NOTE
“Criticising the Judges”: Some Preliminary Reflections on
Style
Dennis R. Klinck*
Taking as his point of departure the not infre-
quent allusions in legal commentary to the
importance of “literary qualities” in judicial
writing, the author attempts to illustrate an
approach to the stylistic criticism of judg-
ments. At the outset, he suggests that the inti-
mate relationship of form to content makes
style a significant element in meaning, and
argues that legal commentators’ observations
on style are too often rather superficial,
impressionistic, or question-begging. He then
applies a fairly detailed linguistic and literary
analysis to three very brief samples ofjudicial
prose, and considers how aspects of style con-
tribute to the effects the passages have. He
suggests that stylistic criticism should rec-
ognize that whether a writer’s style is “good”
or “bad” depends on what effects the writer
is trying to create, and that before making
evaluative statements about style one has to
be able to identify and describe the elements
of style and their influence on “meaning”.
I.
Introduction
Partant des fr~quentes allusions faites dans
les commentaires juridiques quant A ‘im-
portance des <( qualit~s litt~raires >> dans
l’ criture juridique, ‘auteur tente d’illustrer
une approche de la critique stylistique de
jugements. Dans un premier temps, il sou-
tient que le lien intrins~que entre ]a forme et
le fond fait du style un l6ment important de
Ia signification, et pr6tend que les observa-
tions stylistiques des commentateurs sont trop
souvent superficielles ou impressionnistes, ou
qu’elles prennent pour acquis des questions
non r6solues. I1 effectue ensuite une analyse
litt&aire et linguistique d6taille de trois brefs
exemples de prose judiciaire, et cherche A
d6terminer ‘apport du style a ‘effet cr66 par
ces passages. Il pr6tend que ]a critique sty-
listique devrait reconnaltre que la qualit plus
ou moins bonne du style d’un auteur depend
de l’effet que ‘auteur veut donner A ce qu’il
6crit, et qu’avant d’6mettre des affirmations
qualitatives sur le style, il faut atre A meme
d’identifier et de dcrire les 616ments de style
et leur influence sur ]a signification d’un texte.
I take the first part of my title from an article by Robert Martin, pub-
lished in the McGill Law Journal in 1982.1 Martin advocates a critical
approach to judicial opinions and identifies three factors that should be
considered in judging judgments: logical consistency, literary quality, and
responsiveness to social issues.
I am concerned here with the second of these –
“literary quality” –
and, when I mention Martin, I should be taken to be referring only to the
brief section of his article where he introduces this issue. Indeed, he says
enough only to indicate that the literary qualities ofjudgments are important
and to provoke a response –
perhaps like mine here.
*Of the Faculty of Law, McGill University.
1R. Martin, “Criticising the Judges” (1982) 28 McGill L.J. 1.
McGill Law Journal 1986
Revue de droit de McGill
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[Vol. 31
that is, their actual decisions –
The first question that might arise is whether literary quality, or style,
is really very important. After all, what should concern us is what judges
or at most what they say, not how
do –
they say it. One response to this is, simply, that how we say something is
what we say. Thus, for example, William O’Barr points to “the inseparability
of form and content” and says emphatically, “FORM COMMUNICATES”. 2
All the reader has before him is the text, and it may be convincingly argued
that a paraphrase is inevitably an inadequate representation of what the
writer said.3
If form does indeed communicate, a sensitivity to matters of style can
be illuminating in at least two important ways.
First, it permits the reader (or hearer) to recognize intentional rhetorical
strategies used by the writer to create the effects that are part of a text’s
meaning. The ability to read a rhetorical structure (as opposed to simply a
logical one) critically is particularly valuable in law, which S.I. Hayakawa
includes among the “hortatory” professions.4 Thus, even judges, in so far
as they are writing “opinions”, are attempting to persuade – persuasion is
inevitably involved with stylistic choice. Even when a writer or speaker is
not thoughtfully and deliberately choosing each word, he may adopt a rhe-
torical strategy by shifting, in certain circumstances, almost automatically
into a particular style of discourse. For example, there are probably times
when lawyers unreflectively “talk like lawyers”. The auditor who can read
the meaning of the style is likely to be well placed to apprehend what it is
that he is being asked to accept. As Berel Lang has observed:
Style is not everything in the text, but there is nothing that is not touched by
it –
and this means that unless we read for style consciously, with awareness
2W.M. O’Barr, Linguistic Evidence: Language, Power, and Strategy in the Courtroom (New
York: Academic Press, 1982) at 2 and 1.
3For the classic statement of this is relation to poetry, see C. Brooks, The Well Wrought Urn:
Studies in the Structure of Poetry (New York: Reynal & Hitchcock, 1947) c. I I entitled “The
Heresy of Paraphrase”. For similar observations in relation to philosophy, see L.B. Brown,
“Philosophy, Rhetoric, and Style” (1980) 63 Monist 425; and B. Lang, “Towards a Poetics of
Philosophical Discourse” (1980) 63 Monist 445. In the latter article, Lang discusses two ways
in which form may determine content. The first would be by “corroborating” or reinforcing
other features –
notably, “theme”. Thus, one selects stylistic devices to say what one wants
to say more effectively. The second way is more radical, involving “determination” in the strict
sense, of meaning by form. That is, supra at 457, “content cannot even be formulated inde-
pendently of the stylistic features.”
4S.I. Hayakawa, “Semantics, Law, and ‘Priestly-Minded Men’
(1958) 9 W. Res. L. Rev. 176
at 179. See also M.E. Gold, “The Mask of Objectivity: Politics and Rhetoric in the Supreme
Court of Canada” (1985) 7 Sup. Ct L. Rev. 455 at 455; he makes the point that the “centrality
of argumentation”, especially in judicial opinions, invites rhetorical analyses.
1986]
NOTE
of its role in shaping the process of reading, we shall be reading style anyway,
but as nature – our own nature.5
The other use of a critical awareness of style is that it can provide an
insight into the quality of the writer’s or speaker’s thought. One often hears
statements such as “X had a good idea, but he couldn’t explain it” or “X
didn’t express himself clearly, but this is what he meant, or what he was
thinking”. Such statements assume that thought and expression are discrete
processes. There are those, however, who argue that language is not merely
the vehicle by which we give expression to our thoughts; it is the mode in
which we think. “How”, the saying goes, “do I know what I think until I
see what I say?” The implication of this view is that vagueness, confusion,
awkwardness and staleness of expression correspond to similar qualities of
mind. This seems to be much of the burden of George Orwell’s article
“Politics and the English Language”, as, for example, when he says of the
writer who (inadvertently) uses worn-out or mixed metaphors that he “is
not seeing a mental image of the objects he is naming; in other words he
is not really thinking.’ 6 James Lindgren has recently reiterated this view:
“This, then, is the saddest consequence of bad writing –
it hides, distorts,
and ultimately prevents thought.”‘7 If such a view is correct, then how we
say something is very significant indeed, and, for example, clarity of express-
ion can be seen as an essential element in clarity of thought.
for whatever reason –
Perhaps not everyone would agree that the relationship between expression
and thought is as intimate as Orwell and Lindgren suggest. Nevertheless,
one frequently hears lawyers expressing concern –
about the style of legal writing and appealing for its improvement. Thus,
Martin looks (generally in vain) for “precision, clarity, elegance of express-
ion” in judgments; 8 J.O. Wilson tells judges that their writing should be
“lucid, concise and pungent”; 9 and Roman Komar devotes twenty pages of
his recent book to giving judges advice on how to improve their writing.10
Again, although legal commentators do not always explain why style is
for clarity of thought, for clarity of communication, for effi-
important –
ciency, for euphony, for persuasive effect –
there seems to be a consensus
about the desirability of “good” writing in legal contexts.
5Lang, supra, note 3 at 460-6 1.
61n G. Orwell, Shooting an Elephant and Other Essays (New York: Harcourt, Brace & World,
7J. Lindgren, “Style Matters: A Review Essay on Legal Writing” (1982) 92 Yale L.J. 161 at
1950) 77 at 86.
187.
8Supra, note 1 at 7.
9J.O. Wilson, A Book for Judges (Ottawa: Supply & Services Canada, 1980) at 84.
‘0R.N. Komar, Reasons for Judgment: A Handbook for Judges and Other Judicial Officers
(Toronto: Butterworths, 1980).
McGILL LAW JOURNAL
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A significant difficulty facing legal literary critics is that they have not
always succeeded in working out their standards ofjudgment very precisely.
