In 2015, I wrote an article which appeared in Construction Law Journal (Volume 31, Number 4).
This article ended by raising whether Court Judgments should carry a layman’s note in common English to translate judgments, to make them comprehensible to non-lawyers.
A brief extract from the article is set out below for ease of reference:
The use of language in judicial decision making to convey meaning
If one poses the question,
“For whom do the courts give judgment?”
Then at one level, the answer is immediately obvious. The courts give judgment for the benefit of the parties to the individual case being decided.
However, where the cases are significant and establish a legal precedent, the audience of the judgment is wider. The judgment establishes a legal precedent which is an authority for lawyers to follow. Until the recent past, judges would have had quite a restricted readership or audience of lawyers in mind in formulating judgments and in choosing the language used to express those judgments.
In the internet age, information is available to all and is accessible and transferable immediately. Does this not require that the law and the language in which it is expressed in the judgment of the court must be transparent and comprehensible to a wider audience?
If so, this affects the use of language by the judiciary.
Words within judgments must be used precisely to convey meaning. That precision can be achieved by using recognised terms which have, through history and tradition, acquired specific and precise meanings when one lawyer communicates those terms to another lawyer.
However, where the use of such terminology has become archaic in contemporary speech, the use of such terms can be confusing to the layman and a barrier to understanding. Does this not now need to be taken into account?
If the law is for every man, should the courts still use the French for “thing” (chose in action) in judgments explaining how English insolvency law affects those owed money in the 21st Century?
Perhaps some of the disconnect between the law and the common understanding of the layman, derives not simply from the sophistication of the ideas conveyed but also from the language used by the courts to convey the concepts within the judgments.
Lost without translation?
These issues of language and meaning may seem academic. However, if the use of language can operate as a barrier which creates a tension and disaffection between lawmakers and those who live by the law, then the legal infrastructure should search for solutions to this problem.
The solution could be simple and practical. Judgments are reported with short head notes which summarise and precis complex points in a few words or phrases, to make them instantly accessible to lawyers seeking precedents.
A simple note could be produced as footnote to judgments, summarising the points of law decided in modern speech in order to convey their meanings simply to the layman.
The precise mechanism of responsibility for this would have to be resolved. It could be that the judges themselves would write these notes and that the notes would be agreed where there are several judges involved in appeal cases. It might be that editors of law reports would commit to writing these notes and sending them to judges for approval. It might be that the Ministry of Justice or relevant government body would engage specialist civil servants, specifically tasked to produce these footnotes to key cases and refer them back to the relevant judges for approval.
The mechanism can be devised appropriately if the will to communicate is sufficiently strong.”
Since writing the above passage in 2015 Artificial Intelligence has developed from little more than science fiction to an ever-present practical reality.
So, the mechanism for producing the layman’s footnote to Judgments could now be driven by Artificial Intelligence, requesting an AI solution provider to translate the legal language into a summary in common English.
That translation and summary would then be checked and finally approved by the Judge who gave the judgment.
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