opus.lib.uts.edu.au · v 4.4.2.1. lawyerly engagement...
TRANSCRIPT
Engagement with legal discourse in an Australian university by international
postgraduate Law students from non-common law and non-English speaking
backgrounds
Stephen W. Price
Ph.D
2012
i
CERTIFICATE OF AUTHORSHIP/ORIGINALITY I certify that the work in this thesis has not previously been submitted for a degree nor has it been submitted as part of requirements for a degree except as fully acknowledged within the text. I also certify that the thesis has been written by me. Any help that I have received in my research work and the preparation of the thesis itself has been acknowledged. In addition, I certify that all information sources and literature used are indicated in the thesis.
Signature of Student
__________________________________________
ii
Acknowledgements
My greatest debt is to the students and lecturers who willingly participated in this project. I thank you all for the time you gave to me.
I would like to thank my supervisor, Professor Lesley Farrell, for her continuing guidance and encouragement, maintaining for me at times a commitment to and faith in this project when my own wilted. Thank you.
I am very grateful to Dr Tim Moore. At a crucial moment when the work seemed insurmountable he pressed me to keep writing and offered encouragement and feedback on the text produced. Again, thank you.
To a very good friend, Jenny Chinn, who carefully edited five of the chapters, paying great attention to detail. Thank you very much, your help was invaluable.
Thank you to Jenny Hyland for your much stretched patience and constant encouragement.
Thanks also to Ben who enquired always about the progress of this work but resisted asking why it was taking so long.
Lastly, I thank Molly, who often lay beside me as I worked, patiently waiting to take me for a walk and remind me of a life beyond the screen.
iii
Contents Chapter 1: Introduction ………………………………………………………………………………………………… 1
1.1. Introduction ……………………………………………………………………………………………… 1
1.2 Origins of the study (or my ‘personal story’) ……………………………………………... 3
1.3 Situating the research ……………………………………………………………………………….. 6
1.4 Research questions ………………………………………………………………………………….. 11
1.5 Outline of this study ………………………………………………………………………………... 12
Chapter 2: Methodology ……………………………………………………………………………………………. 15
2.1. Introduction ……………………………………………………………………………………………. 15
2.2. Student and lecturer recruitment …………………………………………………………... 15
2.2.1. Student recruitment ……………………………………………………………….. 15
2.2.2. Recruitment of lecturers …………………………………………………………. 17
2.3. Student tasks ………………………………………………………………………………………..... 17
2.4. Student histories …………………………………………………………………………………….. 18
2.4.1. Legal background ……………………………………………………………………. 18
2.4.2. English language experience of students …………………………………. 19
2.5. Collection of data ……………………………………………………………………………………. 20
2.6. A note on interview transcription and referencing of interviews ……………. 21
2.7. Methodological issues …………………………………………………………………………….. 22
2.7.1 Interviews ………………………………………………………………………………… 23
2.7.2 Text analysis …………………………………………………………………………….. 24
2.7.3. Concluding remark on methodological approach ……………………. 30
iv
Chapter 3: Text structure and the writing subject: addressing the reader ………………….. 32
3.1. Introduction ……………………………………………………………………………………………. 32
3.2. Text structure and genre ………………………………………………………………………… 35
3.3. Genre as abstract or concrete …………………………………………………………………. 39
3.3.1. The ineffability of genre ………………………………………………………….. 42
3.4. Student construction of addressee, context and text …………………………….. 45
3.4.1. Student sense of addressee …………………………………………………….. 46
3.4.1.1. The institutional reader ……………………………………………. 47
3.4.1.2. The supposed reader …………………………………………….…. 47
3.5. Context and addressee suggested by a student’s texts ………………………….. 52
3.5.1 Narin’s introduction to his Law of the Internet assignment ……… 53
3.5.2. Comparing the introductions of two of Narin’s assignments …… 55
3.6. Conclusion ……………………………………………………………………………………………… 57
Chapter 4: Authoring text: Use of sources and the writing subject …………………………….. 59
4.1. Introduction ………………………………………………………………………………………….... 59
4.2. Responsiveness to legal and institutional discourses ………………………………. 61
4.3. Reading the Law ……………………………………………………………………………………… 62
4.4. Students’ responsiveness………………………………………………………………………… 69
4.4.1. Responding to the institution ………………………………………………….. 70
4.4.1.1. Explicit demands ……………………………………………………… 70
4.4.1.1.1. Task and discipline, time limit and word count .. 71
4.4.1.1.2. Responding to perceived implicit demands …….. 72
4.4.2. Responding to the discipline ……………………………………………………. 76
v
4.4.2.1. Lawyerly engagement ……………………………………………… 79
4.4.2.2. Context v practices ………………………………………………….. 84
4.5. Making meaning ……………………………………………………………………………………… 88
4.6. Conclusion ………………………………………………………………………………………………. 93
Chapter 5: Dialogism in assessment of a student task ………………………………………………… 95
5.1. Introduction ……………………………………………………………………………………………. 82
5.2. The concept of dialogism and dialogised heteroglossia …………………………… 96
5.3. Dialogism in a lecturer’s reading of a student text ………………………………… 102
5.3.1. The different readings by the lecturer …………………………………… 103
5.3.2. The Lecturer’s relationship with the student ……………………….… 106
5.3.3. Disciplinary reading of Narin’s text ………………………………………… 108
5.3.4 Shifts in the nature of engagement ………………………………………… 112
5.4. Conclusion ……………………………………………………………………………………………. 116
Chapter 6: Patchwriting and the writing subject ………………………………………………………. 120
6.1. Introduction ………………………………………………………………………………………….. 120
6.2. Thuy’s orientation to her writing …………………………………………………………… 124
6.2.1. Thuy’s interests …………………………………………………………………….. 124
6. 2.1.1. The common law …………………………………………………… 126
6.2.1.2. Thuy’s interest in ‘English’ and ‘western culture’ ….. 129
6.3. Thuy’s borrowing of sources …………………………………………………………………. 131
6. 3.1 Authoritative expressions ……………………………………………………… 131
6.3.2. Text borrowing ……………………………………………………………………… 136
6.3.2.1. Lecturer comments on ‘borrowing’ ………………………… 136
vi
6.3.2.2. The relationship between text and author ……………… 138
6.3.2.3. Student comments on borrowed text …………………….. 140
6.3.2.4 Thuy’s relationship to her source texts ………………….… 146
6.4. The idea of plagiarism …………………………………………………………………………… 150
6.4.1. Intention to deceive ………………………………………………………………. 151
6.4.2. Cultural differences, or lack of understanding of citation practices ..................................................................... 153
6.4.3. Learning by imitation …………………………………………………………….. 156
6.4.3.1. Limits to imitation as a means of learning ……………… 158
6.5. Conclusion ……………………………………………………………………………………………. 161
Chapter 7: The writing subject …………………………………………………………………………………. 163
7.1 Introduction …………………………………………………………………………………………… 163
7.2. Bakhtin and language as ‘one’s own’ …………………………………………………….. 165
7.2.1 The limits of ‘intention’ in Bakhtin …………………………………………. 167
7.2.2. Bakhtin and the ‘nuanced’ uniqueness of an utterance ………… 169
7.2.3. The unity of meaning in Bakhtin …………………………………………… 170
7.2.4. Limitations of Bakhtin’s approach ………………………………………… 172
7.3. Language as meaning and text ……………………………………………………………… 173
7.3.1 Academic literacies ………………………………………………………………… 174
7.3.2 Sociohistoric approaches (Prior 1998 and 2001) …………………….. 176
7.3.3 Language as ‘voice’…………………………………………………………………. 181
7.4. The constitution of the writing subject and discourse …………………………… 185
7.4.1. The objectivity underlying students’ use of sources ……………....185
7.4.2. The operation of the signifier ………………………………………………… 189
vii
7.4.2.1. Text as icon …………………………………………………………… 190
7.5. Laclau and the operation of the signifier …………………………………………….… 192
7.6. Conclusion ……………………………………………………………………………………………. 199
8. Conclusion ……………………………………………………………………………………………………………. 201
8.1. Summary ………………………………………………………………………………………………. 201
8.2. Answering the research questions ………………………………………………………... 209
8.3. Implications of this study ……………………………………………………………………... 210
Appendix A ………………………………………………………………………………………………………………. 214
Bibliography …………………………………………………………………………………………………………….. 241
viii
Abstract
This thesis investigates the production of texts for assessment by international
postgraduate law students in a Law Faculty at an Australian university. It focuses on the
texts four students produced for a first semester and a second semester unit of study
during their two-semester LLM. Taking its cue from the literature on identity and
academic writing, this study focuses in particular on the formation of the writing subject.
However, its central concern is not with the contribution made by different identities
writers bring to their writing, nor with the exclusionary practices of disciplinary
discourses, but with the formation of the writing subject as students engage with
resources they must work with and draw from. Therefore, a distinction is made between
identity (the sense one has of self) and the subject (the occupation of a place from
which writing is possible). Accounts of the positioning of subjects by discourses require
that a discourse has stable meanings the subject recognises and in this way takes up
relatively stable identity positions within it. However, a central assumption in this thesis
is that international students do not read the texts representing a discourse in such
predictable ways. The theoretical basis of this study is the work of Bakhtin and his
concept of dialogism. However, rather than viewing dialogism as a means by which
acquisition of and mastery over discourse is achieved, the emphasis in this study is on
the centrifugal forces Bakhtin identifies as central to the use of language and in
particular his concepts of ‘addressivity’ and ‘responsiveness’. This places the emphasis
on the relatedness that underlies utterances and communicative activity, rather than
the ‘sameness’ of convention and meaning achieved between users that acquisition
implies. The achievement of identity disguises the incompleteness of the ‘subject-in-
process’ (Kristeva), and the argument in this thesis is that this subject-in-process is
clearly at stake in the writing of international students. This study looks at the extent to
and ways in which students either do attempt to preserve already given identities and
‘orchestrate’ the materials they work with as best they can, or subject themselves to the
discourses/texts they engage with. A central argument is that the process of subjection
to a discourse renders the student’s sense of self vulnerable and needs to be
understood in part at least in terms of the relationship the student has to the materiality
of language (the signifier) and not wholly in terms of establishing appropriate meanings
(signifieds). Data for this study was collected/generated in the form of: collection of
ix
essays for the two units of study each student selected to submit to this research;
interviews with students about their essay and the writing of it; journals students kept
during the process of researching and writing their assignment; interviews with the
lecturers who assessed the student essays.
1
Chapter 1
Introduction
1.1 Introduction
This thesis is concerned with the production by international postgraduate law students of
texts for assessment. The students are working in English, which is not the ‘first’ language of
any of the students. Although all have a first degree in Law from their home country, they
are now studying in a Faculty which is heavily oriented towards the common law system
with which none of these students are familiar. The distinction between the enunciating
(speaking/writing) subject and the enunciated subject (the identity of the writer as
represented in the text written) is important for the discussion that follows, as also is the
distinction made between the functions the signifier and the signified have in student
writing. Both these distinctions are drawn upon in the course of presenting an account of
the formation of the writing subject as s/he engages with source materials to address tasks
set for them. Many studies concerned with writing and identity focus on how a student
writer might be enabled to make choices about language in order to represent themselves
according to their wishes in their text, but this instrumental approach presupposes an
enunciating subject who is not subjected to the discursive processes at stake. Instead, it
presupposes a pre-given subject who utilises existing discourses to meet pre-established
interests and needs. While such instrumental use of language use clearly cannot be
excluded, the argument in this thesis is that it is not only the represented, enunciated
identity which is a product of discourse, but the enunciating subject too. This process is
more noticeable in the case of students coming to terms with new discourses in a language
they are not fully confident in and within which they feel it is hard to find a place for the
pre-formed identities they bring. Of central concern in this thesis is the formation of this
enunciating subject, a process which takes the student beyond existing senses of ‘self’ and
beyond the point where instrumental mastery is possible, as the student is made vulnerable
through engagement with discursive practices which now produce that subject as much as
2
are controlled by that subject. In light of this I also distinguish between ‘identity’ and the
‘subject’, the subject’ indicating a place within discourse which precedes a sense of identity
or self, but which marks the place within a discourse that a student writes from. This pre-
identity positioning I link to the operation of the signifier rather than the signified.
The approach I take is primarily a ‘situated’ one, in that I focus on the students’
responsiveness to the disciplinary and institutional context in which they are writing, and
this is contingent upon their experience and perception of their context, and the kinds of
resources they draw on to address their texts. My central theoretical orientation is provided
by Bakhtin’s dialogic, historicist approach (Bakhtin 1981, 1986). For Bakhtin, an individual
gains an understanding of language through participation in its use, and present use is thus
shaped by recognition of and responding to past uses. Meanings and the individual speaker
as such are constituted within such responsiveness to past uses and anticipated responses
to his/her speech (Bakhtin 1986 pp. 91-95). There is no language outside the history that
gives rise to it. Bakhtin’s model of language has been widely used to explain how individuals
become socialised in a discourse and obtain mastery over the historically sedimented forms
of use (for example, see the authors in Hall et al 2005).
However, my focus is not on how students are inducted into a given discourse with
established conventions and learn how to conform and gain mastery over them. Instead, it
is on the process through which they engage with discourse that is ‘other’ to them, and I
shall argue that within Bakhtin’s account there is a strong impulse which suggests that
discourse is never acquired. Bakhtin’s statement that the language we use is always
“populated – overpopulated – with the intentions of others” (1981 p. 294) accentuates the
‘otherness’ in language, even though at the same time the aim is to “make it one’s own” (eg
1981 p. 294) and achieve “mastery” (1986 p. 80) over it. Similarly, the claim our speech “is
filled with others’ words, with varying degrees of otherness or varying degrees of ‘our-own-
ness’” (1986 p. 89) points to a tension in language which is also expressed in his concepts of
the centrifugal and centripetal forces at work in it (1981). I shall argue that for Bakhtin
dialogism is inherently centrifugal in nature and the centripetal forces he speaks of
represent external impositions. That is, language is marked by a fundamental dynamic
which, to put it strongly, precludes mastery, and this failure of ‘mastery’, and the presence
3
of an ‘otherness’, is foregrounded in the writing of international students who feel
considerable uncertainty about the language and discourses they are engaging with.
Nevertheless, students are usually successful and it is therefore the nature of this
engagement with discourse which is central, rather than the achievement of mastery over
and possession of it.
The term ‘engagement’ is important in his research. It is a well-worn term, perhaps often a
cliché, but it represents the idea of an openness and vulnerability to the effect something
‘other’ may have on the self. While mastery and the consequent removal of such
vulnerability may be sought, following Bakhtin I argue that an element of this otherness is
always present in any encounter with language. It is more to the fore in the case of students
such as the ones who participated in this research because there is less sense of familiarity
with the discourse. This relationship between student-subject and discourse, and between
heteroglossic discourses, means that both student and discourse are shaped by dialogic
encounters (Bakhtin’s concept of ‘dialogised heteroglossia’). Disciplinarity and its discourse
as such are not given. Bakhtin speaks of the nuancing of discourse by an individual’s
encounter with it, and I suggest this is not simply a nuancing for the individual, but it
contributes to what the discourse is for those who subsequently respond to the individual’s
utterance, and this of course includes the person who assesses their assignment.
Consequently, another key idea is the permeability of discourses and disciplines which
questions the treatment of discourses, disciplines, genres and subjects/identities as discrete
entities.
1.2 Origins of the study (or my ‘personal story’)
My interest in the issues this study raises emerged out of my experience as a provider of
language and academic skills supports to students, both international and local, for many
years, and at the time of this study I was engaged in supporting students in the Faculty of
Law in which the students in this study were enrolled. However, at the time of recruitment
of these students I was on 6 months study leave, and therefore I worked with these
students as a language assistant only during their second semester of study.
4
My interest was initially in how students acquire an understanding of both Common Law
discourses and the tasks set which require students to engage with the law. For
postgraduate students, tasks were usually in the form of research assignments and exams,
although other kinds of tasks were sometimes set. However, the institutional context of
writing and the significant bearing this had on the idea of disciplinarity or acceptability of
student texts was made very clear to me by a particular instance which directed my
thoughts towards engagement with the discipline and its discourses rather than acquisition,
and so helped shape the direction this study follows.
An international student referred to me for plagiarism had ‘borrowed’ large segments of
numerous texts and footnotes which retained the register and presupposed expertise
which, in the student’s lecturer’s view, could not be the student’s, suggesting in turn that
much of the text was not the student’s ‘own’. He checked for plagiarism and was “appalled”
at the extent of it. He asked that she rewrite it in her own words. I was consulted as
language adviser and within the constraints of the time available to us, work was done on
some of her text but not much. This work focussed on establishing how the borrowed
text/ideas contributed to her purpose, and consequently how best to organise and
represent those ideas. Nevertheless, when she resubmitted her text the lecturer was still
not satisfied, and he requested that she delete from the text all the borrowed phrasings,
and simply present to him what she could express in her own words. E said it would not
matter if that left big gaps in her text. His interest was in seeing what she understood, and
for him, this meant writing in “her own words”. The lecturer in fact was quite sure she did
have an understanding of what was at stake from his own interview with her, and thus he
sought evidence of that in her text. The significant point I wish to make is that this process
led to a request for a paper which now was totally transformed from the sort of text usually
associated with ‘academic writing’. There is no doubt that had the student initially
submitted the text she was now being asked to produce, with its lack of references and gaps
in content, and indeed expression that often failed to meet conventions of use, she may
well have been simply failed without the opportunity to resubmit; her paper certainly would
not have been accepted. That such a paper was now acceptable resulted from the ongoing
interactions and various institutional and other considerations that played into the evolving
5
relationship between student and lecturer. Certainly a power relationship was involved,
weighted in favour of the lecturer, but the student’s participation in this process
contributed much to the final outcome and to what counted as minimally acceptable. The
text was finally graded as a Pass. (See Price 2008a for further discussion of this student.)
It is clear that other assessor’s might have simply failed the student, but the point to be
made here is that the judgment is not made by reference to an anchoring standard, but
rather is the outcome of a dialogic relationship between multiple discourses that bear on
the process of assessment. Such variability suggests that assessment and reading more
generally are contingent upon a dialogic relationship between multiple discourses. As
Bakhtin suggests, we may impose centripetal forces which seek ‘sameness’ and indeed
consistency of reading/meaning across different readings, but as he also states, “alongside
the centripetal forces, the centrifugal forces of language carry on their uninterrupted work .
. . the uninterrupted work of decentralisation and disunification go forward” (1981 p. 272).
A standard may be imposed, but part of my argument is that though the representation we
make of a standard may remain constant, its actual instantiation will vary as every utterance
is subjected to the centrifugal forces inherent in dialogism. We may therefore believe
different utterances are the ‘same’, but as Bakhtin asserts, this can never be the case: “The
utterance is an unrepeatable, historically unique individual whole” (1986 p. 127) because it
is dialogic in nature (p. 125). The perceived ‘common ground’ from which an act or text is
judged is in practice constantly shifting.
The process of engagement consequently seemed far more significant than the demand the
student produce a well-regulated text. This does not mean of course that conventionalised
practices and forms imposed on students should be ignored, but it does imply that such
conformity does not produce the force or effectiveness of an utterance, and is not the basis
on which a communicative act succeeds. This of course has immense implications for how a
language, such as English, functions as a ‘global’ language.
1.3 Situating the research
6
In addition to my personal experience with students, theoretical interests also shaped this
study. I will first outline the theoretical framework Bakhtin provides for this study, before
giving an account of the questions that arose out of my interest in critical discourse analysis
(CDA).
I have already suggested that for Bakhtin language is inherently centrifugal in nature. The
process whereby language is used is fundamentally one of responding to prior uses and
addressing anticipated responses, of dialogised heteroglossia in which the heteroglossic
voices that accompany past uses of language one draws on enter into dialogical relations.
Hence, any standardised conventions subsequently attached to language are indeed
imposed on language. They are abstractions drawn from actual uses which are then turned
back on that usage from which they were derived in order to regulate it, but they are not
constitutive of language as such. As cited earlier, Bakhtin makes quite clear that such
regulation never removes from language the traces of the heteroglossia and the
“decentralisation” that underpin it, nor the possibility implied by this that language is always
susceptible to ‘going astray’ (Threadgold 1997a p. 89). That is, despite attempts to regulate
language (through dictionaries, standardising grammatical, pronunciation and other aspects
of it) there remains prior to such constraints this dynamic from which language emerges and
which, for Bakhtin, always remains inherent in and contributing to the ‘utterance’.
For Bakhtin, the conflicts inherent in social life and which enter into language are evident in
heteroglossia . Thus ‘self-authoring’ occurs through orchestrating such multiple voices
(Holland et al 1998 p178). The creation of a unified self in this way nevertheless
presupposes reasonable familiarity with such voices and some confidence in how to
orchestrate them, but this is precisely the difficulty for students, international students in
particular, as they work with new discourses in a language they still are not fully
comfortable with.
For Bakhtin, engagement with language is not simply a matter of acquiring an
understanding of established conventions. It involves responding to past uses of language
and addressing an anticipated reader/listener (Bakhtin 1986, pp. 91-96), and responding
does not necessarily require a shared understanding of a word’s meaning. The effectiveness
7
of an utterance derives from it occupying a place in a “chain of speech communication”
(1986 p. 91), not from its conformity to standards. The addressee and the past voices of an
utterance to which one responds however cannot be simple givens. An important argument
in this thesis is that students respond to texts and this dependence upon the materiality of
source texts is perhaps directly proportional to the attenuation of potential meanings texts
have for students unfamiliar with the language and especially with the social activities
(discourses) the texts represent. Therefore I nuance Bakhin’s account of language and take
it in a slightly different direction. Bakhtin focuses on the signified and the role of
consciousness as it is socially formed through the process of individual participation in the
language which gives meaning to and produces the social-cultural activities being engaged
in. But students often engage with texts from socio-cultural contexts (those they bring and
the present academic-institutional one) very different from the contexts that gave rise to
such texts. Thus I apply Bakhtin’s concepts of addressivity and responsiveness to students’
engagement with the materiality of the text and so treat text, rather than consciousness, as
the locus of signification. I consequently draw at some points on Derrida (1988) with respect
to the significance of the materiality of the text. The text places constraints on the reader
(student) regardless of the richness or scantness of meaning the student vests in the text.
The text itself limits and constrains possibilities in ways that precede the recognition and
making of meaning. These constraints are not reducible to the heteroglossia and past
meanings that Bakhtin foregrounds, but belong to the materiality of the text. Nevertheless,
a text appears as it does and where it does because of these ongoing social activities which
gave rise to it, and the heteroglossia that lies behind its origins. In this respect language is
thing and sign (Massey in Pryke et al 2003, p. 82), material and meaningful, signifier and
signified, and the function of this material element of language is more evident in students
for whom the signified is more attenuated and less certain. It is along these lines that I draw
and make use of the distinction between signifieds (meanings) and signifier (the material
form – phoneme or grapheme – of text).
My interest therefore is in this element of language which refuses to be disciplined (which
may be as signifier and/or signified) and which persists even when powerful interests seek
to impose conformity. The sense of continuity which does persist (and communication
8
appears to necessarily entail that ‘shared’ meaning is achieved) is, so I argue in this thesis,
given by the signifier, rather than by determinate meanings. It is reference to a common
signifier, by calling something by the same name, that a sense of continuity, of ‘sameness’
is produced and which provides the basis for a sense that meanings are shared. I refer
briefly at certain points to the work of Laclau (1996, 2000, 2005) and Zizek (1989; 1990,
1999) to support and develop this position.
The other important influence on this thesis is critical discourse analysis (eg Fairclough
1992a; 1992b). Although I do not engage here with CDA as such, issues arising for me in that
approach to do with the subject and identity have shaped much of the interest that
underlies this project.
An issue that constituted for me a persistent problem in CDA was the status of the subject.
While in discourse “dominant structures stabilise conventions and naturalise them” (Wodak
2001, p. 3 in Wodak and Meyer [eds]), such discourses nevertheless contain traces of their
histories and thus “texts are often sites of struggle in that they show traces of differing
discourses and ideologies contending and struggling for dominance” (Wodak p. 11). Power
relationships are central here, but who the the subject is who struggles remains unclear.
“[D]iscourses determine reality” states Jager (in Wodak and Meyer 2001 p. 36) even though
this is via “intervening active subjects in their social contexts”. The role of an intervening
subject need not be questioned, but who this intervening subject is remains critically
significant. On the one hand a subject is constructed and positioned by discourse, but on the
other hand awareness of discourse allows one to gain some distance from it by
denaturalising it and as a result “take more control of the identity and attitudes they want
to show through their text (Clark, p. 122, Fairclough (ed) 1992). Thus Wallace (p68 in
Fairclough (ed) 1992b) speaks of empowering individuals to engage in the “reconstruction of
discourses within a text”. In so doing, one constructs a self that is in line with one’s interests
(eg Holland et al 1998; Ivanic 1997). This raises many questions of course, such as: who is
the self who challenges existing discourses one is subjected to, and why should the position
such a challenge presupposes be privileged? How indeed do we distinguish between the
moral force of given discourses, if all is discursively constructed and interested? That is, this
raises the question of whether there is anything beyond discourse which ‘grounds’ the uses
9
of discourse we make (eg a material world, or a moral-ethical world that is self-subsisting, in
the way ‘human rights’ is often taken to imply a world of rights inherent in the individual
which are independent of culture and history). Chouliaraki and Fairclough (1999) confront
this problem and reject the view that all is discourse. They “sketch out a more realist view of
discourse” (p.121), that is, more realist than the relativism they argue characterises
postmodernist approaches. While acknowledging the value of the postmodern idea of “the
discursively constituted nature of the social” they argue there is more than this at stake:
“we argue on the contrary that the discursive constitution of the social is also in part the
discursive reproduction of structures” (p. 120) and reject “the abandonment of the
discourse and non-discourse distinction” (p.124). Nevertheless, the agent or subject who
operates within such structures remains a discursive product, that is, what is meaningful for
the subject is discursively produced, and knowledge of those structures is therefore
mediated by the subject so constructed. How the objective nature of such structures can
ever be known therefore remains problematic.
There is a similar problem with the concept of ‘critical awareness’. The capacity to be
critically aware and to construct discourses according to our interest suggests that we are
capable of ‘objectively’ understanding the discourse subjected to criticism, such that we can
then in consequence engage with it in a way that resists its force and allows for a
reorientation that is more in keeping with our intentions. The problem here, apart from the
presuppositions of ‘mastery’ by the subject, is that insofar as discourse constructs its
objects, our own critical discourse will construct in its image the perceived discourse we
critically resist and/or seek to change. The nature of any critique is thus rendered
questionable, since a critique will necessarily miss the mark if it is claimed to be aimed at
the object discourse as it is in itself. This could be one way of interpreting Widdowson’s
(1995) argument that Fairclough’s critical discourse analysis does not provide analysis of a
discourse but always an interpretation of a discourse. Though power relationships are
always inherent in discourse, there is at the same time an aspect of discourse use that
eludes being categorically linked to power and determinate meanings. To the extent that
this is so discourse is ineffable, in a way analogous to Halliday’s statement that grammar is
ineffable (cited in Threadgold 1997a p. 104). As a consequence, the self who speaks is
10
ineffable; the moment one seeks to comment on the self it becomes an object of discourse,
rather than the speaking subject. This is the sense in which theorists such as Kristeva
(1986a) and Zizek (1989) in different ways suggest the subject cannot be represented in
language but can be evident in an act which intervenes in or disturbs the symbolic.
The incompleteness of the subject and the lack of mastery over discourse this always entails
has support in Bakhtin. Although for Bakhtin an individual can be said to have internalised a
discourse or language “only when the speaker populates it with his own intentions, his own
accent, when he appropriates the word, adapting it to his own semantic and expressive
intention” (Bakhtin 1981, p. 293/4) this internalisation involves the individual in answering
to the discourses being engaged with, accounting for them, and such an accounting is not
given to the individual by a priori categories of thought, but is something that must be
achieved; the individual “from within his own radical uniqueness weaves a relation to it in
his accounting for it” (Holquist pxii in his forward to Bakhtin 1993). The writing self
therefore is never complete in itself. For Bakhtin, says Holquist (1990) “nothing is in itself”.
In constituting oneself through such answerability, the self is never complete, never an
object to itself, but always enmeshed in relations with this ‘other’ (Holland et al p173;
Holquist 1990 p165/6 and 167-170).
An important distinction exists here, therefore, between the enunciating subject (the one
who produces the utterance) and the enunciated subject (the one represented by the text).
CDA tends to conflate the two, in the manner Threadgold (1997a p. 67) argues Foucault
does, in that the one who speaks is also the one evident in the text. It is because of this
conflation that Ivanic (1997) can speak of constructing the ‘self’ one wishes to be through
one’s text. The criticism I would make here is that while the enunciated can be made
differently, the “orchestrating” individual (Bakhtin, Holland et al) remains unchallenged and
unchanged in such accounts. In fact, the subject who chooses who to be (Ivanic) is
presumably further entrenched by satisfactorily representing themselves in the way they
have chosen, and is further removed from the relatedness and dialogism Bakhtin speaks of,
and which ensures the ‘speaking subject’ is never finalised.
11
Thus we might argue the self is instantiated, but can never become the object of reflection.
Kristeva argues that any instantiation is always of a ‘subject in process’. Consequently, the
subject is evident not in the discrete meanings the symbolic allows us to produce, but in the
disruptions to the symbolic. It is present only negatively. It is in the “crisis or the unsettling
process of meaning” (Kristeva 1980 p. 125) that the speaking subject makes itself evident (p.
135).
The student learning and wishing to take up a new discourse is caught precisely in this
situation of becoming someone new. A student’s approach to discourses is often
characterised by a lack of confidence in their ability to recognise the ‘proper’ meanings of a
text and its discourses. They have little sense of the position it places them in other than
one of confusion, and similarly, ‘who they can be’ with respect to the discourse is confused.
They are often less in a state where they can assume the position offered to them or resist it
and make it differently, but more in a state of confusedly not knowing who they can be. This
concerns fundamentally the status of the enunciating subject, rather than the enunciated,
and it is this subject I attempt to say something about in this study.
My concern in this study is therefore with the enunciating subject, the subject who writes. I
have suggested that students are often unsure how to represent themselves at the level of
the enunciated as they struggle with a new discourse. However, it is taking up a position of
enunciation which is problematic, the position from which an enunciated position can be
produced. My central concern in this thesis therefore is with the enunciating subject and of
what can be said about the ‘writing student subject’.
1.4 Research questions
The questions that guide this research are as follows:
1. Who is the writing student subject?
This question is a very broad one, though it represents the fundamental orientation of this
research. However, more specifically I ask:
12
2. What kinds of responsiveness and addressivity are students engaged in as they
produce their texts?
3. What considerations do the lecturers take into account as they assess students’
work?
1.5 Outline of this study
In Chapter 2 I outline the processes by which this study was made possible. I outline who
the students involved are and the means by which they were selected, the reasons for
selecting texts and for interviewing students and staff, and basic methodological issues
related to the process of conducting interviews and analysing the interviews, journals and
student texts. In Chapter 3 I consider the structuring of student essays. I focus in particular
on the introduction in the two essays of one of the students. My aim is to better understand
how the student’s experience of his immediate context of writing impacts on the
construction of the more abstract generic form with which the student is not very familiar
or experienced in producing, in order to infer something of his understanding of who he
writes for. This chapter is therefore concerned with addressivity (Bakhtin) and of the
construction of his reader as disciplined (lawyerly) and/or representative of the institution
in which he writes (lecturer-assessor). I focus on the introduction because this is the part of
an assignment which is far more contingent on the particular text it is introducing, and in
that sense far more susceptible to influence by the particularity of the occasion of the
student’s writing. Although generic form is unavoidably integral to the formation of an
utterance and to participation in a specific language-cultural context (Bakhtin 1986 p. 78), it
is assumed that relative familiarity with the form (although the student has been taught the
academic essay form in EAP courses) will pressure the student to nuance the genre (Bakhtin
1986 p. 79) in ways that attach more weight to the student’s experience of his specific
context of writing as he understands it than to more abstract, formalised cultural contexts
which genre in principle represents (see eg Eggins 1994). How the student thus produces
the generic form at the level of the introduction is traced, and indeed I show how the
13
personal encounters the student had with his lecturer leave a very pronounced mark in his
text.
In Chapter 4 I explore student engagement with source texts, a fundamental process in
many disciplines but in particular in the discipline of law. Engagement with primary sources
(texts constitutive of the law) is a fundamental component of legal argument. In this sense
the focus of this chapter is on student ‘responsiveness’ (Bakhtin) to the sources that provide
the material for the content of the student texts. Such responsiveness is typically
represented as engagement with the discourses (the social practices and purposes) that
such texts are an expression or embodiment of. However, for students working in a system
of law and a language they feel some estrangement from, it is clear that precisely what it is
their sources represent, and how they do so, remains uncertain for them, and the students
in this study often state this in various ways. Thus I begin to bring to the fore in this chapter
the idea that students engage with signifiers rather than signifieds, an idea I take further in
later chapters. I link this to a discussion of legal texts and the fact that the text or wording
itself has a status which is not reducible to the meanings attributed to them. In Chapter 5 I
take up Bakhtin’s notion of ‘dialogism’ in an examination of a lecturer’s reading of one essay
by one of the students. My focus is on the quite different readings the lecturer makes on
both occasions. My purpose is to show that the expert reading of a text is not made solely
under constraints of “dominant structures which stabilise conventions and naturalise them”
(Wodak 2001 p3), that is, structures which constitute legal discourse and ensure the
reproduction or ‘sameness’ of readings. I argue that any given reading is susceptible to the
contingencies which constrain an actual reading. In this respect any reading is radically
situated (Barton et al 2000) and the lecturer’s responsiveness is to the particularity of
context. In this respect, students are not powerless; their participation contributes to the
constitution of the discipline as it is instanced on those occasions in which they are involved.
The crucial point of this chapter is that such readings do not result in deviant readings of the
discipline, but rather, disciplinarity is itself contingent. Both readings made in equal good
faith by the lecturer nevertheless resulted in a sense of ‘shock’ for her at the disparity, and I
argue this sense of ‘shock’ suggests the lecturer as reading subject was constituted
differently on both occasions.
14
This issue of who the reading/writing subject might be comes to the fore in Chapters 6 and
7. In Chapter 6 I take up the issue of ‘patchwriting’ (Howard 1995). One of the students
engaged very extensively in this practice, and my argument in this chapter is that this was
not a consequence of attempting to cheat, or to learn by imitation, or other such
instrumental interests by which an already given subject might attempt to achieve a goal
they otherwise find difficult to meet. Rather, I argue that the student writing subject is
constituted in this engagement with the text she works with, and it is to the signifier that
the subject is attached rather than to the signifieds produced. I make much in this chapter
of the student’s claim, which I take to be fully sincere, that the words were her own, and it is
in giving sense to this claim that I link the subject to the signifier. In Chapter 7 I attempt to
clarify what such a writing subject might be. The concluding Chapter 8 returns to the
research questions and outlines what I believe I have achieved and the answers I can now
give to those questions. I also make brief comments on what I believe are the implications
of this analysis for an understanding of English as an International language, and certainly
the inadequacy of understanding language in such a context by identifying and insisting on
‘standards’.
15
Chapter 2
Methodology chapter
2.1. Introduction
In this chapter I outline the processes by which participants were recruited, the kind of data
collected and why, and I also provide a general outline of the approach to analysis of the
data that was adopted.
The initial intention was to research the acquisition of the legal discourses international
postgraduate students engaged with. To do this it was decided to collect work from early in
the students’ first semester of their two-semester study, and from late in their second
semester of study, in order to compare changes and progress. However, both my work with
students generally and my particular theoretical interests led me to shift my focus onto
students’ engagement with sources, as I turned away from the idea of acquisition, with its
implicit assumption of some ‘thing’ to be acquired, both a discourse and usually the English
language. Hence the comparison between an early and late text became less imperative,
although the data still consisted of an assignment written by the participant students in
their first semester of study, and one from later in their second semester. In addition, the
data includes interviews with the students about their assignments and with their lecturer’s
(where possible) about their reading of the student assignment.
2.2. Student and lecturer recruitment
2.2.1. Student recruitment
Newly arriving International postgraduate students in the Faculty of Law of an Australian
university were invited to volunteer as participants in this study. Notices were placed in the
16
common room provided for international postgraduate students in the Faculty, and a notice
was circulated to all newly arriving international students. This notice contained a brief
summary of the project, and how I could be contacted. During the semester students were
recruited I was on leave from the Faculty and not responsible for language support, and this
reduced any possible pressure students may have felt had they been dependent upon me as
they began their studies in the Faculty.
It was hoped approximately ten students could be recruited for the project. The aim was to
select students who had just met or only slightly exceeded the minimal English proficiency
entry requirements (International English Language Testing System (IELTS) score of 6.5).
Initially, seven students expressed interest, and one meeting time was arranged at a time
suitable for all students to meet as a group. At this meeting they were more fully informed
of the project, of what would be required of them, and it was made clear to them that they
could withdraw from the project at any time they chose to do so. The meeting also provided
the opportunity for students to ask questions in an environment where it was felt students
could help each other to raise issues that might be of importance to them.
Of the seven students, six showed up for the collective meeting. One effort was made to
contact the student who had not shown up, but no reply was received. For the remaining six
students, individual meeting times were arranged where the researcher could discuss with
students their study programme and determine which essays they might be willing to
submit to this study. Students were invited to think of further questions they might wish to
ask at these individual meetings. One student did not attend the meeting arranged with
him. An attempt was made to contact him, but again the student did not reply.
Of the remaining five students, one began with the project and submitted two journal
entries, but around the middle of her first semester email correspondence ceased before
her essay was completed. This student’s journal entries have not been included in this
study. Of the remaining four, one student completed the first semester, and submitted an
assignment to the researcher and was interviewed, but contact ceased from the beginning
of the second semester. It was learnt only at the end of the second semester from academic
staff that this student had struggled very much to complete her studies, and her level of
17
success had resulted in her being awarded a Diploma in Law instead of the Bachelor of Laws
(LLB). The remaining three students, who have provided the bulk of material for this study,
participated in the research project to the end.
2.2.2. Recruitment of lecturers
Not all the lecturers of the units the students studied were interviewed. One lecturer
(Competition Law) delivered the course electronically from overseas. The lecturer for
Intellectual Property was not available (he was a practising lawyer who had been invited to
deliver the Intellectual Property course) and one other lecturer (Banking Law) declined to be
interviewed. Those who were interviewed were asked if an interview would be possible
after student essays had been assessed. They were invited by letter which spelt out the aims
of this project.
Each of the three lecturers interviewed adopted a benign attitude towards the difficulties
they perceived the students to face. They expressed admiration for international students
who studied in a second language in a different legal system and stated they were tolerant
towards language errors so long as the text remained comprehensible. However, one
lecturer expressed the view, fairly prevalent in the Faculty, that he could not award the
highest grade (HD) to a student if he felt their language proficiency skills would be likely to
bring embarrassment to the Faculty if the student practised in Australia. Interestingly, he
had himself been an international student from a non-English speaking background and he
felt he had a good understanding of the difficulties these students faced. Nevertheless,
despite language and cultural issues faced by international students, he, along with the
other two lecturers, explicitly stated that for various reasons international students were
not at a disadvantage when compared to local students and that they often performed
better than locals.
2.3. Student tasks
The students in this study were all enrolled in a coursework Master of Laws (LLM). All the
Units of study required study to do research assignments. Some allowed students the choice
18
of being assessed by research assignment only, but most required students to produce a
research assignment and to sit an exam, each contributing a maximum of 50% to their
assessment in the Unit of study. Exams were usually take-home exams and students could
be given a few days (usually over the weekend) to a week in which to complete the exam.
For written research assignments, some Units required students to establish their own topic
of research in consultation with their lecturer, whereas others set specific tasks from which
students could choose one, with the option of devising their own topic if they preferred.
Generally students found it easier to choose a topic from those offered to them, although
Thuy (in Human Rights) created her own. The text samples in this study are all of
assignments, except for Minh’s text for International Sale of Goods, which is from his take-
home exam. He was given one-week in which to complete this exam.
Students were graded on a spectrum from HD (high distinction), D (distinction), C (credit), P
(pass) to F (fail).
In their relevant subjects, the students achieved the following results:
Minh (Male, Vietnamese): International Sale of goods, (47% assignment: 35% exam) HD (semester 1); Intellectual Property, C (semester 2).
Thuy (Female, Vietnamese): Human Rights, HD (semester 1); Competition Law: HD (semester 2).
Narin (Male, Thai): Banking Law, D (semester 1); Law of the internet, D (second semester).
Kanya (Female, Thai): Overview of Intellectual Property, C (semester 1).
2.4. Student histories
Students had varied histories with respect to legal work experience and in exposure to
English, as well as to Australian and more broadly western education contexts.
2.4.1. Legal background
The International postgraduate students in this study all had an undergraduate degree in
Law from their home country. Two students from Thailand, a male (Narin) and female
19
(Kanya), had no work experience in the legal profession. The other two students, a female
(Thuy) and male (Minh) from Vietnam both worked as legal advisors in the Vietnamese
Parliament and so contributed in junior ways to drafting legislation and in researching
overseas legislation which might provide models for Vietnam. Both mentioned that since
Vietnam ‘opened up’ to the rest of the world, compliance with international Treaties
Vietnam wished to become signatory to required significant legislative change and
expansion.
The Thai and Vietnamese legal sytems are based on a Civil Law code, and all the students in
this study stated that they had had no real exposure to and understanding of the common
law system, and in particular its expression in Australia. Although the students were not
studying Australian Law as such but areas of international law, and despite being advised to
select Units of study that did not require an understanding of Australian Law, they all stated
that dealing with the common law was unavoidable and concerns about dealing with the
common law did emerge as a prominent issue for them.
2.4.2. English language experience of students
All of these students had achieved the minimal entry score of 6.5 on the IELTS test
commonly used in Australia to measure the proficiency standards of students planning to
study in Australia. Because they had achieved the minimal score, all were required to attend
a pre-enrolment five-week English language bridging programme (ELBP) at the university.
This was designed primarily to introduce students to the writing, research, self-study and
other practices typically required of students in an Australian university. Three of the
students stated that prior to the bridging programme, the 250 word essay required by the
IELTS writing exam was the longest piece of writing in English they had produced.
None of the students had prior experience in using English for professional or study
purposes, although all the students had studied English in their home countries. The Thai
students mentioned using English occasionally in social settings. Both Kanya and Narin had
attended language schools in English speaking countries at earlier periods. Kanya had
attended a language school in the US for a period of time two years prior to beginning her
law study in Australia. During that time she had had to write some assignments of up to
20
2000 words, but on general topics. Narin had attended a 20-week English course in Australia
before beginning his LLM study. However, he said it was only when he prepared for the
IELTS test that he had to write anything resembling an essay, and he found this very difficult.
He had never been required to write extended text before, not even in Thai.
Minh and Thuy learnt English in Vietnam. Thuy stated that she had only taken the study of
English seriously when the possibility of study overseas was presented to her, although she
had made an attempt to learn English earlier when it had become popular in her country to
do so and she had begun to take an interest in popular ‘English’ songs that were becoming
increasingly heard in Vietnam. However, she said her English classes had focussed on
grammar, and she too found that the 250 word task the IELTS test requires examinees to
produce was the longest piece of text she had produced in English prior to attending the
ELBP course. Minh had also learnt English in Vietnam as preparation for study overseas.
2.5. Collection of data
Students were asked to submit two assignments each for this study, one from their first
semester of study and one from the second. The only additional work that was asked of
them was that they keep a journal during the process of researching and writing, and that
they be available for an interview soon after they submitted their assignment, but at a time
that suited them.
In their journals students were asked to record any reflections they had on their
researching/writing process, but it was suggested they note what they found particularly
easy and particularly difficult. The diligence with which journal entries were made varied. At
the beginning students were more inclined to make entries at the time and on the day work
on an assignment was done, but quite quickly they resorted to making retrospective notes
either at the end of a week of study or less frequently. Apologies were made, but it was
clear that writing the journal was a little onerous. These were submitted electronically as
students wrote them, and comments/questions were made and returned to the students. In
this way some small dialogue was established, on some occasions, as their work proceeded.
21
Students submitted their essays electronically and they were also asked to submit a copy of
their essay after it had been returned to them by their lecturer with any comments made.
However, not all essays were returned to students and comments on those that were
returned were usually minimal.
The interviews were approximately 35-45 minutes long, and were conducted in the
researcher’s office. They were semi-structured in that while the interviewees were directed
to issues related to their assignments and writing them, interviewees were free to elaborate
on these as they chose, and the interviewer would often continue the interview by taking
his cue from points raised by the students. In the first interviews students were asked about
their own biographical background, but subsequent issues that arose were in relation to the
researching and writing process. Nevertheless, issues of significance raised by the students
varied considerably.
2.6. A note on interview transcription and referencing of interviews
The aim of the transcription was to try and provide a sense of the narrative being produced
in the interview. Nevertheless, it is impossible to capture in written form what is said in
spoken form, and any transcription is a rewriting and involves a transformation (Massey
2003, p82). Intonation patterns are lost, though at the time of transcribing the interviews
notes were made of any patterns the transcriber/interviewer felt were significant. The
transcription of the interviews with students and academic staff were transcribed word for
word, and where words were inaudible or unclear, a note was made in the transcription
that one or several words were missing. Length of pauses was noted to indicate moments of
hesitation, reflection, and so on.
Following Bakhtin’s assertion that “the boundaries of each concrete utterance as a unit of
speech communication are determined by a change of speaking subjects” (Bakhtin 1986
p71, italics in original) the interviews are numbered according to turns between interviewer
and interviewee. References in the text are made to interviews in the following ways. They
begin with the initials of the unit of study. Thus:
22
LI = Law of the Internet (studied by Narin in his second semester);
BL = Banking Law (studied by Narin in his first semester);
HR = Human Rights (Thuy, first semester);
CP = Competition Law (THuy, second semester);
ISG = International Sale of Goods (Minh, second semester);
IP = Intellectual Property (Kanya, first semester, and Minh, first semester).
Two interviews were conducted with Thuy for her Human Rights assignment, and two with
Narin for his competition Law assignment. These are indicated by prefixing the unit initials
with 1 or 2. For example, the second Human Rights interview with Thuy is designated as
2HR.
The code for the interview is then followed by the initial of the interviewee. Students are
listed by their initial (eg T (Thuy), N (Narin), M (Minh) and K (Kanya). Academic staff are
listed by the initials of their first and family name (eg SJ (Human Rights), MZ (Law of the
Internet), EL (International Sale of Goods)). The initials of the interviewee are followed by
the turn in the interview. Thus, a reference to turn 54 in Thuy’s second Human Rights Law
interview will be referenced as 2HR T54. A reference to the Human Rights lecturer’s turn 12
will be referenced as HR SJ12.
2.7. Methodological issues
Because this study includes both text analysis and ethnography, the study might be viewed
as a ‘textography’, a term Swales (1998) coined to describe a study which is “something
more than a disembodied textual or discoursal analysis, but something less than a full
ethnographic account” (p1). That is, this study does not attempt to pursue a full
ethnographic account where student activities are followed and documented during the
course of researching and writing their assignments (see Prior 1997 for an example of a
fuller ethnographic study). But neither does it attempt to obtain its relevant data solely
23
from an analysis of student texts. My aim is to gather traces of the process of
researching/writing from journal entries students were asked to make, and to gather
retrospectively an account of that writing during an interview conducted after the
completion and submission of the text.
2.7.1 Interviews
The semi-structured interviews directed students to the general issues of interest to this
research, but it is clear that the recollections they make of what occurred, of the relative
importance of events or feelings will be nuanced by and organised from the position they
stand in after completing the assignment and in light of the issues the interview draws
attention to (Mishler 1986).
What an interview reveals, therefore, is debatable. Mishler (1986) suggests an interview
construes what it speaks of and is a joint product of the interviewer and interviewee. Thus it
needs to be understood as a discursive product (pvii) and the significance of what is said is
to be found in the conditions generating the speaking and the utterances produced, rather
than in the external events the utterances putatively refer to. In this sense the constraints
regulating the production of narrative are made central. Others however reject this
tendency towards “narrative omnipotence” (Miller and Glassman in Silverman 2004 p. 129).
They argue against Denzin’s view (1991) that all the text of the interview can do is give “a
trace of other things, not the thing – lived experience – itself” (quoted in Miller and Glassner
p127). They argue that it must be possible to access something of the real world. While such
access will be partial (p. 127), “we can describe truthfully delimited segments of real-lived
persons’ lives” (p. 129). While the researcher’s interests will affect what is disclosed, it is
only the issues about the researcher relevant to the interview issues at hand that need to be
disclosed (p. 129/130). Language is communal by nature and it is through language that
both private and social realities take form, or at least acquire meaning, and as such the
meaningfulness of such realities can be communicated (pp. 126; 129).
Rather than reducing the data solely to narrative analysis, one way of thinking about this
relationship between interviewer and interviewee is to think of the interaction as a place
where the interviewee accounts for his/herself in light of the interviewers questioning (see
24
Baker (2004 p. 163), in Silverman). This involves a process of data generation rather than
data collection (Baker p. 163) and for Baker the interest is in the categories used to organise
the interaction by interviewer and interviewee (Baker p. 163). This idea of ‘accounting’ for
oneself is close to Bakhtin’s view that in answering to a discourse one is involved in
accounting for it and for oneself (Holquist, in Bakhtin 1993, p. xii). In the interviews,
students and lecturers are re-engaging with a text they have already had much to do with,
and of significance in the interviews is precisely their responsiveness to the texts.
Students and lecturers in the interviews address the texts as they also report on what they
did in the past, and in the analysis here the account created by them (eg Thuy’s account of
her interests) and the membership categories they indicate (eg Narin and I/we distinctions
made) are both made use of as indicators of the elements that have contributed to the
present speaking position the speaker occupies. The elements that are spoken of gain their
pertinence not by assuming the historical accuracy of the statements made nor from the
significance attributed to them in the past, but from the fact the interviewer speaks of them
now, in the present, and hence their significance in the construction of the present position
from which the interviewee speaks.
Nevertheless, it is the researcher who finally makes use of this material to provide a certain
interpretation of the student texts and their status within the discourses of law. In this
respect we might replace ‘narrative omnipotence’ with ‘researcher omnipotence’. However,
the important point I would make is that the researcher, as writer, is also formed through
the dialogic process of responding to the interviewees and the assignment texts, and in this
sense is not omnipotent but also a product of similar dialogic processes to those which
constrain the interviewees to speak of the things they do in the interviews.
2.7.2 Text analysis
Traditional approaches to discourse tend to view language as a tool. Mastery over the
conventional uses of the tool provides mastery over the meanings and discourses that one
uses language to participate in. Thus one can read out of texts the intended meanings of the
author. This view also tends to be typical of more critical approaches. While the subject, or
identities, are seen as constituted within and by discourse, Gee (2005) argues that
25
nevertheless, for the subject, “language-in-use is a tool” and so is used “to design or build
things” (p.11). This presupposes agreement on conventions of use and on the meanings
such conventions make possible, if we accept that what is ‘built’ in language exists only in so
far as others agree on what precisely has been built. This raises the question of the
relationship that exists between a subject and representations of a discourse, a text, when
the meanings and conventions are not so clear. In the approach just described, it is effective
utilisation of existing conventions which enables one to either take up a position within an
existing discourse to do things differently, or to offer resistance and make space for
marginalised discourses. Thus teaching academic writing is concerned with providing
students with conventions of use that can be reproduced or used in the formation of new,
hybrid forms (for example, in Cazden 1989, the student ‘Nazz’ takes up the discourses of
Education he is being taught but joins them with his own ‘home’ discourses which he finds
are marginalised by mainstream education discourses). In such an approach the dialogism
Cazden refers to also presupposes ‘mastery’ over the discourses which enter into dialogic
relations. Bakhtin also refers to mastery over genre, and others who have drawn on Bakhtin
make this central to the academic writing project (eg Braxley 2005; Angelil-Carter 2001).
However, it is also the case that students, such as those in this study, can succeed and
succeed well whilst feeling great uncertainty about the legal and academic-institutional
discourses they are engaging with. It is this success I am interested in, which I link to an
ongoing dialogic process between students and their sources, and between students and
their reader-assessors. That is, the emphasis is on the generative centrifugal forces Bakhtin
refers to rather than the regulatory centripetal forces. The constraints on centrifugal forces,
which at the same time make centrifugal forces possible, are linked to the processes of
addressivity and responsiveness which ensure discourses – and conventions – are never
finally closed.
The idea of ‘negotiation’ in language, which suggests something of the non-finalisability of
language, is foregrounded in Hyland’s (2005) analysis of metadiscourse. However, while
metadiscourse is used for negotiation of social relationships and meanings within and
through texts, the conventions of metadiscourse appear to be fixed and closed to
negotiation. Hyland argues that a major justification for researching and teaching
26
metadiscourse is to enable students to learn how to use metadiscourse in appropriate ways
(p. 175) to negotiate a position with anticipated readers. The successful negotiation of
position is contingent upon appropriate use of metadiscourse, although what constitutes
‘appropriate’ is not clear. Hyland’s study is an empirical one, and from multiple examples of
use he identifies standardised conventions of metadiscourse use in different contexts and
for different purposes. But from such an analysis of what is, he infers what constitutes a
norm of practice. He engages in what elsewhere has been described as a ‘category mistake’
(Ryle 1949) where an ‘is’ is transformed into an ‘ought’. The difficulty this leads to is evident
when later in his book Hyland states of one textbook he looked at that the author
“misguidedly overuses” conversational metadiscourse, causing “problems of adjustment”
for students and “irritation for the rest of us” (p. 177). This begs the question: irritation for
whom? This ‘us’ presumably does not include the author, and possibly not the intended
audience (for example students in a culture where such use in their own language is
familiar). It is also very unclear why this textbook should be read as using metadiscourse
‘inappropriately’ whereas it is precisely from analysis of published texts that Hyland infers
what is appropriate (for further discussion of this see Price 2008). The determination of
‘appropriateness’ depends upon exclusionary judgments which appear to be to some
degree arbitrary.
The focus of analysis in this study is therefore on the students’ actions in their texts rather
than on what they say. There is therefore no attempt to provide a close analysis of sentence
or text structures in order to ‘read out’ of such uses identities the students construct for
themselves. Recognising such identities would require reading the student texts against
conventions of use, and the adequacy of this is precisely the point in question. For example,
patchwriting and minimal paraphrase reproduce text and in so far that identities can be
read out of such text, these may not be identities the student herself identifies with. Indeed,
as already suggested, the student may be unclear what position the text suggests for its
original author. The identification the student makes will be with something else. Similarly,
the students’ following of generic conventions is of interest, but in particular the ways in
which these are performed (for example, the kinds of content a student incorporates into
the stages of a generic form they follow, such as the introduction). It is quite possible
27
students will follow conventions of genre without recognising the cultural context the
generic form represents. The relationship of the student to their text is thus dialogically
produced, and not easily read out of the text itself. This is not only because the students
enter into an uneasy relationship with their sources because the conventions assumed by
the texts are unclear to them. Lecturers too can attribute to students authorial positions the
student had no awareness of (for example see Prior 1998, p86). Furthermore, the process of
reading and the heteroglossia that accompanies it ensures the “reader/writer makes texts in
a constant process of movement back and forth within the co-text, in and out of the text to
other texts and practices” and as embodied subjects bring “different lived corporealities to
the task, the probabilistic aspects . . . and likelihood of texts going astray, being read and
rewritten in different ways, increases componentially” (Threadgold 1997a p. 103).
The focus therefore is on the practices that are engaged in while reading and writing texts,
and while these are inescapably tied to the meanings made from and in the texts read and
written, this acting, enunciating subject cannot be read out of the text he/she produces.
Nevertheless, neither can it be separated from the text produced. Threadgold (1997a, p. 12)
argues that the enunciating and enunciated subjects are enfolded into each other, though
not reducible to one another. This position is taken in explicit contrast to the arguments of
theorists such as Barthes (1997a) and Kristeva (1986a) who argue that the enunciating
subject is not representable in the text, simply because the moment the subject putatively
enters the text (eg through use of the self-referring pronoun ‘I’) the meaning of that ‘I’ is
given by its place in the text, not by the external referent, the person who wrote it.
Nevertheless, such a subject cannot exist outside the symbolic that fails to represent
him/her. Thus, for Zizek (1989, following Lacan) the subject exists at the limits of the
symbolic, at the point of its failure and consequently is known through disruptions in the
symbolic system, and thus can never be directly represented, but neither is it separable
from the symbolic.
The focus of this thesis is on the formation of the enunciating subject through the students’
engagement with the sources they deal with, and as already noted the meanings students
draw from source texts and the meanings constructed in their own texts cannot be read
with any certainty. Thus, in the approach here I give weight to the material quality of the
28
texts students work with, for it is not so much shared values, beliefs and so on which for
Gee (1996) characterise a discourse and which he argues interactions are organised around.
The discourse is precisely that which remains uncertain for students. However, the texts
provide the focus around which readers and writers are organised, and it is the text in its
materiality which is effective here, not solely the text as a representative of meanings and
of well-established discourses. Thus while I follow Bakhtin’s understanding that language
use is dialogic in nature, this dialogism is not only organised around the meaningfulness of
texts/language, but also incorporates into this process the materiality of language, an
element accentuated in the case of students working in a second language with discourses
unfamiliar to them.
Consequently, while students are incorporated into the ‘chain of utterances’ (Bakhtin) of
which their texts become part, these chains are not only constructed through students
responding to the contextual and discursive uses that gave rise to these source texts, but
their response is also to the material presence of such texts. As students make quite clear,
the meaning and pragmatic functions the texts they read are performing are often unclear,
but nevertheless they know the text is significant and must be dealt with. Thus the
phenomena students engage with (source texts in this case) are both signs and things and as
such circulate along “the chains of communication” (Massey 2003, p82, citing Latour 1999).
For Latour we cannot separate the world of things and the world of representation, and for
students, the text as ‘thing’, the word as material signifier is integral to the world they are
engaging with as they study. It is the significance of this I try to clarify in Chapter 7 and the
role the word as signifier has in the formation of the student writing subject. In order to do
this I draw on the work of Laclau (1996, 2000, 2005).
Although students may wish to produce a seamless coherence in their text, because the
object of their engagement is not easily assimilated to existing schemata they bring and
identities already formed for them, there will be uncertainties. Consequently, rather than
looking for continuities and coherence of identity and the reproduction of a discrete
‘discourse’ with its given, underlying values, beliefs and so on (Gee 1996), I look for the
disjunctures that occur in my reading of student texts. For Stronach and Maclure (1997) the
coherence of a text can never be an expression of a world beyond it but is always a
29
contrivance born through great struggle out of that which is heterogeneous and heteroglot.
Thus students are asked in the interviews about features of their texts that suggest for me
as reader some kind of disjuncture or lack of coherence. Clearly the student may not feel
such a disjuncture exists and it may be that they are drawing on styles of writing they are
used to in their own cultures, or they are attempting to produce a text that conforms to
what they understood is asked for. But such moments in a text can also reveal points where
for the student coherence is lost, in that a decision is made in light of several discursive
constraints acing on them at that moment (eg to show they did research; to acknowledge a
lecturer by incorporating elements from a text the lecturer has published while recognising
its limited pertinence to the student’s argument; to include a reference to something of
interest to the student in other contexts which they wish to include even though it does not
have immediate relevance; and so on). I engage in this kind of analysis to a certain extent to
uncover multiple identities a student may bring to bear on their writing as they struggle to
produce a text in a discourse, but more significantly to expose points where identity appears
to be lacking, where the student is engaged in a process we might refer to as ‘becoming’, or
more precisely, of trying to find a place in discursive contexts where, to some extent, they
feel at a loss. The writing subject occupies a place which is not wholly reducible to a unitary
identity or multiple identities. It is at such points that the writer is no longer an instrumental
user of language and a discourse they have mastery over.
In so far that a lack of mastery and a process of becoming is involved, this ‘going beyond’
who they are as they are constituted through this engagement with the material and
discursive qualities of language will involve an ontological shift in the self as one moves from
identities that are the self and to which one is attached. Clearly this will involve an affective
element, which is taken into account in this study. Threadgold (1997a) states that “the
labour and pain of making meanings with the body” she observed actors engaging in during
rehearsals “have become for me a metaphor of the much slower and less visible processes
by which genres, discourses and narratives are embodied or rewritten as history or habits in
the businesses of everyday life and in the processes we call education” (p. 125). Butler
(1997b) speaks of the ‘passionate attachments’ we have to the identity positions we feel
ourselves secure in. Thus I also pay attention to the kinds of affects students refer to, in
30
their journals which they kept as they researched and wrote their essays, and comments
they make, and occasionally on the ways of speaking in the interview. In particular I
distinguish between the ‘anxiety’ and ‘frustration’ students experience. I link the former to
the process of ontological change, and the latter to the obstacles an already existing self
experiences.
