Legal Jargon #
Lawyers are trained in the arts of linguistic combat; persuasion – casuistry, sophistry and eristic logic, to win at all costs. Specious and spurious arguments trump truth and reality. Manipulation of evidence can lead to perception management.
* “—You and I both do the same thing, he would chide me, “sleight of hand - making things appear to be what they’re not. " * Alan M. Dershowitz, US defence lawyer, writing of his son, a professional magician, 1991.
It is the deceit of words and sleight of hand which may not involve any deliberate falsehood, but inferentially manipulates our perceptions, what Wittengenstein calls the bewitchment of our intelligence by means of language and eristic argument. All forms of persuasive language use tactics of perception management or cognitive interference to shed a favourable light on their perspectives.
Language is also one of our most important artefacts, the primary tool to try to capture reality; it may be organic, democratic and always evolving, however it is also vulnerable and susceptible to abuse through instrumental use and perception management.
In Lewis Carrol’s famous** *Through the Looking Glass****,* Humpty said to Alice.
When I use a word… it means just what I choose it to mean – neither more nor less.
Alice’s reply was: “The question is whether you can make words mean different things.”
Humpty: * “The only question is, who is to be master, that is all!"*
Absurdists agree with Humpty. Language like truth is relative and subjective, not absolute or objective like Alice assumes. Politicians and other persuasive writers have debased our language so that many words have lost their integrity.
Humpty Dumpty’s explanation puts in plain language Nietzsche’s observation that interpretation is merely a matter of power. 200 years earlier Dr Samuel Johnson had cautioned that “power is in sufficient evidence of truth”. Courts that deny provenance of commonly accepted meanings of words endanger their own credibility and authority. In recent cases Judges have ruled that “absolutely” does not always mean that; correspondence between the Queen of England and her Australian representative could be considered “personal”, and a Canadian Judge benignly ameliorated a woman’s Psychiatrically diagnosed Schizophrenia as mere “eccentricity”.
Most communication uses persuasive techniques to play on our standard cognitive mechanisms. #
Reality is at the mercy of representation by words; language can never actually accurately reflect what is real. Distortions distance us from reality. “*Sometimes the exquisite finery of the law can take your breath away.” ***Richard Ackland **
The authority of language is threatened, subverted and even violated by deliberate perception manipulation – a warping of reality.
British Science writer **Richard Doyle **claims language is a powerful lens for shaping reality that we frequently forget it is a tool at all and take it for reality.
As Karl Rove put it, about the Bush imperium in 2004, laying out the case for a new way of perceiving the universe,“when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out.”
In this view, reality is expressly the realm of power, and the rest of us become hapless victims, reduced to wordless observers. Rove’s prescient words could have been an instruction manual for Donald Trump.
And in the face of this coming wave, it matters more than ever that we have ways of reconciling the experience of our lives with that of the larger world – a world in which we find false words are routinely used by power to deceive, dissemble and disempower. It matters that there might be a society where some are allowed the possibility of questioning, of not agreeing, of saying no, of proposing other worlds, of showing other lives.
Richard Ackland claims “When it comes to big, brassy flourishes about the inherent nobility, fairness and majesty of their function in life, there are few more superlative at the task than lawyers and judges.
Take the long-held principle of open justice, one of the bedrocks of democracy. In one clean sweep the 19th-century legal philosopher Jeremy Bentham – “the present but non-voting member” of University College London – said the very thing everyone likes to trot out:
“Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
More modern people have repeated the sentiment in different forms.** Lord Justice Toulson **said in one of the recent English open justice cases, Guardian v City of Westminster Magistrates Court, that:
“The rule of law is a fine concept, but fine words butter no parsnips … In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light…” Blah, blah, blah.
