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TIM CORCORAN

LEGISLATIVE PRACTICE AS DISCURSIVE ACTION: A


PERFORMANCE IN THREE PARTS

ABSTRACT. Paralleling Henry and Milovanovic’s theory of constitutive crimi-


nology this paper considers several dialogic relationships created in and through an
engagement with the Governing Principles of the Penalties and Sentences Act, an
example of penal legislation practiced in the Australian State of Queensland.
Fairclough’s method of Critical Discourse Analysis is enlisted providing the dis-
cussion with three prominent discourses performed in the text: purposive, individ-
ualising and moral/behavioural. The discussion proposes that dealings with the text
both inform and prepare responses across a variety of relational situations involving
the State, society, those directly engaged with the criminal justice system and the Act
itself. Of specific concern is how the legislation discursively limits or permits action
within these relationships whilst ignoring its own constitutive force and relational
responsibilities.
...justice no longer takes public responsibility for the violence that is bound up
with its practice. 1

1. Introduction

My first place of employment out of university was the prison


situated on the outskirts of town. In some way, history and the
moment seemed to collide as I thought about my working future.
At once I realised that here was a prison that had stood for over
one hundred years and there I was, a recently graduated psycholo-
gist, about to begin what I had hoped would be a positive and
productive appointment. Prior to this moment I had not had any
formal contact with the criminal justice system. It was then that
relationships, some enjoyable and enduring, others regretful and
disappointing began. In this article I will discuss one of these. It
was a relationship paid little attention at the time but in hindsight
one that we all, as members of our respective communities, need to
grant greater attention. It is a relationship we commission as the
practice of incarceration takes place. In my own community this
practice is represented by the Penalties and Sentences Act2
1
Foucault, M., Discipline and Punish: The Birth of the Prison (London: Penguin,
1977), 9.
2
Queensland Government, Penalties and Sentences Act: Reprint No. 5 (Brisbane:
Queensland Government Printer, 1992).

International Journal for the Semiotics of Law


Revue Internationale de Sémiotique Juridique (2005) 18: 263–283
DOI 10.1007/s11196-005-9002-9 Ó Springer 2005
264 TIM CORCORAN

(hereafter PSA) and I want to focus on Part 2 – the Governing


Principles contained therein. In what follows I consider how the
words of the text merge with us to enable the performance of our
daily activities. Although we may recognise our own influence over
textual production, consumption and distribution seldomly do we
attend, I believe, to the reciprocated force of the text upon our
own lives as it affirms our socio-political discourse, informing us in
how to deploy its authority and engage the lives subsumed by its
power. In effect and because of this lack of acknowledgement
legislation can hinder the redress of its own debilitating practices
because, strangely enough, it is not immediately seen or considered
to be directly responsible for the action taking place. Henry and
Milovanovic implicitly acknowledge this issue when they suggest
‘‘the problem is how to cease our unreflexive rebuilding of these
social forms and structures while reinvesting energy in alternative,
connective interrelational social forms’’.3 It is to recognition of the
reciprocal nature of our performed relationships that I direct your
attention.
In Giroux’s4 terms this paper will traverse several ‘border-cross-
ings’. It will focus on the disciplines of psychology and criminology
specifically and move, in a more general sense, to engage critical
forays into understandings of language, discourse theory and prag-
matism. Theoretical contributions from the areas of constitutive
criminology, social constructionism and discursive psychology will
instruct and help to contextualise the following discussion. By way
of analysing the text, Fairclough’s5 method of Critical Discourse
Analysis (hereafter CDA) will be discussed and employed to access
three areas of inferred discursive action. As mentioned, textual
examples of these will be sourced from Part 2 – the Governing
Principles of the PSA. I will consider, amongst others, contradic-
tory practices such as those engendered by the use of blame in a
system that supposedly promotes notions of justice and responsibil-
ity. The fact that such mutually disabling action goes by largely
unacknowledged in our daily meetings with the text is a habit in
need of urgent and necessary change. I do not hope for conformity

3
Henry, S. and Milovanovic, D., ‘‘Constitutive Criminology: Origins, core con-
cepts, and evaluation’’, Social Justice 27/2 (2000), 286.
4
Giroux, H., Border Crossings: Cultural Workers and the Politics of Education
(New York: Routledge, 1992).
5
Fairclough, N., Critical Discourse Analysis: The Critical Study of Language
(London: Longman, 1995).
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 265

in discursive parameter for dissonance is an inevitable part of tex-


tual performance particularly in the area of socio-political practice.
What I question is the continued affirmation of certain practices if
and when consensus regarding their practicability is no longer
evident.

2. Building Realities with Words

In the daily practice of life options are chosen regarding language


use which have direct consequence for each of us and on the
actions that follow. If it were possible for anything to go on, any
word choice to be made and performed, then issues of context, his-
tory and culture would be irrelevant. But because these matters are
infused into our language games wordplay, as Rorty maintains,
fails to sustain or initiate the means for reaching pragmatic
communicative ends.
We cannot regard truth as a goal of inquiry. The purpose of inquiry is to achieve
agreement among human beings about what to do, to bring about consensus on
the ends to be achieved and the means to be used to achieve those ends. Inquiry
that does not achieve coordination of behaviour is not inquiry but simple word-
play...There is no deep split between theory and practice, because on a pragmatist
view all so-called ‘theory’ which is not wordplay is always already practice.6
My preferred position in this debate distances itself from habits
of knowing through static and structural explanations of language
to engage ideas subsumed (although not always intentionally)
under the banner of postmodernism. Primarily this position
acknowledges that there are many ways in which language practices
may be conceived and performed and how these present and
become available to us is of particular investigative interest. The
following theorists serve as examples and provide grounds for the
forthcoming methodology.
For Foucault analytic attention intensifies around a concen-
trated area of action between communicative respondents or partic-
ipants in dialogue. According to Foucault meaning, in the form of
knowledge and the social relations it supports, provides substantial
opportunities for historical investigation. It is not some superficial
and bordered history that is of interest here but the relational and
constitutive worlds of existence as may have been known to those
who lived within its boundaries. Foucault explains

