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Law in Context

Abstract from Volume 34 No 2 (2016) Contemporary Issues in Criminal Law

‘Weeds of Our Own Making’: Language Ideologies, Swearing and the Criminal Law

Elyse Methven is an Associate Lecturer at the School of Law, Macquarie University, and a Quentin Bryce Doctoral Scholar at the Faculty of Law, University of Technology Sydney. Elyse researches in the areas of criminal law and forensic linguistics, and teaches criminal law. 

In adjudicating offensiveness, judicial officers create and apply a number of ‘common sense’ judgments about how language works. These ‘language ideologies’ are rarely informed by, and are often contrary to, empirical research and linguistic literature; they are instead constructed through constant repetition of popular views and questionable assumptions. Through the cases Jolly v The Queen and Heanes v Herangi, this article examines how judicial officers construct realities about swear words in the criminal law. In the first part, I briefly set out the legal doctrine in relation to offensive language crimes. Following this, I draw on critical discourse analysis to critique language ideologies in offensive language cases. I argue that offensive language crimes, as they are currently framed and interpreted, encourage judicial officers to pick and choose from whichever linguistic or ‘folk-linguistic’ ideas they see fit, and enable them to elude the rigorous critiques to which linguists are exposed.

(2016) 34(2) Law in Context p117

   
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