The language of law has a rather dubious reputation in the lay public—it is something one cannot understand or at least not so easily, it is full of special technical expressions, one can get away with saying things in it that one cannot get away with in ordinary language or at least not so easily, and so on.  Even the ardent defender of law and legal language will concede that this is a technical manner of using language that technical vocabulary is simply the heart of this manner of using language, and that the expressions in this legal vocabulary are marked by the fact that each has a technical sense and is typically but not exclusively used in a technical context.  Technical expressions both define and are defined by a field of experience and activity, a class of entities, a subject matter that is the special concern of a community of language users, in this case the community of men of law.  It is the intense concern of the specialist for his field that drives him to use language in a technical manner. 


            This technical manner of using language stands in contrast to the ordinary manner of using it.  The sense of expressions and syntactic constructions in ordinary language is liable to ambiguity, fuzziness, redundancies, and other muddles.  Ordinary language very much depends on the good sense of its senders and receivers in muddling through.  Indeed the muddles are occasionally even assets rather than liabilities –as in dealing with a slow child or a wily opponent.  Muddles are anathema to technical language, which hates to depend on the good sense of the interlocutors.  Technical language would rather depend on definitions (a tetrahedron is a solid figure defined by four plane faces, the tetrahedron is regular if all its faces are regular polygons that are congruent to each other, a regular polygon that is equilateral and equiangular, and so on in linked definitions in an organized set) and conventions (in law, he includes she; in an arithmetical expression, inner brackets take precedence over outer brackets).  These definitions and conventions may be traditional or newly stipulated.  Through these technical language achieves a certain tidiness.   But it does so at a price—the field does not remain unlimited as in the case of ordinary language that can talk of cabbages and kings.  Rather it is limited by some specialized concern.  It is as if there are as many technical languages as there are field.  Technical languages is a sort of departure from ordinary language.


            But then technical language is not only departure from ordinary language.  It stands in contrast to another departure from ordinary language in an opposite direction –that of poetic language in the broadest sense.  Thus we are not looking upon a dyad so much as a triad—technical, ordinary, and poetic uses of language.  This means that we have to find out in what way the technical and the ordinary are non- poetic and the poetic are non-ordinary.  We are ringing changes on the use of language.


             A good opening to the discussion of the contrast between the non poetic and the poetic is provided by Punya Sloka Ray’s discussion of the formation of prose (1962:313=1963:138):


            “ Let us begin with a dilemma.  Language is impossible if the speaker and hearer do not agree at all on what forms should carry what meanings.  And yet, language is useless if the speaker and the hearer could agree completely without recourse to the meaningful forms between them. So language is usable only insofar as we do not depend upon it, and yet language is useful only insofar as we do depend upon it. Fortunately, the absoluteness of the paradox is only a metaphysical make-believe… But this formulation does serve to highlight a certain quality in our handling of language will be defined as poetry and the systematic cultivation of independence from language defined as prose …prose we shall define as a movement away from [poetry]…”


            Actually on Punya Sloka Ray’s own showing, prose is not just a movement away from poetry but also a movement away from ordinary language, which neither cultivates systematic dependence on language nor cultivates systematic independence from language.  Since, like Moliere’s Monsieur Jourdain we all speak prose, it would be wiser to drop the expression prose altogether.  Again, it is awkard to use the term poetic for a whole area of which poetry proper is only an extreme example. The term stylized is probably better suited to cover a movement towards a systematic dependence on language.  So we now have:


(a)     technical language use: cultivate or moving towards systematic independence  from language and thus permitting translation without any loss of meaning;

(b)      ordinary language use: neither technical nor stylized and thus intermediate in character;

(c)      stylized language use: cultivating or moving towards systematic dependence on language and thus  excluding translation without loss of meaning.