6
Rorty, R., Philosophy and Social Hope (New York: Penguin, 1999), xxv.
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...it is a matter not of examining power with regard to its origin, its principles, or
its legitimate limits, but of studying the methods and techniques used in different
institutional contexts to act upon the behaviour of individuals taken separately or
in a group, so as to shape, direct, modify their way of conducting themselves, to
impose ends on their inaction or fit it into overall strategies, these being multiple
consequently, in their form and their place of exercise; diverse, too, in the proce-
dures and techniques they bring into play.7

Attentiveness to discursive space may afford the witness critical


insight regarding the constructive processes (dialogues and
practices) taking place in human interchange and continued work
in the area of discourse theory provides further appreciation of the
‘methods and techniques’ Foucault mentioned.
According to Gergen8 three general areas of analytical interest
have emerged regarding the deployment of discourse theories. The
first engages discourse as structured sets of descriptive conventions
which contribute to our ability to define the world and legislation,
the textual source for the following analysis, is exemplary of this.
Secondly, discourse considered as rhetoric provides an understand-
ing of the means by which language use develops its ability to
affect the social world. In the forthcoming analysis consideration is
given to the historical backdrop against which the PSA has devel-
oped and how the bequeathed terminology employed therein
frames the language of the text. Finally, discourse understood as
process helps us consider how people and the world are constituted
through language use. In the following analysis it is suggested that
focusing on discursive action facilitates a conceptual connection
between processes of meaning-making and the relationships enacted
within such dialogic activity. To conclude this section I will now
introduce Shotter’s understanding of dialogically structured rela-
tionships, relating it to the work discussed so far, and as a means
for drawing the discussion back to the article’s stated thesis.
Shotter9 describes two conditional movements distinguishing
communicative joint action. The first suggests that what is pro-
duced by people in communication has an unintentional aspect
such that it may seem that these products of intercourse are some-
how given to the exchange. That any situated interaction may seem
organised, in that it invites or discourages certain actions from its
7
Foucault, M., ‘‘Foucault’’, in Aesthetics, Method and Epistemology: Essential
Works of Foucault 1954–1984, ed. J. Faubion (London: Penguin, 1998), 463.
8
Gergen, K.J., An Invitation to Social Construction (London: Sage, 1999).
9
Shotter, J., Conversational Realities: Studies in Social Constructionism (London:
Sage, 1993a).
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 267

participants, figures the first feature of joint action and reminds us


of Foucault’s point in relation to discursive practices that shape,
direct or modify human conduct. The second is that intention may
be afforded to the participants in that they construct and construe
the meaning of their actions in accordance to the communicative
situation before them. In this context Shotter’s position is similar
to that of Rorty’s in that an act’s intentionality must be considered
in relation to its perceived validity, both situational and historical,
within the communicative process or joint action.
More recently Shotter has furthered his exposition to specify
how dialogically structured spaces may operate. He says
Our focus on our living, responsive understanding of each other’s words in their
speaking, reorients our attention toward the ceaselessly emerging chain of our
expressions and the responsive reactions of others to them...this shift of focus ori-
ents towards a different task: to attend to the living, dialogically-structured, com-
plex inter-workings occurring between the many diverse elements involved in all
our communicative activities. We are never not in living contact with the others
and othernesses around us. I can speak about the world around me because the
world around me can speak itself in me.10
If, what Shotter says is true, that I can speak about the world
because the world does so through me, such a proposition would
also suggest that as I live my life across varied situations I am, as
you are, a never completed, always changing and responsive amal-
gam of those meanings. That the words and contexts we come in
contact with are continually shaping and informing the identities
we can assume or create from situated action to situated action.
Henry and Milovanovic’s theory of constitutive criminology
provides specific theoretical application to many of these ideas.
They suggest their perspective ‘‘examines the discursive coproduc-
tion of crime by human agents in their interrelation with cultural
products, social institutions, and the wider social structure’’.11 The
cultural products highlighted for the present discussion are identity
and legislation and acknowledgement that these are constituted
through human relationships allows us ongoing opportunities for
critical reflection. The constitutive theorists’ proposition, similar to
that coming from social constructionism, is ‘‘not that the harm of
crime is unreal, but that the constructions that lead to its effects