And it’s impossible to go far in life without finding a relevant quote from Justice Michael Kirby:
“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders…”
The flame of freedom and openness brightly shines aloft, except on the ever increasing occasions when it doesn’t – when justice deems that too much of a good thing is bad for itself, and where it’s “necessary” or in the “public interest” to bring the shutters down and snuff out the light.” **RICHARD ACKLAND ** - Saturday Paper 08/08/15
Studies have shown that the single most significant factor in success in life is determined by the size of your vocabulary. Language is a tool we have created to communicate with each other and the people who get what they want use language to achieve their purpose. If you are not articulate you will not be as persuasive as someone who has the gift of the gab.
Some are born with a good vocabulary, some have it drummed into them, while others find it extremely difficult to attain.
As in all things, moderation and balance are essential. Many highly educated or experienced people use lofty erudite or jargonistic language common people cannot understand and so their message becomes inaccessible causing a lack of communication. Often the vernacular or colloquial vocabulary is more colourful, effective and convincing.
It is important to express your opinions in a clear, fluent, cogent and forceful manner if you wish to have an impact on your audience. How you say things can have a profoundly different impact on your audience.
Language is complex tool invented by society. As any artefact it can have beneficial or detrimental effects. It can be used and abused.
People often use language to conceal rather than reveal their real intentions. All attempts to communicate are subjective and therefore even well intentioned informative writings can be prone to bias or unconscious distortion of truth.
Latin legal terms #
Latin terminology is another tactic used to provide gravity and significance to considerations. Some examples:
prima facie plain or clear; self-evident; obvious. at first appearance; at first view, before investigation.
Fīat jūstitia ruat cælum * “Let justice be done though the heavens fall."*
Vox humana *“The voice of the people”. *
Salis populi est suprema lex - the welfare of the people is the supreme law.
**Nullius in Verba - **take no one’s words for it
Omnia membri fellanto** ** - All cocks must be sucked
– quoted from *Life Sentence *by Christie Blanchard, courtesy of researcher Kirsten Smith’s contact with Alban Walsh of Newfoundland. It uses the rare form of future imperative that is used only for legal/court documents.
Language and Purpose: #
All communication has a purpose and composers will attempt to fulfil that purpose by using a variety of techniques that will achieve their aim.
Two main purposes for lawyers are to inform or to persuade. The adversarial system encourages the latter purpose, so each side will attempt to undermine the opposing point of view by any ploy available. The greatest distortions come about because Judges have discretionary powers to control which evidence is admissible. They also have the prerogative of weighing the force of all evidence. To maintain trust and confidence in the legal system, this privilege needs to be exercised cautiously.
Broadly speaking we can identify and categorise these techniques in order to discriminate between rational objective responses and emotive, confidence tricks.
We know that truth can be free; but bullshit - spin can be very expensive. Good language lies entirely in its relationship to the truth. Honest words represent reality, while guile can be deceptive. Poets pride themselves in expressing the essence of reality, while advertising, propaganda and ideology engages in perception management to distort reality by glamourising or demonising facades or appearances.
Much of the communication we are exposed to is deliberately persuasive and justifies using any means at its disposal to convince us their cause is just. Extreme forms of persuasion are called propaganda.
As recipients of information we have to be vigilant and cluey so we do not become victims of propaganda.
As Zachary Karabell, in “No Left Turn” said:
*“Fool me once, shame on you; fool me twice, shame on me.” *
As active participants in a democratic society we need to be able to discriminate between reality and falsehood – bullshit detectors, so that we can make sense of what is happening and make well informed considered choices.
* A democratic society needs people who have the linguistic abilities which enable them to discuss, evaluate and make sense of what they are told, as well as to take effective action on the basis of their understanding…. Otherwise there can be no genuine participation, but only the imposition of ideas of those who are linguistically capable. *Kingman (1988)
According to Robert French, Chief Justice of NSW, judges often deploy poetry in harmless attempts of lifting the “quotidian” tedium of the judicial task but as one dismissive critic said:
Allusion(s), marginally relevant but of sound aesthetic provenance, lightly inserted but suggesting vast allusive reserves, certainly enhances the texture of judicial prose, and may even contribute in useful ways to sustaining a learned and authoritative judicial tone.