Indeed, Martin observes that “[t]here are no accepted criteria of legal literary
criticism”, ” I a point he apparently takes from W. Twining: “A striking feature
of legal literature in the western world is that there appears to be a total
absence of any coherent theory or set of standards for legal literary criticism.”’12
The point can be illustrated briefly by sampling Komar’s approach. He
begins his discussion by listing several examples of bad judicial writing, but
he does not explain what is wrong with them. Instead, he relies on res ipsa
loquitur and a general statement about “syntax”. Later, he advises judges
to use British spelling (“gaol”) in preference to American (“jail”), but does
not explain why. What theory of language supports retaining the British
form? Is the archaic flavour of “gaol” more appropriate to solemn legal
discourse than the trendy and vulgar “jail”? Another piece of advice is that
judges should keep a thesaurus nearby. While extending one’s vocabulary
is a commendable aim, the practice of “looking up synonyms” carries with
it the danger that the writer will use words he has not really assimilated.
One does not develop vocabulary by memorizing synonyms, but by reading,
seeing words in contexts, and grasping their connotations. Komar’s own
vocabulary –
is in places rather uncertain.
What he is discussing, one might assume, is “rhetoric”; however, when he
uses this word, he uses it in an inexact colloquial sense: “Rhetoric may be
excusable in a lawyer, but a judge should be able to express views that
transcend the hostilities of the parties.”‘ 13
at least his critical vocabulary –
One discerns in these examples a number of tendencies that are not
uncommon in lawyers’ comments on writing. Among these is a kind of
critical inarticulateness: “I know that something is wrong with this; here,
look at it; see what I mean?”’14 Another tendency is to adhere to rules (“use
British spelling”) which may be quite arbitrary. Yet another is the notion
l
I Supra, note I at 6.
12W. Twining, “The Concept of a National Legal Literature” in W. Twining & J. Uglow, eds,
Legal Literature in Small Jurisdictions (London: Commonwealth Secretariat, 1981) 7 at 10.
13Komar, supra, note 10 at 40. Gold, supra, note 4 at 457, for example, notes that this
“popular” sense of rhetoric “long has been abandoned in the field of rhetorical theory and
criticism”.
4See, for example, Martin’s comment on the passages discussed below, and the catalogue
of examples of”fine” writing appended to G.J. Miller, “On Legal Style” (1955) 43 Ky L.J. 235.
Even Lindgren, who displays a detailed consciousness of”style matters”, is occasionally rather
imprecise –
for example, when he says, supra, note 7 at 162: “This sentence is all bumps.”
For an argument that describing the style of a text requires familiarity with a specific, accurate
and coherent account of language, see M.A.K. Halliday, “Descriptive Linguistics in Literary
Studies” in D.C. Freeman, ed., Linguistics and Literary Style (New York: Holt, Rinehart &
Winston, 1970) 57.
19861
NOTE
that writing can be made more impressive by ornamentation (“consult your
thesaurus so that you can spruce up your composition with some unusual
diction”). The obverse of this tendency is a suspicion of “rhetoric”, some-
times thought of as “flowery language”; hence, perhaps, Komar’s use of the
term as a pejorative.
A criticism such as Komar’s is not particularly helpful. To be sure, it
often includes bits of good advice or draws our attention to unhappy con-
structions. But its successes tend to be haphazard and insufficiently ration-
alized. More seriously, it often regards style as something that is pasted on
to content –
hence, the reliance on disparate “rules” or “tips for good
writing”. This fails to give adequate recognition to rhetorical choice as an
intellectual activity, as opposed to merely a technical one.’ 5
II. Illustrating an Approach to Style
Perhaps what is required of the critic is, as Twining says, “a set of
qualitative standards respecting scholarship and style, which he is prepared
to articulate and defend”. 16 If one cannot articulate such a set of standards 7
and I am not sure that “style” is amenable to such prescriptions – one
–
should at least be able to illustrate a critical approach which demonstrates
the kinds of factors which must be considered in stylistic analysis. This, in
a provisional way, I hope to do by more or less detailed reference to three
pieces of judicial writing, two of them by judges whose style Martin deplores
and one by a judge whose style he admires.
The two examples of “bad” judicial writing are the brief extracts cited
by Martin from Laskin J. and Rand J., both of whom, Martin says, “write
abysmally”.’ 8 These examples, and this observation, give rise to several
questions. One of these is: “Is this really bad writing?” Another: “If so, why
or how?” Further: “Are both passages bad in the same way?” Perhaps
–
most troubling is the question: “How do we reconcile the abysmal writing
of these two judges with their eminence – some might say their greatness?”
If Martin is right, are they not monuments to the fact that style is really
not very important? I do not propose to venture answers to these last two
queries; rather, I want to concentrate on the qualities of the writing.
151 should except from these general comments Gold’s study, supra, note 4, which is a
relatively sophisticated treatment of the effect of form on meaning.
16Supra, note 12 at 10.
17For some discussion of critical standards in the legal context, see W.E. Nelson, “Standards
of Criticism” (1982) 60 Tex. L. Rev. 447; and G.E. White, “The Text, Interpretation and Critical
Standards” (1982) 60 Tex. L. Rev. 569.
18Supra, note I at 7.
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[Vol. 31
As a preliminary observation, I would note that we need not take Martin
at his word. Although he does not in his brief comments on “literary quality”
pretend to elaborate a critical theory, he says enough to raise doubts about
his own judgment. For one thing, he opines that “an excessive attachment
to formalism explains many of the literary clinkers dropped by the Supreme
Court of Canada.”‘ 9 This is tantalizing, but perhaps too facile. The term
“formalism” in this context requires, I think, some definition – particularly
when the only two examples that Martin cites are from the writings ofjudges
who are arguably less “formalistic” than most.20 Further, Martin’s schol-
arship sometimes seems less meticulous than it might have been. He says:
“In 1960 J.G. Wetter referred to Canadian judicial writing as ‘an exercise
in legal barbarism.”” 2’ He takes this observation from Komar, who seems
to have got it slightly wrong from Wetter.22 Wetter uses the case of Nova
Mink Ltd v. Trans-Canada Airlines,23 in the Nova Scotia Supreme Court,
as an example of Canadian legal writing, and says: “The case as a whole is
an exercice [sic] in legal barbarism ….
24 It is not clear that Wetter meant
to apply the epithet to the entire corpus of Canadian judicial composition
rather than simply to the style of that judgment.25 And finally, Martin does
not explain why the two passages cited are bad writing; he merely asserts
that they are, and quotes them.
A second preliminary observation is that I will be looking at the cited
passages in isolation and thus effectively ignoring their contexts. An exam-
ination of the complete judgments in which they occur might alter our
19lbid. at 6 n. 14.
20Perhaps Martin has in mind the kind of problem identified by K.N. Llewellyn in “On the
Good, the True, the Beautiful, in Law” (1941-42) 9 U. Chi. L. Rev. 224 at 241: “But what
produces confusion, persistent and inevitable, is to act in terms of the felt reason of the situation
–
but to talk in terms of the formal style.” This is an intriguing
critical observation, but Martin’s point remains obscure. Gold, supra, note 4 at 486ff., discusses
cogently some of the rhetorical effects of “formalism”.
2 Supra, note I at 7.
22Komar, supra, note 10 at 29, writes that according to Wetter the tradition of Canadian
judicial writing “has degenerated in recent times to ‘an exercise in legal barbarism”‘. Komar
is referring to J.G. Wetter, The Styles of Appellate Judicial Opinions: A Case Study in Com-
parative Law (Leyden: A.W. Sythoff, 1960).
i.e., in the early style –
23(1951), [1951] 2 D.L.R. 241, 26 M.P.R. 389 (N.S.S.C.).
24Wetter, supra, note 22 at 313.
25Although he does say that judicial styles in a given jurisdiction “possess remarkable uni-
formity”. Such an observation would have to be subjected to careful scrutiny. As my discussions
of the Laskin and Rand passages below indicate, judicial styles can differ markedly from judge
to judge.
1986]
NOTE
assessment of the passages. 26 Moreover, any assertion that they are repre-
sentative of the judges’ writing would require a fairly comprehensive sam-
pling of each judge’s entire output. But if we are to begin this critical enterprise,
we must begin modestly, with brief units of composition. If we cannot
identify and articulate the rhetorical qualities of sentences, then we have
little hope of coherently judging larger compositions. If we cannot describe
these qualities with some precision, we will be left pointing to extracts and
attaching such vague, impressionistic, and often subjective, descriptors as
“elegant” and “abysmal” to them.
