Asymmetries in legal practice,
asymmetries in analysis?
A review of recent ethnographies
influenced by the studies of work...
Asymmetries in legal practice,
asymmetries in analysis?
1. Addressing this congregation
2. Studies of work: objectives and...
4.

Professional perspectives and work in children's
courts (Max Travers)
(A) Objectives and methods
(B) Different perspec...
Studies of work: Objectives
and challenges
Dave Randall and Wes Sharrock
Ethnomethodology at Work (2011):
"..we are speaki...
Nor are we especially interested here in what is sometimes
referred to as the 'institutional talk programme'...or in what ...
(A) Michael Moerman and conversation analysis
- “dry bones of talk”

(B) Harold Garfinkel
- a new programme?
"In ethnometh...
(C) Eric Livingston

"in the midst of those doings", say working out a move in
chequers, the researcher will come to see "...
“Consider,for example, the work of solving a jigsaw puzzle
turning the pieces over and sorting them in various piles (bord...
Legal institutions: technical and commonsense knowledge
(A) Stacy Burns (2001) on civil disputes
"Despite a few significan...
knolwledge in action?
“[Considerations that] became (and were made) relevant to
concession-seeking…included such things as...
(B) Bruno Latour (2010) on an administrative appeals court
"A unique site for a unique access to the collective interlocut...
"[the essence of law] does not lie in a definition but in a practice,
a situated, material practice that ties a whole rang...
"it was impossible...even after several years of familiarisation, to
get gradually closer to the legal utterance. To speak...
(C)

Baudouin Dupret (2011) on offences related
to sexual conduct

"The legal rule and its uses make up a pair endowed wit...
"To say of someone that 'he was arrested' implies that
'representatives of the social order' did so, and this in turn
impl...
"In this study of the context for judicial action before Egyptian
courts, many difficulties arise from the fact that activ...
Professional perspectives and work
in children's courts
(A) Objectives and methods
- my study: 2005-12

"Or rather that it...
(B) Different perspectives on sentencing
- magistrates
- legal aid lawyers
- the police
- youth case workers
(C) Following procedural rules

(D) Sentencing

(E) Displaying values

(F) Differences between courts?
Asymmetries in action?
-

origins of “asymmetry” as an analytic concept?
- institutional talk programme

- membership cate...
(A) Institutional talk programme
- speaking rights
eg. defendants say little
in children’s courts

- danger in making assu...
wider issue raised by Stephen Hester
and David Francis (2000):
"along with Schegloff, it will be our thesis that the insti...
"The key point here is not that categorical identities [have been]
allocated analytic precedence over circumstantial parti...
my question as an ethnographer:
- how do we know from a transcript that
a young person is:
- intimidated
- deliberately no...
(B)

Membership categorisation
- disjunctive categories
“asymmetric category pairings which generate
conflicting character...
-adults and children view offending differently

- can sometimes be seen in court
- visible in the way adults talk about, ...
- a youth case worker:
"As long as they don’t go to Ashley, some of them just don’t care
what happens. I think that is why...
“A lot of them will talk to their friends about it and their friends

will say, “Oh as long as you don’t go to Ashley, it’...
NB. asymmetries in other legal settings:
(A)

Judicial mediation in civil disputes

(B)

Appeals court judges discussions
...
Knowledge in action?
-

these studies of work describe different aspects of legal practice
- common-sense knowledge
- tech...
-

dangers in using this term?

Rod Watson (2000):
"conceptual seepage” into conversation analysis (p.378)

--> suggests t...
Sharrock and Anderson (1986) discussion
of "Galilean science":
"That programme seeks for similarity and generality, and in...
-

Rod Watson is particularly concerned about
the appeal of cognitivism

Interviewed by Adriana Braga (2012)
"Instead of a...
Asymmetries in analysis
-

this presentation has looked at four ethnographies on legal
practice influenced by the studies ...
Rod Watson (1991)
- we should recognise distinctiveness
of language games

- conversation analysis
and ethnomethodology ha...
-

why methodological debate is important
- can distract from empirical enquiry
- but makes it possible to combat
(1) frag...
-

my view:
- we need this kind of debate within ethno/CA
- and also between ethno/CA
and mainstream social science

-

bu...
-

Maynard has argued that ethnography and discourse analysis
have only a “limited affinity” for conversation analysis

