28 December 2013

Spirits and Legal Articulation


Vojtech Novotny discusses biology research in Notebooks From New Guinea: Reflections on Life, Nature, and Science From the Depths of The Rainforest. From his visit to the rainforest, Novotny compiled advice for other tourists. He warns against trips to the dangerous Karkar Island's volcano. The indigenous people also warn against travelling there but for different reasons. This post explores that difference and the use to which the synthesis between the perspectives may be put during a legal education.


1. Spirits in New Guinea

The villagers on Karkar Island insist local spirits must be respected to secure a safe journey. Tourists who ignored the sprits and travelled without the sufficient respect have been injured or died. Non-superstitious, rational people think the spirits do not exist. So they ignore the risks in spite of the villagers' warnings and therefore find trouble on the slopes and crater.

Novotny observes another aspect:
Whether or not such spirits also occur freely in the forests around the volcano, as the villagers claim, or solely in the human imagination, is difficult to prove, since their influence on Karkar reality is in either case the same. (p 70.)
This indicates two things:
  1. Regardless of proof, the local population believes in spirits and so their lives are determined somewhat by their ability or inability to appease spirits. Success or failure is thereby attributed to angry or passive spirits rather than science;
  2. More rational minds supply more rigorous causative explanations for the phenomena the locals attribute to spirits. Neither vocabulary, however, detracts from the fact that hiking up volcanos in tropical forests is dangerous.
The point is, each culture--here the New Guinean versus the rational occidental--uses a vocabulary to explain the world around them. The rational relies on science, which is more usefully predictive. The New Guinean vocabulary simply fails to articulate problems in a language that lends to solutions. That is, spirits may be said to cause the weather problems that make volcano-trekking risky but this does not help visitors plan trips for when problem-weather is least likely to occur. Science may facilitate that planning but some dangers remain.

2. Towards Law

The spirits cause disaster for rational thinkers when they fail to understand that 'spirits' are the best New Guinean attempt to explain why specific problems occur. The problem, then, rests in articulation. In the same sense, the law explains and attributes causation with a vocabulary different to the layperson's. Learning law is partly about learning how to articulate problems in the legal culture notwithstanding the non-legal culture discusses the same ideas and problems with different labels and words.

There exists a time, then, when students must forget how to discuss problems as laypersons, and learn how to discuss problems as lawyers. For example, the practice readily identified as theft in the short clip played when you insert a new DVD is not theft in a legal sense. Downloading a movie for free in breach of copyright is illegal, but the prosecution of that offence would not be a prosecution for theft.

Law students must therefore realise the language they are accustomed to using may be inadequate in the legal culture. To use 'theft' to describe illegal downloads is like using 'spirits' to explain flash floods or treacherous mountain ranges. The language may be useful in some circumstances, but such imprecision will neither secure a conviction nor allow one to present a successful defence against such a conviction.

3. Conclusion

Students should be aware, then, learning law is often as much about learning what words mean in the legal culture as opposed to an everyday-setting, as it is about learning procedures or interpretation methods. The easiest way to learn how law uses its technical vocabulary is to read lawyers' attempts to use law's technical vocabulary and consider how and why they do what they do with words. By this, of course, I mean read case law, journal articles, and law-themed books including lawyers' biographies.


Created: 28 December 2013. Version 1.0.





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