10
Shotter, J., ‘‘Writing from within ‘living moments’: ‘Withness writing’ rather
than ‘aboutness writing’’’, J. Shotter’s website URL (consulted August, 1999), http://
pubpages.unh.edu/~jds/CORNELL_FIN.htm.
11
Supra fn.3, at 270.
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are the outcome of discursive practices’’.12 If it is possible for us to


acknowledge the contributions of discourse to our daily relational
constructions then analyses of the processes through which they
appear may provide candid understandings of the ways in which
we practice every day life. It is to an acknowledgement of these
concerns that the following discourse analysis is directed but first a
brief methodological overview is required.
Fairclough broadly suggests that ‘‘discourse is use of language
seen as a form of social practice’’.13 He unpacks this statement
using three premises: (a) that language is part of society, (b) that
language is a social process and (c) that non-linguistic features of
society influence language (and vice-versa). What is particularly
interesting for methodological reasons is the dynamic movement
CDA emphasises between micro textual analysis and macro social
analysis. Hence, this article’s interest is around the construction of
dialogic relationships and meanings that come to life in the spaces
between the Act and those who engage it and not, as will be
discussed momentarily, out of presumed individual mentalistic
processes and their implied intentionality in social situations.
Fairclough’s theoretical position in relation to human psychol-
ogy is one that may most comfortably be placed in the field of
social constructivism. From such a location a theory of individual
practice is based upon assumed cognitive processes in the explana-
tion of behaviour. He calls these cognitions members’ resources
‘‘which people have in their heads and draw upon when they pro-
duce or interpret texts – including their knowledge of language,
representations of the natural and social worlds they inhabit,
values, beliefs, assumptions and so on’’.14 The main difficulty I
encounter with Fairclough’s understanding is that in a constructiv-
ist framework the cognitive agent remains bound to a theoretical
system which can not escape the creation of referential distance,
however large or small, between the person, their cognitions and
the context under description. The importance of whether or not
such distance is constructed is an epistemological and hence
methodological issue and thus its relevance here. It makes little
sense, especially in deliberations regarding the part language plays
in human action, to privilege a priori and dualistic cognitive
explanation before comprehension of the practical and moral

12
Supra fn.3, at 284.
13
Supra fn.5, at 7.
14
Fairclough, N., Language and Power (London: Longman, 1989), 24.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 269

knowledges involved in the exercise of daily life.15 Put another way,


my preference is for understanding an ontology of activities and
meanings constructed in and through these rather than an ontology
of presumed substances.16
In light of these concerns this paper stands apart from others of
its kind in terms of highlighting, from a social constructionist
perspective, the dialogically structured space created between legis-
lation (text) and its subject. For example, previous deconstructive
analyses in the field of criminology, with specific regard to the
relationships enacted between legislation and subjectivity, have
appropriated an array of theoretical perspectives including psycho-
analytic views17 as well as ideas taken from Marxist interpreta-
tions.18 Psychoanalytic theory, like any psychological theory, can
be scrutinised for the language it employs in its description of
people and their lives. Theory of this kind is replete with references
to the conscious/unconscious nature of human life and it is from
such description that this range of theoretical practice has also
been known as ‘depth psychology’.19 The conscious qua surface
and unconscious qua depth dichotomy sets up an image of the
person that can lead to explicit constructions about human
functioning. For example, Arrigo has employed the concept in
explaining his own deconstructive analyses of actions taking place
between an application of mental health law and processes involved
in court decisions such as the competency to stand trial phenome-
non. Here are two recent examples:
...defining mental illness, predicting dangerousness, administering forced psycho-
tropic treatment over objection and executing psychiatrically disordered, though

15
See Shotter, J., Cultural Politics of Everyday Life: Social Constructionism,
Rhetoric and Knowing of the Third Kind (London: Open University Press, 1993b),
50–51.
16
Harre, R., ‘‘The necessity of personhood as embodied being’’, Theory &
Psychology 5/3 (1995), 369–373.
17
See e.g. Arrigo, B.A., ‘‘Justice and the deconstruction of psychological juris-
prudence: The case of competency to stand trial’’, Theoretical Criminology 7/1
(2003a), 55–88 or Milovanovic, D., ‘‘The postmodern turn: Lacan, psychoanalytic
semiotics, and the construction of subjectivity in law’’, Emory International Law
Review 8/1 (1994), 67–98.
18
See e.g. Arrigo, B.A., ‘‘Psychology and the law: The critical agenda for citizen
justice and radical social change’’, Justice Quarterly 20/2 (2003b), 399–444 or Fox,
D.R., ‘‘Psycholegal scholarship’s contribution to false consciousness about injus-
tice’’, Law and Human Behaviour 23/1 (1999), 9–30.
19
Danziger, K., Naming the Mind: How Psychology Found its Language (London:
Sage, 1997), 130–132.
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competent, death row prisoners all hinge, in part, on the unconscious and often
unspoken values that inform (and limit) these complex decision-making prac-
tices.20

...deconstruction, as applied to psychological jurisprudence, can expose the often-


hidden biases, unstated assumptions and unconscious preferences located within
the simplest of practices.21

There is a lengthier argument against the facilitation of the


unconscious than can be had here. However, what needs to be
acknowledged expeditiously is the way that, through its
deployment, such a concept leads us to presume that psychological
structures such as the unconscious actually exist and that they are
somehow influential and/or perhaps directive of our social actions.
My concerns are exasperated when people take up this form of
discourse in an attempt to account for their own or an other’s
behaviour. Hence, it is to this admission – that discourse is poten-
tially both formative and informative of our subjectivity – that I
am wary of employing the unconscious as an explanatory source. I
can agree with Arrigo (and this is a rudimentary point regarding
discourse analysis) that the analysis is undertaken in an effort to
pursue the ‘unspoken’ and ‘unstated’ but it is debatable as to
whether our pursuits need to rely on the presumption of the
unconscious to do so.
The invocation of the concept of false consciousness draws
similar concern. Fox22 acknowledges that it may be taken to be
patronising of people’s experience, even misdirected at times, but
suggests that the concept deserves further exploration. The idea,
drawn from Marxist philosophy, has been operationalised by psy-
chologist John Jost as ‘‘the holding of false or inaccurate beliefs
that are contrary to one’s own social interest and which thereby
contribute to the maintenance of the disadvantaged position of the
self or the group’’.23 My issue with the facilitation of this concept
is twofold. First, to admit that it is patronising in effect only to
push such concern aside tells us that the power relationship in
which such action is possible is not an equitable one. It suggests
that the position from which adjudication of a true/false decision
could be made is possessive of some way to divine what is real or

