Vol. 4 No. 4 (April, 1994) pp. 47-49
THE LANGUAGE OF JUDGES by Lawrence M. Solan. Chicago: University
of Chicago Press. 1993. 230 pp. Cloth $45.00. Paper $12.95.
Reviewed by Bryna Bogoch, Department of Interdisciplinary Social
Science Studies, Bar-Ilan University.
Lawrence Solan's book is the latest contribution to the series of
studies of Language and Legal Discourse, edited by William M.
O'Barr and John M. Conley. The appearance of this series is proof
of the affinity between the fields of linguistics (in all its
manifestations) and the law, and has provided a welcome outlet
for the expanding literature on the topic.
The stated goal of Solan's book is to show how judges
"resort to linguistic argumentation...to find a seemingly
scientific and neutral justification for difficult decisions...
in an effort to mask some other agenda that is at the root of the
judge's opinion" (page 11). He bases his thesis on the late
Justice Cardozo's description of judicial decision-making in a
system of law that cannot possibly, and indeed, was never
intended, to mechanically predict each and every new situation.
It was Cardozo's contention that judges tended to deny the
flexibility of legal principles and their own motives for making
specific decisions. Solan seeks to show that judges prefer
legitimating their decisions on the seemingly more objective and
universal nature of language, especially when their own sense of
justice demands a certain course of action that legal principles
cannot fully support. However, more often than not, Solan's
analysis, although clearly written and at times even funny, is
not persuasive. In fact, some of his examples demonstrate that
judges ignore language issues altogether; others deal with topics
that hardly relate to the main thesis. Solan's book would have
been more successful had he not set up these expectations, and
had defined his goals more generally as the exploration of
linguistic issues in judicial decisions. Still, both legal
scholars and linguists will appreciate his descriptions of the
intertwining of language and legal issues in the language of
judges. Indeed, few are as qualified as he is to deal with this
subject, having been trained in both linguistics and the law.
In analyzing judicial decisions, Solan distinguishes between the
decision itself and the justification for the decision. In the
best chapter in the book (chapter 2), Solan focuses on
justifications that are based on linguistic, rather than legal,
principles. He concisely presents certain linguistic principles,
such as the last antecedent rule in the use of pronouns, and then
shows how these are invoked by judges in justifying their
decisions. Solan is at his best in summarizing legal disputes and
in explaining the principles that are used by the judges in their
decisions. Even readers with no legal background will be able to
follow the arguments and issues involved in decisions about
trusts, forfeitures, custody, and harassment. His main argument
-- that judges are not consistent in their use of linguistic
principles and that these are used to further other aims -- is
most clearly documented in this chapter. Thus, for example, he
shows how a far-fetched application of the last antecedent rule
is used to ensure that an innocent victim will obtain immediate
compensation from an insurance company.
Chapters 3 and 4 focus on ambiguity in legal concepts and
principles. Solan presents cases in which the determination that
a concept in a statute is ambiguous has important consequences
for the final decision. While the determination of ambiguity is
conceivably a linguistic issue, Solan reveals that judges do not
resort to linguistics to determine the ambiguity or clarity of a
concept. Rather, judges decide on the ambiguity of a term on the
basis of precedent and substantive legal concerns. Thus, although
his analysis reveals such anomalies as a unanimous decision among
the nine judges that a statute was unambiguous, but a split of
five to four on what the statute meant, this does not support the
main thesis of the book. Instead of demonstrating that judges
mask their real motives by recourse to linguistic principles,
Solan actually shows that linguistic issues are ignored or
subsumed by ideological considerations.
In chapter 5, Solan switches topics. Here, he seeks to explain
why legal language is so
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complicated and describes the efforts of the Plain Language
movement to simplify legal language. Aside from their tangential
relevance to the main topic of the book, these issues have been
analyzed more thoroughly elsewhere. A case in point is the reason
for the convoluted language used in legal texts. Contrary to
various conspiratorial theories that claim legalese serves
lawyers' self interests, power and prestige, Solan blames the
continued use of jargon on "the fear of abandoning
successful formulas...and simple inertia" (p. 134). A much
more satisfying explanation is provided by Danet (1984) who
demonstrates by reference to rhetoric and poetics how the
syntactic and semantic features of legal language provide a sense
of authority and finality in crucial human affairs. While Solan
also refers to the need for creating the illusion of
definitiveness in legal documents, he would have benefited from
Danet's analysis to prove his case.
On its own, chapter 6 would have been a fascinating article,
outlining the principles used in judicial decisions based on the
Fourth and Fifth Amendments (against unreasonable searches and
self incrimination respectively). At issue are the interpretive
principles used in deciding whether a corporation is a person and
thus cannot be forced to incriminate itself, what counts as an
admission, and what defines the area in which a person has a
reasonable expectation of privacy. In all these cases, Solan
contends that the Supreme Court has not been consistent in the
application of these interpretive principles. Sometimes
linguistic principles are used in decisions, but more often than
not, they do not contribute to the court's decision. Again,
instead of illustrating the claim that judges restrict the debate
to the meaning of terms while hiding the true substantive issues,
his examples show that judges generally do not rely on linguistic
definitions but extend their interpretation to a wide range of
issues. The role of language is limited to the restriction of the
range of possible interpretations. In fact, it is Solan's skill
in untangling the complexity of the factors involved in
interpretation that is one of the strengths of his book.
What Solan particularly resents is the fact that judges present
their decisions as the inevitable consequence of legal doctrine,
rather than admitting that legal principles cannot resolve every
dispute. He feels that the failure to present the real reasons
for their decisions damages the credibility of the entire system,
and results in a lack of confidence in the rule of law. At the
same time, he acknowledges that any judge who would candidly
admit that there are no legal principles to explain certain
decisions, would also reduce the stability of the system.
It seems to me that Solan overstates his case. Surely the fact
that dissenting opinions are offered with the same authority and
inevitability as are majority opinions underlines the flexibility
of the system, without detracting from its credibility. Moreover,
it is not necessary to posit a deliberate attempt to mislead when
judges stress the legal doctrine behind a decision they may have
taken for other, more ideological reasons. In accordance with
Fish's (1989) theory of rhetoric in legal texts, a distinction
can be made between the judges' actual decision-making process,
and the presentation of a persuasive account of their decision.
Fish claims that when judges justify their decisions, they are
not trying to be dishonest, but that in order to persuade their
audience, they must phrase their reasons within the accepted and
legitimate legal frame. Solan does not accept the rhetorical
explanation. As proof, he refers to the many simple cases where
judges routinely use doctrine, and in which there is no
distinction between the decision and the justification. However,
because the book focuses mainly on those decisions that are not
clear-cut, Solan's rejection of rhetorical explanations is not
convincing.
Thus, although I was not persuaded by Solan's arguments, I found
his analysis incisive, thorough, and (a rarity in academic texts)
eminently readable. It is a worthy contribution to the series.
I must add one technical criticism. Although I realize that some
legal publications
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still cite references in footnotes, I personally find it
irritating not to be able to look up citations in an alphabetized
list. I hope that the next books in the series on Language and
Legal Discourse will maintain the standard format of the social
sciences that has characterized previous publications.
REFERENCES
Danet, Brenda (1984). "The Magic Flute: A Prosodic Analysis
of Binomial Expressions in Legal Hebrew," in Brenda Danet
(ed.) STUDIES OF LEGAL DISCOURSE. Special Issue. Text 4, 1-3:
143-172.
Fish, Stanley (1989). DOING WHAT COMES NATURALLY: CHANGE,
RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL
STUDIES. Durham: Duke University Press.
Copyright 1994