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26 2 Perspectives for Understanding Advocacy in the Courtroom Examining the various means of persuasion used by victim advocates and guardians ad litem (GALs) reveals how such discourse establishes authority, supports or challenges existing knowledge, and questions or changes bases of power within the legal system. In this chapter, we explain specific concepts of rhetorical criticism, such as genre and activity theories, to prepare the reader for the chapters that follow.We also introduce other essential interpretive tools: cultural studies of the law; rhetorical and philosophical perspectives on power, knowledge, and credibility; sociological and historical understandings of emotional expressions; and historical and current perspectives on domestic violence . These perspectives further illuminate the norms and values within the legal system. To make these perspectives accessible to all readers, we ground them in the specifics of the homicide case and child protection (Child in Need of Protection or Services or CHIPS) case from chapter 1. Cultural Studies of the Law We locate this study of victim advocacy in the courtroom within a body of work called cultural studies of the law. From this perspective, the law is considered more than “the articulated rules and rights set forth in constitutions, statutes , judicial opinions, the formality of dispute resolution, and the foundation of social order”(Mezey 2003, 37) or as“an external apparatus acting upon social life,” but also as“constituted through everyday action and practices” (Ewick and Silbey 1998, 17, 43; see also Kahn 1999). The law then is revealed and reinforced in everyday social practices and beliefs as well as in legislative and courtroom activities. For example, social attitudes about domestic violence are just as significant as the statutes that define domestic violence as a crime. The myth that a woman can end abuse by simply leaving her abuser is then just as significant Perspectives for Understanding Advocacy | 27 as the statutory definition of domestic violence that includes not only physical harm but also “infliction of fear of imminent physical harm.”1 Certainly, the law asserts its authority upon society by defining what is legal and what is not, what is subject to legal scrutiny and what is not. As Austin Sarat, Marianne Constable, David Engel, Valerie Hans, and Susan Lawrence (1998) put it,“In its basic operations, law attempts to create, police, and occasionally transgress social, spatial, and temporal boundaries. The preeminent declaration of a legal system—its announcements of its own existence—establishes jurisdictional boundaries within which its authority prevails”(3). But to understand how this authority is created, reinforced, resisted, and even changed, we need to study the context out of which it comes, particularly the authorized speakers within that structure and the actors who might be subjects of the law. These actors are not simply powerless subjects but can actually create law “out of what they believe to be the law and out of culturally constrained strategic choices made in furtherance of their personal interests” (Munger 1998, 53; see also Provine 1998). The law then is not as static or as hegemonic as often assumed by those who find themselves subject to its scrutiny. Even the most vulnerable and damaged actors can realize personal interests and needs and can even influence how the law is created, interpreted, and imposed. In this book we reveal who is authorized to speak or granted credibility by their professional positions within the legal system. We also study those initially constrained by the jurisdictional boundaries of the law but who find ways to negotiate within the law, such as victim advocates and GALs and the adults and children with whom they work. Throughout this book, we do not venture too far from the criminal and juvenile courtrooms, and we certainly acknowledge Minnesota statutes, sentencing guidelines, and other legal apparatus as common across most of the United States. Understanding these rules and rights illuminates how these advocates work not just within but also beyond them to make room for the voices of the vulnerable and victimized. But individual players in the courtroom, including such ultimate decision makers as the judges, may accept or even be conflicted in their application of the rules and rights set by boundaries of the law as well as certain social components that influence the law.2 Assumed gender roles or social hierarchies that distinguish between the “normal” victim and the “cooperative ” victim, the “grieving” victim and the “angry” victim, and the “abusive” parent and the “good-enough” parent, for example, emerge within courtroom interactions. As the judge in the...

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