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Legal Phenomena

When applied to the study of legal environment, the phenomenological methods specify legal phenomena in a highly particular way. The focus on work as what emerges from interaction and what is being sustained by it prevents the phenomenologically-minded sociologist from approaching legal phenomena as pre-given objects, entities, or events. Rather, legal work is investigated as to the how of its evolution, or occasioning. The emphasis here lies on the contextual and institutional features of talk and action. Therefore, forwarded are communication events such as conferences, whether attorney-client, or attorney-attorney, witness and client interviews; documented and oral presentations (e.g., opening and closing arguments, motions, and requests); court appearances and performances, and others. Depending on the chosen methodological orientation, legal events may disclose specific relational patterns, communication channels, and constitutive features of the legal process. The latter are taken as legal culture specific, that is, they are based on in-built and occasioned preferences. Such preferences have been examined by a variety of scholars. Specifically, worth mentioning are Maxwell Atkinson and Paul Drew, Order in Court (1979); Max Travers, The Reality of Law (1997); and Michael Lynch and David Bogen, The Spectacle of History (1996).

Order in Court is a classical ethnomethodological-conversation analytic endeavour. In it, Atkinson and Drew study the sequential organization of court proceedings as an institutional product. They identify witness examination as the key communication event in the courtroom setting. By comparing the structure of everyday conversation with that of witness examination, they proceed to examine specific speech activities that emerge from within the event of examination, e.g., accusation. In particular, they show that by managing an accusation, the parties are in the business of producing moral inferences. At the same time, the rules of court are designed in such a way as to restrict the use of moralistic directives. Acting within these rules, the attorneys must negotiate the differences between the ordinary and the institutional discourse. She does so by utilizing a variety of resources toward “doing their job.” One such technique is dumbfounding the witness into a hesitation. In contrast to the ordinary talk, in the courtroom setting, hesitation can be easily taken for evasiveness. The authors end by raising the issue of procedural effectiveness. In the spirit of methodological abstention, the study keeps the issue open.

In his more recent work, Max Travers offers an ethnomethodological examination of the everyday activities in a legal setting. From the courtroom setting, he brings the reader to a small English law firm. Motivated by the post-foundational ethnomethodology, his study does not aspire to discover an overreaching structure of legal work but rather stresses the “missing what,” or the practical accomplishment of some institutional problematics in a specific context. A thick description of talk and other activities based on ethnographic observations of attorneys at work leads Travers to suggest patterns of preparing a criminal case as well a typology of criminal defendants, such as regular, serious, and vulnerable. Travers concludes by proffering the general ethnomethodological agenda that supplants traditional macro sociological approaches by emphasizing the practical nature of legal work.

Lynch and Bogen's The Spectacle of History suggests a much less traditional way into ethnomethodology by calling their research postanalytical. The respecification allows the authors to take loosely shaped and multimedia data for the locus of their analyses. Thus, their study refuses to contain itself within an empirically accessible context, breaking into the power relations and the issues of intention. With the help of this radical reframing, the authors investigate the “truth-finding machinery” of Iran-Contra hearings toward understanding how “plausible deniability” is created in the context of the master narrative represented by both the authorities in question and the questioning authorities. The main contribution of Lynch and Bogen's study is their valiant attempt to link the micro and the macro elements in examining what can be called the production of history.

In sum, by identifying legal phenomena as the products of in situ sequential processes and by focusing on the micro features of their evolution, one can link the micro and macro sociological perspectives toward an in-depth holistic understanding of criminal defense case-work.

Further Reading


Atkinson, Maxwell and Drew, Paul (1979).
Order in Court. Oxford : Oxford University Press.

Maynard, Douglas (1984). Inside Plea Bargaining: The Language of Negotiation. The Hague: Kluwer Academic Publishers.

Jackson, B. (1988).
Law, Fact, and Narrative Coherence. London : Deborah Charles Publications.

Lynch, M. and Bogen, D. (1996).
The Spectacle of History: Speech, Text, and Memory at the Iran-Contra Hearings. Durham : Duke University Press.

Travers, M. (1997).
The Reality of Law: Work and Talk in a Firm of Criminal Lawyers. Aldershot : Dartmouth Publishing Co.




 






 

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My ethnography on the English Crown Court procedure by BRILL
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