A. The Laskin Passage
I shall turn first to the quotation from Laskin J.’s judgment in R. v.
Burnshine,27 partly because it is susceptible to a rather more “mechanical”
or simply “grammatical” criticism than the Rand passage and partly because
there is probably less at stake in criticizing it.
The process of construction must be related to prescriptions and standards
under the Canadian Bill of Rights which, apart from the statute, might or
might not be seen as relevant matters, and, even if seen as relevant, would
lack the definition that they have as statutory directives. 28
It would be nice to be able to begin an analysis of this sentence by
referring to some undoubted critical criterion –
for example, “comprehen-
sibility”. 29 Indeed, many critics of legal writing simply accept the premise
that “clarity” or “simplicity” is the standard to apply.30 I suspect that much
of Martin’s concern about the sentence is that it is difficult to follow, not
because the “ideas” are complex, but because the expression is rather contorted.
However, we know that a writer may not intend to be readily compre-
hended or understood: witness some kinds of poetry. In such circumstances,
“good” or “effective” writing is presumably that which achieves the obscu-
rity or ambiguity the writer intends. One might want to believe that legal
writing should never be thus designedly opaque, but this is by no means
certain. Recall that “form communicates”. Language signifies in different
ways: words “mean” referentially, by standing for things, concepts, and so
261n this regard, the complaint of, for example, Llewellyn, about even the stylistic distortion
caused by removing a phrase or sentence from its context is well taken. See supra, note 20 at
229.
27(1974), [1975] 1 S.C.R. 693, 44 D.L.R. (3d) 584 [hereinafter cited to S.C.R.].
28Ibid. at 713-14.
29See Nelson, supra, note 17 at 478-82.
30See, e.g., R.C. Wydick, “Plain English for Lawyers” (1978) 66 Calif. L. Rev. 727; and D.
Mellinkoff, Legal Writing: Sense and Nonsense (New York: Charles Scribner’s Sons, 1982) at
140-44.
McGILL LAW JOURNAL
[Vol. 31
some might say repetitious, redundant or complicated –
on; but they also “mean” by virtue of their formal features. Richard Jacob-
son gives some examples of this in the legal context.3′ The Latin sentence
qui facit per alium facit per se is meaningful not only because it states a
proposition, but because it is Latin, because it contains parallel structures
and because it is rhythmic. Stating the proposition in this form gives it a
ceremonial force that may be crucial to how legal discourse “means”. Sim-
ilarly, a long –
list like “all manner of action or actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, trespasses, dam-
ages, judgments, executions, claims and demands whatsoever” signifies, apart
from the referents of the individual words, exhaustiveness. The form man-
ifests the meaning iconically.32 Thus, although in one view a list like the
foregoing manifests the characteristics of legal discourse that make it difficult
to comprehend, from another perspective it conveys important messages
about the law –
for example, that it is precise and thorough. More cynically,
one might say that an important quality of legal discourse is obscurity, for
this helps to sustain the “mystery” which reinforces the authority of the
law.
Apart from the question whether legal discourse should be compre-
hensible, there is another difficulty with invoking that criterion. Compre-
hension –
are subjective to the reader,
and thus we still may not have the objective standard we are looking for.
What is clear to one person may not be to another.33
and therefore comprehensibility –
31R. Jacobson, “Law, Ritual, Absence: Towards a Semiology of Law” (1977) 9 U. Hartford
Stud. in Literature 164.
32In some semiotic classifications, an icon is a sign that bears a natural resemblance to the
thing it signifies –
in contrast to a “symbol”, whose relationship to the thing signified is
arbitrary. See, e.g., J. Lyons, Semantics, vol. 1 (Cambridge: Cambridge University Press, 1977)
at 99ff. Thus, a long list, in its extent and multiplicity, formally resembles or represents
comprehensiveness.
33Thus, for example, in the foreword to G.L. Gall, The Canadian Legal System, 2d ed.
(Toronto: Carswell, 1983) at v, the Honourable Samuel Freedman writes: “Every page is written
in clear, simple, translucent prose.” Here is a passage from the book, supra at 5-6:
Even if a novice, in embarking upon an examination of the legal process in
Canada, subscribes to the basic notion that the law is systematic in nature, func-
tioning as a continual process in the context of many interacting societal processes,
this, in itself, does not render a totally accurate appreciation of the legal process in
Canada. Aside from an understanding of the various roles of the persons in the
legal system, of the institutions which form the basic structural components of that
system, and of the various judicial attitudes which, through convention, essentially
make the whole process operational, there is, however, one basic component, the
absence of which will not allow a thorough understanding of the nature of the legal
process. The roles of the persons who man the legal system, the various institutions
within the system and the judicial attitudes which, through convention, make oper-
1986]
NOTE
Having noted these difficulties, I shall nevertheless discuss the sentence
in terms of its comprehensibility. For one thing, we can explore the question
whether a piece of writing is intelligible without deciding whether it was
intended to be. For another, although comprehension may be subjective,
we can at least attempt to isolate features of writing that make it more or
less clear. Further, focusing in the first place on comprehensibility or clarity
– which might be regarded as primary or basic goals in communication
– will permit us to consider competing rhetorical objectives.
O’Barr identifies as two characteristics of legal discourse which make
it hard to understand “complex syntactic forms” and “abstruse vocabu-
lary”. 34 The observation is hardly original: indeed, it represents a conven-
tional criticism of legal expression. But it directs our attention to two critical
foci: syntax and diction –
how sentences are put together, and the kinds
of words that are used.
In terms of syntax the most noticeable characteristic of the Laskin
sentence is that it is rather heavily “embedded”. It consists, basically, of
one independent clause (or “carrier sentence”) and a long subordinate clause
(or “insertion”). In grammarians’ terms, this is, broadly, a “right-branching”
construction: the main clause precedes the dependent clause.35 O’Barr observes
that “[m]ost English sentences … tend to be right-branching” and that these
are easiest for English speakers to process. 36 Problems arise, however, where
–
there are further insertions besides the “primary” subordinate
clause, especially where such insertions separate parts of their carrier clauses.
As RK Saha remarks, such “syntactic nesting” creates difficulties “because
nesting forces the brain to keep track of the initial part of the construction
until the nested item has been absorbed and the balance of the construction
is revealed. ’37
as here –
ational that system, will all be discussed in subsequent chapters, but before those
discussions, it is essential for the new student of law to appreciate this additional
entity within the process. It refers to the judicial philosophy or jurisprudence which,
depending upon the particular school of thought adopted by an individual, undoubt-
edly affects the way in which a judge judges, a prosecutor prosecutes, a lawyer
defends or advocates, and the way in which every citizen views the law and the
legal system.
I would have said that the convoluted syntax, repetition, inexact diction and indirection of
this writing make it anything but “clear” and “simple”. It might be said that Mr Justice
Freedman’s and my divergent assessments of this style demonstrate that “clarity” depends
upon the reader. I would, however, be prepared to give detailed reasons why my position is
“objectively” valid.
34Supra, note 2 at 27.
35See PK. Saha, “A Modem View of Language” (1972) 23 Case W. Res. L. Rev. 318 at 348ff.
36Supra, note 2 at 27.
37Supra, note 35 at 351.
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[Vol. 31
Let us look first at the main clause here: “The process of construction
must be related to prescriptions and standards under the Canadian Bill of
Rights … .” One could analyze this clause into a number of underlying
kernel sentences which, through insertion and coordination 38 (e.g. “pre-
scriptions and standards”), go to make up this particular “surface struc-
ture”.39 I want to examine only the insertion “of construction”, a prepositional
phrase functioning as an adjective modifying “process”. Analytically, it involves
the incorporation of another statement (“The process is of construction”)
into the carrier clause. So, we might ask two questions: “Is the insertion
necessary?” and “Is this the best way of making it?” To answer the second
query first, we might look at the alternatives: (1) “The process, which is one
of construction”, the insertion of a relative clause, is more cumbersome
than what we have; (2) “The construction process”, involving a further
transformation of the prepositional phrase into an adjective, is more concise,
but might be objected to on the grounds that using a noun as an adjective
is awkward, and there is no appropriate adjectival form of the word “con-
struction”. Thus, “of construction” is probably the best insertion here. But
we have the further question whether it is necessary –
and here, semantic
considerations come into play. We can say that “construction” is a process
and therefore stating that it is a process is redundant; the subject of the
main clause should be “construction” and not “process”. This is, of course,
assuming that efficiency of expression is desirable. Redundancy –
especially
where it involves Latin derivatives and such nominalized verbs as “con-
struction” –
can create an impression of complexity and weight, which
may be the “iconic” impression that judicial discourse should give.