-
...
- main issue for ethno/CA researchers
based in sociology and cerminologueg.departments
is obtaining recognition from those...
- hard to persuade the mainstream
that a different type of analysis is possible
or why it matters

- here it seems permiss...
References
Braga, A. 2012 "Ethomethodology communication: An interview with Rod
Watson". <http://doingmodernity.blogspot.c...
Randall, D. and Sharrock, W. 2011 “The sociologist as a movie critic”. In
M.Rouncefield and P.Tolmie (eds.) Ethnomethodolo...
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Max Travers - AIEMCA 2012 Keynote 2 Address

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Max Travers' Keynote Address to the Australasian Institute of Ethnomethodology and Conversation Analysis 2012 Biennial Conference.

Extended Abstract published in: Travers, M. (2013). Asymmetries in Legal Practice, asymmetries in analysis? Recent ethnographies influenced by the studies of work tradition. Australian Journal of Communication, 40(2), 9-17.

Online at: http://austjourcomm.org/

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Max Travers - AIEMCA 2012 Keynote 2 Address

  1. 1. Asymmetries in legal practice, asymmetries in analysis? A review of recent ethnographies influenced by the studies of work tradition
  2. 2. Asymmetries in legal practice, asymmetries in analysis? 1. Addressing this congregation 2. Studies of work: objectives and challenges 3. Legal institutions: technical and common-sense knowledge (A) Stacy Burns on civil disputes (B) Bruno Latour on an administrative appeals court (C) Baudouin Dupret on offences related to sexual conduct
  3. 3. 4. Professional perspectives and work in children's courts (Max Travers) (A) Objectives and methods (B) Different perspectives on sentencing (C) Following procedural rules (D) Sentencing (E) Displaying values (F) Differences between courts? 5. Asymmetries and knowledge in action 6. Asymmetries in analysis
  4. 4. Studies of work: Objectives and challenges Dave Randall and Wes Sharrock Ethnomethodology at Work (2011): "..we are speaking specifically about that work which can be described as part of the 'ethnomethodological studies of work programme, and not other work that is sometimes conflated with ethnomethodology. We should then, briefly, comment on some other versions of the ethnomethodological project. We do not, that is, include in our argument the kind of thing that conversation analysts do. Conversation analysis (CA), an approach to the study of conversation which originates in the work of Harvey Sacks, Gail Jefferson and Emmanuel Schegloff...remains a vibrant enterprise but is not primarily concerned with the issue of 'context' in the way that ethnomethodologists of our persuasion might be.
  5. 5. Nor are we especially interested here in what is sometimes referred to as the 'institutional talk programme'...or in what has been called by some 'interaction analysis' , referring to a preference by some for a largely sequential approach to interaction in work environments. This only because we do not see such pursuits as being the same as ours" (p.17-18).
  6. 6. (A) Michael Moerman and conversation analysis - “dry bones of talk” (B) Harold Garfinkel - a new programme? "In ethnomethodology, 'procedural' means labor of a certain incarnate methodological sort: at the workplace, progressively and developingly coming upon the phenomenon via the work in, as and of the unmediated, immediately and directly observed phenomenal-field details of producing it” (1996, p.10). - “haecceities”
  7. 7. (C) Eric Livingston "in the midst of those doings", say working out a move in chequers, the researcher will come to see "the observability of those doings as the ordinary, practical things that they are for their practitioners” (2008b, p.258)
  8. 8. “Consider,for example, the work of solving a jigsaw puzzle turning the pieces over and sorting them in various piles (border pieces and corners, pieces of similar color or pattern possibly belonging to different sections of the puzzle); resorting the pieces into more discriminating piles; examining individual pieces to determine, at least temporarily, the pile into which they might be placed; building clusters of pieces that may be found to fit together; provisionally placing pieces in areas that begin to show the dimensions and structure of the border; placing small groups of pieces around the developing border as worksites for the border’s further development; examining the piece’s idiosyncratic particularities of shape and pictorial detail to try to place a piece in a particular spot; inspecting the pieces already positioned nearby to find continuities and relevancies of pattern, color, shape and detail; turning the pieces and trying to fit them together; discovering a misalignment of the border and searching for misplaced pieces” (2008a, p.844).
