The Complete Lawyer

Legal Language Needs To Be “Living Speech”

If the language of the law is to serve the law, it must insist upon this unique form of judgment. Each offered argument cannot be a mere assertion. It must instead imply and address an opposing argument, provide a justification in opposition to assumed other justifications, and, in this, a need for judgment. Persuasion in the law seeks the belief of the judge or jury addressed—the identification between writer and reader—as something that happens in the legal conversation and not simply something that happens by means of it. The law, however, will work this way only if its language does. And for its language to work this way it must be, for both writer and reader, the living speech of real selves at work for whom a new identification within the conversation can arise.

Language Misused Corrupts Thought

What corrupts the law and renders it unworthy of the trust with which we imbue it, is the reification of its language—the rendering of its humanness to the condition of a thing—that makes this impossible. George Steiner described precisely this condition of the German language: The words of advocates are not used to persuade but to avoid thought, not offered in justification, but to foreclose the need for justification at all, not insistent upon judgment, but insistent that it is not required. Instead of persuasion, these words are offered as a claimed identity between writer and reader that is literally thoughtless and determined (politically, socially, culturally, economically, psychologically) prior to the conversation.

The comparison to Steiner’s fierce lament about the German language makes this seem dramatic. It is not; it is banal. We are all too familiar with the reification of the language of the law. We see it daily in the dead language of those for whom the law is not yet an art in which a self can be expressed. We see it, as Steiner did, in “[mechanical] actions of the mind, frozen habits (dead metaphors, stock similes, slogans) . . . an automatic reverence for the long word or the loud voice.” We see it in words rendered instrumental, formulaic, and as merely means of communicating rather than as the medium in which we are expressed. Sadly, this is also the language of those whose lives as lawyers or judges are an unimportant means to overly important external ends, and who for their own purposes, encourage others, even impose upon others, their impoverished, alienated, and alienating view of our communal life in the law.

Teachers Of Legal Writing Have A Special Responsibility

Languages, as Steiner recognized, have “great reserves of life. They can absorb masses of hysteria, illiteracy, and cheapness.” But this reserve is not endless. It cannot survive our removing ourselves from our writing. The lifelessness of the writer will, at some point, “settle into the marrow of the language. . . . [and it] will no longer grow and freshen. It will no longer perform, quite as well as it used to, its two principal functions” of order and grace. I end with praise and a plea. My praise is for those professors of legal writing—the newest, most challenged, and most challenging teachers in legal education—who have accepted the protection of our living speech through their students as their own moral obligation.

My plea is to those true teachers of the law, the mentors of our apprentices, to encourage those in their charge to make the language of the law their own, to keep it alive, and to see in their work with words, however mundane it may at times seem, an opportunity for an expression of self—and in this to come to appreciate the moral obligations we have as lawyers towards our living speech.