However, any awkwardness in the embeddings in the main clause is
rather insignificant compared with what we find in the “primary subordinate
York: Dodd, Mead, 1973) at 101-45.
38See J.B. Williams, Style and Grammar: A Writer’s Handbook of Transformations (New
39See, e.g., D. Bolinger, Aspects of Language, 2d ed. (New York: Harcourt Brace Jovanovich,
1975) at 161-66. In what follows, I shall be using some of the terminology (“surface structure”,
“underlying structure”, “transformation”) of the school of syntactic analysis called, generally,
transformational grammar. For my purposes, transformational analysis is useful for the account
it gives of the derivation of the elements in a given sentence. Thus, to take a simple example,
consider the sentence (“surface structure”): “The old man died.” Transformational grammar
would tell us that this is derived from: “The man, who was old, died” and ultimately from
“The man died. The man was old.” “The old man died”, on this analysis, contains two
assertions, one of which (“The man was old”) becomes “embedded” in the other, as an adjec-
tive, by means of “insertion” and “deletion”. Students of style have noted the usefulness of
transformational grammar to stylistics, because it offers a systematic way of presenting the
options available to a speaker/writer for saying “the same thing” (see, e.g., Williams, ibid.).
Thus, each of the forms above is an alternative way of conveying the same “information”,
although they probably have different effects and therefore different “meanings”.
1986]
NOTE
clause”. The insertions (or most of them) in the sentence as a whole might
be represented schematically as follows:
The process
must be related to prescriptions and standards
I
of construction
under the
Canadian Bill
of Rights
which
might or might
not be seen as
matters
(which) would
lack the
definition
apart from
the statute
relevant
that they have
as
directives
statutory
The diagram indicates the complexity of the construction here. At the same
time, it should be said that this is not an unusually syntactically complex
sentence.40 Perhaps the focus of our inquiry should be whether it is unnecessarily
complex.
Again, in invoking the criterion “necessarily complex”, I am leaving
unanswered the question, “necessary for what?” As Elizabeth Traugott and
Mary Louise Pratt point out, syntactic embedding is indicative of “relative
psychological complexity”. 41 One question, then, is whether the syntactic
complexity of the Laskin sentence reflects genuinely complex concepts. It
has been suggested that certain “scientific” disciplines (like law) demand
40Compare, for example, the sentence quoted by Saha, supra, note 35 at 351.
41E.C. Traugott & M.L. Pratt, Linguistics for Students of Literature (New York: Harcourt
Brace Jovanovich, 1980) at 174.
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an “intellectualization” of what has been called “the standard language”. 4 2
Features of this “intellectualized” language include “a tightly knit and inte-
grated structure of sentences and compound sentences with an elaborate
hierarchy of superordination and subordination expressing different rela-
tions of causality, finality, parallelism, and the like”. 43 That is, complex
subject-matter demands complex syntax to express subtle relationships,
qualifications, and so on. On the other hand, as I have already suggested,
the necessity may be limited only to the desire to create the impression of
psychological complexity. This may be a less compelling rationale for dif-
ficult syntax.
With these observations in mind, we can ask what difficulties the syntax
gives rise to. First, there is some ambiguity, at least on a preliminary reading,
of the reference of the word “which”. If we adopt the “rule” that a relative
pronoun refers to the noun immediately preceding it, the referent should
be “the Canadian Bill of Rights”, but semantic features tell us that this
epithet is merely part of a prepositional phrase inserted between the actual
referents (“prescriptions and standards”) and the pronoun. “Matters” and
“they”, for example, indicate that the antecedent must be plural. But before
we get to these semantic indicators, we encounter another insertion, “apart
from the statute”. It might be said that this insertion itself contains a noun
phrase –
“the statute” – which should alert us to the actual referents.
“The statute” is the Bill: one does not normally speak of something “apart
from” itself. At the same time, the referent of “the statute” is not trans-
parently clear. “the Bill” would have been unambiguous. Perhaps Laskin
J. had a rhetorical reason for saying “the statute”: he might have wanted
to emphasize that the Bill is no more than a statute, or to allude ironically
to the diminished status that Supreme Court decisions had given the Bill.
I have digressed somewhat from “syntax”, but the digression illustrates
two points. First, the complexity of sentence structure as a factor in com-
prehensibility is inseparable from other elements in communication. Sec-
ond, in seeking “simplicity” or “clarity”, we might have to forego other
resources of language: “Bill” might be clearer than “statute”, but it lacks
some of the latter’s connotative force.
Another difficulty with the insertions in the Laskin passage is that it is
not always easy to see which are coordinate. This is particularly true of
“which … might not be seen as relevant matters” and “[which] would lack
42B. Havrdnek, “The Functional Differentiation of the Standard Language” in PL. Garvin,
ed., A Prague School Reader on Esthetics, Literary Structure, and Style (Washington: George-
town University Press, 1964) 3 at 6-8.
43Ibid. at 7-8.
19861
NOTE
the definition they have as statutory directives”. The intervening subordi-
nate insertions –
separate the two
coordinate constructions so that their relationship is obscured.
especially “even if seen as relevant” –
The sentence, then, might be said to suffer from excessive embedding
or, more accurately, awkward embedding. It should be noted that any
–
developed use of language involves the ability to make transformations by,
for example, various kinds of insertions, so that this process can scarcely
be deprecated in itself. But it may be carried out more or less adroitly.
there is no doer doing something –
The complexity resulting from the embedding here is aggravated by
another syntactic feature: passive constructions, a favourite of lawyers. Thus,
in this passage, we have “must be related to” and “might or might not be
seen as”. Presumably motivated by lawyers’ concern to appear impersonal
and objective, particularly by avoiding “I” and “we”, the use of the passive
carries with it certain disadvantages. One of these is that it makes writing
less vigorous. (Again, perhaps ponderousness is a desirable quality in legal
expression, reinforcing the impression of gravity.) It makes writing less vig-
orous partly because it is passive –
and partly because it is generally more complicated than the active voice.
Take the clause: “The process must be related to prescriptions and stan-
dards.” Transformational grammarians would tell us that the underlying
structure of such a clause is something like “Someone must relate the process
to prescriptions and standards”, and that the surface structure is the product
of, first, a passive transformation (“The process must be related to pre-
scriptions and standards by someone”) and, second, the deletion of “by
someone”. 44 I do not mean to say that “deeper” structure is automatically
to be equated with “simpler” or, perhaps, “more efficient” structure: clearly,
this is not true of the generation of an adjective from a relative clause.
However, in the case of the passive construction, I would say that the com-
plexity is generally greater. Here, not only does it involve the addition of
two morphemes (“be” and the past tense of “relate”, i.e. “ed”), but the
deletion of “by someone” requires the reader to fill the gap. This need not
probably it does not here – but think of the
pose significant problems –
assertion (which one sometimes meets in legal discourse), “It is thought
that … “. Again, assuming that an adaptation of Ockham’s razor –
“Do
not multiply grammatical complexities beyond what is necessary” 45 –
is a
44Saha, supra, note 35 at 348-49.
45See Lyons, supra, note 32 at 112, who describes “Ockham’s razor” as “the principle of
ontological parsimony or economy, according to which ‘Entities should not be multiplied
beyond necessity’.”
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generally reliable principle, we should be careful that we have a valid rhe-
torical reason for using the passive voice.46
This illustrates what is involved in criticizing a text –
even a single
sentence –
as a syntactic structure. Before labelling it “good”, “bad”, or
“abysmal”, one has to be able to describe the structure and its effects, even
its “meaning”.
The other matter O’Barr mentions is vocabulary. I have already com-
mented on Laskin J.’s use of “the statute” to refer to the Bill of Rights, and
some of the rhetorical implications of this. But more might be said about
his diction here.
At the outset, we may remark that the sentence contains little of what
Komar would recognize as “rhetoric”: there is, for example, no deliberately
figurative language. 47 Moreover, if the passage is “abstruse” it is not because
Laskin J. uses technical jargon.
