Sir Run Run Shaw Memorial Lecture, Stonybrook University, April 14, 2022
Talk slides here.
OK, so we’ll get to my funny little title “Monolingualism, In/Justice” in just a sec. But first: please raise your hand if the last few months of national news coverage have exhausted you with constant talk and scrutiny about all the ways the honorable Ketanji Brown Jackson, Associate Justice, United States Supreme Court, has ruled and argued over the years in matters involving multilingual evidence, multilingual jurisprudence, court interpreters, the constitutional and administrative rights of bilingual Limited English Proficiency defendants, and multilingual case law generally. Or did you perhaps not hear about the vigorous debate surrounding these things in the national news, in the United States Senate, among the hundreds of friend-of-the-court briefs, and in the White House press corps’ probing questions about the Justice?
No? Well, me neither. I don’t think I heard a thing about how Justice Jackson deals with language, translation, multilingual subjectivity, and the like. Except if you’re counting John McWhorter’s piece in the Times last week, which said something about the apparent West Africanness of Justice Jackson’s given name. So, basically, it was crickets in the Senate chamber when it came to matters that many of us in this room care about deeply and teach our students how and why to care about.
But when Justice Jackson was announced by the White House on 25 February, she was immediately on the hot seat for doing important professional things that an ethically inclined officer of the court might be called on to do: like defending people imprisoned at Guantanamo Bay without charge, and other LEP [Low English Proficiency] defendants charged or not charged with a crime. And I thought hopefully to myself: what are all those 100 thoughtful senators in Washington, DC, going to ask her about the irreducibly multilingual, translated, interpreted, and otherwise language-mediated circumstances surrounding almost all of those cases on Justice Jackson’s caseload at Guantanamo? Not to mention the multilingual subjectivity and evidence at hand in so much of the public defense work she has done all along?
So, I got out my popcorn and waited for the Senate Judiciary Committee to dig into the rich multilingual case law that there must be—right out there, on the public record, ready for them and their staff interns to review, just a keyword search away.
No, that’s not true. I more or less knew what to expect, but I thought maybe there would be at least one serious question about language and interpreting. The one question about language we did get was the senior Senator from Tennessee, Sen. Marsha Blackburn, asking whether Jackson could define “woman” for the committee. Now, this was actually a moment when Justice Jackson could very well have seriously challenged back about the multilingual complexity of the Senator’s question, and the monolingualism underpinning the way it was posed: woman in who’s language or cultural repertoire? Whose linguacultural conception of gender and sex and age and kinship and standing is at issue, etc.?
It turns out that Justice Jackson has an awful lot of jurisprudential experience around this kind of thing, and she could have simply asked whether the Senator was only interested in what English users mean by “woman” etc.? But her answer instead, that she was not a biologist, seemed the most likely to get Senator Blackburn to back off at that moment. Beyond this exchange, though, I think we ought to be amazed at the absence of curiosity, the indifference toward language, translation, interpreting, multilingualism, and the presumption of monolingualism, that undergirds all the hubbub and controversialization attempts around Justice Jackson’s jurisprudence and confirmability.
[Next slide} So I wanted to start today, just as a kind of exercise and truly as a celebration of Justice Jackson’s arrival on the court, with a bit of a lightning tour of some of the crucial and interesting case law around multilingualism that she has ruled on, and written opinions about. But before I do, I just want to return to the talk title for a second, and pose to you this basic question about justice and monolingualism:
Do we think that monolingualism, which I define as the presumption or belief that one named language is adequate to house and manage all the meanings necessary for a worldly and capacious human life—do we think that monolingualism (maybe even mediated by interpreters) is perhaps the best vehicle for justice, after all? It’s not an easy question, I don’t think. Monolingualism often comes promising us important things like clarity, consistency, transparency, openness, efficiency, and accessibility. Maybe precision too? I think about common-sense virtues like “being on the same page”, “shared frames of reference” and the like, which tacitly direct us toward the idea that the best, most rigorous interpretive community, or the best community of practice, is a monolingual one.
