Friday, November 28, 2003

Talking law

Communities use language differently: and it’s always interesting to speak from people from different disciplines, let alone different countries, and realise that while you may share a common language, you use it to express very different world views.

Odalisk-Erin wrote recently and vividly about this in terms of academic “shorthand”, the way a community uses language among its own members – and her own experience as an Art Historian visiting a law lecture:

“… the way that the professor spoke so slowly, it was like fishing. There would be a pause before a word, and then he'd pull it out of the air, like dragging a fish from the water. The effect was to make the word heavy and solid, like a weight. A thing.

The professor protested, throughout the course, against ambiguous answers - he wanted definite statements, assertions.

Language in the humanities is precise, but I feel like in the end we are not trying to make a thing so much as a fabric, a skin. You use every word meaningfully, yes, but you want it to play, to intertwine, to skim above the solid ground and never touch it.

… language in law is like a noose? I mean, there is something so dreadfully solid about it, and, obviously, disputable. You can certainly be hung by it.”

This is enormously perceptive. The disciplined practise or study of law does require you state concrete propositions with precision. This almost instantly invokes the opposite argument to the one you have put.

What has always impressed me most about law is the way it attempts to reconcile:

(1) extremely large and abstract ideas or principles; and

(2) their concrete expression in relation to particular, real circumstances.

Unfortunately, this often leads to a perception (even among lawyers) that law is not a theoretical discipline, that it is merely the application of settled, stable law to “facts”.

That said, as a “theoretical” international lawyer I do love conversations with “practical” commercial lawyers here – there is the ease of a shared set of assumptions about legal discourse and reasoning. Chief among them is the great non-concrete standard of the law, “reasonableness”.

In a world where few values are shared by the whole community, and their interpretation varies wildly (especially the meaning of “justice”), legal debate is usually governed by the undefinable boundary of what is “reason-able”: i.e. what someone with commensurate training and experience can agree is a decision able to be arrived at by process of reason, even if they disagree with it personally. Lawyers are usually able to “agree to disagree” pretty freely: it’s the natural state of things.

This is the essence of legal decision making (e.g. judgements of courts): one side will inevitably be disappointed in the outcome, the grandeur of the law is in producing an outcome that is justifiable (“reason-able”) through a pre-ordained process people are able to agree is fair. In this sense one can never guarantee “justice of outcomes” (because opinions will vary as to what that means), but one can have outcomes governed by a just and stable process (e.g. judges and other decision makers applying the law, even when they believe it to be wrong).

The other thing I love about law is this process of struggling towards the best-reasoned, most “reason-able” conclusion on a point of law: the effort to pin an idea down in a concrete situation and express it clearly. This was what most impressed me in the period I was working for judges: their ability to take a concept that I could only narrow to, say, the area of a saucer and refine the same idea down to the size of a penny – in Erin’s words, “tightening the noose” around the language.

Bother, I somehow feel I haven’t expressed this as well as I’d hoped.

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