One thing we can say about the diction is that it is heavily “latinate”: 48
“process”, “construction”, “related”, “prescriptions”, “statute”, “relevant”,
“definition”, “statutory”, “directives”. I am far from suggesting that English
speakers should use nothing but “Anglo-Saxon” words.49 However, Latin
(and Greek) derivatives often create an impression different from their gen-
erally simpler “English” equivalents. 50 “Maternal parent” may denote the
46Williams, supra, note 38 at 88-89, suggests that rhetorical considerations in the use of the
passive involve the relative importance of the doer of the action as opposed to the “recipient”
of the action: the passive gives emphasis to the latter. Thus, in the Laskin example, the question
is whether it is significant who is doing the seeing: the courts, or “anybody”. In my example,
“It is thought that … “, who is doing the thinking is clearly important: “I” or “recognized
experts” or “the general public”? See also Wydick, supra, note 30 at 746-47; and Gold, supra,
note 4 at 498-99.
47The place of figurative language in legal discourse is perhaps still in doubt in some people’s
minds. There may be those who share Locke’s view that it is “the figurative power oflanguage”
that renders it “nebulous and obfuscating”: see P. de Man, “The Epistemology of Metaphor”
(1978) 5 Critical Inquiry 13 at 15. De Man goes on to point out, supra at 30, that language is
inevitably figurative and that, for example, “[a]ll philosophy is condemned, to the extent that
it is dependent upon figuration, to be literary …. ” The same, it would seem, is true of law.
See also D. Davidson, “What Metaphors Mean” (1978) 5 Critical Inquiry 31 at 33: “Metaphor
is a legitimate device not only in literature but in science, philosophy, and the law ….
481 use this term in a rather loose, impressionistic way, to denote words ultimately derived
from Latin and “sounding” like Latin. Clearly, Latin words and derivatives have come into
English at various stages of the development of the language, and via various routes – notably
through French after the Norman Conquest. They have become more or less “naturalized”.
See T. Pyles, The Origins and Development of the English Language, 2d ed. (New York: Harcourt
Brace Jovanovich, 1971) at 313ff.
49For an example of a paragraph containing “not a single word of foreign origin”, see ibid.
at 340-41.
5OSee Orwell, supra, note 6 at 84-85.
1986]
NOTE
same person as “mother”, but its connotation is quite different. It is fair to
say that in general such diction suggests objectivity (or, perhaps, “science”),
abstraction, and intellectual sophistication. But the impression may be no
more than “stylistic”, in the superficial sense. The “abstraction” may cor-
relate to fuzziness, the “objectivity” to pretentiousness and the “sophisti-
cation” to the parroting of big words.
On the other hand, the Latin or Greek derivative is often the best or
most “natural” word. Again, one should make a thoughtful choice of vocab-
ulary, asking questions such as: “What are the alternatives? What effect am
I creating by choosing one rather than the other? Am I being sincere? Do
I want to be sincere?” Applying this approach, one would have some dif-
ficulty faulting Laskin J. For example, “construction” is a common enough
word in this kind of legal context; “interpretation” is similarly a Latin
is not
derivative; “reading” –
quite accurate. Similarly, synonyms for “directives” are words like “imper-
atives” or “mandatory instructions”; “guidelines” is too weak; “orders” is
too strong. Getting around the problem might involve re-structuring: “what
the Bill tells us to do”. This is clearly less imposing than “statutory direc-
tives”, and probably less pretentious, but one might wonder whether it is
significantly clearer or more efficient.
perhaps the nearest “English” equivalent –
One further point about diction: where it is least vague or ambiguous, 51
reading is usually easiest. In Laskin J.’s sentence, the verb “relate” is not
as precise as it might be. “Relate” suggests the making of some kind of
connection, but it does not specify the nature of the connection. Perhaps
Laskin J. deliberately chose a non-committal word, or one might read into
the use of “relate” a rather cynical allusion to the way interpreters of the
law often treat statutes. It is even possible that Laskin J. simply did not
work hard enough at coming up with a more exact formulation.
There is thus much to criticize even in this brief sample of writing. I
am not sure that what we have seen justifies the epithet “abysmal”, but a
number of features of the sentence, particularly in combination, make it
difficult to read. The question now is whether I can come up with a para-
at least in terms of the criterion I have been emphasizing,
phrase that is –
“comprehensibility” –
“better”.
At the outset, I shall exclude two possibilities –
not because they are
untenable, but simply because I want to impose some ground rules. One of
these possibilities is to cut out the whole sentence as a redundant assertion
of the obvious. “Of course”, one might say, “courts have to do what the
5’It should be noted that ambiguity is a characteristic of language. See Traugott & Pratt,
supra, note 41 at 9-10; and M.S. Moore, “The Semantics of Judging” (1981) 54 S. Cal. L. Rev.
151 at 181ff. and 193ff.
McGILL LAW JOURNAL
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Bill of Rights tells them. And of course the presence of the rules of con-
struction in the Bill makes them less avoidable.” I shall eschew such radical
solutions. The other possibility, since a major problem with the sentence is
over-embedding, would be to cut it into a number of shorter sentences.
Whatever advantages this kind of simplification has, it also has obvious
drawbacks.5 2
Working, then, from the premise that the sentence has a right to exist
as a single sentence, containing most of the information in the original, I
would suggest the following paraphrase:
Courts must construe laws according to Bill of Rights criteria, which, apart
from the Bill, might or might not be thought relevant, but in any. case would
lack the certainty they have as statutory rules.
Without commenting exhaustively on the rhetoric of this new version, I
would like to note some of the changes that make it “better”. In the first
place, it is shorter: thirty-five words compared with forty-seven. The diff-
iculties of the embedded prepositional phrase and the passive voice in the
main clause have been eliminated by changing “construction” back into the
verb from which it derives. The ambiguity of reference of the primary sub-
ordinate clause has been avoided by placing “which” beside the noun to
which it refers and replacing “statute” with “Bill”. Some repetition has been
removed (“relevant”, “seen”, “as”), and I have tried to find simpler words
to replace Latin derivatives (“laws” for “statutes”; “rules” for “direc-
tives”). 53 The result is, I believe, a briefer, simpler, clearer statement, albeit
rather pedestrian –
perhaps even more pedestrian than the original.
My larger point –
that is, aside from what I say about Laskin J.’s
sentence itself-
is that useful criticism of legal or other expression requires
detailed engagement with the text, and some definition or elucidation of
the criteria of judgment.
B. The Rand Passage
Martin’s second example of bad judicial writing comes from the pen
of Rand J. in Saumur v. City of Quebec.
Strictly speaking, civil rights arise from positive law; but freedom of speech,
religion and the inviolability of the person, are original freedoms which are at
once the necessary attributes and modes of self-expression of human beings
and the primary conditions of their community life within a legal order. It is
in the circumscription of these liberties by the creation of civil rights in persons
521ncluding “choppiness” and awkwardness of transition. But see my discussion of the Den-
53But note the differences in semantic scope of the words in each of these pairs.
ning passage, infra, note 67 and accompanying text.
1986]
NOTE
who may be injured by their exercise, and by the sanctions of public law, that
the positive law operates. What we realise is the residue inside that periphery.54
I said earlier that much is at stake in a criticism of this passage. That is
because Rand J. is saying something fundamental about the legal order here
and his words have been frequently quoted, and found to be inspirational.
Thus, Walter Tarnopolsky, apparently including Saumur among Rand J.’s
“classic judgments”, asserts that “the case is more important because of
some of the statements about freedom of religion, which have subsequently
affected our thinking of [sic] that fundamental freedom, than it is for what
was held” and quotes part of the above passage. 55 The decision is not so
important as what was said about freedom of religion. Mr Justice Thomas
Berger, citing the same text, speaks of Rand J.’s “series of judgments that
constitute a compelling intellectual affirmation of the place of fundamental
freedoms in the Canadian federal system … *”56 And S.I. Bushnell calls
Rand J.’s opinions in Saumur and Switzman v. Elbling,57 “definitely the
clearest exposition of an implied Bill of Rights of all the judgments rendered
in the Supreme Court … -.58
How can we reconcile a “classic judgment”, “compelling intellectual
affirmation” and “definitely the clearest exposition” with “abysmal” writ-
ing? Again, we must begin by looking at the passage.
What is perhaps the most striking about this excerpt is that it appears
to be quite deliberately “rhetorical”. While the rhetorical features of the
Laskin sentence are very likely the product of habit, the Rand passage more
clearly evinces positive selection of language to create an effect. Again, this
is on its face appropriate since Rand J. is making a statement about fun-
damental values. The question is whether the rhetoric succeeds or, perhaps
more accurately, in what ways it succeeds.
Let us look at some of the techniques Rand J. uses and their effects.
