have proved themselves to be rather inadequate for the practical purposes of, among other things, resolving important disputes, settling matters of fact, allocating blame and responsibility etc, and for deciding such matters with recognisable definiteness' and finality'. Yet even when steps are taken to remedy the situation by attempting to specify laws and procedures of implementation, enough of the troublesome' properties of ordinary talk remains to leave sufficient doubt, ambiguity and scope for competing interpretation to keep a large legal profession in business. That this is so, however, is hardly surprising if it is the case that properties of language use give rise to the problems and topics addressed by the law, cannot be avoided, and are also used either in attempts to remedy them (eg by establishing special/legal procedures), or in the process of deciding whether some particular problem or topic falls under the auspices of these special procedures.
Viewed in these terms then, they say, "court procedures can be seen to provide one way of producing decisions which are recognisable to members, for practical purposes, as being more definite', binding', and final' than is often the case with those arrived at in the course of ordinary conversation".
The qualificatory "for practical purposes" and "more ... than" are recurring themes in Atkinson and Drew's conclusions. They make claim to no broad prescriptions for radical changes to existing practice, since while in their opinion (1979:230) there does exist an "Achilles heel" to claims about the ultimate purity and fairness of existing legal procedures "to the extent that courts must ... allow a great deal of scope for the exercise of members' commonsense methods of practical reasoning", nevertheless they say that critics "tend to ignore the way in which the potential for making moral inferences is a built-in feature for all communicative activity (including their own observational work), and hence are likely to over-estimate the extent to which that potential can be controlled in practice".
Despite Atkinson and Drew's arguments in favour of the special language of the court however not all language philosophers would agree that ordinary language is too loose, imperfect or metaphysically loaded' for such purposes as philosophy and science (and, by extension, for legal discourse), and Grice in his "Logic and Conversation" (cited Pratt 1977:128) states the case for ordinary language vis-a-vis the so-called language of science' or formal logic. Pratt observes (1977:128) that the idea of ordinary language' being alien to both science' and literature' achieved prominence around about the same time - in the first three decades of this century, and suggests that "it is probably not a coincidence that ordinary language' became the whipping boy of two apparently opposed factions at once". The critique of the concept of literariness' and the consequent loosening of the definition of literary language' is well established in contemporary literary theory. There does not seem, as far as I am aware, to be a comparable critique with regard to the concept of scientific language'.
One scholar however has subjected the concept of legal discourse to a probing and illuminating scrutiny. A lawyer himself, Goodrich (1987:ix) attacks "the myth of law as a unitary language and as a discrete scientific discipline". In his book Legal Discourse Goodrich hopes, in his words, "to have contributed to the deconstruction of that myth and to its displacement by a more adequate and critical concept of legal discourse as a language of power, as the pursuit of control over meaning and as instrument and expression of domination". His book succeeds admirably and I shall draw further on his ideas in Chapters Five and Six of this thesis. His concept of legal discourse as "the pursuit of control over meaning" is particularly relevant here.
The reality' referred to in the text of a statement' produced in court purports to be the event in the world which precedes it and which it describes, and is unproblematically accepted as such by judge and jury, unless otherwise challenged by the defence. By and large, the fact that the text is an individual police officer's individually-coded interpretation and representation of an entirely different reality' (a discursive event in which he himself played a highly significant part) goes largely unnoticed and unremarked.
If we accept a formalist concept of communication as involving the transmission of preconceived messages from addressor to addressee - the exchange of immaterial signifiers, ideas or concepts, by means of material signifiers of one kind or another (words, gestures or symbols) between free and autonomous subjects - perhaps such a position could be justified. Or, if we accept the idealist view which purports to treat the material signs (in the case of the interview the words exchanged) as the appearance of an underlying reality which can by the exchange of such signs be reified and legitimated, we can indeed persuade ourselves that we are behaving both rationally and justly. If, on the other hand, as has now been persuasively theorised by an increasing number of language philosphers and communication scientists (following the literary insights of generations of poets and other writers), such concepts are no longer tenable, then that justification is absent and an important principle of justice, and human freedom, is at stake whenever such a practice goes unchallenged.
And even when, as sometimes does happen, objections are raised in individual cases, such challenges by their very nature, whether they are successful or unsuccessful, by virtue of the fact that they are conducted within the framework of the dominant discourse itself, do little more than reaffirm the legitimacy both of that discourse and its particular practice of interpretation, thereby perpetuating their effects. Aptly referred to as "a very widespread practice of linguistic mastery" by sociologists Silverman and Torode (1980:8), interpretation "reasserts itself on every possible occasion" supported by conventional setting, text and debate. Silverman and Torode's concern is with the particular relations between "appearance" and "reality" which are either sustained or subverted by the specific practices of talk and text. This claim for what they term "interruptive sociology" is that its object of enquiry is the way in which speakers constitute and change the relation between appearance' and reality' in speech itself.
For us, interruption is the attempt to reveal the interplay between appearance' and reality' within language itself. As against the view of language as a reality sui generis , whether transparent or opaque, we insist that language necessarily refers, on appearance, to a reality other than itself. But, ... the way in which it does this is to refer to other language . This plurality is inseparable from language, and it is the play of reference from one language to another language that suggests the reference of language to a reality other than language.
There are occasions in the verbal exchanges between police officer and suspect and between lawyer and client when such interruptions can be seen temporarily to come into play as indicators of an alternative reality' to the intentionally goal-oriented reality' under construction in the interview situation itself. Any such indicators, however, are effectively deleted from subsequent texts in the communication chain of legal discourse and the appearance of that alternative reality' is totally erased. Perhaps it is the traditional', albeit untheorised knowledge or awareness of this phenomenon, in addition to their inbred fear of violence, and panic at being held captive, which gives rise to a certain hopelessness commonly exhibited by Aboriginal people subject to this process and which ensures their ready compliance in the achievement of those pre-defined goals.
Whether, or how indeed, any such practices as are customarily involved in the chain of discourse described above, should or could be radically transformed is a larger question than this thesis attempts to address. One can at least be aware however of the formidable powers of language and that to be correct in its use is no guarantee of innocence with regard to possible injustices resulting from that use. I would argue that Aboriginal people in particular are all too frequently the losers in those sophisticated language games invariably participated in by representatives of the law. Not only can they lose as a result of the correct' formulation and presentation of evidence' against them but sometimes also, and even more regrettably, as a result of an inadequate, even if 'correct', defence.
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New: 25 July, 1996 | Now: 27 April, 2015