Today the major difference is that poetry is a measure of intense feeling, observation and perception to crystallize ideas to get to the essence of experience and reflect reality while the law often attempts to manipulate language to create false impressions and skew our thinking towards a desired outcome through the use of sophistry - a subtle, tricky, superficially plausible, but generally fallacious method of reasoning - false arguments. #
Poetry attempts to pierce facades and depict the essence of life. Poetry has a close association with Law. Early poets, Hesiod, Solon…. used the language of the gods and so were highly revered. However, poetry appears in decline. When a poet and a trader were both sentenced to death for similar crimes, the poet’s life was spared to appease the gods while the trader was executed. Today, the businessman would hire the best barristers and escape his crime while the poet would pay his penalty. This is progress.
Both Aldous Huxley and George Orwell had deep concerns regarding the poisonous effect abuse of language can have on mass persuasion.
Orwell was particularly concerned about our ability for doublethink; to be able to hold two diametrically opposing views at the same time. Here he discusses critical thinking:
“It needed also a sort of athleticism of mind, an ability at one moment to make the most delicate use of logic and at the next to be unconscious of the crudest logical errors. Stupidity was as necessary as intelligence, and as difficult to attain.”
He remembered remembering contrary things, but those were false memories, products of self –deception. Only surrender and everything else followed. It was like swimming against a current that swept you backward however hard you struggled and then suddenly deciding to turn around and go with the current.
Huxley was more focussed on how we educate people to think clearly:
Aldous Huxley- Education on the Non-Verbal Level
Even on the verbal level, where they are most at home, educators have done a good deal less than they might reasonably have been expected to do in explaining to young people the nature, the limitations, the huge potentialities for evil as well as for good, of that greatest of all human inventions, language, Children should be taught that words are indispensable but also can be fatal - the only begetters of all civilization, all science, all consistency of high purpose, all angelic goodness, and the only begetters at the same time of all superstition, all collective madness and stupidity, all worse-than-bestial diabolism, all the dismal historical succession of crimes in the name of God, King, Nation, Party, Dogma.
The lack of genuine communication as words have lost their meaning and language is not always a reliable tool for genuine discourse. Language is used to reveal the shallowness of relationships and the emptiness of modern society.
T.S. Eliot notes in “Burnt Norton” - Four Quartets:
Crack and sometimes break, under the burden
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still…………..
**Lack of communication is a recurring theme in Absurdist plays. **People can talk to each other without really communicating. Language is used to conceal your purpose rather than reveal it.
Rosencrantz says of Hamlet:
“half of what he said meant something else and the other half didn’t mean anything at all”
Sometimes we need to read between the lines or souse out innuendo:
**Tex Perkins & the Dark Horse **in the Track title: Looking At You But Seeing Her
* “I heard what was said but I knew what was spoken.”*
Many arguments appear to be lost in a polluted field where words are no longer reliably hitched to meaning. In a plea for deregulation of Australian gun controls, language itself is deregulated by the NRA. Here, you can borrow one of socialist literature’s best-known sentences and use it for your own ultra-conservative project. And then, you can accuse the Australian government of giving its laws “Orwellian” descriptions when what you yourself have done, here and elsewhere, is commit an utterly Orwellian newspeak. Helen Razer
Words are no longer hitched to meaning for the Court and, as is also the case in ***1984 ***, conclusions are no longer dependent on facts.
Motherhood statements – vague, fluffy comments that everybody can agree with. It’s a common political tactic because the statements give the impression that the politician has said something, when in fact he or she has not. You deliver them in the hope that everyone who hears you will impose their own meaning on your sentences, which allows you to please everyone without saying something for which you might be held to account.* *
“Homelessness is a cancer and we will not take a backwards step in our battle against it,” for example. Rhetorically catchy, worthy sentiment, means absolutely bugger all – meaningless drivel.