One device he uses to make what he says impressive is what Glanville
Williams has called “the hypostasis of values”. 59 That is, he takes what is
probably an expression of opinion and formulates it as a matter of fact in
54(1953), [1953] 2 S.C.R. 299 at 329, [1953] 4 D.L.R. 641 [hereinafter Saumur].
55W.S. Tarnopolsky, “The Supreme Court and Civil Liberties” (1976) 14 Alta L. Rev. 58 at
79-80.
56T.R. Berger, “The Supreme Court and Fundamental Freedoms: The Renunciation of the
Legacy of Mr Justice Rand” (1980) 1 Sup. Ct L. Rev. 460 at 461.
57(1957), [1957] S.C.R. 285, 7 D.L.R. (2d) 337.
58S.I. Bushnell, “Freedom of Expression – The First Step” (1977) 15 Alta L. Rev. 93 at 115.
But, in a footnote, supra at 121 n. 133, Bushnell refers to the particular passage I am considering
in terms that suggest its meaning is not completely transparent.
59G.L. Williams, “Language and the Law – V” (1946) 62 L.Q. Rev. 387 at 390.
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a “referential” statement. 60 Thus, “freedom of speech, religion and the
inviolability of the person are original freedoms”; “[they] are the necessary
attributes … “. Even if such assertions are not unprovable (and it is not
clear to me how they might be demonstrated), they are certainly unproven.
In what sense of “original”, for example, is the person “inviolable”? I should
have thought that it was equally likely that the “inviolability of the person”
was created by law as by something inherent in the human condition. Rand
J.’s assertions are more likely expressions of allegiance to a particular view
of things than they are verifiable representations of fact. Williams observes
that the formulation of “value statements” as assertions of fact can mislead
the hearer or reader. This is especially true where a value like “freedom”
is the subject of discourse and the auditor very likely shares, or wants to
share, the speaker’s opinion –
for example, that “freedom” is inherent in
human nature. Of this device we can say thatit is rhetorically effective, but
it conceals (in this instance) complex philosophical issues.
Similarly, Rand J. uses a number of syntactic devices to reinforce the
weightiness of his statements. One of these is the expression “strictly speak-
ing”, with which the passage begins. This is a kind of “metadiscourse” –
that is, discourse about discourse. 6′ It is the author himself assessing his
assertions: what he says is “strict” or perhaps “precise”. But, as we have
already seen, at least part of what Rand J. says will reflect strict assertion
is not entirely precise: what he says about freedom of speech, etc., is not
“strictly” accurate. Another way of characterizing “strictly speaking” is to
call it a “performative” –
that is, an utterance in which the speaker does
what he says, simultaneously with his making the statement. 62 In effect,
Rand J. is saying, “I am speaking strictly when I say … “. That is, he is
saying something about the nature of his discursive act: presumably he
speaks strictly as he says he is speaking strictly. But the same objections can
again be raised. His assertion can, however, be regarded as “performative”
in another sense. As a judge, he is an authoritative declarer of the law: when
he makes a statement like this, he may be taken to be saying, “I declare the
legal position to be that … ,,63 But, again, the “truth” of his position arises
not from objective reality, but from his status, which allows him to express
authoritative opinions.
60Ibid.
61See Lindgren, supra, note 7 at 176-78.
62See J.L. Austin, How To Do Things With Words (Cambridge, Mass.: Harvard University
Press, 1962) at 4-7. A clear example of a performative utterance is: “I now pronounce you
man and wife.” What the speaker says he is doing, he accomplishes by the words he utters.
In applying the term to Rand J.’s expression, I am using it in a slightly extended sense. But
see Bolinger, supra, note 39 at 166-68.
63See G. Kalinowski, “Sur les langages respectifs du l6gislateur, du juge et de la loi” (1974)
19 Arch. phil. dr. 63.
1986)
NOTE
Other syntactic devices that Rand J. uses to add effect to what he is
saying also attract comment. Thus, “freedom of speech, religion and the
inviolability of the person” exploits the rhetorical potential of parallelism
and the triad – but not perfectly. The structure invites the reader to prefix
“freedom of’ to each of the substantives which follow; however, this clearly
does not work for “freedom of … the inviolability … “. There is a slight
disintegration of syntactic and semantic coherence here. What Rand J. might
have said was: “freedom of speech and religion, and the inviolability…”
or, “freedom of speech, freedom of religion, and the inviolability … ”
The second sentence in the passage is made more ponderous in at least
two ways. One is the indirect “It is … that” construction. This slows down
the sentence, makes it more solemn. At the same time, it perhaps unnecessar-
ily lengthens the sentence by adding a clause, and aggravates the impression
of ambiguity by introducing the indefinite “It”. Similarly, the forms “the
circumscription of’ and “the creation of’ are (as we have seen already in
the Laskin sentence) more turgid than the corresponding “circumscribing”
or “circumscribes” and “creating” or “creates”. This is largely because they
are not only nominalizations, but also passive constructions: “circumscrip-
tion by the creation” (compare, “the creation circumscribes”); “creation”
by whom or what? In fact, one might say that the subject of the verb “oper-
ates” and of the verbs underlying “circumscription” and “creation” is “the
positive law”. Thus: “The positive law circumscribes these liberties by cre-
ating civil rights … and the sanctions of public law.” A further advantage
of this construction is that it makes clear that “sanctions” is parallel with
“rights” and not with “creation”. The disadvantages of the revision are that
it is less portentous (if this is a virtue!) and that a difference in emphasis
changes the meaning of the statement somewhat.
Again, we can see that an inquiry into “style” tends to be paradoxical.
Rand J.’s syntactic choices create certain effects; at the same time, they may
involve a sacrifice of, say, coherence.
An examination of Rand J.’s diction here gives rise to similar obser-
vations. I have already mentioned the word “strictly”, which creates a pos-
itive disposition in the reader to attend to the writer’s words: it is rhetorically
effective. At the same time, I have questioned whether it is accurate, or
even “sincere”. Are the reader’s expectations, that precise distinctions will
follow, fulfilled?
Another characteristic of the diction here is its “absolute” quality. Words
like “inviolability”, “original”, “necessary”, and “primary” connote cer-
tainty and ultimacy. They are impressive words. But questions occur about
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their substance. I have commented on the ambiguity in the word “original”:
is an original freedom one that man has in a state of nature, or before the
Fall, or as an inherent trait? Or does Rand J. simply mean that a person is
free to do what is not prohibited and in that sense freedom is prior to
restraint? Similarly, although Rand J. asserts that they are, it is not self-
evident that these freedoms are “the primary conditions of [human beings’]
community life”. Rand J. may here be using strong adjectives as a substitute
for reasoning.
Two further comments are relevant. One involves the word “modes”:
is this quite appropriate? I should not have thought that freedom was a
mode of self-expression; it seems more like a “condition”. “Religion” and
“speech” –
like writing and painting, for example – may be “modes” of
self-expression, but I should not have thought that the freedom to do these
things was. The other point involves the prepositional phrase “within a legal
order”. While the words “legal” and “order” contribute to the general sol-
emnity of the passage, the force of the phrase as a whole escapes me. Log-
ically, its inclusion may suggest that there might be community life without
a legal order: I doubt that this is tenable. Whether it is or not, however, I
am not sure why the “freedoms” should be “primary conditions of com-
munity life” particularly “within a legal order”. Are they less primary where
there is no legal order? Does “legal order” refer to positive law? If so, what
is the relation of “within a legal order” to the distinction between “civil
rights” and “original freedoms” in the passage as a whole? The phrase is at
least ambiguous and probably redundant.
Some of Rand J.’s imagery is also worth noticing –
for example, the
word “arise” in the first sentence. As an image of a physical process, and
thus in this context as a metaphor, the word has lost much of its effect. On
reading it we probably do not envisage a physical arising. Nevertheless, the
word is interesting because it does suggest something that happens spon-
taneously or naturally. This suggestion is reinforced by the quasi-passive
structure of the clause. It might have been more accurate to characterize
“the positive law” here as a “doer”, rather than as a kind of inert substratum.
“The positive law creates civil rights.” One might have thought that, in
view of what seems to be Rand J.’s general point, it would be more appro-
priate to characterize the “original freedoms” as arising naturally and the
“civil rights” as artificial constructs.
More important, however, is what strikes me as the central image in
the passage, the picture of original freedoms as falling within an area whose
circumference (“periphery”) is defined by positive law:
1986]
NOTE
~/
//
/
.