Thus, the technical use differs from the latter two in several ways: it alone permits translation without residue, shuns individual variation as sheer distraction, minimizes dependence on the textual context (unless that context is the definition itself), and places a restriction on the fields of application.  The stylized use differs from the former two in several ways: it alone excludes translation without residue, integrates the way something is said with is being said (style being not merely a means to an end), invites and indeed welcomes the possibilities of multiple interpretation, indeed in the absence of the constraint imposed by specialized interest or the purpose in hand the reverberations of meaning in a stylized discourse continue for a long time if they cease at all.  Finally, the ordinary use differs from the two extremes, extremes that meet as it were; it alone doesn’t demand a certain willing suspension of casualness and a certain initiation into the special features of the use of language, it alone is content to stay within the limits and constraints of the language being used, it alone tolerates tautologies, circumlocutions, simple repetitions that lower the payload of language, it alone accepts an open-endedness in language depending chiefly on the situational context to supply a good deal of the meaning.


            We have found it necessary so far to emphasize the essential tidiness of technical language in general –and so of legal language in particular.


            We did so in order to highlight its difference from ordinary language with its muddles and from stylized language with its creative richness. Technical language is certainly Spartan in comparison.   Having established that, we can now afford to accept a rider or reservation.  Technical language, especially the heart of technical language which is its technical vocabulary, is tidy, but. Here let’s listen to what freud (1915-1925: 4.60-1, cited in Frenkel-Brunswick 1956: 98-9) has to say about concepts defined in a developing science.  For Freud, they are:


            “determined by the important relations… to the empirical material … We seem to be divine before we can clearly recognize and demonstrate them.. Progressively we must modify these concepts so that they become widely applicable and at the same time consistent logically.  Then, indeed, it may be time to immure them in definitions… [which in turn are] constantly being altered in their content.”


            Technical in a theoretical discipline are enmeshed in a theory.  Let us go back to the term regular tetrahedron.  Now tetra means four and there is nothing in English word-formation to prevent us from coining terms like trihedron, pentahedron, and so forth –and of course the term polyhedron.  But actually in the context regular-hedron, solid geometry has use for only four other numeral elements, namely, hexa-, octa-,  duodeca-, and icosa- (six, eight, twelve and twenty) besides poly- (many). The definitions of terms are not merely meshed with each other; they are meshed with the theorems and ultimately the postulates of theory.  This is especially true of the more basic terms of a discipline   The sense of such terms is theory –laden.  To fully grasp the sense of any of the terms Id, Ego Superego as used by Freud is not merely to grasp the senses of the other two but also to grasp the whole theory of Freud.  Freud is giving us a salutary reminder that in the formative period of the development of a theory, in the informal shop talk phase, so to say, the scientists may be able to use such expressions with some confidence without being in a position to offer neat, cut-and-dried definitions or even postulates.  The scientists say, as it were, to the fellow scientist “ of course, you know what I mean”.  In a healthy discipline, as in a healthy monetary system, the currency is, of course, backed up by credibility.


            What is true of a healthy, developing science is also true of a healthy developing jurisprudence system.  No wonder John Brigham (1978:92) felt it necessary to say:


            “On the basis of its grammar and unique practices, constitutional law may be described as a language and not simply as use of English in a particular setting.  The grammatical relations that exist in the Constitution delineate a professional language which, at least at the highest appellate level, has the qualities of a “natural” rather than formal language.” (Emphasis added.)


In terms of the framework being presented here, we can reformulate this insight as follows: The legal use of language is a technical use of language and thus distinct             from the ordinary use of language.  Constitutional use of language is a segment of legal language.  At its points of growth (“the highest appellate level” – corresponding to “the informal shoptalk” of a live scientific brainstorming session), this technical use of language ceases to be wholly tidy and takes on some of the characteristics of the ordinary use of language.


            Of course, in the process of reformulating what Brigham has to say we have slightly modified it – we hope, in the direction of greater adequacy.  We have spoken vaguely of “some of the characteristics of the ordinary use of language”. We should perhaps draw pointed attention to one such characteristic – technical expressions depend for their determinateness typically on prior codification, a linguistic contract, so to say, between the interlocutors; ordinary expressions depend for their effectiveness in the face of indeterminateness not on any prior codification but on progressive context-enrichment.  Children do not learn that such and such things exist and that they are called books – they learn to understand and make use of such expressions as fetch me the green book, open your books at page four, don’t let your books lie around, stack the books on the shelf, teacher has asked us to buy the geography book, there are no pictures in this book.  At the growing point, technical language too depends on context-enrichment of this sort so that the interlocutors can assume with some confidence and not merely pretend that each knows what the other means.