20
Arrigo, supra fn.17, at 62.
21
Arrigo, supra fn.17, at 62.
22
Fox, supra fn.18.
23
Fox, supra fn.18, cited at 12.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 271

otherwise. Take this example: ‘‘a Marxist-based psychology of law


analysis would demonstrate how sexually violent predator (SVP)
legislation produces false consciousness, that is, deflects attention
away from the real political and economic inequalities within soci-
ety...thereby maintaining (and legitimating) the capitalist status
quo’’ (my emphasis).24 The extent to which one is comfortable with
claims of this sort may indicate the position one occupies along a
realist-relativist continuum. Secondly, concerns may also be raised
by the discursive positioning of cognition as a possessive quality,25
a point following on from the one just made in relation to the
concept of the unconscious. Our ability to accept or decline respon-
sibility for an act can be greatly affected by how the issue is
discussed and the consequent movements that are permitted or
disallowed in such action. Thus, critical appraisal of the discursive
action resulting from our adoption of certain psychological
language is necessary and complimentary to the analytic diligence
befitting all deconstructive practice.26
By highlighting, reflecting upon and changing the unwanted in
the unspoken we, as members of our respective communities, may
initiate a use of languages that complement our preferred futures
thus encouraging movement away from inherited wordplay. For
the following analysis I have purposely selected a section of the
Act, its Governing Principles, as it is assumed that the standards
upon which the practice of incarceration are situated may speak
from these pages. But it is suggested that this is not all that may be
heard. As developed in my remarks on Foucault and Shotter, of
equal interest here are the dialogic relationships maintained and
constrained through the text. I will begin with a selection of purpo-
sive discourses that inform the Act and then move on to engage
individualising and moral/behavioural practices in turn. This

24
Arrigo, supra fn.18, at 412.
25
See Edwards, D. and J. Potter, ‘‘Attribution’’, in Discursive Psychology in
Practice, eds. R. Harre and P. Stearns (London: Sage, 1995), 87–119.
26
For an extended discussion of discursive psychological perspectives see Potter,
J., Representing Reality: Discourse, rhetoric and social construction (London: Sage,
1996) or Edwards, D., Discourse and Cognition (London: Sage, 1997). Also, Auburn,
T. and Lea, S., ‘‘Doing cognitive distortions: A discursive psychology analysis of sex
offender treatment talk’’, British Journal of Social Psychology 42 (2003), 281–298
offers a discursive psychological analysis of discussions within a sexual offender’s
treatment program and serves as an interesting example to how discursive psy-
chology may be applied in the area of criminology generally and forensic psychology
more specifically.
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analysis is in no way exhaustive of the discursive strategies and


practices that may be inferred from the Act. As stated, of primary
concern here are the strategic movements that might impact on the
lives of those who come in contact with the text.

3. Part I: Purposive

On 1 January 1901, with the proclamation of Federation, Queens-


land became a State under the Commonwealth of Australia. Coin-
cidently, also proclaimed on this date was the Criminal Code Act
1899, a conglomeration of rules and regulations concerning crimi-
nal responsibility and the administration of justice in the State. The
Penalties and Sentences Act 1992 is the most recent transmutation
in this line of legislation. The PSA succeeded a number of Acts and
was intended to unite, under one piece of legislation, sentencing op-
tions for courts in Queensland and provide a succinct definition of
the principles guiding such practice. Listed below is Section 9.(1) of
the sentencing guidelines outlining the purposes informing the prac-
tice of the Act. They are as follows:
9.(1) The only purposes for which sentences may be imposed on an offender are –
(a) to punish the offender to an extent or in a way that is just in all the circum-
stances; or
(b) to provide conditions in the court’s order that the court considers will help the
offender to be rehabilitated; or
(c) to deter the offender or other persons from committing the same or a similar
offence; or
(d) to make it clear that the community, acting through the court, denounces the
sort of conduct in which the offender was involved; or
(e) to protect the Queensland community from the offender; or
(f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).27
To paraphrase then, the five intended purposes of incarceration
in Queensland are punishment, rehabilitation, deterrence, denuncia-
tion and protection. A similar philosophical base may be found in
most Western countries amenable to local practices and guide-
lines.28 Whilst it is not this article’s intent to deride the pretense of

27
Supra fn.2, at 16–17.
28
See Hudson, B.A., Understanding Justice: An Introduction to Ideas, Perspectives
and Controversies in Modern Penal Theory (Buckingham: Open University Press,
1996).
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 273

