I can also recommend a really interesting book called "The Language of the Law" on how legalese evolved ...
Ashok On Mon, Dec 23, 2013 at 11:58 PM, ashok_ <[email protected]> wrote: > IANAL but I have worked with a lot of legislation and legal judgments. Its > not just indian judgments that read like that - it seems to be the case > across the board, for instance, I saw some translated palestinian court > judgments where some paragraphs were not translated and marked as "omissis" > (deliberate omissions), when I asked was told these were long flowery texts > part of the original case filing - and were merely repeating what had been > already said before (but in 10 sentences instead of 1), so the translators > decided to omit it. This appeared to be related to the business of court > filing fees which were charged based on the length of the document - it was > beneficial to both the lawyer and the courts - since the court charged the > fees based on length of the filing ... and the lawyer of course charged per > page. Perhaps that explains the longer judgments ? > > > > On Mon, Dec 23, 2013 at 6:51 PM, Thaths <[email protected]> wrote: > >> This isn't just a case of Inglish. Do Justices get paid by the word (or as >> we used to say in college, "I wrote 50 pages... at a mark a page, I am >> sure >> to pass")? Are the law clerks who write these opinions the real culprits >> behind the wanton use of a Thesaurus? >> >> I know silklist has a handful of lawyers. It'd be interesting to hear >> their >> theories. >> >> >> >> http://india.blogs.nytimes.com/2013/12/23/deracinating-the-evidence-in-the-language-of-the-courts/?_r=1&pagewanted=print >> >> Deracinating the Evidence, in the Language of the CourtsBy DILIP >> D'SOUZA<http://india.blogs.nytimes.com/author/dilip-dsouza/> >> >> For several weeks now, Indian courts have been making news, most recently >> with the Supreme Court decision that made homosexuality illegal again. >> Given how high-profile these cases are, the court orders were examined and >> dissected much more than is usual. >> >> At a panel discussion I was at last week, for example, one participant >> used >> gaps in the discussion to pore over her copy of a Goa court’s rejection of >> the Tehelka editor Tarun Tejpal’s anticipatory bail plea in a sexual >> assault case< >> http://www.nytimes.com/2013/12/01/world/asia/indian-editor-arrest.html>, >> whispering in my ear about it from time to time. >> >> Such examination is all good, I believe, and not least because we learn >> about the enigmatic language these judgments often use. Take for example, >> the verdict in the Aarushi Talwar case, delivered by a Central Bureau of >> Investigation Special Court in Ghaziabad, outside Delhi. In 2008, someone >> murdered young Aarushi in her Delhi home, along with her family’s domestic >> help, Hemraj Banjade. Five years of convoluted proceedings ended >> sensationally in November, when the court >> found< >> http://india.blogs.nytimes.com/2013/11/25/couple-convicted-of-murdering-teen-daughter-and-domestic-help/ >> > >> Aarushi’s >> dentist parents, Rajesh and Nupur Talwar, guilty of both murders and >> sentenced them to life in prison. >> >> There are plenty of questions about the evidence and legal logic in this >> case, but of that, another time. The judgment caught the eye for another >> reason, or really plenty of them. Consider some excerpts from just the >> first few paragraphs: >> >> “Dr. Rajesh Talwar and Dr. Nupur Talwar … have been arraigned for >> committing and secreting as also deracinating the evidence of commission >> of >> the murder of their own adolescent daughter – a beaut [sic] damsel and >> sole >> heiress Aarushi and hapless domestic aide Hemraj, who … attended routinely >> to the chores of domestic drudgery … [They] were bludgeoned and thereafter >> jugulated to death.” >> >> “[T]here is nothing to suggest that intruder(s) perpetrated this fiendish >> and flagitious crime.” >> >> “Dr. Rajesh Talwar delated the matter with the Police Station.” >> >> Let’s pause there. You get a sense of the brutality of the killings, sure, >> but it is matched, even enhanced, by a certain rhythmic floridity >> (“committing and secreting as also deracinating”) in the language. My New >> Oxford American dictionary describes “deracinate” as a “poetic/literary” >> term, and both “jugulate” and “delate” as “archaic.” “Flagitious” is >> neither, but is terminally obscure. So how did these terms find their way >> into this judgment? >> >> There’s plenty more to wonder at too, and not just the strange words. >> Again >> and again in the judgment’s 200 pages, you will run into turns of phrase >> that are, shall we just say, peculiar. (“To repeat at the cost of >> repetition …” “[A witness came] to her house on hearing boohoo.”) >> >> Why use such language? >> >> It wasn’t always so. Judgments from an earlier era could be just as long, >> but the language was generally clearer, simpler. Take