Polyphonic Legality: Power of Attorney Through Dialogic Interaction
| Date | 01 October 2019 |
| Author | Rosie Harding,Elizabeth Peel |
| DOI | 10.1177/0964663918803409 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(5) 675–697
Polyphonic Legality: Power
ª The Author(s) 2018
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of Attorney Through
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DOI: 10.1177/0964663918803409
Dialogic Interaction
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Rosie Harding
University of Birmingham, UK
Elizabeth Peel
Loughborough University, UK
Abstract
Building on Bakhtin’s work on discourse, this article uses the concept of polyphony to
explore capacity law praxis. Drawing on everyday interaction about power of attorney,
we demonstrate how legal, lay and medical understandings of capacity operate dialogi-
cally, with each voice offering distinct expressions of legality. Analysing lay and medical
interactions about Lasting Power of Attorney – the legal authority to make decisions on
behalf of a person who loses the mental capacity to make their own decisions – we argue
power of attorney holds a ‘polyphonic legality’. We argue that legal concepts (like power
of attorney) are constructed not solely through official law but through dialogic inter-
action in their discursive fields. We suggest ‘polyphonic legality’ offers an innovative
approach to understanding how law works in everyday life, which is attentive to the rich
texture of legality created by and through the multiple voices and domains of socio-legal
regulation.
Keywords
Capacity law, conversation analysis, dementia, law in action, polyphony, power of
attorney
This article explores the ways that discourse around Lasting Power of Attorney (LPA)
under the Mental Capacity Act 2005 (MCA) interacts with the formal legal framework to
explore the everyday praxis of capacity law. Power of attorney is a mechanism by which
Corresponding author:
Rosie Harding, Birmingham Law School, University of Birmingham, Edgbaston, Birmingham, B15 2TT, UK.
Email: r.j.harding@bham.ac.uk
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Social & Legal Studies 28(5)
people who anticipate losing cognitive ability (the donor) can nominate a third party (the
attorney or donee) to make legally binding decisions on their behalf. Decisions made and
actions taken by an attorney are considered in law to be undertaken by the donor. In
English law, two types of LPA are available, covering either personal welfare issues or
property and affairs.1 Multiple attorneys can be appointed, to act either jointly or sev-
erally, and different attorneys can be appointed to each ‘type’ of LPA. A donor can grant
specific or wide powers to the donee, within the formal constraints of the law. At the end
of March 2017, there were 2,478,758 current power of attorney documents on the
register held by the Office of the Public Guardian (OPG, 2017: 12). Despite being such
a commonplace legal tool, the concept and practice of power of attorney has received
surprisingly little attention from socio-legal scholars. A small literature exists that dis-
cusses elements of the legal context and content of power of attorney (e.g. Dalley et al.,
2017; Samanta, 2009, 2012), but most of the legal literature on this topic is doctrinally or
practice oriented (e.g. Edwards, 2016; Rich, 2015).
We provide a critical interrogation of the socio-legal milieu of power of attorney,
which we understand as a mechanism to ensure the right to enjoy legal capacity for
persons with impaired mental capacity (Harding, 2015). This article offers analysis of
naturalistic interaction about getting and granting LPAs in three different settings: a
focus group, an informal lunch and in two memory clinic appointments. Through this
analysis, we build on the concept of polyphony (Bakhtin, 1984) to offer a reading of the
multiple voices that combine to create the socio-legal totality of power of attorney. We
show how different constructions of power of attorney are present in these settings and
also how these formulations do not always align with the statutory frameworks that guide
the granting, and using, of powers of attorney.
To facilitate the reading of these multiple voices, we offer a new conceptual frame for
socio-legal studies, ‘polyphonic legality’, as a tool for exploring the myriad strands of
engagement, construction and interpretation that mesh together to create the everyday
praxis of legal concepts. In suggesting that the concept of polyphony has explanatory
purchase in socio-legal theory, we seek to build on the foundations provided by the rich
seam of socio-legal work that stems from constitutive approaches to law (Fleurry-Steiner
and Neilsen, 2006; McCann, 1994). These socio-legal approaches seek to explore how
and why law is understood, mobilized and resisted in everyday life. A major strand of
this constitutive scholarship has used the frame of legal consciousness studies (e.g.