)freedom
Area of
1
F
Civil
Rights
/I
The image is effective. As Rand J.’s own words reveal, however, it is an
oversimplification. He emphasizes that “the creation of civil rights in per-
sons who may be injured by their [the freedoms’] exercise” circumscribes
the freedoms. So it does, from one point of view. But from the point of
view of the person who might be injured, “civil rights” extend or at least
guarantee his freedom. For him, the picture is more like this:
Freedom
protected
by positive
law
Civil rights created by positive law define the circumference within which
the person’s freedoms may not be transgressed. From this point of view, far
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[Vol. 31
from being in some way antithetical, “freedoms” and “civil rights” are
congruent.
One of the advantages of an image is that, by inviting the reader to
visualize what is being said, it makes this more concrete. Here, thinking
about Rand J.’s image allows us to see what he is saying, and also to question
it.
Before leaving this image, I want to mention two other words associated
with it. One is “residue” which is interesting for two reasons. The word
connotes something rather indeterminate and unspecified, “left over”, and
perhaps less important than what is selected or specified. This connotation
would be inconsistent with the absolute value Rand J. attaches to the “orig-
inal freedoms” earlier in the passage. The effect is again to aggravate the
ambiguity of the passage. Further, that the residue is “inside” the periphery
strikes me as somewhat paradoxical. I think of a circle, for example, as being
a specific shape or area defined in some larger field, and of the “undefined”
or residual as being outside the defined area. The paradox again reinforces
the ambiguity, which is perhaps inevitable in the relation between “civil
rights” and “original freedoms”. 64 The other word is “realize”. I must admit
that I do not know what “realize” means here. It probably does not mean
“to grasp or understand clearly”: even if it made sense semantically this
use of “realize” usually takes a “that” clause as its object. The words may
mean “give reality to”, so that the freedom that has reality for us, or the
only freedom to which we can give reality, is what is inside the periphery.
But this is problematical: the import of Rand J.’s earlier statements is that
the “original freedoms” are not human constructs, although I suppose that
we may give them reality by exercising them. Another possibility is that the
word is being used metaphorically, with the literal sense, “to convert into
cash” or perhaps “to obtain as a profit”.
Thus, a close reading of the Saumur passage details our impression
that it is highly “rhetorical”. At the same time, our analysis exposes con-
siderable uncertainty of meaning. Whether Rand J.’s writing is “abysmal”
is a question that has two answers. On the one hand, we should perhaps be
impressed with a style that is inspirational in spite of that fact that, ana-
lytically, it conveys only an elusive meaning. We might find literary merit
in the passage on the basis that it is richly suggestive: but this implies that
the reader’s response is essentially impressionistic, or even emotional. We
64Casey J. in Chabot v. Commissaires d’coles de Lamorandire (1957), [1957] B.R. 707 at
720, (sub nom. Chabot v. School Commissioners ofLamorandiere) 12 D.L.R. (2d) 796, appears
to have seen Rand J. as emphasizing that fundamental liberties must be limited. This seems
to be at variance with most readers’ reactions to the passage.
1986]
NOTE
are reassured to hear “freedom” coupled with words like “original”, “‘nec-
essary”, “primary”, and even “realize”. But I would question whether such
writing should be described as “clear” or “intellectually compelling”. Apply-
ing to this passage criteria which emphasize logical and semantic coherence
exposes several shortcomings. We might, I suppose, rationalize these by
saying that Rand J.’s style captures brilliantly the ambiguity of his subject;
but I rather doubt that he would have approved the characterization. 65
As I have already suggested, such observations give rise to broader
questions than “What are the rhetorical features of this passage?” For one
thing, if Rand J.’s language is in fact unclear, does this point to a lack of
clarity in the thought that underlies the expression? Again, if my criticisms
are valid, how can we characterize the responses of those who have found
the passage, or parts of it, impressive? What criteria have they applied in
coming to their assessments? What, for example, does Berger J. mean when
he calls Rand J.’s affirmation of civil liberties “intellectual”? On my analysis
of this passage at least, “affective” would be more appropriate. This obser-
vation need not be negative, for one might ask: “Is there not room for an
affective element in judicial writing? Do we not want judges who can move
with their eloquence as well as demonstrate with their logic?”
Again, I am not prepared to answer these questions –
except to note
that they may involve a false dichotomy. The relationship between logic
and rhetoric may be more intimate than my referring to them as in some
way alternative suggests.
C. An Example from Lord Denning
Having examined two samples of judicial writing whose style Martin
condemns, I want now to look at an example which he would, presumably,
approve. Among the judges whose opinions Martin says evince “grace and
felicity” are Lord Mansfield, Lord Atkin, Lord Reid, and Lord Denning.66
Although Martin cites no specific examples, I hope that I do not do him
65The reader might want to compare Rand J.’s statement of a similar position delivered in
another setting, the Oliver Wendell Holmes Lecture at Harvard Law School on 26 February
1960:
The contrary view, moreover, ignores the nature of a “civil right”, that it is the
creation of positive law, to be distinguished from those freedoms that remain within
the residue of unregulated conduct, fundamental, even “natural” freedoms because
they are not, so far, circumscribed by law.
Published as I.C. Rand, “Some Aspects of Canadian Constitutionalism” (1960) 38 Can. Bar
Rev. 135 at 154. This is a rather less rhetorically-striking statement than the Saumur passage;
at the same time it is arguably “clearer”.
66Supra, note I at 7. One might query whether the writing of these judges is “graceful” or
“felicitous” in the same way.
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injustice in selecting an excerpt which most students of the law would rec-
ognize from its style as having been written by Lord Denning:
Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no
business premises. All he had was a lorry, scales and weights. He used to take
the lorry to the yard of the National Coal Board, where he bagged coal and
took it round to his customers in the neighbourhood. His nephew, John Joseph
Beswick, helped him in the business.
In March, 1962, old Peter Beswick and his wife were both over 70. He
had had his leg amputated and was not in good health. The nephew was anxious
to get hold of the business before the old man died.67
The obvious point to be made about this is that it is quite unlike the
other two passages, and (I would venture) quite unlike the legal discourse
to which we are accustomed. 68 I mentioned earlier that the distinctive dis-
course of lawyers can be seen as an “intellectualization” of ordinary lan-
guage. This “intellectualization” includes “terms of art”, but goes beyond
this, so that even when lawyers are not using technical vocabulary their
language is often typified by complex syntax and difficult diction: the Laskin
passage exemplifies these traits. To the ordinary speaker, such discourse may
seem strange, impenetrable, intimidating. But to those who have learned
the language of the law, it has become normal or “automatized”. 69 “Auto-
matization” has been described as
such a use of the devices of the language, in isolation or in combination with
each other, as is usual for a certain expressive purpose, that is, such a use that
the expression itself does not attract any attention …. 70
That is, the primary effect of automatized language is communication of
an underlying content; it does not make the form of expression the focus
of interest. It may be said, therefore, that although discourse like that in
the Laskin passage may seem unusual to members of other functional lin-
guistic groups, for lawyers it is a normal mode of communication. (I leave
aside the possibility that even lawyers do not know what such discourse
67Beswick v. Beswick (1966), [1966] Ch. 538 at 549, [1966] 3 All E.R. I (C.A.). Again, to
claim that a brief passage, more or less randomly selected, is “typical” of a writer’s style is
potentially hazardous. A person expresses himself in different ways at different times and in
different contexts, and to identify with conviction what is typical would require, as I have
already suggested, a rather extensive survey. This passage from Lord Denning is at least rep-
resentative of what makes some of his writing particularly memorable.
68See, e.g., Wydick, supra, note 30 at 741: “For several hundred years, English speaking
lawyers have been addicted to long, complicated sentences.”
69See Havrdnek, supra, note 42 at 9.
70Ibid.
1986]
NOTE
means, but accept it for its form alone: it sounds like the kind of thing a
judge should say.)
If the automatized discourse of the law is represented by the Laskin
passage, what is the effect of the introduction of Lord Denning’s style into
the judicial context? One effect is to draw attention to the form of expression
itself. This process has been described as “foregrounding”,
the use of the devices of the language in such a way that this use itself attracts
attention and is perceived as uncommon, as deprived of automatization, as
deautomatized ….71
This foregrounding may assume various forms. It may involve impor-
tation into legal discourse of a strikingly incongruous form of expression. 72
It may involve figurative expression, especially where the figuration is exag-
gerated or awkward, as in the following passage: “Charter-based decisions
have hacked away at the shackles stifling our sense of individual autonomy.