The analysis provided in this study therefore is very much concerned with the individual
experiences students have as they engage with the process of reading and writing. I do not
purport to offer generalised conclusions about student writing. Thus, the examples drawn
from the data are presented as ‘telling cases’. For Ivanic (1997), a ‘telling case’ “grounds the
discussion of multiplicity in the experience of actual people writing actual essays, but it
cannot claim to be generalisable” (Ivanic 1997, p. 283). In placing the production of meaning
in the relatedness between utterances, ‘dialogism’ opens the production of meaning,
including therefore the meaning given to textual and linguistic forms, to being done
differently. Examining individual cases and showing something of the differences in
approach and the means by which students produce their texts discloses something of the
heterogeneity which is always at work, without unnecessarily attempting to reduce these
processes to a more abstract typology of student academic writing.
2.7.3. Concluding remarks on methodological approach
While there are certainly continuities in discourse which I suggest discourse analysts look
for, I have suggested that identification of such continuities are not enough to explain the
process of discourse production (Stronach and Maclure 1997). I draw largely on Bakhtin in
this study as a means of understanding discourse as inherently dynamic (responsiveness and
addressing an ‘other’ is fundamental to discourse, which involves an act not reducible to
reproducing what is given). In this study I am interested precisely in the point at which
students engage with that which is ‘other’ to them. Consequently, I take into consideration
not only the disjunctures evident in their texts but also their reports, in journals and
interviews, of the affective elements that were part of the writing process. It is this
relationship between language and the self, and in particular the way language impacts on
the self, that is central, for it is an account of this which I suggest most approaches which
31
acknowledge the constitution of the self in language do not adequately address. I have
suggested that in such studies the self typically is treated as an instrumental enunciating
subject who remains distant from the enunciated the person produces in order to represent
themselves in ways they wish. But in so far as language impacts upon the self there is an
inherent uncertainty entailed in who the self will become, for it exceeds the control the
subject attempts to impose on language. Thus Butler (1997a) argues that the agential
subject exceeds reproduction of what is given, but this inherently means one cannot know
with any certainty what meanings one’s utterance will come to have (1997a p. 161). In my
view this brings into question notions of ‘design’. Therefore, a fundamental methodological
approach in this study is to focus on the dialogic processes involved as students engage with
their sources and as lecturers read the students’ texts. This dialogic process constructs the
discourse which is consequently always in process, and while conventions are indeed drawn
upon, they are also used differently, or transgressed, and so it is the dialogic process which
sustains the communicative act, not conformity to convention.
32
Chapter 3
Text structure and the writing subject: addressing the reader
“A lack of mutual understanding shouldn’t keep us from engaging with others; we want to get something done together”
Richard Sennett (The Guardian Weekly 9-15 March 2012)
3.1. Introduction
A fundamental issue in this thesis concerns the location of the ‘speaking subject’. The
subject who speaks within the symbolic order (that is, who reproduces grammar, genre,
social structures and so on, everything that is conventionalised) can be argued to not be the
speaking subject in so far that such a subject speaks only in the voice of an ‘identity’ given
by the social-symbolic order. Thus, for theorists such as Kristeva (1986a) and Zizek (1989),
the subject is evident only in the disruption it causes to the symbolic order, which includes
metaphoric displacements (Fink 1996, p. 69). Nevertheless, the speaking subject who
exceeds what is given by the symbolic order can only speak in so far that it is already bound
to the symbolic order. This leads to the question of what status can be given to those who
are outside the discourse/symbolic order, trying to ‘get in’? Can they only speak when they
have mastered the discourse and hence occupy a position already made for them, which
becomes ‘their own’ only in so far that they identify with a place/identity already created
for them by the symbolic/discourse they find ourselves within? Or is it possible to speak
across divisions and differences (Biesta 2004)? As Sennett suggests in the quote above,
language is a means of getting things done together. This remains possible if the act of
addressing another is a constitutive moment in a communicative act, and not merely
parasitic upon the use of an already given, mutually understood symbolic system.
33
Language use does not only provide a means of representing the world to ourselves and
each other; we speak of a world in specific contexts and to specific others and the
constraints these impose are embedded in the utterance. Language is not only social in its
origin (Saussure 1983), but also in its use (Bakhtin 1981, 1986) and this sociality is
represented in both the structuring of a text, and in the register (Halliday 1994).
The structure of a text (or an utterance) is integral to its communicative effectiveness and
such structure is conventional. Through texts/utterances, individuals take up a place within
social relationships. In so far as texts follow stable patterns they reproduce relatively stable
types of social relationships since language carries within it the traces of its past uses
(Bakhtin 1981) which includes ways of seeing the world, of who is authorised to speak on
such matters and to whom. Thus, as Halliday points out, language/text does not only
represent the world referentially, but it also represents the world metaphorically (cited in
Threadgold 1997a, p. 93). That is, the utterance as a whole is a metaphoric
expression/instantiation of the social relationships (status, purpose and so on) that have
shaped who can speak about the world and how in given instances. In Bakhtin’s terms, the
practical relationships that have shaped the ways in which we speak and use language and
engage with the world are disclosed metaphorically in the genres that have emerged in
social contexts of practical activity. Through language, therefore, social relationships are
both represented referentially and enacted.
A one word utterance is therefore generic (Bakhtin 1986); genre is an element of any
utterance however short or long. Genres thus belong to discourse communities, rather than
individuals (Swales 1990 p. 9, though Swales 1998 rethinks this concept of ‘discourse
community’), since they constitute and reproduce the kinds of relationships that bind
people in a given community. However, how to describe the relationship between the social
activity enacted and the rules and conventions said to characterise the communities the
activity is part of is debatable. On the one hand, such activity can be viewed as reproducing
a community and its rules which exist in some sort of neoplatonic realm independent of its
actual instantiation. On the other hand, such activity might be seen as producing a
community which exists only in its concrete instantiation. Approaches that accentuate the
former emphasise the need for learners to acquire the rules of genre and language use, the
34
acquisition of which enables their participation in these communities. Bakhtin speaks of
individuals being socialised into the already given ways of doing things. Gee (1996) speaks of
the beliefs and values participants must reproduce to be part of a community. Bourdieu
speaks of the bodily acquisition of practices that reproduce social life. However, if a
discourse or community exists only in its contingent instantiation, the conventions normally
associated with it lose their regulative nature. The demand that such conventions be
adhered to is imposed externally (as in standardised forms of a language) but is not inherent
in the discourse itself. A discourse can be enacted in ways that do not conform to
conventions believed to characterise previous instances of it. That two utterances do
therefore belong to the same discourse, and that a community does persist over time is
dependent on them being posited as such; there is no intrinsic continuity or ‘sameness’.
This positing is precisely how Bakhtin describes the centripetal forces he argues are central
to language. Centripetal forces “are the forces used to unify and centralise the verbal-
ideological world” (1981 p. 270) but “a unitary language is not something given but is always
in essence posited” (p. 270). Although Bakhtin prevaricates between viewing centripetal
forces as intrinsic to language and as a contingent imposition, the positing of a unity in
language implies an imposition, with the consequence that the discourse or a community
marked by a unified language is not in possession of its identity, since it is posited from
outside. Zizek takes a similar view about personal identity, arguing that the fundamental
sense one has that one’s identity is ‘me’ and is ‘mine’ is fundamentally a delusion (Zizek,
1990 p. 251). This uncertainty of identity which makes possible the transition from ‘one
identity to another’ (Kristeva, 1980) is central to the discussion in the following chapters on
the process of students’ engagement with legal discourse.
In this chapter, I first discuss genre with respect to the concept of addressee, in order to
argue that genre can be understood in terms of relatedness between interlocutors rather
than in terms of form. I then proceed to comment on students’ orientation towards their
addressee to show that the addressee is always a compilation, and consequently genre has
permeable borders, and as such exists in its instantiation. I then consider in particular the
introductions of one student to explore more closely how his construction of his addressee
impacted on his text. I argue that this addressee is not so much a typified addressee but one
35
which emerges from the student’s interactions with his reader in light of the institutional
and disciplinary contexts as understood by him in that context. In other words, the
addressee is dialogically constructed and highly personalised.
3.2. Text structure and genre
Text structure is something the student must produce, whereas genre refers to the type of
utterance their text constitutes. Thus for Bakhtin, while “language is realised in the form of
individual concrete utterances by participants in the various areas of human activity” (1986,
p. 60) it is “compositional structure” more than linguistic choices (lexical, syntactic etc) that
above all reflect the “specific conditions and goals of each such area”. These compositional
structures are conventionalised: “each sphere in which language is used develops its own
relatively stable types of these utterances. These we may call speech genres” (Bakhtin 1986,
p. 60, italics in original translation). The individual who produces an utterance in speech or
writing always has a plan or speech will (p. 77) and necessarily has recourse to “a generic
form in which the utterance will be constructed” (p. 77). “The speaker’s speech will is
manifested primarily in the choice of a particular speech genre” (p. 78). Genre use is
therefore inevitable: “all our utterances have definite and relatively stable typical forms of
construction of the whole”. Consequently, “when the speaker’s speech plan with all its
individuality and subjectivity is applied and adapted to a chosen genre, it is shaped and
developed within a certain generic form” (p. 78).
An utterance is inevitably social, but there are two levels of sociality at work here. The first
lies in the social construction of generic forms through which the individual is enabled to
produce his/her own utterance. The individual in this respect must occupy a position which
is already constituted; he/she speaks through the genre and his/her plan and purpose are
given by the socially constituted possibilities available to him/her and which are realised
through the relevant genres. In this respect speakers/writers working within a specific genre
occupy the social position which the genre marks and produces. Nevertheless, this position
is taken up on different contingent occasions and thus Bakhtin speaks of the nuance that
each utterance brings to the language/genre used. This nuance represents the individual
36
mark as such and is linked to style (1986, p63). However, style “does not enter into the
intent of the utterance” and is “an epiphenomenon of the utterance” (p. 63). An utterance
therefore is at the fundamental level a reproduction of socially established genres and
conventions already in place. In this respect genre acquires a relatively stable, non-
contingent dimension which imposes on the individuals engaging in specific areas of use,
rather than continually and contingently emerging from ongoing interaction. In light of this,
engaging in discourse can be viewed as a matter of acquiring existing conventions and
practices. For example, Kamler and MacLean (1997) look at the ways in which first year law
students are inducted into the practices of legal thinking and writing. It is through the
gradual induction into practices that students assume the subject position of a ‘lawyerly
subject’. Following Bourdieu, they argue that the disciplining of the mind involves a
disciplining of the body, of producing the right habitus; “becoming a lawyer is constructed
as involving sets of attitudes and actions completed upon and through the body” (p. 192)
and thus cannot be reduced to cognitive understanding alone.
However, there is in Bakhtin a dimension which is more radically historical than this account
of genre implies, and thus a dimension which introduces greater contingency into the
process of writing. This is organised around the responsiveness and addressivity of
language. For Bakhtin, “each individual utterance (which a text is) is a link in a chain of
communication” (1986, p. 93) and this chain is constituted not by repetition of form, but by
responding to past utterances and addressing an anticipated reader: “from the very
beginning , the utterance is constructed while taking into account possible responsive
reactions, for whose sake, in essence, it is actually created” (1986, p. 94). This “quality of
being addressed to someone” is “an essential (constitutive) marker of the utterance” (p.
95). This chain exists because for Bakhtin an utterance necessarily is a response to past
utterances, and necessarily is addressed to an ‘other’ whose anticipated response shapes
one’s own utterance. Consequently, while generic forms may become stabilised, and may
be imposed upon students, they nevertheless are a consequence of such responsiveness and
addressivity which persist in being active. This implies that stable structures are a secondary
phenomenon, and interlocutors, in so far as they are caught up in responding to and
addressing one another, may do things differently. The communicative event rests for its
37
success more primarily on this responsiveness and addressivity, and in this regard genre can
be viewed as a secondary phenomenon. Rather than ‘sameness’ constituting the basis of
communication, it is now difference, since addressivity accentuates precisely the
separateness of two interlocutors, and it does not require they occupy the ‘same’ social
space that genre does. Thus, the point to make is that while we may well speak of the
‘same’ social space being occupied by different individuals (eg students writing essays for a
law lecturer), differences also cannot be ignored.
The role of ‘difference’ in language use has been conceived in different ways. Ramanathan
and Atkinson (1999) for example view the emphasis on ‘individual voice’ in one tradition of
language teaching as a particularly western cultural-centric understanding of language use
and of writing in particular, and argue that L2 teaching should indeed focus on teaching
conventions of use. Others argue that literacy uses are more radically situated (eg Barton et
al 2001) despite acknowledging that the situatedness of literacy is always framed by broader
social-discursive structures within which one makes use of the resources available to one.
Thus, while Maybin states that the “relationship between different contextual layers of
meaning is actually the crux of the argument” (Maybin 2000, p. 200) about the situated
production of meaning, she also argues that we understand situated literacy activities by
exploring “how the meaning of specific literacy events relate to broader social structures
and processes” (p. 207). In this sense there is a return to the overarching stabilities within
which a writer/speaker works to engage in communicative activity of specific sorts. It is not
clear how abstract structures are reproduced if they are only known through the
“relationship of different contextual layers of meaning” for the dialogic relationship
between them cannot guarantee more abstract “structures and processes” will be
reproduced. The regulating of situated literacy activity is unclear. Threadgold (1997a) also
speaks of the heterogeneous resources an individual brings to any act of communication
ensuring the possibility that a text can always ‘go astray’ (1997a, p. 103), although she
argues that nevertheless, underlying this heterogeneity are ‘huge stabilities’ which ensure
the fundamental reproduction of social-discursive practices (Threadgold 1997b). However,
for Threadgold reproduction of such stabilities occurs because the reproduced practices are
embodied, rather than being abstract social structures one ‘relates’ to. Thus, while she
38
argues genre should be seen as a process rather than a product, this making and re-writing
which is always entailed is nevertheless heavily constrained.
Critical approaches too can be argued to work ultimately with a view of a subject who is
engaged in reproduction rather than critique. This is because they deal with entities (eg
discourses, identities) which are discrete, rather than fluid or ‘in process’ (Kristeva 1986a).
The encouragement to resist a discourse in fact reinforces the positivity of such discourses,
retaining its status as constitutive of the world one is engaging with and resisting. This
constitutive nature of a given discourse is not, in the final analysis, something to be
overcome. Thus, Clark and Ivanic (1997) seek to empower students to write differently, yet
caution that there are certain limits to how far they can go. Thus, “for student writers, there
is a fine line between sounding appropriately authoritative and overstepping the limits of
their authority” (Clark and Ivanic 1997 p. 156). In this view even a critical approach must
remain within certain fundamental boundaries already established and which the
discourse/genre represents and enacts, and consequently even a critical approach to writing
must remain ultimately a reproduction of that which is already established. This is in part
the nature of Butler’s critique (1997a) of Bourdieu’s theory of habitus which Butler argues is
essentially a “conservative account of the speech act” (p. 142) and a theory of social
reproduction rather than a theory of social change.
This raises questions about the nature of student participation in disciplinary discourses.
Approaches to academic writing are historically overwhelmingly oriented to ‘reproduction’
and teaching students the existing conventions, and the difficulty in shifting from such a
view is suggested by those such as Clark and Ivanic who attempt to open up a more critical
approach to academic writing. Yet students such as these in this study approach their
writing with very uncertain understandings of what is required of them, and how to produce
their texts. Therefore, given the importance Bakhtin attaches to addressivity, in this chapter
I focus on the effect of ‘addressivity’ on the construction of their texts. I look at the way the
particularity of their situation provides a platform from which they produce their
text/utterance, invoking at times conventions they have learnt or internalised, but also
seeking to participate in a communicative activity that still remains beyond them in some
39
ways. It is this moment of ‘going beyond’ that is of particular interest, where the student
cannot draw happily on already internalised practices to produce their text.
3.3. Genre as abstract or concrete
For Bakhtin, genre is characterised by its purpose rather than its form. This view is shared by
other approaches. Systemic functional linguistic (SFL) approaches to genre also stress the
purposeful, social nature of genre. Eggins (1994) defines genre as “the staged, structured
way in which people go about achieving goals using language” (p. 10) and genre therefore
reflects “the impact of the context of culture on language” in “the staged, step by step
structure cultures institutionalise as ways of achieving goals” (p. 9). Thus genres become
established, conventionalized and encode specific meaning as they come to represent
specific practices of a community (eg see Ramanathan and Kaplan 2000). For Martin and
Rose (2007), “genre is a staged, goal-oriented, purposeful activity in which speakers engage
as members of our culture”. For Christie (1999 p. 760), genre in SFL represents “staged,
purposeful activity”.
However, it is clear that in so far as the purpose can be achieved only through generic forms
available to the individual, purpose itself is constrained by these genres. For Bakhtin this
relationship is central; one acquires genre through participation in specific social activities,
and thus the individual is fully constituted within the purposes and social activities which are
achieved through language. Such socially constituted purposes become one’s own because
they are formative of who one becomes. In this respect genres are very concrete,
constituting and providing the means of achieving the specific activities one participates in.
Nevertheless, genres are also abstract. Hyland (2002), in summarising the view typically held
across various theoretical perspectives on genre, states that “genres are abstract, socially
recognised ways of using language. Genre analysis is based on two central assumptions: that
the features of a similar group of texts depend on the social context of their creation and
use, and that those features can be described in a way that relates a text to others like it
and to the choices and constraints acting on text producers” (p. 114). He adds, “Language is
40
seen as embedded in (and constitutive of) social realities, since it is through recurrent use
and typification of conventionalised forms that individuals develop relationships, establish
communities, and get things done” (p. 114). Consequently, “genre theorists locate
participant relationships at the heart of language use and assume every successful text will
display the writer’s awareness of its context and the readers which form part of that
context. Genres are then ‘the effects of the action of individual social agents acting both
within the bounds of their history and the constraints of particular contexts, and with a
knowledge of existing generic types’” (p. 114, with the quote from Kress 1989).
The abstract nature of genre is shared by SFL theory. Language behaviour always occurs in
both a ‘context of culture’ which shapes genre, and also ‘context of situation’ which shapes
register choices (of field, that is, what is being talked about; of tenor, that is, who is being
spoken to; and mode, that is, the way in which language is being used – face to face speech,
over the phone, writing etc: see Eggins 1994). In order for language to be used systemically
at both genre and register levels, there must necessarily be levels of abstraction involved
and in particular, “genre, or context of culture, can be seen as more abstract, more general”
(Eggins p. 32).These abstract contexts themselves, however, because they are not
empirically given, must be a discursive construction which in its own turn one must come to
learn in order to recognize two concretely different situations as amounting to the ‘same’.
This ‘sameness’ of context and shared by instances of the genre is therefore supported by
an external meta-discourse which constructs context, rather than empirically given by
context and genre. As Derrida (1988) argues, while context is indispensable to language use
it is also illimitable; what counts as context requires a judgment, and a judgment by its
nature cannot be reduced to following a pre-given rule.
A problem therefore is to understand how a student in a very concrete situation which is
experienced in its immediacy is linked to these abstract entities that Eggins refers to as
central to writing.
Miller (1994a) has been instrumental in shifting the view of genre away from settled stages
and moves to genre as process. She shares the view that genre should be understood in
terms of “the action it is used to accomplish” (p24) rather than its form. Threadgold also
41
argues that genre should be viewed as “processes, poiesis, not products, and constantly
subject to negotiated constraint and change” (Threadgold 1997a p. 97), although she makes
clear that such action is constrained even if negotiated. Nevertheless, how these constraints
act on the writing subject remains an issue. The question is whether these constraints are
established forms and practices one negotiates, or more to do with the relatedness that
addressivity foregrounds. For Miller, a central issue is “how to understand the relationship
between, on the one hand, the observable particular (and peculiar) actions of individual
agents and, on the other, the abstract yet distinctive influence of culture, a society, or an
institution” (Miller 1994b p. 70).
Miller attempts to reconcile individual action with the abstract nature of genre through
appeal to Giddens’ notion of structuration. She argues that “comparable situations occur
prompting comparable responses” which then “tend to function as a constraint on any new
responses” (Miller 1984a p. 25). This raises the question of what constitutes comparable or
recurrent rhetorical situations (p. 28). Recurrence cannot be understood in materialist terms
(eg the ‘same’ material events) nor in terms of perceptions, since perceptions by different
people will always differ (Miller 1994a p. 29). Thus she suggests “recurrence is an
intersubjective phenomenon” (p. 29) and “situations” “are the result of definition”. Central
then is interpretation, through which we collectively create typifications (p. 29). “What
recurs is . . . our construal of a type” (p. 29). Genres consequently are “typified rhetorical
actions based in recurrent situations” (p. 31), that is, they are discursive constructs. They are
middle-level between the micro-level of cultural-linguistic phenomena (sentences etc) and
the macro-level (culture etc) (p. 68). Following Giddens’ account of the relationship
between social structures and individual agency, Miller argues that genres, like structures,
consist of both rules and resources (p. 70), and thus as one takes up the resources available
to one, the structures or larger institutional rules embedded in them are reproduced. This
however does not mean genre is primarily structure for Miller. Rather, genre is embedded
in social action. Genre is the means by which individuals engage each other and an
utterance is always addressed to another (p. 72 citing Bakhtin). Consequently, genre is first
and foremost part of social action rather than the instrumental reproduction of a form. But
this does nevertheless require, as Miller acknowledges, that the participants must already
42
have a grasp of these ‘virtual’ structures which exist only through instantiation (p. 71), yet
this is often what students say they are not in possession of. For Miller then, the
addressivity is already ‘disciplined’ in specific ways, whereas for students constraints they
experience are more heterogeneous and less disciplined.
Miller suggests that the kind of knowledge needed to reproduce these structures is not
cognitive, for “the structures are largely tacit” and “matters of practical knowledge that are
mutually held by members of a society” (p70). This still requires that students have already
been inducted into such practices, along the lines Bourdieu (1990) argues habitus entails.
Bakhtin, in contrast, provides another way of thinking about the kind of knowledge a person
draws upon to construct a text or an utterance. A person responds to previous words, and
while patterns of use may emerge over time, which participants in specific kinds of activity
come to accept as conventionalised ways of doing such things, for Bakhtin the emphasis is
not on the reproduction of a structure but on the responsiveness motivated by a situation in
which one wants to produce an utterance which is also always directed towards a purpose
and hence an addressee (Bakhtin 1986 pp. 91-98). This raises questions about what
constitutes a response and how it is recognised, and who the intended addressee
consequently is. For Bakhtin this does not require a well-formed idea of who the addressee
is, for it is inherent in the use of language. A word necessarily carries its history within it,
even though that history may be understood only in very small part by the user.
Nevertheless, even in that small part are resonances of past contexts and possible
addressees.
3.3.1. The ineffability of genre
This appeal to the stability of genre forms, and hence to the contexts in which they occur is
problematic. Threadgold (1997) points out that no grammars (metalanguage) produced to
describe a language can capture what is entailed in the system of language we actually
employ in the use of language, and the same applies to genre descriptions. The ‘grammatics’
we construct to describe language should not be confused with “the actual grammar which
is language itself” and which underpins the “ineffable experience of language itself”
(Threadgold 1997a p. 104, in reference to a discussion by Halliday 1983). We might argue
43
that ‘genres’ as represented by discourse and language analysts are products of the
analyst’s own discourse and interests, and can never be wholly faithful to that which is
produced in actual instances.
There are other limitations to treating genre as an abstract entity that can be taught to
students. Freedman (1994) points out two difficulties. Firstly, treating it as such presupposes
that the characteristic features of a genre can be adequately identified, but as with
descriptions of language, these presumably are never complete, and certainly there is no
sure way of knowing they are complete (1994, p. 198). Consequently what is taught will
always fail to describe the genre the student is being asked to take up. Secondly, teaching
the genre through the metalanguage used to describe it provides no guarantee the genre
will be taken up and enacted in the way that will be seen to produce the intended genre (p.
198).
As an alternative, Freedman suggests that acquiring genre parallels the acquisition process
which Krashen (1981) distinguishes from the learning process; while we might learn about
language/genre, and consequently employ rules we have been taught, these never become
the automated regulatory practices that underpin language (and genre) fluency. For
Freedman learning is a matter of “performance” (1994, p. 206), of engagement in relevant
genres and the development of a “dimly felt sense” (Freedman 1987) which she argues is
acquired at the unconscious level, “the unconscious inference of rules on the basis of
exposure to the target language” (1994, p. 198); “acquisition is achieved through the
intuition of rules at levels below the conscious” (p. 199). A significant difficulty here is that
while arguing that at the conscious level cognitive representation of the genre and the
learning based on such a representation will always be inadequate to the genre itself,
acquisition occurs through a cognitive understanding at the unconscious level. Thus she
speaks of students who, through exposure to genres, make appropriate inferences about
the patterns that are entailed in the genres they are engaging with (Freedman 1994 p. 196;
but also in 1987 where she argues law students develop a ‘felt sense’ of the genres they
must write in through exposure to and engagement with them). For Freedman, cognitive
understanding is central to this process, it appears, but now occurs ‘unconsciously’, in a way
similar to Krashen’s viewpoint. However, apart from wondering what such an ‘unconscious’
44
could possibly be, it is questionable that cognitive understanding, with all the deliberative
apprehension this implies, would be so much more effective and adequate unconsciously
than consciously. It is striking that while Freedman presents arguments to show that we
cannot know what a genre is in any definitive way, she nevertheless holds to the view that
genres do nevertheless exist as discrete entities, which we now acquire unconsciously and
experience consciously as a ‘felt sense’. However, it might be more plausible to argue they
do not exist in any discrete, neoplatonic sense, or at least, that knowing them in their unity
and completeness cannot be the basis of our making use of, or engaging with them.
Addressivity does not require that the object one engages with is known in this sense.
Kamler and MacLean (1997) reject this cognitive basis in Freedman. The ‘felt sense’ a
student acquires is not primarily a cognitive process of making inference and formulating
abstract rules, but, as noted above, one of acquired practices, a disciplining of the body
which the mind follows. The habitus and associated dispositions are bodily inclinations
acquired through experience which are not based on cognitive processing. Their study of
the acquisition of first year law students is an attempt to show how students
unselfconsciously are shaped by their encounters with the law school, at many levels, in
both their speaking and writing practices. In a similar way Threadgold (1997a) argues that
language is an embodied phenomenon, and the corporeal calcification (as it were) of the
individual’s semiotic history and the ‘huge stabilities’ (1997b) produced by this are most
evident in the ‘text function’ of the three metafunctions Hallidayan systemic functional
linguistics identifies as underpinning language in use. Nevertheless there are difficulties
with Bourdieu’s account of habitus. As Butler (1997a p. 156) and Calhoun (1995 pp. 142-
143) point out, Bourdieu’s account is one of social reproduction, and in accentuating
reproduction, the potential for change is greatly minimised. In Kamler and MacLean’s
account, the process is certainly one of acquiring sets of practices that have already been
established, and as such learning is fundamentally a matter of putting aside what one
already brings to the discourse. There is little scope here for the fundamental role Bakhtin
gives to ‘responsiveness’, to the dialogic relationship between discourses and to the
practical engagement this requires of the learners as they bring to the learning their own
45
histories and understandings and thus contribute to the construction of the discourse they
are learning.
Student essays written for assessment function in a context where the ‘community’ in
certain respects can be said to have permeable boundaries. The addressee the student
writes for can in fact be both multiple (as I shall suggest below) and indistinct and therefore
in need of construction by the student. In addition, the view that the student is being
inducted into a unitary writing context (disciplined-academic) can be questioned since, as
Lea (2005 p. 193) points out, the context of writing for students is primarily one of
assessment, not the disciplined context of addressing fellow experts. In this sense, the
purpose of a disciplined argument (to persuade a typified/specific addressee) is actually no
longer at stake, since the assessor does not read the text as an act of persuasion by a
participant within the relevant community, but as a demonstration of the student’s
understanding. As Freadman points out with respect to simulation activities in a language
classroom, what is at stake in the activity being simulated is no longer at stake (Freadman
1994 p. 48). Similarly, Freedman points out that the moment a genre belonging to real-
world activity is introduced into the classroom, it becomes something else (Freedman 1999).
While the genre as such can be agreed upon (a student essay written for assessment) this
genre is attributed to the student essays regardless, at least to a considerable extent, of the
features the students’ texts demonstrate. The genre exists because it is attributed to the
text. That is, a text will be read by the assessor as addressed to them, and it will be
responded to as a text to be assessed. Any demands for conformity will be imposed from
within this context, and the context of assessment implies variability is assumed. In the rest
of this chapter I will identify significant features of context and addressee for students,
drawing on both their texts and interviews to do so.
3.4. Student construction of addressee, context and text
The above accounts of genre and addressee tend to speak of the addressee in the singular.
However, student writing itself might be viewed as having multiple addressees, sometimes
46
contradictory. For example, while students are clearly addressing an assessor (the dominant
and usually sole reason for writing and keeping to certain constraints), they are also
engaged in representing themselves as a lawyer. For Kamler and MacLean (1997), during the
study of law “a law student subjectivity and a lawyer subjectivity are being shaped” (p. 179).
However, in students’ writing this may sometimes entail contradictory positions. Minh for
instance wrote an exam answer for the International Sale of Goods which required him to
‘advise a client’. While the client was imaginary, in such tasks the student may either
assume the position of a lawyer addressing the client, or as a student addressing his
assessor, or both. However, who one addresses has implications for ‘person’ (does one
address the client directly in the second person, or refer to him/her in the third person),
register (does one speak in lay language to the client or ‘legal jargon’ to demonstrate a
grasp of technical language for the assessor) and questions about referencing (does one
reference to demonstrate to the assessor one’s use of authority and so on, or does one
exclude references as one would when writing for the client?). Such a task is a good
example of ‘the stakes underpinning the task no longer being at stake’ (Freadman).
Interestingly, Minh moved across these to some degree, sometimes addressing the client in
the second person, sometimes referring to him in the third person. How significant this
might be will vary. In this instance, his lecturer commented that “I haven’t really thought
about the problems that [students] will face” (ISG EL60) in this regard, suggesting Minh had
a choice of addressee. In some cases an amalgam might be created (of assessor and expert)
but as Lea and Street point out (2005), the precise demands placed on students will vary not
only from discipline to discipline but from department to department and person to person,
and for this reason they argue writing should be understood in its “institutional and
epistemological context” (p. 158) rather than in terms of achieving mastery of specific
generic skills. Consequently, who the student writes for can be never fully finalised, not only
as an actual addressee, but also in its typified forms. For L2 writers, the approximations of
who this addressee might be are usually even more ill-defined.
3.4.1. Student sense of addressee
Students construe their addressee in various ways, and I consider some of the salient factors
below.
47
3.4.1.1. The institutional reader
In certain respects students have a clear sense of who they are writing for. For example,
they write an essay which is motivated by their institutional position as student and the
demand that they write an essay for assessment. This institutional context provides the
‘exigence’ that sets in motion the writing itself and for Miller this means they engage in “a
mutual constructing of objects, events, interests and purposes that not only links them but
makes them what they are” (Miller 1994a p. 30). Their status as students appears to be
core. Most, and especially the most pressing comments by students on constraints they felt
on their writing can be linked to that status (in addition to responding to the demand they
write, they also list constraints of time, word count, topic, warnings on plagiarism and so on)
and which are experienced as dominant, indeed over-bearing criteria they had to meet, with
time limit and word count as hindrances to completing the task well. For example, Thuy said
that if she had had more time and words she could do a better job (CL T168, 1HR T207).
These constraints were very clear and very prominent for all the students. They clearly
perceived a reader who would be assessing and judging them, and meeting these
requirements were, amongst others, experienced as powerful demands placed on them.
Nevertheless, precisely what this meant for their position as student, that is, what ‘student’
meant for them could vary, as also therefore would their construction of who their
addressee is. Indeed, one of the students (Narin) viewed his institutional reader/addressee
as a tricky kind of person, seeking to ‘deceive’ students in the way she set tasks (2BL N18;
2BL N180). Constant therefore is the signifying of themselves as ‘student’, but the
meanings/signifieds attached to this word might vary considerably, in the same way I have
suggested student texts might all be labelled as examples of the genre ‘academic essay’,
while the actual form and substance, and indeed how the texts are read by different or the
same assessor (I discuss this more closely in Chapter 5) may vary considerably.
3.4.1.2. The supposed reader
Students also had views on who they should write for, conceived usually with respect to the
disciplinary content, although these also varied. Thuy remarked that she had been taught in
48
a five-week pre-enrolment bridging Academic English course that she should write her
assignments
for the professional people. So don’t go on the detail, or the issue. You don’t have to explain
everything. So I just think of that from the first semester, up to now [right]. Write
something for the professional people” (CL T166).
Her lecturer in contrast acknowledged that judging what information or detail to include or
leave out of an assignment and what can be taken for granted by the reader is difficult for
the student writer. She suggested that “you should write for, basically, someone who knows
nothing” (HR SJ30), but she immediately added “That can’t be the case. I mean, you’re not
going to have every human rights essay go back to first principles” and she goes on to
suggest such decisions are more epistemological in nature and to do with coherence issues,
rather than what the reader can be expected to know. This is consistent with Lea and
Street’s argument (1998) that writing needs to be understood “as an aspect of the whole
institutional and epistemological context” (p. 158) rather than as the application of discrete
skills or a process of academic socialisation. Nevertheless, for this lecturer the student’s
addressee remains unclear.
Thuy had stated earlier, when asked who she wrote for, that she wrote for “Somebody like
me” (CL T108) and went onto explain that “Because I’m not sure what the lecturer expects
from us” (CL T110) she included in her essay background material she needed in order to
understand what is at stake “before going deeper into particular issues”. The perception
that one writes for ‘professional people’ gives way in practice to writing for ‘someone like
me’. This ‘me’ is indicated in various ways by her text (even though Thuy ‘borrows’ heavily
from sources) and important to mention here is that Thuy, of all the students, had
expressed most strongly a desire to understand and become a subject of the common law
she was engaging with. Thus while Thuy still addresses her institutional reader, she is also
engaged in a process of constituting a disciplined reader, a position which she places herself
in. There is in this sense a process of transformation of Thuy as writing subject which takes
her beyond the instrumental approach to study more commonly expressed by the other
students, in which their position of ‘student’ predominates and remains relatively well
49
entrenched. In light of this process, we can give a particular reading to Thuy’s feelings after
handing in her Human Rights paper:
I didn’t know she assess the assignment. The way she assess it. I didn’t sure about the result,
but I still feel satisfied with this . . and it doesn’t matter how the result is [laughs] (1HR
T255).
She reiterates that she does not know how the lecturer reads student papers, but because
she is satisfied with it, she is not worried about the result (she received an HD and her
lecturer was very complimentary about this essay). Her position as ‘student’ and the relative
importance this places on her reader as assessor have lost some of their significance as Thuy
has now created a text that satisfies a reader in need of certain kinds of explanation, certain
kinds of background information and explanation and so on. Thuy has managed to create,
through her work with sources, a place in the discourse for herself which before she did not
have, and which displaces to some extent her position as ‘student’ who is subject to
institutional demands. I discuss this formation of Thuy as ‘disciplinary subject’ further in
Chapter 6, but I will simply foreshadow that discussion here by also noting that Thuy had
little commitment to the actual position she developed in her assignment. Her commitment
therefore is not to the outcome of this process (establishing some ‘mastery’ over the
discipline and demonstrating to her reader she understands the issues and can develop a
position well) but her satisfaction is more with becoming a subject of the discipline, and this
pleases her; the actual position developed is quite secondary to this. Thuy’s text is organised
around that which is necessary for her understanding, and while her text is written under
the constraints of the broader institutional demands/addressee, and while its structure may
draw on what she had been taught in academic English classes about ‘forms’ of essay, she is
also adapting and changing what she was taught in order to produce a text whose features
of structure address her own needs as she grapples with her perceived ‘lack of background’
(1HR T44). For instance, with regard to how to go about her writing, she says she had been
taught to do the research and develop an outline, then “Stick to that and start writing. And
it didn’t work with me” (1HR T136). She was finding her own way.
50
Thuy also mentioned that she would have liked more time and words for her competition
Law assignment, because “I want to go deeper inside” (CL T74). The interviewer then stated
that it seemed to him that Thuy wanted more words in order to “to get your position
worked out more clearly” (CL T81). He then asks if this is so or whether it is because she
wants to show the extent of her reading. She replies “No, I don’t want to show, to show off.
Yes, I just want to explain it carefully” (CL T82). Again there is a sense that the institutional
addressee loses significance as she struggles with addressing the discipline and thereby
constructing a place for herself within it.
This formative process for Thuy as disciplined writing subject and of finding/constructing her
addressee is also suggested elsewhere where she says “writing in English, it helped me mm
to clear my mind and help me mm clear the structure of my writing” (2HR T60). The process
of becoming a disciplined subject is entwined now with her engagement with English (again,
Chapter 6 discusses her ‘desire’ for English), even though this can be never fully separated
from her position as student and her awareness of her institutional addressee:
when I write I also show that I understand about what this section means before to
evaluate as an issue relate to this topic [mm]. That’s shows the teacher what I
understand in this course, I guess so” (CL T112).
It is important to note that who Thuy is ‘becoming’ is created through her engagement with
her sources, and is not becoming the disciplinary subject position her lecturers/assessors
occupy. They have engaged with the legal contexts that have given rise to such source texts
and to which the texts are addressed. Thuy does not have this familiarity, and in this sense
Thuy engages with the texts rather than the discourses (see the distinction Widdowson
1995, 2004 makes between text and discourse) and this process occurs for Thuy within the
institutional context. As Lea (2005) makes clear, students cannot be viewed as novices in
their discipline because the context of their encounter with it is in many respects ‘non-
disciplined’. Their disciplinary position and the sense of disciplinary addressee is
constructed, rather than pre-given and towards which they work.
This sense of writing as part of a process of ‘becoming’ was far less pronounced in the other
students, who, although developing a position which, in Narin’s case was strongly held,
51
nevertheless conveyed a stronger sense of a stabilised student self and institutional
addressee. Narin spoke of organising content and including information because “I think it
showed that at least I do some research” (2BL N98), and Minh spoke of discussing certain
issues because his sources did (IP M54). They admitted that the coherent integration of that
material into their text was not a priority, and in this regard the material satisfied a
perceived, pre-given institutional addressee and privileged their own concomitant position
as student needing to perform in this particular way.
Another student, Kanya, had a different view of her addressee. For her it was an expert who
already knew much. Her reader, she said, wanted
more of my point of view, more of the my understanding rather than explain the law itself,
you know, like, I mean, the lecturer already know the principle of the law, maybe they, I
think most of them want to listen to hear our opinion” (OiP K62).
This was difficult to do because although “it’s not hard to explain what I’m been thinking
but it’s hard to find the right information to support my idea” (OiP K66). The emphasis here
is on presenting to the lecturer something new which is an expression of the student rather
than emerging from the discipline itself and the resources available to her. Having an
opinion is not hard: finding support for it is, which suggests to some degree the opinion is
formed independently of the resources. The student is very much aware that she is being
assessed, a ‘self’ not fully aligned with the disciplinary position she might occupy.
Who the addressee is therefore is quite complex and is an amalgam of varying addressees.
The sense of who their addressees are, and hence of who they as students are as writers,
shifts at different points in their texts and in their discussions of their text in the interviews.
This amply demonstrates the heteroglossic discourses that contribute to the sense students
have of who they are writing for, and of the difficulty – the contrivance – that is involved in
producing a ‘unitary’ writing voice amidst that heteroglossia (Stronach and Maclure 1997).
The view that there is a unitary addressee a student addresses, and a unitary genre that
students must produce, is clearly problematic. Because of this variability, and because
ultimately, I have suggested, as demonstrated by Thuy, the constructed nature of one’s
addressee, text structure and the genre one’s text belongs to always remains unfinalised.
52
However, it is equally clear a text must belong to a genre. We have something here of the
paradox of genre that Derrida points to (Derrida 1980). This returns us to the ineffable
nature of genre. Genre is posited, rather than inherent, and the attribution of a genre
always imposes on a text something not inherent within the text itself. The designation of a
text as belonging to a certain genre constitutes it as such, and this designation can never be
entirely ‘called for’ by the properties inherent in the text. Genre is performatively
constituted in its identity as such, which, as Butler (1997a) argues, always leaves open the
possibility it can be performed differently.
I will now look at examples of the introductions to two essays written by one student
(Narin) to show how the form developed within the introduction is shaped by a knowledge
of the academic essay genre (for instance, that they do indeed have introductions, and that
they introduce the text) but that its development is organised around the construction he
makes of quite a specific reader. That is, the form of the text emerges out of abstract
knowledge and concrete experience, with the latter dominating the precise way the
abstract form unfolds.
3.5. Context and addressee suggested by a student’s texts
The introductions are of particular interest because they generally indicate most markedly
the position the writer occupies and also indicate something of their addressee, both in
their content and in their form. Swales suggests the introduction is the most difficult part to
write of a research article (Swales 1990 p. 137) because it presents the writer with
decisions to be made about stance, about how much background knowledge to present,
about how authoritative a position one will assume and so on (Swales p. 137). All these are
to do with the constructions the writer has of self and of the perceived reader. In effect, one
could argue the introduction of an academic research essay most succinctly captures the
most fundamental features of the genre, since it represents decisions about the author-
addressee that will underlie the rest of the essay. It is in effect a statement about this text,
and so it is also the point in the text perhaps where the enunciating subject feels most
acutely their responsibility for the text.
53
3.5.1 Narin’s introduction to his ‘Law of the Internet’ assignment
The 134 word introduction to Narin’s 4,000 word ‘Law of the Internet’ essay reads as follows
(P2P refers to ‘person-to-person’):
This paper will discuss the statement of Bowrey with following steps. Firstly, this paper will
explain generally the operation of P2P file sharing network. Secondly, I will look at the
existing law which is a legal constraint regulating P2P file sharing. Thirdly, I will describe why
P2P file sharing has been used widely, which makes the music industry has to respond in
order to protect their interest. Next part of this paper will discuss the case in the U.S and
Australia. In this part, this paper will show how the court in the U.S and Australia deal with
applying copyright laws with P2P file sharing networks. Finally, this paper will discuss the
consequence of the litigation against P2P file sharing distributors and determine whether
the courts have the consistent view with Bowrey or not. (See appendix A for the task set and
the complete essay)
The first striking feature is the brevity of the introduction, and then its content, which
consists solely of an outline of what the essay will do. This is not a typical ‘introduction’ to
such a research essay, as described by Swales and Feak (2004 p. 24). For them, the
introduction of a research paper typically consists of three moves: ‘establishing the
territory; ‘establishing a niche’; ‘occupying the niche’. The structure of this introduction
presupposes a reader of a very particular kind. In following only the third move Swales and
Feak outline, Narin implies a specific view about what his addressee needs to know.
The structuring of this introduction strongly suggests the importance of his actual
encounters with his lecturer, his addressee being constructed from these experiences. Narin
contacted his lecturer in order to confirm he was interpreting the question appropriately
and to seek further advice (LI N74). He met her face to face on two occasions where the
lecturer was able to direct Narin in a number of ways. She commented that
I actually remember him very well which is unusual because um, this subject is taught
entirely on-line and so often I don’t get to see, or talk to the students at all, but he actually
came to see me, at least once, I think it is probably more like twice. So I spoke to him. So it
54
was unusual in the sense that I had more contact with him than I have with the majority of
students that do this subject (LI MZ2)
It is clear from further comments she made that when assessing his final text she had in
mind these meetings and was continuing the dialogue that came out of them. Narin too, in
explanations he gave for features of his text and in reading the comments his lecturer made
on his final draft refers to these conversations he had with her (these points are elaborated
further in chapter 5). It is quite clear that the dialogue extends beyond the face to face
meetings to the writing of his text and the assessment of it. Both can be said in this sense to
be engaged in a ‘rhythmning’ that Taylor (1995 p. 172) speaks of through which the rules of
Narin’s writing are being constructed.
The concrete engagement Narin has with his lecturer produces a context within which a
sense of what is called for arises. He writes to that context, and his lecturer’s response
suggests she shares this context when reading his text. He writes for a particular addressee
which in this context his reader identifies with. This is an addressee who knows the task he
is dealing with (she set it, and they have talked about it together). What she does not know,
however, is the structure and development he will give to his text, and so this he outlines. In
this respect his text is another turn in the discussions he has already had with his lecturer. In
this way Narin narrows the community for whom his text is written (Martin and Rose 2007,
p. 305) limiting it to his lecturer and himself, a community which his lecturer in fact
perpetuates in the way she responds to his text (I will discuss this further in chapter 5).
There is then a shifting in Narin’s positioning on the concrete-typified spectrum within
which he writes, which demonstrates that context itself is very fluid. (See Widdowson
(2004) in his critique of linguistic perspectives that treat ‘context’ as something given;
Maybin (2005) on the situated and hence constructed nature of context). This sometimes
facilitates an approximation towards more typified ‘disciplinary’ practices (the practices of a
‘lawyerly subject’ in Kamler and MacLean’s terms) and other times towards the more
immediate, concretely-experienced world the student is writing within which nuances what
he is writing about.
55
This addressee may not be clearly conceived as such by Narin, of course, but the structuring
of this introduction does not come from nowhere. For Bakhtin, a genre has “its own typical
conception of the addressee, and this defines it as a genre” (1986 p. 95), and certainly Narin
has some recognition of this typified addressee in the very act of writing an introduction for
his text. But a typified addressee is rather abstract. Miller (1984b p. 57) states that “for the
student, genres serve as keys to understanding how to participate in the actions of a
community” as they mediate between the micro level of language processing and the macro
level of culture (1984b p. 68). But the application of an abstract formulation in a particular
occasion always entails some uncertainty, argues Taylor (1995 p. 176-7; see also Derrida
1990, p. 961) and at such a point the rule has to be constituted, which goes beyond the
instancing Miller speaks of. It is such a construction that I suggest Narin is engaged in,
through the relationship with his lecturer and to which his lecturer contributes.
3.5.2. Comparing the introductions of two of Narin’s assignments
We looked above at the introduction Narin wrote for his ‘Law of the Internet’ assignment,
which he wrote in his second semester, and I suggested that the context within which he
wrote and the reader to whom he addressed it were created out of his interactions with his
lecturer as well as by his understanding of the institutional demands placed upon him. In his
Banking law assignment, which he wrote in his first semester, we see a different structure to
his introduction. The introduction is as follows:
It is not true to state that the robust characteristics of e-money will be discouraged by
means of policy after the 9/11 event. This is because, since its inception, the so termed
robust characteristics of e-money have been suspect. Moreover the suspect characteristics
of e-money have been questioned before the 9/11 event. As a result the implication of the
9/11 event has revealed what the trend of the development of e-money should be, rather
than changing the trend. The first part of this paper will discuss the suspect characteristics of
e-money. The second part of this paper will provide e-money regulations and examine the
implications of the 9/11 event in the United States of America, the European Union and
Thailand.
56
This introduction is also brief (139 words introducing an essay of 3,707 words) but it begins
by rather abruptly stating his answer to the task set, followed by a summary explanation of
why he holds this view, before once again outlining what he will do in his essay. It reads as a
coherent whole, but striking is the register as well as its structure.
Narin had no interaction with the lecturer for this subject, other than in seminars. He stated
that the seminars were difficult (she asked questions rather than explained things), and so
she was perhaps following the typical ‘Socratic’ style of teaching law schools often declare
to be their preferred mode of instruction (eg see comments on this by Mertz 2007, p. 26
and Kamler and MacLean, 1997 p. 182). He also stated she was “biased” (2BL N124) in that
she covered arguments for the point of view Narin believed she supported but not for the
counter views. He also stated she tried to “deceive” the students in that the take home
exam students subsequently sat covered some of the same issues as this particular task
(although this was one of three tasks students could choose from) and he believed she had
deliberately set exam questions on the same topic in order to see if the students really
understood what they had dealt with in their essays (2BL N18).
The addressee in this introduction is again constructed in light of the experience Narin has
of his lecturer, and can be contrasted with his construction of his Law of the Internet reader.
In his introduction to the Law of the Internet essay Narin simply outlines his answer. In the
Banking Law assignment he opens by strongly declaring his position (“It is not true to state .
. .) and in doing so contradicts the position he believed his lecturer held. In speaking of her
perceived bias he said “she taught us that only one approach” and he says “I think the
lecturer, ‘why don’t you just teach me the other approach, you let me read a lot, why why
why?’” (2BL N124). Consequently, he adds, he thought “Oh come on, write something
against her” (2BL N124). He feels a desire to oppose her, and further shows his opposition
by describing what she describes as ‘robust’ characteristics of e-money as “so-called”. His
statements are also categorical in nature; there is no hint in his introduction that there are
arguments for both sides. Again, as in the Law of the Internet assignment, Narin is
addressing directly the person in light of whom he has forged a position. Thus while Narin
addresses his lecturer as institutional and disciplinary reader (he produces an essay for
assessment on the legal issues asked for) this ‘typified’ reader is heavily nuanced by his
57
experience of the actual reader as he understands her. Thus there is an ongoing dialogue
with his reader. In the Law of the Internet there is an actual dialogue he is engaged in,
whereas in the Banking Law assignment it is an ‘inner’ dialogue he has with his lecturer. In
both cases, but more noticeably in the latter, this engagement with his reader is a bodily,
affective one, and not solely a symbolically constructed engagement.
Narin is working in ways that correspond well with the processes Bakhtin states are
involved in language use. As he engages with disciplinary material to meet institutional
demands his text is shaped by his encounters with the most significant representatives of
the discipline and institution for him, the lecturer, and it is in light of these encounters that
he constructs his addressee. But this does not of course expose him to the more ‘typified’
addressee both Bakhtin and Miller refer to. This leaves open the question of what
constitutes “the process of typification (through which) we create recurrence, analogies,
similarities” (Miller 1984a p. 29) not only of genre but also of addressee.
3.6. Conclusion
Typification presupposes that there are stable social events which recur. The difficulty with
this, which I have pointed to here, is that students are briefly engaged in the legal-academic
context in which they write, and as students from different legal and cultural backgrounds
they are involved in constructing what this ‘typified’ context might be in the actual contexts
of writing. All these students had indeed been introduced in formal EAP classes to the
abstract conventions of academic writing (register, generic structure and so on), but these
were taught in a writing classroom context removed from the actual contexts of such
writing (see the reference above to Freadman on the ‘stake no longer being at stake’) and
were non discipline-specific. Thus students were engaged in applying general typifications of
academic writing forms and practices to their specific institutional and disciplinary contexts.
I have shown that the construction of who they address includes specific beliefs (eg Kanya),
actual encounters (eg Narin) and the interests and desires a student brings (Thuy), all
contributing to this construct. I have drawn attention to the different weighting given to
58
institutional and disciplinary concerns in the cases of Narin and Thuy, although there is no
claim that this analysis provides in any way an exhaustive analysis of contributory factors.
The source of the force different factors have for the students is of interest, although that is
not something I have discussed here, except to hint that in Thuy’s case her engagement was
more strongly marked by a desire to acquire the legal discourses she was engaging with
rather than to make use of them to achieve already given ends, such as obtain a
qualification and so on, although clearly these too were present. This desire subjects her to
the textual representations of the legal discourse she seeks to acquire and impacts on her
enunciating position in ways more noticeable than with the other students. I discuss further
the cases of Narin and Thuy in Chapters 5 and 6 respectively.
Students are thus involved in producing their addressee and the appropriate text structure
that this addressee calls for. I haven’t explored in detail the unfolding of the student texts
but instead focused on comments students made and, as an example, looked at the
introductions one student produced. Indeed, closer look at the unfolding and development
of the texts would show similar patterns. All the students follow the basic structure taught
for essays (an introduction, the development of the substance of the text in which all these
students first outline the legal issues at stake in their topic, then provide ‘the answer’ (Minh)
to their set task, followed by a conclusion. Nevertheless, these are carried out differently by
the students along the lines I have suggested in this chapter. The development of each
section and the register they employ indexes their addressee, and in the two students I have
looked most closely at, Narin is heavily marked by his encounters with his assessor, and
Thuy is heavily weighted by her interest in engaging with the disciplinary discourse.
Students do not only write to an addressee but they also of necessity respond to past
utterances (Bakhtin 1986, p. 94), and in particular, in academic writing these are
predominantly the texts that constitute the discipline they are engaging with. It is this I look
at in the next chapter. In Bakhtin’s terms, I focus on the ‘responsiveness’ to the past uses of
language which are central to the production of their essays – their sources materials.
59
Chapter 4
Authoring text: Use of sources and the writing subject
4.1. Introduction
In chapter 3 I considered the construction of the addressee by the student writer and the
constraints this brought to bear on the student’s text. In this chapter I focus on the
student’s responsiveness to prior utterances. A response to a text/utterance is of course a
vast, very broad event. A response is shaped not only by the text itself, but also by the
context in which one engages with it. The levels on which a response occurs are many, and
in this regard responsiveness is regulated within disciplines. I show in my discussion of
Mertz (2007) and other legal writers the sorts of responses that are deemed to typify ‘legal’
reading and writing. This is not to do with formal features that typically represent certain
kinds of responses (the sorts of thing researchers into academic literacy often try to identify,
such as verbs of attribution [see Hyland 2005], citation practices [Hyland 1999], rhetorical
devices for developing stance [Petric 2007], and so on, which mark a ‘stance’ or ‘voice’). It is
more to do with certain acts, the forms of their representation being open to variation, and
indeed, with L2 writers these will vary considerably.
My interest therefore is not in the ‘disciplined subject’ and how successfully they master the
typified skills that much research into academic writing often seeks to classify, but more in
the sorts of activity the ‘academic literacies’ approach of Lea and Street (1998) suggest.
They argue we do better to understand successful student writing as “in essence related to
particular ways of constructing the world and not to a set of generic writing skills” (p. 163),
nor to socialisation into disciplinary practices, which tends to treat “writing as a transparent
medium of representation” (p. 159) of the discipline through which the socialisation process
can occur. Such a socialisation approach fails to acknowledge the “institutional production
of representation and meaning” (p. 159). The academic literacies approach “views student
60
writing and learning as issues at the level of epistemology and identities rather than skill or
socialisation” (p. 159). Epistemological constraints which shape disciplines however are
framed by the institutional context and hence remain negotiable, and I shall also suggest
that ‘identity’ tends to emphasize what is already ‘given ‘ (e.g. the sense of self which may
feel challenged by writing requirements, p. 159). This focus on identity, which for a number
of researchers provides the basis for stance and resistance by students (for example, Ivanic
1998; Benesch 2001; Lillis 2001), does not, I suggest, sufficiently acknowledge the issue of
change in identity, and an issue I raise in this chapter is that part of what is entailed in
engagement with a new discourse by students is that at some point they must occupy a
position prior to being able to give to it any substantive identity, that is, before they can
achieve any clear sense of meaning and a sense of self within that position. And I shall argue
here and in later chapters that it is the signifier that provides the lead at such points, a
signifier which can be said to function ‘without a signified’ (Laclau 2005). I refer to this as a
‘subject position’, which precedes the relative stability that ‘identity’ implies. Thus, as in the
previous chapter, I am concerned with the ongoing construction of context, and therefore
with the ‘subject in process’, a term Kristeva coins (Kristeva 1986a) although I do not engage
in a discussion of the ‘subject in process’ in this chapter.
I suggest it is ‘responsiveness’ which enables a link between a student and the disciplinary
texts to which s/he is responding when there is not a clear sense of meaning, or a clear
sense of an identity position one can take up within the discourse the text belongs to. Biesta
(2005) argues, following Derrida, that responsiveness makes possible communication across
differences and this contrasts with the more common understanding of communication as
relying on shared understandings, conventions, beliefs and values. Bakhtin (1986) has a
narrower understanding of responsiveness but it still points to the bridging, as it were, of a
gap between interlocutors which for Bakhtin is integral to communication. That is, while we
can trace the passage of a word through a history of utterances, the meaning it achieves in
any given utterance is always unique. Utterances are unique, says Bakhtin (1986 p. 127)
because understanding is responsive (1986 p. 112) and therefore the meaning of an
utterance is founded in an act which necessarily belongs to a particular moment in space-
time. “Contextual meaning requires a responsive understanding, one that includes
61
evaluation” (1986 p. 125). It cannot therefore be reduced to the word which traverses
space-time. “Meaning always responds” (1986 p. 145) and through responsiveness a word
moves from one place to another in a meaningful way. Language in this sense is inherently
intertextual, but that which is reproduced (words, grammatical form, and also beliefs, values
and so on) is not the source of the meaningfulness of an utterance, even though
reproduction of various elements is necessary. It is responsiveness which makes
intertextuality possible and therefore intertextuality is organized around an act, rather than
the presence of already given meanings. My aim then is to link the construction of
disciplinary discourses in institutional contexts to this responsiveness, which also implies the
meaning of a word can never be finalized (Bakhtin 1981 p. 346), which further implies the
potential for students to contribute to what counts as disciplinary writing on any given
occasion.
4.2. Responsiveness to legal and institutional discourses
One responds not only to the text one engages with, but also to the contexts in which the
text is encountered (see Barton et al 2000 on the ‘situated’ nature of any literate activity).
Taxonomies of features of academic and legal writing therefore provide a list of ‘things’
students might instrumentally attempt to incorporate into their writing, but it fails to
address this process of responsiveness and of ongoing construction of discourse and the
writing self which impacts on what is acceptable. The notion of responsiveness is
fundamentally tied to the subject who writes/speaks, rather than textuality. It is an act
which has no template, except for it requiring an engagement with an utterance of an
‘other’. For Bakhtin, ‘responding’ is not something a person chooses whether or not to
engage in. Rather responsiveness is a constitutive moment in any speech or written act. For
Bakhtin, any utterance or meaningful act presupposes both an addressee and a response to
previous utterances. Thus, while notions of heteroglossia, intertextuality and so on might be
seen as phenomena observable within and belonging to the text (eg the words from one
place appearing in another, which for Bakhtin is a condition of language), responsiveness
belongs to the speaking subject. For Bakhtin, “the expression of an utterance can never be
62
fully understood or explained if its thematic content is all that is taken into account” (1986
p92) for “an utterance always responds . . . that is, it expresses the speaker’s attitude
towards others’ utterances and not just towards the object of his utterance” (1986 p92). An
utterance then is always a response, but this is not wholly discernible from what is uttered;
rather, what is uttered needs to be understood within the context of the response.
Responses are themselves intertextual and contextual. Thus students respond to legal texts
within the context of also responding to their task and the perceived demands placed on
them. They respond to these demands under the constraints they perceive their sources, in
this case the legal materials they encounter, to impose upon them. In addition of course,
other discourses come into play, such as instruction students have been previously given in
‘academic writing’ and so on. My interest in this chapter is in identifying the sorts of things
students focused on in creating their own responses and in managing tasks in contexts they
felt remained unclear to them (institutional and disciplinary). I am not concerned with what
they should become (disciplined subjects) since in chapter 5 I suggest that the disciplined
subject is always open to negotiation. Neither am I interested especially in where students
have come from (this would require far more ethnographic data than I have collected), but I
am interested in what is occurring for students as they write, as evidenced by their
comments and by their texts. I am interested therefore in the ‘subject in process’ and I refer
to lecturer comments in so far as they provide insight into the disciplinary responses
students are making as they engage with their texts (responses perhaps shaped by their
texts, or by lectures and seminars). Again, I do not trace the origin of such influences or the
evolving trajectory of a path students might be following (which a study of discourse
acquisition would be interested in, or an ethnographic study of the type Prior 1997 engages
in), but rather, in the subject positioning students take up as they struggle to complete their
assignments.
4.3. Reading the Law
We can argue that legal discourse is engaged with on two levels: with its content, and with
its force. ‘Content’ refers to representations of propositional content within the law and
63
about the law, whereas ‘force’ refers to the authority which is embedded in the law and
which constitutes it as law. This of course does not coincide with propositional content,
since much of what is stated within Case Law, for instance, does not have the force of law.
