Legal Trickery #

Our public courts have become a cock pit driven by a trial by a combat mindset of conflict that is undermining the way decisions are made, the way we see the world and the way we relate to each other.

For too long, the law has used the alleged backwardness of the public to justify their entitlement of superior insights. Since universal education, many professions have surpassed the scientific methodology of the legal/judicial procedures or due process. Scientists, philosophers, historians and other scholars would be ashamed to make some of the privileged leaps of faith made by some courts.

The Anglocentric justice systems suffer from a sclerotic culture emptied of its essential identity, its central ideas, its core values, its founding principles and its primary purpose of protecting the weak from the powerful in order to provide for the common good. They simply have lost the plot, and in their blind folly have little chance of finding their true selves again.

Many apologists for the legal industry desperately need remedial lessons in semantics. Meretricious gimmicks with specious arguments hold sway.

Due to the adversarial nature of our justice system, it becomes necessary to demonise one side and beatify the other; the court’s worldview, hasn’t been updated since trial by combat was introduced in the 12th century; merely transformed from physical to verbal stoushes where performance; theatrical antics, sophistry, casuistry – lies - carry more weight than material evidence.

All we ask of a legal system is that they help light our path to truth. Instead we are given the strong impression that most prefer to spread shadow - doubt, simply to provide more work and income for themselves and their industry.

Called the burden of proof, it transmogrified into absolute proof – an impossibility. Cardinal Pell relied on it to deny countless accusations against the priests under his watch and his own multiple allegations. After two years of legal wrangling, he was sent to jail, only for the High Court of Australia to give him the benefit of doubt. Immediately his cheer squad claimed his innocence.

There were many tools of persuasion that epitomize the inherent mindset of an archaic - past its use by date - adversarial system. One piece of tactical wisdom most people have heard parroted at some point is about defining the battleground. If you can set the terrain on which the argument is fought, goes the theory, then you will win. It’s all in how you frame the language and the parameters.

It is the deceit of words and sleight of hand which may not involve any deliberate falsehood, but inferentially manipulates our perceptions, what Wittgenstein calls the “bewitchment of our intelligence by means of legal inflected language and eristic argument”.

Judges and Barristers can perform convoluted and unseemly sets of linguistic gymnastics to justify their determinations. Some have an insatiable appetite for corporate and legal skulldugger, chicanery, machinations ….

The key to a complex argument, is not open to any spin you choose to put on it, or dogmatic assertions delivered with bluster, bombast or pomposity; but quiet authority, authenticity – assured by logic and the testing of fact.

We recognise that there can never be a wholly true representation of reality as it is at the mercy of perception, perspective, time, memory and language

Poetry and the law #

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?

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.

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.

Most communication uses persuasive techniques to play on our standard cognitive mechanisms.

“Sometimes the exquisite finery of the law can take your breath away.” Richard Ackland

The authority of the language of the courts, is threatened, subverted and even violated by deliberate perception manipulation – a warping of reality..

Randall D. Eliason in The Atlantic claims the Fischer v. United States, the Supreme Court ignored the clear language of a federal obstruction-of-justice statute to hold that the January 6 rioters who breached Capitol barricades, assaulted police officers, broke doors and windows, and forced members of Congress to flee for their life did not “obstruct or impede” the congressional proceeding to certify the election.

This 6–3 decision, authored by Chief Justice John Roberts, can’t be squared with the language of the statute—or with common sense.

The justices purport to believe in textualism, an approach to the law that says that when interpreting a statute, a judge should first defer to the plain language as written by Congress. But the mental gymnastics employed by the Court to reach the result in Fischer highlight how this Court often only pretends to deploy textualism in pursuit of its preferred outcome.

In Canada, The Canadian Judicial Council simply ignores a statute on open transperancy