When a diplomat says yes, he means ‘perhaps’;
When he says perhaps, he means ‘no’;
When he says no, he is not a diplomat.
—Voltaire (Quoted, in Spanish, in Escandell 1993.)
The aim of my writing is not to trace the origin of language, and decipher complex ideas like B.F. Skinner’s “operant conditioning” or Chomsky’s “innate organising principles“, though I personally favour the latter.
Without dragging this further, since I am woefully ill-equipped to deal with the complexities of linguistics, I would rather make recourse to the topic of the importance of language within the legal context.
I will forever remember these immortal words of Professor Sir Kofi Kumado, “A lawyer should be on top of the language he practices in.” Both he and Professor Henrietta Mensa-Bonsu demand that students clearly voice out what they mean. She often says, “I know what you want to mean, but you have not said it…so say it”. She would never permit one to use ‘yes’ to mean ‘perhaps’. I remember Professor Nii Ashie Kotey interrupting a student to lecture her on the difference between similar and identical. Dr. Raymond Atuguba never lets anyone complete a sentence stained with bad grammar. The late Justice Antonin Scalia, in an interview, after expressing his love for language, mentioned just how much he got upset whenever he heard “infer” being used to mean “imply” and just how he hated bad grammar! That language is a lawyer’s key tool cannot be overemphasised.
One of The Four Great Doctors of the Western Church, who has been titled Doctor gratiae, the very renowned St Augustine, in an essay, “De Doctrina Christiana” (an exegetical work) argued that, before attempting to interpret and teach from the Bible, you should know “the arts of the trivium” –grammar, logic and rhetoric. This, he said, helped him in understanding anything he read and also to articulate anything he thought.
One of the areas in which I’m awed by the law is its use of language. Orators spilling rhetoric; that is what I go to court to hear.
I also have a predilection for the philosophy of language. Very often it is the poets who achieve unparalleled mastery of language. I hear that it is argued that the English language reached its pinnacle thanks to people like Shakespeare, John Donne and Milton- who were all poets. And the same may be said of Homer’s contribution to Greek.
The eloquent Roman consul Marcus Tullius Cicero doubled as a lawyer. Language was his tool and he used it effectively, as The Catiline Orations reveal.
‘When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?’ were his opening remarks to the Catiline orations, with which he successfully made a case against Lucius Sergius Catilina and his allies who were planning to overthrow the government.
Again, we can clearly see the importance of language in law when we look at the role it plays in legal interpretation (which has been competently dealt with here) and jurisprudence. It is not for nothing that the constitution gives such great powers of interpretation to the Supreme Court. We see how words play a vital role in H.L.A. Hart’s critique of Austin’s Command Theory of law in his The Concept of Law. Many other theorists, if not all, rely heavily on language and its subtleties in propounding their theories.
It is not surprising that Hart named P.F. Strawson as one of the people he was most grateful to for reading the text and for his beneficial advice and criticism. P.F. Strawson, among other things, was a philosopher of language who ‘…was a great respecter of the subtleties of ordinary linguistic usage…’ He is most famous for his statement, ‘To refer is not to assert, though you refer in order to go on to assert.’
So back to Hart. One of his several criticisms of Austin is that, seeking a uniformity of pattern to which all laws may be reduced, comes with a fault; that of distorting the different social functions which different types of legal rules perform. In calling all laws orders backed by threats, he continues, a crowd of objections leap to mind.
It goes without saying that vagueness is a big problem in the law. In criminal law for instance, the law should clearly state what conduct it seeks to prohibit so that citizens can conduct their lives accordingly.
‘A statute is vague … where it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application’ –Tsatsu Tsikata.
Justice Douglas remarked in the US case of Papachristou v. City of Jacksonville that failing to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute is unconstitutional. The principle of legality is not limited to the requirement that a statute must provide an ascertainable standard of guilt – it has also been extended to the provision of minimum guidelines to govern law enforcement. So as Justice O’Connor said in the US case of Kolender, Chief of Police of San Diego v. Lawson, “Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.”
We again can see the importance of precision of language in law. I find it difficult to conceive the law without language. After all, as Heidegger rightly noted, Die Sprache ist das Haus des Seins, language is the house of Being.