Language as Symbolic Power
The basic thrust of the reading was to describe the differences between rule-oriented litigation and relation-oriented litigation. A number of cases were included in the text to provide sufficient examples of both types of litigation. These were able to provide a clearer and more concrete understanding of what rule-oriented and relation-oriented litigation is. Although both forms of litigation were described in the reading, the presentation provided an argument that rule-oriented litigation was, in fact, a more powerful form of litigation in the court room. The reading suggests that a litigant taking the tack of presenting his or her case in a manner more likely to be classified as rule-oriented would have a greater probability of winning his or her case in court.
The main difference between rule-oriented litigation and relation-oriented litigation lies in the fact that both appeal to different aspects of the listener, who in this case is the judge. Rule-oriented litigation is an appeal to logic. A rule-oriented litigant would present facts and the relation of these facts to the pertinent rules involved in the case being discussed. Relation-oriented litigation, on the other hand, is an appeal to emotions. A relation-oriented litigant is more likely to present his or her side in terms of the social situation and history of the case. It is a more personal plea that according to the reading is hard to dissect in terms of what can and can not be used for the exact dispute being discussed. (Conley & O’Barr, 59)
The factors that lead to a litigants use of rule-oriented or relation-oriented litigation are usually gender, class, and race. (Conley & O’Barr, 79) Thus it is here that we see that the use of a certain type of litigation is a means of showing a certain side’s symbolic power. More educated individuals with a higher status in life are more likely to employ rule-oriented litigation while those who use relation-oriented litigation are most often individuals who are not used to employing formal and business-like speech.
Does this mean, however, that the legal system is flawed in that it can be manipulated so easily? Simply with the use of a certain type of litigation, a certain type of language form, an individual can increase their likelihood to win a case or to have a case settled in their favor. Is it safe to assume from the reading that relation-oriented litigation is a weak form of litigation? Why is it then that the more popular courtroom cases involve the portrayal of a more situational presentation of a case, with much references to the different social factors amounting to the dispute being discussed? However, the reading only speaks of lay litigation at the level of informal court cases. The conclusion of the authors that the power of language is, in fact, at the core of rule-oriented and relation-oriented litigation evokes numerous questions. If a relation-oriented litigation, one focused on presenting social situations, were presented in a business-like and no-nonsense manner, would it still be considered weaker to a rule-oriented litigation presented with numerous hedges and hesitations? What is more important then, the content of the litigation, whether rule-oriented or relation-oriented, or the manner in which it is delivered, powerful or powerless? Does the fact that individuals with powerless speech are more inclined to resort to relation-oriented litigation directly mean that this form of litigation is weaker than rule-oriented litigation? The argument by Conley & O’Barr is powerfully presented, however, a closer inspection of the foundations raises questions as to the validity of the reading’s assertions.
Conley, John M., & O’Barr, William M. Rules versus Relationships: The Ethnography of Legal Discourse. Chicago: The University of Chicago Press, 1990