COMMUNICATION
AND STYLE IN LEGAL LANGUAGE
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,
-positive,--enjoyable.
(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).
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COLOPHON
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.