the legislation, for as a member of the community to which these


principles apply, I expect that the State will do all that is appropri-
ate within its powers to protect my family and our rights. What is
being questioned however is how, in Australia or any other country
that incarcerates its population, such practices are enacted through
the languaging of legislation.
The first point to raise is the exclusivity pronounced by the
opening statement. That these purposes are the only ones to be
considered suggests that all are intended to have positive effects
(e.g. servicing justice, providing rehabilitation, etc.) and that, were
other factors to influence sentencing procedures, these would align
with the purposes clearly stipulated in the text. Such linear causal-
ity would seem to fit with an ideal or modernist notion of how the
world works but what occurs in daily life could also be very
different. Take for example an election year in which the political
rhetoric surrounding law and order issues regularly becomes front-
page news. Again, for the legislation to propose that its guidelines
are enacted so as to be just in all circumstances brings forth two
contentious issues. The first, already mentioned, is the pervasive-
ness of the claim. The second involves an ethical deliberation
surrounding notions of justice. A comprehensive discussion involv-
ing this second point is not permissible in the space available here.
What should be noted though is the text’s use of the tactic of
pronouncement, common to legislative practice and evidenced in
this section’s opening line, to facilitate its claim that all actions of
the court are inherently just across the board.
As suggested above the criticisms made herein are not intended
to question the need or requirement for a criminal justice system.
These concerns originate with the limiting of possible actions
surrounding meaning-making processes involved in the practice of
sentencing. It is not simply targeting the practice in and of itself.
This point is highlighted when considering the apparent symmetry
the Act presumes in aligning its purposes with community beliefs.
For example, it remains questionable whether incarceration is the
most suitable option regarding rehabilitation but the legislation is
clear in its suggestion that sentencing the offender will ultimately
assist this process. Nor is it certain that sending people to prison
will deter others from engaging in similar activities. Nor is it
beyond doubt that all members of the community would denounce
the sort of conduct brought before the court without knowledge of
274 TIM CORCORAN

the circumstances in which it took place.29 On each count the Act


is transparent by intent but for the text to suggest that it does so
on the behalf of all in the community, across the board and in
every circumstance, such magnanimity is contentious. Presumptive
representation neither acknowledges nor validates the kind of
ethical differences evident in any community and demonstrates how
the PSA actively limits alternate discourse.

4. Part II: Individualising

From its establishment as a penal colony in 1825 non-indigenous


Queensland has had an unbroken history with criminality and the
convict. In Western cultures social scientific practices have histori-
cally moved to spotlight the individual as the site of human action
and its base for explanation. Foucault’s influential work Discipline
and Punish30 has been acknowledged for its incisive commentary in
this regard. In it he documents varied traditions that have
influenced socio-political practices involved in the punishment and
incarceration of the individual. This section is concerned with the
practice of individualisation as engaged in the Act for, as Foucault
suggested, such practices are primary movements through which
relationships of power are determined and identities constructed.
The subject positions31 created within the text set out who and
how individuals are to be referenced or constructed by the Act.
Individually, the text refers to the offender, the victim, an author-

29
To be fair to the text the court is directed to take into regard ‘‘the presence of
any aggravating or mitigating factor concerning the offender’’ supra fn.2, at 17.
Having acknowledged this I believe there are examples whereby a person may be
charged with an offence where no aggravating or mitigating factors are present but
the issue of agreed denunciation remains contentious. For example, the person who
breaks the law through protest. It may be against the law to protest without a permit
but the individual makes a choice to express their will through such action.
Depending on the protest issue and how the protest took place it may be that
sections of the community agree with the protest and the action taken. Queensland
can stake claim to an inglorious history in relation to street protests and their
policing. It was the only State in Australia to arrest demonstrators protesting the
country’s involvement in the Vietnam war. See McCartney, C., Lincoln, R. and
Wilson, P., Justice in the Deep North: A Historical Perspective on Crime and Pun-
ishment in Queensland (Gold Coast, QLD: Bond University Press, 2003).
30
Supra fn.1.
31
see Davies, B. and Harre, R., ‘‘Positioning: The discursive production of
selves’’, Journal for the Theory of Social Behaviour 20/1 (1990), 43–63.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 275

ised commission officer and the clerk of the court. The directions
made to the latter two individuals are fairly clear procedural state-
ments regarding legal process and as such I will not direct further
attention to these positions. It should come as no surprise that an
offender and victim assume the central roles in legislation concern-
ing criminal punishment. But what is puzzling is that a judicial
figure, as an individual, does not directly appear in this section of
the text. The power or performatory source of judicial decision is
referenced to the court in this instance. For example: ‘‘A court may
exercise a discretion to record or not record a conviction as
provided by the Act’’.32 It could be argued that the court acts on
behalf of the community as a collective and therefore reference to
an individual is not necessary. In fact, law enforcement, other per-
sons to be deterred from unlawful activity and the community – all
collective positions – appear as the only other locations available in
this part of the text. The condition under which individual refer-
ence is considered necessary requires further deliberation.
The section of the Act under scrutiny here primarily involves
governing principles for sentencing the textual subject position or
person referred to as the offender. It is of interest though to con-
sider how the person known as the victim is situated in the text as
an explicit relationship is constructed between these positions. In
sentencing an offender a court is requested to consider ‘‘the nature
of the offence and how serious the offence was, including any
physical or emotional harm done to the victim’’.33 I will hold over
discussion regarding the nature of an offence as this issue contrib-
utes to the determination of what is described as the offender’s
character. However, for the current topic it should be noted that
offences, according to the legislation, are split between those
considered to be violent and those thought to be non-violent. Con-
sequently, victims may be recipients of either type of offence and
this is where confusion exists regarding the text’s explication of
both subject positions. For the person known and dealt with as the
offender such delineation is straightforward in reference to violent
crimes. But whilst working in prison I lost count of the times a
person who had been convicted of a non-violent offence, let us say