Over the long term this may … [cause] a healthy skepticism of power to
sprout in the Canadian personality. ‘ 73 It may involve the introduction of
an alien and perhaps disquieting term into a familiar context, as when Lord
Diplock uses “synallagmatic contract” in the common law. 74 Or, it may
involve an uncharacteristically simple expression –
such as Lord Diplock’s
term ‘if’ contracts” for unilateral contracts. 75
Thus, we may say of Lord Denning’s style that, in so far as it violates
our expectations of legal discourse, it involves foregrounding: it draws atten-
tion to itself. There is a paradox here, for many people would say that Lord
Denning is simply using “ordinary language”. How can such everyday speech
be foregrounded? Is it not more generally automatized than the intellec-
tualized legal discourse it replaces?
7,Ibid. at 10.
72See, e.g., the conclusion of A.C. Hutchinson, “From Cultural Construction to Historical
Deconstruction” (1984) 94 Yale L.J. 209.
73J.E. Magnet, “The Charter. A Year as a Catalyst” The [Toronto] Globe and Mail (18 April
1983) 7 [emphasis added]. Note that this appears in an article written by a lawyer for a popular
audience. For a discussion of what constitutes effective use of metaphor, see W.C. Booth,
“Metaphor as Rhetoric: The Problem of Evaluation” (1978) 5 Critical Inquiry 49.
74United Dominions Trust (Commercial) Ltd v. Eagle Aircraft Services Ltd (1967), [1968] 1
W.L.R. 74 at 82, [1968] 1 All E.R. 104 (C.A.) [hereinafter United Dominions Trust cited to
W.L.R.]. Lord Diplock complains, ibid., that his introduction of “this qualifying adjective” in
Hong Kong Fir Shipping Co. v. Kawasaki Kisen Kaisha Ltd (1961), [1962] 2 Q.B. 26, [1962]
1 All E.R. 474, “was widely thought to be a typical example of gratuitous philological exhi-
bitionism”. One could say that the epithet “gratuitous philological exhibitionism” represents
iconically what it means referentially, and is itself an example of foregrounding.
75United Dominions Trust, ibid.
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[Vol. 31
There are two answers to this. The first is simply that foregrounding is
context-dependent. The occurrence of, say, a colloquial expression in the
context of a learned scientific article would clearly draw the reader’s attention
to the unusual (for that context) expression.
The second answer is that Lord Denning’s style is not simply “ordi-
nary”; it is what might be called “emphatic ordinary”. The first three sen-
tences, for example, are for almost any kind of written discourse, unusually
simple –
even “naive”. A more normal or ordinary form of expression
would be something like the following: “Old Peter Beswick was a coal mer-
chant in Eccles who had no business premises, only a lorry, scales and
weights.” The repetition of subject (“Beswick”, “he”, “He”) and even of
verb (“had”) is extraordinary. As Traugott and Pratt observe: “Examples of
passages where little recursiveness is used and where there is very little
difference between deep and surface structures are hard to find except in
stories for small children”; 76 “nonuse of an optional transformation may
foreground and make special the scene being presented. ‘ 77 In other words,
the perception of ordinary adult users of language is that, in certain cir-
cumstances, a failure to deviate from simple structures is inappropriate.
When such failure occurs, it is either because the writer has not mastered
ordinary discourse, or because he is trying to create a special effect.
One could not credibly maintain that Lord Denning has not mastered
syntax much beyond the simple sentence. The simplicity here is almost
certainly part of a deliberate rhetorical strategy. But I would question whether
words like “elegance” and “grace” are apt to describe this style – assuming
that Martin meant to include passages like this in his general praise of Lord
Denning and others. That such writing may not be “elegant” does not,
however, mean that it is not effective, or even “subtle”.
This leads to another paradox. If Lord Denning’s style is “simple” and
“direct”, how can it be “subtle”? I would suggest that it may be deceptively
simple. That is, the creation of the impression of directness or na’vet6 is,
as a rhetorical technique, arguably more sophisticated than the creation of
the impression of intellectual complexity. The former wins the reader’s sym-
pathy by appearing to hide nothing; the latter is more likely to persuade
only by appearing intimidating.
Having entered the reader’s confidence by saying, in effect, “I will speak
plainly to you”, Lord Denning exploits other devices to win over his audi-
ence. Most of the appeal is emotional, not intellectual. Thus, Peter Beswick
is routinely called “old Peter Beswick”, which makes us both visualize him
76Traugott & Pratt, supra, note 41 at 168.
77bid. at 170.
1986]
NOTE
and pity him for his age: he becomes familiar to us. When “old” is used to
describe him in a context that suggests the nephew’s point of view, the epithet
takes on a pejorative colouring: we tend to dislike the person who would
view Peter as “old” in that way. John Joseph Beswick (note the formality
of the tripartite name) becomes “the nephew” –
depersonalized, unlike
Peter; he is rendered unrelated to Peter by the use of the definite article
instead of the pronoun (“his”) which we might expect; he wanted to “get
hold of’ the business. Peter is made more personal and familiar to us by
the evocation of his life and circumstances: “he had no business premises”;
“all he had … “; he bagged the coal (himself, using his “scales and weights”);
he “took it round” (not “delivered it”); his customers were “in the neigh-
bourhood”. And, finally, he had had his leg amputated.
A mistake that is often made is to think that to be rhetorically effective,
language must be either “purple” or “florid”. But these are the easiest rhe-
torical devices to see through. Simplicity is not, as is often thought, unrhe-
torical; it is merely a different kind of rhetoric. Lord Denning’s “simplicity”
and “directness” here are not entirely candid. For example, the excessively
simple syntax accomplishes at least two things –
aside from drawing atten-
tion to itself as unpretentious. First, it allows Lord Denning to emphasize
the details of old Peter Beswick’s life: one sentence tells us what he did not
have; another tells the few, poor things he did have. Second, the excessive
simplicity of discourse causes us to attribute this simplicity to Peter himself:
the childish syntax evokes an uneducated, uncalculating character, easily
victimized.
I am inclined to agree with Martin that Lord Denning’s writing is more
accomplished than that of either Laskin J. or Rand J. – but not for the
reasons Martin seems to imply. It is not because Lord Denning’s style is
“simpler”, or more “direct”, or even clearer, that it is superior to the others;
rather, it is because he is in greater control of his rhetoric. Laskin J.’s rhetoric
is almost entirely automatized and
–
undevised. Rand J.’s rhetorical strategy seems deliberate, but it gets out of
hand to the extent that what he is saying becomes incomprehensible. Lord
Denning, on the other hand, seems to know precisely what he wants to say
and how he will say it.
at least in the sample passage –
III. Conclusion
Pratt has observed an “overwhelming tendency to view style as an
exclusively or predominantly literary phenomenon and to equate style out-
side literature with mere grammaticality and conventional appropriate-
ness.”‘ 78 She argues that this perception is based not so much on the intrinsic
78M.L. Pratt, Toward a Speech Act Theory of Literary Discourse (Bloomington: Indiana Uni-
versity Press, 1977) at 15.
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nature of “ordinary” as opposed to “poetic” language as on the fact that
the former has been studied by structural linguists, while the latter has been
studied by estheticians. Each group has found in the object of its study what
its presuppositions have limited it to finding. Thus,
“Ordinary language” looks utilitarian, prosaic, mechanical, practical, and auto-
matized to poeticians not because it is, but because structural linguistics is
utilitarian, prosaic, and mechanical in the sense that it only undertakes to
describe those aspects of language that can be accounted for in terms of dummy
constructions, grammaticality roles de service and the “action of a mechanism.”7 9
While I would not qualify legal commentators as structural linguists, I
would suggest that their apprehension of legal language tends to be deter-
mined by their preconceptions about what they can or should find there.
Thus, their emphasis on grammaticality (often in a very superficial, pre-
scriptive way) and on language as an instrument for conveying “content”.
What my examination of three brief examples of judicial writing will,
I hope, indicate is that legal discourse, like any other kind of discourse, is
susceptible of “stylistic” analysis of a rather complex kind. By thinking in
terms of grammaticality and instrumentality, lawyers may blind themselves
to the ways in which the language they constantly use affects them, or sig-
nifies. Every verbal structure reflects a rhetorical choice (if only as a matter
of rhetorical habit); every rhetorical choice conveys meaning in a somewhat
different way from the other options. A consciousness of the rhetorical qual-
ities of discourse adds a crucial dimension to our understanding of that
discourse.
One further comment: if lawyers are to become critics of legal literature
they should probably begin not by seeking to prescribe what legal writing
should be like, but rather to describe how it works.
79Ibid.