            It is about time that we identify the interlocutors of legal language.


Situating Legal Language


            In the domain of law as we know it today in civilized societies the dramatics personae are the following:


            the ordinary citizen, not necessarily a man of law

            the lawgiver, not necessarily a man of law

            the judge, necessarily a man of law

            the counsel, necessarily a man of law


Communication pertaining to the domain of law takes place between the lawgiver and the men of law in the first instance.  This is typically one-way communication – from the lawgiver, who is not necessarily initiated into the mysteries of law, to the judge and the counsel, who are necessarily so initiated being men of law.  This one-way communication takes the form of statutes.  The language of the statutes is the most technical and the legislators have very little to do with it, but the drafters must pay heed that the statute as drafted really represents the lawgiver’s communicative intent.  Insofar as the preamble of a statute expresses a lawgiver’s intent it is likely to be couched instance there is the two-way communication between the judge and the counsel.  (Formal communication between the two opposed counsels is, of course, via their addressing the judge.  That’s simply the rule of the legal game).  This communication is less technical than the communication through the vehicle of statutes.  There are two subdivisions within this second category differing in the degree of formality.  Judgements and briefs are more formal and, therefore, relatively more technical, while the courtroom exchange between the judge and the counsel is less formal in comparison and so relatively less technical.  In this context of legal communication too, there is the counterpart of the preamble of the statute – the preamble-like portions of the judgement and the brief conveying the communicative intent respectively of the judge and of the client.  In the third instance there is the informal consultation that takes place either between two or more judges in the judges’ chamber or between two or more counsels in the counsels’ offices or the barroom or among men of law in jurisprudential discussions.  This form of legal communication is even less formal and so drawing more freely upon the ordinary use of language.  Even so it still remains essentially technical.  Fourthly, there is the consultation between the ordinary citizen and the counsel.  The ordinary citizen, of course, speaks ordinary language drawing upon as much legal language as is feasible and necessary.  The counsel’s job is more difficult – he has to be at once plain and precise.  Lack of plain-ness will lead to lack of understanding; lack of precision may lead to misunderstanding.  In either case the counsel will have on his hands a client with a sense of grievance against his counsel – not a very cheery prospect for the counsel.  The judge’s brief to the men of the jury also falls under this category.  Finally, there is the legal communication that sometimes takes place between one ordinary citizen and another – typically but not necessarily through the intermediary drafters initiated into the mysteries of law.  I have in mind here the language of legal documents such as contracts, testaments, byelaws, and notices.


            In sum, legal communication takes place in one of five types of situational contexts :


(i)                 the lawgiver to the judge and the counsel – statutes, preambles to statutes.

(ii)                The judge to the counsel, the counsel to the judge-judgements, and court orders, plaint, and petitions, and their preamble-like portions; court-room exchanges.

(iii)              Consultation among judges, among counsels, among men of law-exchanges in the judge’s chamber, bar room, counsel office; dissenting judgements, solicitors’ briefs.

(iv)              The judge to the jury, the counsel to the client, the client to the counsel – the judge’s brief, consultations.

(v)               Between ordinary citizens – contracts, deeds, testaments, byelaws, notices, and the like.


This summing up serves to bring out a peculiar feature of the legal use of language – there is the community of specialists, the men of law, which brings legal vocabulary into existence, and there is the community of ordinary citizens    (who may or may not be men of law), which sustains the domain of law and which is affected by it – indeed one may well say that the ordinary citizenry, their relationships, and their activities are the domain of law.  In some special sense, therefore, the language of law has to be anchored in the ordinary manner of using language.  This is what gets recognized in the well-known Golden Rule of Legal Interpretation (Macmillan 1958 : 115), namely, that whatever the intention behind a legal document, when it is being interpreted “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”  This rule serves as it were as a counterweight to the tendency of any technical use of language to lapse into oddities, archaisms, and obscurities.


