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CFL Interviews

Peter M. Tiersma
July 2009

"Judges like to see ink on paper."

Peter M. Tiersma is a Professor of Law at Loyola Law School in Los Angeles. His research interests revolve around language and law, and he has written extensively about speech acts and contract law, Gricean implicature and the law of perjury, the legal significance of silence, the distinction between 'speech' and 'conduct' in First Amendment law, and the difference between legal and ordinary language interpretation. He is the author of Legal Language (1999) and Speaking of Crime: The Language of Criminal Justice (with Lawrence Solan) (2005). During a visit to CFL to teach on the Summer School, he talked to Nicci MacLeod about his recent work.

I interviewed Larry Solan when he visited, and the two of you have similar backgrounds, in that you both hold PhDs in Linguistics and Law degrees. He found himself in a position where he needed to bring the two fields together almost by accident - is the same true for you?

Not really. I grew up in a very small town in California and went to a very small school, and decided for some reason that I was going to become a lawyer. It was suggested that I should take a Latin course at High School, which I did for two years. I began to see a connection between Latin and Spanish, of which there were many speakers living in our area. I also grew up speaking Frisian and had a lot of exposure to Dutch, and I began to see connections between Frisian and Dutch and German and English, so as a result of all this I became more and more interested in language. So when I went to University at Stanford I studied Linguistics and went on to complete a PhD in it. As I had always been interested in law I went on to Law school, and after my first year there began to realise there were a lot of interesting linguistic issues around the law. After re-familiarising myself with the work of J.L. Austin and John Searle, I began to see all these connections between linguistics and the law. After graduating and practicing law for several years, I wanted to get back into academia, and the obvious thing for me to do was to combine the study of language and the study of law.

Your biography on your website states that you are currently investigating the nature of legal texts in terms of the transition from oral to written primacy. How is that progressing?

I finished that about a day ago! I originally called it Parchment, Paper, Pixels: The Impact of Writing, Printing and the Internet on the Law, but the publishers thought that law wasn't central enough to the title, so it's now titled Parchment, Paper, Pixels: Law, Literacy and the Technology of Communication. It should be out some time in 2010.

This is a topic you address in your talk to the Summer School - can you give us a brief overview?

In all societies, language is central to human culture. Everyone learns to speak, regardless of an individual's intelligence or how supposedly 'primitive' the society. But of course language is also expressed in writing, which first started to be developed about 5,000 years ago as a way of both storing and communicating information. Very soon, in places like Mesopotamia, Samaria, and so forth, people began to recognise the potential for writing in relation to law - they began to use it for contracts, wills, laws, etc. Later the Greeks also used writing for this purpose, and the Greeks really advanced the rule of law. It was the Greeks who adapted the Phoenician alphabet, adding vowels to create a completely phonetic system. With a limited set of characters this system was much easier to learn than earlier systems, so a large percentage of people were able to read and write. So in Greece, laws could be used to educate the public - proposed laws could be discussed and debated. Magistrates were forbidden to enforce any oral law if there was a written law in question, so they would write them in stone and put them in the market place where everyone could see them. So writing became very central to the notion of law. The Romans also made use of law - they didn't have statutes or legislation because the Emperor could obviously do whatever he wanted - but a lot of other transactions relied on writing. After the fall of the Roman Empire, it was not until around 600AD and the arrival of Christian missionaries in Britain that the process started again and we see the origins of the Common Law system.

So writing was into Anglo-Saxon culture, and very soon became a medium for recording laws. The first written laws appeared in the early 600s, and before long there were wills and grants of land being recorded in writing. At first these would be written by a monk, merely to create a record of what was said - but later it became the written document that took primacy. So now we have a situation where a will is a written document - you cannot have an oral will. So even though the word 'will' relates to what is in your head - your desires - it now refers to a document. Contracts are somewhere in between - you get a lot of oral contracts, sometimes they are written down, sometimes they're not. The other important source of law is judicial opinions (US) or judgements (UK). England has a very strong oral tradition in terms of judgements, whereas in the USA, shortly after the revolution, judges started to write down their opinions. So in the US, the Common Law is much more textual.

How does the Internet change all this?

In terms of wills the answer is 'very little'. Judges, at least in the US, like to see ink on paper. There is one state that has a statute for electronic wills, but most people who have tried to state their wills on audiotape, videotape or on a computer have had them dismissed as invalid. If you want it to be valid, print it out, sign it, and have it witnessed! That may change, but there has been a lot of resistance - after all there is something attractive about having the document 'fixed' on paper. One of the great things about having something on a computer is how easy it is to change - obviously if we're talking about wills, being able to change something becomes a bit of a problem! In terms of contracts, internet contracting is very common - one might almost say entering into a contract has become a little too easy. All it takes is a click and you have committed to buying something. The terms and conditions appear under a link, and in the past you simply wouldn't have been able to have so many terms and conditions because it would have taken up too much paper! Terms and conditions are getting longer and longer, and the question of whether people can still actually be bound by them is very interesting.

In terms of the current situation within Forensic Linguistics/Language and the Law, where do you think our priorities should lie? Which areas require development and/or attention?

Researching the quality of the work that's being done is extremely important, and in the UK there are a lot of people studying Forensic Linguistics - at the Centre here at Aston, in Cardiff, at Birmingham and so on. We don't have nearly so many in the US, and it seems to me if you want to be taken seriously as a field, you have to be able to validate the results you're coming up with. There are a lot of areas that need a lot more research. With authorship identification, for example, we don't know an awful lot about how common a particular feature is, how common the co-existence of a couple of features is, we're not even sure if people have a distinct idiolect. But if they do, how do we identify it? How sure are we about our results? Those kinds of questions. There has been some controversy recently about the reliability of some software's ability to identify if somebody is telling the truth - I must say I'm sceptical - maybe it works, but is anybody out there conducting the research? More rigour and more research would it make it better for the field as a whole.

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Related links

Peter Tiersma's website
Peter Tiersma's latest book on amazon.co.uk
Loyola Law School

© Centre for Forensic Linguistics, Aston University, Birmingham, UK, 2013