Neither does every word in a statute have legal force [eg its headings and other preamble
elements] although, as Bhatia (1993) argues, the linguistic and cognitive structuring of legal
provisions is very carefully controlled in order to carefully delineate the extent and precise
limits of the provisions. Case Law, in contrast, is less constrained. In fact, the actual principle
of law for which a case is authority may not be explicitly stated in the decision at all,
“although these principles are implicit in the judgments”, and in consequence of this “the
specific words expressing a rule of law pronounced by a judge are not fixed” (Morris et al
1996 p61) even though the rule of law pronounced is circumscribed by specific words.
Nevertheless, an important point I shall be making in this chapter is that any declaration of
what the principle might be, or of what the law is as provided for in either statutory form or
in a legal case, any declaration of that law or comment on it must necessarily refer back to
the legal text in order to justify any claims being made about that particular aspect of law
which it provides for or on which it is an authority. It is the role of text I am drawing
attention to here, which is not reducible wholly to its function as medium of meanings.
Mertz (2007) seeks to distinguish the ‘ideology of text’ that underpins common law from the
ideology of text that generally prevails in western society. She argues that we find in
western society “the centrality of a referentialist or textualist ideology” of text (p. 49),
where “the meaning of texts is treated” as “fixed and given” (p. 49). Legal texts can of
course be read in this way, although as Mertz points out decisions of Courts that provide
precedent are written and read with a different ideology of text at stake. She argues that
the propositional content of such texts is pragmatically constructed not in order to produce,
for instance, a clear narrative, but to present that content according to that which gives it
force. The two dominant constraints therefore are the procedural history of a case (the
authority of a case is constrained by its movement through the court system, the issues that
have been the basis of appeal, the procedure by which an appeal was instituted [see Mertz
pp. 57 and 62]) and the doctrinal (legal principle) issues at stake (p. 58). Both are
constituted through reference to prior authoritative texts pronouncing on such issues.
64
Consequently, legal language refers “to previous linguistic contexts to achieve its authority”
(p. 58) and we can note that this contrasts with authority given by reference to external
referents or even to determinate signifieds. As we shall see, it is the text/signifiers which
remain constant, not the signifieds they are created to convey. It is critical that one learns to
work with these sources of authority in a case if one is to engage in legal interpretation
rather than commentary upon representations of the law.
Reference to procedural and doctrinal history will always be made, but the manner of doing
so may vary considerably, and indeed may not be explicitly marked as such, but the
organisation of a Law Report (the written version of a court judgment), its specific purpose
and the force it has are all constructed with reference to these two fundamental
constraints. To understand the authority such a text has, the reader must read it in light of
such constraints. Mertz points out therefore that the legal teacher needs to direct students’
attention to the technical vocabulary which indicates the importance of procedural factors,
or doctrinal ones [p. 58], and teaching this kind of reading is central in first year US Law
Schools. Kamler and MacLean (1996) identify the same focus by lecturers in the first year
Law lectures they observe in an Australian Law School. Thus, even when semantic links are
explicitly pointed out, recognising their significance and how to draw on such links requires
an understanding of the procedural and doctrinal background which gives these links their
specific weight: students need the necessary background [Mertz 2007 p. 58]. This process of
directing students to legally pertinent aspects of the texts is consequently very much an
approach to texts which focuses on the pragmatic organisation of the text, and such a
teaching method “is part of a structure designed to break down a straight semantic reading
of texts” (p. 58). What is looked for in the texts read is not semantic meaning so much as
“relationships with previous legal texts, with authoritative authors – usually courts or
legislatures” (p. 59). And so Mertz adds “a legal reading is first and foremost about textual
and legal authority – about pragmatic warrants – and often that authority is to be
deciphered from unpacking metalinguistic connections among legal texts and authors” (p.
59).
Doing this is precisely what students in this study found difficult, as indicated by various
comments that they made. Minh states that it is very hard to understand the thinking of the
65
Judges in cases, since in the case he had to read he says “she said like this, and then she
said, uh, in a different way” and “It’s very hard for me to find uh what’s the, just, thinking
about the decision” (IP M36). Narin says cases are confusing
because the judge would say “This is uuh the former law, and now this is the law, and this is
the former law, and . . . (laughs) where is the law, come on, tell me! (continues to laugh) (LI
N102)
Thuy states the law in Australia is difficult to understand because “they not respect only on
the uh, uh legislation only, also for the interp, interpretation by the judge in case law” (CL
T32) and Kanya too, when asked if she felt confident dealing with common law, replied;
not at all. Still this time it’s still very hard because in Thailand we, the decision of Judges is
based on the Law itself, but here it’s based on not only the law but the precedent of other
cases, so, and, it kind of like depends more on the Judges point of view rather than the law
itself, so you have to understand why these Judges, common law Judge these things in this
direction and not the other direction (OIP K56).
Students also remarked they lacked the background to understand the broader contexts the
articles they read related to, though generally they agreed they understood what was said
at the propositional or sentence level. Thus for students their primary source texts are
detached in important respects from the history that Bakhtin assumes a reader responds to,
and which Mertz is arguing law schools seek to inculcate in students. The response Mertz
emphasises is to the pragmatics that align texts. But as Threadgold (1997a) notes, readers
always bring different histories to their reading of a text, and this ensures the potential for a
text to ‘go astray’ is never fully removed. Nevertheless, what we might argue does not go
astray in Law is that certain texts and even specific words remain authoritative and remain
the point of reference, even if meanings stray. Thus students may well read texts in light of
other contextual and semantic associations. But nevertheless they remain bound to the
texts they engage with; they know that certain primary texts are critical.
The students in this study were not subjected to the rigorous disciplining Mertz points to,
and Kamler and MacLean studied. They were provided with a brief introduction to
66
‘Australian Law’ through a unit compulsory for international PG students which outlined the
Australian legal system. This introduced them, amongst other things, to case law and how it
works, and how it needs to be read, and further instruction in ‘reading’ may have been
provided in some other units of study where students may have been required in seminars
to engage in commenting on cases. However, such engagement in lectures/seminars with
such practices would be rudimentary and fairly ad hoc and more usually lecturers would
simply present to students representations of their own reading of the law and alternative
interpretations. Consequently, students were required to understand the propositional
content presented to them, but were not engaged in making actual readings of case law
themselves. Nevertheless, all the research assignments in this study required students to
pursue a topic not covered in lectures and consequently required them to ‘make sense’ of
legal issues not addressed or only tangentially addressed in the course lectures. Hence,
original reading of the law was required, either as the focus of the task (eg take home exams
such as that which Minh did for the International Sale of Goods unit of study) or as part of
what students would be expected to read in order to arrive at a position/commentary of
their own on a specific aspect of law which involved case law (eg see MdeZ’s comments
below on what she expected in ‘Law of the Internet’).
Law texts are thus inherently intertextual. While all texts entail a response to prior texts and
hence are intertextual in that they necessarily carry within them the echo of prior texts
(Bakhtin 1986), Mertz points to intertextuality of a different sort, which is not accounted for
by explicit text transferred from one text to another (Fairclough 1992 describes this as
‘manifest intertextuality’) nor by the transfer of a “configuration of discourse conventions”
from elsewhere (Fairclough 1992, p104, refers to this as ‘constitutive intertextuality’, or
‘interdiscursivity’). For Mertz it is the process whereby force is transferred, and although
this certainly entails reference to other texts, the crucial intertextual reference Mertz is
drawing attention to lies in the force created by such a reference, which is not disclosed by
manifest content nor through discursive conventions, both of which refer to meanings
represented by the manifest content or discursive convention. For Bakhtin responsiveness is
to meanings of words/utterances, though it does leave open the possibility of responding to
the force a word has, which is not necessarily constrained by its meaning. Butler (1997a), for
67
example, shows how the iteration of a word in a new context might have a performative
force not reducible to its meaning. Legal language points to a function in text that is not
reducible to the meanings produced, although it is made possible only through language
being used to make meanings. The intertextuality at stake here is a purely textual affair. As
Mertz (2007) points out, the focus is on “the ways that texts become authoritative through
the invocation of legal contexts” (p57) which are textually construed. This invocation and
the authority invoked succeeds in a way that has no dependence upon the world
represented by the propositional content of the texts, even though of course the capacity of
texts to function in this way draws upon a broader, socially constituted reality that
authorises such an operation. ‘Ideology’ lies not in the propositional content of legal texts or
in the underlying presuppositions such content implies, but in the pragmatics that underlie
their effectiveness and in this respect, to repeat, it is a purely textual affair. (It can be
argued that it is in their enactment of law that statutes, for example, “express the
institutional ideology of the role relationships involved in legislative rule making” (Maley,
1994 p. 21), but this ideology for Maley lies in the meanings performatively realised through
such an enactment, not at the level of text itself, whereas for Mertz it is only as a text freed
from specific meanings that Law can be effective, for it is in the re-interpretation that
precedent obtains its condition of possibility. Thus, “The text itself is highlighted, rather
than the story” (Mertz 2007 p. 57).
This leads to a paradox that belongs to legal texts. The application of a principle of law
determined in one case must be interpreted to be applied in another case. The subsequent
case must, for instance, determine whether the facts of that case are equivalent to those of
the prior precedent case (and of course there are legal protocols for determining such
things). Facts which have an entirely different material quality are reconstituted as ‘the
same’ within the context of legal doctrine (see Mertz p. 64). In this sense, legal texts are
subject to changing interpretation, as they are recontextualised in new cases (p. 63). The
paradox lies in the double-edged quality to reading cases: “subsequent interpretation at
once creates the authoritative meaning of a precedential case, and yet it is constrained by
the framing discourse of the language used in that precedential case” (p. 63). What an
earlier case means is given by the subsequent case which refers to it, yet that subsequent
68
case must also rely on the authority of that prior case/text. Thus Mertz argues “it is the very
capability of a text to be reconstituted when it is recontextualised as precedent that makes
it powerful in the textual tradition; case texts are ‘fixed’ and ‘refixed’ in the continual
process of ongoing legal opinion, writing and reading” (p.63). And so to change a
classification in a subsequent case is also to inaugurate it and make it anew (so the
performative force at work here). Consequently the meaning of such a text is
simultaneously treated as ‘certain’ and ‘uncertain’ (p. 63); it is authoritative and yet at the
same time its meanings are always yet to be determined. This fits neatly into a
deconstructive view of reading where the ‘meaning’ of a text is always dependent upon a
supplementary text (Norris 1982 p. 92). As Raymond (1989) states, “the genius of the Anglo-
American judicial system is that it projects an illusion of determinacy, reaching closure even
on unanswerable questions so we can get on with our lives, while as a system it remains
perpetually indeterminate” (p. 397). Meanings therefore are always open to change; there
are no ‘right answers’ in law school as such (Mertz p. 63).
Nevertheless, the belief that meaning is fixed is indispensable, even while at the same time
it must remain open to mean differently. This attempt to reach determinacy of meaning can
be understood in different ways. Bhatia (1993, chapter 5) argues that specific linguistic
devices are used with the specific purpose of stabilising meaning in quite determinate ways.
In contrast, Goodrich (1986) attaches this fixity of meaning to a set of ‘fictions’ that must be
adhered to, such as the belief that the meaning of a text is literally represented and that
interpretation of the law should be subordinated “to the rational will of the original source
or legislator of that law” (1986 p. 102). The “awful fate” this creates for the lawyer, says
Goodrich elsewhere, “is that he can only speak the truth” (Goodrich 1990 p. 274). This
requires a constant reference in legal analysis to “the exact exegesis of the language of the
rules” (Goodrich 1986 p. 105) and to “the specific words – the letter of the law” (p. 108). Yet
at the same time, each reading of a primary text is made in light of other texts, and given
shape by them, and so the reading of one text constitutes a ‘pre-reading’ for a subsequent
reading, in that it gives an orientation to a subsequent reading. “Each act of reading ‘the
text’ is a preface to the next” (Spivak 1976, in her translator’s preface to Derrida’s Of
Grammatology), and so there is a dissipation of the solidity and unity attributed to a primary
69
text. It is this shifting between the authority of the word and the substantive meanings to be
given to the law, that generate some of the difficulties students experience as they engage
with the law in their own writing.
This textual nature of law and the specific kinds of readings it calls for constitute the law as
such and thus reading and writing within the law can be viewed as calling for an
understanding of discipline-specific practices. But as already noted, how to read primary
texts was the particular skill students repeatedly suggested eluded them. Nevertheless, they
were on the whole successful in their study (as measured by the grades given to their
written assignments) and I wish to look now at students ‘responsiveness’ to their sources,
that is, to what might be seen as constitutive of their ‘disciplined’ activity. This focus on the
discipline contrasts with the focus in Chapter 3 on the institutional setting which students
addressed. I shall consider their responsiveness in light of their comments, by reference to
their texts and in light of comments made by their lecturers where appropriate. My interest
is in highlighting the textual nature of student engagement.
4.4. Students’ responsiveness
While the work of student writing is often viewed as a matter of disciplined writing (Candlin
and Plum, 1998) and the purpose of study is for students to acquire mastery over the
discipline (Braxley 2005, Angelil-Carter 2000) it is clear that any learning/writing takes place
within a specific context (eg Barton et al 2000; Maybin 2000) and cannot be separated from
it. Thus, students learn within an educational context and its specific institutions and for this
reason Lea (2005) argues that we cannot justifiably consider higher education students to
be novices in their discipline since the context of student work is the education institution
and its interests, such as meeting assessment requirements, gatekeeping, and this
reconfigures what is at stake in the discipline. As Freadman (1994, p. 48) notes in the
context of language teaching, the real life stakes simulated in classroom language activities
are in fact no longer at stake, and in a similar manner the professional and legal stakes that
provide the fundamental underpinnings for student assessment tasks are no longer at stake
in the assignment. The students in this study are not engaging with the contexts that gave
70
rise to the disciplinary discourses with which they deal, and to which the disciplinary texts
speak, nor are they familiar with the world to which the texts refer. If the discursive
meanings realised from a text are bound to the contexts in which use is made of the texts
(Widdowson 2004), then it is clear that the context of student engagement with legal texts
will ensure the use students put the source texts to and the meanings yielded are more
likely to conform to the ‘discipline’ of the institution than the discipline of ‘law’. This is
perhaps even more so in the case of students who expressly state they lack ‘background
knowledge’ in the substantive law they are engaging with, and who feel considerable
uncertainty about their understanding of the common law culture, and the broader social
culture in which it is embedded and to which it contributes.
In this section I will first of all briefly comment on the influence the institutional context had
on student writing, before going on to consider the responses students were making to the
disciplinary texts they had to engage with. In describing the sorts of features that emerge
from student comments and texts, and in light of comments by lecturers about what is
desirable, I will foreground the difficulty of engaging with the text of law for students which,
I shall suggest, unsettles the writer’s sense of identity. Thus, their writing reflects this
struggle between retaining a relatively secure sense of self (as student; a subject with prior
interests) and engaging with a discourse which exposes one to the play of the text and
which unsettles identity.
4.4.1. Responding to the institution
I will deal with this in two main areas; explicit demands and perceived demands.
4.4.1.1. Explicit demands
Students were aware of explicit demands at three main levels: the need to bring together
the task and the disciplinary materials; the need to meet time demands, and word count.
These overlapped, in particular because limits of time and words forced students to make
decisions about what kind of response was asked of them, and so I shall deal with them
together. Students had to decide whether their purpose was to demonstrate the breadth of
71
their understanding (and so ensuring coherence was less significant) or whether it was to
present a cogent argument for an intelligent, but non-expert layman (as some students had
been instructed in preparatory academic writing courses), which required tighter textual
development.
4.4.1.1.1. Task and discipline, time limit and word count
Thuy remarks that it was very difficult to decide what to leave in or out of her essay because
there were many ideas which all seemed significant to her (1HRT202) and so it was very
difficult “deciding what to have in the assignment and what to leave out. It’s quite difficult
because it depends on your evaluation of that argument and also you have to speak on the
objects, the objectives of the assignment” (1HRT204). The problem here is distinguishing
between ideas in light of their disciplinary significance and judging their pertinence for her
own task. This latter had to do with judgments about relevance of content, but also about
who her addressee was and what relevant content can be taken for granted and perhaps
omitted in the interest of word count. On judging relevance, she had earlier commented
that she sometimes relied on ‘experience’ and ‘instinct’ (1HRT182) when making judgments
and this suggests an appeal to prior legal experience she had gained through her
employment in Vietnam, or other perspectives she might bring to her study. At other times,
her response was to leave out information she felt her lecturer would know, and in this way
she could reduce her word count by relying on the reader to ‘add’ what was necessary. At
one point she said:
for the writing assignment bit, sometime I have problem with the word limit because what I
thought I should narrow down but I couldn’t is that I’m very frightened of the size of the
word limit and still feel less confident that if I let it out, it the the the coherence of the whole
assignment is not good enough (1HR T152).
Then she adds:
in this task, I left out one explanation about the foreign, how the umm the umm law didn’t
apply for the foreigners just for the uuh uuh had to apply to the foreigners, not to the US
citizens. And then, the literature had comment how didn’t apply for the US citizens. Because
72
I think that’s obvious, and if I do all the explanation in this uuh assignment I had to extend
the word limit (1HR T152).
It is clear here that she sacrificed information she felt she should really add for
completeness. We can distinguish between judgments to focus on ‘text’ (and so on
coherence and representing the essential steps and information needed to produce a
disciplined argument – a ‘horizontal’ axis of concern we might say) and judgments to focus
on representing research, scope of knowledge and so on, which is directed towards the
institutional reader-assessor (which places less emphasis on overall coherence – a ‘vertical’
axis of concern). These two interests are not easily joined together and other examples of
this are presented below.
In making such difficult judgments, students appeal to various identity positions (past
experience, as professionals and as students; personal interests; and so on). Ivanic 1996
discusses the role of identity-based decisions in writing, as also do Abasi et al 2006 in their
discussion of the multiple identities students assume in writing. But Thuy in particular also
referred to occasions where she had no bearings, no sense of ‘who she could be’ in order to
make a decision, and when asked what she did at such a point, she remarked that she all
she could do was “just try” (1HRT206). I shall return to further discussion of this point in
chapter 6, since I think it marks an important point at which an act is performed which is not
reducible to identity, but in fact precedes and makes possible an identity position. It is
significant that Thuy makes this comment in a very quiet and rather plaintive voice,
suggesting that on such occasions she reached a point of loss of ‘who she could be’ and
which could inform her decision making, and I will link this to the anxiety she sometimes
experienced.
4.4.1.2. Responding to perceived implicit demands
When Narin was asked why he included a discussion of the law on e-money in two US
states, when his essay was about comparing US Federal legislation with EU and Thai
regulation of e-money, he stated “this part doesn’t uuh cohesive with the whole
assignment. This part is from uuh (pause 2 secs) the text, the article that talking about the
73
benefit and shortcoming of the American approach” (2BL N96). When it was put to him that
in light of his comment, perhaps he was simply following what he found in a text, (2BLN97)
he provided an alternative explanation: “I feel, I feel, I think it showed that at least I do
some research” (2BL N98). As he says this, he also makes an apologetic laugh, indicating
some recognition that perhaps this is not an entirely good reason for including it in his
essay, having already acknowledged the issue of cohesion.
This awareness by students of wanting to demonstrate to their reader that they are a
certain sort of writer has been noted by various researchers (for example, Abasi et al (2006),
who investigate the various identity positions students take up in their writing) and
addressing their reader in this way is inextricably bound up with students’ understanding of
what the institutional discourses they are writing within are asking them to demonstrate. At
stake here is a clear example of the intrusion into Narin’s text of the institutional context, a
representative instance perhaps of the difficulty Thuy mentioned she had in responding at
the same moment to both the discipline and to the task. In Narin’s instance, his response to
a perceived institutional demand cuts into his text, disturbing the ‘cohesion’ as he puts it,
yet the force of this institutional demand is sufficient for Narin to feel he must retain this
evidence of research. In this respect we can see a ‘vertical’ response to a perceived set of
disparate, fragmentary rules [meet time limits; keep to word count; show understanding of
ideas; demonstrate research; cite appropriately; avoid plagiarism; and so on] which do not
facilitate the coherence that might be encouraged at the level of responding to the
discipline. Indeed, such perceived rules might actively impede such coherence.
Language proficiency levels would bear on how easily or not students textually combined
these two interests, but the sense of identity, of who one is as one writes is significant here.
Narin, and indeed all the students, repeatedly expressed their sense of working in a
discipline (Australian and common law issues) that was new to them, and frustration at
working in a second language. Narin in particular expressed strongly the frustration he felt
when reading/writing in English and the common law texts. It perhaps follow that his sense
of being a student would be accentuated by his sense that what he is engaging with
opposed him in many respects, and it is perhaps consistent with this that Narin spoke of
lecturers trying to deceive students in the assignments they set (2BL N18), of not being
74
transparent and so on. That is, his sense of being a student is heightened, and this might
explain his peculiar comment that he wanted to show he did research, as if he had not been
doing much research otherwise. This in fact was certainly not the case. He had consulted
with his lecturer, and she had directed him towards a number of cases (and secondary
sources) relevant to his task, but he nevertheless had had to make of these resources what
he could, since his task addressed issues not covered in the Unit lectures. However, he may
have felt that what issued in his essay as a result of conversing with her was not the result of
his research. Nevertheless, the central text that inspired him (a text his lecturer said she had
reservations about) provided him with ideas and a way of organising his text (LI N140/180)
and he spoke with great enthusiasm about this resource, something his lecturer was
impressed by. One reason for his enthusiasm was that he said after reading Lessig (an
important source for Narin) “I can go against the court now, ooh, I got . . .I got the idea,
from him” (LI N134) and he wanted to go against the court “because if I follow, it too easy.”
[LI N136). He believed this is what is required of him; the lecturer wants him to show he
understands the law, and to do this “what I need more is analysis, so analysis go against” (LI
N136). For this reason he chose to argue against the court. But he already personally had
sympathy for the position his author took. He states his own rejection of the length of time
provided in copyright law for copyright ownership (LI N184/6) and his enthusiasm for Lessig
was because he confirmed and provided means of arguing for this position.
It is possible that drawing on Lessig did not constitute ‘research’ for Narin because he found
confirmation of and ways of arguing a position he already held. The merging of Lessig’s
ideas with his own is perhaps indicated by the irregular citations to Lessig and Narin
expressed these ideas in his own words. If so, the ‘foreignness’ of others’ words (Bakhtin
1986) was lost as Narin used such texts solely to support prior orientations he had.
Elsewhere he stated that having to use sources constituted an intrusion into his text (he
chooses topics he likes, because he will have opinions about such things, but the lecturer
wants him to write what other people think), “So nothing new, just write out conclusion of
every people. Not a whole new thing, just repeating. Yeah.” (LI N18). Thus he tends to
assimilate the ideas he reads to a far more personalised perspective. For Mertz (2007) a
“legal argument is one that privileges language structure over content, [an] ability to shift
75
discursive positions over fixed moral or emotional anchors” (p127). Consequently the
lawyerly “self that emerges from the prism of this linguistic ideology is above all else defined
by an ability to make arguments” and is one that can “rise above the distracting pulls of
emotion and common cultural judgments by means of an ongoing internal and external
dialogue based in legal doctrines and categories” (p127). One can of course be passionate
about the legal position one takes, but Mertz’s point is that the argument needs to be made
with reference to the words of legal authority, and in this sense is not grounded in ideas one
may feel passionate about. There is a point at which the signifiers are not assimilable to the
signifieds we make from them, and which can become part of our sense of identity. There is
a certain independence of the signifier which is less present in Narin’s work than in Thuy’s
for example and I shall return to this in chapter 6. Nevertheless, it does appear that for
Narin his perception of institutional demands led to both non-cohesiveness in his text
(incorporating ideas that were clearly not his own but which showed research) and taking
up a stance he could feel enthusiasm for (arguing against the court case, which was where
his sympathies already lay), and in this respect, he certainly appears to lay considerable
importance in shaping his arguments and position around prior interests, which Narin in
particular, of all the students in this cohort, seemed to do.
Responding to perceived institutional demands might also be responsible for non-cohesive
aspects of Thuy’s Human Rights text. Her lecturer commented that a discussion Thuy made
of the right of a country under certain circumstances to derogate from obligations they had
under Treaties to which they were signatories was irrelevant to her discussion of the US
situation regarding human rights under the PATRIOT Act, because the point of Thuy’s
discussion, and indeed the commentaries she drew on, was the question of the legality of
the PATRIOT Act in light of the US Constitution. Consequently, international Treaties were
irrelevant. Of interest is that Thuy’s discussion on ‘derogation’ was based on an article about
Australia’s introduction of anti-terrorist laws after the 9/11 Twin Towers attack in the US,
and Australia’s obligations under Treaties it was a signatory to. Particularly noticeable about
Thuy’s discussion is that it was wholly based on one article written by her lecturer-assessor,
and reasons for its inclusion may therefore be twofold: to meet a felt obligation to respond
to something her lecturer in Human Rights had written; and secondly, in the absence of a
76
wholly clear sense of how to judge what to include in her discussion, she took her cue from
a discussion she found her lecturer had engaged in, albeit in the Australian legal context
rather than the US context.
This second point is not entirely without justification. Thuy’s lecturer did remark that in the
second half of her text (where Thuy is entering into discussion of legal issues, rather than
‘setting the background’ which she achieved in the first two sections) “it didn’t hang
together as well . . . . it just had too many points just sort of flowing together . . . . it
jumbled – well it didn’t jumble, but it put in too much stuff ” (HR SJ12) and so she says Thuy
needs to “slow down” (HR SJ12). She was covering too much ground and not establishing
her argument clearly enough and this suggests confirmation of points Thuy made, cited
above, that sometimes she did not know how to judge between different ideas and their
relative significance.
While I have suggested responding to institutional demands, explicit and perceived, has a
bearing on students’ engagement with disciplinary resources, I now want to consider more
closely students’ engagement with the disciplinary resources themselves. As an example, I
shall make further comments on Narin’s writing before going on to consider Minh’s work,
where I show how for Minh too a certain fragmentation of the writing subject occurs.
However, of greater significance from my point of view is to show the textual role the
disciplinary resources have, as opposed to what might be described as their discursive role.
4.4.2. Responding to the discipline
The distinction between primary and secondary sources is a critical one in law. Primary
sources provide the law; secondary sources provide representation of, or commentary on
the law. This distinction is an important one for student writing and was emphasised in
particular by one lecturer. Speaking about the importance of engaging with primary sources
she said:
“That’s what I really, really like. (said very enthusiastically) And I don’t even really care what
they say about it, as long as they say “I have read this case, and I think it sucks, and I really
think that the decision is wrong, and when he says this it’s crazy and it doesn’t make sense
77
and the reason it doesn’t make sense is this”. Because [short pause], that’s what lawyers
do.” (LI MZ50).
Earlier she says about Narin’s essay:
what he hadn’t done, uh [pause], is refer to the actual wording of the judgment. I mean,
what I would really like the students to say is ‘in Napster, the judges said’ (LI MZ48).
What she wanted students to do was “get the wording of the judges and start engaging with
those words” (LI M48).
However, I suggested above that the distinction between primary and secondary sources is
not so clear cut; the meaning of primary sources is achieved through a secondary
representation of it (a published one, or one’s own), and Mertz pointed out that the
meaning of a Judgment is given by subsequent readings of it. Students prefer secondary
sources because they provide a clearer representation of the law, and of related issues, and
it is discussion of the law they are engaged in. MZ states that she wants students to engage
with the words of court decisions “because that’s what lawyers do” (LI MZ50). But it is clear
students are not writing within the context lawyers do, and they are keenly aware of that!
Nevertheless, the issue here is not solely one of the context from which one writes. Court
judgments can of course be argued against, and much commentary involves this, but at the
same time they are authoritative. It is not the meanings therefore which are authoritative
(see Raymond’s comment above that for the common law as a system its decisions ‘remain
perpetually indeterminate’) but the words, in particular the words from which the principle
of law at stake in the case can be discerned. Thus, it is not simply what lawyers do which is
at stake here, but engagement with the force of law, which is of course performative in
nature, but enacted through certain words. Without those words there can be no
enactment. While those words are constrained by the prior texts that are necessarily
referred to by the judges, the force of law is attached to the words through which it is
articulated, rather than to any specific meanings that are given to those words. To engage
with the law as such one must engage with the words of that law. The point I wish to make
here is that this requires students occupy a peculiar position, in that they need, as subjects,
78
to occupy a position in relation to signifiers that is separated from any particular
meanings/signifieds, and in the case of students, precedes any such meanings. This, I
suggest later in this chapter and in subsequent chapters, constitutes a risk, for it places the
student in a vulnerable position, where identity itself is suspended. Butler (1997a p. 161)
speaks of the risk and anxiety that arises when meanings “are not secured in advance”, and
in effect engagement with the words of judges places students in this position, particularly
since they lack a sense of legal contexts according to which meanings can be anticipated, as
would be the case with an ‘expert’ reader. Butler (1997b p.6) speaks of the ‘passionate
attachment’ with which we cling to what we know and while Narin would formulate ideas
he gained from reading in light of interests he already had, he found the ‘foreignness’ of the
texts he draws on an obstacle. He was very interested in expressing opinions he formed (his
lecturer MZ was impressed by his passion) and in the assignment for his first Unit of study
(where he was asked to compare an aspect of law in Australia and his own country) he
wrote about age discrimination, something he expressed strong views about but which in
his assignment he said he dealt with very unsuccessfully because “my poor, my poor
knowledge, cannot bring it out” (LI N16). Despite doing research he could not find what he
needed in order to say what he wanted to say. When he did rely on others, as in the Law of
the Internet, he said the opinion formed was not really his own, it was “just a kind of
conclusion after I have read” what others say: “I just conclude, all statements of all people”
(LI N18). There was little identification with the conclusion being his own because he had
drawn on others’ ideas and elsewhere he speaks of the interruption created by drawing on
sources when he knows what he wants to say. Narin conveys a sense of responding at a
personal level to ideas he reads, and his far greater propensity than the other students to
present ideas in his own words and register reflects this. The foreignness of others’ words
appears to constitute an obstacle rather than a source which facilitates the development of
his own opinion. This is in contrast to Thuy, who, I shall argue in chapter 6, puts source texts
to work in a different way as she attempts to construct a position for herself through
attachment to the words of secondary sources.
4.4.2.1. Lawyerly engagement
79
The account that Mertz presents of what it means to ‘read like a lawyer’, summarised at the
beginning of this chapter, is suggestive of the practices a student must learn to engage in to
become a successful lawyer. In a similar way, Kamler and MacLean (1997) show what they
observed to be the kinds of practices that first year students are disciplined in and which
they need to acquire in order to succeed in law school. Kamler and MacLean draw their
theoretical inspiration from Bourdieu, who argues that any ‘way of being’ that individuals
take up is a matter of acquiring a sense of habitus, and of certain dispositions towards the
contexts we understand through habitus, and this understanding is not simply a cognitive
one, but rather, our cognitive understanding follows this shaping of lived experience
through the shaping of practices and embodied experience. This focus on acculturation as it
were, and on conformity represents a widespread approach to understanding discourse and
its acquisition. Nevertheless, criticisms have been made. Butler (1997a) argues that
Bourdieu’s approach is inherently conservative, providing a theory of social reproduction
but unable to provide an adequate theory of social change. In forging her own approach,
Butler joins Bourdieu’s account of habitus with Derrida’s account of the performative to
argue that the practices that incorporate habitus, performative in nature, cannot be
tethered to the originating contexts in the way Bourdieu argues and consequently such
socially induced practices retain the potential to be performed in different contexts, to
different effect. For Butler, this provides for the possibility of social transformation (p. 147)
and “to think performativity in relation to transformation” (p. 151).
The difficulty in fixing contexts and attaching practices to them, in the way Bourdieu, and
Kamler and MacLean suggest is hinted at by a comment one of the lecturers in this study
made. MZ commented that she had “had some really scary disappointing conversations
with local students who are at the top end of the marking spectrum” (LI MZ16), scary
because they seem to have forgotten the basic legal principles and practices of reading
cases that are central to the first year methods of teaching that Mertz and Kamler and
MacLean highlight. She says “it’s almost like once they get out of first year, they think that
all that stuff is irrelevant, about reading a case and looking for the ratio, and what’s obiter,
and when does obiter get picked up and become ratio in a later case, and what’s the
importance of a dissenting judgement, and, you know, all of those sorts of things . . .” (LI
80
MZ16). She is asking what has become of the practices inculcated in first year. I would argue
that it is not that they are necessarily lost, but that what counts as context for the student
shifts. Kamler and MacLean’s assumption that the context is ‘lawyerly activity’ and therefore
the students will reproduce in subsequent years what they learn as ‘lawyerly practice’ in
first year is questionable. I shall return to this again. However, I would also make the point
that to be a ‘top’ student does not necessarily require such conformity to what is viewed in
the literature and by this lecturer as fundamental to being a successful law student. I also
take this issue up again in chapter 5.
My interest here is in the success of the relatively undisciplined students in this study,
certainly undisciplined with respect to their own perceptions of their understanding of what
was involved in writing within the common law and for the institutions they were enrolled
in. In the context of discussing Narin’s essay, MZ spoke most insistently and pervasively of
practice at a general level, which she describes in terms of ‘engagement’. Central she said is
that:
I keep formulating my essay questions trying in a way, sort of say, ‘you must refer to at least
two or three cases we have studied in this unit’, or something, I keep trying different
wording that basically says ‘engage with this stuff’” (LI M50)
What she seeks is direct engagement with primary sources:
I just want that! That’s what [yeah] I really [yeah], really like. (Said very enthusiastically.) And
I don’t even really care what they say about it, as long as they say “I have read this case, and
I think it sucks, and I really think that the decision is wrong, and when he says this it’s crazy
and it doesn’t make sense and the reason it doesn’t make sense is this”. Because [short
pause], that’s what lawyers do. (LI M50).
And so she also states:
whether I agreed or disagreed with what their thoughts were [mm] uh, the most important
thing to me is that they demonstrate that they had read the cases, and that, that’s the most
important thing, that they engage with the primary material, and that, hopefully, that they
had also tried to engage with some secondary material (LI M2).
81
There is an act of engagement called for here which precedes any directing of one’s act
towards any specific meanings (“I don’t even really care what they say about it”), even
though, of course, such an act can only be carried out through being embodied in an act of
meaning making. And this in a sense constitutes the difficulty for students. Engagement
with primary sources presupposes a certain kind of expertise; a common complaint by
students was that when they read primary sources, they could understand the propositional
content, but the pragmatic function (Mertz describe how central this is) was lost to them.
Narin explicitly states that he had difficulty reading primary sources. He says:
I kind of confess to you something uuh she required me to read the the actual case, but I’m .
. . I think no, it doesn’t help” (LI N94).
When asked why, he said it is easier if:
I just read an article that refer to the case, and when he refer to an article or paragraph, I
just read that paragraph. That really helpful, but . . .. But I cannot read whole cases. It cover
everything . . . .uuh can . . . cannot understand everything because uuh . . . in, in the, in the
decision (clicks his tongue), the words the judge use sometime (click of the tongue again)
just confuse me. (LI N98)
What he reads in cases is directed by the secondary sources and the paragraphs in the
primary sources they have referred to, which suggests that his extraction of information
from the cases, and his understanding of what is most significant in them, is given by the
reading offered by the secondary source. When asked to explain further, he says:
because the judge would say “This is uuh the former law, and now this is the law, and this is
the former law, and . . .” (laughs) where is the law, come on, tell me! (continues to laugh).
Because it is the common law things, right, and not a civil law thing and . . . and the judge . . .
the decision . . and the word they use . . . aah, hopeless” (LI N102).
So he reads secondary sources, and
82
“When they refer something, of course they put the . . . the citation, and then uuh have to
go to read actual case, because sometimes, they just make a mistake so, I cannot just, just
copy. I have to make sure that he right, and that OK . . . and OK, he right, OK, OK, go” (LI
N102).
Central here is his exclamation/question “where is the law, come on, tell me!” Narin later
says about his reliance on secondary sources: “because, if I read a case, I just miss, just try
to . . .oh, confuse me, to go go on. And sometime . . . I have tried to read, but, when I finish
reading, (click of tongue) nothing (laughs).” (LI N112). Minh states a similar problem with
reading primary sources. He states that making decisions in organising his text was very
difficult, and he attributes this to understanding the case law he must deal with. Making
judgments and decisions, he says, is
difficult a bit, because uh when I research court decision, I cannot find. It’s very hard for me
to find uh what’s the, just, thinking about the decision. It’s very hard because I’m thinking
she said like this, and then she said, uh, in a different way (Minh laughs while he makes this
point)” (IP M36).
MZ is asking her students to ‘stand up’ to the judges they read. The act of engagement
involves commenting also on the Judge’s reasoning. For the disciplined reader there will be
familiarity with what is called for in such ‘standing up’ to the Judge’s words, in engaging
with the decision and not merely reproducing or following the propositional content. MZ
says: “I don’t really care, again, what it is that they actually say, but that they can get the
wording of the judges and start engaging with those words” (LI M48). She is asking students
to engage in an act of ‘standing up’ which precedes the meanings to be made, and which in
a sense for MZ can be cut adrift from the meanings (the meanings don’t matter, even
though of course this act can only be committed through making meanings). This
engagement can be indicated by just showing “that they had read the cases”, again an act
from which any meaningful output appears secondary. Elsewhere, in commenting on
Narin’s reliance on secondary sources (Lessig, at this point) she says “Well I think what,
what, what he hadn’t done, uh [pause], is refer to the actual wording of the judgment” (LI
83
M48). She wants students to “actually show me that they have read the judgment by
drawing out words that the Judges have used and start interpreting the text” (LI M48).
For the disciplined reader Law School aims at producing, engaging with the words of
primary sources to produce pertinent meanings and occupying an identity position from
which one feels confident to attempt this requires a certain confidence, a predictability
about how to proceed. MZ is asking students to engage in this prior to becoming ‘expert’. It
is this act of ‘standing up’, or engagement, that she looks for. Certainly the legal expert
interprets the doctrinal and procedural aspects of a case (see Mertz above) to present an
interpretation of the law that is to their client’s best advantage. As Mertz points out, this
process engages the primary text as both authoritative in meaning (the ‘fixed’ meaning of
actual judgments) but also as authoritative at the text level, which leaves meaning ‘unfixed’
(open to different readings in its precedential value). At this second level it is the text which
is fundamental, rather than the meanings. It is this relationship to the text that MZ places
above all else, but the subject position this encourages the student to occupy is, in certain
respects, a rather precarious one, for they are being encouraged to take up such a position –
through an act – before they can speak (as an expert) from a position where they also have
clear meanings, that is, before they can assume an identity which provides them with a
sense of a well-formed position, and hence capacity, from which to speak. That is, they are
asked to occupy a subject position before they can provide it with any substance that an
identity provides. In this respect the student subject position is vis a vis text (signifier) rather
than discourse (signifieds). The secondary sources which provided representations of the
law not only provided ideational content students could make use of, but, as I shall argue in
chapter 6 was the case for Thuy, a sense of place from which to stand within the discourse
of law, but which at the same time precluded an engagement with it separate from the texts
she drew on. This can be linked with a desire by Thuy to become a ‘disciplined’ subject. In
contrast, Narin drew on ideas from secondary sources which he then aligned with prior
interests and attitudes towards the law that he brought to his study. For this reason he
paraphrased source materials more than the other students, but in many respects remained
less ‘disciplined’.
4.4.2.2. Context v practices
84
I referred above to the assertion by lecturer MZ that while a central aspect of reading and
writing law is engagement with practices constitutive of the law ( and this is the argument
Mertz presents) MZ also noted the frustration she felt that even ‘top students’ seemed to
forget the fundamental lessons they learnt in first year about such practices. Of interest is
that MZ emphasised the importance of engagement, which she presented in terms of
engagement with the primary sources and with the force of law through engagement with
the doctrinal and procedural aspects of Court decisions and the actual words of Judges. Yet
while she stated that it was evident that Narin did not engage with the primary sources – as
indeed Narin admitted – she nevertheless was impressed by Narin’s level of engagement!
This ‘slippage’ is something I will discuss more in chapter 5. But here we can note that
Narin’s engagement was largely with ideational content derived from secondary sources,
with the propositional statements that could be made about the law, rather than with
possible meanings of the law. Case law was difficult to read, he said:
because the judge would say “This is uuh the former law, and now this is the law, and this is
the former law, and . . .” (laughs) where is the law, come on, tell me! (continues to laugh).
Because it is the common law things, right, and not a civil law thing and . . . and the judge . . .
the decision . . and the word they use . . . aah, hopeless” (LI M102).
The Law appears to be a proposition he is looking for, rather than embedded in the process
and hence always open to being ‘re-fixed’. He then reiterates how difficult primary sources
are:
Because, if I read a case, I just miss, just try to . . .oh, confuse me, to go go on. And sometime
. . . I have tried to read, but, when I finish reading, (click of tongue) nothing (laughs) (LI
M112).
Secondary sources are easier because
usually, um, the author will [2 sec pause] go on to be to only one general idea, only one arg .
. . one argument of . . . that . . . that they want to to push [uh uh, uh uh] so, uh, so every
paragraph I read, I just OK, he want to argue this way, so OK, I know (LI N116).
85
The focus on content, therefore, is also acceptable it seems to MZ. When MZ comments
that, despairingly for her, even ‘top students’ forget what they learnt in first year, she is in
effect admitting that such practices, seen as central to the law, can also be disposed of,
since students still do well without them. Narin’s engagement, which should have been of a
certain sort, clearly was not, but “he was really trying to get a grip on something that was
fairly complicated” (LI MZ4) and that is why she gave him a distinction.
To grasp the ‘meanings’ of a text is to treat text as a relatively transparent ‘container’ of
information, which students manage quite well, but this is quite a distance from the view of
language both MZ and Mertz suggest is important, where meanings are relatively unfixed
and where the process of law (as presupposed in the doctrine of precedents, argues Mertz)
and its task (in arguing a client’s case) depends upon the ‘unfixed’ nature of meanings and
involves dispute about such meanings. I shall return to this again in chapter 5 on dialogism,
but with respect to the ‘response’ made to disciplinary texts, it is clear that propositional
ideas dominate, despite legal reading involving so much more.
There can be a number of reasons for maintaining this approach to reading, including the
dominant ideology of reading students probably bring to their study (the ‘referentialist
ideology’ as Mertz (2007) describes it (p46) where “what is central about texts . . . . is their
referential or semantic content”), but also significant is the institutional context which
provides the frame (MacLachlan and Reid 1994) through which such texts are read. For his
ISG exam, Minh was required to do a take home exam, as well as an essay. The exam was a
typical ‘problem-solution’ type task where students are presented with a situation and then
asked to advise a client in that situation. Students in this situation often feel themselves to
be in a quandary; do they address the client (eg “I advise you to . . .”) or do they address the
lecturer (“Fido is advised to . . .”)? This also has a bearing on whether or not to include
references (which they would never do when writing for a client in practice, but which they
are expected to do when writing for their lecturer for assessment), and how they represent
the law. The result can often be a bit of a confused shifting between ground, which may or
may not be something the lecturer-assessor takes into account. In this case the lecturer said
he had not really thought about this problem, but he wanted citations, and so he thought
that he probably expected them to write for
86
someone who knows the, you know, who wants to have detailed, who knows the law [yeah]
and who wants some, some advice um, so say like, a barrister and a solicitor situation, so a
solicitor writing for a barrister, that this is how it should be, or whatever, you know, um, but
yeah, it’s, it’s, I haven’t really thought about the problems that they will face (ISG EL60).
Minh commented that he wrote for the client [Fido] and he says “I write for Fido, I’m quite
clear about it” (ISG M161/2) and he goes onto say that “if I want to write for the lecturer I
can write a lot of knowledge in this answer but for uuh Fido so I, I have to make it more
simple, I I don’t need . . want to explain this time the answer more” (ISPM164). Noticeable
here is that at the content-ideational level he is writing for the client and he indeed
simplifies what he says accordingly and presents it in the kind of language he believes is
appropriate for a client. Yet at the interpersonal level, he clearly writes for his lecturer.
Most conspicuously, in his answer he refers to Fido in the third person, and in statements
such as, “One can argue that Fido is not liable to pay the freight to the carrier” the modal
verb ‘can argue’ is most unlikely to be used when addressing a client (it is far more likely
that the client will be informed of different possibilities and consequences so he can make
an informed choice – eg “one option is to . . . however, it will be difficult to prove X . . .
Therefore, . . .) but it is perfectly used to represent to his lecturer how Minh is thinking.
For Minh, addressing his client means simplifying the content, but not speaking directly to
his client. His text remains solidly grounded in his institutional context and in this respect his
text is directed very largely towards demonstrating to his lecturer what Minh knows, which
may include showing he knows ‘how to argue’, or what information he needs to get from his
client to advise him well (a point EL [ISG EL34] says Minh does well) but these are largely
represented in the text to the reader as something Minh knows, rather than enacted as
practices. In this sense we can argue that the epistemic underpinnings of legal activity are
modified in light of the institutional context in which the ‘law’ is engaged with, and it is clear
from student texts that as ‘writing subjects’ they respond largely to the ideational content
and present it to their reader as such, retaining very much at the interpersonal level the
relationship of student-lecturer, rather than lawyer-client which legal training purports to
induct students into.
87
For both his ISG tasks and his IP assignments, Minh said he was pleased with the final
products (essays, exam answers) and that he learnt a lot. I have suggested this learning
consists largely of ideational content which does not necessarily effect a shift in the
speaking/writing subject position, in so far that at the interpersonal level the text evidence
suggests that students remain very much grounded in the institutional relationship of
student-teacher, one that was already familiar to them. In Chapter 6 on patchwriting I argue
that Thuy is the student who goes furthest in trying to assume a position within the
common law and that patchwriting, rather than being an attempt by an instrumental
subject to learn through imitation, is in fact part of the process whereby the subject
undergoes a shift in subject position through a reliance on the text they draw on. Text in
effect stands in for, is a substitute for the lack of an identity that can give substance to the
new subject position they are working towards as they engage with text. For Thuy it
involves subjecting herself to considerable vulnerability and letting go of prior orientations
that would provide a continued sense of direction for her, but which possibly do not
coincide with the direction that a ‘common law’ subject position would produce.
I want to conclude this chapter with a brief analysis of Minh’s ‘Intellectual Property’ text, in
order to show the persistence in his text of a ‘self’ which he brings to the act of reading and
writing. Kamler and MacLean (1997) argue that to become a lawyer is to become a certain
sort of person, and this ‘becoming’ is achieved through the formation of an embodied
habitus and dispositions. This ‘being’ persists in the body, a ‘second nature’ for Bourdieu,
and it is not something acquired through cognitive learning, that is, through grasping the
‘content’ of the discipline which I have suggested Minh and the students generally focus on.
Threadgold (1997a p. 169 but passim) argues that this embodied subject is made evident in
language mostly through the text function, and I want to briefly and schematically show
how Minh’s text, as he responds to content relevant to his essay, is nevertheless organised
around an interest in the practical outcomes of the law, something his own previous legal
work in Vietnam oriented him towards.
4.5. Making meaning
88
I want to briefly consider how one student dealt with some of the difficulties which I have
suggested above exist for students, in their engagement with primary and secondary
sources and their attempt to make meaning from them and develop an answer to their task.
Minh’s ‘Intellectual Property’ paper demonstrates a kind of ‘bricolage’, which appears to be
the product of prior interests influencing his reading and his attempts to engage with the
kind of practices engagement with case law calls for. His task was as follows:
Critically discuss the Full Federal court decision in Kenman Kandy v Registrar of Trade Marks.
In particular, do you agree with the majorities view of the inherent registrability of shape
marks or do you agree with the dissent/judge at first instance approach?
As Minh stated, this was the first time he had ever had to write about a common law
decision. He says
I hadn’t done any uh assignment like this because uh, it’s uh, discuss a court decision, yeah,
so I, I don’t know how to do this (IP M20).
I discussed aspects of the structuring of his text in chapter 3, and here I want to comment
on issues related to disciplinary content. He opens his introduction with the following:
After the case of Kenman Kandy Australia v. Registrar of Trade Marks [footnote1], many
traders expressed their happiness with the majority decision of the Full Federal Court which
allowed the registration of a three dimensional, bug shaped sweet. One trader emphasized
that:
“This is a real victory for trade mark owners and those who come up with clever
and inventive ways to present and market their products”[footnote 2].’
With this result, trade mark owners should now find it easier to register their invented
shapes of product without the need to undertake the time consuming and costly task of
preparing evidence that demonstrates factual distinctiveness to secure registration
[footnote3]. This is very important development for the traders in the context that some
shapes of products now can increasingly accepted as well-known trade marks in market.
Underlined is thematic development; Minh is speaking here about the traders and the
benefit they would gain from the Kenman decision. Of interest here is that the only direct
reference to the traders’ interest in his sources was in a brief report of this case written by
89
the lawyer who represented and won the case for Kenman, and the quote, taken from that
report, is in fact uttered by a manager within the company of which Kenman was part. Minh
provides no signs that he might recognise the self-interest that this report and the quote
might serve for the author. What is significant is that the remaining ideational content in
this segment of his introduction is drawn from secondary sources which thematise legal
issues. Minh therefore has rewritten their comments (with considerable ‘chunks’ of
borrowed phrasing) from the sources he acknowledges (and some he does not) and created
‘traders’ as the theme. This theme is presumably taken up by Minh because he can identify
with it: his work in drafting legislation for the Vietnamese Parliament involved paying
considerable attention to the desired, practical outcomes of legislation, since such law
would be drafted in order to address specific policy objectives. It is therefore unsurprising
that he foregrounds the practical outcome here, even though his sources overwhelmingly
discuss the legal significance of issues raised by this case, as indeed Minh has been asked to
do.
Minh returns to this practical aspect in his conclusion, but now in a far more modified form.
His conclusion reads as follows:
From the above discussion, it can be said that in Kenman Kandy, the Full Federal Court has
first time discussed the registrability of the shape mark which is recognised in the 1995 Act.
While the decision of the court on the registrability of the functional shape is widely
accepted, the decision on the inherent adaptability of distinguishing the designated goods of
the non-functional shape mark is still controversial. However, the majority view in this case
which recognises the inherent adaptability of non-functional shape of product seems be
more reasonable then the dissent which may create an additional obstacle to the
registrability of shape trade marks under the 1995 Act. The majority decision of this case
should lead to a notable relaxing of the registrability of non-functional shape trade marks.
The shapes with some inherent capacity to distinguish should now be more likely to be
accepted as trade marks without the needs to demonstrate factual distinctiveness.
The first half summarises in very general terms the discussion that he has engaged in. The
second half (underlined) shows Minh’s reasons for accepting the majority decision. It is
“more reasonable” because it does not create “an additional obstacle” to registering shape
90
marks, and it leads to a “notable relaxing of the registrability” of such marks, and removes
the need “to demonstrate factual distinctiveness”. All these concern the practical interests
of traders, though he no longer mentions traders. It is noticeable that after all his discussion
he returns to make an evaluation in light of what we might characterise as a particular
policy (that registration should be easy for traders), a policy not actually discussed in the
essay. The evaluation is not in light of legal and policy concerns raised in the secondary
literature and rehearsed in his essay.
The interest motivating this framing does not appear to derive from the information he
engages with in his discussion. Although the word ‘trader’ appears in several places in the
main body of his essay and in his sources, it is in the context of discussions about legal and
policy interests, not discussions about the interests of traders. As examples, Minh at one
point comments that “Granting an exclusive right to one of these shapes would limit the
possibilities available to other traders” (a policy issue) and elsewhere, “the main issue
before the Court, again, was whether this shape was inherently adapted to distinguish the
confectionery of the applicant from the confectionery of other traders under s 41(3) of the
1995 Act” (a legal issue).
This Theme which recurs in modified form in the conclusion thus disappears from the main
body of his essay, where Minh follows the discussions as he finds them in his sources.
I am suggesting that this appeal to ‘traders’ and their interests reflects a prior outlook of
Minh’s and links him to a perspective that in some way ‘anchors’ him as writing subject,
even though it is not closely linked to the development of his text. Indeed the development
of his text might be viewed as the work of a writing subject making ‘vertical’ instrumental
forays into the literature in light of various perceived demands, with less evidence of a
’horizontal’ alignment of the substance incorporated in the manner a legal writer might be
expected to develop in a legal argument (Mertz).
In the second paragraph of his introduction, Minh identifies problems with this case. He
writes:
91
However, there are still some worries about the decisions in this case, especially the decision
that the non-functional shape can be inherently adaptable to distinguish the designated
goods, with the concern that it has effected a de facto change in the nature of the trade
mark law [footnote 5]. Furthermore, it is worried that Australian trade marks law has gone
too far and now surpasses its major trading partners’ law in the ease with which it permits
the registration of shapes as trade marks [footnote 6]. Even though it is hard to say these
worries are totally not reasonable, it can be said that they seems to be conservative worries.
These two ‘worries’ are raised by the sources he cites, but it is noticeable that the
conclusion does not address any resolution Minh might have reached with respect to these
two problems. They are also not dealt with in his essay. He briefly states at one point that
the decision effects a de facto change in the law but the concern that it ‘surpasses major
trading partners’ law’ is not a topic of discussion at all, mentioned in passing at one point
only. This suggests that while Minh takes his cue from his sources in both identifying clear
questions about the decision (in the introduction) and in reproducing some of the more
technical legal issues that both the judges in the case and secondary commentators address,
as writing subject the sense of unity that for Bakhtin (1986) marks an utterance is not so
apparent. This is not simply a function of language proficiency, nor of cognitive
understanding. Minh was in fact pleased with what he had learnt in researching and writing
this essay. The development of his text, of his introduction and the text as a whole, has
more to do with the position or perspective from which he views the material he deals with.
On the one hand I have suggested he assumes a position which is formed from his own
experience, and so he privileges the traders. On the other hand as a student he is concerned
to demonstrate his research and understanding, and so he develops issues in the body of his
essay not wholly foreshadowed by his introduction. Consequently, Minh demonstrates his
understanding of the content and frames it with a perspective he is familiar with, but this
does not very happily align with the substance of the content he engages with. That he has
difficulty in confidently assuming a position within the material he engages with is evident
from other comments he makes.
This does not imply he could not work more closely towards assuming a position developed
out of his resources. My argument is that to do so would entail subjecting his sense of self,
92
or of his already existing identities (eg ‘student’ and ‘identification with traders’ which I
have suggested he has largely relied on) to a certain loss, and embarking on finding his way
towards an identity within the legal discourses he is engaging with but without an assured
sense of self, or identity, that is, of clear meanings and a clear position within the discourse.
This is not easy and in Chapter 6 I consider the vulnerability Thuy experienced as, I argue,
she attempted to become a subject of common law and which indeed entailed a shift ‘from
one identity to another’ (Kristeva 1980), a process in which one is a ‘subject in process’.
While a sense of identity does indeed provide a sense of stability, of self, this transition
involves a loss of such security and I shall discuss this with respect to Thuy in Chapter 6. The
point I wish to make here is that Minh proceeds from positions that have relative stability
for him.
Minh included in his text a section on ‘functional shape’, even though the Kenman decision
was about the registration of non-functional shapes as trademarks. When asked why he
included a section on “the registrability of functional shape” he says “I, I, I put it in, in the
ass, assignment because uh in the question, uh the assignment question, they told me that
uh [pause] um,” (IP M54) but then enters into a long pause, looks at the question and
realizes it was not asked for. He then says:
mm, because, um [pause] um, because, because um during the, the court decision they, they
uh also as a court decision also mention about uh, uh functional shape mark. See that?
[interviewer - so they refer to that, right] yeah, refer to that, and they argue that, that uh, uh
the shape mark of, uh, of Kenman uh is not mm a functional shape mark. [mm]. Yeah, uh, so
I think I have to just mention about it. (IP M54)
It is clear this is an example where the perceived authoritativeness of texts is allowed to
override his interest in coherence. Minh confidently feels that coherence in his text is
important and that would be the reason for including information in it. There is no question
that Minh understands the importance of coherence, and that elements of the text are
included because of their ‘horizontal’ links to other elements that are all relevant to the task
and included for that reason. But instead his reason is that the judges in the case discussed
functional shape, which they did in order to clarify what the Kenman case was not about (all
93
the Judges agreed it was not about functional shape, and they presented their reasons for
this). The case is not about ‘function’ (that is, whether the shape is integral to the function
of the product itself, for if it were, the shape could not be registered as a trademark because
it would provide the trademark holder with a monopoly not over the shape alone but over
the product type, which would breach Competition Law) but about whether the shape can
adequately distinguish one product from another. Consequently Minh does not show how
the discussion of functional shape is relevant to his task. Indeed, it might be very difficult to
do so. However, Minh does not attempt to because the reason for including this discussion
derives not from it being integral to the development of his argument, but because he has
followed something he takes to be a practice of legal discourse and which he apparently
feels obliged to follow. Reading cases was a problem Minh had already mentioned, saying
that “It’s very hard because I’m thinking she said like this, and then she said, uh, in a
different way” (IP M36) and so he is not sure quite what the point being made is. He also
notes that “the court decision is uh to interpret one, uh, interpret legislation” and it is
possible he feels he should follow what the court does because he takes this as a model and
it suggests to him that common law discussion requires this kind of interpretation of the
legislation. If so, this is a good example of how ‘learning by imitation’, a reason given for
‘patchwriting’ in Angelil-Carter for example (2002 p. 42), is not at all guaranteed to succeed
(I discuss this further in chapter 6). Rather than opening up the authoritative word to
different meanings (MZ cited above), Minh adopts the authoritative word as complete
(Bakhtin 1981 p.342) but at the cost of it intruding into the coherence of his own utterance.
4.6. Conclusion
In this chapter I have argued that legal writing is a constant matter of refixing the ‘meanings’
of legal doctrine, and the skills that students are trained to take up are meant to enable
them to deal in ways suitable to the epistemic underpinnings of the discipline with the
sources of law in various forms and thus engage in the ongoing interpretation and rewriting
of law. I have also argued that becoming this sort of person, which first year legal training is
meant to bring about for students [Mertz 2007; Kamler and MacLean 1997) is not
94
necessarily successful (MZ’s comment that they ‘forget’ what they have learnt) and neither
does this lack of success appear to diminish the possibility of students doing well. This is
because of the shifting between language as ‘fixed’ in meaning and language as ‘open’ to
being read differently. While Mertz argues this is central to the function of the law, I am
arguing that in student writing the constitutive lack of finality the intertextuality of law
brings to its meanings opens up the indeterminacy of an identity position the students can
occupy within the law. Consequently, there is a reliance on representations of the law which
provide for the student a sense of a writing self that has some stability, and these
representations precede an engagement with the law as such, and hence impede the
student from taking up the position both MZ and Mertz suggest properly belongs to legal
practice – of producing different readings from authoritative text. Thus students rely on
secondary sources which can be read as authoritative in the representations they make of
the law. At the same time, the mode of reliance on secondary sources can vary. I have
suggested that Narin tends to align what he takes up from his sources in light of an already
existing sense of ‘self, that is, already given interests. Minh, I have suggested orients his text
around prior legal interests he has, but also attempts to engage with the practices of law,
though as I argue, from positions (such as ‘imitating’ a discussion of functional shape) which
remain outside the positions law calls for. I shall discuss Thuy’s writing more fully in chapter
6, and there I shall argue that she attempts more successfully to engage with legal discourse
and practices and it is in light of this I provide an explanation for her extensive use of
‘patchwriting’. The important point I make there is that this practice by Thuy can be linked
to the formation of a subject position, and all the vulnerability this entails, not as the act of
an instrumental subject attempting, through imitation for example, to ‘feign’ a position as a
writer in law, or as an act of ‘mushfake’ (Gee 1996 pp147-8), or as an attempt at ‘cheating’.
95
Chapter 5
Dialogism in assessment of a student task
5.1. Introduction
In this chapter I consider two readings a lecturer-assessor made of one of the student essays
in this corpus. Drawing on Bakhtin’s concept of ‘dialogism’ (Bakhtin 1981), I show how the
readings are tied to the context in which they occur. Consequently, I argue that such
readings are not made by reference to ‘universals’ that might be said to characterise legal
writing and provide a ‘list’ of qualities the lecturer looks for when reading and assessing the
student text. Rather, it is argued such universals are ‘nuanced’ and constructed in light of
the particular context in which the reading is made. This context is not given, but is
constructed dialogically and as a consequence the student contributes to what counts as
disciplinary writing. Disciplinarity is thus constructed dialogically and in this sense it does
not exist in some neoplatonic world of ‘forms’ to which each instance of a disciplinary
discourse must refer to obtain its legitimacy. Rather, legitimacy is dialogically constructed
and as a result exists in its instantiation. This does not mean of course that readings (and
writings) have no constraints. An utterance, as Bakhtin insists, always responds to prior
utterances, and it is this responsiveness, or ‘engagement’ as the lecturer in this study puts
it, which is central. Nevertheless, what counts as engagement is in its turn also dialogically
constructed and thus I will show that the sort of engagement the lecturer looks for in both
readings is not always the same. Even so, it is significant that the notion of disciplinarity is
maintained by the lecturer throughout this appeal to engagement with primary sources.