            The language of law is, however, also subject to certain other hazards – the hazard of interested disputes as to interpretation and the hazard of interested disputes as to the correct text itself.  By and large legal texts confer rights and impose duties (we shall return to this point a little later) and by and large ordinary citizens enjoy their rights and suffer their duties.  Naturally each party to a legal transaction or dispute will try to make the legal text maximize its rights and minimize its duties.  There are two ways of ‘making’ a legal text perform in one’s own favour – by disputing the interpretation or, more radically, by disputing the text itself.  The rule of interested interpretation is to choose or even distort interpretations in one’s favour.  To avoid disputes of interpretation various linguistic devices and precautions are employed – removal of ambiguity, vagueness, or the like.  To avoid disputes of text authenticity and text wording, or the custom arose of relying on writing rather than speech; additional devices and precautions are signatures, seals, spelling out numbers in words, or the like for making it difficult to get away with wholesale or partial forged additions, deletions, and alterations.


            The last hazard is the vested interest of the men of law themselves in consolidating their position and indispensability by making the penetration of legal mysteries difficult if not impossible – which leads them to put a premium on obscurity in the name of precision, to put a premium on a less widely known language like Latin in Medieval Europe or English in contemporary India.


            We have spoken of linguistic devices and precautions to prevent and resolve disputes of interpretations – these may have to do with the physical aspects of writing (script and orthography), with vocabulary and syntax, and with technical conventions.  We have already mentioned one such technical convention – he includes she.  Others such are :


            ejusdem generis – thus, if it says “house, office, room, or other place”, the expression “place” cannot refer to an uncovered enclosure although this is a “place”.


            expressio unius est exclusio alterius – thus, if it says “house, office, or room” only these can be included and nothing else (in ordinary language “would you have tea or coffee?” with a rising tone on “tea” and “coffee” makes the list open-ended).


            noscitur sociis – the recognition that a word is known by the company it keeps.



In addition there are other conventions which we could call stylistic conventions or rhetorical conventions.  These conventions are not like the poetic conventions of literary style – rather their purpose is purely functional.  Thus in the opening part of a judgement where the judge is summing up the facts of the case and the rival accounts he must not use a wording that will give away his judgement to follow.  Thus he will say the motor car and the bicycle collided or struck rather than say the motorist hit the bicycle or the bicyclist hit the car.


            Is there room for any other kind of style or rhetoric in legal communication?  Going back to our five types of communicative situation, we can say the following :


(i)                 Statutes : In the preamble there is some scope, not in the body of the statute : the rhetorical function will be to convey the seriousness of purpose, the grandness of the gesture, and the like.

(ii)                Judgements and plaints : In the preamble-like of judgements and plaints there is some scope for persuasive rhetoric Courtroom exchange : The relationship between the judge and the counsel is defined by the rhetoric : the counsel humbly submits and the judge impersonally directs, the counsel would champion his side but at the same time would uphold the law.

(iii)              Consultation among men of law:  There is scope for persuasive or disputatious rhetoric.  At the same time the language is likely to be less formal expect in dissenting judgments and solicitors briefs.

(iv)              The counsel and the client, the judge to the jury:  The counsel’s rhetoric is reassuring advisory, minatory and the like. The judge impersonally helps the jury to understand the case.

(v)               Citizen to citizen:  In the preamble-like portion there is some scope.  Otherwise contracts deeds and bye–laws tend to be like statutes: testaments and notices tend to be some- what less technical.


The primes of Legal Interests


          We have already spoken of how legal documents confer legal rights enjoyed by the parties and impose legal duties suffered by the parties.  This was a rough, preliminary statement of the irreducible of law.  A more rigorous statement if in order. As useful point of departure, there is Wesley new comb Hohfield’s scheme of “ fundamental jural relations” (1919): 


            “One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or “ rights” and “duties”, and that these later categories are, therefore. adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options,  escrows, “ future” interests, corporate interests, etc……


            “ The strictly fundamental legal relations are, after all, suigeneris; and thus it is that attempts at formal definitions are always unsatisfactory, if not altogether useless.  Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of “ opposites” and “ correlatives” and then proceeding to exemplify their individual scope and application in concrete cases.