But maybe we have a hunch, or some experience, that shows us that monolingualism isn’t all it’s cracked up to be when it comes to ensuring and pursuing justice, for different kinds of people, living and deceased, communities here and elsewhere, for non-human entities, and for truth itself? Why exactly does multilingualism look like a better path toward these purposes?
Is it just because parties to justice tend sometimes to be multilingual, or that parties tend to speak different languages? Or is there maybe more to the story? I hope we can get to some of your ideas on this shortly.
But, for now I want to turn back to Associate Justice Ketanji Brown Jackson, her record of rulings, arguments, and opinions, and how her jurisprudence espouses mono/multilingualism. There is Azadeh v. Gov’t of the Islamic Republic of Iran, a case involving evidentiary and administrative documents translated from English to Persian, and vice-versa, which Ms. Afsaneh Azadeh needed in order to sue Iran for the inhumane treatment she suffered during the three months of wrongful imprisonment in Iran. Then there is Abla Abdel Baset Youssef v. Embassy of the U.A.E. (2021), a wrongful termination employment case that hinged on ambiguities in the English translation of Youssef’s job title and job description from Arabic, which first became an issue when Ms. Youssef was summarily fired after 18 years working at the Emirati embassy in Washington.
There’s Capitalkeys, LLC v. Democratic Congo (2017) which involved a DC lobbying firm aggrieving an unpaid bill from Congo’s Central Bank, a case which required an authoritative translation from French of the Central Bank’s governing legislation. There’s Nassif v. Republic of Iraq (2020) which involves a dispute between a Jordanian company and the Republic of Iraq
about a debt payment involving a shipment of sulfur and urea. There’s Adamski v. McHugh (2015) which has some Latin in it for some reason. [Next slide]
And Judge Ketanji Brown Jackson ruled and wrote opinions on all of this stuff, cases in which language dearly mattered, and often she wrote about why language dearly mattered, and so I like her more and more the more I read about all this. And her jurisprudential reasoning around multilingualism makes Senator Blackburn’s questions sound pretty one-dimensional or, as the youth say, “basic”, even though she’s working in a justice system that offers little to no principled guidance or attention when it comes to such linguistic matters.
In the end, there’s nothing particularly spectacular or revolutionary about Jackson’s rulings, but let’s look a bit closer. Check this out from In re Air Crash Over the S. Indian Ocean, on March 8, 2014, which of course had to do with the disappearance of Malaysia Airlines flight 370. Judge, now Justice, Jackson determined in that case that “it is no more convenient to have the evidence translated into English and brought to the United States than it is to have that evidence translated to Malay and brought to the Malaysian courts to be considered
along with any other evidence pertaining to both damages and liability.”
So, this appears to be a mere jurisdiction disposition matter. But what’s so interesting to me is Jackson’s intuitive trust in the Malay language, and its users and justices, to do just as adequate a job at adjudicating the case as a generic Anglophone judge in the United States would. [Next slide] It seems like a tiny matter, but it reflects a very interesting methodological conviction around the potential equality of languages to prudently do justice, such that English doesn’t have some kind of presumed supremacist rank and rigor.
Pierce vs. DC is a case about the provision, or nonprovision, of adequate Sign Language Interpreting for incarcerated persons pursuing justice and adequate health care. Jackson writes: “The parties also disagree about when—and whether—Pierce actually asked prison officials, health care providers, and class instructors to accommodate his hearing disability by providing an interpreter to translate for him.” So Justice Jackson took a keen interest in scrutinizing the evidence around exactly when William Pierce received adequate ASL interpreting. [Next slide] She wants the details, and isn’t willing to take the prison officials’ word for it about what happened. I like her more and more. Check this level of detail out: “The District admits that Dr. Doh showed Pierce the medical intake questions on the computer screen rather than getting an interpreter to translate Dr. Doh’s spoken questions, but the District argues that the fact that Pierce answered the questions through gestures and writing shows that Pierce must have understood the questions that he read off the screen.”
