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1. Introduction
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
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
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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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
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.
270 TIM CORCORAN
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
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
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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3. Part I: Purposive
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
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.
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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
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.
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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
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
6. Conclusions
51
Supra fn.2, at 17.
52
Supra fn.19, at 8.
53
McCartney, C. et. al., supra fn.29.
282 TIM CORCORAN
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
Acknowledgement
I would like to thank Ben Bradley and the journal’s reviewers for
their helpful comments on previous drafts of this article.