            “ Jural Opposites            right          privilege             power         immunity

                                                no-right   duty                  disability    liability

            “ Jural Correlatives             duty          no-right            liability      disability”           


Hohfield then goes on to say that the word right is used not only in the sense of claim but also more broadly to cover privilege, power, and immunity.         


            A change in a given legal relation may result from some super added operative facts beyond the control of man’s will or within the control of man’s will.  In the latter eventuality the person exercising control over a certain legal relation is exercising a legal power.  (Operative facts are to be distinguished from the other class of legally relevant facts.  Namely, the merely evidential facts.)  


            Now it is not for me to examine Hohfeld’s claim that the fundamental concepts are indeed adequate in giving an account of any legal interest as such.  One may go even further and point out that these conceptions also cover such things as punishment and rewards—thus, punishment is the exercise of power to deprive someone of rights or privileges or powers or immunities.  Granting that claim for the present purpose we can examine whether the fundamental concepts are indeed incapable of analysis other than bringing out logical relations of opposition (e. g. for someone to be without power is for him to be with disability) and correlation (e. g. for one person to have power over another is for the latter to be subject to the power of the first, that is, to have liability towards the former).


            To begin with one can point out that it is not enough to say as Hohfeld does that the word right is loosely used to cover privilege, power, immunity as well, but it is also necessary to say that all four, namely, right (in the sense of claim), privilege, power, immunity are ‘enjoyable’ jural relations; on the other hand no-right duty, disability, liability are all ‘sufferable jural relations.


            Secondly, one can point out that right, privilege, no-right duty are first-order interests that revolve around the notion of claim; on the other hand, power, immunity, disability are second-order interests (i.e., interests in  respect of first-order interests in respect of first-order interests) that revolve around the notion of control. (Hohfold does speak of “ claim” and “ control “).  The notion of claim is at bottom a moral notion, while the notion of power is at bottom a political notion.  The domain of law is the marriage of morality and polity—admittedly an uneasy marriage, but a marriage nonetheless.


            Thirdly, right, no-right, power disability have to do with active enjoyment of claim its absence: on the other hand, privilege, duty, immunity, liability have to do with passive sufferance and subjection or its absence.


            Fifthly, Hohfeld seems to make some play of the fact that he calls his proposal a scheme of “ jural” relations—relations that could be based either on substantive law or on equity. “ jural” apparently comprises ‘ legal’ and ‘ equity –based’.   In respect of the English jural system one could add ‘ common-law-based too.  A neater way of formulating this would be to say that the operative facts recognized for this purpose may be on the plane of custom (common law),. Hindu Dharamashastra, English and American equity, statue law, or the like. (From now on we shall use ROF to stand for ‘ recognized operative facts.’  Under operative facts beyond human control some communities may even recognize astrological observations as relevant for legal interests.


            Sixthly, Hohfeld also recognizes the traditional distinction between in rem and in  personam but does not recognize the common supposition that they are mutually exclusive, matching alternatives.  He is right, of course, but has not been able to formulate this with clarity.  What he badly needs is the recognition taken from Frege’s logic that there can be many-place predicates and his jural relations are, of course, such predicates.


            What does all this add up to? It adds up to a neat and precise analysis of Hohdeld’s eight primes.  Is  Hohfeld correct in saying that they are sui  generis, incapable of definition and analysis?  The answer to this question is yes and no.  Yes, the primes are not reducible to yet more primal entities within the legal universe of discourse.  No, the primes are reducible to yet more primal entities if one permits oneself to go beyond the legal universe of discourse.  There is nothing surprising about this. This is simply the Gödelian property of logical systems – to ‘ capture’ a logical system one needs to stand ‘ outside the system at an Archimedean point.


            The analysis may be set out now.  First, let us set out the predicate frames (where A stands for the ‘ active’ person, B for the ‘passive’ person, X for some state-of-affairs to be maintained, extinguished, prevented, refrained from bringing about, or brought and Y for some jural state-of-affairs to be maintained, extinguished, or brought about).  Here X stands for the ‘ matter’ (yes =in Latin), while Y stands for jural dominance or submission as the case may be.  