Therefore, it is not specific practices which remain constant across all instances of
disciplined ‘legal writing’ and define what legal writing is, nor is it the case that the term
‘engagement with primary sources’ always means the same. I will show how this attribute
made central by this lecturer in fact shifts between engagement with text and engagement
96
with ideas and in this way acts out the feature of law raised in Chapter 4, that it is both
‘fixed’ and ‘unfixed’. The feature which remains constant in the description of what counts
as engagement with prior texts entailed by legal writing is the signifier ‘engagement’ rather
than its signified. I will discuss further in Chapters 6 and 7 the role of the signifier, in
contrast to the signified, in sustaining a sense of disciplinary or discursive unity and
continuity.
5.2. The concept of dialogism and dialogised heteroglossia
‘Dialogism’ is a central concept in Bakhtin’s account of language, and for this reason, as
various authors have noted (eg Vice 1997; Holquist 1990) it carries a considerable
theoretical load, being made to work in various ways. With its closeness to the idea of
dialogue it is sometimes conflated with it. For example, in his book titled ‘Dialogism’
Holquist (1990) refers to dialogue in each of his chapter headings (eg ‘language as
dialogue’). In an example from the area of language learning, Braxley (in Hall et al 2005)
represents dialogism as “the interaction between a speaker’s words, or utterances, and the
relationship they enter into with the utterances of other speakers” (p. 12) and examines the
exchanges between students and lecturers (pp. 13/14) in order to understand the process
by which students are guided towards mastery over the academic discourses and practices
they are being inculcated into. But as Hirschkop (1992) notes, while dialogism certainly is a
form of encounter (p104/5), it does not necessarily entail an exchange where interlocutors
reply to each other. Words and utterances refer to each other because their meaning
derives from past uses and in this respect words are necessarily juxtaposed against, and are
a response to, their previous uses and consequently the contexts of those uses also. In this
sense dialogism refers to the way words speak to each other, rather than individuals in
dialogue. Dialogism thus involves a refraction of language (everyday or professional), since
any utterance is always a citation or representation in one manner or another of prior uses.
But this does not involve a dialogue in the usual sense of the word. Indeed, as Bakhtin
states, to view “dialogism as argument” is to take a “narrow understanding” of it (Bakhtin
1986 p. 121). This is because “the relation to meaning is always dialogic” and “even
97
understanding itself is dialogic” (Bakhtin 1986 p. 121, original italics). Consequently
dialogism is between texts as much as between people: every text is an utterance for
Bakhtin (1986 p. 104) and as such “has a subject or an author” (p. 104), but nevertheless
there is a “dialogic relationship among texts and within a text” (p. 105) which is not entirely
reducible to the speakers/writers.
Nevertheless, a dialogic relationship incorporates into itself the voices which inhabit an
utterance and thus it is heteroglossic. As a result, Bakhtin speaks of ‘dialogised
heteroglossia’: “The authentic environment of an utterance, the environment in which it
lives and takes shape, is dialogised heteroglossia” (1981 p. 272), where the multiple voices
that infuse past uses of language ‘speak to each other’ in the present context. For Bakhtin,
the novelist in particular deliberately puts this to use by creating multiple voices, although
as Hirschkop (1992) points out, we cannot speak of dialogue in the novel since the
characters who speak are all produced by the author who creates ‘typified’ voices to serve
his own authorial intent. No character in a novel can speak back.
However, Bakhtin does confuse matters by contrasting dialogism with monologism, and in
this contrast both describe a contingent moment in language use. Thus Bakhtin speaks of a
“monologically sealed off utterance” (1981 p. 296), where the author (and for Bakhtin, the
poet especially) “strips the word of others’ intentions” and where the word “forgets its
previous life in any other contexts”. “The poet must assume a complete single-person
hegemony over his own language” and make it subordinate “to his own, and only his own,
intentions” (1981 p. 297). Thus in everyday life too an individual goes about submitting
others’ words to one’s own purposes and intentions (1981 p. 294) to produce a
word/utterance that is monologic, even though the traces of heteroglossic voices are never
extinguished as such. Consequently, an ‘otherness’ always remains embedded in ‘one’s
own’ language. But in so far that the use of a word, even a poet’s use, can be effective only
because of prior uses, any utterance necessarily refers to past uses and is in a dialogic
relationship with them. In so far that “our discourse will be synchronically informed by the
contemporary languages we live among, and diachronically informed by their historical roles
and the future roles we anticipate for them” (Vice 1997 p. 46), dialogism does not refer to
specific uses of language but “it is language per se” (Hirschkop 1992, p. 106). Thus in Bakhtin
98
there is a tension between dialogism as a contingent phenomenon and dialogism as an a
priori, constitutive aspect of language and this accounts for some of the shifts in uses the
term is put to by those drawing on his theory of language.
Yet even as Bakhtin speaks of monologism and the struggle to make words one’s own (1981
p. 293/4), the appropriation of another’s word never fully yields to one’s own purpose.
Bakhtin argues that the creative consciousness (speaking subject) that brings together
various languages (or discourses) thus must choose a language as its own: “consciousness
must actively orient itself amidst heteroglossia, it must move in and occupy a position for
itself within it, it chooses, in other words, a ‘language’” (1981 p. 295). From this perspective
it aligns other languages and the heteroglossic voices/genres it draws on. But the trace of
such other discourses is never fully lost, and consequently as one produces one’s own voice,
there remains embedded in it an ‘otherness’ which can never become ‘one’s own’.
Nevertheless, Bakhtin speaks of mastery and this understanding of dialogism as the means
of gaining mastery has been appropriated by researchers such as Cazden (1989), Hall (1995),
Luk and Lin (2005) and many others, to show how learners of discourses successfully bind
together different voices to produce a hybrid utterance that addresses both speaker’s own
preferred discourses and those imposed upon him/her (eg ‘Nazz’ in Cazden’s (1989)
account), or to subvert existing practices (Luk and Lin), or as a means of mastering the
existing conventions of a specific form of literacy (eg academic writing – see Braxley 2005 in
Hall et al). In these accounts the emphasis is on the subject’s success in mastering the
discourses and producing a desired monologic voice, rather than on the constitution of the
subject from dialogic effects in ways that cannot be readily foretold or mastered.
However, Bakhtin also suggests that dialogism produces such an unsettling effect on the
subject. He argues, with reference to the novelist, that when an author incorporates into his
literary novel voices from other languages (eg the peasant, church) he recontextualises
them, re-frames them, and so “they lose . . . the quality of closed socio-linguistic systems”
(1981 p. 294) as they are made to work for the novel. He adds “they are deformed and in
fact cease to be that which they had been simply as dialects”. Yet he notes too that
99
these dialects, on entering the literary language and preserving within it their own
dialectological elasticity, their other-languagedness, have the effect of deforming the literary
language; it too ceases to be that which it had been, a closed socio-linguistic system” (1981
p294).
Bakhtin is clearly speaking here of the effects of different languages/dialects on one
another, and clearly, by implication, the effect on the subject who speaks such languages.
Thus the subject is changed by such a process and this is often ignored in approaches that
seek to empower students to submit language to their will, and so resist uncritical
submission to the discourses they are presented with (see, for example, the work of ‘critical
language awareness’ described by various authors in Fairclough (ed) 1992). The ‘speaking
subject’ who assimilates one discourse to another (eg the student Nazz in Cazden 1989, who
makes adaptations to the discourses of Education he is learning in order to reconcile them
with his ‘home’ discourses) will be changed by this process; there is no guarantee the values
and interests that motivated the creation of such a hybrid will remain intact as the speaking
subject is affected by this process. Cazden’s account, and others making similar points (eg
Ivanic 1997; Lillis 2001; Benesch 2001), tend to accentuate the change the writing subject
makes to the representation of self, but the speaking subject who desires and is attached to
such a representation appears to remain untouched by such a process. (I take up this point
again in Chapter 7 when I discuss Kamler’s (2001) critique of ‘voice’ and the changes she
argues are made to subjectivity through the representation one makes of oneself in one’s
text.) Indeed, one could argue that to the extent that the representation desired by the self
is successful (which ‘empowerment’ models of writing aim at) the speaking subject is in fact
affirmed and further entrenched, rather than “set in action, put on trial” (Kristeva 1986a p.
31). For Kristeva, under dialogism “the notion of a ‘person-subject of writing’ becomes
blurred, yielding to that of ‘ambivalence of writing’” (Kristeva 1986b p. 39).
I would suggest the subject cannot necessarily anticipate in advance precisely what change
will be effected. The incorporation of another language into one’s own will alter the ‘self’
and hence the intention according to which such an incorporation was planned. It can never
fully satisfy the subject’s intention because the process of incorporation will subvert such an
originating intention. For this reason, it is difficult to speak of mastery over language, even
100
though Bakhtin certainly refers to individuals gaining mastery. But of significance for my
argument in this chapter is that the disciplinary discourse, that which the lecturer brings to
the assessment of a student’s text, will mean differently as it enters into a dialogic
relationship with the discourses the student brings. Of course, as Bakhtin states, and Prior
(1998), traces in disciplinary writing or the process of ‘disciplinarity’ (Prior) is highly
heteroglossic. Bakhtin’s account referred to above foregrounds specific voices (eg literary
language) from amidst this heteroglossia, and elsewhere he links this privileging of a specific
voice to intention and choice, as noted above (one must ‘choose a language’). For students
however, recognition and choice of a ‘language’ is precisely that which in certain respects is
not available to them, since these languages remain relatively obscure to them. This is
particularly difficult if a student seeks to acquire what they assume exists – a disciplinary
language – but which as yet remains relatively opaque to them. I shall argue in later
chapters that we can see that text, in its materiality, assumes the role of the ‘chosen
language’ for the student, not as a chosen substitute used as a means to an end, but as
constitutive of the discourse and the subject. However, in this chapter I will show how this
operates for the disciplined reader, the lecturer-assessor.
Disciplinary and professional language is often perceived as monologic. Smith (1999) for
example argues that the discipline of Sociology is heteroglossic in nature in that it feeds on
the multiple languages of everyday life, but then “subordinates the intentions and
perspectives of the original speakers to the ‘order of discourse’ managing sociology’s intra-
textual dialogues” (p. 139). Thus “dialogue is subdued to the monologic or unitary language”
(p. 139), although this originating heteroglossia provides “the potential for eroding from
within the discursive coherence on which sociology’s existence as a discipline depends” (p.
138). Threadgold (1997b) describes a similar operation in Law: the voices a woman, for
example, brings to the court which express her own experience of abuse are re-formulated,
often beyond recognition to the woman, in the language of law in order for ‘due process’ to
be carried out.
Nevertheless, such monologism is not monolithic. As Smith (1999) argues, the heteroglossic
nature of the material sociology works with also provides the potential for subverting
sociology’s monologic. The ‘huge stabilities’ that Threadgold sees acting centripetally to
101
keep discourses and their users in line are embodied, but this is an inscription in the body of
discursive practices which is both linguistic and practical, and neither can in truth be
privileged. As the body impacts on possible meanings, so also do possible meanings impact
on the body: Habituated practices therefore do not preclude the possibility of an individual
representing the world differently, and making such different representations will have an
effect on the body. But following Halliday’s (1994) tripartite classification of the
metafunctions of language, Threadgold argues that while intended changes in
representation are easily achieved at the ideational level, the persistence of these huge
embodied and discursive stabilities are evident at the text function level (in the organisation
of Theme, and in the way cohesion is constructed through the text). These reflect deeply
habituated, embodied practices and she shows some of the affective consequences for the
individual who tries to occupy a different place from which to speak. Threadgold speaks of
the difficulties of “making meanings with the body” in the theatrical context, which she
takes as “a metaphor of the much slower and less visible processes by which genres,
discourses and narratives are embodied or rewritten as history and habitus in the business
of everyday life and in the processes we call education” (Threadgold 1998a p. 125). Change
here does not simply have to do with cognition, but with the body and affect. I consider this
affective element with respect to one student, Thuy, in Chapter 6. There I discuss the
difficulty for a student who is engaged in the process Threadgold refers to, of the process
through which the student becomes subject to a discourse which is still ‘other’ to her.
However, in this chapter I comment on the dialogic effects on the lecturer, who is not in the
same sense as the student becoming something ‘new’ as she engages with student texts but
rather, how she, caught in the dialogic cross-currents of different discourses on two
occasions of reading a student text, reads them quite differently, even though on both
occasions she certainly experienced herself as reading the text in a disciplined way.
I argue that while for the lecturer the sense of ‘monologism’ is retained in that as a
disciplined reader (eg a lecturer-assessor) she reads the student’s text according to the
demands she understands the discipline to impose, two readings which are perceived as the
same are nevertheless subjected to the dynamics of dialogism and to the effects varying
discourses have on each other. Thus, in the case to be looked at in this chapter, when the
102
lecturer made a second reading of the same student text she experienced ‘shock’ at her first
reading which in retrospect she could see was quite different. This, I suggest, is due to a
dialogic heteroglossia analogous to that which Smith recognises in sociology as having the
capacity to subvert its monologism. However, my argument here is that monologism itself is
subject to ongoing production and exists only in its instantiation. Thus, though the lecturer
experienced herself as being disciplined on both occasions of reading the student text, her
second reading caused her to feel ‘shock’ about her first reading. Two equally disciplined
readings surprisingly turn out to be very different, and it is this surprise (or shock) which
discloses the incommensurability between the two readings. What maintains the ‘sameness’
is appeal to certain organising terms (in the case study to follow, words such as
‘engagement’). It is therefore not consistency of meaning which is at stake here, and which
brings into relief the empirical sameness of the readings, but rather it is the force of a word,
in its materiality that organises this ‘sameness. That is, the word ‘engagement’ is used to
describe the process in both cases and thus remains constant, but the signified attached to
the word in fact varies. The consistency is sustained by the word through a function it has
that is not reducible to its meaning, and this is its function as a signifier. It is language as text
that is effective here. That is, the word, as Bakhtin insists, is used intentionally, yet its
effectiveness is not in the intentional meanings as such, but in its performative function of
constituting a consistency across uses. What is constant is the word per se. I shall discuss
further the significance of the materiality of the text in later chapters, with particular
reference to Laclau and his concept of the ‘empty signifier’ (eg Laclau 2000 p71).
5.3. Dialogism in a lecturer’s reading of a student text
In this section I will look at two readings by MZ of Narin’s essay written for the ‘Law of the
Internet’ unit of study. The first reading was for assessment, and was made soon after he
had submitted it. The second reading was five months later, when she read it again to
remind herself of it in preparation for the interview for this project. My aim in this section is
to show how the discursively mediated interactions between the student (Narin) and his
lecturer (MZ) not only influenced her readings of his text, but constituted the text in
103
different ways. That is, while the material text is the same on both occasions, the meanings
it yields are different.
I will argue that this was not a case of the text being read in the same way on both occasions
(as perhaps a ‘socialisation’ approach might assume a text is read, see Lea and Street 1998),
but with the reader feeling more sympathy and generosity towards the writer in the first
reading. There was certainly no indication from the lecturer’s comments that this was how
she made her first reading. Indeed, her statement that in her second reading she was
‘shocked’ at the assessment she made of the text in her first reading suggests precisely that
the readings were quite different; she was surprised she had read it differently. This
suggests that on both occasions she read the text in a way she experienced as disciplined, or
we might say, ‘monologically’. Yet she finds – retrospectively – that these disciplined
readings are quite different. And this finding shocks her. It is not therefore the meaning she
reads from the text that remains constant, but rather the representation she would make
about those readings. Indeed, at the time of the interview she stated that what she valued
(in the second and in the first reading) was that Narin engaged with his sources, and I am
suggesting it is this word in its function as a signifier that provides a sense on both occasions
of reading the text in a way that for her is disciplined, even though what counts as
engagement changes significantly. I am suggesting that the sense that both readings, at the
time they were made, were disciplined and monologic is sustained not by the persistence of
the same meanings but rather by the persistence of the same words one uses to index one’s
disciplined reading. Thus I will show how words like ‘engagement’ and ‘primary sources’ are
presented by the lecturer as critical terms in her reading, but that their meanings shift on
the two occasions she reads the same text.
5.3.1. The different readings by the lecturer
On reading Narin’s text for assessment, MZ awarded a Distinction. The second reading was
made five months after the first one, in preparation for the interview with the researcher.
When the Distinction she had awarded was mentioned, she said
Yes, which I was sort of a bit shocked about when I actually read it again only because. . . on
a raw, on an absolutely objective raw standard it’s not a distinction [pause] but [pause]
104
reeealising (word is stretched out) all the effort that he had actually put into it and the fact
that most of the other students didn’t put that level of effort into it, it became a distinction
(LI MZ4).
She goes on to say:
it recognises the fact that he really did (pause) really try to do what he was being asked to
do, um (pause), (the pauses create the sense that she is thinking carefully about what – or
how - to say) that, that re-reading it through you wouldn’t . . . like it has things like it has
citation errors in it, uh, and it has, uh, problems with expression and odd things in it, uh,
strange words, inappropriate words, but probably more importantly, that the, the citation
isn’t, isn’t accurate. Um, but recognising that he was really trying to get a grip on something
that was fairly complicated [mm], then I think, that’s why I pushed him up (LI MZ4).
Several points can be made at this point. Firstly, MZ says it is because of Narin’s effort that
she awarded him a distinction, even though at the same moment she notes weaknesses
which on her second reading achieve greater prominence and which contribute to the sense
of shock she has about her first reading, even though clearly empirical features such as
citation errors were present and evident in the first reading. This feeling of ‘shock’ suggests
that the position from which the lecturer read this text in the first instance, from which she
comfortably awarded a Distinction, cannot be assimilated to the position from which she
makes her second reading, and for this reason it produces a sense of ‘shock’. However, she
does go on to retrieve, or reconstruct, her reasons for awarding that grade in the first place
and in doing so represents those same citation practices as evidence of the engagement she
valued. That is, the disciplinary failure (citation errors) she recognises in this second reading
is now retrospectively attributed to the first reading as evidence of disciplinary success as
she articulates citation errors with ‘effort’ and ‘engagement’, rather than with more
abstract formulations of what good ‘legal writing’ consists of. It could be argued that the
same phenomenon is framed by two different discourses which give quite a different value
to the same phenomenon. In the second reading a more ‘disciplined’ perspective was taken
with the emphasis placed on formal qualities associated with the final text product, whereas
in the first reading more weight was given to pedagogical concerns which foreground the
105
participation and activities of the student. However, I would suggest the first reading was
also experienced by MZ, at the time of making it, as ‘disciplined’ and for this reason it causes
shock, since it seems irreconcilable with her present reading. There is no suggestion by MZ
that she intentionally read this text from a different perspective in her first reading. Instead,
she justifies it now by appeal to the concept of ‘engagement’ and thus aligns it with a
practice she makes central to legal reading/writing in the interview, which was the occasion
for her second reading. Indeed, as the interview proceeds the insistence on engagement,
and the evidence citation and other practices provided of this, is quite evident, even though
there are sometimes contradictory shifts in what engagement refers to (for example, she
applauds his engagement with primary sources, as he was asked to do, but she also
bemoans his failure to engage with primary sources and his too heavy reliance on secondary
sources, but in turn this engagement with the ideas drawn from secondary sources is
presented as a strength). In this respect, the signifier ‘engagement’ has the effect of
producing consistency across the readings, even though in my reading it appears to refer to
inconsistent practices.
Secondly, the reasons MZ provides to justify the distinction she awarded to Narin have less
to do with attributes of Narin’s text and more to do with the person. She cites the effort he
made. This effort was clearly something she was aware of during her first reading, since she
wrote at the conclusion of his essay: “a very good effort to explain and explore some
complex issues. You have done well to consider and discuss the relevant cases, legal issues
and practical consequences. Well done”. Nevertheless, we can assume that at the time of
grading his essay she would not simply have paid attention to ‘effort’, but also would have
viewed this effort as resulting in a text worthy of the grade she gave. Certainly the account
presented of the first reading during the interview is a retrospective construction of what
she valued, as she seeks to account for the grade given and the effort is something she can
confidently recall and refer to. That this might not be all that is involved, however, is
suggested by the third point I would make. She concludes her statement with the phrase “I
think that’s why I pushed him up”. This appears to introduce some uncertainty about the
explanation she has just given, which again indicates something not quite reconcilable
between the first and second reading.
106
The comments and other remarks MZ made on Narin’s text when assessing it leave some
trace of the reading she made at the time. Apart from the general comments mentioned
above, MZ wrote only one other comment on the text (suggesting Narin needs to explain
further a legal issue he had raised), but she placed 34 ticks (at least two a page, sometimes
three or four). She also made a few brief corrections, four language related on word choice
and grammar, eight to do with citations (to do with adequacy of the citation to a primary
case or whether the appropriate case was cited and all these were to do with citation of
court cases).
5.3.2. The Lecturer’s relationship with the student
The comments MZ makes about the ticks she placed on Narin’s text strongly suggest that
while assessing his essay she had very much in mind the encounters she had had with him
and that during her reading of the essay she continued that dialogue with him.
At the very beginning of the interview when she was asked what she looked for in students’
writing MZ began her response by saying:
It’s interesting that you chose this assignment to talk about because I actually remember
him very well which is unusual because, um, this subject is taught entirely online and so
often I don’t get to see, to talk to the students at all, but he actually came to see me, at least
once, I think it is probably more like twice. Or I spoke to him. So it was unusual in the sense
that I had more contact with him than I have with the majority of students that do this
subject.(LI MZ2).
The familiarity of this student for her amongst others provides a context for many of the
comments she makes about his text, for the relationship with him appears in many respects
to shape her reading of his text. The value of his text is often presented in terms of what
Narin the person does, rather than what the text achieves, and so the interpersonal
relationship impacts on the construal of the disciplinary and the dialogue begun in the
encounters with him continues through the reading of his essay, with dialogic effects.
This relationship is evident in the explanation she gives for the ticks she places on his text.
The function of the ticks is both disciplinary (it acknowledges the writer is hitting the
107
disciplinary mark) and pedagogical (a form of encouragement). When the lecturer was
asked what the ticks meant, she said:
I will try and put a tick on every page to show that I’ve actually read that page . . . . I think
with this one I have put more ticks because [pause] to me it was sort of saying, yeah, you’ve
done, you’re doing what I’m asking you to do, you, you, you’re going, you’re following the
steps that I want you to follow, you’re um, um, you’re, you’re, you’re doing, your structure is
good, you know, because I think I remember talking to him about this, I was saying to him,
‘look, in order to understand what these cases are really about, you have to, to get to grips
with what the basic principles are’, and this is what he does . . . . he really (pause) does well
to kind of um step you through the way in which his argument flows. So he builds it up from
the basic building blocks and then he takes you up and then starts talking about the cases.
So the ticks are there because basically they are me saying ‘yep, yep, yep, yep, yep’, as I’m
reading it he might hear it, that’s what I’m saying, ‘yep, yep, yep, yep’, ticking where I am
saying that (LI MZ6).
The ticks are not merely encouraging signs, which at the outset of this turn she suggests
they might be. They acknowledge Narin’s response to her advice to him and in this regard
they are clearly another turn in this ongoing dialogue. Thus in the interview she in fact
addresses remarks to him (“you are doing what I am asking of you”) and to the interviewer
she says “I remember talking to him about this” thus explaining why she pays attention to
and ticks the points she does. Yet there is also an incorporation into this of features that we
might think of as ‘discipline-universals’, which are demands she understands the discipline
of law to impose on students. Indeed, we might well suppose that as the teacher this is how
she understands her task; in other words, Narin is not only responding to her but in doing so
is also responding to the disciplinary constraints of which she is a mouthpiece and these are
constraints which transcend the particularity of their encounter. This blending of what we
might for the sake of convenience describe as the particular and the universal is suggested
in such phrases as “you are doing what I am asking you to do”, where this request is not
something located in the past, in a particular encounter, but in its present continuous tense
belongs to something more enduring than the contingent encounters she had with him, a
continuous asking that never ceases. The phrase “you are following the steps I want you to
108
follow” has a similar sense. When she refers to Narin in the third person and says “he steps
you through . . .”, “he builds it up”, there is the sense of him performing a task which has as
its backdrop ways of doing things that are not restricted to the demands of their particular
encounters. There is thus a hint of a distinction drawn between the [universal] disciplinary
and [particular] pedagogical encounter, but the disciplinary is incorporated into this
pedagogical relationship, which necessarily privileges the student-teacher relationship. This
foregrounding of the pedagogical relationship and the personal dimension it introduces is
evident in her final comments in the quote above: “as I’m reading it he might hear it”
strongly indicates a continuation of the past encounters she had with him in the present
context of her reading his text for assessment. The dialogue between them continues and
the features she reads as disciplined in his text are tightly bound up with that dialogue.
Narin also reads her ticks and comments in light of their relationship rather than as a
comment on disciplinary issues, and so his reading of these ticks is another turn in this
ongoing dialogue. When asked how he understood the ticks, he said “she . . . really uuh nice
to me” (LI N72), and he immediately followed this comment by mentioning he had been to
see her and had consulted her during the preparation and writing of his essay (LI N74). It
was as though he recognised that some of the ticks at least were related to their discussion,
and indeed, he did ‘hear’ her in this sense, although not quite in the complimentary way MZ
intended. Later, when asked again what the ticks might mean (LI N86) he said “Just say OK,
OK OK , OK OK OK OK. Doesn’t mean it’s really good.”
5.3.3. Disciplinary reading of Narin’s text
I have suggested so far that MZ read Narin’s text in light of the response he made to the
direction she gave him, direction which no doubt was aimed at pointing him towards the
constraints the discipline of law places on writing and legal argument. The personal
relationship in this respect is a means to an end, a part of the particular ‘scaffolding’ which
can eventually be discarded once the student reaches the point of autonomously mastering
the universal-disciplinary practices that will allow him to use the “basic building blocks” in
an appropriate manner. However, I want to argue in this section that disciplinarity itself is
109
not only nuanced but made differently in light of the dialogic relationship it enters into with
the discourses constructing the pedagogic/interpersonal encounters (see also Prior 1998).
In commenting on what she looked for in student writing, MZ said:
what I was looking for in the assignment topic was predominantly that the student actually
engaged with the subject matter. So they would demonstrate that they had actually thought
about the topic, and that it had actually filtered through their brain, and instead of just
repeating things they had read, or what they thought was the right view or something, that
they had actually attempted to actually, personally engage with it, and come up with some
thoughts. Whether I agreed or disagreed with what their thoughts were [mm] uh, the most
important thing to me is that they demonstrate that they had read the cases, and that, that’s
the most important thing, that they engage with the primary material, and that, hopefully,
that they had also tried to engage with some secondary material. So, demonstrating that
they had read and understood the cases being the most important tool [mm] to us, you
know” (LI MZ2).
I have underlined the practices she mentions, and these are practices clearly understood by
MZ to be necessary for good legal writing. They describe a mix of personal attributes
(‘actually thought’) and disciplinary requirements (‘engage with the primary material’). The
shift to the ‘most important’ disciplinary requirement is also accompanied by a shift to an
accentuation of the ‘universal’ quality of such a requirement, when she speaks of it being
most important “to us”. But meeting this demand is precisely what Narin did not do:
and he refers to uh, a secondary article, when he should be really referring either to a
provision of the Act, or um, or to a, a case that supports that. Um, which, you know, again
indicates that he’s, he’s relying too heavily on secondary materials, but, that’s what they all
do . . . . the difficulty that we have is trying to get people to engage with the primary
materials. (LI MZ8).
In fact, there is a real “mish mash” of sources (LI MZ10). Sometimes he fails to cite relevant
cases, or gets the names wrong, “the citation isn’t, isn’t accurate” (LI MZ4). An
inconsistency in repeat citations of particular cases is clear evidence of “cutting [the
citations] from a secondary source” (LI MZ 36-38). “He has odd references for, you know
110
what he relies on as being the American law” LI MZ8), and more generally she states that
“Citation is very important to me (spoken slowly and deliberately) . . . when citation is poor,
it generally indicates that they’re relying on secondary sources” (LI MZ34) and more
generally she concludes “he probably bluffed his way through the primary sources” (LI
MZ78). Citation is important therefore because it traces the engagement one has with
sources, and for Narin, “well, citation is terrible” (LI MZ33).
Narin agrees he relies on secondary sources. He says:
I kind of confess to you something uuh she required me to read the the actual case, but I’m .
. . I think no, it doesn’t help (LI N94).
He later adds “I didn’t read whole case. I just read an article that refer to the case” (LI N98),
but these comments about not reading cases are made by Narin in terms of his failure to
meet MZ’s demands, rather than a problem of not meeting disciplinary requirements and
making suitable disciplined arguments. His comments arise from his dialogue with MZ
rather than address perceived disciplinary demands.
For MZ, Narin falls short in various ways with regards to citation. When she says his “citation
is terrible” (LI MZ33) and goes onto say that “citation is very important to me” (LI MZ34),
she takes Narin’s citation practices as evidence of a failure on his part to engage directly
with primary sources, a practice MZ has represented as very important. Nevertheless, at the
moment MZ spoke of Narin’s ‘mish mash’ of sources, she goes on to mention a positive
point:
there’s a sort of a real mish-mash of sources too. The interesting thing I remember about
him too is that he read Lawrence Lessig, and he was very inspired by Lawrence Lessig. (LI
MZ10).
Of the inspiration Narin draws from Lessig MZ adds:
Which is kind of good, and uh kind of bad. Like, again, I, I was really pleased that it had that
resonance with him, I was really pleased that he sort of read it and that it made him quite
enthusiastic. Now, we don’t always agree with everything that Lawrence Lessig says, but
that’s what I mean, at least it got him to engage, got him to have some passion about it, and
111
I remember him sitting there, going “I read Lawrence Lessig” and you know, I thought this,
and I thought, great, you know at least he’s read it, at least he’s read it and not just from the
point of view of wanting to cut and paste it into something, but read it and thought “wow, I
think this says, this speaks to me in some way”. So it was sort of then a question of getting
him to say “OK, you’re excited about Lawrence Lessig, but can you sort of take a step back
from that and now tell me about the Law”. Because Lawrence Lessig is, is a, is a lawyer
[mm], but he sort of speaks at this very, sort of general theoretical level. Yeah. So it was a
sort of a question then of steering him in the right direction. And I think that was the other
thing, that I was pleased too, that it was clear to me that he had taken on board the
discussions that we had had. So when I had sat there and said, now what I want you to do is
this, this, this and this, and he’d gone away and done it, those things, yeah. Not done them
brilliantly, but done them . . . yeah (LI MZ12).
The virtue of the Lessig text is that “it got him to engage”, “got him to have some passion”,
and she presents this as the starting point which enables her to guide him onwards to the
practice more central to legal argument; “now tell me about the law”. Thus amongst the
inadequacies (his ‘mish mash’ of sources, his enthusiasm for a writer “we don’t always agree
with”) MZ has an enthusiasm for the personal effects this encounter with Lessig has on
Narin and the basis this provides for her interactions with him. There is a clear shift from the
negatives at the discipline-universal level (appropriate citation practices and appropriate
sources) to positives at the personal and particular, contingent level of events. And indeed,
the virtue of Narin’ work is now presented wholly in such personal and interactive terms,
rather than disciplinary. Thus she states “I was pleased” that “he had taken on board the
discussions that we had had” and that “he’d gone away and done it”, and the significance of
this contingent, personal element is evident in a statement she made later in the interview:
I think, what, what, what was so outstanding about this piece from Narin was that he was
told that he had to do this, and he didn’t like doing it, but he did it and hopefully he learnt
something from it.(LI MZ74).
While it is clear that in her discussions with him MZ certainly did try to direct him towards
the sorts of disciplinary practices she believed to be important (“can you sort of take a step
back from that and now tell me about the Law”), the commendation he earns from her is
112
not framed in terms of how well he succeeded in fulfilling or conforming to such disciplinary
practices, but in terms of how well he responded to her. This is also evident in the
comments she makes on the grade she awarded him:
I suppose in a sense that it, it, it recognises the fact that he really did (pause) really try to do
what he was being asked to do, um (pause), (the pauses create the sense that she is thinking
carefully about what – or how - to say) that, that re-reading it through you wouldn’t . . . like
it has things like it has citation errors in it, uh, and it has, uh, problems with expression and
odd things in it, uh, strange words, inappropriate words, but probably more importantly,
that the, the citation isn’t, isn’t accurate. Um, but recognizing that he was really trying to get
a grip on something that was fairly complicated [mm], then I think, that’s why I pushed him
up. (LI MZ4).
Again, in doing what “he was being asked to do” he would presumably produce a disciplined
text, but it is the personal relationship that is foregrounded here. However it is important to
keep in mind, as stated earlier, that MZ’s account is at the point of her second reading of his
text and she is attempting to explain her first reading. It is a retrospective reconstruction,
and I would surmise that during the first reading she would certainly have felt she was
marking him in light of the features she deemed important for a good legal essay. That is,
both readings were ‘disciplined’ readings, but what constituted the disciplinary
requirements and how the text met them was read differently. Thus when she states that
she wants Narin and students in general to engage with primary sources “because that’s
what lawyers do” (LI MZ50), in the first reading she read him as so engaging, whereas in the
second reading there is more uncertainty about whether he does.
5.3.4 Shifts in the nature of engagement
As cited above, MZ stated at the outset that what she wanted from students was that they
engaged with the subject matter . . . . actually thought about the topic . . . instead of just
repeating things . . . personally engage with it . . . demonstrate that they had read the cases,
and that, that’s the most important thing, that they engage with the primary material . . .
that they had read and understood the cases being the most important tool to us (LI MZ2).
113
She also insists she wants students to “refer to the actual wording of a judgment”, to “get
the wording of the Judges and start engaging with those words” (LI MZ48).
As noted in the sub-section above, Narin’s engagement appears to be far more with
secondary sources. Despite this poor engagement, however, MZ commends the passion
Narin had for the ideas he encountered in Lessig which MZ presents as the vehicle which
enabled her to guide him towards engagement with the law, something he does not actually
do very well. “[H]e’d gone away and done” what she asked of him even if “not brilliantly” (LI
MZ12). In fact, when making a general comment on Narin’s essay she says “the law is
[pause] OK, um, but the sources that he refers to are, are not the ones that I would choose”
(LI MZ9). Although the pause suggests some hesitation, this seems to be a statement at
odds with much of what she says elsewhere about the importance of citation and the need
to engage with primary sources and the words of judgments, and consequently refer to
appropriate primary sources. But it is consistent with the reading she makes that Narin did
make an effort to follow her advice (which was directed at getting Narin to engage with the
law). Therefore, her reading that “the law is OK” certainly represents her disciplinary sense
that it is OK, even though this sense is a product of her relationship with him as much as of
any disciplinary ‘universal’ sense she might have of what makes the ‘law OK’ in any
discussion of it. A standardised or universal reference point implicit in “the law is OK” is not
only nuanced by but given its meaning as it passes through the very particular context of her
interaction with Narin. The perception of disciplinarity is a product of various discourses that
come into dialogic play which situates MZ as reader in such a way that in Narin’s text the
“law is OK”, even though the signifiers used to describe disciplined activity might remain
relatively constant (such as ‘engage with primary sources’ and so on).
An issue at stake here is the distinction between ‘words’ and ‘ideas’, and I have already
discussed this in Chapter 4 in the context of law with reference to Mertz (2007). MZ wants
students to engage with primary sources and the words of judgments since “that is what
lawyers do” (LI MZ50). On the other hand, Narin engages with ideas. She has already made
quite clear that she believes Narin ‘bluffed’ his way through primary sources, and relied
heavily or wholly on secondary sources. But her advice to students, she says, is “I suppose,
you know, I would say ‘read the cases first and foremost, read them before you read
114
anything else’” (LI MZ78). Elsewhere she states that “what he hadn’t done, uh (pause), is
refer to the actual wording of the judgment” (LI MZ48) and goes on to say “I don’t really
care, again, what it is that they actually say, but that they can get the wording of the Judges
and start engaging with those words” (LI MZ48). When it is put to her that in student writing
she looks for “direct engagement with the primary sources” (LI MZ49) she responds “Yeah, I
just want that! That’s what I really, really like” (said very enthusiastically!) (LI MZ50). That is,
the ideas now become quite secondary; it is engagement with primary sources that is
critical, and such engagement is with the words. Ideas necessarily will be formed but ‘I don’t
really care what they say’.
Indeed, MZ goes on to insist on the primacy of primary sources by saying that engagement
with the secondary sources rather than primary sources distorts the students understanding
of the case.
I’d prefer to see greater engagement with the primary material before they go to the
secondary sources. Because I think it distorts their, it distorts their understanding (rising
intonation) of the cases (LI MZ54).
However, Narin comments that it is precisely the primary source court judgments that he
cannot understand:
because the judge would say “This is uuh the former law, and now this is the law, and this is
the former law, and . . .” (laughs) where is the law, come on, tell me! (continues to laugh) (LI
N102).
It is secondary sources that provide him with a clear sense of the ideas that are at stake.
With secondary sources he says:
the author will [2 sec pause] go on to be to only one general idea, only one arg . . . one
argument of . . . that . . . that they want to to push so, uh, so every paragraph I read, I just
OK, he want to argue this way, so OK, I know. (LI N116).
The idea of a distorted reading is therefore an interesting one. An ‘undistorted’ reading
would appear to involve a direct engagement with the ‘words’ of the primary source and I
115
have already discussed in Chapter 4 the argument Mertz presents that the ‘law’ is both fixed
in meaning (when it is handed down the authorities must know exactly what is to be done
with the accused) yet at the same time it is ‘unfixed’ (its meanings for subsequent cases are
precisely the source of legal dispute). It is to this ambivalence I would argue MZ is referring;
she suggests students like secondary sources because
they say “this is the answer” [mm], you know, but in fact, there is no answer, you know, we
are just in the process of constantly evolving (LI MZ20).
In this respect reliance on secondary sources might be said to provide students with
prematurely formed ideas; they take the secondary source without having their own
thoughts (LI MZ2). Yet for Narin the secondary sources provide the means for thinking, and
secondary sources provide a means of engaging directly with primary sources. He says:
When [secondary sources] refer something, of course they put the . . . the citation, and then
uuh have to go to read actual case, because sometimes, they just make a mistake so, I
cannot just, just copy. I have to make sure that he right, and that OK and OK, he right, OK,
OK, go (LI N106).
But he not only returns to the primary source to make sure the secondary source has copied
it correctly:
I have to read . . . sometime, he just put what he (word unclear) This case say, this, OK, but
what does this mean, OK, this paragraph 3, OK, and then I can just, OK, these are the actual
words, OK, and just, OK, put uuh, in my words (?) [yeah, OK] Because, in an article maybe
just put too small to use, too small for me to use, [right] yeah, so I need more, so I need to
go to actual cases, OK. (LI N108).
Secondary sources thus facilitate Narin’s engagement with primary sources.
There is then a very uncertain line drawn between engagement with ‘words’ of the primary
source and engagement with ‘ideas’, in that for MZ there is a form of engagement with
words that is distorted by prior engagement with secondary commentary, even though we
can argue that a reading of any text is always formed in light of prior readings, as Bakhtin’s
dialogism makes clear, as well as the deconstructionist argument that the reading of any
116
text is bound to texts that precede it. MZ also acknowledges that primary sources are often
formed in light of prior, secondary discussion about the relevant legal issues; “in a lot of the
cases, they [i.e., Judges in making and writing their decisions] themselves refer to secondary
references” (LI MZ54).
The issue at stake here appears to involve the relationship of the person to the text, rather
than be to do with the formation of ideas. Ideas are of course formed, but the distortion MZ
speaks of is not of ideas as such, for there is no one answer or ‘proper’ idea. The distortion
concerns the subject who is no longer engaging directly with the ‘words’ of a case. MZ is
making statements about the writing student subject, and in her account the engagement
by students is paramount (the words engage/engagement are used by MZ 22 times to mark
the relationship of the student to sources [primary and secondary], but the concept is more
pervasive and is also represented by other words/phrases too). However, I have shown this
engagement shifts between engagement with ‘words’ and engagement with ‘ideas’. I would
argue that it is this idea/term of engagement which remains constant for MZ between the
two readings she makes of Narin’s text, but not a constancy of meaning. It is in its function
as a signifier that the term ‘engagement’ operates to allow for a reconciliation between the
two different readings of Narin’s text, where in the second reading, on which the interview
was based, he ‘fails’ to engage with the primary sources, yet at the same time, MZ can
reconstruct him as engaging with the sources.
5.4. Conclusion
The argument I am making is that the lecturer’s readings on both occasions differ because
on each occasion she occupies a quite different position from which she reads. We can
know some of the first reading from the comments she makes on the student’s text, but
otherwise it is through the retrospective ‘reading’ she makes of it five months later that we
try to draw some insights into the discrepancy between the two readings which she herself
recognised. I have tried to show that the first reading was formed within the context of her
encounters with Narin, and this contact contributed to the constitution of disciplinary
writing in that context. The second reading was made in a different context which I would
117
surmise is far more influenced by a context where she is at a greater distance from her
interactions with the student. It is also influenced by the purpose of the reading (to be
interviewed about ‘legal writing’ and Narin’s essay in particular) and the broader activity of
her own research and related professional activities. The contexts in this sense are very
different, resulting in quite different readings.
The main point I would make is that neither reading is to be privileged over the other. As
Barton et al (2005) argue, literacy is wholly situated and an act of reading/writing will always
occupy a place in social-activity networks which constrain the meanings realised from a text
and the value it has. Thus quite different readings are made. A further point, equally
important for my argument here, is that these readings are made from quite different
subject positions which are dialogically constructed. The enunciating position from which
MZ reads on both occasions is different, and this gap between them is indicated in several
ways. In feeling ‘shock’ about her first reading, MZ is clearly indicating she cannot recall and
is not entirely certain where that reading came from. That is, she no longer occupies that
position from which it was made. That there is something ‘other’ to her about her first
reading is also indicated by the way she prefaces explanations for the first reading with
phrases such as ‘I think’ (for example, “I think, that’s why I pushed him up” (LI MZ4), “I think
with this one I have put more ticks because [pause] to me it was sort of saying, yeah, you’ve
done, you’re doing what I’m asking you to do” (LI MZ6), “I think that was the other thing,
that I was pleased too” (LI MZ12), “I think, and I think, that’s why he got such a high mark”
(LI MZ32). All these are comments about her reading of his text, and when she comments
on the Distinction she awarded she says “I suppose in a sense that it, it, it recognizes the fact
that he really did (pause) really try to do what he was being asked to do” (LI MZ4). Later she
says “So, um, I suppose, you know, that, that’s what I was giving him marks for” (LI MZ28).
While such an expression as ‘I think’ may have a certain habituated use, my point here is
that it is quite remarkable that every comment on the grade she gave is modified in this
way. This is not because of a faulty memory but perhaps quite the opposite; she remembers
that at the time she was reading differently and these explanations she provides now, from
a different place, do not quite capture that different ‘sense’ of meaning she felt at the time
of making her assessment. She occupies a different, dialogically constructed subject
118
position. Nevertheless, despite this different sense of meaning/value between the two
readings, in her first reading she fully experienced herself as marking Narin’s work from a
disciplined perspective, not simply for his ‘effort’. To recall the reasons she had for awarding
that grade in the first reading she would need to reoccupy the position from which she read
the text in that way, but this she cannot do. Therefore, she is now engaged in an effort to
reconstruct what might have been the reasons, but from a different enunciating position.
Thus there is the tendency to constantly preface her comment with ‘I think’, which
represents the ‘gap’ between the past and present reading. She is not engaged in
remembering/reoccupying the position from which she read Narin’s text, but of
reconstructing it from her present position.
My argument in this chapter is that the dialogic process Bakhtin describes is constitutive of
meaning and of the subject. Disciplinarity is dialogical, and thus is constituted in the ongoing
activities that sustain and enact a discipline (Prior 1998). Continuities are constituted within
the “chains of utterances” (Bakhtin 1986) not through the reproduction of the ‘same’ things.
The two readings MZ made belonged to different chains of utterances, and though clearly
not entirely separate, nevertheless produced two different readings, each equally
experienced as legitimate at the time of the reading. MZ’s surprise and shock she felt about
her first reading when making the second was genuine. The first reading was not a more
‘lenient’ reading of the text read in much the same way on both occasions. Were that so I
believe she would be able to recall quite easily the nature of her reading and not feel
‘shock’. It was a different reading. Both her readings were read in light of different
convergent discursive elements, and therefore read differently. The reconciliation between
the two readings was constructed around the term ‘engagement’ which shifted between
this issue of engagement with ‘words’ and with ‘ideas’, permitting a reconstruction of the
first reading from the perspective of her second reading which allowed a reconciliation
between them.
Dialogism thus suggests readings are always contingent and divergent; a sense of
consistency between readings over time and between individuals is linked to practices
which are organised around text at the level of its operation as signifier, not around the
signifieds or around agreed meanings such texts have. It is the engagement with text that
119
provides a centripetal effect, not the responding to and converging on and reproducing well-
specified meanings. Meanings, as I am trying to show, are subject to centrifugal forces
rather than centripetal constraints.
120
Chapter 6
Patchwriting and the writing subject
6.1. Introduction
In this chapter I look at one student’s writing and her comments on it, as an example of a
‘telling case’ of widespread ‘borrowing’ from secondary source texts without due
acknowledgement. My argument is that the accounts frequently given for student
‘patchwriting’ (Howard, 1995) do not wholly account for the practice in this case, and I will
suggest that the student is not just engaging in strategic uses of source text in order to
manage and complete a task she may otherwise find she cannot complete, but that there is
a component, more evident in Thuy, which belongs to writing more generally. This concerns
the formation of the writing subject through engagement with source text, a formation
which is not reducible to the signifieds constructed by the writer. That is, I argue that it is
through the critical role signifiers play in the formation of the writing subject that a learner
is enabled to go ‘beyond’ who s/he is, his/her existing values and beliefs, and engage with a
discourse and language which is Other to him/her. In so far that one stabilises the product
of this process, one can speak of identity and the acquisition of certain practices, beliefs and
so on. However, an integral element of the argument here is that language carries inherent
within it the centrifugal forces Bakhtin (1981) speaks of, and these point not to the
formation of an ‘identity’ but rather to an ongoing ‘subject-in-process’ (Kristeva, 1986a).
Language learning and language use are often represented as processes that rest on the
user grasping the systemic aspects of language, whether these be the grammatical system
or more broadly the systemic aspects of use such as those uncovered by sociolinguistic
studies and the functional grammars of, for example, Halliday (1994). In such accounts the
‘speaking subject’ learns to use a grammatical system or more broadly the discursive
systems that are given to him/her and so we find references to students obtaining ‘mastery’
121
over these given systems. The speaking subject is constituted within such systems in that
the subject can speak only through them and the subject gains voice through mastery of
these systems.
Yet in so far that semiotic systems are marked fundamentally by their capacity to produce
meaning, meaning itself can be generated by the transgression of existing ‘rules’, making
clear that the operation of a semiotic system does not depend upon its systemic features,
even if such systemic features are a necessary component. For example in everyday
language use both grammatical and semantic metaphor have their origin in non-
conventional use. Bakhtin (1981) acknowledges both centrifugal and centripetal forces in
language, and part of my argument in this chapter is that the centrifugal forces are far more
integral to his understanding of language than centripetal forces. Indeed, there is a
paradoxical element in his position in that systemic features of language emerge out of use
(systemic features are abstractions drawn from utterances or language in use) but at the
same time systemic features are necessary for language use (eg “behind each text stands a
language system”, Bakhtin, 1986 p. 105).
Kristeva suggests we conceive of language and meaning making not in terms of a sign-
system but as a signifying process (Kristeva 1986a p. 28) and Bakhtin’s account of language
is of this sort – systemic features are abstractions inferred from language use, and therefore
not a pre-condition of such use. Prior pushes this historicist position to a point that Bakhtin
might hesitate at, since Bakhtin does nevertheless in several places speak of the necessity of
systemic features (1986 p. 105). For Prior (1998) any focus on such systemic elements leads
us away from the ongoing dynamic nature of language as always situated in concrete, social
activity and he fully rejects any such appeal to structure.
For Kristeva, within the language system lies the “semiotic disposition” (1986a, p. 28) which
belongs to the individual or speaking subject, and through this she introduces the embodied
subject into language making, for following Freud, the semiotic disposition is tied to pre-
symbolic drives which provide the ‘meaningful’ material (pre-symbolic experiences attached
to sound, rhythm and so on) upon which semiotic systems depend. The symbolic is
constructed through a systematising of this raw, pre-symbolic material. Consequently,
122
speech that is in accord with such a system is the speech not of the individual, but of the
‘transcendental ego’ which is the subject of that system. For Kristeva, the individual speaker
is thus evident only through the transgression of the systemic (Kristeva, 1986, p. 28).
The relationship between the individual and language is thus a complex one. Kristeva rejects
the view that the individual is no more than the product of the social/systemic but neither is
there an individual without such a system through which meaningful relations and
individuals as such are possible. This notion of the embodied subject has been taken up in
various guises (see Threadgold 1997a for an account of some feminist versions of the
embodied subject), but central to the instancing of such a subject is an act or, for Kristeva
(1986), a practice which presupposes the “acceptance of a symbolic law together with the
transgression of that law for the purpose of renovating it” (p. 29). Therefore, “transgression
is the key moment in practice”. This practice presupposes the system but is not reducible to
it. It is not produced by it as such, and so it is an act which transgresses and creates a breach
in the system. The ‘act’ is central to Butler’s (1997a) account of performativity too and she
attaches to it the responsibility one has for the use of language which constitutes a breach
with what is given, with convention. In this respect language and discourse acquisition
involve more than acquiring a given system and achieving mastery over it. In addition,
discourse choice cannot be solely a matter of placing one discursive system against another,
which I suggest critical approaches such as CDA imply, in arguments for the empowerment
of students (eg Clark 1992, and Janks and Ivanic 1992) and the resisting of powerful
discourses that do not serve the students’ interests (eg Benesch 2001). While one does and
must engage with past uses (and thus with existing sedimented conventions of use), the
individual as subject is implicated in a way that exceeds such reduction to a language and/or
discourse system and achieving mastery over it. The ‘speaking subject’ is always “a subject
of a heterogeneous process” (Kristeva 1986, p. 30) and as such is not representable directly,
since any such representation formalises it in the terms of the system it is represented in.
The ‘speaking subject’ lies in what is heterogeneous to symbolic meaning and lies outside
metalinguistic representation. Thus the subject is always “on trial’ (p. 31). It is a subject only
ever “in process”, for it is intimately bound to the symbolic but indexed by the disruption of
it.
123
It is this ‘act’ which I want to explore further in this chapter, although in this chapter I link
this act not so much to the breaching of the conventionalised symbolic system but to the act
of attempting to engage with such a perceived system (for Thuy ‘English’ as a language and
the ‘common law’ as a way of doing law, both of which she represented as entities she
desired to acquire). The student is thus drawn towards breaching and transgressing the
boundaries of identities, and relatively stable language and discursive practices, or
‘interlanguage’ (see Gass and Selinker 1994), which the student brings to the act of engaging
with these perceived systems. At the same time the object-discourses lack for the student
the degree of definition necessary for them to feel a sense of control over the discourse, or
to assume an identity position within it. What the student brings is placed ‘under trial’ and
what s/he engages with remains ill-defined. In this sense the responsibility lies in the
attempt to take up and engage with that which as yet is not ‘one’s own’, and yet in some
way to make it ‘one’s own’ in so far that one produces a text that is treated by the
institution as the student’s and according to which the individual student is assessed.
Rather than trying to subjugate resource material and meanings to her will, which I
suggested dominated Narin’s approach to his writing, Thuy appears more interested in
trying to find how she can become a ‘self’ within the discourses with which she engages.
That is, she had a far greater sense of lack than other students, and said she had little
commitment to her position in her texts. She was less concerned with dominating her
sources (to make the meanings she wanted) and more engaged in an ‘openness’ to them,
and thus Thuy as writing subject retained a certain indeterminacy and vulnerability. Her
stated anxiety and depression can be linked to this. Thuy is thus trying to create or find her
‘self’ rather than represent an existing ‘self’ in this new discourse.
I shall first of all outline Thuy’s relationship to her sources (her attitudes to English, the
common law, western culture) noting at the same time that although she was a very
competent student, her keen sense that she lacked the resources to do well was a function
of these specific desires that appear to underlie her study and writing. I shall then provide
briefly an example of Thuy’s ‘borrowing’ and her statements about the language borrowed
(that it was ‘her own’) before moving on to argue why in my view Thuy’s borrowing cannot
be explained in terms often presented in the literature for ‘plagiarising’ and ‘patchwriting’.
124
6.2. Thuy’s orientation to her writing
In this section I will indicate the relationship Thuy has to her study, to the discipline and her
sources, and I will also give an example of her writing. The purpose is to try and sketch the
kind of positioning Thuy has with respect to her writing and how this constrains who Thuy is
as she writes. In the next chapter I shall discuss in greater detail the implications of the
discussion in this chapter and previous ones for the formation of the writing subject and the
role of the signifier in this.
6.2.1. Thuy’s interests
Thuy expressed greater concern than Narin did to engage with and to discover a discourse
she felt was relatively unknown to her and which might be described as ‘other’ to her.
Narin’s approach was more instrumental. For Narin, the discourses and texts he had to
engage with, in so far as they were ‘other’ or unknown to him, constituted sources of
frustration, since they hindered his attempt to say what he wanted to say. Thuy instead
appears to view the ‘common law’, ‘English’ and indeed ‘western culture’ as discrete
entities she desires to acquire an understanding of. In so far that desire is of an object one is
not in possession of, pursuit of that object leads to change in the self since the purpose is to
bring about a self that no longer lacks what is desired. This relationship to the objects one
engages with is quite in contrast to an instrumental relationship which seeks to grasp or
understand that with which one engages by assimilating it to existing schemata, interests
and values. Thus, the kind of relationship I attribute to Thuy involves becoming something
new (see Fink 1995 p. 71 for comments on how “change takes place at the border of the
symbolic”). In contrast, Narin sought to find material and ideas he could use to justify an
existing position. For example, in the Law of the Internet, for reasons which arose from his
own experience rather than from weighing up issues discussed in his sources, he disliked the
court decision that restricted downloading music from the internet, and so he was pleased
to find ideas he could use to argue against the Court decision (LI N134). Once he formulated
a position he looked for sources and ideas that he could use to support it, or to present as
counter-arguments he could then dismiss (LI N174). Similarly, in Banking Law his experience
125
with his lecturer led him to form the position he wished to argue for and he was relieved
when he found an argument he could use to counter the position his lecturer held, since he
wanted to oppose her (2BL 124; also 1BL N192; 2BL N118). Finding such texts enabled him
to pursue his position with enthusiasm. In contrast, the relationship Thuy had with her
sources kept open a gap between her and the discourse-object, ensuring a sense of
incompleteness, uncertainty, and ontological instability in her ‘self’. Thus for Narin the
difficulties he had with English and understanding his sources created a sense of frustration,
whereas for Thuy they represented a constitutive ‘lack’ which created anxiety.
Why this difference existed between Narin and Thuy in orientation is not so easily
determined. ‘Personality’ and ‘cultural differences’ might contribute. However, their
professional histories present some possible explanation. Narin had graduated from Law
School in Thailand but had no work history. In comments he made he suggested his reasons
for studying for the LLM were rather instrumental in nature. An overseas degree and
improved English would give him an advantage in the workplace, and consistent with this he
selected some subjects because they dealt with areas of law he felt few lawyers in his
country would be expert in, and so he would have a competitive advantage in the market. In
contrast, Thuy had for a number of years been employed as a legal advisor in her country’s
Parliament and had been involved in drafting new law. Thuy referred in particular to law
Vietnam was required to introduce to meet requirements of International Treaties Vietnam
wished to be, or was, a signatory to. As a consequence, Thuy had been involved in
consulting foreign Statutes (for example Australia’s legislation on Competition Law) in order
to gain ideas on possible directions Vietnam’s own law should follow. She had also met
visiting lawyers from overseas brought to Vietnam as advisers (2HR T42). In this sense, Thuy
both professionally and with respect to her career prospects had been inducted into a
position which was strongly shaped by global movements that are impacting on her own
work place and the professional needs of it. Her interests in English were aroused by this,
and more broadly in what she referred to as ‘western culture’, although such interests had
earlier origins for her. There is a strong sense that Thuy wished to understand these things
in their own right and that they were not merely an instrumental means to achieve an
independently given end.
126
6. 2.1.1. The common law
Thuy opted to create a topic of her own for her Human Rights essay and wanted to do
something on ‘privacy’, since she had looked at this issue in part for an assignment for an
earlier Unit (see her Journal entry for Human Rights Tuesday 10th May, also in 1HR T70 and
120). But she also states that another reason for her interest was that in Vietnam “at the
moment there are many argument about how we need a priva . . aah uum a legislation for
right to privacy in Vietnam. Yeah. But I think I had some idea about that and when I did . .
when I had the task for Human Rights I thought about that immediately” (1HRT120). But her
choice also appears linked to a broader desire to understand ‘western society’ since she also
says:
what I learn, and what I realize, mostly in the democratic society like Western society uh
privacy, uh, is quite different with my own society in Asia. The privacy is uh more um, uh
stressed in Western society than in Asian countries. That’s why its uh private a different
value. That’s why I want to uh do some research about that. (2HR T12)
Her interest in privacy arises not just from its relevance to her pre-study work context nor to
an interest piqued by an earlier Unit, but to a cultural interest in the west. She also says:
I am also interested in the tort to privacy which is also invented in the US and has not been
accepted in Australia. My research of this topic may help me in a future unit which I enrolled
for the 2nd semester. However, I am not sure that whether it is a current issue in human
rights, because all we learnt in the lectures are somewhat of a universal level. I’ll try to find
out and read some articles first, then talk to the lecturer later (Human Rights Journal
Tuesday 10th May)
Thuy clearly has a sense of what she is interested in here. After researching materials for the
three possible topics she had in mind, she concludes she will pursue the first option (‘How is
the right to privacy protected in the war against terrorism?’ (a US case study)) because, she
says, “I won’t need to look up many cases (what I think very complicated but useless for my
future career)” (Journal: Thursday 12th May). This interest in the law of privacy is also linked
by Thuy to her perception of common law, which at this point is represented as something
127
she is not so interested in. Yet at the same time this awareness of the ‘complicated’ nature
of common law appears to be a relatively strong constraint in her choice of Units of study
and assignment topics, if not a dominant one. When asked whether the common law was
significant in her Human Rights essay she said:
not really, a little bit. I I because at that time I still very afraid [laughs] to approach the
common law, that’s why I choose this topic because for this subject I don’t have to explore
in the common law field, just the statute (1HR T52).
She says that she chose a topic dealing with protection of privacy against government
intrusion because this relied more on statutory law, whereas the question of privacy
protection between individuals was regulated more by common law. Yet despite this fear,
and despite the unimportance of common law for her career, she nevertheless pursued the
law on privacy between individuals (in her Torts unit) leaving this topic till last in her
sequence of Units of study. Referring again to common law, in 1HR T122 she says “I still
terrified with this, and choose a simple thing that . . a statute not the common law. That’s
why. It’s like I left the last aspect for another Unit in this semester”. Clearly, common law
still ‘terrifies her’, and the unit she leaves till ‘this semester’ (‘this’ is the time of her
interview, which was during her last semester and followed the semester when she wrote
her Human Rights assignment) is “the Comparative Torts Law and for this I may explore the,
the torts for privacy. This is the Common Law aspect of privacy here” (1HR T124). So she
“left the hard common law thing for the second semester” (1HR T125/6). In 1HR T52 she
says that a reason for choosing the Human Rights topic she did was “because at that time I
still very afraid [laughs] to approach the common law, that’s why I choose this topic because
for this subject I don’t have to explore in the common law field, just the statute”, again
suggesting an overarching presence ‘common law’ has in all Thuy’s decisions. She states
earlier that “the first semester, what I afraid most is how to choose a topic” (1HR T42) and
goes on to state in 1HR T44 that this is “because what we learn here is quite different to
what we have known before. The background different from the law of civil law countries,
and here is the common law, and that’s why when we think about a problem that’s maybe a
problem in my country but it’s not here”. Again, even though international students are
advised to avoid subjects based on or drawing considerably on common law and to choose
128
international law subjects, Thuy appears to be shaping her decisions in light of how she
perceives/experiences her relationship to the common law. Indeed, despite her fear of
common law, she nevertheless notes in 1HR T70 that in choosing her topic for HR, she was
taking up a topic that had aroused her interest in an earlier assignment for the unit on the
‘Australian Legal System’, and that she “just wanted to develop it, and try some Common
law thing (laughs)”.
