Shoot Aristotle dead in the graveyard if we don’t understand him?

By Manoj K. Srivastwa

Of late, a section of media¹ and a cross-section of society inter alia some legal experts have been advocating vociferously that legal language particularly judgments of judges should not be legalese but legal-ease so that a common man could understand what does it meant for them. To many of them, the legal language is pompous, loquacious, mushy, foliage, curlicues, or incomprehensible legal jargon unnecessarily and sans any reason. Some of them even attempt to mould public opinion to pressurise advocates and judges to adopt simple language of a common man. How many businessmen understand debit & credit language of a Charted Accountant! How many patients could understand the language and medical theory of a doctor before getting administered the medicine & treatment! How many of us understand the computer mathematical language before doing its operation and use! Do we think that an advocate should draft “demise” which means death to a common man instead of “demise” which means “The conveyance of an estate?^“2 Or LL.B, the minimum qualification for being an advocate be abandoned forever or whether  any person on street or any popular person or mass leader could be picked up from the street and be conferred of the duty of judging a dispute!

Justice S. Vaidyanathan, in a foreword³ of a book, musingly wonders that his steno qua a common man typed “the rapist” instead of “Therapist” and entire judgment was turned from a civil case to criminal one! Can we ask Sahir Ludhianvi to rephrase his songs because common man does not understand his poetry? If language and style of Ghalib is changed to suit the understanding of a common man Ghalib will no longer be The Ghalib and so is with Premchand , Dinkar, Gorky, William Shakespeare and Milton. Legal language, per se is a class apart and it cannot be the language of a common man. Will Durant and Justice Krishna Iyer are famous for their language. It is the language that makes Justice Krishna Iyer and Justice Dipak Misra a class apart judges amongst classes of jurists even some of the judges find it difficult to read at one go.

Indubitably, one must strive his best to make his language comprehensive to serve the purpose of communication particularly for consumers of court proceedings. But popular things are not always the best. A leader is not the person who follows people and its dictates blindly, but the leader is the person who persuades its people as to what is good for them and what is not. The person is not the leader who follows its people’s mandate blindly to demolish a place of worship if a majority of them wishes so. Galileo was killed for his only fault that he propounded a theory that the Earth revolves around the Sun which was not in consonance with popular thought of his time. Even some of our countrymen do not know how to read and write and does this mean that we should close all schools and book publishing company in solidarity with them! We have not been able to decipher the language of Harappan and does it mean that we should destroy remnants of Harappan civilisation!

The popular demand of a cross-section of society that the language of advocates and judges should suit their ease cannot be acceded to. How many of us or those who are advocating legal-ease instead of legalese have read the original book of Aristotle The Ethics⁴ and books of other jurists such as Bentham and Salmond? Their language is difficult to understand and comprehend by common people. Does this mean that we should shoot all these philosophers and jurists dead again in their grave!

What these critics have miserably failed to appreciate is that language and culture are inextricably integrated inter se in any society, be it legal culture or legal system. Roman laws are intellectual ancestors of modern legal system which has inherited and evolved its language and legal culture too over the centuries and legal language is the integrated scintillating cultural beauty of the legal system which can not be stripped of. Law is language⁵. Lord Denning coins it as “ironing out creases in the statute”⁶ The mind of authors is beautifully reflected in his writings. Law and its legal system acculturated since time immemorial shall be devoid of its cultural significance and would entail nothing but a non-sense. Plato said the language is the soul. “Grammar and Logic were moving about somewhere in the depths of human soul.”⁷

This criticism against legal language amounts to an infraction of fundamental right of the legal system as law as system has its own right to protect its linguistic and cultural heritage hatched for centuries. It is not possible that everyone should understand everything. Our judicial system must be fearless of popular perception & measures of society as it is the last protector and guarantor of the conscience of people and the democratic system inter alia our Constitution. I do agree with Bryan A. Garner⁸ who advises short sentences of not more than 20 words to enhance readability of sentences, but readability and understanding are two different concepts altogether. Here, critics complaints about understanding and not readability. Richard A. Posner in Law & Literature equates judges with poets: “A Novelist writes a passage one way rather than another because it feels right, he may be unable to explain why its feel right. A Judge often has a strong sense of which way a case should be decided. Norms govern the various art genres, just as norms govern judicial decisions.”⁹ Quoting his own book How Judges Think, Posner writes further, “Learned Hand also described the Judge as a kind of Artist. Why is not it in the nature of an art ? it is a bit of craftsmanship, isn’t it ? It is what a poet does, it is what a sculpture does”¹⁰ Posner again emphasises “Aristotle used the term (rhetoric) to refer to all persuasive devices not just stylistic ones, employed in areas of inquiry in which logical or scientific proof is unavailable, he swept in authority, anecdote, analogy, and every other mode of reasoning used to establish the probable truth of a proposition when exact demonstration is impossible.”¹¹

-Advocate Manoj K. Srivastwa is an Advocate-on-Record at the Supreme Court of India.

References

1. The Times of India
2. Black Law Dictionary,8th Edition,2004,edited by Bryan A. Garner
3. Courtroom Wit and Wisdom by N. Vijayaraghavan, Oak Bridge, 2022 
4. Apple Books
5. Courtroom Wit and Wisdom by N. Vijayaraghavan, Oak Bridge, 2022, Page-101
6. Supra
7. The Cratylus by Plato, translated by Benjamin Jowett, Apple Books
8. Legal Writing in Plain English by Brian A. Garner, The University of Chicago Press, 2001.
9. Law & Literature, 3^rd Edition by Richard A. Posner, Universal Publishing, 2011, Page 330.
10. Supra.
11. Law & Literature, 3^rd Edition by Richard A. Posner, Universal Publishing, 2011, Page 331.