(A)             (1)  A has a right to X against B given ROF;

i.e. A  has  access to that claim.

(2)   A has no-right to X against B given ROF;

i. e. A lacks access to that claim.

(3)   B has a privilege to X against A given ROF;

i. e. B is subject to that claim.

(4)   B has a privilege to X against A given ROF;

i. e. B is not subject to that claim.

(5)   A has a power to T over B given  ROF;

i. e.  A has access to that control.

(6)   A has a disability to Y over B given ROF;

i. e. A lacks access to that control

(7)   B has a liability to Y towards A given ROF;

i.e. B  is subject to that control.

(8)   B has an immunity to Y against A given ROF;

i. e.  B is not subject to that control.

Secondly, we can recognize a set of distinctive features of these eight predicates of jural interest.


(B)              (1) The predicate may be a first-order predicate about claims or not (i.e. may be a second-order predicate about control).

(2) The predicate may be an active predicate of access or not (i.e., may be a passive predicate of subjection).

(3) The predicate may be a positive predicate of claims or control (as the case may be) or may be a negative predicate of the absence of that claim or control (correspondingly).

(4) The predicate may be an ‘enjoyable’ predicate that needs to be protected from violations or not (i. E. may be a ‘ sufferable predicate that needs to be enforced to ensure conformity).


Thirdly, we can correlate the eight predicates of jural interest and the four extra-jural distinctive properties of these predicates.


(C)             (1)  right is + first-order, + active,

      +positive, + enjoyable.

(2)     no right is + first-order, +active,

-positive, -- enjoyable.

(3)     Duty is + first-order, --active,

+ positive, --enjoyable.

(4)     privilege is+ first-order, -- active,

--positive, +enjoyable.

(5)     power is—first order,  +active,

+positive, +enjoyable.

(6)     liability is – first-order, --active,


(7)     immunity is—first-order, --active,

--positive, +enjoyable.


It will be noticed that Hohfeld to coin the expression no-right to coin the expression no-right to fill a slot.  He also uses occasionally no-duty in place of privilege (slot A 4, C $).  Actually no-duty would be more accurate, privilege being simply no-duty to refrain from bringing about X.  The word liberty (Dr. Richard Stith informs me) is commonly used these days in place of Hohfeld’s privilege.


            This analysis can be looked upon as the semantic analysis of eight crucial technical expressions in the legal domain by a student of linguistics.  Only a jurist can, of course, invest this analysis with jural content and exemplification. 


            But a jurist can do something more.   In situating legal language we started by specking of “ the domain of law as we know it today in civilized societies” together with  the ordinary citizen, the lawgiver, and the man  of law as judge or counsel as its dramatis personae.  Underlying this bland statement is the confession that from this point on we were going to take for granted the Rome-originated West-European frame of reference for law.  We may note in passing that the corresponding general terms for law in French (droit), Italian (diritto), German (Recht), and Latin (jus) also mean right.. Can we perhaps say that this ambiguity between the meanings “law” and “right” gives away the fact that the cornerstone of the Roman-western framework of “law “ is “ right ”? Can we further point out that the corresponding Ancient Indian general term Dharma is ambiguous as between “law and “duty”? (The Ancient Indian term for religion was not Dharma but sampradāya, pantha, or even mata.) The other Indian translations, Sanskrit vidhi or Arabic qānūn or qāidah, all originally mean “ way, custom”, “principle”  (i.e. are more like English law, what is laid down.)


            At this juncture in the history of the Indian judicial system when we are having second thoughts about the total suitability of this Roman-Western system to Indian conditions, we shall do well to examine the foundations of the Roman-western system, the Ancient-Indian system, and the Islamic system in comparison with each other. (The Indian legal system today is not purely English, it also draws upon Livingstone’s Louisiana Code and the Napoleon.) It will be interest to find out how much the system owes to Thomas Babington Maccaulay’s drafting of the penal code and the criminal procedure code.  What will be the primes of Ancient-Indian law and Islamic law? How do they compare with the primes of Western law? I have in mind here not only the primes of legal interest but also the primes of legal procedure (otherwise known as the due process of law).