While other students also referred to difficulty with the common law, they more typically
spoke of difficulties which arose in specific contexts of Units they were studying, as the
source of difficulties they encountered, such as when reading texts from genres more
significant within common law, such as legal decisions which provide legal precedent and as
such constitute law. In contrast, Thuy spoke much more of the ‘common law’ as an entity,
something to be addressed in its own right, and indeed, as suggested above, she organised
her Units of study in light of this, working towards what she considered to be the topic most
embedded in the common law only at the very end.
Thuy’s interest in common law is linked closely to the interest she has in ‘privacy’ which I
have shown above arose from her work in Vietnam (1HR T120) but is also linked to her
understanding of “democratic society like Western society” (2HR T12). In her Human Rights
assignment she also states that “In a democratic society, privacy is definitely valuable
because it is a part of an individual’s autonomy and it ensures that his integrity is respected”
(from the Introduction). These interests in privacy, common law and western culture appear
to mutually influence each other. The association he makes between common law and
western culture clearly exaggerates the significance of common law (which is important only
in Anglo-influenced legal systems), although the discourses of globalisation may well have
led her to identify the US and its common law system with ‘western’ culture more generally.
These may also nuance the interest in English which, although only one amongst many
‘western’ languages, is more prominently associated with globalisation and the discursive
construction of the ‘west’ in that context.
129
6.2.1.2. Thuy’s interest in ‘English’ and ‘western culture’
Thuy’s interest in English appears to have begun with the opening up of Vietnam to
globalisation. She had learnt French and Russian in school and when at university she also
took some English classes, because:
at that moment I just like listening to music, especially the English songs. That is also the
time that my country is uuh opened areas and many English songs came and I want to listen
to that and understand what they said. [right] That’s why I started learning English. And at
the [that] moment, many people go to evening classes for learning English [1HR T94].
Thuy shares with others an interest in ‘western songs’ and the culture they represent as
Vietnam opens itself to global and perhaps especially western influences, and clearly an
interest is aroused even though she says she didn’t take English classes seriously at this
point (1HR T94). A more serious interest in English was aroused later:
when I working in my office the organiser asked for staff to study English and they have
some project that’s possible to go overseas for study and this time I had serious thought
about learning English and go overseas and study [1HR T96].
She stated that:
in my country just want to focus on the grammar and new words and some kind like that
and it’s easy to forget when you stop learning. That’s why I study, study English on and off
for nearly eight or nine years but my English still not very good [apologetic laugh] (1HR T98).
She states it was only when she began preparing for the IELTS test (required for entry into
an Australian university) that she was engaged in more communicative activity. But her
learning of English is not merely functional: “I like to read novel and book in English here
[Australia]. I’ve bought a lot of novel and book in English because I couldn’t get it in Vietnam
[oh, right] yeah” (1HR T104) and she is reading a lot of English (“yeah, not just law things but
other things” 1HR T105). This interest in English impacts on her writing. She stated she tries
hard to make use of language she comes across and which interests here: “Sometimes I find
some words interesting to me, but maybe I couldn’t understand clearly what the word’s real
130
meaning is, but I just have some idea about these and try to use it.” (2HR T8). Elsewhere she
says “when I listen to other people and they use um words or group of words that I think is
very interesting and try to imitate it even in uh uh uh writing. There’s many words cross my
eyes and I keep using them in my writing” (1HR T242). With respect to her study resources
she says she sometimes finds words that are “perfect” (1HR T232) and that she sometimes
“sticks to words” because of the appeal they have (1HR T234).
There is however a certain paradoxical element in Thuy’s comments about her use of
English. Thuy refers at various times to ‘western styles’ of writing and ‘Asian styles’ of
writing, but she does not only perceive things in this light, she identifies with both at
different times in different ways.
As noted above, Thuy learnt foreign languages (Russian and French) in high school and
university, and she attributes her skill in writing in a “foreigner style” to this.
My boss told me that your writing a little bit foreigner, foreign for us, yes, and that’s why I
didn’t feel many difficulties for writing in English because the way I taught I write in Vietnam
is quite similar with this [right] but some of my friends think it’s quite difficult because the
way we present and introduce things in Asian country is quite different to the way in the
Western country. We don’t go straight to the point, we go round and round, yes,” (1HR T88).
She identifies here with ‘western style’ and elsewhere she refers to her preference for such
a style: “I think, in this way, I can show my opinion and my feeling more clearly. [In English
you mean?] Yes, in western style like English, yes” (2HR T52). She goes on to say “in
Vietnamese, in Vietnam, people uh usually express their own opinion not just out straight
like in Western society, but they say round and round, not go straight to the problem”. She
then adds:
Sometimes it’s a waste of time, and difficult to get the idea from the writing and sometimes
like that. Even in some reports, . . . . That’s why my writing sometimes makes some shock
(Thuy laughs) (2HR T54).
She says she is quite happy going “straight to the point” (2HRT55) stating:
131
And now I think, many [Vietnamese] people also study in uh English speaking country, and
other Europe country, and when they return maybe they have to change their style [yeah]
and people can go straight to the point, rather than go round and round and wasting time
[yes] to talking something [yes] not important. (2HRT56).
She seems to assume here that other students going overseas will follow Thuy and want to
retain the ‘foreign’ style when they return.
There is, in these comments, quite a clear sense that Thuy accepts and identifies with the
foreign conventions of writing, as she conflates ‘English’ style writing with ‘western’ style.
Yet, at other moments she suggests she follows the Vietnamese style of writing which
constitutes a problem for her writing in English. However, I shall discuss this below when I
look at ‘cultural differences’ as an explanation for Thuy’s extensive patchwriting.
6.3. Thuy’s borrowing of sources
6.3.1 Authoritative expressions
Thuy’s texts read with authority, and this derives from three broad factors. Firstly, Thuy
draws extensively on the wording of her sources. As a consequence, clause structure which
registers the authority of expert authors (for example, as expressed in non-mitigated
assertions) or in its use as rhetorical device to construct a sense of authority as part of legal
argument is reproduced in Thuy’s text. Secondly, many reproduced propositions presuppose
embedded within them considerable expert legal and cultural knowledge not always likely
to be known by a student writer. Thirdly, the frequent absence of in-text attribution causes
such assertions to be read as Thuy’s own. Thus, the enunciated position suggests a writer
who occupies a position we may not usually associate with that of a student. As Lea (2005)
argues, students do not write from the same positions as their teachers nor for the same
addressees, and in this sense belong to a quite different “community of practice” to that of
their teachers (p193). This of course challenges the sometimes expressed belief that
published academic writing provides a good model for student writers, or that students can
learn the discourse by imitating such authors (eg Angelil-Carter 2000).
132
The introduction Thuy writes to her Human Rights assignment includes a great number of
statements that presuppose considerable general knowledge about discussions on privacy
and government intrusion into it, as well as relatively conventionalised phrasing when
speaking about this. Thus Thuy writes: “there is a false and pernicious assumption that if
you have nothing to hide, you have nothing to fear” and she makes statements which
presuppose considerable knowledge about the issues under discussion. For example,
following the opening sentence to her Human Rights introduction she writes “this argument
is often used by government to invade individuals’ privacy”. Elsewhere she asserts that
“Although there is no official explanation of privacy, the Human Rights Committee insists
that ‘this right is required to be guaranteed . . .’”. In an example from her Competition Law
assignment she writes “In order to establish a breach of Section 46 three elements must be
satisfied”. These are provided with no citation, and in so far that each of these statements is
read as an expression of the student writer, they imply a student who ‘knows’ the truth of
such statements.
With respect to such statements being made in the introduction to her Human Rights essay,
her lecturer comments that “I don’t mind them starting in that way, it’s an exciting way of
starting” (HR SJ58), but she adds it is a problem if it persists through the essay. Citing an
example from Thuy’s text [p12], SJ goes on to say:
look at page 12. “Surveillance in general, electronic surveillance, is one of the central tools of
modern law enforcement.” I mean, how does she know that? [right, yes]. You know, that’s
sort of a more . . . I mean, maybe making a judgment is one thing, but that’s sort of like, well,
maybe I guess you would know that, but that, but, but that, that’s sort of said with such
authority that it’s like [mm], ‘hang on’ (HR SJ58).
Thuy’s own perspective on such comments is rather different. When the interviewer
pointed out to her at one point that it was not always clear whether an idea or
interpretation was hers or someone else’s, she commented:
That also make me confused about, because uh when I, when I did the writing in my country,
I read some article, a book for example, and when I understand what does it mean, I can
draw my idea from, I can draw my idea from this reading. And this is my, uhh, I don’t have to
quote in this idea. But here [yeah], even that I draw some idea from an article, I still have to
133
mention that article, so sometimes I feel confused; why should I put a quotation? (Thuy
laughs softly as she says this). (CLT136)
It is not so much who speaks which is at stake here for Thuy, but whether the idea is
understood. In that sense the propositional or ideational ‘truth’ of the word occludes the
register of the speaker, and Thuy’s task as a student, she implies, is to represent that truth.
This certainly is not an excuse for simply reproducing text without understanding, for Thuy
emphasises the importance of her understanding in this process. When asked about the
judgment ‘it is a false and pernicious assumption’ she said “it’s not only my assumptions,
because when I read too many material, about this topic, they all said about that, and I even
think that . . . people also have this kind of thinking” (2HR T2). She adds “I don’t have to
quote someone else. Because, it, it’s what I thought. Really, everyone think about like that”
(2HR T4). It would seem here that because the proposition occurs in several texts Thuy
accepts it as ‘common knowledge’ and assumes the ‘truth’ of its content as her own, even
though she may not have the presupposed knowledge that sustains it.
Thuy may clearly have an understanding of the proposition she presents, but not necessarily
of the broader discursive context to which the proposition belongs and from which it
emerges. Indeed, Thuy states on several occasions that she understands the ideas she reads
in sources, but lacks the background to the common law in general, and to the areas of
substantive law that are the focus of her Unit of study (1HR T44; 1HR T168; 1HR T212; CL
T168). In this sense she lacks the ‘vertical dimension’ of language that Kristeva discerns in
Bakhtin’s understanding of language, the link between the text and its broader textual
corpus (Allen 2000 p39). For Bakhtin, this link is not merely textual but incorporates
exposure to the shared ‘lived experience’ out of which such words emerge and to which
they refer and from which they gain meaning in so far as they carry the ‘voice’ of the past
users of the words taken up. In effect it is the discursive context of any proposition. Thuy, it
would seem, lacks exposure to and the sense of the broader discursive context of these
statements, even though we might argue the ‘voices of others’ that ‘saturate’ the words we
use (Bakhtin 1981 p277) and which constrain their emergence as the words Thuy finds
herself engaging with may well possibly be dormant or carried silently by the words used,
134
capable of being brought to life by readers more familiar (eg the lecturer-assessor) with the
contexts to which the writer herself is blind. If so, it is the text which bears the student as
subject here, rather than the meanings subjectivised by the student and any convergence of
meanings between the student and her reader.
It is this link between Thuy as subject and the texts she draws on that interest me, and these
texts, in some respect, as I have suggested, can be untethered from the lived experience
which for Bakhtin gives life and communicative meaning to the words we use. It is an
operative level of text that can be separated from any signifieds that are constructed and of
particular interest is that it is an operation of the text which can be tied to text as signifier
rather than signified. The words Thuy uses are taken up because these are the words she is
presented with. The force a text or word has for Thuy derives only partially, if at all, from
the meaning it has in Bakhtin’s sense, that is, from its ‘vertical’ link to the social and
professional activities from which it draws its life. Rather, as Thuy comments, the authority
a proposition gains derives from its recurrence in several texts, from the relationship
between words, not from the relationship between the word and the world beyond it. While
Thuy certainly does make meanings from such words, the organisation of this world is text-
based rather than discourse-based, in the sense of discourse referring to the way words
present a world beyond them (Bakhtin 1986; Widdowson 2004). For her, the reliability of a
statement lies in its being repeated in other texts, and not because she recognises its
reference to a state of affairs that she is familiar with. In this regard then, Thuy may not give
a citation for a claim she reproduces in her text because she understands it to be generally
accepted, having read it in several sources. Thuy is indeed being supported here by an
intertextual network, but it is as text, text as signifier as it were, rather than text as signified.
Thuy certainly does make signifieds, but as she acknowledges, she does not know how these
map onto a broader discursive background which supports such texts.
The text as signifier thus always carries more than any given signified. That is, as Prior (1998)
notes, the meanings a lecturer makes from a student text can be greatly in excess of, and
more profound than, the meanings the student intended in her text, and so she achieves
credit for implied understandings she had no subjective awareness of (Prior 1998 p86). In a
quite different but nevertheless parallel way, Derrida (1988) shows that a text can always go
135
astray, that the iterabilty of language means it can never be finally tethered to any given
meaning (Derrida 1988 p. 8). Bakhtin attempts to tether meanings to words by appealing to
‘speaker intention’ and context (Bakhtin, 1981, p294; 1986 p77) but again, as Derrida (1988,
p. 12) shows, context is illimitable and we could argue that for both intention and context to
be established, a reader must already have given an utterance a certain meaning in order to
decipher what intention might lie behind it and what features of context are to be invoked.
That is, one must invoke broader discourses that serve to ‘frame’ one’s understanding,
rather than identify in advance a specific intention or a specific context. Thus for Thuy it is
not the meanings of the texts she draws on that secure her engagement with the discourse
as such, but the text itself, that element of it which is not reducible to the meanings Thuy
makes from the text, or the ‘intended’ meanings with which the discipline itself animates
such a statement. There is a function of text here which is critical for Thuy, I suggest, which
is not reducible to the meanings she produces, nor to the broader, disciplinary discursive
meanings which, within the disciplinary context, ‘normally’ animate the text.
Thuy states that the words and ideas she represents in her text are her own, but I would
argue this is not because the words she draws upon constitute ‘authoritative discourse’
(Bakhtin 1981; but see how others have used this concept to explain why students ‘borrow’
or plagiarise – Angelil-Carter 2000; Luk and Lin 2005; Abasi et al 2006; Braxley 2005; and
others). It is not ‘authoritative discourse’ for Thuy because it is not the meanings which are
authoritative, since the discursive meanings are not always clear to Thuy and certainly have
no special weight over others she might find, other than, with the sense she makes of them,
they fit into her own text (although what to include/exclude remains a perennial problem
for Thuy and other students). It is also not the particular text which is authoritative; the
texts Thuy uses are recognised by her as fairly arbitrarily coming into her purvey: these are
texts she found on the library shelf on the day she looked for them, or these were texts her
database search called up, a few of what Thuy knows to be many more. Rather, it is
textuality itself which is authoritative, that these words themselves embody, stand in for,
represent, meanings Thuy knows she is uncertain about, at least in their discursive context if
not at the propositional level. (However, both Thuy and Minh stated there were some
propositions they used the meanings of which were not fully clear to them, but they were
136
certainly relevant to their discussion.) In this sense the ‘word’ performs a function in excess
of its signified and Thuy relies on this excess. This enables Thuy as subject to engage with
the discourse in ways she is not fully certain of, or master over. The greater one’s sense of
certainty about the meanings one is dealing with perhaps, the less awareness there is of this
function of the signifier. I would suggest that in the case of students like Thuy and others
working in L2, this function of the ‘text’ or signifier becomes more evident.
6.3.2. Text borrowing
At the time of the interview, I was unaware that Thuy had borrowed to the extent she had.
Like her lecturer I read her text as a very thoughtful and well-developed. Consequently, I
did not focus much on this issue of ‘borrowing’. Nevertheless, there was a section of her
‘Competition Law’ text where we discussed whether the words were hers or not. My own
perception that Thuy was perhaps relying on the language found in her sources to present
her own writing persona was aroused by several factors. The principle reason was that
claims were made about the legislation that presupposed considerable familiarity with it,
but such familiarity seemed unlikely in Thuy’s case.
6.3.2.1. Lecturer comments on ‘borrowing’
The possibility that some ‘borrowing’ had been engaged in was also raised by Thuy’s Human
Rights lecturer. “I did even have a suspicion of plagiarism because it was so good [mm mm]
and then I checked it [mm], and it wasn’t” (HR SJ6). Later, when talking about how well
written it was (“it was one of the best I’ve ever had . . . . she has really [yeah], impressively
[yeah] wrapped her head around a, a very complex [yeah] piece of legislation [mm] which
we didn’t discuss in class [yeah]. And that is extremely unusual for an overseas student to
do” [HR SJ44), she says “to be honest, and this is no disrespect for her, I did do some
preliminary - I mean, I didn’t, you know, but I did some preliminary things, you know, on the
internet, I checked a few things, just to make sure it wasn’t plagiarised . . . . By the time I’d
finished it I’d decided it hadn’t been [yeah] because there were enough mistakes [yeah] or
English mistakes or whatever” (HR SJ44). These mistakes in substance and expression
persuaded her it had not been copied, even though she had several reasons for wondering
(“another reason why I sort of had a little bit of a worry with plagiarism, because it was just
137
so covering the issues” [HR SJ10]). She adds, “But as I said, I couldn’t sort of find anything”
although she states “I’ve got to admit, I probably, you know, was going through a very busy
patch or whatever, didn’t break my neck [yes], but I did check out a few things and you
know, you can even, you know, see it, and didn’t find anything.” (HR SJ58). There were
further negative and positive reasons for concluding it wasn’t plagiarized too. Some poorly
constructed sentences and grammatical errors in sentences otherwise well constructed
(“I’ve got to admit that I softened as I read it, thinking ‘no, this isn’t plagiarized’, because of
the way of the ‘the’ and those odd mistakes” HR SJ6) led her to assume the student had
composed these sentences herself. Similarly, there were places where the text tended to
wander (“of knowing what to leave out [yeah], and get, getting a bit dense in the writing,
[but] that happens just as often with the local students” (HR SJ44) and this was particularly
in the “second half” of Thuy’s text which SJ remarked was not so well written or composed:
content wise it didn’t hang together as well, it kept on, it didn’t make it clear when it was
talking about American constitutional law as opposed to international human rights law, it
kind of merged those two issues. So that was a content problem. But it also did something
which I find . . .quite . . . painful to read. Which was, it just had too much, it started to . . . it
just had too many points just sort of flowing together (HR SJ12).
She goes on to say “it put in too much stuff that I started to find it a bit boring. Um [right] I,
you know, I sort of found, like it didn’t stop for long enough on the various points”. She
continues, “there were content problems in the second half, but there were also um, there
was just definitely too much coverage in the second half, yes, lots of info, very good, maybe
slow down just a bit, to explain things more clearly” (HR SJ12). SJ also pointed out errors of
fact and understanding of the relationship between different areas of the Law in Thuy’s text,
all of which added to her view the text was not plagiarized. Despite these problems with the
text and despite some basic flaws in understanding, (“she said, article 14 doesn’t apply to
FISA. I can’t, I still don’t know why that would be. I mean, why doesn’t the US Constitution
apply to a US law? That sounds ridiculous!” [HR SJ22]), the lecturer nevertheless
commented on how well written overall Thuy’s text was (HR SJ44).Thus, overall she remarks
on how impressive a piece of work this essay by Thuy was. Later in the interview she returns
again to the question of plagiarism and says:
138
I will say another thing about the plagiarism thing, this was so good it was actually therefore
unlikely to be plagiarized, if you know what I mean [mm]? Plagiarism normally catches itself
out [yes], because it’s not put together well. It just sort of, it doesn’t make sense, or it, you
know, it just [change in tone] yeah, yeah, yeah, whereas this was pretty much uniform all
the way through. And it’s like well, in fact, this is such a magnificent piece of plagiarism [SJ
laughs quite forcefully] that it either can’t be, or, you know, you almost deserve credit for it
[SJ laughs again] because, you know, you’ve just strung it together seamlessly well. And so I
guess that, that’s one reason why in the end, I didn’t kill myself looking for some, because I
thought ‘no, this is, if this is, this is an extraordinary piece’ and it’s kind of like, well, you’ve
wasted your time, why would you spend that much effort doing such a supreme piece of
plagiarism. That’s just too much work. It’s easier to write yourself (HR SJ72)
Plagiarism is, of course, a complex issue. It is clear Thuy’s text as a whole was not
plagiarised, in its wording or structure. The argument/development is clearly Thuy’s, and
this seems to be the major concern of SJ, to establish that it was Thuy’s work. Borrowed
phrasing at the sentence level is also generally represented as ‘plagiarism’, but this is less SJs
concern on this occasion. Grammatical error suggests to her that plagiarism is not occurring
at the sentence level, though clearly this does not prove ‘borrowing’ is not occurring in the
case of well-formed sentences. Nevertheless, it is clear that such errors indicate that the
text as a whole is not plagiarised, and this is clearly the predominant concern of SJ. As a
result, SJ reads Thuy’s text as the work of a unified speaker, the product of the student’s
labour and in no way reducible to a craftily constructed pastiche of borrowed sources.
6.3.2.2. The relationship between text and author
Critical here is the relationship between text and author; it is this the assessor is seeking to
establish as she discounts plagiarism. Thus it is clear that it is the author-student who is
being assessed, not the text, since a very well-written plagiarized text would be rejected. It
is consequently equally clear that the author of the text is not simply encoded within the
text. Kristeva (1986) and others such as Barthes (1977a, 1977b) argue that the writing
subject cannot be directly represented in the text at all, since anything represented is
produced by the text-language system. For example, an “I” that is conceived as representing
the author is necessarily read in light of the discursive contexts in which the signifier “I”
139
occurs. This subject is, as such, thus embedded within text and retrieved via text, and
consequently subjected to interdiscursive forces through which the text is now read. The
textual subject is thus fundamentally intertextual, and for this reason Kristeva argues that
“the notion of intertextuality replaces that of intersubjectivity” (Kristeva 1986b p. 37). But
this fails to capture the ‘writing subject’ as such.
The writing subject is read from text in light of ‘facilitating discourses’ (Price 2003). For
example, Thuy’s relationship to her text is not given by the text as such, but by numerous
other judgments her lecturer makes, all resting on discourses (about who can say what) that
do not find presence in Thuy’s text. I commented in chapter 4 on the limitations of
Fairclough’s classification of intertextuality and interdiscursivity, and I can add here that an
element of what is interdiscursively critical is necessarily absent from the text itself, and
cannot be disclosed by it. The resources one brings (facilitating discourses) are not disclosed
by the text one writes or reads. Thus, while a text may be read as an expression of the
subject (which the understanding of text in terms of ‘voice’ foregrounds) the subject
expressed is not disclosed by the text itself. (See Kamler’s 2001 p. 37 for a critique of the
concept of ‘voice’.)
The problem with plagiarism is precisely not with the text as such, but with who wrote it,
and clearly the identity of the ‘writing subject’ against which the text is measured is not
given by the text itself, even though forms of self-representation within the text itself may
be demanded of the student. Abasi et al (2006) note that a lecturer in their study insisted
students do not assume a disciplinary ‘insider’ position, and this clearly suggests how
institutional formulations of ‘student’ and perceptions of individual students all contribute
to the reading made of a student text. Such a position can be imposed on the student
because of the power relationships embedded in the academic institution, but such power
is itself interdiscursively sustained. In a similar way ‘Thuy as writer’ was interdiscursively
produced for the lecturer, as the discussion above shows. The question of plagiarism often
hinges around the issue of whether the language used is the ‘student’s own’, but clearly
when, or how, language is ‘one’s own’ is a very complex issue. To throw more light on this, I
want now to look at Thuy’s own comments on part of her text which was heavily ‘borrowed’
from sources.
140
6.3.2.3. Student comments on borrowed text
The opening paragraph of ‘section 2’ in Thuy’s essay for Competition Law titled “Overview
of section 46 and section 151AJ” reads as follows. Section 2 follows the Introduction, so this
section is where she opens up the substantive ‘body’ of her essay. The text underlined with
a straight line indicates text which is wholly in the words of an uncited secondary author
(the first paragraph including the quote from the Trade Practices Act and most of the
second paragraph is from Yeung 2000 p65). The text underlined with a squiggly line is
derived from a particular Australian High Court judgment, Melway, and this is cited.
Section 46 of Part IV of the Trade Practices Act 1974 (Cth) prohibits a corporation that
possesses a substantial degree of market power from taking advantage of that power for the
purpose of:
(a) eliminating or substantially damaging a competitor of the corporation;
(b) preventing the entry of a person into that or any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that
or any other market.(footnote 3 is given here, which says “Trade Practices Act 1974
(Cth), s 46 (1)”)
In order to establish a breach of section 46, three elements must be satisfied. First, the
corporation must possess a substantial degree of market power. Second, it must take
advantage of that power, and thirdly, the corporation must take advantage of its power for
one of the proscribed purposes. Moreover, the Act requires a connection between market
power, conduct and proscribed purpose, not merely the co-existence of them. (footnote 4 is
given here, which says “Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) [hereafter
referred to as Melway case] 205 CLR1”.)
The original extract in Melway is as follows, and it is clear that Thuy’s words follow it closely,
but include a reconfiguration of given phrases and the addition of the cohesive words
‘moreover’, ‘between’ and ‘them’.
141
Section 46 of the Act requires, not merely the co-existence of market power, conduct, and
proscribed purpose, but a connection such that the firm whose conduct is in question can be
said to be taking advantage of its power. (from paragraph 44 in Melway).
It is unclear whether Thuy found this extract by reading the Melway decision herself,
although this is unlikely. She and other students make quite clear that they rely heavily on
secondary sources to guide them through primary sources. For example, Thuy says “I still
very afraid (laughs) to approach the common law” (1HR T52) and speaks of gaining her ideas
wholly from “articles” rather than primary sources; Narin says (LI N98) that “I didn’t read
whole case. I just read an article that refer to the case . . . . That really helpful”. He says he
relies on “secondary reading” (LI N103/4) and that “I cannot read whole cases . . . just
confuse me” (LI N100); Minh says of reading Cases “I don’t know how to do this” (IP M20)
and on reading a case “it’s very hard” (IP M22); “when I research court decision, I cannot
find. It’s very hard for me to find uh what’s the, just, thinking about the decision” (IP M36)
and so secondary sources make this easier. This reliance on secondary sources is evident in
their citation of primary sources; the exact wording of footnotes can often be traced to
citations in secondary sources which the students do not cite (LI MZ8). However, the last
sentence in the extract above referring to Melway is not found in Yeung, the source of the
rest of this paragraph, and therefore Thuy has clearly combined information from different
sources. It is significant however that in adding the information “Moreover, the Act requires
a connection . . . .” Thuy makes an intervention which enacts a process integral to common
law reasoning – to draw on and make use of appropriate legal authority in a particular
instance to clarify the relevant legal principle established (she says “the connection between
the elements I have to use a quotation from the Melway case [right], because it’s not said
clearly in the Act” [CL T132]). Thus Thuy makes a move that is not made in her sources,
using the language of her sources to represent the propositional content, but putting this
content to an effect not given in those sources.
Thuy also states that what we find in this extract – the language and these ideas
represented in the paragraph following the quote from the Act – are her own. Thuy has
closely followed Yeung’s summary statement of the Act (the opening sentence), including
142
the extract he cites from it, and Yeung’s gloss of what that Act means (the first three
sentences of the second paragraph). In referring to the second paragraph, Thuy states the
gloss is her own summary (“my sum, summary, is that from here to here. [OK]. This
quotation (Thuy refers to the citation in fn4) only for the last sentence.” (CL T130).) When
asked if the summary of the three elements is “actually yours” she agrees and interjects
“that, that like interpreting the word of the Act” (CLT131). The exchange in the interview
continues: “So it was your interpretation [yes] of the words of the Act” to which she says “it
was obvious” (CLT131).
Although clearly taking her cue from her secondary sources, Thuy equally clearly feels a
direct relationship to what is said – the interpretation/gloss is ‘obvious’ and it has become
‘her own’. While Thuy acknowledges both primary sources (Trade Practices Act, and
Melway) in-text and in footnotes as necessary here, she clearly enters into a different
relationship, whether felt or designed, with her secondary source. Legal authority is thus
appropriately cited, and Thuy is meticulous in citing such primary authority throughout her
text, clearly differentiating her own position as writer from such legal authority, showing
recognition of and full compliance with a fundamental (and necessary) practice of legal
writing, even though these footnoted citations to primary sources are often ‘borrowed’
from secondary sources. Nevertheless, in citing thus Thuy shows the ‘foreignness’ (Bakhtin,
1981, p294) of such words, a foreignness bound up not only with these words having their
origin elsewhere, but more importantly perhaps with the legal authority these words have,
an authority constitutive of law and an authority Thuy cannot assume for herself. In
contrast, secondary commentary or interpretation becomes her own, and sources are often
not cited. In Thuy’s Competition Law assignment, only 11 out of 47 footnotes cited
secondary sources and of these, five were to one submission made to a Senate Inquiry into
the Trades Practices Act, and as such, is cited by Thuy as evidence for claims she makes, in a
manner closer to the use of primary sources. In doing this, Thuy may be following a practice
she believes her secondary sources follow. Legal authority is cited for all claims made about
the law, but because interpretations may be those of the author such texts may have cite
few secondary sources (See Pecorari’s [2003] comments on students inferring that because
a source author cites no reference for a comment made, the student does not need to). If
143
Thuy is making a similar inference, she is responding to what is empirically present in the
text itself (where citations of secondary sources are comparatively scarce) rather than to the
discursive practices which lie behind and give rise to the empirical features present in the
text. These practices are not visible in the text itself. Thus, in accordance with such
discourse practices, an expert legal reader may well make their own interpretations of legal
authorities in an area of law they are familiar with, while a comparative newcomer to the
area of law who relies on secondary sources to navigate their way through the law would be
expected to cite those guiding secondary sources. Such a ‘rule’ which underlies the citation
practices students are expected to follow is not explicitly displayed in the texts they read
(Pecorari 2006).
Using sources in this way, often without attribution, Thuy constructs a coherent and well-
developed argument/position in both her Human Rights text (for which she received a High
Distinction grade of 83%) and her Competition Law assignment (for which she received a
Distinction). Because of the recurrence of ideas in different source texts, Thuy assumes a
form of ‘knowing’, regardless of what such propositions presuppose, without necessarily
experiencing the discursive world that such texts refer to and from which they emerge. Thuy
thus engages with her sources, but at the level of text, where she decodes symbolic
meanings but feels a relative superficiality with respect to the indexical function of such
language and the broader discursive world the propositions refer to. Thuy speaks often of
how she lacked ‘background’ in the issues her source texts spoke of and which she was
writing on and that her essay was “superficial” (CL T146). Thuy produces a position of
‘knowing’ which is organised around the texts she engages with rather than the discursive
worlds they purport to represent. In this way Thuy produces assignments which are read by
her assessors as coherent and as dealing adequately, indeed very well, with the relevant
issues, and these assignments are consequently read as the expression of a unified and
competent writing subject (SJ says of Thuy “she knew what she was doing . . . it was all very
seamless” [HR SJ60]), even though Thuy feels they are superficial and she has little
commitment to the position so produced (see her comments in both HR and CL interviews).
I have also pointed out that she does not construct this position by distinguishing herself
from the various secondary sources from which she draws the ideas and wording she takes
144
up to compose her text and her position. Thus she assumes the position these authors
create, at least at the level of clause structure and the presuppositions these propositions
imply. There is little attempt to distinguish herself from them, through citation for instance,
yet overall a more or less consistent position is created by Thuy at text level, in her reader’s
judgment. Yet the propositional content is not what she closely identifies with; as noted she
states her argument is ‘superficial’ and she has little commitment to the position she
develops. Instead, her comments suggest her identification is with the language she uses; it
is the words which are ‘her own’.
Through this labour Thuy as subject engages with her source materials, but not because
they are “internally persuasive”, that is, because of the word’s/text’s “semantic openness . .
. its capacity for further creative life in the context of our ideological consciousness, its
unfinishedness and the inexhaustibility of our further dialogic interaction with it”, and
because “we can take it into new contexts, attach to it new material” (Bakhtin 1981, p. 346).
Nor is it because such words are “authoritative” for Thuy, fixed in their meanings, inert,
calcified (Bakhtin 1981, p. 344). For Bakhtin it is between these two poles that
understanding and “ideological consciousness” takes shape (1981, p. 342). But for Thuy it is
the text that iconically, I would suggest, stands in for the discourse, occupies the place of the
discourse rather than represents either internally persuasive or authoritative discourse in
Bakhtin’s sense. I suggest the texts materially embody the discourses for Thuy, rather than
point to or represent them. That is, for Thuy, we could say there is no discourse behind the
texts which she has been constrained to engage with (directed to them as she is by lecturer
recommendations, library holdings, databases etc). The texts occupy the place of the
discourses, as Thuy implies when she says she lacks the ‘background knowledge’ that frame
the texts and which is indexed for their discursive meanings to be realised. And so in an
important sense these texts become hers, yet in an equally important sense they remain not
hers. This ambivalence will be taken up again in chapter 7.
I would argue that Thuy is not engaged in an instrumental borrowing of sources in order to
ease her task, but is engaged in a labour with those texts which do not leave her untouched
in the way a more distanced, instrumental engagement might. She speaks of her struggle
with writing as leading to feelings of ‘depression’ in the case of both her assignments.
145
During the process of researching and developing her Human Rights essay, Thuy states
(Journal Wednesday 18th May):
I think I would settle down on the battle between Right to privacy and the counter-terrorism
war. However, it is still too large for a 8000 word essay. I need to narrow it down and that
requires more reading
She forwards an email she sent to her lecturer asking for help and confirmation on a topic,
and she adds that
I am in a bit of disappointment and depression at the moment. I couldn't concentrate on
anything. May be because I still haven't find out which way to go on (Friday 20th May)
She was pleased with the reply she quickly received from her lecturer which was reassuring
of her plans, but despite this she goes onto say she is still in a “bad mood” and cannot
concentrate on her study. It is striking that the same sort of thing happened in her second
semester too. In her journal entry for weeks 2, Sept 12th – 18th, in researching her
Competition Law assignment, Thuy says “I feel that I am going through a depressed period
again” and this was something repeated in her other assignments as she sought to gain
some bearing in her assignment, and this state exists even after obtaining support from her
lecturers. I am drawing attention here to the level of commitment that is involved, but
which is not so much to the discursive ideas (she acknowledges she is relatively lost with
respect to the broader context of her source texts) nor to the position she finally creates
(again, she admits she did not care too much about that). Neither is it to instrumentally
completing the task; as I have shown earlier she makes clear her interest lies in getting to
better understand the common law, English and western culture more broadly. I therefore
suggest that Thuy’s engagement which is impacting upon her sense of self (leading to
feelings of depression) and the constitution of self as writer in these instances, has to do
with her relationship to the textuality or materiality of the texts she is engaging with.
146
6.3.2.4 Thuy’s relationship to her source texts
I want now to summarise what I believe can be said about Thuy’s relationship to her source
texts.
It was in structuring her texts that Thuy felt most anxiety (1HR T240). It is not so much in
what she says (other than that the judgments she makes produce the enunciated position
taken in her text), but it is in this enactment of her text, I suggest, that she feels vulnerable.
Thuy said she had no problems with the ideas enunciated in her sources (1HR T74), and
though she invested much labour in producing a position with those ideas, she had little
commitment to that position (1HR T212, 214). Her satisfaction lies elsewhere. When
commenting on her Human Rights essay, she said it was the most difficult one to do (1HR
T249) and was surprised at the grade she got (1HR T251). Then she added the following
comment:
I didn’t know she assess the assignment. The way she assess it. I didn’t sure about the result,
but I still feel satisfied with this . . and it doesn’t matter how the result is (1HRT255).
She doesn’t know how her essay will be marked, but she also reaches a point of indifference
to this because she had in some way satisfied herself. It is the nature of this satisfaction
which is curious. She clearly states her satisfaction does not lie in the
ideas/position/enunciated, and so I suggest it lies in the relationship she has to the act of
enunciation. Clearly, to enact a text she must have something to enact, and this ‘something’
is the text presented to her by others, and this act necessarily re-writes what is given to her,
in the least because she recontextualises it (Bakhtin 1981; Derrida 1988; Threadgold
1997a). It is through this act that a subject position is assumed by Thuy. Any reproduction
of prior words in fact entails making a difference. For Bakhtin this reproduction is tied to the
nuancing of past meanings, but for Thuy I am arguing it is at the level of text as much as of
meanings that she is being formed as subject. Nevertheless, in the process of writing it is to
this moment of being instanced as a subject that her unease is linked, rather than to the
enunciated message. For this reason she has little commitment to what is actually realised
at the level of the signified, or enunciated. When asked in 1HR T161“when you submitted
147
the assignment, what did you feel most pleased about [pause], or most confident about
perhaps?” her reply was “My first thought was “Oh, I can finish all this stuff” [1HR T162].
This suggests more a ‘negative’ achievement of managing to survive rather than a positive
pleasure in specific arguments, or the overall position or understanding she has developed.
It is not mastery which is at stake here, but perhaps more a sense of a ‘subject’ who has
managed to ‘come into being’ and survive through a relationship with texts, achieved by
struggling with them, but not necessarily mastering them. Thuy’s satisfaction has to do with
her position as subject, not through achieving an identity with specific skills/achievements
which have been obtained/learnt.
At another point Thuy says that when writing her assignments, the addressee she had in
mind was “Somebody like me” (CLT108), “because I’m not sure what the lecturer expects
from us” (CLT110). Her addressee is a ‘self’ she is in the process of constructing as she
engages with her sources, not a self she represents to her particular
institutional/disciplinary reader. In a sense she is producing a self she can identify with and
say ‘this is me’ and this, I suggest, is why she felt satisfied to the point of not caring what
mark she received.
It is not through a strong sense of identity that Thuy is attached to her text, but through an
engagement at the level of signifiers. The ‘vertical relationship’ (Kristeva in Moi 1986
p36/37) between her text and its anterior texts – or utterances – is not sustained wholly by
an internalization of meaningful discursive relationships Thuy holds in her consciousness
and which directs the relationship between these prior texts and her own. Bakhtin
emphasises the embeddedness of language in lived experience and thus one takes up words
and gives them meaning in light of one’s own exposure to past uses. Consequently, the
words we take up are saturated with the intentions of the person’s engaging in such past
uses. But for Thuy this history of the word is restricted, perhaps even concealed from her.
Even though that history constrains the appearance of such words before Thuy (ie, what
appears in library holdings, databases and so on), for her it because this word appears that
she must engage with it, not because that word, with its richness of meaning, is the word
that suits Thuy’s purposes or the word that most carries within it the meaning/history that
suits most closely Thuy’s own sense of what she wishes to say.
148
Thuy gives a strong sense of being attached to ‘words’ as she engages in her study. She says,
“Sometimes I tend to use a word people uses because I think it’s very perfect” (1HR T232)
and so she “sticks” to their word (1HR T234; 244), even though she admits she may not have
a secure sense of their meaning. For example, she states that “Sometimes I find some words
interesting to me, but maybe I couldn’t understand clearly what the word’s real meaning is
[mm], but I just have some idea about these and try to use it” (2HR T8). In what sense they
are ‘perfect’ is thus interesting.
The horizontal axis between the speaker and addressee (Kristeva in Moi 1986 p37) is equally
unstable for Thuy. While the institutional demand placed on her is clearly understood and
addressed (produce an essay, in a certain time, within a certain word limit) she states she
has very little sense of what specifically is called for (1HR T255 and 1HR T30) and how they
“mark one different mark for each assignment” (1HRT30), that is, allocate specific marks. Of
course, the other component of the subject-addressee nexus is the subject, and Thuy must
respond to the demands placed on her. She does indeed persist in her tasks, even though
the process of making judgments for her is difficult. She speaks of drawing on “my
experience” (1HR T182/6) and “my knowledge from the lecture and other resources” (1HR
T186) to make judgments, but these are often not enough and so she draws on “instinct” or
‘intuition” (1HR T182/5). I take this to refer to dispositions she has already formed but
which do not or cannot align in any clear way with disciplinary principles. She speaks of
convictions she already has (in Human Rights she speaks of ‘knowing’ she had to oppose the
PATRIOT Act, even though she could not say why) but she also says that often she did not
really know what kinds of judgments to make. She spoke of being exposed to many ideas
through her research and that she found it very difficult to decide what to incorporate into
her essay and what to leave out (1HR T202; 204). “It’s quite difficult [yeah] because it
depends on your evaluation of that argument and also you have to speak on the objects, the
objectives of the assignment” (1HR T204). This difficulty with making judgments was most
poignantly expressed when, after stating she often lacked criteria for making evaluation (eg
1HR T196), she was asked how she coped. She answered in a sudden change of tone, and in
a very quiet, plaintive voice said that all she could do was “just try” (1HRT206). There is, I
suggest, an indication in this of a sense of abjection which she feels as writing subject at
149
such points, and I suggest this can be linked to the broader sense of ‘depression’ she speaks
of in the early stages of researching and writing both of the assignments (noted in Thuy’s
journals). This lack of bearings points to a ‘loss of self’ which accompanies her attempts to
make good her desire to become a subject of and in the common law discourse, and to
participate in an act/judgment which takes her beyond an established sense of self.
Thuy’s position on both the vertical and horizontal axes that Kristeva speaks of is thus rather
tenuous, no doubt varying across different moments and stages in her researching and
writing. What I am drawing attention to here is that it is possible to identify places where
Thuy does indeed draw on what she knows to make ‘positive’ decisions drawing on various
resources in the manner Prior (1998), in particular, attempts to show are multiple and
heterogeneous. But at the same time I am trying to show that Thuy also finds herself in
places where she lacks resources and that as subject she is marked more by this sense of
‘lack’ than by a sense of what she can positively do or draw on. This ‘lack’ I suggest is filled
by language itself, as signifier. In the way Thuy is ‘objectively’ carried forward by the texts
and by disciplined processes that led her to certain texts and not others, but in the felt
sense of lack when dealing directly with such texts Thuy as subject is located not so much ‘in
herself’ but in the texts which carry her. The texts provide a concrete embodiment of the
discourse which Thuy relies on, in the absence of an ‘internalized’ embodiment. The
embodied dispositions Threadgold (1997a) refers to for example are provided for Thuy by
the texts she draws on, rather than by what she has internalized. In this respect, Thuy as
writing subject is in a sense externalized, located in part in those texts rather than ‘in
herself’ and her subjective dispositions. Consequently, the important point to note here is
that in so far as this is the case, Thuy is nevertheless ‘joined’ to these texts. They have
become in a very real sense ‘hers’. Thuy certainly writes her essay, but she is not entirely in
possession of, not entirely identical with, the subject who writes. She is both within herself
and external to herself, and it is in this respect I would argue the concept of ‘identity’ (the
sense one has of oneself, suggest Holland et al 1998 and Ivanic 1997), is insufficient to give
an account of the engagement of the subject in writing. The labour Thuy engages in is
integral to this objective positioning that is created for her. Once again, Thuy’s use of source
material is not ‘plagiarising’ in the usual sense of that word, of simply taking an easy route in
150
the production of her text with minimal engagement; the reverse might be true. It is
arguable that Thuy could not have engaged more than she did. Thuy’s subjective
engagement shapes the take up of the texts she draws on, but at the same time these texts
lead her beyond herself, and she certainly is not ‘master’ of the possible meanings produced
by her text.
Thus, I suggest the relationship Thuy has to the texts she borrows is far more intimate than
a merely instrumental relationship suggests, in which a subject simply utilizes what is
available to meet already given interests/objectives. I suggest Thuy as subject is implicated
in the texts she uses; in this respect they certainly consist, as she says, of ‘my words’ even
though at the same time there is a gulf that separates her from their discursive sense. It is
the words as signifiers that she is bound to as subject.
In this regard, the ‘orchestration’ that Bakhtin (1981 p299) attributes to individual language
use presupposes an individual who is fully familiar with the various discourses to be
orchestrated. Only through ‘mastery’ can the individual successfully utilise various
discourses to address a specific circumstance they are in, or utilises different elements of
“cultural ‘meaning systems’” in new ways to successfully deal with new contexts (Holland et
al 1998, p. 11, p.17). My argument here is that a learner is not in such a position, and further
I would suggest that this saturation of meaning is never achieved. This is more obvious in a
learner of a language and of a discipline, but the idea that we achieve ‘mastery’ over
discourse (Bakhtin 1986; Braxley 2005) is an idea that needs to be treated with caution.
There is indeed always ‘play’ in language as I have tried to show in Chapter 5 with regard to
the dialogic effects that shaped the reading and understanding of Narin’s text by his
lecturer.
6.4. The idea of plagiarism
Plagiarism is commonly presented as an issue arising from a student lacking ethics, or
lacking knowledge of conventions of attribution (Howard 1995 p. 788; Valentine2006).
Consequently, rules on plagiarism are often presented in very legalistic and ethical terms
151
(Lillis and Turner 2001). But as many researchers in the field recognise (eg Howard 1995;
Ouellette 2008; Pecorari 2003; Chandrasoma et al 2004; and many more) the practice of
‘borrowing’, or ‘patchwriting’ is more complex than a legalistic account suggests. While it
may be argued that one cannot ‘accidentally’ incorporate swathes of source text into one’s
own text, unless one has been very remiss in documenting where, when taking notes, one
has simply cut and pasted verbatim from a source, many reasons for borrowing have been
uncovered by researchers investigating students’ reasons for doing so. For example, it is
suggested that students seek to learn by imitation (Angelil-Carter 2000), or students feel
their own grasp of English is not good enough, or students want to ‘try out’ new disciplinary
identities (Lillis 2001, Abasi et al 2006), or they bring to their writing cultural differences in
text practices (Valentine 2006), or what constitutes a permissible transgressive use or not is
contingent upon different factors in different contexts and at different times, ensuring
uncertainty for students (Chandrasoma et al 2004). Pecorari (2003) shows, in her analysis of
student ‘borrowing’ of sources, that various reasons can be operative in the same text.
My interest in this section is to show some of the limitations of such explanations to fully
account for the patchwriting Thuy engaged in. To reiterate, my argument is that use of
source text is linked to the way one is exposed to that which, for want of a better term, is
‘Other’ to oneself, and it is through this link that identity is formed. However, engaging with
new discourses cannot be initially forged through the ‘meanings’ the discourse has (in itself,
for oneself), since any such meanings require that one is already in possession of the
discursive resources to make such meanings. The ‘unity of subject’ that is required by any
sense we have of a unity of meaning (Kristeva 1980p124/5) must be undone by exposure to
something new, and it is this sense of loss, of destitution (depression) that I have suggested
is worth understanding in Thuy’s writing.
6.4.1. Intention to deceive
On the question of intending to deceive, I would concur with Pecorari (2003) that the
willingness of the student to talk about the sources used and the listing of them in her
bibliography suggests there is no indication the student felt she needed to hide the texts
that were borrowed from, or that she needed to take action to avoid being accused of
152
‘cheating’. Such an accusation, needless to say, can be devastating for a student. Valentine
(2006) reports on a student who was so accused, and while, once it was explained to him
why he was accused of ‘cheating’ he could understand why the institution made the
accusation, for him there was certainly no intention to ‘cheat’ and he believed the practices
he was following were in fact quite acceptable. It is clear too that Thuy feels she has nothing
to hide, that there was no intentional ‘deception’ going on for her.
Nevertheless, Thuy states that taking notes was a problem for her, since it took too long. In
her Human Rights journal she states that she followed a practice she learnt in her earlier
units, which was to cut and paste materials from her sources, but only for note-taking, not
for her assignment. She says “Instead of taking note, I cut relevant parts of each articles and
paste them into suitable places in my outline” (Journal, Friday 3 June 2005). She further
explains that (Human Rights journal Friday 3rd June):
I think it is quick and organised way of gathering materials. After all, I will have all materials
organized in a systematic way and I can be sure that I did not miss any significant details
(which I may do if I just take note, because my notes are usually influenced by my thought or
my focus at that moment).
Failure to rewrite her notes in her essay may explain some of her patchwriting, although she
did say later, in response to a question, that:
I only use this for gathering materials. It helps me to collect the relevant materials under
each section title of my outline. Then it is easier for me to compare and decide which ones I
can use in my assignment. It also reminds me about the information sources so that I can
cite them properly in my writing (Human Rights journal, 5/6 – 18/6).
The implication here is that she adopts this tactic only for note-taking purposes. Given the
fear she expressed of ‘plagiarising’ (1HR T234/236) and how this fear affected her writing
(1HR T240), I believe Thuy would have made efforts to avoid deliberate borrowing as such.
Therefore, the patchwriting also has other sources, I suggest. I certainly see no evidence
that Thuy was intending to deceive or gain unfair advantage by drawing on the language of
her sources.
153
6.4.2. Cultural differences, or lack of understanding of citation practices
This explanation is a rather tricky one. It has often been suggested that ‘Asian’ students
have been brought up in education systems that rely heavily on rote learning, and that this
can explain in part at least why students feel quite happy reproducing swathes of text from
sources. It is probably fair to say this explanation has been presented usually by western
researchers looking from ‘outside’ at education systems they were not brought up in, and
we might conclude that their understanding of what is involved suffers from the same sort
of misunderstanding that students suffer from when they look at plagiarism statements and
practices and infer what is meant by them, only to discover they have misunderstood and
are accused of ‘plagiarism’! Liu (2005) certainly argues that representations of Asian
education systems grossly misunderstand them, arguing that ‘plagiarism’ is condemned by
such systems and is not widely practised. Angelil-Carter (2000) suggests that drawing on
writing practices from the student’s home culture may well contribute to an explanation for
the ‘plagiarism’ found in student writing (p. 37) through a ‘hybridisation’ of past and present
discourses “indicative of the social positioning the individual has taken up” (p. 38) which the
student attempts to “harmonise . . . into a consistent academic writing mode”. This of
course accentuates existing identities and discourses the student utilises to impose on
his/her writing and create a ‘harmony’, again a problematic concept, but Angelil-Carter does
point out that even where a student does draw on his/her home cultural experiences and
practices, it is important to remember that any cultural set of rhetorical practices “is not
monolithic”, so we need to be careful of treating it as if it is (p. 39). We should recognize
that “students are rooted in, but not trapped by their prior literacy practices” and if shown
how to use new practices, “can begin to write using the (critical) practices of the new
discourse” (p. 40). Nevertheless, she suggests hybridization may be one practice which leads
to plagiarism (p. 41).
Hybridisation of cultural practices may contribute to Thuy’s own practice. She says:
when I did the writing in my country, I read some article, a book for example, and when I
understand what does it mean, I can draw my idea from, I can draw my idea from this
reading. And this is my, uhh, I don’t have to quote in this idea. But here [yeah], even that I
154
draw some idea from an article, I still have to mention that article, so sometimes I feel
confused; why should I put a quotation? (Thuy laughs slightly as she says this). (CL T136)
Thuy refers to understanding but it is clear in her practice that she also understands the role
of authority in legal texts. That is, while understanding the legal propositions she
incorporates into her essay, she scrupulously acknowledges the legal authority behind
them. That is, she clearly does not experience herself as being authorised to make such
declarations, and in this respect, despite understanding the propositions, she retains her
distance from them. In contrast, her understanding of the positions represented in
secondary sources appears to lead to an identification with them of sorts such that they do
indeed become her own, and this, she suggests, is when “I don’t have to quote” (2HR T4: CL
T136).
She also comments on a culturally induced confusion arising during her instruction in a pre-
LLM entry English bridging course she was obliged to enrol in at her Australian university.
She says:
I ask the teacher, that if it is my own thought and I didn’t acknowledge that any other people
or something like that what I have to do? It’s very easy to be plagiarise [struggles to say the
word], yes, that’s why because in my country we study writing another way not like here, we
don’t care much about the plagiarism and that’s why uuh when I do my essay paper in the
ELBP class the teacher also told us ‘this a new phase for you’, so all the thoughts may come
from the other sources, but not your own except evaluating that uuh that’s why I’m a little
bit scary a bit scary when I give my own idea because if we must give some other opinion or
some kind that because I didn’t do a lot of research here, I didn’t have the background here
that’s why I’m very timid to give my own opinion. (1HR T168)
The difficulty here lies in whether or not she can have ideas of her own, for if she does, she
may inadvertently reproduce an idea already published in the literature and she would be
subjected to accusations of plagiarism. This raises important questions about what may
constitute ‘originality’ but it also highlights a paradox in Thuy’s statements.
On the one hand she is very concerned about acknowledging sources and wary about
inadvertently acting in a way that might render her vulnerable to accusations of plagiarizing
155
ideas or words. She is clearly aware of what she has been told and yet confusion remains as
to when citation is necessary. Indeed, she borrows widely in her essay. This confusion I
suggest arises not from her lack of understanding but from the position she feels herself to
occupy with respect to these words and ideas. These words and ideas have become her
own, she experiences them as her own.
Hybridisation suggests discretely separable identities and discourses which can be brought
together or kept apart, by, it might seem, a ‘third’ arbitrating self who stands between such
discourses and identities. Thuy speaks of her writing following a western style when she
says “my boss sometimes told me that ‘you write a little bit too strange for Vietnamese
style’, so it’s like I apply the Western style” (2HR T50). She also appears to identify herself
with this style when she says “in Vietnam, people uh usually express their own opinion . . .
they say round and round, not go straight to the problem . . . Sometimes it’s a waste of time
. . . That’s why my writing sometimes makes some shock” (2HR T54/55). However, she also
identifies with what she describes as Vietnamese styles of writing:
our way of writing in Vietnam, when we have a problem, we have to explain it from the
beginning to the end [right]. That’s what . . .uh, all the issue related to the topic will be
solved. That’s why I still have that feeling in doing the assignment here that I have to explain
everything related to the topic to clear my, my idea” (CL T82)
Because of her Vietnamese style she has difficulty writing now, in her study in Australia, in
the way she believes she should. She thus identifies as writing both in the ‘western’ and the
‘Vietnamese style’. These are not so much separate identities in the sense hybridisation
suggests, capable of being joined together or kept apart, but rather, mutually defining of
each other. Thuy sometimes identifies with the one, then the other, and while contexts no
doubt constrain the sense of self as one or the other, we can note that each is constitutive
of the other. The one is defined precisely in terms of what the other is not, in a way parallel
to the sense that a signified (and identity) is indivisible from that which it is not, not only
because its semantic space is demarcated by that which it is not, or, by that from which it is
to be distinguished (Saussure), but also because the trace of what it is not lies at the heart
of what it is (Derrida 1988). In a similar way Thuy is very aware of plagiarising, yet at the
156
same time these words which are ‘not hers’ indeed ‘become hers’. Hybridisation does not
account for the paradoxical nature of Thuy’s positioning and I want to suggest this is not
something Thuy instrumentally manages, as though she were indeed a third person looking
on these different identities. That is, Thuy is not constituted out of a ‘hybrid’ of positive
identities, but rather the identities themselves are paradoxically ‘non-identical’ with
themselves, that is, are constituted by and intimately dependent upon that which they are
not. Certainly for Thuy the articulation of ‘who she is’ takes on a determinate form which
varies from context to context, and while one may attempt to create a consistent
representation of oneself (ie of one’s ‘identity’) I argue that the paradoxical qualities that
Thuy displays represent the ongoing articulation of the subject within language, which
involves an inherent uncertainty. ‘Identity’ can thus be seen as an imposition one makes to
try and stabilise this ‘subject-in-process’ (Kristeva 1986a). The engagement with a new
language and discourse and a desire to ‘acquire’ it exposes one to this unsettling and
unsettled process. We seek to ‘master’ language because it creates the illusion that both
language and self have been ‘mastered’, but this masks the underlying instability of the
subject in language. As Derrida states, “language can be desired, but not appropriated”
(2005 p. 101): we can do no more than “carry on a hand-to-hand bodily struggle with it” (p.
99).
6.4.3. Learning by imitation
The idea that plagiarising in various forms might constitute a form of learning by imitation
has been widely promoted (eg Lillis 2001; Angelil-Carter 2000; Abasi et al 2006). However,
imitation requires some perception of the object to be imitated, and language constitutes
its objects through meaning. That is, to imitate the construction of certain meanings
requires the imitator already perceives what those meanings might be, which implies the
act of imitation is no longer necessary since one already can do what the imitation is
supposed to make possible.
Angelil-Carter (2000), following Bakhtin, argues the “novice writer” when writing in a
“foreign language” (i.e. a foreign discourse) may “ventriloquise, but without a speaking
voice, without modification” (p. 35). What is aimed at though is for “the authorial voice to
157
truly speak, albeit through the voice of others”, but “this is what is so difficult for the novice
writer of academic discourse” (p. 35). She adds that “forcing language to submit to one’s
own intentions and accents is the fundamental struggle of writing” (p. 35), and so students
may “try out” (p. 35) these new words, and to do so one may well follow closely what the
original source says, such that it looks like plagiarism. This makes many assumptions about
the capacity of a ‘speaking subject’ working in a new discourse to know what it wishes to
say, what ‘voice’ it wishes to take up and so on, yet I would suggest these are precisely what
the subject lacks.
Howard recognises that:
From the perspective of the developing writer, patchwriting involves evaluating a source,
selecting passages to achieve communicative purposes, transforming those passages in a
new context, and accomplishing new meaning (Howard 1999 p. 258)
Clearly, patchwriting presupposes already relatively highly developed disciplinary-discourse
skills, since students must already possess the discipline-relevant means of evaluating, of
selecting what is appropriate and making them work in the context of the students own
writing. The coherence and seamlessness of Thuy’s text that her Human Rights lecturer
recognised suggests Thuy also engaged in such disciplined activity, despite lapses in that
coherence (HR SJ18). Yet for Howard such borrowing also represents a developmental
process:
The student doesn’t fully understand what she is reading and thus can’t frame alternative
ways for talking about its ideas. Or the student understands what she is reading but is new
to the discourse. She merges her voice with that of the source to create a pastiche over
which she exercises a new-found control. (Howard, 2001, p1, cited in Pecorari 2003 p320)
These two quotes together suggest a knowing and a non-knowing by the student, at the
same time, of the same object (the ‘new’ discourse and its practices). It is unclear whether
Howard assumes that what is not known is circumscribed by what is known, such that the
student can clearly identify what is called for, or whether she holds to some other view of
how this knowing and ‘unknowing’ simultaneously work together.
158
6.4.3.1. Limits to imitation as a means of learning as evidenced by students writing
There are a number of examples in the writing of students in this cohort where a form of
imitation is explicitly or implicitly what students engage in, where students construe what
they see in terms that diverge from the discursive function it fulfilled. Thus in Chapter 4 I
noted how Minh reproduced the judges’ discussion of functional shape in Kenman, taking
their action as a guide to what is involved in common law discussion of a case. In doing so
he did not recognise that this discussion fulfilled a specific function for the judges when
determining what was at stake for them, but it is not necessary when analysing a case in the
manner Minh was asked to. I also discussed how Thuy incorporated into her Human Rights
essay a discussion of the circumstances under which a nation may ‘derogate’ from its
obligations under a Treaty to which it is a signatory, since this was something her lecturer
had written on with respect to the same topic, the legitimacy of anti-terrorism Laws. Thuy
was following her lecturer’s lead in taking up this issue, but failed to recognise from a
disciplined perspective what determined its relevance. As a result, her ‘imitation’ of her
lecturer led her into error, in her lecturer’s assessment. Further, at the level of language
itself, as noted earlier, Thuy stated that she did indeed ‘try out’ new words she found and
liked, but as she admitted, this was not always successfull. (“Sometimes I tend to use a word
people uses because I think it’s very perfect” 1HR T232; “There’s many words cross my eyes
and I keep using them in my writing” 1HR T242; “sometimes I use words . . . you think is very
strange but for me, I think, it had a similar meaning” 2HR T6, and here she is alluding to uses
of words she finds in ways that would typically be described as ‘erroneous’.)
