Language, Law And

Law and language are both instruments. Law is an instrument for social order, while language is an instrument for communication. Neither of these [Page 913]definitions begins to exhaust its subject; law has myriad uses, as does language. However, the definitions have prima facie aptness, as does the point that language has always had an indispensable and inevitable role in the way law achieves social order.

Whatever else it may do, law employs rules to shape and constrain attitudes and conduct. Rules are framed in language. Whether one's disposition is positivistic, whereby one thinks of law in terms of power, coercion, and violence, or naturalistic, whereby one thinks of law as the vehicle for and expression of shared values and goals, the connection between law and rules, and therefore between law and language, is essential. For the positivist, rules backed by sanctions or promulgated by authoritative institutions are essential to law. For the naturalist, rules that reconcile personal ends and define a harmonious and progressive polis are the core of law.

Just as law is more than a matter of rules, so too the uses of language in law go beyond the statement of rules. Attorneys construct narratives and put forward arguments. They interrogate clients and witnesses, create strategies, and debate issues of law, fact, and policy; they create documents designed to put arrangements in place (contractual, testamentary, and transactional); they advise, negotiate, and mediate. Judges also interrogate, dispose of legal conflicts, and elucidate legal principles, often through written opinions. The roles of professionals in the institutions and practices of law are many, and the ones that come to mind most readily are all essentially uses of language. A narrow focus on rules, although illuminating, hardly captures the complex relations of law and language.