Monday, January 11, 2010

Introduction (4) – the quest for clarity

How wonderful it would be if laws could be simple. The quest for simplicity struggles against the head wind of reality: life is complicated. Laws have to be applied in individual cases, often to facts that were never anticipated by legislators. It is inevitable that even simple laws will accrue complex shades of meaning as judges adapt them to meet the requirements of justice in particular cases in accordance with an imagined legislative intent.

"The truth is that a close knowledge of the facts is essential, not because of the precedent system, but as a prerequisite to doing justice in the particular case. The facts are the fount of individual justice."

EW Thomas, The Judicial Process (2005) p 321.

If simplicity is an impossible goal, clarity is not. Clear laws are essential, no matter how complicated they may have to be. There has to be a lot of law, so at least it should be clear law. Otherwise,

"As we once suffered from crimes, so now we are suffering from laws."

Tacitus, Annals, III, XXV, quoted by Montaigne, Essays, Book Three, Chapter 13.

There is a risk that

"Anything that is divided into minute grains becomes confused."

Seneca, Letters, LXXXIX, quoted by Montaigne, ibid.

The counter-measure is the quest for clarity.

Montaigne's opinion of laws could have been written, not in the sixteenth century, but today:

"Now the laws maintain their credit, not because they are just, but because they are laws. This is the mystical basis of their authority; they have no other. And this serves them well. They are often made by fools, and more often by men who, out of hatred for equality, are lacking in equity, but always by men: vain and unstable creators. There is nothing so grossly and widely, nor so ordinarily faulty as the laws."

Montaigne, ibid.

Schopenhauer's advice to writers needs to be borne in mind by law makers – legislators and judges - as well as by law teachers, students and law commentators:

"Obscurity and vagueness of expression is always and everywhere a very bad sign: for in ninety-nine cases out of a hundred it derives from vagueness of thought, which in turn comes from an original incongruity and inconsistency in the thought itself, and thus from its falsity. If a true thought arises in a head it will immediately strive after clarity and will soon achieve it: what is clearly thought, however, easily finds the expression appropriate to it. The thoughts a man is capable of always express themselves in clear, comprehensible and unambiguous words. Those who put together difficult, obscure, involved, ambiguous discourses do not really know what they want to say: they have no more than a vague consciousness of it which is only struggling towards a thought: often, however, they also want to conceal from themselves and others that they actually have nothing to say."

Schopenhauer, "On books and writing" in Essays and Aphorisms, above pp 204-205.

Much of legal discourse requires clarity about things that are not absolute. The exercise of discretion, judgment, requires a relinquishing of faith in absolutes. Petulant old (at 42 years) Nietzsche reminds us:

"Really, why should we be forced to assume that there is an essential difference between 'true' and 'false' in the first place? Isn't it enough to assume that there are degrees of apparency and, so to speak, lighter and darker shadows and hues of appearance – different valeurs
[values], to use the language of painters?"

Nietzsche, Beyond Good and Evil, above p 35.

So, don't be afraid of complexity, but strive for clarity.

"Everything that can be thought at all can be thought clearly. Everything that can be put into words can be put clearly."

Ludwig Wittgenstein, Tractatus Logico-Philosophicus, para 4.116.

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