Both Thuy and Minh illustrate how easily ‘imitating’ can go wrong and thus it is clear that
imitation alone is not guaranteed to be a means of learning. For Thuy to ‘try out’ language,
more must be involved. When Howard suggests students borrow as a means of “expanding
one’s lexical, stylistic, and conceptual repertoires, of finding and trying out new voices in
which to speak’’ (Howard 1999) it can appear no more than a hit and miss affair if imitation
alone is the guide, and in this sense one can scarcely speak of ‘trying out new voices’. I
would suggest that critical here is not the act of imitation (which a student may well
attempt) but the engagement which underpins it, that is, the desire for a perceived object
which does not in fact exist (as Derrida implies in that language “cannot be appropriated”)
159
but a desire which nevertheless implicates the student in the discourse (which remains
opaque to him/her) and leaves its mark on the student as reading/writing subject.
Pecorari (2003) provides an example of how imitation fails as a basis of learning in her
comments on citation practices. She notes that some students explained that they did not
cite an authority for certain claims they made because their source did not, and
consequently the student believed it was not necessary to cite the source she drew on,
since there was no original source cited by the text she was reading. For this and other
reasons Pecorari questions whether patchwriting is, in her paraphrase of Howard, “an
essential phase through which writers pass en route to a stage at which their own voices can
emerge” (p320). I would suggest that in the case of Pecorari’s student, it seems the
secondary source is read as a cipher of information, of what originates elsewhere, and
hence is not a source in its own right. That is, by imitating what the source does, the student
fails to recognize the displacement this source introduces into the transmission of the
ideas/discourse the student is engaging with. That is, she fails to recognise how the
mediation of the discourse by this source also acts as an intervention in the discourse, a
change in the discourse the student is reading. This text becomes part of the discourse, to
be cited, and not merely a transparent medium of a discourse which already exists. This
source text therefore becomes a link in a chain of texts, and the discourse is constituted
within this chain of texts. It is not something which lies behind these texts. In this respect,
the material presence of such a text contributes to the discourse, in addition to any
ideational content attributed to it. Thus each time there is reproduction of ideas (in a source
text from prior ones) there is also a displacement within the discourse, a re-writing as
Threadgold (1997a) puts it, and this cannot be empirically viewed by a student who seeks to
imitate his sources’ practices. There is an intervention/ displacement which is not
empirically visible, yet is inherent in the production of a discourse, as Bakhtin argues, and
there is an analogous intervention the students make when they produce their text drawing
on sources.
Any act of imitation or borrowing always effects a displacement in the discourse; it is not
merely an imitation but it intervenes in the discourse. In this sense, a student who attempts
to occupy a discursive space by imitating what has gone before will find him or herself in not
160
quite the same place his/her source author occupies. I noted earlier that source texts do not
produce a model for students generally, since the position a source author speaks from and
the position a student speaks from are very different. Indeed, Lea (2005) argues that
“writing at university is not about acquiring decontextualised, transferrable skills” (p. 192/3)
and that the student is not “gradually moving towards full participation in a community of
practice and engaging in writing practices similar to those of established academic members
of that community” (p. 193). She adds “participants are not engaged in a comfortable
process of gradual acculturation into the academies communities” (p. 193). Because
university education is about positioning students as “permanent novices, never attaining
full membership of an academic community of practice” (p. 193), the place of enunciation
from which a student speaks can never fully represent a disciplined subject.
Bhabha (2004) points out, with respect to colonial discourse, that mimicry entails a
fundamental paradox. The colonising power assumes for itself the project of ‘civilising’ the
colonised and thus producing colonial subjects who are the same as the coloniser (in beliefs,
values and so on), yet at the same time the colonial discourse equally ensures the colonised
can never become ‘one of’ the colonising peoples. In so far that much of the colonial era
was driven by Enlightenment thought, “the dream of post-Enlightenment civility alienates
its own language of liberty and produces another knowledge of its norms” (p. 123). That is,
the ‘civilizing’ process colonialism claims to bring (ie enunciates) in fact enacts (at the level
of enunciation, the level of speaking this enunciated) a challenge to such norms, because it
deprives and subjugates others. Thus, “in the postcolonial context the problem of identity
returns as a persistent questioning of the frame, the space of representation” in which the
postcolonial subject is represented by the Other, the discourses of the dominant episteme
(eg the Western discourses of, say, Foucault) (Bhabha, 2004, p. 66). This paradoxical
relationship is similar to the one I am pointing out for students in their academic writing,
and which Lea hints at. On the one hand students are being ‘civilised’ into the disciplinary
discourse, yet at the same time they remain implacably outside its borders, for as Lea
argues, they are instituted as students (outsiders; the colonised). Bhabha points out that the
closer a mimic gets to imitating, the greater will be the scorn poured on him, and very good
student imitators are probably more likely to be suspected of plagiarism. The role the
161
colonised plays in the colonising structure is analogous to the role the student plays in the
educational and disciplinary structure. Accusations of ‘plagiarism’ may not simply be a
product of western conceptions of ‘property’ (eg Pennycook 1996) but they may have a far
more fundamental role – they keep the student in his place and in doing so maintain the
whole edifice of the academic institution and its disciplines.
6.5. Conclusion
In this chapter I have argued that the patchwriting Thuy engages in is a far more complex
phenomenon than it is usually credited with being, and above all else I have indicated how
the subject is implicated in the text she engages with, but not as a fully formed identity
attempting to use source texts in such ways to achieve well-defined goals. The writing
student and her goals are produced within the process of engagement, and in that sense I
have emphasized that the critical element for the student is not so much ‘control’ but
labour and engagement, for it is through this activity the writing subject is formed.
I have spoken of a number of paradoxical features in discussions about language and
patchwriting. Bakhtin presents a historicist account of language yet at the same time reverts
to the necessity of a ‘language system’. Howard speaks of patchwriting as a ‘developmental
phase’ in the acquisition of discourse yet at the same time acknowledges that it
presupposes an understanding of many features still in development. I have argued that a
similar paradox underpins accounts of learning by ‘imitation’.
It is this paradoxical quality which points to what is entailed in engagement with a discourse.
The non-identity of discourse and of the identities which subjects bring to engagement with
discourse ensure that both discourse and identity remain ‘open-ended’, as I have tried to
show particularly in my discussions of dialogism in chapter 5. It is this process I have
suggested Thuy is engaged in, and which I argue underpins the patchwriting that is
widespread in her essays. They are not so much indicative of an instrumental subject
struggling to make the best of what resources are available to her as she tries to produce a
reasonable text, but of an emerging subject who is constituted in the texts and discourses
162
she engages with, whereby language that is not hers at the same time provides the means
of her becoming, indeed being, and for this reasons is constitutive of Thuy as subject and
the language is therefore experienced as hers.
I have argued that signifiers are not merely a vehicle for signifieds which students utilise to
produce clear communication. In places, Thuy explicitly recognises her attachment to words,
and this attachment contributes to the work of constituting Thuy as ‘subject’ in ways that
precede the formation of clear meanings or of an ‘identity’ Thuy feels herself to be. In this
sense Thuy is being inducted into the discourses through an openness to the signifier which
renders her vulnerable, as I have tried to show.
In the next chapter I want to draw together the discussion so far in order to further clarify
the nature of the ‘writing subject’.
163
Chapter 7
The writing subject
7.1. Introduction
In this chapter I comment on the writing subject. In previous chapters I have questioned the
view that a student aims at ‘mastery’ over existing conventions that characterize a
discourse, or that they must acquire the beliefs, values and so on that underpin it. I have
shown that the students’ texts, and the readers’ responses to them, suggest considerable
variation. While a writer does attempt to submit language to the meanings s/he intends
and in this respect we can perhaps speak of mastery, I argue that whether or not meaning
can be ever fully submitted to one’s intentions is debatable. Students are engaged in dealing
with a discourse and for L2 students, a language, which is ‘other’ to them in certain
respects. It is this relationship, which is prior to mastery, which I deal with here. Indeed, I
argue that even though familiarity with discourses and language may well lead to the
establishing of conventions and regularized practices, such as Bakhtin argues with respect to
genre, there nevertheless remains a relationship to an ‘otherness’ within language use that
ensures both the discourse and the writing subject is never finally in possession of that
which is being engaged with. This is more prominent in the writing of L2 students such as
these in this study. Writing in the case of these students has to do with the way in which
they are engaged in and by a discourse that is not assimilable to existing identities and
understandings, and this is noticeable even for successful students. It is therefore not about
resisting such discourses (resistance, for example, is the focus of Cazden 1989, Lillis 2001;
Benesch 2001; Ivanic 1997 and many others) in the sense of refusing or contesting the
positions offered by a discourse on the basis that it contradicts or excludes the existing
identities one brings to the literacy situation. Such resistance presupposes one already
understands what this discourse is and the identities it offers. I am concerned with the
164
position a student occupies before any such understanding of the discourse is formed in the
student’s mind, and where it is still perceived as an object to be acquired. In order to
account for this position I appeal to the function of text/signifier as separable from the
meanings that one forms and which marks the subjective sense one has of self within a
discourse. In this respect I suggest text in its materiality contributes to the positioning of the
writing subject in ways which by-pass subjectivity yet which are constitutive of the writing
subject.
I first look at Bakhtin’s concept of language as ‘one’s own’ to argue that implicit in his
account is the role of text acting on the subject in ways not wholly reducible to the
meanings of an utterance which Bakhtin centres his account of language on. I then go on to
consider other approaches (Lea and Street 1998; Prior 1998; Kamler 2001) which take
discourse and identity as always in process, but which again focus on the production of
meaning. I argue this does not take sufficiently into account the otherness of language
which is represented by and constituted through the materiality of language (its graphic
quality in writing) which is not reducible to meanings produced. Indeed for Derrida (1988) it
is the iterability of the signifier as a mark, precisely in its materiality, which opens to the
constant deferral of meaning and ensures meaning (and hence a concomitant ‘self’) can
never be finally settled, resulting in the non-identity of discourse and self. Discourse (and
self) is thus always ‘other’ to itself at the same time it is necessarily experienced as self-
identical, determinate. It is this aspect of language and more specifically discourse which
plays a more prominent part in the engagement with it by L2 students and I suggest this
brings into greater prominence a feature of language usually concealed in contexts where a
sense of settled meanings and practices are focused on. It is in this function of language as
signifier, which exceeds its function as the bearer of signifieds, a function therefore not
reducible to the signifieds, which I argue students rely more on and which serves to position
them as subjects within the discourses they are engaging with. To provide a brief sketch of
how this might operate I conclude this chapter with a very brief account of Laclau’s theory
of the role of the signifier in the formation of hegemony to provide a possible explanation of
the process entailed in student writing and in particular in Thuy’s effort to engage with the
common law discourse and the patchwriting that arises from this engagement.
165
7.2. Bakhtin and language as ‘one’s own’
For Bakhtin, language “lies on the border between oneself and the other” (Bakhtin 1981 p.
293). “The word in language is half someone else’s. It becomes ‘one’s own’ only when the
speaker populates it with his own intentions, his own accent, when he appropriates the
word, adapting it to his own semantic and expressive intention” (p. 293). Language thus is
not neutral: “it exists in other people’s mouths, in other people’s contexts, serving other
people’s intentions: it is from there that one must take the word and make it one’s own” (p.
294). Language thus is always “populated – overpopulated – with the intentions of others”
(p. 294) and so it “does not pass easily into the private property of the speaker’s intentions”.
Many words “stubbornly resist, others remain alien, sound foreign in the mouth of the one
who appropriated them” (p. 294). It is as if such words “put themselves in quotation marks
against the will of the speaker” (p. 294). Words clearly therefore are not ‘linguistic markers’
freely available to be taken up by an individual as s/he chooses, constrained only by their
‘dictionary’ meaning. Such markers for Bakhtin are no more than “sclerotic deposits of an
intentional process”, the “naked corpse of the word from which we can learn nothing at all
about the social situation” if we “ignore the impulse that reaches out beyond it” (p. 292).
Engagement with language thus involves being shaped by the social contexts and intentions
which give direction and meaning to language. An individual thus makes that language
his/her own by appropriating it, “forcing it to submit to one’s own intentions and accents”
(p. 294), finding at the same time that some words are more perfectly adapted to one’s
present purpose and others offer more resistance.
I discussed the issue of ‘responsiveness’ more fully in Chapter 4, but the response Bakhtin
speaks of, where one takes up a word filled with others’ intentions, presupposes the person
responding has a grasp on those past uses and meanings. To appropriate those words and
make them mean something in one’s present context involves recognising meanings that
have been shaped by the intentions which saturate those words and thus language exists in
the subjectively felt meanings that interlocutors and student writers possess. The richer
one’s experience is of the contexts in which words are used, the fuller are the meanings one
166
has to work with. Without this experience, semantic meanings of words remain empty
abstractions (Bakhtin 1981).
This account does not recognise how ‘intentions’ regulate the use of words in ways that do
not rely on subjectively experienced meanings. Students encounter texts within which they
find quite specific words and forms of language use, and in so far as they respond to such
words (as they do) they are already constrained, or disciplined by past uses, but in ways that
do not rely wholly on the students understanding of such words. That is, students do make
these words their own in that they utilize them to construct their own utterance (text), even
though this use is constrained not solely by the meaning the student gives to such a word
but because it is present in the texts they use. They may have little subjective sense of the
past nuanced intentions that over time have shaped the discursive meaning such a word
has. To this extent students are constrained by the text itself and the history of the words
that constitute that text lies congealed within the text itself, rather than in the meanings the
student has a subjective sense of. The text is what it is because of the history of the words
and genres that constitute it, even though meanings attached to this history are not
subjectively available to the student reader. Critical here is that the language students
engage with, and successfully, is not only constrained by the meaning it has for them; the
text – beyond the meanings realised – disciplines the student subject and incorporates the
student into a chain of utterances the student is not fully aware of. The source text itself
exerts a discipline or constraint not reducible to the meanings realised from it, although of
course a student usually does make some meaning from it in order to work with it.
In the emphasis Bakhtin places on the ‘meaning’ a word acquires, the effect this material
presence a word has is lost from view. Yet I would argue it is this element which is
accentuated in the writing of students; they place greater reliance on the word which
presents itself to them, a presentation borne of a confluence between the student’s own
history which brings him/her to this particular moment and context, and the history of that
word’s uses which results in it crossing that student’s path at a particular moment in that
particular text. Thus I am suggesting this material element of text needs also to be
considered in the writing process, and its role is more prominent in student engagement
167
with text as students labour to produce a text of their own, with intended meanings, in their
present circumstances.
There is much evidence in the student data gathered for this study which indicates how
students respond to their source texts, how they recognise the significance of words
because of their contexts of use within texts and make use of them, but did not feel they
grasped the words’ meanings. Thuy spoke of using words because she found them in her
sources and they appealed to her, but she recognised she may not use them in the proper
way (2HR T6). Minh spoke of using others’ words [chunks of words] when he was not sure
what they meant but he clearly understood their significance for his purpose (in ISG M184
Minh says, “if I am not clear about the problem maybe I will uum copying some some some
sentence um I want to use” and he alludes to this again in IP M112). All the students spoke
at various points of not understanding what a text was getting at (ie its intention and for
Bakhtin the ‘utterance’) yet found they could use such ideas to develop their argument
(Narin says “I got my idea now ” then he reads ideas and he finds one which “is against this,
my idea, so it very good” then he finds something “I have read can support this, so I put that
instead of that” and so he says he “Kind of mix, mix, mix” (LI N174). Students draw on their
own histories and other affordances to create meaning (Prior 1998) but it is clear that the
functional effectivity of the text is not explicable solely in terms of the capacity of the
student to respond to its communicative history. The text itself imposes certain constraints
and contributes to the process.
7.2.1 The limits of ‘intention’ in Bakhtin
Because of the heteroglossic past a word has as it follows multiple pathways through
numerous nuanced intentions, Bakhtin appeals to intention and context as the means of
securing meaning as a word enters into an utterance on a given occasion (1981 p. 272).
However, Derrida (1988) quite persuasively shows that it is not intention and its sustaining
presence that characterises writing, but iterability (p. 7), not of meaning, but of the signifier.
Again, it is a feature of the text not reducible to meaning. The iterability of the signifier is
paradoxically a condition which makes meaning possible, but also ensures that meaning
itself can never be fully secured. Derrida notes that writing is conventionally understood to
168
stand in for the absent speaker, whose presence is assumed to guarantee the meaning of an
utterance. While the retrieval of that intending presence from the text is assumed to be
possible, thus enabling writing to be determinate in meaning, Derrida shows the
problematic nature of such an assumption. If we wish to argue that the absence that writing
substitutes for is a “deferred presence”, we must also accept that logically “this deferral
[differance] (of presence) must be capable of being carried to a certain absoluteness of
absence, if the structure of writing, assuming that writing exists, is to constitute itself” (p. 7).
This intending presence therefore cannot be the final guarantee of writing. Derrida argues
that it is the iterability of a mark that makes meaning possible (p. 7), since there could be no
meaning if signs were invented anew on the occasion of every utterance. But the iterablity
of the sign also ensures it can never be tied to any one context, or one intention, and hence
in principle its meaning can never be finally secured. Derrida does not deny meaning; he
simply insists it can never be fully guaranteed; a text can always ‘go astray’. Language in this
sense can never be appropriated (Derrida 2005 p. 101), it can never be finally submitted to
our intentions. There is also an absence behind the signifier, not only the ‘presence’ Bakhtin
speaks of and which ‘meaning’ implies. The signifier exists as such only because it refers to
itself elsewhere, to prior uses. This is inherent in the idea of ‘iterability’. As such a signifier is
not ‘self-present’; its presence in a given instance is possible only because it refers to
another place, to prior use. It cannot incorporate into any given instance of itself that ‘other
place’ to which it defers and which constitutes it as a sign. Thus Derrida highlights the
fundamental aporia, the irreconcilable contradiction that underlies language; that which
makes its communicative function possible is also that which simultaneously undermines
any guarantee that meaning will succeed. It is this function of the signifier in its capacity to
be freed from any given signified, while at the same time being bound to its history, that I
suggest is accentuated in the writing of students as they grapple with discourses and a
language they are not fully familiar with.
Bakhtin acknowledges that language is repeatable (1986 p. 105) and admits the necessity of
this. “Any utterance presupposes a generally understood system of signs, a language” and
so “behind each utterance stands a language system” (1986 p. 105). Consequently,
169
“everything repeatable and reproducible . . . conforms to this language system”. But in so
far that every utterance is “individual,
unique and unrepeatable” that is, satisfies an intention (p. 104), “everything repeatable and
reproducible proves to be material, a means to an end” (p. 105). The utterance is not
repeatable (p. 105, p. 127), it is unique. What is repeatable for Bakhtin is inert, and as
already cited (Bakhtin 1981), no more than a “naked corpse”. But this constitutes a paradox
in Bakhtin; he argues language is constitutively historical, and grammars and dictionary
meanings are abstractions drawn from use and consistencies within such use. In this sense,
successful language use is prior to such consistencies, which are therefore derivative and
secondary. Yet now Bakhtin is also asserting they are necessary, although he relegates them
to the status of a ‘means to an end’. This involves the sort of arbitrary privileging of one
element of a binary over its paired opposite that Derrida argues underpins western
metaphysics.
7.2.2. Bakhtin and the ‘nuanced’ uniqueness of an utterance
The uniqueness of an utterance and its life thus rests fundamentally upon the repeatability
of language to which Bakhtin gives diminished, secondary status. For Bakhtin, language is
historical and in its historical emergence it is of necessity subject to constant adaptations
and nuancing. For Bakhtin, this is the origin and life of language. A speaker’s use and a
listener’s understanding are thus inherently intertextual and heteroglossic; meanings take
their bearings from the resonances the words have with prior utterances. Nevertheless, the
difficulty with a solely historicist approach is that in so far that an utterance is nuanced, it
contains an element of meaning that has no historical reference. The nuance is precisely
that which exceeds the meanings already given through past uses. While nuance may be
understood in terms of dialogic effect (prior meanings act on each other to produce a
‘resultant’ meaning) Bakhtin stabilises such nuanced meaning through appeal to speaker
‘intention’ and the way in which ‘context’ will constrain the meanings that can be realised.
But intention itself can only be inferred in light of the meaning one has already given to an
utterance; it cannot be known independently of the utterance said to embody it and so it
170
can scarcely provide the condition for establishing a meaning. It presupposes that (meaning)
which it purports to explain.
Nuancing is only possible through the use of others’ words and hence will always be
heteroglossic. This “heteroglossia, once incorporated into the novel (or a text), is another’s
speech in another’s language, serving to express authorial intentions but in a refracted way”
(p324). Viewed in this light, it is precisely in this distance, in the refraction, that the author’s
intention is expressed. If s/he appropriated this other language as her/his own in the sense
of taking full possession of it, the author would be lost. It becomes ‘one’s own’ through a
certain distance, or absence from it.
Thus, neither writer intention nor context can settle meaning. Although language is always
used with intention and in a specific context, these alone cannot settle meanings nor who
the ‘self’ is in language, since intention and context are settled retrospectively, in light of
meaning. The nuance or accent an individual gives to meaning is thus problematic, in that in
so far as it exceeds what is historically given, its meaning cannot be secured by appeal to
past uses, nor to intention or context which can only be established retrospectively.
7.2.3. The unity of meaning in Bakhtin
The uniqueness of an utterance also requires that meanings converge on a single meaning
for interlocutors, since for Bakhtin the uniqueness of an utterance lies in the meaning it
presents. Yet Bakhtin’s account of language foregrounds centrifugal forces (eg 1981, p. 272)
associated with the heteroglossia, the dialogism and ‘open-endedness’ of utterances which
are incorporated into one’s ‘internally persuasive discourse’ (1981, p. 346). Yet a
convergence of meaning implies a strong centripetal force.
For Bakhtin, the centripetal forces acting on language are ideological. “Philosophy of
language, linguistics and stylistics have all postulated a simple and unmediated relation of a
speaker to a unitary and singular ‘own’ language” and so also presuppose “the system of a
unitary language” and an “individual speaking in this language” (1981, p. 269). These ideas
of a “system of language”, a “speaking individuum”, of a “monologic utterance” (ie singular
determinate meaning) (1981, p. 270) are all products of sociohistoric and ideological
171
discourses/forces (1981, p270). So the idea that language is unitary and meanings settled by
reference to it is “the theoretical expression of the historical processes of linguistic
unification and centralisation, an expression of the centripetal forces of language” (1981, p.
270) which are socio-political in nature. These centripetal forces are consequently not
presented by Bakhtin as inherent in language: “a unitary language is not something given
but always in essence posited” (1981, p. 270). While regularities of grammar, of
pronunciation, word meaning and use, generic form and so on may emerge, for Bakhtin
they emerge from use and certainly do not represent, derive their legitimacy from, or
constitute, a system which is constitutive of language. This emergence has no roots in
systematicity, but arises wholly from the process of addressivity, towards past utterances,
anticipated responses, and present context. Thus he argues the posited unity of language
“at every moment of its linguistic life is opposed to the realities of heteroglossia” (1981, p.
270). “The centripetal forces of the life of language, embodied in a ‘unitary language’,
operate in the midst of heteroglossia” (1981, p. 271). At every moment of its evolution,
language is stratified (social dialects etc) “into linguistic dialects . . . but also – and for us this
is the essential point – into languages that are socio-political: language of social groups,
‘professional’ and ‘generic’ languages, language of generations and so forth” (p. 272). So
“alongside the centripetal forces, the centrifugal forces of language carry on their
uninterrupted work” (p. 272). “This active participation of every utterance in living
heteroglossia determines the linguistic profile and style of the utterance to no less a degree
than its inclusion in any normative-centralising system in a unitary language” (p. 272).
What is striking in this last quote is the apparent move on Bakhin’s part to an acceptance of
centripetal, unifying forces as being an integral “normative-centralising” element in
language use, whereas his account prior is of this as a “posited” element, externally
imposed for reasons other than communicative (eg socio-political, national interests).
Language is heteroglossic and dialogic through and through. For Bakhtin, the “centrifugal
forces” in which consist “the life of language” are embodied in “dialogised heteroglossia”
(1981, p. 273). That is, language comes into being and functions through such centrifugal
forces. There is then a certain ambivalence established in Bakhtin, in that some read Bakhtin
as suggesting the centripetal forces are necessary elements in language. For example,
172
Braxley (in Hall et al 2005, p. 15) states “centripetal forces play a normative role ensuring
the speakers of a language will be able to understand one another” and dictionaries and
grammars play a defining role in this. In contrast, “our learning to interact with others is
better understood as the dynamic and unfinalisable processes of translating others’ words,
co-opting some while rejecting others” (Hall, 1995 p219). In this latter formulation it is not a
relationship based on sameness of meaning between interlocutors which is central, but one
based on responsiveness and addressivity.
If the translation of others’ words involves a process which is in the last analysis
‘unfinalisable’, and if the nuancing of others’ words ensures the “semantic openness” of
such words and their “unfinishedness” (Bakhtin 1981, p. 346) as subsequent use is made of
such words, then I would suggest that what provides common ground between speakers
and mediates this dialogic interaction is not a determinate signified, but iterable signifiers.
In this respect the signifier has a materiality which is not reducible to the signified it is said
to carry. It performs a function of its own that is separate from its ‘dead’ status as a
“sclerotic deposit” of intended meaning and this function is critical to the articulation of
subjects in communication. I will return later to this function of the signifier in the
articulation and construction of subjects, in an attempt to give an account of how students
in this study are engaging successfully with their sources and in particular to add further to
the interpretation I have so far given of the patchwriting Thuy engaged in.
7.2.4. Limitations of Bakhtin’s approach
I have tried to point to a fundamental role for text in language use, not as a system but as a
material, counter-balance to the meaningfulness to which language is put. Bakhtin tends to
diminish the significance of this material quality in his foregrounding of the uniqueness of an
utterance. Derrida brings out clearly the intimate relationship between the meaning of a
text and its materiality; they are in a paradoxical relationship in that neither can exist
without the other, yet at the same time, each ensures that the other can never be fully
itself, or ‘identical with itself’. An utterance, as also the self or speaking/writing subject who
speaks, is both present to itself, yet at the same time, not fully itself, fundamentally
deprived of achieving the ‘fullness’ of meaning by which Bakhtin marks the unique
173
utterance. It is in this aporetic play of language that students find themselves and I am
suggesting it is to the materiality of the sign, the signifier, that they are attached as subjects
as they attempt to engage with the ‘chains of utterances’ within which they find themselves
situated and from which they produce successful texts even though meanings may be
subjectively relatively undisciplined.
Nevertheless, objectively a certain disciplining is already taking place, which I will comment
on later. First of all, I wish to comment further on the inadequacy of understanding student
writing and the disciplining of a student solely in terms of what is subjectively internalised
by the student, that is, in terms of ‘meaningfulness’. There is an aspect of the formation of
the writing subject which has to do with this material quality of language and which in this
sense operates objectively, being constitutive of the subject, yet at the same time being
external to what is subjectively internalised. Thus, I will look at three approaches which also
shift away from an approach to language as a convention and rule bound system and which
see language as heterogeneous and dynamic. I will first focus on ‘situated approaches’ to
language and literacy, with a particular focus on Lea and Street, and then comment on
Prior’s radical historicism, with its complete rejection of any role for structural elements in
the effective functioning of language (1998, p. 5). I shall also consider the role of ‘voice’ in
language and Kamler’s (2001) critique of this concept in particular.
7.3. Language as meaning and text
The focus on student learning is often on students mastering appropriate conventions of
grammar, vocabulary, genre and discourse conventions in order to produce appropriate
meaning. I have shown that for Bakhtin these are secondary to the process of responding to
language, and making it one’s own has to do with developing a sense of the ‘openness’ of
language, making words work in new contexts (1981, p. 346) and thus intertextually linking
past uses with present ones. Conventions and normative forms and practices associated
with specific uses are in this sense secondary phenomena, rather than central to the
effective use of language. In this section I will consider three views which accept the
heterogeneous underpinnings of language use, but still focus on the alignment of
174
interlocutors through meanings produced. I will raise issues with respect to these
approaches and suggest that the function the materiality of the text has might address, to
some degree, these issues.
7.3.1 Academic literacies
Lea and Street (1998) reject skills-based and socialisation approaches to literacy practices,
arguing instead for an ‘academic literacies’ approach. A skills based approach, with its focus
on “a set of atomised skills” (p158) to be learnt and used by students fails to provide a
suitable theory of how a user determines which skills to use on a given occasion and how to
apply them. Socialisation approaches aimed to make good this deficit by focusing on the
way a student-subject is formed through acculturation in academic literacy practices,
though as Lea and Street note, ‘socialisation’ “appears to assume the academy is a
relatively homogeneous culture” (p. 159) which students are inducted into and context is
thus inadequately theorised since this is taken as stable and predictable.
Lea and Street thus recommend an “academic literacies” approach to literacy, which “views
student writing and learning as issues at the level of epistemology and identities rather than
skill or socialisation” (p. 159). Students are required to negotiate meanings and identities in
numerous contexts and thus are engaged in ongoing processes as they navigate contexts
which are contingent upon numerous, not always predictable, factors. Thus Lea and Street
emphasise both the epistemic concerns of the discipline students are engaged in and the
contextual constraints they are subjected to (how is knowledge produced in this discipline in
this assignment context). Variation in meaning (for example, of the meaning of the
instruction: ‘analyse’) occurs not only from discipline to discipline, but between subject
areas within a discipline and between lecturers, according to multiple, not always
predictable, considerations.
Student identity also affects how a student accepts, resists and nuances the discourse they
are engaging with. Students may well feel they are asked to speak or behave in a way that
“is not me” (Lea and Street 1998, p. 159; see also Cazden 1989; Ivanic 1998; Lillis 2001; and
175
others who are concerned with the issue of identity in academic writing) and so must
respond to such a dilemma. Ivanic (1997) and Lillis (2001) provide fuller accounts of ways in
which student identities contribute to the production of a student’s understanding and text,
and the importance of empowering students to ‘open up’ a space for themselves within the
discipline as they engage in their study and writing. The writer is thus fully implicated as a
person in the writing process and not merely an instrumental ‘processor’ of ideas and
words. Consequently, there can be no simple induction or socialisation into a disciplinary
discourse. Students may feel obliged to defer to the authority of published sources in ways
an expert lecturer will not (eg see Street in Jones, Turner and Street 1999), or alternatively
may feel compelled to challenge certain claims, but on grounds drawn from their own
experience, and lecturers-assessors may well treat such evidence as anecdotal and
unacceptable (eg see Ivanic 1997). Thus student identities, power relationships, institutional
contexts and other considerations shape what both the student feels is possible in their own
meaning and text making and what the assessor will find acceptable in the text produced.
Literacy and language use more generally are radically situated (eg see Barton et al 2005),
and as Lea and Street argue, not explicable in terms of the application of a set of pre-given,
well-formed tools, nor by socialisation into relatively homogeneous disciplinary
communities and their conventionalised practices.
However, in Lea and Street’s account, the radical contingency that ‘situatedness’ implies
gives way to an appeal to stabilised meanings shared between interlocutors, meanings,
practices and identities which are already in place and comprehensible as such. As students
engage in literacy practices which require them to “switch practices from one
(epistemological/institutional) setting to another . . . [and] deploy a repertoire of linguistic
practices appropriate to each setting and handle the social meanings and identities that
each invokes” (p. 159) there is clearly involved for students a shift between who they are
and who they are asked to become. Engaging in “processes of meaning-making and the
contestation of meaning” (p. 159) implies recognition of and a resistance to already existing
meanings, and the power relations that surround them. But if meaning is a product of the
different histories and trajectories an individual has passed through (Prior 1998; 2001),
shared meanings are unlikely, or, more precisely, we cannot know whether meanings are
176
shared or not, for there is no independent way of grasping what a meaning is other than
through one’s own personal history. Again, I am pointing towards a possible solution to this
dilemma: the articulation of subjects around signifiers which are iterable, rather than
around signifieds.
This radical contingency of meaning (and hence of identity) is a position I want to maintain,
and which leads me to the view that it is the text which articulates individuals together in
communicative acts, in a way that cannot be reduced to the meanings given to such texts,
even though a text is experienced in terms of its meaningfulness. While subjects necessarily
make meaning from texts, I propose an operation or agential action of the text which
cannot be reduced in full to the meanings produced, or the agency of the individual. Thuy’s
writing in particular displays this text function which is not reducible to meaning, and it
helps to explain how Thuy as writing subject is caught up in the text that she works with and
which she experiences as her own. However, before I outline that operation of the
text/signifier, I will consider the work of Prior (1998, 2001), who takes more seriously than
other researchers the radical contingency implied by Bakhtin’s work. I shall briefly comment
on his approach and questions I believe it raises with respect to the role ‘meaning’ has in his
arguments, despite his acceptance that shared ‘meanings’ cannot be the basis of
communicative acts since the unique setting of any utterance and the unique trajectory
each individual has followed through life ensures that for no two people could give to a
statement identical meaning. For Prior, a communicative act is organised around the
“coordination or alignment of activity” (Prior 1998 p. 20) or around “co-genesis, the long
term alignments of typified functional systems” where co-genesis “creates not shared
culture, but affordances for alignment in ‘pluralistic, only fragmentarily known, and only
partially shared’ worlds” (1998 p. 277).
7.3.2 Sociohistoric approaches (Prior 1998 and 2001)
Following Bakhtin, Prior insists that language is forged in use, and hence is radically
historical and always open; communicative acts are not secured through appeal to
neoplatonic forms or conventions or rules that govern such acts, but by the dialogic
addressing of past utterances and anticipated responses (eg Prior 1998). Such acts exist
177
“only in the concrete, ever evolving, dispersed world of happenings” (2001 p. 59). Thus Prior
rejects not only an appeal to abstract rules of grammar as constitutive of language, but also
rules said to regulate specific discourses, as in Gee (1996) who places shared values, beliefs,
and so on as constitutive of Discourses, or the kinds of regularities Hymes and
sociolinguistics seeks to identify (Prior 2001 p. 57). Prior argues we need to examine the
“concrete nature of cultural spheres of literate activity” (1998, p. 138), an approach that
fully rejects structural notions of ‘systems’ which see discourse communities as
autonomous, abstract entities regulated by rules of practice and so on, and which view
disciplinary enculturation in terms of transmission of those rules (1998, p138). His own
research, he argues, points to heterogeneity and particularity rather than uniformity and
generality (1998 p139). Thus Prior argues that “language is not driven by an abstract
competence, but formed in a sociohistoric chain of situated utterances”. “Language then
does not exist as a system, a master plan, in any neoplatonic domain” (2001 p59), it exists
“only in the form of concrete utterances of individual speaking people” (p59). In other
words, language is that which is instantiated in actual utterances, in actual time and space,
and, as for Bakhtin, secured in its place by a chain of utterances, and nothing more.
Language then is utterly concrete. For Prior, professional language “truly exists only in the
dispersed activity of communication distributed across time and space”. Regularities of
discourse “are not governed by a core system . . . [but] are emergent phenomena, forged in
an intersection of material and sociohistoric forces that align and differentiate experience”
(1998, p. 72). “An utterance does not instantiate a language, culture, discipline, genre, or
voice, but instead in combination with other utterances, it co-produces and co-constitutes
such social objects.” “An utterance is a process where the person is socialised and the social
is personalised” (p. 72), and consequently “regularities of discourse must be explained by
forces that align people’s experience” and these include all manner of material phenomena
(eg weather, local ecosystems etc) as well as pressures to standardise language (eg
dictionaries, schooling etc). The taking up of such language, its internalisation, is not “the
transferral of an external activity to a pre-existing, internal plane of consciousness: it is the
process in which this internal plane is formed” (p. 73 quoting Leont’ev). A speaker’s use and
a listener’s understanding is thus inherently intertextual; meanings take their bearings from
178
the resonances the words have with prior utterances, and thus the breaches of convention
that students may make are not, other than because of an imposed exercise of power,
fundamentally what is at stake.
Nevertheless, one certainly uses language as if there is or can be agreement on meaning
and on the conventions we use to construct such meaning. At the same time students – and
indeed teachers – act as if there is some idealised form to reproduce, whether linguistic
form, style, generic form, or in the kinds of things that can be said. To account for such
centripetal forces, Prior (1998) emphasises the central notion of “co-genesis, the long term
alignments of typified functional systems”. “Co-genesis points to the co-evolution of people,
tools, and worlds. It creates not shared culture, but affordances for alignment in ‘pluralistic,
only fragmentarily known, and only partially shared’ worlds” (p. 277). Central to co-genesis
are ‘functional systems’ that “weave together heterogeneous trajectories of persons,
artefacts, institutions and communities” (p. 278).
It is important to make the point here that people engaged in such trajectories do so as they
make meaningful the heterogeneous affordances they utilise and weave such heterogeneity
together according to what is experienced as meaningful to the individual. As Prior notes,
this does not mean that meanings and culture are shared as such, but rather interlocutors
work towards, share the belief that, convergence of meaning is possible, often believing of
course that it is achieved. The affordances to a certain extent are already given to
individuals (for example, certain texts are more salient than others, what is to be done with
them and how, although Prior certainly focuses on the uniquely dispersed activity of any
given speaker/writer) and in this sense individuals are already positioned to a certain extent
before they begin to subjectively work with the affordances they draw on. Prior takes that
as a given. He tends to neglect the significance of such ‘disciplining’ which in this sense has
already taken place, which is effected not by the meanings the individual gives to the texts
and other affordances, but by their material presence, by the way they show up, have
salience in some contexts and not others, are in a sense imposed and indeed shape the
contexts the individual finds himself in. This of course suggests a constraint which has
‘structural’ or systematic connotations, something Prior wholly repudiates, as already
noted. His focus is on the subjective responsiveness and work of interlocutors and the
179
alignments produced in this way. Consequently the dispersed nature of writing (and
reading) and the heterogeneity entailed is vast (see for example the broad activities Prior
and Shipka (2003) trace in their study). Nevertheless, I am arguing that text has a privileged
position; not only do the texts one engages with position the subject in a way that is prior to
a subjective sense of positioning, texts also have a disciplining function, a point missed in
Prior’s account.
Thus while the production of the student text and its reception of it by its assessor involve
the many heterogeneous processes Prior speaks of, thus challenging any determinate
definitions of what it is to be ‘disciplined’, at the same time ‘text’ (as opposed to
determinate meanings) occupies a central role, bringing all this heterogeneity, as it were,
into alignment. In the case of student text production, the text retrospectively aligns the
heterogeneous activity involved in its production, whereas for the reader the student text
prospectively creates the starting point for the heterogeneously constructed activities of
‘reading’ and ‘assessment’. Thus it can easily follow that the reading a student and lecturer
give to the student’s text will vary considerably (as was the case in most essays in this study,
where students were usually ‘surprised’ they received the mark they did). Lecturer’s may
well attribute to the student an understanding the student does not have (Prior provides an
example of this, 1998, p. 86). Narin spoke of not really ‘understanding’ the topic and issues
he had written about for one essay he was very concerned about (Patent Law, in LI N191),
and all he hoped for was a Pass (“Aah, a pass is enough! (said with great passion!)”LI N196),
but his lecturer said she awarded him a “good credit”; the topic she said was “very difficult,
very conceptual (rather than theoretical), involving a lot of concepts and fine distinctions
between them” and she was very “impressed and pleased” with the understanding he had
demonstrated (from notes made after speaking to the Patent Law lecturer).
Nevertheless, while both writer and reader produce different meanings through the text, it
is the text which provides the common ground between them, not agreed meaning. Prior
argues that through the alignment of practices, an alignment and overlap of meanings will
be produced, though certainly not a coincidence of meaning. Such an alignment of practices
is achieved through many heterogeneous means, not by conformity to an ideal practice. My
argument here is that the text has a materiality which articulates the writer and reader in a
180
relationship not reducible to the meanings each creates and it positions them, constitutes
them as subjects, in ways not reducible to the meanings generated. Text constrains the
subjects in ways not reducible to the subjective meanings interlocutors experience. In this
respect text and signifiers carry the subjects and locate them in ways not reducible to the
meanings one invests them with. This is partly the sense in which Kristeva states that “the
notion of intertextuality replaces that of intersubjectivity” (Kristeva 1986b, in Moi 1986 p.
37).
Texts, both source texts and student texts, have an organising effect in ways that are not
reducible to the meanings extracted from or vested in them, which remain open and
heterogeneous. It is this materiality of the text I wish to draw attention to.
It is this material function of the signifier/text that I suggest is prominent in patchwriting.
The sign or word is not merely a means through which meaning and a sense of ‘self’ is
forged, but in its materiality it contributes to the formation of the subject. As discussed in
Chapter 6, Thuy’s patchwriting is not the product of an instrumental, pragmatic choice
made by a pre-existing subject, but rather it is through engagement with source texts that
Thuy as subject is being formed. As subject she is intimately bound up with the words,
which become ‘hers’. She also makes meanings from such words, but her place as subject is
not reducible to those meanings. The ‘text’ thus has a centripetal function in Bakhtin’s
terms, not only because it articulates the student and lecturer around itself, but it does this
without relying on any specific meaning being shared, even though it is effective as such
because meaning is put onto such a word by those dealing with it.
The limitation I am suggesting that exists in Prior’s account is that the individual is engaged
in making meaning and language and texts are resources amongst others that are drawn on,
according to the students experience with that language and its use in different, relevant
contexts. Language is one resource amongst others of making meaning. But I am arguing
that text has a privileged position; all the heterogeneous activity Prior describes is ultimately
aligned around the texts produced and read. The text becomes finally the critical and very
narrow representative of all this activity and thus is privileged. While texts are one
particular affordance amongst others, they also become the ‘universal’ (Laclau 2000) which
181
retrospectively aligns all the activity that went into producing it and confers onto this
activity the value it assumes.
I next want to briefly consider Kamler’s critique of the concept of ‘voice’ before I go onto
consider the role of the signifier in the production of identity.
7.3.3 Language as ‘voice’
One way of understanding the relationship between student and text is through the concept
of ‘voice’. Through ‘voice’ the writer makes the language of others their own, subduing it to
their intentions (Bakhtin 1981, p. 294). As discourse becomes “internally persuasive” one
assimilates others’ use of language and makes it “one’s own word” (1981 p345). This has
often been seen as the goal of language learning (Angelil-Carter 2001; Braxley 2005; Lin and
Luk 2005). Consequently, the text is an expression of the student and in assessment
contexts it is not the text but the student who is assessed. Thus, when reference is made to
writers representing themselves in their texts as the ‘kind of person they want to be’ (Ivanic
1997 and others) there is presumed to be, as with the concept of ‘voice’, a coinciding of the
enunciated with the enunciating subjects. This is precisely a difficulty Threadgold (1997a)
notes exists in Foucault’s model of ‘discourse’, in that the possibilities open for the speaking
subject are contained by the discourses Foucault delineates. She argues that theorists such
as Bourdieu and Foucault (Threadgold 1997a p. 73 and p. 76) reduce the speaking subject to
the enunciated, but this fails to acknowledge the intertextual histories individuals bring
which ensure the enunciated does not fully disclose who the enunciating subject is. Again,
but for a different reason to Derrida, texts can “always go astray” (Threadgold 1997a p. 90;
p. 97). The distinction between the enunciating and enunciated subjects is thus important,
even though “the process of enunciation is always enfolded in the act of utterance itself” (p.
88).
Kamler (2001) rejects the view implicit in the concept of ‘voice’ that if a person is
empowered they will find the means to speak ‘authentically’ in multiple circumstances they
find themselves in (p38). She argues the self is subject to contingent circumstances and thus
rather than a self which can be empowered to give authentic expression to itself in all
circumstances, she argues it is more a matter of an individual using resources to produce
182
the kind of self they want to be in different circumstances. Speech and writing are always
situated, and hence students write within institutional contexts, with student-student,
student-teacher, gendered, raced and many other power dynamics at play. Thus, it is “naïve
to suppose there can be anything like a genuine sharing of voices in the classroom” (p. 40).
Consequently, language is a means by which a ‘self’ is produced rather than expressed and
that self is produced within the contexts in which one finds oneself. Language use and ‘self’
is fundamentally situated. This is not to ignore that one enters into contexts with
established identities, with a habitus, a set of embodied habits and dispositions and in an
example from her own experience she shows how a student provided with new discourses
was enabled to undo “the processes by which she had acquired a failing student habitus” (p.
82) and thus write herself differently. Thus it is important to attend closely to the issue of
identity (p. 84). But such identity is always being reforged, rewritten in the light of ongoing
contingencies, and she follows Kress (1989) in arguing that any language act which involves
a ‘rewriting’ also involves a change in subjectivity.
However, such an act of rewriting for Kamler involves the subject managing and
constructing who they want to be (Kamler 2001, p. 50). This instrumental quality is
accentuated in her appeal to Kress’s view that in light of the change effected in subjectivity
by writing (p. 53) we can view “forms of pedagogies . . . as designs for subjectivities” (p. 54).
Kamler’s focus then is on “the ways a writer’s personal experience can be represented in
text, in the shifts in subjectivity that are made possible through rewriting and re-imagining
the text” (p. 47). This is not a production sui generis of the personal: the personal here has
little to do with ‘private’ (p. 50). It is more to do with a highly particular account of the social
as it is lived out, each individual producing a ‘self’ from the same cultural material (p. 49)
and in this Kamler follows Foucault’s notion of ‘care for the self’ or a writing of the self. The
‘self’ is thus of social origin, but it is nevertheless a “self-writing” (p. 49) and it is around this
that I argue difficulties lie.
Implicit in this approach is the view that text itself can be used to produce determinate
meaning (which implies a certain transparency in language, and language as a tool rather
than constitutive of the subject), and that there is an agency within the subject who in effect
supervises the production of self. Thus in what sense does the production of self at the level
183
of the enunciated change the self, or merely provide a representation of self that satisfies
the enunciating subject engaged in such a production and hence entrench the enunciating
self, rather than change it? Certainly ‘design’ implies such an instrumental relationship.
However, if the self is itself being produced then it is likely that there is necessarily a
moment in this process where the self is not in control and experiences severe vulnerability
as it is reforged in ways it cannot regulate since it is itself being forged. As pointed out
above, for Derrida and Threadgold (and we might add Butler 1997a on the effect of the
performative) language can always go astray, and opens up the possibility of a consequence
which cannot be regulated in advance. The production of the self is thus vulnerable and I
would suggest this is especially so for students working in a second language and unfamiliar
discourses, who are seeking to find a place to produce a position of their own within a
discourse in which they lack a sense of place. The student lacks precisely the sense of self
within the ‘huge stabilities’ (Threadgold 1997b) or ‘sedimented practices’ (Laclau 2000) that
constitute the discourses they work with and provide a foundation from which the subject
can produce the self they wish. In this respect, such students might be seen as bringing to
the fore what Laclau sees as the promise of deconstruction: that underpinning any
established practices is an inaugural judgment that cannot be reduced to established laws,
or practices, or conventions. For Laclau “deconstructionism helps us reactivate the moment
of decision that underlies any sedimented set of social relations” (Laclau 1996, p. 78). This
moment of decision that is called for, the moment of enactment is, for Laclau, precisely
where the subject lies: it “is the moment of the subject before subjectification” (2000 p. 79).
It is this writing subject before subjectification that is of concern in this research, which I
take to be characteristic of an engagement with a discourse that is ‘other’ to oneself and
which is accentuated for international students such as those in this study, who experience
themselves quite acutely, as lacking a platform (‘sedimented practices’) from which to
proceed. Although in Kamler’s account an identity is constructed, I suggest that for her the
enunciating subject position from which one desires to represent oneself in a certain way
remains unchanged. In contrast, for students engaging with a new discourse there is an
element of having no place from which to judge ‘who to be’ in the discourse and
consequently to engage in ‘writing oneself’ demands an act from a position with no firm
184
foundation, which renders them as subjects extremely vulnerable. I have suggested Thuy in
particular experienced this as she sought to ‘acquire’ the common law discourse she was
encountering. Of course, students may respond to their circumstance in different ways and I
have attempted to show in earlier chapters how Narin, for example, drew upon identities he
already had and organised the materials he dealt with in light of previous beliefs and values
he had. Minh drew on prior values to organise his text (identification with traders) and
attempted to take up the discourses he encountered, at one point through imitation which
was governed by rules he inferred, but which did not in fact reflect the practices of the law
he was engaging in (eg he incorporated a discussion of ‘functional shape’ because the
judges had). Thuy, in contrast, appears to be more fully open to the discourses she seeks to
acquire, and exposes herself more fully to the risk I am suggesting is involved in engaging
with ‘otherness’. It is this process, more highly evident in Thuy, that marks the constitution
of a subject/self through language.
Kamler’s focus on the meanings produced through language (the self; changes in
subjectivication; control of language implied by ‘design’) presupposes an agent which is not
entirely different from the ‘voice’ she has provided a critique of, in that it appears to be
aloof from the language it manipulates and makes use of, even if the representation of self
chosen will vary from context to context. Yet at the same time, Kamler does state that while
“writing the personal has power to transform both the writer’s subjectivity and the text
produced” (p. 36), her emphasis is on production of text rather than expression of voice.
Her focus is on the story one writes (p. 46) which effects a transformation that is “more
semiotic, more textual” (p. 36) than personal. Her focus is on “the ways a writer’s personal
experience can be represented in text, in the shifts in subjectivity that are made possible
through rewriting and re-imagining the text” (p. 47). This takes us back to the meanings that
can be realized from text, and the idea that to represent oneself in text presupposes text
provides relatively determinate meanings, which I have already questioned. Kamler is
suggesting a coincidence between subjectivity and text, whereas I have suggested text
exceeds what is subjectively experienced and indeed, has the capacity to position subjects in
ways that are not subjectively experienced. Texts can indeed go astray, mean something
and have effect on the subject in ways the subject did not intend, or was not aware of (the
185
account given above in Chapter 5 of the different readings of Narin’s Patent Law assignment
by himself and his lecturer is one example).
I want in the next section to consider ways in which text can have effect on the subject in
ways that by-pass subjectivity, and also suggest that Thuy’s patchwriting can be possibly
understood as a consequence of treating language as iconic, rather than as referential in its
function. I take the production of subjectivity in Kamler to be a product of the referential
function of language, of its capacity to posit an object of which it speaks.
7.4. The constitution of the writing subject and discourse
In this section I want to try and show that while discourse is open-ended in the sense
Bakhtin suggests and Prior in particular attempts to elaborate on, there is nevertheless a
necessary assumption of some ‘unity’ in self and meaning, and of discourse (represented in
Bakhtin by his concept of the ‘superaddressee’). The argument I make here, in effect, is that
the organising element, as Laclau (amongst others) argues, is the signifier, not some
organising signified, as is usually assumed.
7.4.1. The objectivity underlying students’ use of sources
There are several clear ways in which a word or text can be argued to mediate the subject in
ways that exceed the particular meanings the word/utterance might be said to have.
Certainly the words students engage with are given a meaning by them, in light of their own
histories and past exposure to such words and thus as Prior argues, writing itself emerges as
a confluence of many streams of activity such as “reading, talking, observing, acting, making,
thinking and feeling as well as transcribing words on paper” (1998, p. xi). For this reason he
argues that the focus on ‘writing’ as representative of a discourse fails to comprehend the
heterogeneous activities that always contribute to the act of writing. I would argue that
nevertheless the ‘text’ plays a central role in disciplinarity, in that the text becomes the focal
point of such activity. Thus, while it may indeed be open to multiple readings, and the
production of such texts and their reception involves the complexity Prior describes, there is
still the material text, beyond the specific meanings writers and readers give to it, that
186
serves as a point of articulation between readers and writers, between students and
disciplinarity. It is this function I wish to try and give some sense of here, before going on to
discuss more specifically the operation of the signifier which is in excess of the signified
(Laclau 1996, 2000, 2005).
For Bakhtin the meaning of a word is fundamentally linked to addressing its prior uses, but
students do not engage and have not engaged in the practices which gave rise to many of
the texts they engage with (Court Reports, Law Reform reviews, and so on) nor the
academic context that secondary authors wrote in, as Lea (2005) argues. Students engage in
a ‘construction of meaning’ (Lea 2005) rather than learn how to reproduce a given
discourse, but this construction to a considerable extent is not easily organized around a
‘convergence of realities’ (Widdowson 1995) nor a ‘convergence of practices’ (Prior 1998).
Students remark on how they lack the background relevant to the content and issues their
texts deal with, and lack the pragmatic understanding of how such texts work. Narin’s
comment on this speaks for them all; on reading a court decision he says he understands
the ideas in the Law report, but “where is the law, come on, tell me!” (LI N102). For Bakhtin
and in Widdowson’s account, the convergence of realities is not given by the text itself, but
occurs when a text or language is used in the contexts it refers to. As Leont’ev says (see
Prior’s quote above), the subject is forged in this process and the meanings that are
constitutive of the subject do not derive from language itself but from engaging through
language in lived experience. Language and one’s social and material world are in this sense
mutually constitutive. But this renders difficult an understanding of how students can learn
a discipline through texts, how language can generate for learners a convergence on and an
understanding of the reality the language represents, if students do not also directly
participate in the world to which that language speaks and from which it has emerged. We
might ‘save’ Bakhtin a little by suggesting that the dialogic effects of language ensure that
signifiers which are the ‘same’, though learnt and given meanings in quite different
contexts, have a certain convergence, and use of the ‘same’ words in different linguistic
contexts (eg in everyday speech; in academic legal writing) results in some meaningful
associations being forged through such juxtapositions and the linguistic contexts they carry
with them through association affect each other through the dialogic process. In this way, it
187
might be argued that students ‘pick up’ some of the sense of a source text, although it
would be much attenuated. Recognising what world the words refer to (background
knowledge), and how specific texts and genres construct this reference (pragmatic
knowledge) is something these students clearly indicate they feel they lack. As a result they
cannot recognise the relevance of the ideas they find in their sources, or how they
contribute to the text as a whole, and they note this in particular with genres less familiar to
them. Thus it is not easy to see how the gap can be bridged between the meanings a
student can make and the meanings that are linked to a world of social, disciplinary activity
the student has not been exposed to. Nevertheless, students feel they have engaged with
the legal discourse in some satisfactory way (Minh says “I think it’s, it’s, um, when I finish it,
I think it’s very interesting because um I know more about this topic, yeah, and I think I’m
satisfied with my, um um, my work” IP M26; Thuy says she is “satisfied” with her HR text
and so “it doesn’t matter how the result is” (1HR T255)) and lecturers read students’ texts as
though they have indeed engaged satisfactorily with the issues at stake. In this respect a
bridge of some sort has been constructed. I am arguing that the embeddedness of language
in social activity does not fully account for this, even though I accept that such
embeddedness accounts for the meanings realized from a text by any writer or reader. Thus
SJ saw Thuy’s text as demonstrating a very good grasp of issues, which was produced for SJ
by the text’s organisation as much as by actual representation at clause level. Similarly,
Narin’s ‘Patent Law’ lecturer stated he had demonstrated a good understanding of complex
issues, despite Narin feeling he was very muddled and did not really understand the
question (LI N190-194: and in particular didn’t know “why [the lecturer had] asked the
question”).
Language for Bakhtin obtains its effectiveness from its actual function in social life. In other
words, we must already have an experience of the social life of which the utterances are
part to gain some understanding of them. The utterances do not represent that context as
such, but presuppose it. Consequently, it cannot be the signifieds which bring the students
to the context to which it refers and from which it emerged, or more accurately, which
binds the students to the ongoing disciplinary activity they are being encouraged to
participate in, of which these texts are a part. It is the text which provides the constant point
188
of reference and which, as it were, binds the students to the discipline. This is not through
the signified as such, but is a function of the signifier, even though of course it functions as
such because the student makes meanings/signifieds.
The text constrains and ‘disciplines’ the student in another related way too, in which the
student is in effect objectively positioned as a subject of the discipline, in a way that by-
passes, initially at least, the subjectivity of the student. The texts they engage with embody
a vast range of disciplinary practices (eg the write-up by a judge of the court case s/he made
judgment on through interpretation and application of existing law; the expertise and
modes of argument a secondary author brings to her published article; submissions made by
legal practitioners to legal reviews; and so on) and these practices have constrained the
authors of the texts a student works with and must make sense of. Similarly, the practices
which have gone into the classification of texts in databases, or in their selection and
placement in the Faculty library, or the choices the lecturer makes for her recommended
reading list, all these constrain the student according to disciplinary practices the student
him/herself is not aware of. Through his/her engagement with these texts the student is
engaged in responding to the multiple disciplinary practices which have shaped such texts
and which at this point cross the path of the student. In this regard the student is already
disciplined, but this crucial element of the ‘writing subject’ is embodied in the text, which
can be viewed as a substitute for the internalised, subjectivised practices and
understandings which the student lacks, but which are usually associated with ‘disciplinary’
activity. The student-subject is disciplined by what is embodied in the text, not by
internalising the practices at stake. A constitutive element of the ‘writing subject’ for both
the student and the reader is located in the texts and the history they represent, not in the
subjectivity of the writing subject. In engaging with sources and writing his/her text a
student instantiates a disciplining of which they are not subjectively aware and which is not
available to them through introspection. The signifieds, as students say, elude them in that
they remain quite uncertain.
This disciplining does not only change subjectivity (Kamler above, following Kress) but it acts
on the subject in ways that by-pass subjectivity. The positioning of a student in his/her text
is not solely a function of the student understanding the practices of the discipline or the
189
substantive issues s/he is dealing with and making appropriate selection of text accordingly.
The student, possibly oblivious to such practices and ‘expert’ meanings, is nevertheless
bound to the discipline in quite specific ways through responding to and engaging with
source texts. By recognizing these associations, the reader can produce from the student
text a broader network of associations and meanings that might be fully foreign to the
student and so the student is articulated into a ‘chain of utterances’ that constitutes
him/her as subjects in ways s/he is only partially aware of.
In this way, the material text which is not reducible to the signified acts on the writing
subject. I now want to consider ways in which this operates at the level of the signifier/word
itself.
7.4.2. The operation of the signifier
Before I attempt to argue that Thuy’s ‘borrowing’ of source text can be understood partly in
light of the function the effect the signifier has on the constitution of discourse and the
subject, an effect which is separable from the representational function it has in the
production of signifieds, I want to reiterate that in Thuy’s case it is the particular kind of
relationship she had to her texts which gave rise to the kind of ‘borrowing’ of source
materials we find in her texts. I have contrasted her in particular with Narin: Narin was far
more instrumental in his approach to his study and was far readier to assimilate to prior
interests and perspectives the material he engaged with. In this respect he tends to perform
in a manner more typically described by schema theory (eg Carrell, Devine and Eskey, 1988).
Thuy in contrast was motivated more by a desire to acquire what she perceived as a given
discourse, and her engagement was therefore marked less by an attempt to subdue
something, as it were, to an already existing will, but rather to become something different.
Narin was thus marked by strong opinions, firmly held positions (eg “I discovered and have
some opinion, Oh, no, I, I strongly believe, OK, I will write about this, 2BL N22; he wanted to
oppose his lecturer about whom he says: “The question try to deceive students” (2BL N18).
“In class she provide very uuh [pause] bias, bias uuh, she had bias I think. She not . . she . .
.she teach. . she she taught us that only one approach” (2BL N124), and so he thought: “‘Oh
come on, write something against her.’” (2BL N124).) Thuy in contrast is far more aware of
190
what she ‘lacked’, was far less committed to the positions she developed in her essays (they
were “superficial”, she was “not committed”) and was more interested in trying to gain an
understanding of the common law. We could characterise her as being more open to what
was ‘other’ to her than was Narin.
7.4.2.1. Text as icon
Students engage with the texts which I have argued above are presented to them
‘objectively’, that is, they place the students in a relationship with the disciplinary discourses
and practices without the students subjectively grasping what is at stake. One way of
understanding what students do is that they engage with these texts at the iconic level (see
Kramsch in Lantolf ed (2000), referring to the work of Peirce). Students such as Thuy clearly
believe there is a system of language use which typifies ‘common law’, as there is also
something called ‘English’ which she wishes to gain mastery over, and in this sense she is in
pursuit of an object which at least for Bakhtin, does not actually exist, since ‘discourses’,
genres and so on have no abstract existence, they exist only as they occur in concrete
utterances. Because of this belief, Thuy might be seen as treating the texts she reads as
standing in for the discourses she believes lie behind the text.