  9. 9. Legal institutions: technical and commonsense knowledge (A) Stacy Burns (2001) on civil disputes "Despite a few significant exceptions (eg. Sudnow 1965), most prior social studies of legal activities have emphasized the continuity between legal discourse and non-legal discourse and practice, and underplayed the specific legal training and competence of the central participants. As an attorney who practiced civil law, I could understand the mediation interchange in its technical legal terms and as practical, professional practice" (p.228).
  10. 10. knolwledge in action? “[Considerations that] became (and were made) relevant to concession-seeking…included such things as the litigants' negotiating stances, settlement positions and volition to settle; the parties specific factual and legal claims, contentions, interpretations and arguments (including the substantial strengths and weaknesses of each); the ways in which favourable (or harmful) legal and local precedent and authority were being asserted; and the course of progress in the negotiations up to that point" (p.243).
  11. 11. (B) Bruno Latour (2010) on an administrative appeals court "A unique site for a unique access to the collective interlocution where I could observe in great detail (okay, too many details I agree, but isn't that what ethnography is about?) the close knitting of legal reasoning" (p.viii). "In this book, I have tried to provide evidence of that by capturing law in the ceaseless movement of documents that, in case of dispute, serve to constitute a sound case, provided that other texts have offered a procedure of resolution which, if attacked, makes it possible to go through right to the end by following the process step by step, from court to court and text to text, including all the links established prior to that, which other agents...endeavour to make a coherent through a continuous process of reparation, updating, forgetting, rectification, codification, comments and interpretations.." (p.277).
  12. 12. "[the essence of law] does not lie in a definition but in a practice, a situated, material practice that ties a whole range of heterogeneous phenomena in a specific way. And it is on the search for this specific way that this book is entirely focused.... [the word moyen] is uttered ten times a minute by lawyers and judges, and yet this key term has no definition in legal dictionaries. That's what this book tries to redress: to provide a description, understandable from the outside, for the word 'moyen' - legal argument, legal ground, legal reason, this little vehicle on which is transported the rule of law, this value that we cherish so much - and with good reason" (p.x).
  13. 13. "it was impossible...even after several years of familiarisation, to get gradually closer to the legal utterance. To speak the law, he lacked not only words and concepts, but everything, absolutely everything. To legally state something, he would have to become a State counsellor" (p.255).
  14. 14. (C) Baudouin Dupret (2011) on offences related to sexual conduct "The legal rule and its uses make up a pair endowed with phenomenological properties. By focusing exclusively on the first segment of the pair, to wit [legal stipulations], formal/classical analysis loses sight of the work that makes up legal reasoning and is concerned only with bringing the finished product to light. In this way it neglects the elements that constitute the workplace. It paraphrases legal rules, but ignores the effective reasoning carried out by real people in real places and circumstances" (p.296).
  15. 15. "To say of someone that 'he was arrested' implies that 'representatives of the social order' did so, and this in turn implies that the person belongs to the category of 'offender'. To say that someone is 'sexually depraved' implies that he breached 'the social order', which in turn implies that he belongs to the legal category of 'perverts'. The many activities linked to the different categorization pairs are also linked to each other: 'arresting', 'interrogating', 'accusing', 'judging', which are activities linked to the category 'law and order officials', are paired with, respectively, 'committing a crime', 'breaching public order', and 'acting against morality' - activities linked to the category of 'perverts' (p.314).
  16. 16. "In this study of the context for judicial action before Egyptian courts, many difficulties arise from the fact that activity is always situated in a sequence that is longer than that available to the observer, and accessibility is limited in several ways. The problem of reducing the available context to a limited choice of relatively short and isolated sequences of interaction appears even when analysing linguistic exchanges. It also appears at the level of analysis carried out on the basis of a written text...This problem finally appears at the level of what interaction can reveal only to a competent observer, i.e. someone with prior knowledge of the background expectations harboured by the various parties to the interaction" (p.115-6).
