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Lawrence M. Solan. _The Language of Judges_. Chicago: University of Chicago
Press, 1993. xii+218pp. $45.00 cloth; $16.95 paper.
Reviewed by Terry Gordon: WTGORDON@ac.dal.ca
The purpose of this book is to give a general audience insights into
the judicial system by examining typical instances where judges appropriate
for themselves the role of linguist. In particular, the study focuses on such
instances which are inconsistent with each other.
Solan detects two forces contributing to the apparently widespread
incoherence and idiosyncracy of legal decisions: pressure on judges to
legitimize their power by speaking with an authoritative voice and the
necessity of at least giving the appearance of adhering to the neutrality
principle (rule of law). Into the considerable space left by what the author
refers to as "a wedge driving apart decision making on the one hand and
presentation on the other" comes a lot of bogus linguistics.
Or maybe no linguistics at all - that, at least, is the conclusion
one is tempted to draw after Solan's not altogether satisfying first example.
(Scores of more satisfying examples follow.) The author summarizes the case
by saying "Thus the court relied on the difference in meaning between 'open',
an adjective, and 'opened', a participle, to decide the case."
The facts of the case are that the Port Authority Police , who patrol
facilities operated by the Port Authority of New York and New Jersey, searched
a van for marijuana with no warrant, which is permissible under the 4th and
14th Amendments of the U. S. Constitution in exceptional circumstances.
Whether such circumstances obtained in this case depends on whether the door
to the van was already open, thus giving the police cause (and legal grounds)
to search for marijuana which they could smell, or whether it was opened by the
police because they suspected the van contained marijuana (illegal intrusion on
private space). In the initial hearing of the case (in motion court) the judge
ruled that the police had operated outside their jurisdiction and that as a
result the drugs seizedfrom the van could not be used at trial. This
decision was upheld on appeal, but a second appeal was launched by the
prosecutor, and the Supreme Court of New Jersey held that the police were in
fact within their jurisdiction but disallowed prosecution on the drug charges.
It is at this point that the open/opened distinction comes into play. The
Court held that an error in dictation or transcription had occurred at the
original hearing, satisfying itself that testimony had disclosed that
witnesses were in agreement that the door was opened either by the police or
by the garage owner at their command.
Solan finds the decision very unusual and detects a hidden agenda in
the correction of the lower court transcript, namely allowing the Port
Authority Police to maintain their jurisdiction but without rewarding them for
their aggressive conduct in the matter. This dual objective which the author
ascribes to the Court could only be achieved by ensuring that a new trial did
not reveal that the van door was already open when the police decided to
conduct their search, that is, by fiat in correcting the record, a procedure
facilitated by the "linguistic argument" for the open/opened distinction.
I am not convinced by Solan's views in this matter. The relevant
portion of the motion judge's findings read in part "...when one of the
officers walked over to the van a door was open; marijuana was smelled and a
quantity of marijuana was found..." (p.4). What if the semi-colon is a a
gratuitous piece of editing? Then the structure of the sequence suggests
three actions following or resulting from the officer walking over to the
van, and the expression of those actions in passives suggests that "was
opened" may well have been intended.
The author's summary, cited above, states that the case was decided
on the basis of the contrast between (was) open and (was) opened. Though this
contrast is the crux of the matter for the appellate court, it is not phrased
in a manner which sharpens the distinction sufficiently to lend weight to the
decision which reads in part "Our careful examination of the motion testimony
discloses that all witnesses agreed that the door was affirmatively 'opened'
rather than casually 'open'...(p.5). In this respect one might conclude with
Solan that a shabby shred of a linguistic principle obfuscates the Court's
true motivation. More charitably, one might conclude that judges are not and
cannot be expected to be good at linguistics, practiced intuitively, and
therein lies another of the author's worries.
Precedents are set when judges invole invoke linguistic arguments:
"Is it now the law in Newe Jersey that the word 'open' can be changed to
'opened' whenever a court decides that an error in dictation or transcription
could be of some help?" (p.6) If Solan's fear seems unwarranted or
exaggerated, it is well to remember that the "linguistic principle" in the
case in question is no linguistic principle at all but the vestige
of a naive belief that every word should have a unique and fixed meaning.
It is a view that ignores both context and ambiguity (the author reminds us
that 'was opened' remains potentially ambiguous even when the distinction
between open and opened is allowed on the court's grounds). If specious
and pseudo-linguistic arguments are used, and if their use is accepted,
because they appeear to conform to the neutrality principle, then Solan's
fears are very well founded.
The state of affairs is all the more disturbing if one agrees
that "at the root of the difficulty is the fact that there is no real
relationship between these linguistic principles on the one hand and notions
of justice on the other" (p.6). Presently the author states that linguistic
arguments from the bench "can best be seen as window dressing, part of an
effort to mask some other agenda" (p.11). It is little wonder that Solan does
not recommend his own combined training in linguistics and the law (p.9), and
that he still does not understand the view of friends who advised the
combination because "the law is simply a matter of linguistics" (p.11).