An icon is the embodiment of the semiotic space it occupies and in this sense its absence
would remove that semiotic space. While Thuy clearly reads such texts for meaning (and in
her lecturer’s words produces a “seamless” text) what she selects from her sources is not
merely a representation of an idea, but also a representation of a discourse she does not
grasp, yet desires to acquire. In this respect the language itself is not easily replaced (at the
level of what is signified it could be paraphrased), and when Thuy says some words are
‘perfect’ (1HR T232), I would suggest that such a word truly does have for her a sense that it
is irreplaceable, that it is the only word that can occupy that space, because it constitutes
for Thuy that semiotic space, even though, as she admits, she may not perfectly understand
the word in its symbolic and indexical senses (eg, Thuy says “sometimes I use words, uh, I
think I am influenced by uh other article, like skeptical, something like that, because you
remember in my last assignment, I sometimes use a word you think is very strange [yes] but
191
for me, I think, it had a similar meaning [yeah] to other words” [2HR T6]; “I didn’t aware of
the way to use, my English . . . I don’t have the feeling about the language” [CL T158];
“Sometimes I find some words interesting to me, but maybe I couldn’t understand clearly
what the word’s real meaning is [mm], but I just have some idea about these and try to use
it”[2HR T8]). If Thuy is constituted as subject with respect to the text/discourse through this
iconic relationship, there is no paraphrase available to her since it is not at the level of the
symbolic that Thuy and the discourse are articulated and constituted as such. That is, Thuy’s
reproduction of the source language is not a strategic move on her part (eg an attempt to
learn by imitation; an attempt to cheat; an attempt to make her work easier and more
manageable). As icon, there are no other words available; as icon the word constitutes the
space of and embodies the discourse, and for Thuy it thus may well be experienced as
‘perfect’. This is because it is not a word representing a prior world of experience (Bakhtin),
nor is it a word given its significance by the symbolic chain in which it is situated (a more
structuralist approach to word/utterance meaning), but because it is what it stands for, not
a symbolic representation. It is not replaceable as such. In this respect then, for Thuy the
text/word is not only a symbolic/indexical space with which she can dialogically interact
with and which exposes her to the words’ “semantic openness to us” and the
“unfinishedness and the inexhausitiblity” that dialogic interaction introduces (Bakhtin 1981,
p. 346) but it is also an iconic object, and I am suggesting it is sometimes this feature of her
relationship to her words/texts that dominate, in a way that is far less evident in Narin’s
encounters with his text. This is because Thuy is guided by a desire to acquire the common
law discourse and English.
When Thuy states that the language she uses in her text is ‘her’ language (for example, she
says “my sum, summary, is that from here to here” CL T130 even though there is a very
close following of the wording in the original source), I suggest this is the meaning we can
give to her statement. The text she draws from in a sense is the discourse, rather than an
index of it, and patchwriting is an expression of Thuy constituted as subject through the
iconic function of language. In this sense the language is her language and is ‘perfect’
because it constitutes who she is with respect to the discourse/text she is engaging with. In
this respect, as ‘student’ Thuy engages with these texts not in terms of the legal-social world
192
that gave rise to them and which the texts give expression to, since as Thuy so often says,
she lacks exposure to that world, both the practices (c.f. her comments on reading the
primary sources) and representational knowledge (substantive background knowledge). For
Bakhtin, a person takes up language because the present context of the individual finds
articulation in language that speaks to and represents similar contexts of use. In this sense
for Bakhtin language is very much lived language, “a form of social practice” (see Barton et
al 2000 p1) and not a representation of it. But for students, that lived context is more the
institutional context, not the disciplinary one, and consequently, students are not engaging
with the kind of ‘lived context’ that the texts they engage with speak to. It is for this reason I
argue the text itself plays an important role for students in a way not reducible to the
meanings students attribute to the texts.
Lea, Bakhtin, Prior all focus on the meaning making process that students engage in, but I
am suggesting the text also plays a separable role independent of the meaning it is given by
students and that the student as writing subject is formed in part through this relationship
to the text. I have already suggested one way of looking at this is in terms of text as an ‘icon’
of a discourse that remains opaque for students, but I want now to argue that the
text/signifier has a role in its own right in mediating the subject and in this respect the
subject is not reducible to the meanings/signifieds the individual experiences, either in
terms of what the text/language/utterance means, nor in terms of the meaningful sense
they have of who they are, that is, their sense of identity. Ivanic (1998) speaks of identity as
‘the sense we have of self’, as do Holland et al (1998), but I am suggesting the ‘writing
subject’ involves more than ‘identity’, which is tied to signifieds (see for example Zizek
1989). This role of the text/signifier and the subject’s relation to, and formation in it, are
analogous to the relationship I suggested earlier exists between the student writer and
databases and library holdings; the student is positioned within the legal discourses and the
lived experiences they embody in ways the student does not subjectively experience. The
student occupies a position which is subjectively closed off to him/her, that is, it is
constituted ‘somewhere else’.
193
7.5. Laclau and the operation of the signifier
A difficulty students often have, and Thuy in particular refers to this, is that they lack a sense
of the discursive background which they believe would enable them to understand more
clearly the texts they read and in turn deal with in their own writing assignments. The
assumption behind this is that there is such a thing as a ‘discourse’ which approximates in
some way towards a kind of unity, something which demarcates what belongs and what
does not, how things should be spoken of and how they cannot (as in the understandings of
discourse presented by authors such as Foucault, Gee 1996, and others). Laclau goes against
this, arguing that discrete elements (in a hegemonic field; in discourse) are not linked by
sharing something inherent within the discourse (eg shared beliefs or values) but the sense
of shared beliefs and values and so on is produced as an effect of an organising signifier
which hegemonically aligns various particulars in a certain way. The unity of a discourse
(and the sense of a unity in the ‘self’) is constituted through the creation of an “equivalence
of a plurality” of elements (Laclau 2000, p. 55). However, because there are only
particularities, the construction of a “chain of equivalences” (2000, p. 302) between
elements which enables the sense that all the elements in the chain share common ground,
is possible only if one of the particularities assumes “the representation of the chain as a
whole” (p. 302/3). But in so far that it performs this role it exceeds what is given to it in its
particularity, and thus it performs this function at a point where it is empty of its
constitutive particularity. Thus for Laclau, it is a signifier as a ‘pure signifier’ (2000, p. 71),
empty of its signified, which fulfils this role as an ‘empty signifier’ (Laclau 2000, p. 71, 185,
305). Such alignment in representation is achieved through the “autonomisation of the
signifier” (2000, p. 70). It is not the particular meaning which is effective in producing an
alignment. Consequently, the force of the signifier in this function is performative in nature,
rather than representational. It is precisely at the point its function exceeds its particular
meaning that a particular signifier can perform a hegemonic or discursive role. (And this
may provide some account of how ‘nuanced’ meaning is possible, which I suggested above
presents some difficulties for Bakhtin.) In Zizek’s formulation (1989), it becomes a signifier
which other signifiers refer to in order to gain consistency; a discursive field is organised
through such reference to a particular signifier.
194
The sense that utterances have a continuity, that they share common ground, share the
‘same’ underlying beliefs, values and so on are for Laclau organised by such an empty
signifier, not by similarities between signifieds intrinsic to the utterances themselves. Such
signifieds can always be aligned differently and so take on a different sense and meaning,
and contribute to quite a different discourse (an example of how ‘floating signifiers’ are
quilted by reference to a ‘master signifier’ which thus fixes the meanings these signifiers
have is given by Zizek, 1989, p87/88, in his discussion on ‘identity’ ). Clearly for students,
which alignments might support the legal texts they encounter is what they are so uncertain
about. They may align ideas with existing perspectives they have, which I have suggested
Narin does when he assimilates textual information to prior interests. In contrast, I have
argued that Thuy is attempting to come to terms with the discourses she is engaging with,
the ‘chains of equivalence’ which constitute such discourses, and it is precisely to the
‘signifier’ that she becomes attached.
The stability of meaning, therefore, is not given by that which a word refers to, but rather is
conferred by the word itself. Zizek argues that “guaranteeing the identity of an object
(signified) in all counterfactual situations is the retroactive effect of naming itself: it is the
name itself, the signifier, which supports the identity of the object” (Zizek 1989 p. 94/5). The
features identified as constitutive or typical of a discourse, or a discipline, do not determine
what that discourse is. Rather, they can be identified as constitutive because the discourse
has already been named (explicitly or implicitly) and in consequence of which such features
are given a place in it. Empirically, discourses are dispersed, as Prior points out, and the
sense of a discursive unity does not emerge from common meanings that are assembled
together. Elements of a discourse have no inherent common ground. Prior speaks of an
alignment of practices each time a discourse is instanced, and hence it is produced through
such an alignment, not reproduced according to a prior template. ‘Typical features’ do not
inform us much about a discourse, from this perspective. For Laclau a discourse is equally
constituted from fragmented parts, their unity being given only by the performative act of
alignment.
While Prior exposes the complex and heterogeneous nature of both writing and reading, it
is nevertheless the case that one works towards a sense of unity in that which one reads or
195
writes. To be consciously aware of the dispersed, heterogeneous activities that lie behind
writing/reading would forestall the possibility of achieving what is usually aimed at in
reading/writing or a communicative act; establishing some relatively well-settled, unified
sense of meaning, which for Bakhtin constitutes an utterance. Even though, as Prior argues,
meanings can never fully converge, there is nevertheless a belief (usually) that
communication has been successful, that the meaning which matters has been fully shared.
For Bakhtin, a speaker/writer necessarily presupposes not only an addressee from whom
one seeks a response, but also a superaddressee “whose absolutely just responsive
understanding is presumed” (Bakhtin 1986 p. 126). This superaddressee can be conceived in
different ways (“God, absolute truth, the people, science” [1986, p. 126] and so on) but for
Bakhtin this is a necessary condition of speaking, in that one speaks only if one believes that
one’s utterance does indeed have a meaning for which somewhere, at least, there is an
ideal recipient, and this is so even if the speaker feels muddled in what s/he says. It would
seem that this for Bakhtin is not a psychological phenomenon, but structurally inherent in
the act of language use, an a priori of language use, which incidentally might be viewed as
an ahistorical element underpinning his historicist account of language. This joining of the
subject to a sense of determinate or clear meaning is something which I suggest Prior’s
account does not adequately deal with and I would further suggest it is the binding of the
subject to the signifier which constitutes this.
Discourse and the subject are thus enacted in language, rather than represented in it, and
in consequence precisely what constitutes a discourse cannot be given by analysis of the
enunciated. I argued above that the ‘nuance’ or ‘accent’ Bakhtin places at the centre of
language cannot be reduced to a historically given signified, for the nuance exists precisely
in that it exceeds the meanings which to this point are historically given. While for Bakhtin
meaning issues from such accenting, contributing to the ever changing life of language, its
operation might be understood along the lines Laclau is presenting, and that the signifier
has a central role which Bakhtin overlooks. Equally, the subject is not inferable from the
enunciated, in contrast to the analyses often made by critical approaches (eg CDA), although
identity might be viewed as an attachment to “sclerotic deposits” (Bakhtin) of past
enunciateds, which would need to be distinguished from the subject which is always “in
196
process” (Kristeva 1986a). The sense of self or ‘I’ is imaginary to the extent it is experienced
as a determinate, substantive entity, identical with itself. One does indeed form an
attachment to such a self and Butler (1997b) speaks of the ‘passionate attachment’ that is
involved, for it is constitutive of the sense one has of self. But the grounding of such a
subject is what is at stake in the case of students engaging with new discourses, and I would
suggest that in the cases of Narin and Thuy, while Narin draws on already existing
attachments and seeks to assimilate what he reads to these prior interests, Thuy in contrast
seeks to become an identity within the imagined stable ‘common law’ discourse. In this
‘seeking to become’, however, the formative processes that are never finalized for the
subject (the subject-in-process ) come more to the fore. It is in connection with this that I
want to place her patchwriting.
For Thuy, the process of writing was not merely a frustrating one, as it was for Narin, but
one that led to depression and anxiety (she says under her journal entry for 20 May that “I
am in a bit of disappointment and depression at the moment” and later in the year
(September 12-18 entry) she says “I feel that I am going through a depressed period again”).
These suggest a process in which Thuy as a coherent ‘self’ felt under threat. Thuy’s account
of how she constructed her texts and made judgments on which positions to take, what to
include and so on, are varied (“I just know that I have to prove there is something wrong
with the PATRIOT Act in comparison with the international requirement in the human rights
but what I think I’m still not sure” [1HR T214]; she made judgments at times based on
intuition or “instinct” [1HR T182]; sometimes on taking a ‘conservative’ approach because
following the legal status quo, which had clearly been maintained as successful, could be
more easily justified, and given her lack of knowledge and experience, challenging the status
quo would be difficult; she says she adopted a “conservative position” [CL T56] in her
Competition Law assignment because “when you introducing something new you have to
bring more evidence” [CL T60] and she lacks the “background” and “experience” [CL T58] to
challenge “the authentic way people do here” [CL T56]). Other times she relied on ‘previous
experience’, but this was said with a degree of embarrassment [slight giggles]. But there
were points where she acknowledged that she had no bearings at all and all she could do
was “just try” [1HR T206: said very plaintively and quietly when she came to this point], and
197
this suggested a sense of truly being at a loss. I am suggesting that given an uncertain sense
of bearings, and sometimes an absence of them, Thuy finds a place for herself within the
discourse through an attachment to the signifiers she works with. The words are
experienced as ‘her own’ because they constitute, stand in for, the discourse and her place
in it. That is, they plug the gap or provide a substitute for this potential loss of a sense of
self. They become her identity, and are experienced as her own. Thus it is not accidental
that whereas Narin spoke of frustration in the course of his study (frustration when he
couldn’t find texts to support his position; frustration in comprehending or making
adequate sense of the texts he was reading), Thuy spoke of anxiety (in her interviews) and
depression (journal entries) during the writing of both her assignments. For Narin, it was
frustrating because an existing self was blocked; for Thuy, there was anxiety because the
difficulties she experienced were to do with the constitution of self and were ontological in
nature.
It is not in the enunciated, therefore, that ‘Thuy’ is represented. She had little sense of
commitment to the position she developed in either of her assignments (when asked if she
felt strongly about her position she said “Not so strongly” [CL T64], and with respect to her
human rights assignment she said “I didn’t have strong position” [1HR T214]). However,
even though she did not know “The way [the lecturer] assess it. I didn’t sure about the
result” she added “but I still feel satisfied with this” and as a consequence “it doesn’t matter
how the result is [laughs]” (1HR T255). Her sense of ‘self’ which is substantiated in some
way appears not to do with the enunciated, or at least, not to do with a commitment to the
enunciated, nor to do with how well her text satisfied the lecturer, that is, fulfilled its
functional role. Instead, I suggest, a sense of self arises because Thuy, through an
attachment to the text/signifier, takes on for herself a series of judgments by which she
becomes a subject of the discourse she aspires to. The text she closely follows thus plays for
her a constitutive role of ‘self’ as subject within the discourse she seeks to become familiar
with.
For Laclau the subject is given in the act of enunciation, the act of judgment, not in beliefs,
values and so on (Gee 1996) which are said to constitute a discourse. Such beliefs and
values exist for Laclau as a product of an act of enunciation, not as entities underpinning,
198
constraining and giving rise to such acts. For Laclau, the signifier is not subordinated to the
signified (Laclau 2005 p57, 66, 69, 74) and a discourse (eg ‘common law’ which Thuy aspires
to acquire) does not exist by virtue of intrinsic characteristics. Identity too is therefore not
given by inherent properties; both discourse and identity are experienced as substantive
entities only because they are supported by an empty signifier which both produces and
occupies simultaneously a fundamental lack in the heart of discourse/identity. The subject
has its origin precisely in this lack of structure (Laclau 2000, p58; see also p78/9 where he
states “the subject is the distance between the undecidability of the structure and the
decision”). The social agent, the subject, lies precisely at the point where something exceeds
structure, exceeds what is given, thus putting the weight of responsibility at its centre.
The ‘rules’ of language and its ‘structure’ do not exist, yet they are necessary, a paradox I
have already suggested exists in Bakhtin’s account of language. They occupy an “empty
place”, a “void” (Laclau 2000, p58). They are imaginary but necessary, and in this way
parallel Bakhtin’s concept of a ‘superaddressee’, or the “ideal listener” (1986 p. 126) which a
speaker must believe in, yet who does not empirically exist. For Laclau, this “void”, this
‘nothing’ is represented by a particular, and so we have “the representation of the
unrepresentable” (2000, p. 66). “The process of representation itself creates retroactively
the entity to be represented” (p. 66), in that the universal created does not actually exist,
but is an effect created by the particular organising signifier, an effect which is experienced
as guaranteeing the discourse in which the particular now finds its specific place.
It is plausible to suggest that Thuy experiences an undecidability about her ‘self’ and the
discourse she seeks to acquire. It is a moment which precedes creating a sense of who she is
within the discourse, and while that which she produces may in turn give her a sense of her
‘self’ as ‘author’ of the position (see Kamler, citing Kress, discussed above) this nevertheless
is a ‘self’ that she does not yet identify with and hence a ‘self’ which holds a position she as
yet has little commitment to. Yet at the same time Thuy knows it is herself who speaks thus,
in the words she finds, as she enacts this self that remains still relatively unknown to her.
But the words she takes up do provide her with a meaning, do provide her with a sense of
‘self’, and for this reason, I suggest, Thuy feels that these patchwritten words are indeed
hers.
199
As Thuy attempts to leave behind existing ‘sedimented practices’ or a ‘habitus’ acquired
elsewhere and which she might draw on to assimilate what she reads to understandings
already familiar to her (which I have suggested Narin tends much more to do), the texts
themselves begin to take on greater significance as a point of securing a sense of her own
self within the discourses these texts represent for Thuy. This is not so much a matter of
Thuy selecting to do this but instead finding she cannot do otherwise. It is through this
language, these words, that she occupies a place as subject in the discourses she is engaging
with, as she attempts to make this transition to new discourses. Patchwriting thus might be
seen in a sense as part of a ‘developmental’ phase a student goes through (Howard 2001)
before a relative sense of stability of self and discourse is established, but this is not
development of an incremental sort, where a student slowly acquires cognitive and
linguistic mastery and ways of producing self within a given discourse. It is ontological, not
to do with representation of self but to do with the constitution of self in language, in a
place (discourse) which has still not sedimented for the student, a sedimentation through
which a greater sense of identity (subjectivication) and certitude of self can be established
and held on to (Laclau 2000, p. 82). As such Thuy is not a pre-given subject who is engaged
in instrumentally acquiring and managing for her own interests a pre-constituted discourse.
This subject is itself entailed in a constitution through engagement with the textual form of
the discourses they are directed to, and thus it is a process which precedes any instrumental
activity, and this marks the point of the constitution of the subject within language.
7. 6. Conclusion
In this chapter I have considered the possibilities for the ‘writing subject’. I have shown that
the writing subject is not singular, in the sense that students bring many different
considerations which shape their writing, which Prior makes evident. The role of identity is
also significant, as both Lea and Street and Kamler show, and it is evident from the writing
and comments of students in this study that prior identities contribute to the judgments
they make and the shaping of their text. However, I have also tried to show that
engagement with new discourses involves an openness to that which is ‘other’ (Biesta 2004)
200
and Thuy demonstrates this more markedly than the other students in this study. This
openness indexes a point where the subject cannot assimilate what is new to existing
identities and interests; to do so is to avoid what is new. I have tried to indicate how a
student-subject might traverse this gap between existing understandings and identities and
that which is new and I have suggested that the text/signifier plays a critical role in this. In
this respect it has a privileged place in the heterogeneous and dispersed activity that is
involved in engaging with texts and discourses, not because the text carries privileged
meanings, but in its materiality, its ‘textness’, its potential as it were to carry meaning, and
thus its function is analogous to the signifier. It thus ‘carries’ the student, positions the
student as subject in ways not subjectively experienced in terms of determinate meanings
and a sense of ‘identity’. For Thuy, through her desire to become subjected to the discipline,
an attachment to the signifier is formed which is constitutive of her, even though the
signifieds remain loosely formed.
201
Chapter 8
Conclusion
8.1. Summary
This thesis has been concerned with student writing and the ‘writing subject’. Thus a
distinction has been drawn between the enunciated subject who is produced in the text,
and the enunciating subject who produces the text. The motivating interest behind the
study is a theoretical interest in the problem of how the enunciating subject is constituted
through the process of engagement with language and discourse. Literacy and academic
writing studies interested in the question of ‘identity’ and in particular critically oriented
studies which have been concerned with the relationship between language/discourse and
identity (such as critical language awareness, eg Fairclough (ed) 1992) have focussed
generally on the construction of the subject in the enunciated. That is, work with students
centres on discussions of the sort ‘who do you want to be in this text you are writing’, or
‘how does this text position you’. In this respect I have argued that the enunciating subject
is treated more as an instrumental agent who is left untouched by the encounter with
discourse, since the choices made about the enunciated and ‘who one wants to be’ in the
text are made by an instrumental subject who already has a clear identity position and who
simply enacts it in their text, but is not changed by the encounter with the discourse.
However, this process of subjecting oneself to a discourse in which one cannot so readily
take up a position because it is a new and relatively unknown discourse is what is at stake
for learners of a discourse. The effect of discourse on the enunciating subject is what is at
stake.
This thesis looks at several student writers as ‘telling cases’ to explore what is involved in
the process of engaging with relatively new disciplinary discourses through a second
language that the students still do not feel ‘at home’ with. Rather than looking at how
202
students might be said to acquire determinate features of the legal discourse they were
engaging with, this study examines the process whereby students produce texts in light of
their engagement with their institutional and disciplinary contexts.
My theoretical starting point has been Bakhtin’s dialogic model of language, according to
which the act of communication is fundamentally born of historical contingency, which for
Bakhtin means that the support for communication draws more from the ongoing
engagement between interlocutors in historically contingent circumstances, than from
reference to stabilized, ahistorical systems of language. Thus a central argument in this
thesis is that ‘rules’ are always a product of such dialogic process and are therefore always
susceptible to being made or understood differently, and students are active contributors to
this process. I have, nevertheless, drawn attention to a paradoxical moment in Bakhtin’s
model, where he does indeed speak of the stabilities that a system provides (Bakhtin 1986,
p. 105). In the literature, this has led some followers of Bakhtin to focus on how dialogic
processes enable students to acquire relatively stabilized discursive and generic forms said
to be typical of given discourses. My approach has been different. While Bakhtin does speak
of stable forms, these are products of the dialogic process, according to which an utterance
draws its meanings from its place in a chain of prior utterances and anticipated replies.
Thus, it is always a response, and for Bakhtin this is the basis on which an utterance means.
The relatively stabilized form itself is a consequence of language being used in similar
contexts, spoken by individuals who have assumed relatively stable positions within those
contexts and who speak for relatively predictable purposes to others occupying equally
relatively predictable social-contextual positions. However, these stable identity positions
and relatively stable generic and linguistic forms have no intrinsic value, for they are the
consequence of, and supported and sustained only by, ongoing dialogic processes, and
hence are intrinsically open to this dialogic dynamic. Thus, central to discourse engagement
is this act of responsiveness, rather than reproduction of established practices. Despite at
points insisting on the necessity of a language system, Bakhtin does also state that the
centripetal forces imposing conformity are always externally imposed (Bakhtin 1981, p. 270)
and thus added to the communicative process rather than intrinsic to it. Of course one may
aim to acquire a discourse and produce suitable texts by learning to conform to so-called
203
rules, or conventions of writing, as students usually do, but I show in this thesis that
attempting to follow perceived rules, such as through imitation of practices found in source
texts, can never be sufficient (for example, in chapters 3 and 6). It is therefore this open-
endedness of both discourse and identity which is of central interest in this study, and how
this unfolds for students as they engage with new discourses in a language they do not feel
at home in. In this sense the speaking subject and the discourse produced will exceed given
rules, and I draw on Taylor’s concept of ‘rhythmning’ (Taylor 1995, p.172), discussed above
in Chapter 3, to provide a possible account of how agreement is achieved between writer
and reader. I also draw on Derrida’s deconstructive arguments (above in Chapters 3, 4, 6
and 7) to explore the ontological uncertainty experienced by a student who opens to the
‘otherness’ of a discourse as she seeks to engage it via its representative texts.
My argument is that Bakhtin’s dialogism provides a nascent subversion of the experience
that self and meaning are unified, discrete entities, a subversion which has greater flowering
in subsequent intellectual developments in movements such as poststructuralism and in
Lacan’s psychoanalysis. I do not explore these developments as such, but draw on them, in
particular in chapters 6 and 7, to given an account of the patchwriting practices followed by
one of the students, and in chapter 7 to give a more general account of the ‘writing
subject’. In chapter 6, my aim is to show how Thuy’s patchwriting can be seen as a
consequence of her formation as writing subject through, and her identification with, the
signifier, rather than the signified. I make considerable use of the distinction between the
signifier and signified, since it is the iterability of the former which provides the continuity
between utterances and subject, rather than reproduction of the ‘same’ signified. Thus I
accept the poststructuralist critique of Saussure, and that of Derrida in particular, whose
critique of the adhesion Saussure posited between signifier and signified in the unity of the
sign ensures for Derrida that a text can always ‘go astray’; meaning can never be finally
secured. However, it does raise the question of where the subjective sense of clear and
determinate meaning, and of the self and identities one has, derives from, if not from
incontrovertible meanings. Therefore, towards the end of chapter 7, I attempt to show
briefly, following Laclau, how the operation of the signifier can account for the experience
of unity in both identity of self and other, and of a discourse. An argument in this thesis is
204
that one can engage successfully in a discourse without having to achieve ‘mastery’ over
relatively stabilized conventions, whether mastery through a non-reflexive embodying of
relevant practices or through a reflexive cognitive grasp of perceived conventions and rules.
The students in this study are presented as an example of this kind of success, and in
particular Thuy who, in terms of grades awarded, was the most successful of this small
group of students.
Thus, in the focus on the writing subject, and the distinction between the enunciating
[writing] subject and the enunciated [written] subject, a further central distinction in this
thesis is between ‘identity’ and ‘subject’. The former I associate with the experience of
‘meanings’ and ‘self’ as discrete, relatively stable and well-defined (at least experientially),
whereas subject I associate with the position from which one writes, which I argue is always
‘in process’. Thus, it is from a sense of identity that one seeks to instrumentally make use of
discourse for purposes associated with established interests and so on, all of which are tied
to one’s sense of identity, whereas ‘subject’ is intimately subjected to the language or
discourses one engages with and, rather than imposing upon them, is constituted through
the engagement with them, and hence is fundamentally a ‘subject in process’. I have
suggested that identity approaches to academic writing focus on the enunciated – the ‘self’
one represents within the text produced – whereas my concern is with ongoing dialogic
dynamics which ensure a subject never can achieve the full control such identity-based
analyses suggest is possible. The enunciating subject is therefore to be more closely aligned
with the ‘subject in process’. In order to make these arguments I decouple the signifier from
the signified, arguing that whereas the sense of identity and determinate meaning are firmly
tied to the signifieds, the relationship to discourse by the subject who does not yet
experience discursive meanings as relatively stabilized is primarily through the signifier and
the materiality of the text students engage with. I am foregrounding text surfaces rather
than texts as ‘windows’ onto established discursive meanings which lie beyond the text as
such.
In chapters 3 and 4 I focus respectively on the addressee the students create and which
constrains the structuring of their texts, and the ‘responsiveness’ they demonstrate in
particular towards their source materials, their main point of contact with the disciplinary
205
issues they engage with, though I also comment on the significance of their engagement
with and response to encounters with their lecturer. The main point in both these chapters
is to show that even though students do draw in places on ‘rules’ they have learnt (for
example, in academic writing classes) they often find themselves in moments of decision
making which cannot be resolved by appealing to established rules or conventions they are
familiar with. It is in these moments which exceed reliance on a given rule (Kristeva) that
the writing subject is manifest, for in following rules it can be argued they simply occupy a
pre-constructed place, and so are no more than an instantiation of the ‘transcendental ego’
Kristeva (1986b) argues a symbolic system presupposes. My argument is that the
‘speaking/writing subject’ is sustained by the dialogic process which addressivity and
responsiveness are part of, and as such, the subject is not in possession of who they are at
precisely those moments the subject can be said to be agentially operative. Elements
constitutive of who they are at such moments exist outside them: we can say here that the
subject is always non-identical with itself (Derrida; Zizek). I also suggest that existing rules or
conventions can themselves be reconstituted by this dialogic process, whether in practice or
in explicit definition, since, following Bakhtin, it is out of this dialogic process that any
perceived rules emerge, and therefore to which they always remain subordinate, even
though they are experienced at the level of discourse as necessary, stabilized ‘givens’ or
resources.
Students do nevertheless, as I show, draw on a variety of past experiences (for example,
practices employed in their workplace in their home country in the case of Minh) and
strategies (such as imitating features of source texts, an explicit act in Minh’s case), and
perceived ‘rules’ about what is required (eg ‘demonstrate I do research’, as Narin stated) to
try and make good their sense that they ‘lack’ clear guidelines on how to proceed and
overcome the uncertainty such moments create for them. These practices are neither right
nor wrong but gain their legitimacy from the way they are incorporated into ongoing
dialogic engagement with source texts and institutional constrains and their examiner-
lecturer. What counts as legitimate emerges from this and student practices may thus well
contribute to what comes to count as legitimate practice.
206
I explore how the dialogic process also positions and produces the reading assessor in
chapter 5, by discussing two very different readings the examiner made of the same student
text on two different occasions. I argue that this discrepancy is not wholly explicable in
terms of the effect a change in context has on reading a text, since a reader can readily
recognize the suitability of her different readings for different contexts. However, in this
example the lecturer was ‘shocked’ by her first reading when reading the same text on a
second occasion, and I argue this suggests that as reading subject she was constituted quite
differently, to the point that now her first reading position is lost to her and from her
present perspective, that she could have read it in such a way ‘shocks’ her. Thus, the
dialogic process has to do with the ontology of the writing-reading subject. Nevertheless,
the subject positions created must be distinguished from the identity one possesses. I argue
that this lecturer-examiner’s sense of self as lawyer-lecturer was sustained across both
readings, even though its instantiation was quite different. Consequently, the consistency of
her identity can be argued to be sustained by the signifier ‘lawyer-lecturer’, rather than by
any depth of signified or meaning, since the meanings or signifieds produced as the
expression of that identity on both occasions are quite different, even incommensurable, as
the lecturer’s sense of shock suggests.
In chapter 6 I focus in particular on the patchwriting of one student, which I account for in
terms of her desire to acquire perceived objects related to her study – the discourses of
common law, English as a language, and to understand more adequately ‘western’ culture.
My argument is that these desires subordinated her to the texts she took as representatives
and instantiations of these desired entities. Thus while Narin is more interested in managing
source materials in ways that satisfy already established interests and perceived
institutional objectives, Thuy is led more by her sources but this of course runs the risk of
taking her beyond discourses and identity positions she has some familiarity with. The
source texts are her means of access to these assumed objects (a particular way of thinking
and writing associated with the ‘common law’, for example), and I argue that it is because of
the dialogic relationship she has with these texts, and the constitution of herself as ‘writing
subject’ through this relationship to the ‘surface’ of the text as it were, to the text at the
level of signifier rather than signified, that the language she encountered there was
207
constitutive in forming Thuy as a writing subject (I suggest that the ‘iconic’ function of
language could be operative here) leading to the genuine experience of that language as
‘her own’, which led to her patchwriting (Howard 1995). In such a context the accusation of
plagiarism is misplaced, and I certainly reject here the negative connotations the accusation
has (cheating, taking the easy way out, and so on). Instead, I argue that we are in full view of
the process whereby subjects are interpellated into discourses in contexts where the mode
of encounter with that discourse, and the pressure to produce that discourse, is of the sort
we typically see in academic institutions. Consequently, I argue in chapter 6 that Thuy’s
patchwriting can be understood as a consequence of her formation as subject through her
engagement with sources at the level of the signifier and text, rather than through an
engagement with discursive meanings. In chapter 7 I proceed to argue more fully that the
writing subject is indeed constituted through this relationship to the signifiers rather than to
signifieds.
I have also linked this theme of identity v subject to the question of the self and ‘other’. The
‘otherness’ of an object does not simply belong to its difference from self or from what is
known. In so far that it is ‘other’ to a subject it is also necessarily related to the subject in
some way, otherwise it would simply not be noticed. I follow poststructural thinking here,
for which that experienced as ‘other’ can be understood in terms of elements necessary for
the constitution of ‘self’ but which are equally necessarily external to the self. Derrida,
extending Saussure, speaks of the differing from and deferring to that a signifier necessarily
has towards another signifier, and thus while integrally distinct from it is also at the same
time wholly dependent upon it. For students, ‘English’, ‘common law’ discourse, and the
[source] texts within which these abstract entities are perceived to have concrete
realisation constitute the ‘other’ to which they are constitutively bound as law students.
Consequently, I have argued it is around the texts that the student’s ‘subject’ is organised,
rather than the discourses these texts are generally understood to embody. It is the texts
which hold the student in position as subject vis a vis the common law discourses they are
engaging with, and which constitute their ‘other’, since the discourses (signifieds) remain
relatively open-ended without established boundaries for the student. I develop this
argument most explicitly in Chapter 7.
208
Thus, central to my discussion in chapter 7 is the relationship of the writing subject to that
which is other to him/her, of engagement with an ‘object’, in this case to a perceived
discourse of which texts are the representative and instantiation. This relationship is
mediated by the text/signifier, not by an instrumental relationship whereby the writing
subject masters such signifiers but by a dialogic relationship through which the writing
subject is formed. This relationship exemplifies the ‘subject in process’. It is with these texts
in their materiality that Thuy engages. That is, it is not because of the discursive meaning
these texts have for Thuy at this stage which constrained her engagement with them, but
the facts they are the texts which Thuy is confronted with, and which as such occupy the
space created by her desire for the ‘legal discourse’. Which texts occupy that space is more
contingent on selections made by others for library shelves, of incorporation into databases,
of lecturer recommendations and so on, all consequent on discursive practices which
remain unknown to Thuy. The resources Thuy draws upon objectively embody the
discourses she seeks to engage with, but her subjective sense of the discourse is minimal. In
this sense, the force or truth of the propositional content she draws upon as she constructs
her essay is not derived ‘vertically’ (Kristeva 1980) from the discursive world of lived
experience which give rise to such propositions (Bakhtin), but from a relationship which
exists at the textual level. It is because such propositions or related ones occur in several
texts. The process by which Thuy becomes caught up in such texts is thus not dependent
upon her induction into the discourses that provide a rich context in support of the
propositional content, but is more textual. Thus, as is noticeable in her texts, the sense of
meaning she works with often does not take into consideration broader discursive aspects
such as register (who can speak in this way to whom) or the knowledge such a statement
presupposes. Discursive issues of authority and expertise fall away, and her ‘identity’ as a
writer capable of saying such things is constituted in a different way, yet equally ‘real’. This
different way, I am suggesting, is sustained largely by the relationship she has to the
signifier, which constructs in a different way her subjective sense of authority to present the
propositions as her own. Thus, rather than having control over who she will be through this
production process (Kamler 2001), for Thuy the process consists primarily of letting go of
who she already is, as she embarks into an unknown which is secured and directed primarily
209
by her relationship with the texts/signifiers. Thus she experiences profound ontological
anxiety.
Thus, I have argued it is primarily as a material object filling an already created space, rather
than as an expression of a ‘lived experience’, that Thuy responds to and engages with her
source texts. Thus in being bound to such texts Thuy is already constituted within the
discourses she aspires to engage with in ways which subjectively she is wholly unaware. Part
of what is constitutive of the subject is, therefore, paradoxically at the same moment
external to it. I have drawn on Derrida’s account of the nature of the sign, and of the subject
within language (‘my language is not mine’) to support this argument. Because I suggest this
operation is always present, and only finds greater prominence in the writing Thuy engages
in (a foregrounding I suggest is more likely to occur in writing by students working in a
second language and dealing with new discourses), I briefly outline the account Laclau
provides of the work performed by the signifier in the creation of hegemony, to suggest
how the sense of unity of meaning a writer and reader commonly aims at with respect to a
text is achieved.
8.2. Answering the research questions
1. Who is the writing subject? In this study I have sought to show that the writing subject
varies considerably. The writer is certainly multiple in that various interests and ‘identity’
positions contribute to the emergence of the student text. But these are engaged in a
dialogic relationship that ensures prior identities are nevertheless nuanced as then enter
now into a very specific context of writing. Identities themselves therefore have a certain
instability. I have also suggested that in the context of these students the institutional and
disciplinary contexts are dominant, although the relative force or weight they have varies
between students, and their precise meaning is also dialogically produced. ‘Context’ is not a
given. But I have also argued that a student can incline towards a more instrumental
approach to their study, or one in which they submit themselves to that which is ‘other’ and
in this way render identity as such questionable. Thuy was engaged in this at the cost of
anxiety.
210
2. What kinds of responsiveness and addressivity are students engaged in as they produce
their texts? Here, I have shown how the addressee is constructed for students and these
again vary. These can be a very concrete reader (for Narin) constructed out of the concrete
experiences and interactions that contextualise the text and precede the writing of the text,
or it can be a reader constructed out of the process of writing itself (Thuy) as she produces
herself through the writing process, and at the same time writes for “someone like me”. Of
course there is no ‘pure’ type but tendencies do seem to appear. The processes shaping the
construction of the addressee also shape the responsiveness to the source materials. Again
the students differed in various ways. Narin adopted an instrumental approach, once having
established a clear addressee and an instrumental position for himself vis a vis the sources.
In contrast, I have argued Thuy’s response of ‘borrowing’ extensively can be linked to her
desire to acquire’ common law discourse and the direction this led her to engage with the
materiality of the texts/signifiers, and to be formed as a writing subject through that
engagement.
3. What considerations do the lecturers take into account as they assess students’ work?
Although lecturers in my study had clear views on the sorts of practices and criteria students
should respectively follow and meet, the meanings these took on were very context-
dependent, and thus cannot be said to have universal application, other than that the words
used would be repeated – no doubt – with the same earnestness were the lecturers asked
what was important. Once again, the ‘context-dependence’ does not refer to an empirically
given context but to the dialogical construction of the context, and in the case of lecturer
MZ, who read the same student text very differently on two occasions, it is clear that the
position she occupied on each occasion was not given by independent criteria (for example,
beliefs and values and so on that were constitutive of the legal community and its
discourses, such as Gee (1996) argues) that remained constant in practice.
8.3. Implications of this study
I drew on Laclau to give an account of the relationship Thuy had with the signifiers. Further
exploration of this relationship L2 students have to the materiality of language in their
211
disciplinary contexts might throw light on the manner in which English is used as a means of
communication as it circulates in the global contexts across multiple cultural and indeed
linguistic boundaries. While it functions to provide communication across boundaries, it is
always nevertheless taken up in particular contexts, and thus nuanced as it is heavily
inflected by the dialogical process that contribute to the particular meanings realised on
given occasions. In such communication constraints are provided by the materiality of the
signifier and of the text, and interlocutors are engaged in responding to these as they seek
to address one another.
My appeal to the signifier and to the text as the medium of exchange and communication,
rather than to the signs or meanings, corresponds to Pennycook’s (2007) argument that
‘transcultural flows’ associated with globalisation are not a process through which dominant
cultures gain hegemony over others as cultural artefacts and practices take on global
movement. Cultures, both dominant and dominated, are not static; the movement of
cultural artefacts across cultures leads to adaptations and transformations of those cultural
practices, changing both the force/effect of the ‘global’ practice as it is localised and
therefore at the same time effecting local changes too, but changes which are products now
of the local context. This of course is precisely the process Bakhtin speaks of, in the
argument that an utterance is always unique, and that any speech act is a nuancing of what
it is responding to, taking up, and as it is addressed to new addressees. For Pennycook
“English is a translocal language, a language of fluidity and fixity that moves across, while
becoming embedded in, the materiality of localities and social relations” (2007 p. 6).
Consequently, as cultural artefact and practices cross boundaries they do not remain the
same, nor are they assimilated to local cultures; there is instead the creation of “new
parameters of meaning that are neither simple adoptions of global practices nor local
practices that have always been there” (p7). Clearly, the ‘trangression’ of boundaries here is
not by meanings, since these are changed, but rather the material forms that provide the
possibility for such meanings. In the domain of language, it is the signifier which provides
the space within which varying meaning can be inscribed, as well as the material text; the
sense that something the same persists is given by the presence of the signifier/text, not the
transmission across boundaries of the same signified.
212
Thus, as English increasingly acquires global influence and significance, its spread is not a
matter of specific standards being imposed on others. As between dialects in an English-
speaking country, so also for English as it is used in varying (and more specialised) contexts
by people from heterogeneous backgrounds, it is this movement of language which is
central, rather than the transmission of one ‘thing’ from one context to another. For
Bakhtin, what sustains the communicative potential and possibility is not so much the
exchange of something ‘the same’ (eg a meaning) but the responsiveness and addressivity.
This capacity therefore is not contained in the word itself, or in anything else that ensures
the identity of meaning, or identity of the subject. The function of the word, as Derrida
(1988) argues, lies in its iterability, not in its stability of meaning. Indeed, this iterability
ensures its meaning can never be guaranteed. I have tried to situate the phenomenon of
patchwriting’ in this context; it represents the process whereby a student engages with the
texts and resources they must, and it marks the process of change for them, rather than a
process of preserving a given self by instrumental manipulation of the texts they utilise. It
represents a transcultural process as such.
So while Pennycook speaks of the circulation of cultural artefacts and practices (eg hip hop)
in this process of transculturalism, I am arguing the sign (words, grammar, and text)
circulates in a similar manner. These are the tools that are worked with; the originating
meaning is not necessarily reproduced, but neither are those engaging with the text (eg
students) assimilating it to prior interests/meanings they have. New identities are forged,
and part of my argument is that in order for new identities to be formed there must also be
a sense of loss of identity (Thuy) as the enunciating position shifts ground. The movement in
this shift is precisely where Zizek locates the subject (1990, p. 251) and for Butler it
constitutes the precise site where things can be performed differently. For both the act
involved is in excess of the identity or sense of self to which we are ‘passionately attached’
(Butler 1997b) and as such is ontological in nature and places at risk that sense of self and
can induce the sort of anxiety Thuy spoke of.
Thus, I believe it would be of great interest to pursue further research into the relationship
between the subject and the materiality of the signifier, and the dialogic nature of such a
relationship. This can involve investigations at the macro level, of how English functions as a
213
global language, and at the micro level, of how individuals are subjectively placed at risk (‘on
trial’ for Kristeva 1986a) as they engage with a language and discourses which take them
beyond any sense of secured identity. Narin and Thuy, I believe, tend towards two opposite
responses to this, and I have suggested that Minh and Kanya in their responses tend to fall
somewhere in between. Further examination of the multiplicity and variability of such
responses can provide the basis for, I believe, greater understanding of the process of
discourse acquisition, or, more pertinently, the process of discourse engagement. Such
understanding is of increasing importance in the contemporary world where
communication across cultural and linguistic difference becomes increasingly significant,
and successful communication is achieved despite the lack of shared conventions.
214
Appendix A
Transcript of interview with Narin, on 21 July 2006, on his assignment for Law of the Internet. This interview took place after his assignment had been returned to him, with comments, by his lecturer.
NOTES:
i. S = Steve (Interviewer/researcher); N = Narin. ii. Words in square brackets are spoken by the partner in the conversation
iii. Words in italics provide information relevant to the comments being made iv. Words in bold are reflections by the interviewer at the time of transcribing. These
have been retained because they indicate something of the cognitive context in which the translation from spoken word to written word was made.
v. In places, the words spoken are not clear. These places are indicated, sometimes with a transcription of what the spoken words sound like, sometimes with a guess at the words, sometimes with a series of question marks.
vi. Pauses are noted in square brackets.
Interview transcription
1. S. Interview with Narin on the 21 July, 2006, discussing his uum [in. . .] copyright Law and his experience of study here in Australia. (Not copyright, but ‘law of the internet’; my confusion at beginning of interview.) OK Narin, OK, well carry on, because you were just saying that um every essay is different, every unit is different. (We had begun speaking, as you do, when Narin entered the room, and quickly got onto things that seemed of interest, so I stopped the conversation, began the tape, and am now trying to resume that conversation.)
2. N. To me I think that because uuh, actually, I think because uuh when I did my bachelor degree I uuh never did research assignment before, I just uuh did uuh supervised exam, right, [right] and uuh of course, different way (Narin laughs lightly) to deal with [mm mm] so I came here to do the research assignment uuh of course, at first, difficulty is English, (N laughs) and the second is the way to conduct research [mm]
3. S. So have you found with all the different assignments it’s uuh different ways you have to do things? [yeah yeah yeah yeah]
4. N. The first one, uuh I did unfair dismissal law, comparison between Australia and Thailand.
215
5. S. Was that for Legal Research? (A Unit of study offered to first semester international Postgraduate students and highly recommended to them.)
6. N. That one for Australia Legal System (a compulsory Unit of study, first Unit taught on PG coursework for those without Australian LLB.) The lecturer gave us many issues uuh and she asked us to uuh compare [pause] between Australian law and Thai uh uh and my own country law. ???? she give us a topic (for several?) argument right, and um child right, and um whatever, and she said can . . . do I think . . . which of jurisdiction of Thailand and Australia can protect and preserve this legal right better than . . who better, yeah, who better, so that one, I decided to do unfair dismissal by . . .accidentally (N laughs briefly). I [pause] mm many issues, right [yeah] so but to me I had no interest in any particular area of law [pause]. Of course, I I I take uuh uuh in IT law, but this just because I think uuh its going to be good, I mean, it’s going to be [pause] really required, high demand in the future, so uuh (S cuts in)
7. S. Right, your first degree was in law? Are you a lawyer by (N cuts in)
8. N. no no, I finish a bachelor degree in law [yes] of course, but I I’m not a s. . . but my bachelor is not specialised, it’s just all things, uuh every kind of law, so I had those/no(?) interest in any particular . . .I just think IT law going to be in really high demand [right, yeah, OK, OK] So for the first assignment [pause] there many issues, so I [pause] I have no idea what to do (little giggle) so I just OK, what I like, what I feel [pause] feel it going to be easiest for me, so I need something that very uuh objective, very (hashcan – sounds like!) feel or something like that, so I went to the library and I got a book, a very good one, uuh its talking about the base the basic of uuh labour law. Discuss uuh the conflict of uuh. . the conflict of uuh [pause] basic fundamental idea of labour law, something like that. I got a part that really good that discuss about unfair dismissal [mm] (at it all?) I got a really good idea about how I can start it. And I OK I go to read uuh [pause] Australian law and I compare with them . . . with them, really good idea, and Oh, going to be really good, and I (listened?) and then I go to compare with Thailand. But actually the first draft very . . .very . . . not really that good, not really good. Matthew say (Matthew was providing language support in the Law Faculty) I need kind of re-arrange [oh] because I put the (resolution?) first and then the (reason?) but Matthew said ‘No, just combine together’. Like this, not like this. Like this. [aha] so Matthew OK [right] Combine together, yeah, I did it, OK, Eventually it come, oh yeah, really good. I still think [yeah] it the best one I did [yeah mm mm] But it take me two wee . . . quite a long time too and this made another assignment worse. (Narin laughs very briefly)
9. S. Why? Because you spent too much time on this one [too much time]
10. N. I feel I feel good, I feel fine, I feel I want to do and go on, go on yeah, but made another subject worse, and another subject, legal research [yeah] I think, I think I need to do
216
something similar because the the the lecturer didn’t require any specific issues, just say, you can do whatever, just compare Australia and Thailand, so I did, I thought, OK, I should do something about labour law [labour law?] labour law, because I [pause] I did unfair dismissal that really close related to labour law. [right] right, I should not do something too different [pause]. But, but not good, not good, because that one, I just made up the topic [pause] myself. [right] I just . . .
11. S. Did you discuss with your lecturer about the topic? Did he help you decide exactly what (N cuts in)
12. N. No, no, no. No no. Because I think I like to do, so why not. I should do [right right] (Narin laughs) It’s uuh, OK [pause] It . . because, [pause] first time I came here I didn’t . . mmm . . . what is research? I do what I like, or I do what I can? Understand? [Hmm] I should do what I like to do or I should do what I can do? [mm] But, I think, Oh, I should study what I like, not what I can. Because, [pause] when I st. . study what I like, I can have uuh my uuh own opinions, or something like that [yeah] to put in. That should be the one the lecturer looking for [yeah] because if I put something that others have said ??? I don’t think [pause] the lecturer [pause] want to [pause] bring, but (evidently she does not?) . . . not (laughs) not . . . the the real thing that . .
13. S. So what do you think the real thing is?
14. N. Just show that I understand law and [pause] of course I have to put more ideas in, but the lecturer doesn’t require high . . high quality ???????? (missed about three words spoken very quickly) OK, just do not say, you can develop that idea. Because if I create my own thing, without any aah reference [pause], not good.
15. S. Yeah, so, so you say they do not require high analysis, is that what you said?
16. N. Yeah, not [yeah] require [yeah] high, because for this one (ie Internet assignment), D (ie distinction). Everything had been said by others (says this very emphatically, almost, perhaps, indignantly) [yeah]. True [yes]. Not high analysis (I think this is what he says). But [pause] the one that for for legal research, I think it really good idea that I [pause] if I can . . if someone help me to do more research (sounds as if he is smiling as he says this) its about uuh age discrimination. In Thailand when I see the advertisement on newspaper it say uuh they want a man who 30 or [pause] 30 to 35 years old, and apply for a job like a manager, and I think [pause] why applicant have to be 30 or 35? If I 35 and six months so I cannot apply for that. [pause] It it discriminate against people without [pause] any reason. Why? 35 and six months! Oh, why Thailand have very bad uuh, I mean, why Thai [pause] Thai level of uuh provide really uuh really freedom, really freedom for employer to do whatever they like. [right] People like that. Employee should have some rights and the people also they have got age discrimination law, (principle????), really good to compare. And the same
217
book, the same book say, that equal equity before the law [equity] yeah, can be interpreted differently. That, that, I use that basic to [pause] to uuh [pause] so when I write [pause] the different approach [yeah] of Thai law [right] and Australia law but (laughs) not good, not really good [so the term ‘equity’] yeah yeah yeah yeah yeah, but the assignment not really good, but actually, [pause] I think it can (deal with a lot of . . ??? but because of?) my poor, my poor knowledge, cannot [yeah] bring it out
17. S. No, that’s a good point, that’s true, I mean uum I mean, in order to make a good argument, you need to have good evidence [yeah] good knowledge if you like, to draw on, to uum . . .and that’s what I’d . . .I’m curious about. In this essay you pointed to before, the law of the internet, you said that this is all what other people have said [yes], but in your final section you did reach your own conclusions, you did begin to make uuh uuh judgments about um different things [Oh yeah yeah yeah] so [but, you know, this one. . .] that’s your opinion, isn’t it? (N is eager to speak here, but S keeps on going) For instance, on page 15, you say “Thus the courts made its decision correctly concerning to legal reasoning”. [yeah] So that’s your statement, isn’t it [yeah] you decided they’re correct. [yeah]
18. N. But that just a kind of conclusion after I have read all . . .this kind of . . . .where people talking about a (him/hen?), a chair, and . . .OK, or people talking about a chair, I just conclude, all statements of all people. [mm mm] Because I read, OK, this also say good, good, good, OK I say, everybody say ‘good’ (N laughs) So nothing new [mm] just write/(try?) out [mm] conclusion of [mm] every people [mm]. Not a whole new thing, just repeating. Yeah.
19. S. Now do you think that’s very different to the journal articles you read? Do you think journal articles are much more the opinion, if you like, of the author, or that they don’t rely on sources as much? [pardon] Do you think the articles that you read [yeah] do not use other people’s information much? I mean because you’re saying, or it sounds to me as if you think that there should be more . . .or you’d like there to be more you, your opinions here, but you have to use other people’s opinions, and I’m asking whether the journal articles you read [yeah yeah] um don’t they use other people’s opinions a lot as well? [pause] Or do they not use other people’s opinions so much?
20. N. Not quite understand what what you . .
21. S. Well I suppose I’m trying to make a comparison between your assignment and the journal articles you read. You say this assignment is all other people’s opinion. [yeah yeah, Actually . . . .(‘actually’ spoken very loudly, as if sudden recognition of something)) I’m asking in journal articles, aren’t they also using other people’s opinions? There are lots of references to other people’s opinions.
218
22. N. No, no. They rely on the case, and legislation. [pause] And not many people [pause] uuh, not many people [pause] really really I feel, that put other opinions. Only one, of ????? what’s her name?
23. S. The lecturer? [yes] Melissa? (Boree, Boree, Ketcha Boree (sounds like! I think this is a name. It is almost certainly Kathy Bowrey, the person quoted in the topic given by the lecturer.)
24. N. This book Kyober (sounds like!) a collection of uuh other other opinion.
25. S. Oh, that’s the quote you had at the beginning in the task, there’s a quote from her.
26. N. Yes, because uuh, this one is about uuh copyright and uuh peer-to-peer file sharing, and of course the two, two [pause] two [pause] two groups who arguing against each other is uuh, the one is uuh music industry, and the other is uuh peer-to-peer, uuh mm peer-to-peer file-sharing creator, and this this dispute, right [mm] and uuh, [pause] and some part of this group is uuh teenager who like to share (N laughs) right? [mm] so this people say Oh, file sharing is very bad, bad, bad [the music people you mean? Say that?] yeah, yeah [yeah], the music, going to make the world worse, worse, worse, and they say No, no, it’s going t’be [pause] really good. [That’s the teenagers?] Yeah [yeah]. And this book uuh, their argument against . . . one say this, one say this, one say this , one say this, yeah [yeah] and um [pause] but . . .OK, this assignment of [pause] when I read the topic, at first [pause] uuh no idea. (N laughs) [really] Yeah, no idea, but I like to do because I want to do what I like. (N says this last sentence quite loudly and emphatically.)
27. S. Did you have a choice?
28. N. I had a choice.
29. S. Just quickly aside, would you be able to send me the [what] instruction sheet for this one, because I don’t think I have that. [oh really] the instruction sheet, but that . . yes, if you can remember that, it’d be great. But yeah, so you had a choice here, did you?
30. N. The first one is uuh this one, and the second one is about terrorism on the internet [right]. The last one . . . I forgot. [That’s alright]. But most . . . most of my friend uuh did uuh terrorism on internet. Something like that. [Ah yeah] Yeah, but [pause] I don’t think that is a good one because uuh [pause] lot of internet, tricky [pause] about (eight word - sounds like)???? should be about uuh [pause] (thickamagee – sounds like) so, like this. But terrorism is just fashionable topic that [alright] these days (much) terrorism, so just talk about terrorism and law and internet, just combination of these three, so, good, so I like to do this, I think this one . . . much more helpful [much more helpful?]
219
31. S. So when you say that, are you saying that you, you think it’s . . it’s uuh much more sort of basic to, to [to, to] internet problems?
32. N. When I studied this, I can . . . OK, even if understand it I can . . ., in the future I think it will be really helpful to me to understand other things. But terrorism maybe, in five or three years [laughs], people just forget terrorism, no war [hmm, hmm] (Narin laughs) (pause) [hmm hmm, yeah, no, fair enough]
33. S. Ah well, that’s interesting, so you decided this was the topic for you, and you . . . but you still didn’t know what to do with it. You said you were very [had no idea, yeah] so how did you [hm hm] how how did you [read – laughs] you began reading? [yeah]
34. N. Yeah, just OK, (what a chad, a peer to peer – sounds like!) OK, read read read read, and what (we’re?) probably discussing, OK, OK, but the problem I had at the time with the [pause] . . . why, when, when an author (sounds quite clearly like ‘oral’, but I think ‘author’s is perhaps what he says/intends) have a conclusion, and they discuss a lot, right, before they make conclusion, and it’s very [pause] uuh concrete conclusion, very good one, and . . . I have no idea to go on to discuss because uuh “oh, it’s very good now and I can do no more.” So what other reason can I offer? Put it in my article and submit? No, that’s not a good idea (Narin laughs) [uh uh] otherwise the lecturer going to fail me. Easy. Because I think she has (seen this) of course, otherwise [pause] why she need to ask me (eachin?) just read this, so I think she need something more, so OK. I need . . .something more. So . . .
35. S. Something more than is in that article?
36. N. In that article. In that article. [in the Bowry . . . what’s her name?] No, no, no, no. [Oh, a diff . . .] I mean, I mean another one. [oh another one, it was in another one, right.] The Blackmore article. [Sorry] This one [Oh, the Blackmore article, oh yeah, oh yeah.] I filed it all on the internet(??) No, no, no, no, not sure, hang on. On no, this one, uuh Douglas Guy, that one [pause, as S looks at reference]
37. S. Oh, Douglas Guy, Guy Douglas, yeah, OK. Alright, fine, yeah. So you then felt you had to do more than just [yeah yeah] yeah
38. N. And uuh this conflict with uuh [pause] uuh the lecturer in my Batchelor law school. I mean, the legal basis is different [right] (pause) Because of . . .. But, actually, the lecturer in my Batchelor law school . . . he’s too old now, his theory become obsolete already [ah right] so but he make me confused. [mm, mm] (pause) When I did my lecturer, he say, law is like all other trade, trade period. In the first . . . At the first time, people uuh . . what did he say [pause 4 secs] OK, at the first time, we have only folks law, folks law, law, just people make law [folk law] folks law [yeah], people make law, [mm mm], we . . . for example, all the . . . on the grass ground, people walk on the grass ground and also people also just walk, follow,
220
because there become . . .it become the route for all people to walk follow, that the folks law, law. And after that, lawyer law. It’s more complicated. And then, (???) technical law. That what we taught [oh right]. But this theory become silly. [oh yes, uuh uuh – S laughs slightly, sounds amused by this claim] Because (a separate?) thing. He cannot explain why [pause 5 secs] this theory cannot explain why, when a car, when a people . . . why people drink when driving. Because drinking while driving is (how?) technical law [mm] in this theory. He say, [pause] if I explain by this theory, I can explain this situation because other state want to regulate how people not to drink while driving, because it’s a (tao??) technical law and no, no culture basis. Because why, people just oh, oh, the traffic light, its kind of a technical law as well. Red, green, yellow, no culture thing in that, only just the [pause] red is stop [mm], green is go, yellow is beware, something like . . so no any culture [mm] involved. So I think not, [mm] not good idea, because people have . . .alway have culture involved in everything, so [mm] (pause) that’s confusing theory when I do this research [right]. Because copyright law is (called?) technical law as well.
39. S. yes, yes. So you were using ideas from this . . .from your bachelor degree [but that’s wrong] Did you do your Batchelor degree in Thailand?
40. N. Yeah, but that, that theory, other law schools say no. It’s obsolete. [mm] yeah. [mm, mm] But, he proud. My lecturer very proud [yeah]. But, it obsolete. Yeah.
41. S. So, when did you realise that that was no use then? His theory.
42. N. I read another book, from the Lawrence Lessig. Lawrence Lessig. (pronunciation of this is very unclear) [Oh yeah] Here, the the really excellent one. [Right – S sounds very unsure]
43. S. Oh here, Lessig, Lawrence Lessig. Yeah. Oh right, that was very good, was it, you found?
44. N. Mm, yeah, he explained things very good, and his uuh, his theory can explain [pause] many many uuh [pause] situations of uuh of [pause] of people, of people’s [mm] behaviour [mm, mm] like I put in this, uuh my paper [pause] uuh market, law, norm and architecture [that’s right - S says this as though he recognises what N is speaking of, perhaps he has pointed to a place in his text] These three concern the four regulate thing, and oh, very good. [So that’s from Lessig?] Lessig, and he explain that explain things very good. (It is not entirely clear to me as I transcribe what these three/four things are.)
45. S. Ah, so your reading then uuh it was through your reading that you began to get (N cuts in)
46. N. But I find it [pause] by accident
221
47. S. Ah, did you. Yeah.
48. N. I use google [ah yes], I use google and just put wikipia and news, because news always say, something, really general, and, and the newspaper say Lawrence Lessig has said this, and who to see, OK, good, go to search that, get this book, and I read it all, very good. But . . .[well, that’s good] it take uuh two week, two two week to finish this book [ah did it] nearly two week, yeah, this . . . this take . . ., yeah, very good. Otherwise, I have no idea.
49. S. Was it hard to read or . . .
50. N. No, no, very . . . very easy [oh good] yeah [yeah] Fortunately (Narin laughs) [ah good] Easy to read, yeah, it was very fun too. [mm] really fun, yeah [mm] Happy to read, very fun ooh, want to go on.
51. S. So you found the text then could help you to think about what . . .how to do the assignment
52. N. yeah, because . . .[pause] the basic idea of rexing(?) is a contrast . . . really contrast to the idea of the the court [mm]. He argue [pause] every opinion of the court, something like that. [ah yeah] This one, got to read it, ha ha ha.
