ad astra per alia porci

word games
December 15, 2007, 7:57 am
Filed under: diary, Law


One disturbing yet fully understandable observation I made while studying the law is the unavoidable reliance of the law and our common law system at least on word definitions and interpretation. Legal concepts are at theirs roots abstract creations, and by embodying it in language the problem of interpretation and definition arises in such a way that it creates uncertainty and much room for exploitation. The inherent slipperiness of language lends itself to judges interpreting words in the light of their own moral values while hiding behind the cloak of objectivity that the law itself is suppose to stand on.

I contend that in this aspect at least, the law necessarily stands on wooden stilts. However the limitations of language and practical reality make it impossible to ever provide definitive and unambiguous legal rules.

Being just a first year student, I naturally cannot make any substantive and well-informed comment on the law outside of what I have studied. Hence my focus here is on contract and tort law. Even though I have studied these substantive law subjects, I can scarcely be considered to be well-versed and what comment I make must be seen in this light. That said, I do believe that a law student, as with any other student of other disciplines, is in a position to make at least a personal and rational observation of what he or she studies. While my main concern here relates to language, my comments will inevitably flow into other concerns.

The inherent ambiguity of language leads to uncertainty and offers room for conflicting interpretations that might lead to unfairness and the bane of subjectivity.

The concept of a duty of care in the tort of negligence is a prime example. As far as I am concerned, the fact that I cannot find a single sentence that defines what is a duty of care in any textbook that I have consulted is a indication of the inherent abstract and amorphous nature of this concept. The evolution of the various tests for a duty of care is evidence of the law’s struggles in coming to a precise definition and framework for determining a duty of care.

Even with the new test established in Spandeck Engineering Pte Ltd v DSTA, the ambiguous nature of what is “proximity” and “policy” remains. While the learned CJ did point out the factors stated by Deane J in Sutherland Shire Council v Heyman like “assumption of responsibility”, “reliance”, “causal proximity” and “circumstantial proximity” as some factors that might be seen to fulfill the requirement of proximity, it remains that firstly the factors are inexhaustive and not definitive, and secondly the issue of word interpretation still remains. What is “reliance”? What is “causal proximity”? Such concepts are totally reliant on how the judge perceives a particular set of facts to entail. What seems to be reliance to one is not to another.

The concept of proximity is largely ambiguous largely because this concept involves subjective questions of value and morality. To say that a person assumed responsibility is to state a value judgment. One of my lecturers was dead right when he commented that the reason for the confusion over the test for duty is that proximity necessarily overlaps with concepts of fairness, justice and policy. Lord Denning got it right when he stated that issues of causation, duty, the standard of care and remoteness are at root questions of policy and value judgments in Spartan Steel & Alloys v Martin & Co.

Even though the court in Spandeck saliently pointed out that the requirements of policy and proximity should be clearly delineated and judges should clearly express reasons separated into the two categories so as to not leave lawyers wondering whether a judge has unexpressed motives behind a judgment which is cloaked under the banner of proximity, the same problem remains because such decisions are made from a subjective, unconscious level. Proximity remains a question of both fact and value.

The crucial question is, what can be done to make things clearer? Can better words be used to enunciate and give life to a concept? I doubt so. I think that what can be realistically done is to show what is NOT within the ambit of a concept through the development of case law. Take the modern “radical difference” test for the doctrine of frustration to operate in contract law. The phrase is open to a multitude of interpretation, but the existing case law gives solid insights into what is not frustration. Reduced profitability (Glahe International Expo AG v ACS Computer), onerous performance (Davis v Fareham UDC) and the possibility of alternative methods of performance (Tsakiroglou v Noblee Thor) are not frustrating events. But we still do not know for sure what IS frustration, within the context of the “radical difference” test. It remains an open-ended question. The question still remains one of linguistic interpretation of what is “radical difference” within the framework of facts. Giving more words or different words for the same test will only lead to the same question and ambiguity.

This manifest uncertainty has gone quite a bit to inculcate a profound weariness and cynicism in me about whether the law can provide a framework of certainty to human relations and offer justice at all. It seems that the law is basically an exercise in wordplay and subjective opinion. Crucial words like “proximity” are interpreted and applied to facts to decide cases but they offer no certainty. Judgments that are made based on the private emotions and values of judges cloaked by a veneer of objectivity through concepts embodied by words like “proximity”, “assumption of responsibility” and “policy”.

The unnecessary overuse and verbosity of language in judgments is a serious yet laughable problem. Generations of law students, practitioners and academics spend hours and hours poring over and dissecting the speeches of judges to uncover slivers of truth in the mountains of inanity and unnecessary words. At the root of this problem is the inherent inscrutability of what is being said, the excessive use of words to express what seems to be intended, and even if the speeches are clear, there is significant room for diversity of interpretation.

At the risk of sounding flippant and disrespectful, I believe that much pain and inconvenience can be obviated by teaching judges to consolidate their judgments into one, clearly expressing and identifying their opinions as personal opinions when they are, and practising self-editing and summarising. I sincerely believe that the same can be said with a lot less.

This is especially evident in the English cases that I have come into contact with in my studies. At best, all judges agree and there is one leading speech. At worst, 7 judges do not agree unanimously and when they do agree, they agree on the same holding through different reasonings. At many instances, judges say similar or identical things. I believe the Singaporean way in which one judge gives a consolidated judgment that is succinct and appropriately summarised leads to greater efficiency and better justice. Simply put, being clear makes better law.

Don’t get me wrong, I am not a fan of narrow thinking and sterility of thought. The dialectic nature of the law, especially common law, is the beauty of it. It adapts and changes through distinguishing and applying cases. However, my contention is that this same purpose and goal can be achieved much better through a consolidated, one judgment system where conflicting counterarguments can be incorporated into the single judgment.

The cult of hero-judge worship is to me a unhealthy corollary of this problem of excessive language. One need not look further than Lord Denning as an example. There is no doubt that he was a brilliant man and a great judge that had served to improve and develop the law, but perfection is not a human trait. While his speech in Miller v Jackson might exude poetic airs, realistically speaking it serves no purpose in developing the law.

In my perspective law is practical philosophy, and philosophy is arguably a linguistic exercise in which we as humans are limited not so much in thought but in the words we can possibly use to express ourselves. Wittgenstein probably hit the nail on the head in his summary of his famed Tratatus-Logico Philosophicus, where he opined that what can be said can be said clearly while what cannot be said must be passed over in silence. Applying this truism to law, it follows that what can be said in a judgment can be said clearly and succinctly within the limitations of language used to express abstract legal concepts. Language is all that we have and its inherent ambiguity and inadequacy are characteristics that we have to live with.



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