Words and law: etiquette and communication in one of the most important spheres of public life

Lord Johnston (see below) is the man on the left

One of the worst offences against etiquette which a writer can commit in the public, as opposed to the private, sphere it to write without regard to the reader. When writers start, in effect, talking to themselves then the basic purpose of putting finger to keyboard, which is to communicate, is lost.

I wrote on 5 December 2013 about the difference between the language used by the President of the Constitutional Court of Russia, Professor Valery Zorkin, and the famous English judge and obstrepulist (that is a word I have just made up to define someone who enjoys being obstreperous) of the 1960s-80s, Lord Denning. See this link. Professor Zorkin reveals by his language his legal elitism, while Lord Denning parades (perhaps a little ostentatiously) his “common man” approach.

Legal elitism of the sort Professor Zorkin displays lies at the heart of most systems of non-military authoritarianism. The state and its senior officers have a language that the common people do not understand. They depend for their power on their ability to keep the people mute in the forum where it counts: the law. One of the reasons for the state of governance in Russia today is the lack of pubic participation, and one of the reasons for that is that law is in the hands of legal elitists. One of the reasons for that is the unreasoning admiration which Russian legal scholars have had for the last hundred and fifty years or so for German legal scholarship. I write all this because I recently came across a staggering example of what I mean: a German who managed to make Professor Zorkin look positively lucid.

Call me sad, but I spend most of my mornings in bed with a huge mug of Earl Grey tea reading stuff like the Boston College Law Review and the Harvard Law Review. Yesterday morning I was enjoying a long article in the former journal, by one Mathias Reimann, entitled “Nineteenth Century German Legal Science” (Vol. 31, 1990, p. 837 if anyone wants to read the rest). On page 863 I came upon a quote from Rudolf von Jhering, one the greatest German legal scientists of that century, after von Savigny. It is taken from his book Geist des Römischen Rechts (The Spirit of Roman Law) volume 2, published in 1865. This passage was considered so important by Mr Reimann that he quoted it as an example of “organic” trend in mid-nineteenth century, academic jurisprudence in Germany. If anyone can make any sense at all out of this, I will be surprised. I give it to you as an example of how NOT to write!

“[The essence of law] does not lie in the fact that the law cannot be under­stood without its systematic coherence, because this is the case with any object of knowledge. In law, the distinctive characteristic of the systematic task is that the particular is not only, as in any other science, put in its right place, but that this formal process has a sub­stantive effect on the subject matter, that this procedure causes an internal transubstantiation of the maxims of law. The maxims of law take on an elevated condition, they strip off their quality as commands and prohibitions and form themselves into the elements and qualities of legal institutions. A layman would hardly deem it possible how in the legal concepts, classifications, etc., in short, in the dogmatic logic, there can be a practical meaning more intensive than in the maxims of law. This logic of the law is, so to speak, the blossom, the praecipitat (sic) of the maxims of law; in one single, correctly stated con­cept there lies perhaps the substantive contents of ten prior maxims of law.”

This morning, I read a shorter article in the Harvard Law Review (Vol 9, 1895, p. 27) entitled “Judicial Precedents – a Short Study in Comparative Jurisprudence”. The author, one John Chipman Grey, explained how German law in the middle ages had many features of the common law system. It was based on ancient custom and therefore relied heavily on precedent. It also made use of juries and therefore could not have been elitist since ordinary people sitting on those juries had to be able to understand what went on in court. But all that started to change at the end of the eighteenth century when jurists like von Savigy decided the law had to be “purified”. Customary procedure was considered rustic and embarrassing—what Russians like Professor Zorkin would call провинциальный (provincial). In order for the country to be respectable, this had to be replaced by something closer to the classical Roman “ideal”.

Mr Grey’s point was that the people who destroyed the customary law in Germany were able to do so only because the tradition of allowing non-lawyers, including law professors, to sit in high legal forums. This allowed the busy-body, self-promoting professors to gain control of the court organization. They used their resulting control to exclude other lay people and promote the idea that the only people who ought to be taken seriously were academic jurists like themselves. (This echoes the way conservationists in Britain today have elbowed farmers and other country people out of the business of caring for nature—see my book Isles of the West.) Judges were relegated to the lower function of merely applying the law which had been worked out in academia by the likes of Herr Jhering. That is how law lost contact with the people. This is what Mr Gray has to say about the subject:

“The introduction of the Roman law into Germany and its driving out of the ancient law were mainly due mainly to doctors of civil law acquiring judicial positions. This seems to be the conclusion reached by all the late writers. But the modern German civilians [i.e. proponents of Roman law] have rather ungratefully kicked down the ladder by which they themselves climbed, and exhibit a great repugnance to recognize judicial decisions or Gerichtsgebrauch [i.e. precedent] in any form as a source of law.”

Whatever else may be said about all this, I think it would be fair to remark that Mr Grey’s prose is more comprehensible than Herr Jhering’s. A jury would be more likely to understand it. In one sense, it is anti-elitist simply in its lucidity.

The importance of all this lies in the fact that the European Union has, like Russia today, a legal tradition that is very much influenced by the German approach to jurisprudence. It is wordy and elitist. The dark heart of this elitism lies in the dead language of both European Union Directives and European Court of justice judgments.

Let me contrast that with a scene I witnessed in a Scottish court about fifteen years ago. Two European Directives, the Habitats and the Birds Directives, were being considered in relation to the issue of shooting geese which eat the grass farmers have grown to feed their sheep and cattle. The issue had arisen on the isle of Islay, where I used to live. I quote from an article I wrote in The Ileach about the case. It concerns the judge who is at the front of the procession which is pictured on the cover of my book, The Justice Factory (see above). Though sadly now dead, he was a wonderful man, called Lord Johnston, who was commonly thought to have a feel for the just solution to any case which came before him, and he permitted himself to use the law to achieve an equitable outcome to all disputes he was called upon to decide.

In this case, he also displayed a thorough disdain for the language of modern European legal drafting. In the exchange below, he is being addressed by the advocate, Sir Crispin Agnew of Lochnaw, who was representing a pharisaic bird protection society, the RSPB, which thought that farmers ought to be compelled to buy hay to feed their livestock while they allowed the geese to eat the grass which they had grown to feed their animals. That is typical of the logic of modern conservationism—the birds come first. But my point here is about language. This is my record of what Lord Johnston had to say on the matter (the case is described briefly on p. 257 of The Justice Factory):

            “What My Lord will have to construe,” Sir Crispin said to the Judge, “is the meaning of ‘satisfactory solution’.”
            The reason was that whereas the Habitats Directive talks about satisfactory solutions, the Birds Directive refers to satisfactory alternatives.
            “I would submit that alternative is wider than solution,” Sir Crispin continued.
            Lord Johnston took off his spectacles, and swung them round by the legs while gazing up at one of the patches of paint flaking off the ceiling. He could have been construing, but he looked to me as if he was thinking about lunch.            Paying farmers to buy in hay to replace the grass eaten by the geese would represent a “satisfactory alternative”, Sir Crispin went on, and therefore render any shooting illegal. The Judge put his specs back on, looked closely at his copy of the two Directives and said to no-one in particular, “Who writes this stuff?”