  17. 17. Professional perspectives and work in children's courts (A) Objectives and methods - my study: 2005-12 "Or rather that it was only through learning about this local context over time, that made it possible to appreciate and understand work in this setting… A lawyer who had appeared before different magistrates on many occasions could immediately assess whether a sentencing decision was normal or unusual, or harsh or lenient, for that court” (p.48).
  18. 18. (B) Different perspectives on sentencing - magistrates - legal aid lawyers - the police - youth case workers
  19. 19. (C) Following procedural rules (D) Sentencing (E) Displaying values (F) Differences between courts?
  20. 20. Asymmetries in action? - origins of “asymmetry” as an analytic concept? - institutional talk programme - membership categorisation analysis - should be able apply these ideas to language use in these legal settings
  21. 21. (A) Institutional talk programme - speaking rights eg. defendants say little in children’s courts - danger in making assumptions eg. that defendants are intimidated
  22. 22. wider issue raised by Stephen Hester and David Francis (2000): "along with Schegloff, it will be our thesis that the institutional talk program exhibits crucial equivocations between an ethnomethodological and a conventional sociological stance on several key theoretical and methodological matters" (p.394) - warn against pre-judgement - see example
  23. 23. "The key point here is not that categorical identities [have been] allocated analytic precedence over circumstantial particulars, but rather that the intelligibility and recognizability of any interactional activity is a situated accomplishment. Thus any attempt to isolate the sequential dimension from other circumstantial elements, and treat this feature as somehow analytically privileged, cannot but reify form" (p.405)  (1) may not be helpful viewing children’s court hearings as a speech exchange system (2) may not be helpful assuming that children have different speaking rights - has to be demonstrated
  24. 24. my question as an ethnographer: - how do we know from a transcript that a young person is: - intimidated - deliberately not engaging - showing resistance - suggests the need for fieldwork?
  25. 25. (B) Membership categorisation - disjunctive categories “asymmetric category pairings which generate conflicting characterisations of the same person” (Lepper 2000, pp.36-7) - seems useful for understanding children’s courts
  26. 26. -adults and children view offending differently - can sometimes be seen in court - visible in the way adults talk about, or to, children - visible in how young people behave outside the hearing rooms
  27. 27. - a youth case worker: "As long as they don’t go to Ashley, some of them just don’t care what happens. I think that is why dealing with children is quite difficult because you try to get them to that point where they understand that having a probation order’s a pretty bad thing. Some of them will come in and they will say, “Oh do you think I’ll get a good behaviour bond?” because they think that’s an important outcome from the court because they’ve heard it on the news or whatever and they’ve come from a family that doesn’t understand the system and so when they say I’ve got a good behaviour bond they just think it’s a big order and they’ve got in big trouble and they don’t really come from an understanding of what court should be about.
  28. 28. “A lot of them will talk to their friends about it and their friends will say, “Oh as long as you don’t go to Ashley, it’s all right”. So if you’re on a probation order, it’s OK and nothing’s going to happen to you until you actually get put in Ashley” (p.118). - culture contact during hearings? - book cover as a pre-judgement
  29. 29. NB. asymmetries in other legal settings: (A) Judicial mediation in civil disputes (B) Appeals court judges discussions (C) Court summaries of sexual offences
  30. 30. Knowledge in action? - these studies of work describe different aspects of legal practice - common-sense knowledge - technical knowledge - situated in different institutions - involves considerable discretion - individualised
  31. 31. - dangers in using this term? Rod Watson (2000): "conceptual seepage” into conversation analysis (p.378) --> suggests the need for constant vigilance? - we can slide back into Galilean science
  32. 32. Sharrock and Anderson (1986) discussion of "Galilean science": "That programme seeks for similarity and generality, and in order to do so directs attention away from the specificities and particularities of things. The inquiries of ethnomethodology go in a different direction, looking precisely for the distinguishing and identifying features of phenomena" (p.82) - “knowledge in action” suggests that there is “legal knowledge” - but this may reify law - place too much emphasis on technical knowledge
  33. 33. - Rod Watson is particularly concerned about the appeal of cognitivism Interviewed by Adriana Braga (2012) "Instead of a mentalistic, information-processing model of individual sense-making we have a conception of sense-making as a collaborative cultural practice in a social (interactional) context" (p.6) - this is how studies of work view knowledge