even these prosaic >> lines from a 1950 Supreme Court judgment: >> >> ” ‘Public safety’ ordinarily means security of the public or their freedom >> from danger. … The meaning of the expression must, however, vary according >> to the context. … [It] may well mean securing the public against rash >> driving on a public way and the like, and not necessarily the security of >> the State.” >> >> No real puzzle in that paragraph. And often enough, there were hints of >> elegant humor as well. Like a Bombay High Court judgment delivered a year >> before India won freedom: >> >> “[T]he learned Judge had before him evidence on which he was entitled to >> hold that the eyes of the Second Kumar were brownish, and therefore >> similar >> to the eyes of the plaintiff.” >> >> What kind of evidence, we might forever wonder, would “entitle” a judge >> “to >> hold that the eyes … were brownish”? >> >> But in the decades since, Indian jurisprudence has built a formidable >> reputation — as you see, perhaps it rubs off on me — for hard-to-follow >> language and intensive use made of thesaurii. There are words never >> ordinarily spoken, verbosity often straight out of left field. At times, >> it’s difficult not to think that some of it is used merely to induce >> head-scratching. >> >> For example, in a 1970 Supreme Court >> judgment<http://www.legalcrystal.com/641198> about >> film censorship, we find these lines: >> >> “Our standards must be so framed that we are not reduced to a level where >> the protection of the least capable and the most depraved amongst us >> determines what the morally healthy cannot view or read … If the depraved >> begins to see in these things more than what an average person would, in >> much the same way, as, it is wrongly said, a Frenchman sees a woman’s legs >> in everything, it cannot be helped.” >> >> Or from the 1979 Supreme Court judgement< >> http://www.legalcrystal.com/648642> in >> a rape case, this 79-word sentence: >> >> “Punitive therapeutics must be more enlightened than the blind strategy of >> prison severity where all that happens is sex starvation, brutalisation, >> criminal companionship, versatile vices through bio-environmental >> pollution, dehumanised cell drill under ‘zoological’ conditions and >> emergence, at the time of release, of an embittered enemy of society and >> its values with an indelible stigma as convict stamped on him — a >> potentially good person ‘successfully’ processed into a hardened >> delinquent, thanks to the penal illiteracy of the Prison System.” >> >> Apart from the lava flow of such vocabulary, the Indian judiciary is >> famously overwhelmed with cases. In 2010, one report estimated that our >> courts have over 31 million pending cases. At the rate they are being >> heard, it will take 320 years to clear them. This is one reason people >> lose >> faith in justice: what hope, if a simple case takes years to be decided? >> >> And when that does happen, what if the judgment is impossible to follow? >> >> All of which is why it’s refreshing to find conscious efforts to write >> more >> simply, accessibly and accurately — efforts that might even, dare we hope, >> rediscover the value of a sense of humor. >> >> Consider some recent examples from the Bombay High Court. Setting free a >> man the police had arrested because he was drinking tea “in a suspicious >> manner,” the court observed: >> >> “We were unaware that the law required anyone to give an explanation for >> having tea … One might take tea in a variety of ways, not all of them >> always elegant or delicate, some of them perhaps even noisy. But we know >> of >> no way to drink tea ‘suspiciously.’ … And while cutting chai is >> permissible, now even fashionable, cutting corners with the law is not.” >> ["Cutting chai": a Bombay phrase for a cup of tea that two customers >> share]. >> >> In a case to do with real estate zoning regulations, there was this >> caution: >> >> “Just as sailors in ancient mythology learned to beware the alluring songs >> of Sirens, tempting them to their doom on treacherous shoals, we too must >> be cautious in accepting an argument that not only bodes ill for the >> future >> but attempts to realize that which was never intended.” >> >> And in a case about the Bollywood classic “Sholay,” this not-so-subtle >> channeling of Sherlock Holmes: >> >> “In other words, according to Mr. Dwarkadas, once we have eliminated the >> impossible, whatever remains, however improbable, must be the truth.” >> >> Are these drops in an ocean of incomprehensible haze? Or do they represent >> circumstantial evidence of a small but growing tribe of judges who value >> clarity? >> >> On that last question, the Aarushi judgment has a poetic/literary comment: >> “The law on circumstantial evidence is not tenebrous.” >> >> -- >> Homer: Hey, what does this job pay? >> Carl: Nuthin'. >> Homer: D'oh! >> Carl: Unless you're crooked. >> Homer: Woo-hoo! >> > >
