kheru2006 (kheru2006) wrote,

Law and the language

Lawyers and lecturers of language and literature have much in common. Both are word merchants.

LAW is a profession of words. Language is the essential tool of every legal enterprise.

Likewise, litterateurs breathe new life into words and phrases and interpret or infuse meanings that are not so apparent.

The link between law and language deserves a closer study by our language and law faculties. An interdisciplinary course in Law and Literature must be devised to achieve some of the following aims:

Personifying life

Literature’s business is human drama. It provides insights into the human condition. Its tools are words and ideas. Likewise, law cannot be interpreted or understood in isolation. It must be plugged into a large cultural, philosophical or social science context to give it value and meaning.

Given law’s link with life, and literature’s supreme ability to mirror life, it is important that law staff and students must have some immersion in the outstanding literature of the age.

Being steeped in literary works, especially those that have legal themes, will sharpen lawyering skills for court room dramas.

Fluidity of language

There is fluidity in both legal and literary languages and mutability of meanings in all texts whether literary or legal. Writers and interpreters of literature play fast and loose with words and add colours and depth to the literary canvas.

Lawyers do the same. Their claim to promote simplicity, clarity and certainty cannot deny the existentialist reality of the open-texture, glorious uncertainty of legal language. As Justice Holmes once said, “a word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used”.

The recognition of the fluidity of legal language, the mutability of meaning in all texts whether literary or legal, and the many possibilities of interpretation will indicate how much lawyers and linguists share a common ability to interpret words creatively, socially, morally and contextually. 

Art of interpretation

Interpretation is an art, not a science. With ease, lawyers can twist words and meaning as they please. No poet ever interpreted nature as freely as a lawyer interprets the truth! The vast possibilities and openness of interpretation techniques give to lawyers and judges a power over our lives that is generally not acknowledged.

Likewise, a literary critic can embellish or diminish a written work by his creative interpretation.

How to write well

George Orwell once wrote that “good prose is like a window pane”. What he meant was that when people read good writing they see whatever the author was trying to convey. Legal writing must emulate this advice. Good legal writing or legal oratory must exhibit some essential qualities. It must be clear. It must be concise. It must be logically consistent and coherent with the whole body of law. It must be engaging. It must be elegant, beautifully written and aesthetic in nature.

The last quality is rare but not unknown. And, like all arts, it can be cultivated. One has to write from the heart. Only then will the words carry the colour and warmth of their birthplace. Perhaps some law teachers and language lectures must come together to prepare an anthology of beautiful legal prose from some masters of the craft.

Law as literature is a rare phenomenon but not unknown. As Joseph Baron says: “Even as there are laws of poetry, so there is poetry in law”. When in the slavery case of Somerset v Stewart (1772) Lord Mansfield intoned that “the air of England has long been too pure for a slave, and every man is free who breathes it” he was not only contributing to the law but also to legal prose. He enriched the annals of law as well as literature.

Regrettably, university-level language courses for law students in Malaysia rarely inculcate the qualities of good writing. Much of the time of lecturers is spent in remedying seminal flaws of grammar and construction that should have been corrected at primary or secondary level.

Teaching students to write simply

Lawyers are, on the one hand, among the most eloquent users of the language while on the other its most notorious abusers. Most lawyers seem incapable of writing an ordinary, comprehensible sentence in a contract, deed or will.

The joke is that the minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer!

Law faculties should encourage law students and legal draftsmen to break free of the tradition of verbosity, technicality, convoluted legalese, legal claptrap and gobbledygook. 

Relying on humour

The law is normally no laughing matter. Actually it teems with humour. The English judge Lord Evershed, discussing a standard form of contract, is reported to have said: “This contract is so one-sided that I am astonished to find it written on both sides of the paper”.

Peter Tiersma in his book The Nature of Legal Language quotes a Florida Ordinance that required dancers to cover their buttocks. So it deemed it prudent to define buttocks as precisely as it could :

“The area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top of such lines being one-half inch below the top of the vertical cleavage of the nates (i.e. the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom line being one-half inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the gluteal fold) and between two imaginary lines, one on each side of the body...”

As you can see, teaching law is not all dreary and dull! Much depends on who is teaching it and what is being taught! 

REFLECTING ON THE LAW BY SHAD SALEEM FARUQI is Emeritus Professor of Law at UiTM. The STAR Online Home News Opinion Thursday December 13, 2012

Tags: language, law

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