Lawyers' Language, A.Phillips (Routledge)

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the lawyer which by far predominates. The question on the client s
lips is not: what is the law? Rather than to be instructed by the
lawyer on the law, he is there to give instructions to the lawyer to
act on his behalf. The lawyer s consultative role is performed largely
in the course of taking instructions as a preliminary to her
representation of the client. Most of most lawyers time is spent on
deeds. Significantly, the alternative meanings of deed point to the
nature of the relationship between legal draftsman and client. The
deed prepared by the draftsman on the client s behalf, when
executed (signed) by the client, represents the legal act or deed
executed (performed) by the client. Deeds are always complex. They
are sites at which numerous fields of law intersect. But despite the
complexity, the presumption of knowledge can be considered justified
since the lawyer s knowledge of the law is imputed to the layman.
It is not in the writing of documents, but as speech, that the law
is dramatised for the public. In litigation and negotiation, the lawyer
openly takes the place of her client. The advocate s opening words
are: I represent & . Moreover the interposition of the lawyer as
conveyancer can be held to validate the presumption that her client
knows the law in relation to the deed instructed by him. Is there
some equivalent in the case of the legal representative as advocate
or negotiator in the resolution of a dispute? On the contrary, the
difference between the two situations is clearcut. The conveyancer
represents the client by acting on his behalf. Dispute resolution,
on the other hand, starts from a fait accompli and is concerned with
its consequences. The theoretical framework of the process, the trial
or the negotiation, by which the dispute is resolved, can be described
in the form of an extreme paradox. It is basic that in the performance
of the act giving rise to the dispute the party is assumed to know the
law which will define his act and determine its legal consequences.
Yet the adversarial nature of the process itself demonstrates that
there is room for argument on this very question. For the purposes
of the argument, we can ignore the uncertainties of theory and take
the process of adjudication as consisting of the application of a rule
or principle of law to a particular set of facts (an act and its
surrounding circumstances). The law, that is, the applicable rule or
principle, exists and is uncontestable but it has to be found. There is
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BREAKING GROUND
the paradox: side by side with the assumption that the party knew
the law before or while performing the act, we have to set the
revelation that the lawyer could not know the law until the very
moment of the judge s decision.
The conclusion then must be that although access to professional
expertise goes towards the justification of the presumption of
knowledge it does so only to a strictly limited extent. In the course
of the analysis we have come across the problem of the uncertainty
of the law, discovering that it is in a sense unknowable. And yet, the
specificity of the law requires, in the ideal at least, that there is a
single right answer. Again, since law is almost entirely written down
in accessible statutes, case reports, textbooks and commentaries, how
can the law be unknowable to legally qualified and competent
readers of those texts? We can see that its unknowability arises from
the necessity to match a general rule or principle (an indeterminate
number of which become systematised to form the law) to an
individual case. The process of matching involves an act of
judgement. The sense in which the law is unknowable, then, becomes
clearer if one compares the statement: I judge this to be so with the
statement: I know this to be so . In the final chapter, the process of
matching general rule or principle to particular case is analysed within
a semantic frame of reference. Meaning, which was highlighted at
the beginning of this chapter as the problem, emerges at the end as
the means whereby the contradictions can be reconciled.
The following case study is a variant on a mundane situation met
every day by the motorist, where the law, so to speak, pulls back its
veil and stares him in the face.
CASE STUDY
Imagine a stretch of road in a sparsely populated area, which
is marked by a 30 mph sign but which to the approaching
motorist is visibly free of sharp bends, roadworks and other
hazards. The message conveyed by the sign is that a body to
which law-making authority for the purpose has been delegated
has imposed a speed limit on this stretch of road. He assumes
that the conditions required to make the speed limit law have
been met.
There is no doubt but that the approaching motorist knows
the law: he understands the meaning of the sign. Certainly, if he
were to reflect, he might well be disposed to challenge the law s
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BREAKING GROUND
validity, validity in the sense already explained. Reasoning that
a speed limit is justified solely in the interest of road safety, he
might be tempted to argue that it would not be at all jeopardised
at this particular locality if he drove at a higher speed. Although
the enforcement of the law by the use of sanctions against an
infringer could not be successfully resisted, it would nevertheless
be counted as in some sense objectionable.
Certain deeper implications of the presumption of know-
ledge can be drawn from this scenario. Up to this point, the
argument has proceeded on the footing that the presumption
must be justified for the legal system to claim legitimacy. But
although knowledge of the law has been postulated to be a
necessary condition of legitimacy, it now appears from this
particular case that it may not be a sufficient one. Exceptionally,
here, the motorist has come face to face with a legal text (the
30 mph sign), whose language (semiotics) he could not fail to
understand. He also understands the law in the additional sense
that he recognises the reason for it, the ground (road safety)
on which it can claim validity. But, when account is taken of
the physical features of the locus, his knowledge of what the
law is (derived from the message of the sign) conflicts with his
understanding of what the law ought to be (that is, no speed
limit, given that its rationale is the promotion of road safety).
A weakening of his sense of obligation to obey the law, to
keep his speed to 30 mph, is the outcome. The law suffers a
loss of legitimacy.
The case study, therefore, prompts us to take a step away
from the conception of knowledge of the law in its absolute
sense. Reflection shows that that is unattainable, even by the
lawyer. Even were the opposite to be assumed, it is not
knowledge, verbatim, of a legal text, but an understanding of
what the law should be to match the circumstances, that counts.
It is in that sense that the presumption requires to be justified.
The case study can also be used to delineate some of the
features of such an understanding. Suppose that the motorist
has noted that the speed limit on this stretch of road, although
seemingly vexatious, is widely obeyed by others. He will then
be less inclined to defy it. He may well be motivated in this by
pragmatism, by the consideration that the readiness to comply
with a rule is normally linked to the likelihood of its enforce-
ment, a likelihood in this case signalled by the line of slow-
moving vehicles. Nonetheless, it is worth exploring whether
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BREAKING GROUND
patterns of what might be called ovine behaviour have a
binding force of their own, not being just indicative of
expectations of vigilant enforcement. The standard referred
to as the normal is, basically, discernible as a matter of
(statistical) fact, whereas the standard attributed to the
normative claims to be right. Are there circumstances in which
the normal acquires the characteristics of the normative? [ Pobierz całość w formacie PDF ]

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