It sounds like Justice Jackson isn’t just a brilliant legal mind, but also a practical human being who doesn’t like to get hoodwinked by simplistic monolingual hearsay or deceptively commonsensical paraphrasing. This is a scene that goes to what forensic linguists call “event complexity”, i.e. the conviction that multiple languages will themselves likely help us to witness and understand truth, and not just to hear the parties themselves. The languages will help us understand what is actually going on in the situation at hand. And we’ll come back to this concept of event complexity, I hope.
And, finally, the good folks fighting the fight at Las Americas Immigrant Advocacy Centre in El Paso Texas versus Chad Wolf. You know Chad Wolf, Donald Trump’s Acting Secretary of Homeland Security before his appointment was ruled unlawful? Well, Las Américas sued Chad to stop a policy that forced asylum seekers to undergo the Credible Fear process while detained in US Customs and Border Protection (CBP) custody—“credible fear” being the key criterion one must establish under the 1951 Convention on Refugees to advance an asylum petition.
An unnamed plaintiff in this case describes the kinds of practical procedures that characterized her own experience of the credible fear intake in CPB, and again, God bless her, Justice Jackson is interested in the specifics, the parts of the communicative situation that might escape attention if justice took an abstracted and narrow view on language, language use, language and context, communication, embodiment and space, and human relations in general.
In her ruling, Justice Jackson was interested in how the plaintiff “describes the interview as “very confusing” because she thought she would have the opportunity to present her case in person; she had trouble understanding the interpreter’s Spanish; and her baby ‘would not stop crying’ which ‘made it very difficult to concentrate.” [Next slide] So, you’ll notice that I’ve been focusing not on what and how Justice Jackson decided, but rather what aspects and dimensions
of communicative evidence and language-informed reasoning attracts the Justice’s attentions.
But for now we’re going to wish Justice Jackson good luck and turn unfortunately to a fella who has a very different approach to language and multilingualism. In 2017, Louisiana Associate Supreme Court Justice Scott J. Crichton wrote that a certain plaintiff Warren
Demesme, suspected of a violent crime, had not in fact invoked his 6th Amendment constitutional right to an attorney at the time of his arrest because the suspect, a 22-year old, had tried to get a lawyer in the initial police interview by saying “why don’t you just give me a lawyer, dog?”
According to the Louisiana Supreme Court, Mr. Demesme’s request, formulated in this way, was not adequate for accessing rights under the US Constitution’s Sixth Amendment,
because Demesme had not formulated his rights in proper language. Justice Crichton explained his refusal to overturn the lower court’s evidentiary rulings on the following grounds: “The defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”
Wow. So, let’s just acknowledge for a second that Justice Crichton and Justice Jackson do seem to have in common an interest in language and communication, as relevant features of evidentiary discovery and due process. But their dispositions toward linguistic evidence diverge sharply, along lines of prescriptivist raciolinguistic ideology, monolingualism, and linguistic white supremacy. Of course, the case involving Warren Demesme doesn’t quite appear to be about multilingualism in any conventional sense, but it is absolutely about linguistic exclusion from access to justice, from the right to have rights. And it is so prototypical in our time when I believe monolingualism is fortifying itself rather than abdicating or weakening its grip on power.
Mr. Demesme’s experience ought to suggest to us a trend increasingly prevalent in a multilingual society like the United States, a trend I describe as katechontic justice. From Ancient Greek, the katechon is that force which is designed to withhold or restrain. It is seen in Thessalonians Ch 2 and Romans Ch 13. In the book of Thessalonians, the katechon is that which holds back the Antichrist and its lawlessness, that which guards against chaos. A katechontic, monolingual justice in matters of language would be that which is designed to withhold rights from petitioners based either on so-called technicalities or, in this case, on a pretense to incomprehension. This is monolingualism’s inherent tendency to fetishize assertion—a tendency we’ll come back to.