32
Supra fn.2, at 19.
33
Supra fn.2, at 17.
276 TIM CORCORAN

drug use, questioned who exactly was the victim of their offence.34
I later realised that the point being raised was that the further the
text and its focus moved from adjudicating the lawfulness or other-
wise of a situated action the less meaning it had for those concern-
ing their consequent positioning. This clearly was an example of
the Act’s constitutive power obscuring further movement in the
development of meaning. Now I am not for one minute arguing
for the decriminalisation of all non-violent offences – that is an-
other topic entirely. But to retain the focus on a victim in such
crimes, as the Act does, confuses one of the purposes of the legisla-
tion which is to establish who will be known within the commission
of a particular crime as the offender. Following Rorty,35 consensus
in practice should include all involved in the criminal justice system
as each faces the challenge to responsibly contribute to an achieve-
ment of collective meaning.
Concern can also be raised with regards the positioning of the
person known as the victim. As Sharon Lamb states ‘‘From the
outset we need to address the question of whether victims are
indeed made victims by anything but their victimisation, and what
is meant when we talk about being made a victim. To be a victim
is different from being a victim of something’’ (emphasis in
original).36 Further to Lamb’s point, discursive practices that treat
offenders differently with regards the type of crime committed
(violent or non-violent) and victims similarly may unwittingly
demean the actual impact experienced by recipients of either crime.
Without differentiation the person remains known as a victim of
crime. Upon differentiation the person becomes known as a victim
of something (either a recipient of violent or non-violent crime).

34
For the record the usual response to this position was a conversational
maneuver borrowed from what has become known as narrative therapy. I would
attempt to question the person as to the possibility of his or her own victimisation by
the problem. In the example given this would open questioning on the issue of the
person’s relationship with their drug of choice and its manipulation of the person’s
life. As well as this option there was generally agreement that the law had been
broken regardless of who was being positioned as the victim. Most of my conver-
sational partners would then inevitably move on to question the moral rights and
wrongs of the activity and the law itself. The conversation could then reconsider the
relationship created between the person and the drug situated within moral and
ontological boundaries.
35
Supra fn.6.
36
Lamb, S., The Trouble with Blame: Victims, Perpetrators, and Responsibility
(Cambridge, MA: Harvard University Press, 1996), 128–129.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 277

Does it matter to the experiential meaning created by the crime


whether the person was treated with or without violence?37 Should
the future anxiety of the person who was not home when their
house was robbed be considered less meaningful than the momen-
tary experience of anxiety for the person who was assaulted when
spat on? I doubt whether such unfortunate discursive practice is
intentional but it can certainly be considered pragmatically careless
in effect.
The subject position of the person considered to have trans-
gressed community rules and laws is labeled by the action supposed
to have taken place. If reference were sought for an acceptable
meaning of the word it might suggest that to offend is to ‘‘stumble
morally; to commit a sin, crime, or fault; to transgress’’.38 Clearly
the title the person occupying the position of offender carries into
the courtroom includes moral and valuational baggage that may
presuppose what action can take place within the Act’s guidelines.
In many ways such language shuts down future possibilities – pos-
sibilities that open up in the course of the responsive action taking
place – which might sponsor the construction of alternate mean-
ings. This point, that language not only informs us about what has
happened but also that it forms our potential future actions is mis-
sed by limiting an understanding of language to its representational
capacities. As Shotter notes
Usually, if asked to reflect upon the process of speaking, we ‘see through’ the
speech we use, that is, we see ‘from’ what we say ‘to’ either its effects, or ‘to’ its
meanings; its prosthetic functioning remains ‘invisible’ to us. We fail to notice it
because, in speaking, we act ‘through’ our utterances in ‘making sense’. But
clearly, if this account is correct, as a very special form of ‘psychological

37
Sprang directs attention to this point in a study involving victims who have lost
a family member to a drunk driving related incident. She notes the effects a court’s
direction may have on victims of the crime if the problem of drunk driving is con-
sidered and treated as more of a social than a criminal issue. She says ‘‘The message
the surviving family members receive is that drunk driving is a less significant crime
than other crimes. This message can create anger, frustration, hopelessness, despair,
and confusion and complicate the grieving process’’ in Sprang, G., ‘‘PTSD in sur-
viving family members of drunk driving episodes: Victim and crime-related factors’’,
Families in Society 78/6 (1997), 633. Elsewhere and similarly, victim’s negative
experiences within the criminal justice system have been described as secondary
victimisation as in Feldman, P.J., Ullman, J.B. and Dunkel-Schetter, C., ‘‘Women’s
reactions to rape victims: Motivational processes associated with blame and social
support’’, Journal of Applied Social Psychology 28/6 (1998), 469–503.
38
Oxford English Dictionary (3rd ed.) (Melbourne: Oxford University Press,
1973), 1439.
278 TIM CORCORAN

instrument’, linguistic signs possess what might be called a ‘prosthetic-tool-text


ambiguity’, the three different aspects each becoming visible according to the
different ‘direction’ of our view: Acting towards the future, prospectively and
creatively, in the saying of an utterance, we attempt to use it both prosthetically,
as a device ‘through’ which to begin to express our meanings, and, as a tool-like
means to ‘move’ other people (emphasis in original).39

When sentencing an offender, to garner greater understanding


and knowledge of the person, a court must take into account ‘‘the
offender’s character, age and intellectual capacity’’.40 The legisla-
tion suggests there are several ways that this may be achieved. The
procurement of psychiatric and/or psychological reports is consid-
ered one of the most direct methods for obtaining such knowledge.
That the court comes to know the offender through reports issued
by acknowledged professionals affirms the privileged position of
these disciplines to make such powerful judgements. As Foucault
suggests
The examination combines the techniques of an observing hierarchy and those of
a normalising judgement. It is a normalising gaze, a surveillance that makes it pos-
sible to qualify, to classify and to punish. It establishes over individuals a visibility
through which one differentiates them and judges them. That is why, in all the
mechanisms of discipline, the examination is highly ritualised. In it are combined
the ceremony of power and the form of the experiment, the deployment of force
and the establishment of truth. At the heart of the procedures of discipline, it
manifests the subjection of those who are perceived as objects and the objectifica-
tion of those who are subjected.41
That what is thought of as character and intellectual capacity
are no more than institutional practices of categorisation may not
sit well with those invested in their continued use. That the actual
use of such categories remains contestable given their culturally
derived and historically reliant meanings is an issue often unac-
knowledged. But it is precisely to these points that attention must
be drawn for the text employs such concepts as discursive strategies
initially to achieve and then maintain practices of individualisation.