53. S. Yes, ah interesting, so, and um . . .Alright, so uuh you were using the text then to start thinking about how to approach the essay? Did you have a discussion with your lecturer at all?
54. N. No uuh uuh I did, but I just say ‘what the question really ask me’, I have no idea [ah yeah] yeah, because I could see the question not really straightforward. (fumbling of papers while he is saying this, by S or N not sure.) Have you got the question? [No I haven’t got the question here.] mm
55. S. Actually, I have it I think on an earlier version of your text.
56. N. Actually, you should read the question before you read my assignment.
57. S. Yes, I have the question here [before you read my assignment] Quite right. There you go.
58. N. Did you read before you read my assignment? [yes, yes I did] and you have any idea?
59. S. I found it [Narin laughs] well . . . (a couple other words here, muffled by Narin’s laughter), I wasn’t quite sure exactly how I would approach it, yeah, yep [yeah] I agree, it’s . . yeah [badly written]
222
60. N. Many word confuse you. [yeah] “Bureaucratic term,” this word confuse me, a bit. But the most confusing is [pause] “information economy”. [ah yeah]. There. Yeah. [information economy]. Very very confusing . . . for me. [yes] What is information economy? [yeah] If I concentrate on each [these?] word I die. [S laughs] (N laughs)
61. S. So what did you do?
62. N. (short pause) So, I just say, OK, just try to interpret, this paragraph two [to?] ???? of question, and then go on research.
63. S. So you made it into a simple question, and then . . . [yeah yeah yeah] Yeah
64. N. So of course, I have to know what is peer to peer, right, because the question is also here [yeah] but I need also, want to interpret [yeah] what it actually mean [yeah], easy, easy word, [yeah] yeah, I ask the question for you, and you want to ask me, come on, tell me (Narin laughs). Because, she put this, just because she want to make it more difficult for student. [mm, mm] To . . .she doesn’t want to just put a simple question and go analysis. She want a bit more analysis so she put this, but it make me confused, and so please to ask, tell me what she really want to ask me.
65. S. So did she tell you?
66. N. Uuh, yeah, she tell me.
67. S. In simple words?
68. N. Yeah, yeah. Yeah, but . . . at first I am so focussed on this that ooh, maybe . . .go hell. (Narin laughs)
69. S. Right. Information economy, right. (S laughs) So in fact, speaking to the lecturer helped as well, then.
70. N. Yeah, yeah, yeah yeah. [In the sense to get you . . .] yeah. [yeah] yeah. Just . . . because she is my examiner, so she should tell me what she want to read (Narin laughs)
71. S. Fair enough, yep, that’s a good comment to make I think. Now let’s just have a look at some things on the assignment. There are just some things I’d like to ask you about. Is that OK? Um, or. . . [5 sec pause, I think S is looking at the text] yeah, OK, let’s just ask uuh um uuh a few things here, because she . . . you said that . . . . I mean she actually gave you a lot of ticks, didn’t she, lots of ticks. [yeah]
72. N. she . . . really uuh nice to me.
223
73. S. What? Nice to you? [both S and N laugh.] She probably thought your assignment was good. [oh, maybe.] Um, so I was just . . . I mean one thing I’m curious about here is um [pause] what you think these . . . what you think these ticks are for. Just your understanding of these things [to what . . .] Here’s a tick [not sure] uuh this is the introduction for instance, at the end of . . . (N cuts in) (I get the impression N has not been paying attention to what I have been saying particularly, and so he takes up on a point now that is significant to him.)
74. N. I went to to to. . . to consult her to . . before I aah . . . before I complete. When I [pause] uuh (a lot of shuffling of pages, by Narin) I went this far, I went to uuh (pause, as pages are shuffled) before I . . . I went to discuss about the case . . yeah . . . before I [pause] I got this part
75. S. on page 8 hm hm
76. N. around here [page 7] I went to see her.
77. S. Oh, did you, [yeah] so around page 8 and page 7 you went to see her.
78. N. Went to see her, uuh uuh went to see her to ask so far what I did, and what I going to do. And . . . this (chief?) I want to ask her whether I’m on the right track, to, to go. [Oh, right] Otherwise, mmm, interesting (laughs)
79. S. And so, was she happy to help you with that?
80. N. Yeah, yeah. She happy, but she just sit and listen to me, she didn’t say. She want to know [pause] whether I know, actually know (laughs) [right] because she aware that if I [pause] just quiet, she talk talk talk, so she gonna just. . . tell me . . . to do assignment [mm] yeah, so she just [mm] sit and listen, and just uum ask questions, yeah
81. S. But you found that helpful.
82. N. Helpful, helpful, [yeah] yeah [good]
83. S. So that was pretty good of her. So that helped you to sort out section four, then, did it, and the [yeah] end of section three, it looks like . . . (Narin cuts in brusquely and loudly)
84. N And uuh the mmm . . . the . . . this one is quite organised actually. Better than patents, patents was just . . . put everything. Did you . . . did you recognise that? (Referring to S’s reading of his assignment during process of him composing it.)
85. S. Well, I think that was part of our discussion, wasn’t it. Um, some of that, but yeah. But um, OK, yeah, so uuh and so, when she went through this she was putting you . . . at the end of sections here, ticks, uum, she gave you quite a number of ticks here, all the way through,
224
it seems. (Sound of leafing through pages.) Um, [pause 5 secs] So you took the ticks just to mean ‘good’ did you, this is good?
86. N. Just say OK, OK OK [good] OK OK OK OK. [yeah] Doesn’t mean it’s really good. (Slight laugh by N.) [yeah]
87. S. She puts them in particular places. For instance, under section 2.3, she seems to put it at the end of those three . . .categories, doesn’t she?
88. N. But this one take quite a long time. Don’t forget I did [pause] only two Units at that time. So I spent whole time for this [oh yes] so really concentrate, very (pause) [right] . . calm (soft laugh) [yeah, so that’s good, it’s good].
89. S. And then I was curious . . .she gave you a couple of ticks here, later on, on page 8 and page 9, just next to quotations. Why do you think she ticked a quotation?
90. N. Because it’s the right quote (N laughs).
91. S. It’s the right quote. Because it’s not your words. I mean she’s being ticking what you say elsewhere, but here she’s ticking . . . yeah so she’s . . . it’s the right words you say. Yeah, yeah.
92. N. I I put the right quote here.
93. S. Fair enough. So, so . . . yeah. And um . . . here again, yeah, a tick on page 11 for the quotation plus another tick for your paragraph. So she seems to uuh (Narin cuts in)
94. N. But actually, I I kind of confess to you something uuh she required me to read the the actual case, but I’m . . . I think no, it doesn’t help.
95. S. Which actual case?
96. N. The actual case, the whole case.
97. S. Oh, the cases, [but] because you refer to a number of cases.
98. N. But, actually, I didn’t read whole case. I just read an article that refer to the case, and when he refer to an article or paragraph, I just read that paragraph. That really helpful, but . . . (S interrupts)
99. S. In the case, you mean, the paragraph in the . . .
100. N. Yeah, yeah, in the paragraph in the case. But I cannot read whole cases. [right] It cover everything . . . .uuh can . . . cannot understand everything because uuh . . . in, in the,
225
in the decision (clicks his tongue), the words the judge use sometime (click of the tongue again) just confuse me. (Laughs)
101. S. Right, so you did that because you found the case confusing to read, is that what you’re saying?
102. N. Yeah, because the judge would say “This is uuh the former law, and now this is the law, and this is the former law, and . . .” (laughs) where is the law, come on, tell me! (Continues to laugh) [Ok, OK]. Because it is the common law things, right [yes] and not a civil law thing [yes] and . . . and the judge . . . the decision . . and the word they use . . . aah, hopeless(?)
103. S. So instead then, rather than relying on your reading, you just rely on the other people’s reading.
104. N. Secondary reading, and . . .
105. S. Secondary reading. So when they quote a case, you would look at the bits they refer to?
106. N. No, no, no, no. [Oh] When they refer something, of course they put the . . . the citation, [mm] and then uuh have to go to read actual case, because sometimes, they just make a mistake [oh right] so, I cannot just, just copy. [Oh!] I have to make sure that he right, and that OK [oh] and OK, he right, OK, OK, go
107. S. So you refer to the case just to make sure they had copied correctly.
108. N. Yeah, but, of course, I have to read . . . sometime, he just put what he (saws intends?) This case say, this, OK, but what does this mean, OK, this paragraph 3, OK, and then I can just, OK, these are the actual words, OK, and just, OK, put uuh, in my words (?) [yeah, OK] Because, in an article maybe just put too small to use, too small for me to use, [right] yeah, so I need more, so I need to go to actual cases, OK.
109. S. So why is it too small? Do you need to say more about this point?
110. N. I need to understand more [understand more], too. Because small word, cannot help [yeah, OK]
111. S. Oh, well that’s interesting, that’s good. Yeah, that’s interesting. That’s how you’re managing, that’s how you’re coping with uuh with these (Narin interrupts)
112. N. Because, if I read a case, I just miss, just try to . . .oh, confuse me, to go go on. And sometime . . . I have tried to read, but, when I finish reading, (click of tongue) nothing (laughs).
226
113. S. So you find the secondary sources easier to understand than the primary sources. [yes] You can read secondary sources and understand those? (But said with intonation of a statement!) [yes] Quite easily? [yes]. Usually? [yes]. That’s interesting.
114. N. Really?
115. S. Why do you think that is?
116. N. Because, usually, um, the author will [2 sec pause] go on to be to only one general idea, only one arg . . . one argument of . . . that . . . that they want to to push [uh uh, uh uh] so, uh, so every paragraph I read, I just OK, he want to argue this way, so OK, I know.
117. S. So you think it’s more focussed [focussed] than a case?
118. N. But of course, the judge [ie in a case] have to discuss every potential, argument before he make the decision, but that make me confused, because before that, before they make conclusion [yeah], they go on [yeah] to every point, and oh, [yeah] that, oh, [yeah] (Narin laughs) yeah
119. S. That’s interesting, in a sense the author is more deductive, and the judge you are saying is more inductive in the way they work. But yeah, oh well, that’s interesting.
120. N. It is. It’s true for you, or you think this is my opinion? What do you think?
121. S. Well look, it, it depends, it depends, it depends. I, [of course] I I find some secondary sources very hard to understand, and then some I find [pause] quite easy to understand, and others are in the middle, so ssss secondary sources, I mean journal articles, some books [but you, you ] about (???) [but you and me] can vary
122. N. but you and I different, you are . . . you speaking people, I’m not (Narin laughs).
123. S. Yes, I, I, . . .and that can make a difference, I agree, so what do you think . . . so what’s the difference there then? Because I still find some of the texts difficult.
124. N. No, I think uuh when you read uuh [pause] a decision, if you have read, have you read? [I’ve read some decisions] yeah yeah yeah. You can got a feeling, that [pause] the feel, when you read, I very exciting, I can feel, he put this just because he want to do this, I can feel, but, for English, sometimes I read without any idea. Why you put this? I cannot feel like Thai text [oh]. [3 sec pause] I need to really understand the meaning and then read more because of that. Something like that. It’s more (difficult?) [mm] Yeah.
125. S. Yeah, that’s fair enough, yeah.
227
126. N. Just try to read Thai text, and then you can understand (Narin laughs) [alright] (Both laugh loudly)
127. S. I know, I think, I think you and other students like yourself do a wonderful job because I agree, I I think it would be very difficult to study something, especially something like law, in a second language or third language, because, um, yeah . . .
128. N. Could we tape(type?) again, you understand why I feel this deep [mm mm] (Narin laughs softly)
129. S. Now look, just to get back to this text again, um, just . . . I mean, you were saying before, that much of this is just uuh copying or it’s . . . it’s other people’s ideas, but you still . . . so, you weren’t making your own decision about ideas and things, you were just using other people’s ideas . . . but you still do have to make many decisions, about what to use, what not to use, how to organise the text, and in section 5 too, you also reach your own conclusions on all of the discussion, so, so you are making a lot of decisions and judgments [yeah, yeah, yeah, yeah] um how do you find that? Is that sort of um as you were doing this particular . . . aah aah aah because you began with an assignment here which you said you didn’t know what it was about at all, to start with. So as you proceeded, did you feel fairly confident [because . . .] as you were making these decisions?
130. N. Two article make me survive. Lawrence Lessig, and another one is this one (shuffling of pages 5 secs) I got this one from internet as well. I have to say thank you to . . . . Reese Anthony, “the problem of judging young technology’. (pause 4 secs)
131. S. Oh, Anthony Reese, yeah. Ok. So that was also vital, was it? [yeah]. These were two vital ones. Oh, Lessig wrote two books, didn’t he, but that was the one you really liked [I think this is the first one listed under Lessig’s name] (referring to N’s bibliography which is before S and N) alright, yeah. So these were very important . . .(Narin interrupts)
132. N. He also argue against (all?) decision. He say “whether you are first made uuh is kind of uuh in breach of music called (thick one?) too, so at that time, people just didn’t want to uuh charge every time music playing on video, [pause] but eventually, people (can every?) like that. Radio helped [yeah] increase the sale of uuh music, ??? right [mm] likewise, why peer to peer facing the same difficulty, and it just . . . just focus too much on uuh . . . on uuh . . . uuh the current . . . what the word I have used? What . . . he just focus on uuh uuh, what’s the word I say? (Narin shuffles through the pages of his essay) (laughs) forgot (pause for 4 secs) “potential use”, yeah. (I will?) estimate the potential use of peer to peer. [This is page 15] Yeah. [alright, yeah, OK, yeah.] Yeah.
228
133. S. So, so after reading those two articles you found you could start making decisions, could you, did you, about . . [yeah, yeah] about what to include [yeah] is that right [yeah, I can . . ] or how to organise
134. N. I can go against the court now, ooh, I got . . .I got the idea, from him.
135. S. Ah, so you were looking for ideas against the court [yeah] yeah.
136. N. Because if I follow, it too easy. [yeah, yeah] It just OK, I . . . it’s good [yeah], yeah, the law say that (Narin laughs) but I don’t think it’s . . .it’s . . . it’s good . . . it’s uuh I don’t think the lecturer want me to do that, because [pause] I have show that I understand the law [yeah] in the first part . . . I have show that I understand the law in the first and second part, right [yeah] I put what the law is [yep] ????? what I need more is analysis, so analysis go against . . . .
137. S. Right, so, so that’s what you were doing, in the first couple of sections, stating what the law is, and then you went on to analysis? [yeah] Is that section 3, is it, or . . . certainly . . . [but] yeah
138. N. As you uuh see uuh, Lawrence Lessig say four constrain, right, (see Narin’s footnote 7, page 6) and I try to put like that, the first is the law, the second is the the norm, and the third is the market, and the last one is . . (S cuts in)
139. S. So this is Lessig, isn’t it? The other constraints [yeah yeah]
140. N. I put the law first. I, I put uh [yeh] other constraints [yeah, yeah] and I say uh, what . . . what uh music industry uh [mm] find [mm mm]
141. S. Oh right, so yeah, so, so it was Lessig that helped you to do that, and then [yeah, yeah] and then also this other author, and then you go on to the reaction of copyright owner, so how did you decide on this next section? (Which is section 4 in Narin’s essay.) Was this . . .(Narin cuts in)
142. N. Of course, I need to . . . because the question ask me to, to discuss about the case, so I need to put this [OK] and I need to put why they just go to that conclusion, so I need to con . . .uuh put only paragraph that will support my, my conclusion [yeah, yeah]. (This last clause is spoken slowly with pauses between words that fragment the flow or natural intonation pattern of the sentence.) So I put only, the paragraph, that the court, tend to focus on uuh the . . [pause] the damage of the peer to peer, but he for. . . ., he forget to [pause] thinking about potential use of peer to peer.
143. S. Now interestingly, in this section on 4, you’re discussing . . . well you’re discussing the Napster case . . . interestingly, earlier on, your lecturer added Napster to some of your
229
references (that is, in her comments on Narin’s text when she marked it), you left it out of ref . . . of of [uh uh] footnotes [yeah, yeah] there, didn’t you [yeah yeah] even though you knew about it, because here you have a whole section on Napster. So that was interesting, you hadn’t included it in earlier references [yeah]. Had you just not thought to, or did you [just forget] just forgot, yeah. And in this section now, you reference the Napster case a lot, but I presume you are getting your ideas for this not form reading Napster but from reading [other] other people who are discussing the Napster case, yeah [yeah] but you don’t cite those, do you?
144. N. But I read the Napster case of course, otherwise . . . (S cuts in)
145. S. Oh, so you read this particular case did you?
146. N. Yeah, I read, I read.
147. S. Because other cases you didn’t read, you said before.
148. N. I read, but I didn’t . . . get the idea from that, but I read to make sure that [yeah] everything I understand is correct [yeah, yeah]. [yeah, oh yeah, right, good, good.]
149. S. Alright, good, and then you go on after discussing Napster to . . . oh, to the other case, to Grokster [pause 4 secs] and Morpheus (said quietly, as though S is looking through/reading the text and speaking more to himself) (this is section 4.2 in Narin’s essay). . . that’s . . . yeah, oh well, that’s . . . and there was a decision on that, wasn’t there, yeah, so you cite . . . and so you read this particular case as well, just to check?
150. N. Ah, this one really long, long case, so I read only uh the part that help me [yeah] yeah [and you made reference, yeah] yeah.
151. S. And the ideas you get about this, well that’s interesting, you cite Grokster . . .(N cuts in)
152. N. If you just want to know how I made the assignment, just read all the references I put
153. S. But here you don’t have [but . . .no] but here you don’t have secondary references (S implying he cannot read the sources of his ideas easily!)
154. N. But I can refer to, it’s OK, alright? [yeah] Yeah, right.
155. S. Oh, it’s OK, but it’s interesting to me, I mean, it’s just interesting to me that even though you are using secondary sources, you’re actually citing the primary source, which is fine.
230
156. N. But it’s OK.
157. S. Oh, absolutely, yeah [Narin laughs] That’s no problem [yeah]
158. N. Yeah, it’s smart way, smart way to do! (Narin laughs)
159. S. So this is a smart way, yeah. Fair enough. And then you go on to Kazaa, which is another [pause] . . . this is a case is it?
160. N. Yeah, this case also long, long case, and still go on.
161. S. Did you read this case or not.
162. N. Uh, not really.
163. S. So it hasn’t finished yet, this case?
164. N. but, of course, it’s got (an adequate?) ?????, very good conclusions.
165. S. So who are you . . . but here, for the Kazaa case, [what?] you don’t seem to refer to Kazaa, you are referring to other cases, aren’t you? [what?] Well, here in your discussion of Kazaa you’re referring to [pause] um . . . [twenty four] (Narin’s utterance overlaps entirely with S’s saying the following . .) I don’t know what that one is.
166. N. Twenty four is a (rat? sounds like!) (Twenty four is a reference to the footnote number.) (By?) twenty four.
167. S. Oh, that’s up there, sorry, so twenty five. Yes. [Twenty five]. (Twenty four is actually the last footnote in the previous section on Grokster, not one belonging to this section under discussion on Kazaa.) Here, this is page 12, so here you [Oh . . .] you refer to [yeah, yeah, yeah, yeah] Michael Williams [yeah] (fn25) then Universal (fn26). . . is that this case?
168. N. Aah 26, let’s see where. 26. [yeah, then you refer to 26, Kazaa . . . yeah] Yeah, it’s Kazaa. [So that’s Kazaa] This Kazaa. [That’s Kazaa, even though] Uuh [it’s not in the name.] But, Kazaa is its name of the programme, but the, the, the company is this [oh, it’s the name of the company, yeah]. Yeah.
169. S. Yeah, OK. So then Winson you refer to in K . . . um, um [27?] This is another case, is it? [pause – no reply from Narin] Then you’ve got . . . back to Kazaa (ie Universal Music in fn28) then all these are . . . Oh, what’s this one here, at Order (fn31-34) . . .
End of side one of tape, which creates break in mid-sentence.
231
OK, so just continue here, yes, on page 13, yeah, you refer to the court order (all this was spoken quietly, as if S was as much part talking to himself, then he begins next statement very loudly) And then section 5. Now . . .
170. N. This part uuh (Narin clicks his tongue), you know
171. S. Talk to me about this one, yeah.
172. N. [pause] No idea, generally, just, just, (elector???) After I, I, . . . (I habit?? - very unclear), without this. OK. I have . . . so far I have (sections) 1, 2, 3, 4 [so you . . .] without 5, right? [without 5]. Without 5, OK, I just OK, what I have. OK, of course I know that . . . as you see, if you have that where . . . where, where the draft, my draft right, [uh] right, you saw my draft? [yeah] You can see difference. Just compare [yeah] difference and you know. [I, I will, I will, I’ll . . . ] Did you, did you do? [I haven’t yet . . ] Oh, please do, and you know [I will], you mark(?) my way (Narin laughs) [section 5, or all of it?] (pause, Narin clearly not sure why I’m asking this question) [it. . .] In particular to compare section 5 [4, 4, section 4, you can see different] section 4 [uh, yeah, section 4, section 4] (though Narin seemed slightly hesitant at this point.) You can see different, because [section 4?] section 4 is support to the conclusion because you can just collect the (pro-guarded – sounds like – not provided, I don’t think, because the ‘g’ sound is clear) support of go against my conclusion. So I just put the, the one in support. [pause] [right] yeah. Something like that, lah. [yeah].
173. S. So why did you make the change, between that one and this one? What made you think “oh, I need to change this, I need to put more here”?
174. N. When I, I (sit dun – sounds like, perhaps ‘sit down’!) she(?) didn’t do any more reading, I just OK, what I can, that will be OK, when I do (ras?) OK, I put that first, (side by side? – this is unclear), OK, I got my idea now, OK, and then, I go back to read my assignment. Oops, this something is against this my idea so it very good (Narin laughs) [right] and OK, I, and I realise that “Hey, a book on (anacoater – sounds like???) I have read can support this, so I put that instead of that [yeah] and then, eventually, can support the idea that I have made before. Something like this. Kind of. Mix, mix, mix (Narin laughs)
175. S. Mix, OK, yeah, and then you can . . . because, an, an interesting thing is that um, your lecturer Melissa made comments on this section, on the other sections she just had ticks, but here [yeah, yeah] she made comments [yeah, yeah] which was interesting. [What she said, I forgot] Oh well here, she said [oh yeah, I wrong, I wrong] yeah, they were aware, not ignorant [yeah] and the other one is uuh a suggestion that perhaps what, something you need to explain, [oh, I see] what Sony held. So she’s asking for further development
176. N. Oh, Sony, because I didn’t put many discussion about Sony case. Actually Sony case also relevant [it is relevant?] because it’s about radio [yeah, yeah], radio and peer to peer,
232
why radio can sell, but why peer to peer cannot (Narin gives a little laugh). [right] Because it’s the same thing, that (these two will music buy/supply - this phrase not very clear) [right, right OK, yeah.]
177. S. And um, yeah, and this section too, section 5, it’s called reflection on the litigation, so this is your reflection, isn’t it [yeah, should be] so this is much more . . . now again, before you said this is all other people’s ideas, but this section seems to have more of you in it. [yeah] Do you agree with that?
178. N. I would. Actually it’s my word, but the idea (S speaks, and can’t make it out, but causes a pause from Narin) Of course it’s my word, but it’s from other’s idea, from . . . [other ideas] yeah, not my idea. But it’s my word (he is mildly laughing as he says this) [Right]
179. S. And any ideas here that . . .but you seem to reach conclusions, conclusions of your own, like as, as I mentioned earlier on, the Court makes a decision correctly concerning legal reasoning (on page 15). That seems to be, that sounds like it’s your opinion, as well.
180. N. Because it’s four constraints I . . . from the Lawrence Lessig, right, four constraints. Of course the Court try to push [yeah] push uuh law, law constraints, and make it stronger but, other constraints still, still not follow the Court, it still also strong [right, OK] So it say it say, the court is good, [yeah] but no, look at other constraints, because that idea from Lessig, actually. [From Lessig] yeah [OK, yeah]
181. S. So you seem to agree quite a lot with Lessig.
182. N. Yeah, I agree. I like him (Narin laughs weakly)
183. S. Why is that?
184. N. Really good, lah, really good [yeah] Yeah, he think he . . . (pause, clicking of tongue) He, he say why copyright . . . the term of copyright really long, 70 years old after the author die. So long. You [oh right] . . . You got a letter, you write letter, of course you got copyright, but 70 years (emphasis on years) [70 is it? Yeah] after the author die, after you and me die. Oooh! Long. Without any . . . economical . . . reason. [mm, mm]. And lie(?), and lie(?) [mm],why seventy? [mm] (pause) Why?
185. S. So this is why you agree with him?
186. N. Yeah, he say that [mm], 70 year, where from. [mm] Yeah. [mm] (pause) [That’s interesting] And (other bom - sounds like – alabom) sell, can sell only [pause] only one year, two year, yeah, and longer, this is ten year, OK, but not seventy year (Narin laughs) [yeah] Yeah, seventy year, too long. (Narin laughing)
233
187. S. Oh well, yeah, that’s interesting, yeah. OK, good, so did you enjoy writing this assignment?
188. N. This one I like, but not the patent one.
189. S. Not the Patent one?
190. N. The patent one is dreadful. ???
191. S. Well, well, as I remember, with patent you said that you, you didn’t know why she’d asked the question.
192. N. Yes (said very enthusiastically) Yeah, I said that. I still . . .
193. S. You still feel that. And all you have to do . . . well you weren’t able to find other opinions, you just had the one. There was one . . .
194. N. ACIP [yeah] ACIP [which you used a lot] (As I recall, this is the document that Ann Monotti had referred students to, a document written by a committee investigating the present status of Patent regulation, or something like that.) But ACIP also made a conclusion from many submissions, and the submissions, some have reference, some not. I used the one that had reference, I go on to read the reference that they use. (pause) Yeah [right] I got the idea from that [so you used their references, yeah] Yeah. [yeah] I use that to make my assignment. But eventually it become, like (clicking of tongue) very similar to ACIP. [mm] ACIP report. Uum aah, very difficult.
195. S. Well I would be very interested in you letting me know what grade you get.
196. N. Aah, a pass is enough! (said with great passion!)
197. S. Perhaps even to send me a copy of the final version [yeah yeah yeah]
198. N. A pass is enough! [yeah] Please say to her; don’t let me fail (Narin laughs, S joins in) [good]
199. S. So, well that’s good, and there were other things in here (in the internet essay) that were interesting, but I don’t think we need to discuss it. Your introduction here, you just . . . In the . . .I I was curious, in the introduction you simply said what you are going to do, but you didn’t discuss any issues, you just said ‘I’m going to do this’. [mm] which s. . .
200. N. Because I have, already at first, what I’m going to do, as I say [yeah] so I do this the last
201. S. Ah yes, and you just add, like, what the plan was, yeah. [pause] And then . . . .OK, fine. And these ones here, (shuffling of papers, but I am not quite sure as I transcribe this
234
exactly which part of the text we are now looking at – I think I am flicking through the sections of the paper, and perhaps reflecting on how they fit into the paper as a whole – that is, whether or not the introduction has fulfilled its task sufficiently.) when I was reading this, I wasn’t . . .I read this bit on US copyright law um, and then I got to this, and then I didn’t realise what was happening here, and then I realised, I think, that 2.2, contributory infringement, this is one of the um, this is one of the doctrines, is it? (The doctrines referred to in the opening paragraph to section 2.1)
202. N. yeah
203. S. And this is the other doctrine [yeah] OK. (pause) Yeah, yeah.
204. N. But if if you can understand at first?
205. S. Well, as far as reading this, I read this part in 2.1 under the US copyright law . . . “there are two US copyright law doctrines, which could make the distributors of P2P file sharing software liable for the secondary infringement of copyright” (read from 2.1) and then I began reading 2.2, and I wasn’t sure what this was [Ah, I see, I see] and then I turned the page and saw this, (section 2.2 I think, which I pointed to in Narin’s presence) and I thought “Ahh, this is probably these two law doctrines” [I see, I see] but you hadn’t explained “the first doctrine is this” [yeah, I see, I see, I see I see] (while Narin says this, S keeps saying something, but cannot make it out.) And I was wondering, well here it’s just a reference I suppose, how do you know this? There were two doctrines? (The claim made in paragraph under 2.1) So [I see, [suddenly becomes more emphatic, as though he recognises what I am getting at] I see I see] so, referencing, but Melissa (Narin’s lecturer) wasn’t concerned about that.
206. N. yeah, I think maybe too simple for her. I think? Something like that. (The idea that this is common knowledge, I think he is alluding to here, and that this renders it unnecessary to document a source.)
207. S. Too simple? Well [Narin laughs quite loudly, as though perhaps his statement is not really an explanation] this is a difference, I mean for Melissa this wasn’t a problem, because she knows about this, [yeah, yeah] but for me, not knowing [yeah, yeah] it was a little more confusing [yeah, yeah]
208. N. Some point you think you need reference, but she she did not, she OK.
209. S. Maybe everybody knows that.
210. N. yeah, for for lawyer, for law law student, something like that
211. S. So this is very well known, is it, this idea?
235
212. N. Yeah. Yeah
213. S. That there are two copyright law doctrines.
214. N. Yeah [yeah] I think it is very common idea.
215. S. yeah, yeah, so she . . . yeah. Good, good, um, alright, so structuring the assignment, that was . . so . . .once you started getting ideas, from from the text, from the sources, you found that you, as you say, you were able to describe what the law was, so that made you, um that created the first sections, didn’t it, quite easily, and then (a lot of shuffling of paper as S says this)
216. N. at the first, um, at the first period, uuh, I put this first (a lot of noise from papers being shuffled) and then I [one and two] because this copyright law [ah right] I put law and then description of it [some few words lost because of noise] . . .still, I think I need it (Narin laughs) [right].
217. S. Fine. Good, good. (Now starts Loudly) Alright, good, now let me just have a look to see if there is anything else I want to ask you here. I made some comments as I was reading this [Patent law, patent (laughs) I want a pass] You’re still worried about patent law! [yeah, very concerned] Look, if you want, send me a copy of your final version, I’ll have a quick read through it to see if it looks alright. So I can say “Oh . .
218. N. not so different from you have looked, but I . . . of course, I have correc. . . correct the grammar mistake [ah] that you [ah], that you point out [ah].
219. S. so you did those things, yeah
220. N. And I put something that you think unclear [mm], but didn’t make more argument, or didn’t uuh [pause] [reorganise you say, because . . .] because it . . it gonna be . . . confuse me too [too hard?] too hard, yeah. Of course, if in in Thai, I can stay up all night and ty . . ty.. type it out, confuse myself, but in English, I need to “Is that correct grammatical?” “Oh no!” “Does that read OK?” Oh, dreadful time! (very emphatic on this last comment!)
221. S. So your reorganising and rewriting just takes too much time? [yeah]. Yeah.
222. N. Sometime the point is OK, but I cannot rewrite, because I’m going to die! (Both laugh)
223. S. But you’re still alive, so (laughter) it wasn’t too bad, yeah. (Loudly) OK, well look, just um so, in general, your study here, how has that been, have you enjoyed it? You said when, before we switched the tape on, you said that um now you’ve come to the end of it, you still don’t really know . . is this what you said? You still don’t really know how to, how to write an assignment, or how to approach it. Is that what you said?
236
224. N. Yeah.
225. S. What do you mean by that? (Narin begins to say something but S cuts him off.) You’ve written eight assignments.
226. N. Yeah.
227. S. But you still don’t know how to do it.
228. N. Other students say this too.
229. S. So what do you mean when you say that you don’t know how it, it’s . . . that there isn’t a pattern? There isn’t a . . . [pause]
230. N. Uh, uh,
231. S. That you don’t know the proper way, or
232. N. I think [pause 5 secs] to me, when I want to do . . . [pause 3 secs] If (said emphatically), I think I will feel happy if I know. OK, when I go to to the lecture, I listen, and I can, I can ex expect what she explain. And I scope, scope of uuh, maybe scope of uuh, of . . . of knowledge. (I think ‘scope’ is the word in this sentence.) Then [the scope of knowledge?] The scope of uh . . .OK, I don’t need to go this far because she don’t want to read (this sentence from “I don’t . . .” spoken very quickly, easily and it sounds lightly, with a bit of a smile behind it, and very much in contrast to the slowness and sense of heaviness with which he has been trying to explain why writing is difficult.) She (and then fragments of words). . . I don’t need to go this far because she [then garbled, very fast, I think almost unsaid is “doesn’t want to read”) but when I go to the lecturer, Oh, I so tired, nearly [3 sec pause] don’t understand, anything, at all. I have no idea. When I go back home I know I need to know how the scope, I have to go (every which way?) (This use of ‘scope’ I have noticed in other Thai students; it’s precise use is a bit obscure to me, but I think it more or less substitutes for ‘knowledge’.)
233. S. Aah (said as though S understands suddenly what is going on), so you don’t . . . you haven’t understood enough from the lectures [sometimes] so you haven’t got an idea of what the scope [yeah] of the topic is.
234. N. yeah, so that makes it difficult. (says about five words I can’t pick up) And (pause 2 secs) and you say that sometime you and me no different in, in [pause], in the uuh, no different in terms of our understanding [the reading would be hard, yeah] but I argue that I think that you me are different. I take longer time to understand, I take [yeah, yeah] of course the idea might be simple but [pause] the the the text, I need to read more carefully, and I cannot just lulululululululu like Thai text. I need to OK brbrbrbrbrbr. If I just skip,
237
maybe I cannot understand. So different. [mm, mm] Take a long time [mm]. Uh colourface (?spoken quickly, sounds like) also take a long time. Even colourface (Court case perhaps?) easy easy thing [yeah] in Thai, but become more difficult in English [yeah, yeah].Mm. Yeah, colourface, [yeah] more difficult.
235. S. So, with the different assignments you’ve had, some you’ve enjoyed, some you haven’t enjoyed, this seems . . so, even though they’ve all been . . . um, difficult to do in the sense of writing them [yeah, yeah, yeah] your enjoyment is because of the content is it, because of the [yeah, yeah]
236. N. If if the content made me feel happy, I don’t afraid, I I’m not afraid, to do, bit if uh [pause] if the content make me have no idea [laughs]
237. S. Oh right, so if if you feel you understand the content and you’ve got the content you want, you can do quite well with your assignment. [yeah, and . . . ] you can feel quite confident about your assignment, yeah?
238. N. And I can avoid (harder, or part of) that I cannot explain, but I can go on explain other. But if the content very difficult, I will have two problems, understanding English, and the content. And I cannot go on to explain, that easier for me, but, for example, if I have to read only one article that explain this, but I cannot understand this article because the English very difficult, [mm] what, what can I do more [mm]. Repeat reading. [mm, mm] And still don’t understand, because the English cheap [sounds like?] (laughs) right, Aah (sound of exasperation). Difficult. Oh, tired, [mm] something like that. [mm] So.
239. S. Speaking about that, it’s interesting that when it comes to writing this assignment, I noticed in here a sort of a pattern that works well, where you would explain something, in a section, or a paragraph, you’d explain something, you’d reach a conclusion on it, and then you’d say “Now the next part, I’m going to do this”. So in each of your sections, you explain the problem, or you describe what it is you are talking about, then you make a small comment on it sometimes, or draw a conclusion about it, then you say “now in the next section I will talk about this” so you have a regular pattern there. So it seems as though you do have something of a pattern that helps you to do the writing, even though you say sometimes “look, the writing’s very [Oh] difficult”
240. N. That kind of pattern come from Matthew, Matthew (a language support member of staff Narin worked with in his first semester as PG student.)
241. S. Right so this was suggested to you?
242. N. Yeah. He helped me a lot [yeah, yeah].
238
243. S. That’s good, yeah, yeah, and that helped, yeah. (More empathic now) Alright, good, so um let me just ask you – now, you’ve been here a year now, you’ve studied hard, um you’ve um [don’t want to come back any more, so please pass – reference again to Patent assignment] (both laugh) You don’t want to? [yeah, in the foreseeable future] You’ve had enough study, yeah?
244. N. Yeah, just want come for travel, that’s OK [mm] but not for study. Please don’t make me come back [S chuckles], the lecturer.
245. S. So um [pause] you’ve managed even though it’s been frustrating and there are difficult things, so I’m just wondering what sorts of . . .how did you manage, what kinds of things might have helped you to [what do you mean] survive. . . well, to manage your study. Did you get a lot of support from lecturers? You had some help form Matthew. Did you discuss with other students? Um [No] it must be very hard coming to a new country and writing assignments and listening to lectures in [yeah yeah yeah] English?
246. N. It make my life uh worse. (Anyway?), when I came here, I haven’t done any sports [and you usually do, yeah?] usually do, but haven’t done any, here. [yeah, yeah]. I have my pleasure time, but not really here (N giggles) [really?] yeah, not good.
247. S. So you’ve really worked and studies hard?
248. N. Ah yeah (he speaks this quite loudly, in contrast to the comments about from ‘it make my life uh worse’ which were spoken in very subdued ones) but . . . when you feel tired, and want, want to do something for relaxing (pause) but here, no, I just did nothing, stay home. Read news (N laughs) [right]. Yeah, yeah. My hab . . . my hobby is reading news (laughs) [yeah, yeah]. Not read sport, go out for dinner, no. Reading news [ah right] boring, so I ?????.
249. S. Did you stay in a place with other people? [yeah, yeah, yeah]. (a 3 sec pause) [Because . . .] Thai people, or . . .?
250. N. Yeah, Thai people. But because of I’m Thai, so do nothing, better. (Sounds like this is what he says.) [yeah, yeah] Better than go out and has (? sounds like)
251. S. So when you were stuck, or frustrated, or weren’t quite sure if you were doing the right thing, or [yeah, yeah, yeah – spoken as though he recognises what I am talking about!] could you get help, did you find you could . . . [pause]?
252. N. I cannot just say “oh, I have a small point here, could you help me, blah blah blah”. No. No. I have to have really concrete idea and the problem is [pause] the problem I have [pause] should show something that I understand something, that I need just only a little bit trigger to go on [mm] so I can’t say “oh what is this general idea, help me please”. Ha. [this
239
is your lecturer, you mean, talking to your lecturer] yeah, yeah, yeah. But of course my colleagues, friends, cannot help, because different topic sometime.
253. S. So you didn’t discuss with other students?
254. N. Different topics. How can he help? Different topic, so, I didn’t do that, can’t help me. I couldn’t help him, too.
255. S. So, so in all of your, and this internet one particularly, you were not able to discuss . . . ?
256. N. Just say, “Oh, I’m reading this, man. (giggles) I’m reading this, this book is very fun. It’s good, you know. What are you reading? Oh, good, good, good, good. OK. Go on. Bye bye.” [yeah, yeah] But not . . .cannot help each other, cannot.
257. S. So it sounds like you had to work alone, very much.
258. N. In Thailand, of course, if I do an assignment in Thai, “hey man, I’m doing this, what should I read?” He can help.
259. S. Whose that, the lecturer, or your friend?
260. N. My friend. [your friend] Yeah, right, “Oh, I have read this? Did you read this? Oh, it helpful you know.” That we can, because I have network [yes] network (N laughs mildly) [yes] Call this man, I can call him . . . I can call my, my uh [pause] my boss, for example, because I have been training, right [yeah] for example can call my boss, “I am doing this, could you, do you have any idea about this?” Of course I can call, (right in here, outcome(?) – unclear)
261. S. So there’s nobody you can . . . there were no friends you could call on really? [yeah] yeah. No one, yeah.
262. N. Not really, yeah, [yeah] yeah. Sometimes if, for example, if I have the same topic, with other student, I think sometimes, it’s worse, because other student call me [right], and “did you do this?” uh “what you read?”. If I tell him, oh, the article, the assignment become very similar, and [yeah] I don’t think the lecturer like it. [yeah] Right, because the same. [yeah] While you refer to the same thing, so you [yeah] just copy. [yeah] So, oh, stressful.
263. S. So do you think not having a network can make quite a difference to the quality of your assignment? [Pardon?] Not having a network of friends here [no, no, no, no, I mean] means it is harder, or . . .?
264. N. Should have a network of uh uh [pause] trustable friends (laughs – spoken slowly, as though thoughtfully) [trustable friends]. Some, some friends just want to know what I am
240
doing, and get the resource and idea from me. [right] That really dangerous, aaah, and make me feel worse here [yeah, oh right]. Understand? [yeah] yeah. (pause) [yeah, well that’s uuh interesting . . . – S not quite sure what else to say here, I think]
265. S. Alright, yeah, so any other thoughts about your time . . . have you enjoyed being here over all? Has it been a good experience?
266. N. Yeah, quite a time that don’t think I can go out and enjoy a . . . (both laugh)
267. S. So the free time?
268. N. yeah, free time of course. I say, if I come for ever for ???, it’s going to be good, but if for study, not really good. [yeah, fair enough]
269. S. Well OK, Narin, well look, thanks very much. I think that um that um we have covered most sort of things I had in mind. Um, if there is anything else you want to say about your study here.
270. N. Yeah, just want to go back home. Just say to Ann Monotti (his Patent’s lecturer) to me [say?] say, let me pass, don’t make me come back! [oh – laughs] Just say [OK]
271. S. You sound very worried about the Patent assignment.
272. N. Just because the last one. [yeah] I don’t want to feel, I don’t want to feel I’m stupid, just because the last one I fail.
273. S. Did you have an exam in that subject? Yes you did. [Pardon] You had an exam, didn’t you? [yeah, I finish] yeah.
274. N. I did quite well, I think, in the exam, so I feel a bit confident for the exam, but for the assignment, I’m not really.
275. S. But you really think you might fail the assignment? Do you really [not really] think that?
276. N. If . . . for the standard (last word not clear)
277. S. What do you really think you’ll get?
278. N. (pause) I expect only C. A p, but I uh expect C but [right] I don’t think . . . but I don’t think lecturer going to fail me easily, but I just worry, if she tough, who knows, if she tough or no, something like that. Because (pause) [I think Ann is quite nice really – spoken quietly] yeah, yeah, yeah, (laughs) [yeah]
Tape is stopped at this point. End of this interview.
241
Bibliography
Abasi, A. and Akbari, N. (2008) ‘Are we encouraging patchwriting? Reconsidering the role of the pedagogic context in ESL student writers’ transgressive intertextuality’. English for Specific Purposes, 27, 267-284.
Abasi , A., Akbari, N., and Graves, B. (2006). Discourse appropriation, construction of identities, and h complex issue of plagiarism: ESL students writing in graduate school’. Journal of Second Language Writing 15, 102-117.
Allen, G. (2000). Intertextuality. London, Routledge.
Angelil-Carter, S. (2000). Stolen Language? Plagiarism in Writing. Harlow, Pearson.
Baker, C. (2004), ‘Membership categorization and interview accounts’, in Silverman, D. (ed).
Bakhtin, M.M. (1981). The dialogic Imagination: Four essays. Austin, The University of Texas.
Bakhtin, M.M. (1986). Speech Genres and other late essays. Austin, University of Texas.
Bakhtin. M.M. (1993). Towards a Philosophy of the Act, Austin, University of Texas Press.
Barthes, R. (1997a). ‘The death of the author’ in Image, Music, Text. New York, Noonday Press.
Barthes, R. (1997b). ‘The grain of the voice’ in Image, Music, Text. New York, Noonday Press.
Barton, D., Hamilton, M., and Ivanic, R. (2000) Situated Literacies: reading and writing in context, London, Routledge.
Barton, D. and Tusting, K. (eds) (2005). Beyond Communities of Practice. Cambridge, Cambridge University Press.
Bazerman, C. and Russell, D. R. (2003), Writing Selves/Writing Societies, http://wac.colostate.edu/books/selves_societies/
Benesch, S. (2001). Critical English for Academic Purposes: Theory, politics, and practice. Mahwey, NJ, Lawrence Erlbaum.
Bhabha, H. (1994). The Location of Culture. London, Routledge.
242
Bhatia, V.K. (1993). Analysing Genre: Language use in professional settings. Harlow, Longman.
Biesta, G. (2004). ‘The community of those who have nothing in common: Education and the language of responsibility’. Interchange 35(3), 307-324.
Bourdieu, P (1990), The Logic of Practice, Cambridge, Polity Press.
Braxley, K. (2005). ‘Mastering Academic English: International Graduate Students’ Use of Dialogue and Speech Genres to meet the Writing Demands of Graduate School’ in Hall, J.K., Vitanova, G. and Marchenkova, L. (eds) Dialogue with Bakhtin on Second and Foreign Language Learning. Mahwah, NJ, Lawrence Erlbaum.
Butler, J. (1997a). Excitable Speech: A politics of the performative. London, Routledge.
Butler, J. (1997b). The Psychic life of power: Theories in subjection. Stanford, Stanford University Press.
Calhoun, C (1995) Critical Social Theory, Oxford, Blackwell.
Candlin, C. and Plum, G. (eds) 1998. Researching Academic Literacies. Sydney, NCELTR.
Carrell, P., Devine, P. and Eskey, D. (1998). Interactive approaches to Second Language Reading. Cambridge, Cambridge University Press.
Cazden, C. (1989), ‘Contributions of the Bakhtin Circle to ‘Communicative Competence’’, Applied Linguistics, 10/1, pp116-127.
Chandrasoma, R., Thompson, C. and Pennycook, A. (2004). ‘Beyond plagiarism: Transgressive and nontransgressive intertextuality’. Journal of Language, Identity and Education, 3(3), 171-193.
Christie, F. (1999), ‘Genre theory and ESL teaching: a Systemic Functional Perspective’, TESOL Quarterly, 33/4, 759-763.
Clark, R. (1992). ‘Principles and practice of CLA in the classroom’, in Fairclough, N.,( ed) Critical Language Awareness. Harlow, UK, Longman.
Denzin, N.K. (1991). ‘Representing lived experiences in ethnographic texts’. Studies in symbolic interaction, 12, 59-70.
Derrida, J. (1980). ‘The Law of Genre’. Glyph 7 (Spring, 1980).
Derrida, J. (1987). The Post Card. Chicago, Chicago University Press.
243
Derrida, J. (1988). ‘Signature Event Context’ in Limited Inc. Illinois, Northwestern University Press.
Derrida, J. (1990). ‘The Force of Law: the mystical foundations of authority’. Cordoza Law Review, Vol 11, 920-1046.
Derrida, J. (2005). Sovereignties in Question: The poetics of Paul Celan. New York, Fordham University Press.
Eggins, S. (1994). An Introduction to Systemic Functional Linguistics. London, Pinter.
Fairclough, N. (1992a). Discourse and Social Change. Cambridge, Polity.
Fairclough,N. (ed) (1992b). Critical Language Awareness. London, Longman.
Fink, B. (1995). The Lacanian Subject: Between Language and Jouissance. Princeton NJ, Princeton University Press.
Foucault, M. (1972). The Archaeology of Knowledge. London, Tavistock.
Foucault, M. (1980). Power/Knowledge: Selected Interviews and other Writings, 1972-1977. London, Harvester Press.
Foucault, M. (1983). The Order of Things: An Archaeology of the Human Sciences. New York, Vintage.
Freadman, A. (1994). “Anyone for Tennis?’ in Freedman, A. and Medway, P. Genre and the New Rhetoric. London, Taylor and Francis.
Freedman, A. (1999). “Beyond the text: Towards understanding the teaching and learning of genres. TESOL Quarterly 33/4, 764-768.
Freedman, A., 1994, ‘Do as I say: The Relationship between Teaching and Learning New Genres’ in Freedman, A. and Medway, P. (eds). Genre and the New Rhetoric, London. Taylor and Francis.
Freedman, A. (1987). ’Learning to write again: Discipline-specific writing At University’. Carleton Studies in Applied Language Studies 4, 95-116.
Freedman, A. and Medway, P. (eds). (1994). Genre and the New Rhetoric, London. Taylor and Francis.
Gass, S.M. and Selinker, L. (1994). Second Language Acquisition: An introductory course, New Jersey, Lawrence Arlbaum Associates.
244
Gee, J.P. (1996) (Second ed). Social Linguistics and Literacies: Ideology in discourse. London, Taylor and Francis.
Gee, J.P. (2005). An Introduction to Discourse Analysis (2nd ed). Oxford, Routledge.
Gibbons, J. (ed) (1994) Language and the Law. London, Longman.
Goodrich, P. (1987). Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis. London, Macmillan.
Goodrich, P. (1990). Languages of Law: From Logics of memory to nomadic tasks. London, Weidenfeld and Nicolson.
Hall, J. K. (1995). ‘(Re)creating our Worlds with Words: A Sociohistorical Perspective of Face-to-face Interaction’. Applied Linguistics 16/2, pp206-232.
Hall, J. K., Vitanova, G., and Marchenkova, L. (2005). Dialogue with Bakhtin on Second and Foreign Language Learning: New perspectives. London, Lawrence Erlbaum.
Halliday, M.A.K. (1994) (2nd ed). An introduction to functional grammar. London, Edward Arnold.
Hirschkop, K. (1992). ‘Is dialogism for real?’. Social Text, 30, pp102-113.
Holland, D., Skinner, D., Lachicotte, W., Cain, C. (1998). Identity and Agency in cultural worlds. Boston, Harvard University Press.
Holquist, M. (1990). Dialogism: Bakhtin and his world. London, Routledge.
Howard, R.M. (1995). Plagiarisms, authorships and the Academic Death Penalty’, College English 57, 788-806. Hyland, K. (1999). ‘Academic attribution: Citation and the construction of disciplinary knowledge’. Applied Linguistics 20(3), 341-367.
Hyland, K. (2002). ‘Genre: Language, Context, and Literacy’. Annual Review of Applied Linguistics, 22, 113-135.
Hyland, K. (2005a). ‘Stance and engagement: a model of interaction in academic discourse’. Discourse Studies 6(2), 173-91.
Hyland, K. (2005b). Metadiscourse. London, Continuum.
Ivanic, R. (1998). Writing and identity: the discoursal construction of identity in academic writing. Amsterdam, John Betjamins.
245
Jager, S. (2001). ‘Discourse and Knowledge: theoretical and methodological aspects of a critical discourse and dispositive analysis’, in Wodak, R. and Meyer, M. Methods of Critical Discourse Analysis. London, Sage.
Jones, C., Turner, J. and Street, B. (eds) (1999). Students Writing in the University: Cultural and Epistemological Issues. Philadelphia, John Benjamins.
Kamler, B. (2001). Relocating the personal: A critical writing pedagogy. Albany, NY, State University of New York Press.
Kamler, B. and MacLean, R. (1996). ‘You can’t just go to Court and move your body: First-year students learn to write and speak the Law’. Law, Text, Culture, 3, 176-209.
Kearney, R. and Dooley, M. (1999). ‘Chapter 6 ‘Hospitality, Justice and responsibility: A dialogue with Jacques Derrida’ in Questioning Ethics: contemporary debates in philosophy. London, Routledge.
Kramsch, C. (2000). ‘Social discursive constructions of self in L2 learning’, in Lantolf, J. P. (ed).
Krashen, S.D. (1981). Second language acquisition and second language learning. Oxford, Pergamon Press.
Kress, G. (1989). Linguistic processes in sociocultural practice. Oxford, Oxford University Press.
Krever, R. (1998). Mastering Law Studies and Law Exam Techniques. Sydney, Butterworths.
Kristeva, J. (1980). ‘From one identity to another’ in Desire in Language. Columbia University Press.
Kristeva, J. (1986a). ‘The system and the speaking subject’ in Moi, T. (ed) The Kristeva Reader. Oxford, Blackwell.
Kristeva, J. (1986b). ‘Word, dialogue and Novel’. In Moi, T. (ed), The Kristeva Reader. Oxford, Blackwell.
Laclau, E. (1990). New Reflections on the Revolution of our Time. London, Verso.
Laclau, E. (1996). Emancipations. London, Verso.
Laclau, E. (2000). In Contingency, Hegemony, Universality: Contemporary dialogues on the Left, Judith Butler, Ernesto Laclau and Slavoj Zizek, London, Verso.
Laclau, E. (2005). On Populist Reason. London, Verso.
246
Lantolf, J. P. (ed) (2000). Sociocultural Theory and Second Language Learning. Oxford, Oxford University Press.
Latour, B. (1999). Pandora’s Hope: Essays on the Reality of Science Studies. London, Harvard University Press.
Lea, M. (2005). ‘’Communities of practice’ in Higher Education: useful heuristic or educational model?’ in Barton, D. and Tusting, K. (eds) Beyond Communities of Practice. Cambridge, Cambridge University Press.
Lea, M. and Stierer, B. (eds) (2000). Student Writing in Higher Education. Buckingham UK, SRHE and Open University Press.
Lea, M. and Street, B. (1998). ‘Student writing in Higher Education: an academic literacies approach’. Studies in Higher Education 23(2), 157-172.
Lillis, T. (2001). Student writing: access, regulation, desire. London, Routledge.
Lillis, T. and Turner, J. (2001). ‘Student Writing in Higher Education: contemporary confusion, traditional concerns’. Teaching in Higher Education, 6/1.
Lin, A.M.Y. and Luk, J.C.M. (2005). ‘Local Creativity in the Face of Global Domination: Insights of Bakhtin for Teaching English for Dialogic Communication’ in Joan K. Hall, G. Vitanova and L. Marchenkova (eds) Dialogue with Bakhtin on Second Language and Foreign Language Learning. Mahwah N.J, Lawrence Erlbaum.
Liu, D. (2005). ‘Plagiarism in ESOL students: is cultural conditioning truly the major factor?’ in ELT Journal 59/3.
MacLachlan, G. and Reid, I. (1994). Framing and Interpretation, Melbourne, Melbourne University Press.
Maley, Y, (1994), ‘The Language of the Law’. In Gibbons, J. (ed) Language and the Law. London, Longman.
Martin, J.R. and Rose, D. (2007). Working with Discourse: Meaning beyond the Clause. London, Continuum.
Massey, D. (2003). ‘Imagining the field’, in Pryke, M., Rose, G. and Whatmore, S. (eds).
Maybin, J. (2005). ‘The new literacy studies: Context, intertextuality and discourse’, in Barton, D., Hamilton, M. and Ivanic, R. (eds) Situated Literacy: Reading and writing in context. London, Routledge.
247
Mertz, E. (2007). The language of Law School: Learning to ‘think like a lawyer’. Oxford, Oxford University Press.
Miller, C., (1984a). ‘Genre as Social Action’, in Freedman, A. and Medway, P. (eds).
Miller, C., (1984b). ‘Rhetorical Community: The cultural Basis of Genre’, in Freedman, A. and Medway, P. (eds).
Miller, J. and Glassner, B. (2004), ‘The “inside” and the “outside”: finding realities in interviews’, in Silverman, D. (ed).
Mishler, E.G. (1986), Research interviewing: context and narrative, Cambridge Ms, Harvard University Press.
Morris, G., Cook, C., Creyke, R., Geddes, R., and Holloway, I. (1996). Laying Down the Law: The foundations of legal reasoning, research and writing in Australia. Sydney, Butterworths.
Norris, C. (1982). Deconstruction: Theory and Practice. London, Methuen.
Norton, B. (2000). Identity and Language Learning. London, Longman.
Oullette, M.A. (2008). ‘Weaving strands of writer identity: Self as author and the NNES “plagiarist”’. Journal of Second Language Writing, 17, 255-273.
Pecorari, D. (2003). ‘Good and original: Plagiarism and patchwriting in academic second language writing’. Journal of Second Language Writing, 12, 317-345.
Pennycook, A. (1996). ‘Borrowing others’ words: text, ownership, memory and plagiarism’. TESOL Quarterly, 30/2, 201-230.
Pennycook, A. (2007). Global Englishes and Transcultural Flows. Abingdon, Routledge.
Petric, (2007). ‘Rhetorical functions of citations in high- and low-rated master’s theses’. Journal of English for Academic Purpose, 6, 238-253.
Price, S. (1996). ‘Comments on Bonny Norton Peirce’s “Social Identity, Investment and Language Learning”’; TESOL Quarterly 30:2, 331-7.
Price, S. (1999). “Critical Discourse Analysis: Discourse Acquisition and Discourse Practices”; TESOL Quarterly 33:3, 581-595.
Price, S. (2003). “Performative acts and the acquisition of discourse”, published in the proceedings of the international Knowledge and Discourse 2 Conference, Hong Kong University, Hong Kong, June 25-29, 2002. http://ec.hku.hk/kd2proc/proceedings/fullpaper/Theme6FullPapers/PriceSteven.pdf
248
Price, S. (2008a). “The discursive construction of the relationship between student and text in student academic writing” in Chen, Honglin and Cruickshank, Ken (eds) Making a difference: challenges for Applied Linguistics. Cambridge, Cambridge Scholar Publishing.
Price, S. (2008b). Review of “Metadiscourse” by Ken Hyland (2005). Australian Review of Applied Linguistics 31/1.
Prior, P. (1998). Writing/Disciplinarity: a sociohistoric account of literate activity in the academy. Mahwah, NJ, Larence Erlbaum.
Prior, P. (2001). ‘Voices in text, mind and society: Sociohistoric accounts of discourse acquisition and use’, Journal of Second Language Writing, 10, 55-81.
Prior, P. and Shipka, J. (2003), ‘Chronotopic Lamination: Tracing the contours of Literate Activity’ in Bazerman, C. and Russell, D. R.
Pryke, M., Rose, G. and Whatmore, S. (eds) (2003), Using Social Theory: Thinking through research, London, Sage.
Ramanathan, V. and Atkinson, D., (1999). ‘Individualism, academic writing and ESL students’, Journal of Second Language Writing, 8, 45-75.
Ramanathan, V. and Kaplan, R. (2000). ‘Genres, Authors, Discourse Communities: Theory and Application for (L1 and) L2 Writing Instructors, Journal of Second Language Writing 9 (2) 171-191.
Raymond, J.C. (1989). ‘Rhetoric as bricolage: Theory and its limits in legal and other sorts of discourse. In Mabelone, C.B. (ed) Worlds of Writing. New York, Random House.
Ryle, G. (1949) The Concept of Mind, Harmondsworth, Penguin.
Saussure, F (1983), (Translated and annotated by Roy Harris), Course in General Linguistics, London, Duckworth.
Silverman, D. (ed) (2004) Qualitative Research: Theory, Method and Practice (2nd ed). London, Sage.
Smith, D. (1999). Writing the social: critique, theory and investigations. Toronto, University of Toronto Press.
Spivak, G. (1976). ‘Translator’s Preface’ to Derrida, J. Of grammatology. Baltimore, John Hopkins University Press.
Stronach, I. & MacLure, M. (1997). Educational Research Undone: The Postmodern Embrace. Open University Press, Milton Keynes.
249
Swales, J.M. (1990). Genre analysis. Cambridge, Cambridge University Press.
Swales, J. (1998). Other Floors, Other Voices: A textography of a small university building, Mahwah N.J, Lawrence Erlbaum.
Swales, J.M. and Feak, C.B., (2004). Academic Writing for Graduate Students. Ann Arbor, The university of Michigan Press.
Taylor, Charles (1995). “To follow a rule”, in Philosophical arguments. Harvard University press; Cambridge Ms.
Threadgold, T. (1997a). Feminist Poetics: Poiesis, performance, histories. London, Routledge.
Threadgold, T. (1997b). ‘Performativity, Regulative Fictions, Huge stabilities: Framing Battered Woman’s Syndrome. Law, Text, Culture, 3, 210-231.
Valentine, K. (2006). ‘Plagiarism as Literacy Practice: Recognising and rethinking ethical boundaries’. College Composition and Communication, 58 (1), 89-109).
Vice, S. (1997). Introducing Bakhtin. Manchester, Manchester University Press.
Wallace, C. (1992). ‘Critical literacy awareness in the EFL classroom’, in Fairclough, N.,( ed) Critical Language Awareness, Harlow, UK, Longman.
Widdowson, H.G. (1995). ‘Discourse analysis: A critical review’. Language and Literature, 4(3), 157-172.
Widdowson, H.G. (2004). Text, Context, Pretext: Critical Issues in Discourse Analysis. Oxford, Blackwell.
Wodak, R., (2001). ‘What CDA is about – a summary of its history, important concepts and its development’, in Wodak, R. and Meyer, M. Methods of Critical Discourse Analysis. London, Sage.
Wodak, R. and Meyer, M., (2001). Methods of Critical Discourse Analysis. London, Sage.
Zizek, S. (1989). The Sublime Object of Ideology. London, Verso.
Zizek, S. (1990). ‘Beyond Discourse Analysis’ in Laclau, E. New Reflections on the Revolution of our Time. London, Verso.
Zizek, S. (1999). The Ticklish Subject. London, Verso.