Warren Demesme has been adjudicated by the Louisiana Supreme Court not just as having been criminal but as having been incomprehensible before the state, in his communications with those officers of the state obliged to uphold constitutional provisions. He and they were therefore both absolved of constitutional protections and due process. Taxed for having used elements from an historically African American English repertoire, Demesme comes up against a post-modern, postmultilingual form of punitive katechontic justice, one that is well aware, thank you, of linguistic variation and multilingual repertoires, but sees the multilingual world not as calling out urgently for new procedures of jurisprudential understanding, capacity for event complexity, and greater precision in the pursuit of truth, so much as providing a ready loophole for disqualification and disinclusion from the presumed community of justice-seeking and justice-deserving subjects. [Next slide] And so, Justice Crichton boldly goes forth with his pretense of incomprehension, on behalf of the officers who arrested and questioned Warren Demesme.
So the prototypical tragedy here is that, more often than not in the US and the UK at least, multilingual evidence is excluded by practice or principle, despite its extraordinary relevance and usefulness for the pursuit of truth. This is more and more the case, I believe, as the social and commercial phenomenon of multilingualism becomes ever more practically unavoidable for institutions of justice. And I understand these tensions and battles to be central to what I’ve been describing since 2009 as a ius linguarum system—a “justice of languages”.
A ius linguarum is, like ius soli and ius sanguinus, an exclusionary principle of justice, not an ecumenical one. Whereas the latter two systems of civil justice impute rights and entitlements based on territorial birth and ethnic ascriptions, and withholds these from those without that birth or ethnicity prerequisite, a ius linguarum is exclusive in that it is very aware of the impact and relevance of multiple languages in a particular matter, and then chooses to narrow its focus and recognize certain languages selectively, to restrict the aperture on linguistic evidence, so as to suit political, administrative, statutory, or evidentiary priorities often entirely indifferent to language.
Cases like the one against Warren Demesme, which are braced and fortified around such a ius linguarum, engage in a form of what I think of as, drawing on the ethicist Bernard Williams, “fetishizing assertion” and doing so in a particularly monolinguistic way. In his book Truth and Truthfulness, Bernard Williams writes that: “If lying is inherently an abuse of assertion, then so is deliberately exploiting the ways in which one’s hearer can be expected to understand one’s choice of assertion. The doctrine [of teleology of assertion] makes the assertion into a fetish by lifting it out of the context in which it plays its part and projecting onto it in isolation all the force of the demand for truthfulness. (Williams 2002, p. 107)
So this is what Crichton did with Warren Demesme’s language, lifting it out of the context in which it plays its part and fetishizing it as an abstract assertion. And the telos of his doing so was to claim that the utterance “why don’t you just give me a lawyer, dog?” was incomprehensible to the officers in question and the state they represent, and therefore ungrievable. Here we see the ways in which political monolingualism today, which I call organized monolingualism (like organized crime), is seeking to narrow the gauge for comprehensibility around us and in us, withholding comprehensibility in justice against the supposed Antichrist of linguistic chaos, and in this case of linguistic Blackness. [Next slide]
Now usually, around the topic of multilingualism in the US / UK justice systems, the inquiry doesn’t go much further than the adequate or inadequate provision of interpreters.
But this problem of underfunding and adequacy is minor when compared to the katechontic, monolingual assembly-line justice carried out most days on almost exclusively multilingual persons in the US-Mexico borderlands cities of Yuma (AZ), Tucson (AZ), Las Cruces (NM), El Paso, Laredo, Brownsville, and McAllen (TX). There, as part of a zero-tolerance immigration policy that corresponds to no actual surge in immigration, attorneys estimate that “99% of defendants (usually 80 per day) plead guilty to petty misdemeanor immigration infractions with the single Spanish word culpable. They are then immediately deported. The sheer number of daily prosecutions requires nearly all judges to combine the initial appearance, arraignment, plea, and sentencing into one hearing. Many Streamline defendants complete the entire proceeding, meeting with counsel, making an initial appearance, pleading guilty, and being sentenced after waiving a presentence report-in a single day”. (Lydgate 2010) Shackled in leg-irons, the defendants listen to a Spanish language interpreter speak to them through earphones, and the possibility of responding is radically attenuated. I would love to hear what Justice Jackson will argue about that.