5. Part III: Moral/Behavioural

In the previous section I focussed on two of the central subject


positions created in the text. Now I want to focus specifically on

39
Supra fn.15, at 117–118.
40
Supra fn.2, at 17.
41
Supra fn.1, at 184–185.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 279

the offender as prescribed and described in the Act. But herein lies
a twist. The primary discursive strategy employed by the text is one
of binary implication.42 By this I mean the text does not attempt to
directly describe the subject position of the offender. Instead, the
text describes the court and its actions and in doing so alludes to
the offender’s available positions. This is an unsophisticated exam-
ple of legislation’s structural conventions being used in pursuit of
socio-political ends. The goal is to persuade readers into believing
that such static presentation reflects the clarity with which the sub-
ject position of offender is known. Bakhtin called the languaging of
such discourse authoritative saying
It is not a free appropriation and assimilation of the word itself that authoritative
discourse seeks to elicit from us; rather, it demands our unconditional allegiance.
Therefore authoritative discourse permits no play with the context framing it, no
play with its borders, no gradual and flexible transitions, no spontaneously crea-
tive stylising variants on it. It enters our verbal consciousness as a compact and
indivisible mass; one must either totally affirm it, or totally reject it. It is indissolu-
bly fused with its authority – with political power, an institution, a person – and it
stands and falls together with that authority.43
One area in which the authority of the text is exerted is in the
denunciation of the character of the offender. In the remainder of
this section I consider some of the text’s discursive practices
enlisted for their moral and behavioural resonance.
The guise of legislation is global. As one of its central functions
legislation declares the rules by which social practices may be direc-
ted. That’s a fairly commanding position in and of itself and it
lends to criticism involving context and detail. No where is such
criticism more applicable than in the text’s claims to absolute util-
ity. For example, guidelines for the imposition of a prison sentence
suggest they will only be recommended ‘‘to punish the offender to
an extent or in a way that is just in all the circumstances’’ (my
emphasis).44 The use of the adjective ‘all’ is an example of authori-
tative discourse in textual practice. The assertion brings forth a
second point, a notion of justice in the sentencing of the offender,

42
This form of deconstructive analysis is commonly associated with the Derridian
concept of differance. See Arrigo, supra fn.17 for an example of its use in the area of
psychological jurisprudence.
43
Bakhtin, M.M., The Dialogic Imagination (C. Emerson and M. Holquist,
Trans.) (Austin, TX: University of Texas Press, 1981), 343.
44
Supra fn.2, at 16.
280 TIM CORCORAN

for discussion. As a declarative clause the statement (and the text


itself) attempts to position its own procedure as high in moral tone.
In doing so not only does the court aspire to guarantee perfect
decision making it also implicitly acts to inform community under-
standing regarding what is to be considered just in the process. A
further example hints at the virtue of the court’s actions whereby
conditions will be provided in the court’s order ‘‘that the court
considers will help the offender to be rehabilitated’’.45 Although
purposive discourses involved in the practice of incarceration (e.g.
rehabilitation) have been discussed already concern remains about
the court’s moral positioning in relation to the text’s discursive
strategies and the consequent ramifications for those involved.
The text’s use of blame in accounting for a court’s decision-
making process again positions the offender poorly and effectively
contradicts its own direction. In sentencing an offender, a court
must have regard to ‘‘the extent to which the offender is to blame
for the offence’’.46 Pretty straightforward really. But I concur with
Lamb47 who proffers three concerns with the facilitation of blame
in relational processes. The first involves an apparent preoccupa-
tion with an other-focussed stance (i.e. blaming the offender) at a
time when a self-reflective stance is being sought from the offender.
The inconsistency is apparent when the previous quote is coupled
with Section 9.(4) where the Act directs the court to consider ‘‘any
remorse or lack of remorse of the offender’’.48 Lamb’s second point
is simply pragmatic as it questions the possibilities being encour-
aged when blame is dominant in relational practice. Finally, the
concrete and inflexible yardstick of blame leaves no room for error
regarding moral deliberations. At a time when a dialogue with
context is suggested, evidenced by the Act’s concern for ‘‘any ante-
cedents, age and character of the offender’’49 and ‘‘any medical,
psychiatric, prison or other relevant report in relation to the
offender’’50, notional conflict is unavoidable with the suggestion
that blame can be reliably and definitively measured. The textual
implication here is that the court has the right to blame and that
there must be a person who is deserving or blameworthy.