* “Words empty as the wind, are best left unsaid” *Homer
Actress Julia Louis Dreyfus of Veep describes how the slogan, “continuity with change” was used to come up with the most banal, vacuous, meaningless piece of drivel to make things more palatable to the public..* *
Blandishments – flatteries, cajoleries, praises, fulsome, effusive, insincere platitudes, rhetoric, oratory, banality, prosaicism, clichéd, bromides, cant, hollowed language, husk, shell,
“Base words are uttered only by the base
And can for such at once be understood;
* But noble platitudes — ah, there’s a case
Where the most careful scrutiny is needed
To tell a voice that’s genuinely good
From one that’s base but merely has succeeded.”** **
―** ****W.H. Auden,****** ******Collected Poems***
** Hamlet****:*** **“Though I am native here and to the manner born, it is a custom more honoured in the breach than the observance”*
In Macbeth,*** *****Shakespeare** demonstrates the deceptive role of language when Banquo tries to warn Macbeth not to trust the witches.* ** *
And often times, to win us to our harm,
The instruments of darkness tell us truths,
Win us with honest trifles to betray’s
- In deepest consequence
Macbeth fails to heed the advice and only through painful experience learns the lesson:
Infected be the air whereon they ride;*
*And damn’d all those that trust them!**
And be these juggling fiends no more believed
That palter with us in a double sense,
That keep the word of promise to our ear
*And break it to our hope. *
Shakespeare often gives the best lines to his worst characters such as Polonius' advice to Leartes regarding integrity or Iago (Othello) pontificating on the importance of “reputation”. Some people can “talk the talk”, but fail to “walk the talk” or demonstrate that theory and practice can be quite dissonant. #
“This above all, to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man”
Integrity is related to a sense of honour; that of your name or reputation. Shakespeare again addresses this issue in Othello when he has Iago tell Othello,
“Who steals my purse steals trash; …………
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.”
Sometimes a throw-away-line can convey profound sentiments as during the Ghost swearing scene Hamlet tells Horatio:
* There are more things in heaven and earth, Horatio,*
* Than are dreamt of in your philosophy.*
Is this Shakespeare having a swing at academics, that life has many imponderables not evident to intellectuals in their ivory towers?
“Sometimes the exquisite finery of the law can take your breath away”. Richard Ackland
As Richard Ackland also wrote in 2011, “Every so often someone, somewhere outside the rarefied confines of legal reasoning, says something that starkly skewers mountains of verbiage and complexity in one breathless utterance.*
Mandy Rice-Davies is a memorable example. Her retort at the Stephen Ward trial, ‘‘Well, he would [say that], wouldn’t he?’’ succinctly exposed mountains of establishment cant.
The Court system should be, like Caesar’s wife above reproach in its use of clear unambiguous interpretations and espousal of clean clear denotative language to inspire our faith confidence and trust in the system.
The duty of disclosure includes the obligation to make enquiry to ascertain whether discoverable matter exists and to ensure its balanced presentation.
*“A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided, or misunderstands the nature of the opinion which he or she is to form.” * Justice Mary Gaudron –Retired High Court Judge of Australia.
“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court to persistent error of fact than this should be re-examined.
It is my contention that often the courts fall into jurisdictional error by arbitrarily misinterpreting or misconstruing evidence out of familial and cultural context. The courts appear to make a concerted effort to ignore, brush aside, overlook and suppress relevant facts and vital evidence. One of the more insidious developments in dubious court cases is a distinct impression that there are attempts mould events in the service of an ulterior partisan political motive or disposition. No one should be in any doubt that this process is systematic, deliberate and likely a purposeful one.
Judges have many prerogatives with wide latitude but should avoid selecting a range of assertions with a partial care that shames even the best cherry picker,
Omission of pivotal evidence, relevant facts and ignored statements do not assure public confidence in both the process and outcome.