Cowan, 2004; Ewick and Silbey, 1998; Harding, 2011), an approach to understanding
how law works in everyday life which also seeks to interrogate legal hegemony and
expose the enduring power of official law (e.g. Sarat, 1990; Silbey, 2005). Our under-
standing of polyphonic legality engages with, and develops, these constitutive
approaches to law. But rather than focus on what everyday engagement with law means
for formal legal frameworks, we seek to expose the multiple strands of legality that
combine to create the everyday experience of regulatory frameworks. Polyphonic leg-
ality is also attentive to the plurality of norms that shape the experience of law outside
formal legal institutions. It therefore contributes to critical pluralist accounts of law
which seek to break down the boundaries between formal law and other normative
frameworks which shape and guide social action (e.g. Davies, 2017).
Harding and Peel
677
We begin by setting out how we use the concept of ‘polyphony’ to cast light on the
content and meaning of everyday talk about power of attorney. We then provide an
argument for the importance of interrogating ‘polyphonic legality’ to gain a greater
understanding of the complex ways that law works in everyday life. Next, we outline
the contexts in which the data we analyse were collected, and the challenges and advan-
tages of analysing naturally occurring talk. In the third part of the article, we analyse the
talk itself, exposing the content and form of discourses of power of attorney, demon-
strating how the polyphonic legality of power of attorney is generated. We conclude with
a discussion of the implications of polyphonic legality in mental capacity law and socio-
legal studies.
Polyphonic Legality
In the analysis that follows, we seek to demonstrate that power of attorney holds a
‘polyphonic legality’, by which we mean that power of attorney is constructed not by
the rules set out in official law but through the interplay of distinct voices, operating in a
dialogic manner. The voices that we focus on in our analysis of power of attorney are
found in lay and medical interactional contexts. We argue that the different ways power
of attorney is constructed by these voices weave together to create the polyphonic
legality of power of attorney. Polyphonic legality, as we understand it, has a discursive
and constructionist epistemology. In suggesting it as a tool for socio-legal studies, we
explicitly seek to expose how dialogue – the discussion, description and explanation of
legal concepts in everyday praxis – shapes the meaning of those concepts. In this section,
we set out our understanding of polyphony, before exploring what polyphonic legality
adds to constitutive approaches to socio-legal studies.
The Concept of Polyphony
Bakhtin (1984) used the concept of polyphony in his analysis of Dostoevsky’s poetics.
He argued that:
Dostoevsky . . . creates . . . A plurality of independent and unmerged voices and conscious-
nesses, a genuine polyphony of fully valid voices . . . a plurality of consciousnesses, with
equal rights and each with its own world, combine but are not merged in the continuity of
the event. (Bakhtin, 1984: 6, original emphasis)
A key component of Dostoevsky’s polyphonic novel, according to Bakhtin, is that it is
‘dialogic’. By this, he means that ‘it is constructed not as the whole of single conscious-
ness, absorbing other consciousnesses as objects into itself, but as a whole formed by the
interaction of several consciousnesses, none of which entirely becomes an object for
the other’ (Bakhtin, 1984: 18). Polyphony, following Bakhtin, requires us to think of the
product of different voices as retaining those voices within it. Rather than each ‘con-
sciousness’ fusing together into a new whole, and therefore erasing the individual con-
stitutive voices, polyphony retains the distinct voices that come together to create it.
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Social & Legal Studies 28(5)
This analysis can be borrowed by socio-legal scholars to help us to understand the
ways that legal concepts or tools develop and change through everyday dialogic inter-
action about them. We use power of attorney as an example of this polyphonic legality.
In the analysis that follows, we show how power of attorney derives not solely from its
doctrinal legal underpinnings, but rather is constructed through dialogue between and
within the different registers of everyday interaction, medical interaction and legal rules.
In asserting the polyphonic legality of power of attorney, we seek to demonstrate that the
formal legal construction of power of attorney is one voice in many. Further, following
Bakhtin, and this is key to unlocking the novelty of polyphonic legality for socio-legal
studies, we argue that this ‘official’ legal voice has no more importance in ‘power of
attorney’ than the other voices that make up...
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