The primes of Legal Procedure


I shall do no more here than throw out some speculative suggestions for more competent hands.  What is, I shall ask, the root metaphor, primordial image of western legal procedure? Earlier on, I made a passing reference to one rule of the legal game, namely, that the counsel always addresses the judge in the courtroom and never the speck of this procedural rule as a rule of the game because legal procedure as we know it from the west is cast in the image of a game.  Now if Roger Caillois’s analysis of games is to be accepted, games of make believe (playing house, carnival king and his court), games of chance  (poker), and games of vertigo (swing, merry –go-round).  (Caillois uses respectively the Greek terms agon, mimesis, alee, and ilinx.)  The court-room game is in part a game of contest and in part a game of make-believe.  It is as if the two rival parties to a lawsuit play a duel by proxy.  The party whose proxy wins the game wins the real thing- the lawsuit.  The judge is, of course, the sage and neutral umpire.  My further submission is that the Indian citizen has never really taken to this game –or rather that he has taken to it even with some zest but has misconstrued it as a game of chance.  The court-room game is not seen as an instrument of justice at all.  This optical illusion often extends to the counsels and the what bearing the obsession with court-room drama courts.  I wonder what bearing the obsession with court-room drama in contemporary commercial cinema in India has on this issue.


The foregoing is of course a sketch of the commonest mode of legal procedure—the so-called adversarial mode. But there are, of course, other modes – inquisitorial and adjudicative. The prime mode of conflict management in traditional India is not adversarial but consensual: the “victory’ goes not to one of the parties but the peacemaker offering arbitration and compromise.  (At his most successful, he convinces the porties that it can be a win-win game.) Even a slanging match in India predictable ends up in restoration of the status quo: One may also note


            A through investigation of the primes of legal procedure in the Western mode, in the Ancient-Indian mode, and in the Islamic mode is in order.  Such an investigation will lead to a more meaningful comparison between the three and a more meaningful explanation, a more radical diagnosis of the ills that beset the contemporary Indian judicial scene.


Indianiztion of the Indian judicial


            I am not, of course, suggesting that we should thoroughly Indianize our judicial system. Rather am I suggesting that our Indianization should be more than skin-deep, deeper than the colour of the skin of the participants? The question of the use of modern Indian languages alongside of or in place of English has to be seen in proper perspective.  If we were to start using Indian language exclusively but leave the deeper linguistic muddle unexamined and untouched, we would achieve exactly nothing.  But if we were to do something about the deeper linguistic muddle, then the partial retention of English would not really matter. Before we propose to make the Indian citizenry legally literate, we have to make the Indian men of law. Literate in the human and the philosophical and the linguistic foundations and implications of their domain of activity.  Papering over the cracks in the system with brave stylized rhetoric will only worsen the situation-it will certainly not ameliorate it.  Radical reforms can only begin with radical analysis. A la hohfeld (who unfortunately has mot received the attention he deserves from legal moral and politicao theotiats).





            Frenkel-Brunswick, Else. 1955.  Confirmation of psycho-analytic theories. In: Frank, Philipp G. (ed.). The Validation of Scientific theories.  Boston:  The Beacon Press, 1956. PP. 97-115.


            Freud, Sigmund. 1915. Instincts and their vicissitudes.  Reprinted in his: Collected papers. London: Hogarth Press, 1925.  Vol. 4, PP.60-83.


            Ray, Punya Sloka. 1962.  The Formation of prose.  Word 18. 313-25. Reprinted in his: Language standardization.  The Hague: Mouton, 1963.


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This paper was presented at the seminar on law and language, Department of English, University of Rajasthan, Jaipur and the Bar Council of India, New Delhi at Jaipur, 29 March-2 April 1982 and published in Indian Bar Review  10:3: 363-78, July –September, 1983.  I am thankful to Dr. Satyaranjan Sat he for drawing my attention to Hohfeld’s analysia.