1 January 2014

Misled Pretentiousness

The previous post, 'Spirits and Legal Articulation', leads to a problem that I cannot yet solve: law requires a technically defined and precise lexicon, which leads some to claim that law must deny certain relationships with non-legal writing. Law's technicality, however, does not mean, beyond the required lexicon, that all common usages must be excluded. Contrarily, lay-phrases and popular language constructions may render legal writing more fluent and readable. (This is not a call for clich├ęs.) This post considers the false opposition attributed to legal and non-legal writing styles.

1. Misplaced Dedication to Propriety

There are many writers, critics, and editors who confuse the demands of formal, legal, and academic writing. In this confusion, they pretend each of the three types is reliant on and reciprocal to the others while simultaneously excluding the flexibility granted by, for example, fictional prose or poetry.

Some radical thinkers argue legal and literary techniques and vocabularies are closer than traditional theories imply. As I understand it, however, the problem is not yet suitably addressed fully to help students learn law. For example 'law and literature' fuses different writing techniques, but also tries to show how law and literature are linked--either because law is literature, or because legal characters can be the subject matter in literature. This ensures 'law and literature' is a sub-branch of the legal discourse, rather than a central feature.

2. Solution?

To 'fix' this problem in legal education it may be more productive to change the emphasis: rather than accept literature as separate from law, realise that legal writing is not 'literature' according to conservative definitions but literary inasmuch as, beyond technical necessities, there is plenty of room for student- (and established legal-) writers to be creative. By 'creativity' I imply a retreat from the institutionalised, easy-to-enforce, immediate dismissal of student writing due to 'informality', which confuses the boundaries of writing styles (see above: section 1, para 1) and stems from pretentious notions of what legal writing really is.

3. Conclusion

As suggested earlier, my remarks are still inadequate. What is provided, however, is an attempt to elucidate the problem, which clarity is a prerequisite to any solution. I continue to seek a solution but there is an ancillary issue in this regard: the thinkers discussed above include James Boyd White, and Anthony Amsterdam and Jerome Bruner. I must be careful because the research I already have on their work is for another project: I cannot risk publishing thoughts on this blog that I may want to include in a journal article, for example; until I know to what other uses my research will be put, I must refrain from uploading it here. This solidifies this post's inadequacy. I hope it is useful nonetheless.

Created: 1 January 2014. Version 1.0.

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