45
Supra fn.2, at 16.
46
Supra fn.2, at 17.
47
Supra fn.36.
48
Supra fn.2, at 18.
49
Supra fn.2, at 18.
50
Supra fn.2, at 19.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 281

As discussed earlier, the text stipulates that ‘‘the nature of the


offence’’51 can be determined to inform the sentencing process. The
moral grounding for this position presumably aligns with a stan-
dard that is natural in form and commonly acknowledged as such.
Just how this benchmark was established does not warrant
explanation in the text and so remains a powerfully authoritative
discursive sleight of hand. This point is similar to one raised earlier
in relation to the reification of theoretical constructs such as the
unconscious or false consciousness. Danziger, in acknowledging
this process in psychological categorization, comments
The meaning of these categories carries an enormous load of unexamined and
unquestioned assumptions and preconceptions. By the time explicit psychological
theories are formulated, most of the theoretical work has already happened – it is
embedded in the categories used to describe and classify psychological phenomena.
To excavate this hidden level of theory, to make it visible, we need an analysis of
the discourse from which psychological categories derive their sense.52
Social, political and economic factors have all contributed to the
development of the State’s criminal law and the PSA is no excep-
tion. Queensland has been sardonically called ‘the Deep North’, a
reference to its suggested similarities with ‘the Deep South’ of the
United States. These similarities are said to include a history of
social and moral conservatism, paternalistic leadership and xeno-
phobic preoccupations.53 To the extent that Queensland and its
people have been responsible for and engaged in such behaviours is
arguable but they also can lay claim to the fact that the State was
the first in Australia to abolish capital punishment in 1922. It is
exactly to this kind of contradiction that the employ of discourse
analysis is intended to serve.

6. Conclusions

This paper has argued that it is possible to engage what Shotter


calls the prosthetic function of language. Through critical delibera-
tion the dynamics of discursive action and the dialogic relation-
ships they sponsor may be explicated showing their formative and
constitutive qualities. Several examples were given in the preceding
argument including the text’s recourse to presumptive representa-
tion, its careless treatment of victims, its use of institutional

51
Supra fn.2, at 17.
52
Supra fn.19, at 8.
53
McCartney, C. et. al., supra fn.29.
282 TIM CORCORAN

practices of categorisation and its facilitation of blame in adjudicat-


ing justice. Dialogic activity, in this case occurring between the Act
and those engaged by it, is laden with a variety of possible
outcomes and potentials for change. The text, along with those
involved in sentencing practice, must be held accountable for the
imprint left upon the action. As an analytic methodology CDA
provides us with richer understandings of the relational responsibil-
ities continuously enacted in the animation of our daily lives.54
Certainly, as a member of my community, I would like to believe
that the State is not responsible for an incarceration process that is
psychologically and morally harmful to those affected by it. A simi-
lar concern should be raised regarding the voicing of community
interests for some relationship must be realised between State and
community positions as these are reflected in State-sanctioned
practice. For instance, if the community agrees that the present
incarceration process, in its application, is wrongfully debilitating,
then the State must respond to the community’s position. The pur-
suit of justice and its moral implicatus is a collective endeavor and
at no point may the relationships subsumed by the process be
ignored or insulted through cursory regard. The results of such
indifference, sociologist Richard Sennett suggests, are portentous
The system radiates indifference. It does so in terms of the outcomes of human
striving, as in winner-take-all markets, where there is little connection between risk
and reward. It radiates indifference in the organisation of absence of trust, where
there is no reason to be needed. And it does so in the reengineering of institutions
in which people are treated as disposable. Such practices obviously and brutally
diminish the sense of mattering as a person, of being necessary to others.55
Reciprocity then is a concept that has particular significance to
the practice of relationships and is but one point to consider in
furthering our understanding of the dialogic kind. Ogilvie, speaking
about the predicament of current post-incarceration release strate-
gies in Australia, suggests that ‘‘(w)hilst we have arguably become
experts in the language of rehabilitation, we quite clearly remain
amateurs in the practice of rehabilitation’’.56 But is this so? As was

54
see McNamee, S. and Gergen, K.J., Relational Responsibilities: Resources for
Sustainable Dialogue (London: Sage, 1999).
55
Cited in Carrabine, E., Lee, M. and South, N., ‘‘Social wrongs and human
rights in late modern Britain: Social exclusion, crime control, and prospects for a
public criminology’’, Social Justice 27/2 (2000), 200.
56
Ogilvie, E., ‘‘Post-release: The current predicament and the potential strate-
gies’’, Australian Institute of Criminology website URL (consulted May, 2002),
www.aic.gov.au/crc/reports/ogilvie.html.
LEGISLATIVE PRACTICE AS DISCURSIVE ACTION 283

suggested above, to engage a language is to engage a practice and


to believe that either is possible without the other is literally and
pragmatically meaningless. Any contact (be it in sentencing or
post-release) with a person found to have violated the law could
and should be considered an opportunity to effect change. Surely
that is what the language and practice of rehabilitation is about.
But whilst social and political demands for retributive and
deterrent punishments prevail, as enacted in current legislation,
opportunities for practicing change within our criminal justice sys-
tems continue to be thwarted. This is one reason why the rhetoric
of individual and community responsibility seems so hollow in the
face of contradictory State-sanctioned exclusionary practices.
Responsibility to relationship is one of connection, belonging and
inclusion and not pathology, blame and exclusion. Earlier I argued
for understanding ontology through action rather than presumed
mentalistic processes. In the past the idea that simply being aware
of one’s language and altering the words (or thoughts) used was
sufficient for change. This is obviously not the case. Meaning is
constructed through the act in which it is situated. Accordingly –
the practice of our language will confirm or contradict the language
of our practice.

Acknowledgement

I would like to thank Ben Bradley and the journal’s reviewers for
their helpful comments on previous drafts of this article.

School of Social Sciences and Liberal Studies


Charles Sturt University
Bathurst, NSW
Australia
E-mail: tcorc4@eq.edu.au

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