By now readers will understand that this book does not lend itself
to succinct summary and comment, the author will be exasperated that I have
not progressed beyond his introduction, and the LINGUIST editors may fear
that I have a 50,000 word review in the making, so I shift gears.
One of Solan's favorite examples (it recurs till the closing pages)
is the case of Anderson vs. State Farm, in which the absence of a comma
was decisive in the suit against the insurance company for refusing to honor
Mrs. Anderson's claim for damages for which she was responsible, even though
the car she was driving was not her own and she was driving it without
permission (having mistaken it for another car which she intended to drive
without the owner's knowledge or permission)!
There is a little more to the deciding factor than a missing comma,
namely an unfathomably perverse interpretation of the last antecedent rule
in blatant disregard of both its natural reading and the proviso that it be
interpreted in conformity with context. (The rule states that "a limiting
clause is to be confined to the last antecedent, unless the context or
evident meaning requires a different construction" (p.29) Strunk, thou
shouldst be living at this hour. The case suits Solan's discussion well
with respect to linguistics and allows him to launch into a discussion of
the late closure strategy for sentence processing as discussed by Lyn
Frazier (1978, 1985) and others. With respect to the law and the
contingent nature of judgments, the case is even better suited to the
author's main thesis than the Port Authority case, because there are
instances where the courts have applied a principle just the opposite of
the last antecedent rule (p.34).
There is much of interest in this book for linguists: the law and
adjectival scopoe ws scope (p.59), the lenity principle and the scope of
adverbs (p.67), the plain language rule (p. 93), a case where the Supreme
Court found language plain despite a structural ambiguity (p.99), statutory
language which is undesirably clear (p.116), the syntax of the Fifth
Amendment (p. 123), a remedy o for one type of ambiguity (p. 125), etc.
Solan's own observations on legal language are of particular interest:
"Nowhere have I encountered examples in which 'the party of the first
part' occupies the position of a reflexive pronoun. This reflects a
sensitivity to the difference between reference dictated by grammatical
principles and reference established on the basis of context" (p.127).
I find various points in Solan's work open to criticism:
1) the discussion of an example (p.52, #12) where DeMorgan's law for the
relationship between conjunction and negation does not seem to apply
overlooks implicit chronosemantc chronosemantic aspects of the example
which allow a coherent disjunctive reading; 2) the persistence of multiple
interpretation (p.131) seems like a lame argument against plain language;
3) the thesis that cognitive capacities limit precision in language (p.138)
seems at least debatable; 4) the notion that knowledge of language makes
many interpretive tasks automatic and "beyond dispute" (p. 186) is not
itself beyond dispute, and dispute or not, how far does it advance a
linguistic analysis? Solan's further observations on this matter do not
provide a promising answer: "...enormous amounts of interpretation occur
without our ever noticing it. No on one has ever argued that the Fifth
Amendment really sets standards for the meat-packing industry, or that RICO
[racketeering legislation] is really about the financing of schools" (ibid.).
On my first reading of the second chapter I found the juxtaposition
of the writings of Chomsky and Judge Benjamin Cardozo somewhat forced; on
second reading however, it seemed not only a valid approach but that
Solan might have made his point more forcefully and more appropriately
for his intended audience of general readers by reference to the
evolution iin in Chomsky's work from some relatively non-technical source
such as the interview in _Radical Philosophy_ (1989) or various material from
Otero (1988). Solan quotes only three passages from Chomsky in this
chapter; given the disparaging references elsewhere to judges rendering
decisions as though it could not be otherwise, Solan presumably intended no
irony in quoting a passage from the 1988 Managua Lectures where Chomsky
speaks as if it could not be otherwise.)
Before Solan only one twentieth century scholar covered the same
ground - C. K. Ogden. He was not a lawyer, but the strongest formative
influence on Ogden was the 18th/19th century jurist and legal reformer
Jeremy Bentham, whose _Theory of Legislation_ Ogden edited. Ogden's
expository writings on Bentham range over his contributions to the law but
focus on his vast implii implicit program for educational reform. That
program begins with the identification of word magic (thought under the
control of language, instead of language under the control of thought), and
the social and operational contexts of language, progressing then to a theory
of how symbols function and linguistic fictions (concrete
qualities incorrectly imputed to the referents of words). All of these are
directly relevant to the themes and preoccupations of Solan's book and provide
a rich background against which to evaluate it. I think the author need not
worry that the reception of his book will be the same as that given to
Bentham, which Ogden reluctantly summarized saying "linguists will be the
last to welcome him into their fold" (Ogden 1993:vii)