Operation Streamline epitomizes a katechontic state that has decided it will not listen to people whose language is other than English, and has removed all pretense toward doing so.
But travesties like Streamline were perhaps always somehow baked into the cake in a society where, since the 1950s, the broader relationship between multilingualism and jurisprudence has been broached in uneven and often fascinatingly inadequate ways. Legal administrative procedures around linguistic diversity are built in a helter-skelter, ad hoc way around linguistic diversity and these invisibilized ad hoc procedures have tended to negatively impact Latinx, Afro-Latinx, African, and Asian American defendants and petitioners in ways that are both foreseeable and unforeseeable. Particularly when it comes to their ability to appeal on the grounds of mistranslation or inadequate access to interpreting.
As Lisa Santaniello shows, “appellate courts overwhelmingly treat interpreter errors as evidentiary issues (not as administrative errors), accord significant deference to the trial judge, and thereby abdicate their responsibility to secure the rights of LEP [Limited English Proficiency] defendants.” This means that, even when there is evidence of a mistranslation, or of a meaningful typological divergence between the language of testimony and the language of the court, the monolingual administrative norms of courts ensure there are few actionable grounds for appeal under federal or state law. The reason generally given for this by appellate courts is that a defendant’s attorney ought to object to a mistranslation at the time, which presumes either the attorney or the defendant is ready and capable of doing so.
As Santaniello points out, the enduring paradox of this design is that relying on criminal defendants to object to mistranslations only protects the constitutional rights of defendants who are proficient enough with English to recognize mistranslations. This conclusion is at odds with the purpose of providing court interpretation: constitutional protections should not depend on English proficiency. This further burdens LEP defendants with a task their English-speaking counterparts do not face. The overall picture Santaniello shows is one about how absolutely impassive US legal systems continue to be about the implications of multilingualism on the people, truths, and event complexity to which their proceedings are allegedly devoted.
Santaniello’s analysis of case law in multiple jurisdictions can help us grasp monolingualism’s profound curtailment of intersectional justice and its ongoing contribution to impoverishment and overincarceration. Asylum interviews, too, are notoriously gruelling scenes and scenarios involving predominantly multilingual applicants. States often use “katechontic” administrative means to withhold international law, justice and recognition from claimants, based in what amounts to an exploitation of their multilingualism. And these katechontic means in asylum law were certainly what drove the Las Americas vs. Wolf case that Justice Jackson ruled on.
Diana Eades’s (2003) work in the Australian context further shows how Australian court proceedings tend to monolingualise evidentiary testimony, by only permitting court transcripts to reproduce English utterances, and not bilingual or Indigenous language contributions.
While the court could indeed just as well gather information based on collaboration between interpreters and witnesses who could self-translate relevant aspects of multilingual testimony,
But the court preemptively reduces the admissibility criterion to English monolingualism alone.
And again, this negatively impacts not just people, but also the court’s access to truth in a complex practical world.
Luna Filipović, a cognitive linguist, reflects for instance on how Spanish and English tend to foreground different poles on the typological cline as regards the representation of motion. The relation between the two languages, in practice, is what could help listeners and decision-makers best approximate a situated truth in a complex event. Filipović explores the evidentiary implications of active formulations (“Rompí un vaso”) versus reflexive pseudo-passive formulations with and without dative markers of interest (“Se me rompió un vaso” and “Se rompió un vaso” respectively).
She shows that the Spanish-speaking participants she interviewed specified causality as intentional or unintentional far more frequently than did English speakers (p. 13). She also found that Spanish patterns of usage, in witness testimony, tend to favour directional verbs without much reference to the manner of the motion, while English usage offers many more “manner”-oriented verbs, then a combination of the two languages can help to “pin down the essential features of spontaneous, habitual language use that matter in obtaining information from a witness.”