  34. 34. Asymmetries in analysis - this presentation has looked at four ethnographies on legal practice influenced by the studies of work tradition - use different methods to conversation analysis - use a different analytic language - do not use the concepts of “asymmetry in action” or “knowledge in action” - do not argue that the analysis has practical value - what should we make of this asymmetry within ethno/CA?
  35. 35. Rod Watson (1991) - we should recognise distinctiveness of language games - conversation analysis and ethnomethodology have shared assumptions - but there are “asymmetries” - a gloss for what?
  36. 36. - why methodological debate is important - can distract from empirical enquiry - but makes it possible to combat (1) fragmentation (2) institutionalisation
  37. 37. - my view: - we need this kind of debate within ethno/CA - and also between ethno/CA and mainstream social science - but should not expect a meeting in the middle or mutual understanding eg. my (2006) debate/dialogue with John Conley and Doug Maynard - mainly directed against language and power school - book review resulted in asymmetric debate conducted over a year through a mediator
  38. 38. - Maynard has argued that ethnography and discourse analysis have only a “limited affinity” for conversation analysis - I was not asking conversation analysis to change - but it seems important to recognise that there are different approaches and traditions within ethno/CA and it is interesting to consider the nature of these differences - this also involves aesthetic choices - finding the right level in analysis - avoiding the appearance of scientism? (see Sudnow 1965)
  39. 39. - main issue for ethno/CA researchers based in sociology and cerminologueg.departments is obtaining recognition from those doing formal analysis eg. comments on my study - request to be objective - request to acknowledge hidden causes - request to be useful
  40. 40. - hard to persuade the mainstream that a different type of analysis is possible or why it matters - here it seems permissible to preach to the choir in saying that clearly these studies are interesting and do matter - and in looking at the specifics of legal practice using ethnographic and discourse analytic methods, and through not being ironic towards how magistrates and others understand their everyday work, we will continue to pursue this alternate, radically asymmetrical type of analysis
  41. 41. References Braga, A. 2012 "Ethomethodology communication: An interview with Rod Watson". <http://doingmodernity.blogspot.co.uk/2012/09/ethnomethodologyand-communication.html>. Burns, S. 2001 " 'Think your blackest thoughts and darken them' ": Judicial mediation of large money disputes". Human Studies. Vol.24, pp.227-49. Dupret, B. 2011 Adjudication in Action: An Ethnomethodology of Law. Ashgate, Aldershot. Garfinkel, H. 1996 "Ethnomethodology's Program". Social Psychology Quarterly. Vol.59, No.1, pp.5-21. Hester, S. and Francis, D. 2000 "Ethnomethodology, conversation analysis and 'institutional talk' ". Text. Vol.20, No.3, pp.319-413. Latour, B. 2002 The Making of Law: An Ethnography of the Conseil d'Etat. Polity Press, Cambridge. Lepper, G. 2000 Categories in Text and Talk. Sage, London. Livingston, E. 2008a "Context and detail in studies of the witnessable social order: Puzzles, maps, chequers, and geometry". Journal of Pragmatics. Vol.40, pp.840-62. Livingston, E. 2008b Orders of Ordinary Action. Ashgate, Aldershot. Moerman, M. 1988 Talking Culture: Ethnography and Conversation Analysis. Cambridge University Press, Cambridge.
  42. 42. Randall, D. and Sharrock, W. 2011 “The sociologist as a movie critic”. In M.Rouncefield and P.Tolmie (eds.) Ethnomethodology at Work. Ashgate, Aldershot, pp.1-18. Sharrock, W. and Anderson, R. 1986 The Ethnomethodologists. Routledge, London. Sudnow, D. 1965 “Normal crimes: Sociological features of the penal code”. Social Problems. Vol.12, No. 4, pp. 255-64. Travers, M. 2006 “Understanding talk in legal settings: What law and society studies can learn from a conversation analyst” (with replies from John Conley and Doug Maynard). Law and Social Inquiry. Vol.31, No.2, pp.447-498. Travers, M. 2007 “Sentencing in the Children’s Court: An Ethnographic Perspective”. Youth Justice, Vol.7, No.1, pp.21-35. Travers, M. 2010 “Welfare, punishment or something else? Sentencing minor offences committed by young people in Tasmania and Victoria”. Current Issues in Criminal Justice. Vo.22, No.1, pp. 99-116. Travers, M. 2012 The Sentencing of Children: Professional Work and Perspectives. New Academia Publishing, Washington, DC. Watson, R. 1992 “The understanding of language use in everyday life: Is there a common ground?” In G.Watson and R.Seiler (eds.) Text in Context: Contributions to Ethnomethodology. Sage, Newbury Park, CA, pp. 1-19. Watson, R. 2000 "The character of 'institutional talk': A response to Hester and Francis". Text. Vol.20, No.3, pp.377-89.
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