This means that court proceedings ought to consider introducing into evidence both original and translated versions of a testimony. When they do not, they may be violating a kind of due process that has not yet quite been identified in civil and international law. Filipović (2007) invokes the potent metaphor of “Language as a Witness” to show that languages can be understood under contemporary circumstances as functioning as subjects as “witnesses”, in important settings of legal and evidentiary interpretation. Marshalling the truth-telling power of individual languages can help advocates come to the defence of people who find themselves in peril. And the good news is that, European law these days is extraordinarily interested in such linguistic “event complexity” and is therefore a vanguard in a particular kind of multilingual practice.
European multilingual jurisprudential goes even beyond the very practical, evidentiary scope of what Filipović describes; its proceedings are multilingual not only so as to accurately understand what a given person (witness, plaintiff, official) has actually said before the court,
but to best figure out what actually happened in the world, and or what the law they are interpreting actually means. The lawyer and linguist Lawrence Solan makes the heartening observation that legal multilingualism in Europe is not just “an unintended consequence of a [legal] system that is otherwise functioning smoothly in a multilingual jurisdiction. Rather, it is an important element of the system’s design”. Wow.
Solan thus developed the notion of Augustinian Interpretation to describe the actual interpretive practices of the Court of Justice of the European Union, claiming that “multiplying language versions tends to reduce opportunities for parties to take advantage of linguistic accidence, resulting from […] fetishising assertion.” What the CJEU regularly practices in its deliberations is a multilingual version of this principle; no single formulation of a legislative assertion (in any of the 24 legislative languages of the Union) is expected to bear the entire weight of truthfulness, without the corroborating assistance of the others.
This Augustinian approach to multilingualism, where people dialogue through different languages on shared questions about a particular truth, emboldens I think what the feminist philosophy Sandra Harding has called “strong objectivity” (1995, see also Kubota 2019). As Harding points out, “the kinds of explanations favoured by modern sciences have not always been the most effective ones for all projects. […] The neutrality ideal functions more through what its normalising procedures and concepts implicitly prioritize than through explicit directives.” Though Harding was not explicitly concerned with multilingualism, we could very well replace the word “neutrality” in her synthesis about the weakness of scientific reasoning with the word “monolingualism”. [Next slide]
Contrasting European multilingual “Augustinian interpretation” at the Court of Justice of the European Union with US law, Lawrence Solan (2017) points out how monolingualism in the US constrains jurisprudential precision, even in cases not involving multilingualism per se. California v. Brown was a 1987 death penalty case where the jury in the penalty phase of the trial had been instructed by their judge that they may not be swayed in their sentencing by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling”. Albert Brown’s death sentence was appealed all the way to the US Supreme Court but, without any alternative multilingual versions of the judge’s initial instructions at hand, as there would have been in a court like Europe’s CJEU, the US Supreme Court was unable to determine whether the adjective “mere” at the beginning of the sanctioned features above applied to all of these terms, or just to the first one “sentiment.” With only the monolingual English formulation of the judge’s instruction, which is again functioning here monolingually as what Bernard Williams called a “fetishized assertion”, the Supreme Court decided it could not overturn the penalty, and the respondent Albert Brown was put to death.
Such is an example of when justice could have been more precise, by appealing to multilingual interpretation, but wasn’t. In an age of a ius linguarum, we find ourselves with factually multilingual societes where states are using that factual multilingualism as an administrative means for exclusion, of rendering people uncredible—whether in civil, criminal, or asylum cases, and reducing the potential usefulness of that multilingualism in matters of evidence review and legal interpretation. How we view multilingualism in the future politically thus involves engaging the actual, complex prospect of “just state involvement with languages and language diversity,” such that it is not just the creativity and liveliness of multilingual practice we must champion, but its credibility and truthfulness. Practical multilingualism quickly disturbs a vision of a shared public sphere which, since John Stuart Mill (1851), has been assumed to require the use of a shared language. [Next slide} And we are just now at the beginning of an era when such practical multilingualism can be regarded, in and beyond matters of justice, as assisting the pursuit of truth rather than deterring it.
And it sounds to me like, as of this week, we might just have a new Supreme Court Justice who believes this too.
Thanks so much for sticking around on a Friday afternoon!!
