Do Judges Need to Know Linguistics (and everything else, too) ?

Copyright Peter Zohrab 2003

 

No one knows everything, of course, but there is something about the role of a judge that seems to presume omniscience. Courts can call in so-called "expert witnesses", but the Court itself must decide what issues require the contribution of outside expertise. What happens when a judge relies on so-called "common sense", and does not see the need to call on (supposed) experts in that area of knowledge ?

I was alerted to the possibility that judges might not be omniscient some years ago. I was talking to a judge in a social context, and he complained about the recklessness of people who rode motorcycles with ape-hanger handlebars. "How could they possibly steer with those handlebars," he asked. Knowing the background of that particular judge, I assumed he had never ridden a motorcycle. Myself, I had owned motorcycles at times, though none with ape-hanger handlebars. I then informed him that handlebars are not used for steering motorcycles, unless you are pushing them. You steer by leaning over! I then wondered to myself if any court cases had been influenced by this misunderstanding. It is inevitable that such misunderstandings influence the outcomes of court cases from time to time, in my view.

I'd like to discuss here two New Zealand contract law cases with respect to how Linguistics input could have produced different outcomes. The first case is Paulger v Butland Industries [1989] 3 NZLR 549, which turned on the meaning of the following written sentence:

(1) "The writer personally guarantees that all due payments will be made."

The Court of Appeal did not, apparently, conduct any sort of syntactic analysis of this sentence -- much less call in an expert in English syntax as an witness. Common sense was deemed to be sufficient to resolve this issue, and it was decided that this sentence (or, at least, the letter in which it was the crucial sentence) amounted to an offer of a personal guarantee by the writer, upon which he became personally bound to creditors (page 552, line 30).

As a student in a Contract Law class, I put up my hand to state a different view. I had to get over two hurdles: a) First, the Professor refused to let me speak, on the gounds that he only wanted questions; b) I tried again a short time later, and this time I was allowed to speak, provided I was "passionate" about my view (so I said I was "reasonably passionate").

My point, which the class seemed to agree with, was that there was a distinction between the two sentences:

(1) "The writer personally guarantees that all due payments will be made."

and

(2) "The writer personally guarantees all due payments"

and that the Court had confused the two syntactic structures involved. Sentence (2) clearly would amount to an offer of a personal guarantee by the writer, but sentence (1) was merely a hyper-confident prediction about the future. I have the benefit of a background in Linguistics, so this distinction jumped out at me when I first read the case.

The second lot of cases I would like to refer to is Conlon v Ozolins [1984] 1 NZLR 489, and the later, similar cases which referred back to it. This case turned on whether two parties (to a contract for the sale of land) had made a different mistake about the same matter of fact. In some judgements in these cases, much was made of whether the intention of the other party constituted the same matter of fact. In other words, was Mr. Conlon's belief about Mrs. Ozolins' intentions the same matter of fact as Mrs. Ozolins' belief about Mr. Conlon's intentions ?

Again, the judges concerned seem to have relied on common sense, and common sense seems to have led them to different conclusions. At first, I too looked at the issues from the perspective of "common sense", but then my training in Linguistics kicked in. It is routine in some schools of Linguistic Semantics to use logical variables to represent entities (see, for example, Chapter Three of my Book "Theory and Description in Autonomist and Cognitive Linguistics "), and this approach would be helpful in cases, such as these, where common sense is not enough.

For example, we could roughly represent the matter of fact that is common to both Mr. Conlon's belief and Mrs. Ozolins' belief as follows:

(3) self(i)'s belief as to what self(i)'s contractual partner(~i)'s belief is about the specifics of the property to be transferred.

The "(i)" is a referential index, a symbol that shows who or what is being referred to, and "(~i)", i.e. "not-i", is a symbol showing that the person or object referred to is not the same as the one referred to by "(i). The semantic representation (3), if (i) referred to Mr Conlon, would correspond to:

(4) Mr Conlon's belief as to what Mr Conlon's contractual partner's belief is about the specifics of the property to be transferred.

Correspondingly, if (i) referred to Mrs Ozolins, the semantic representation (3) would correspond to:

(5) Mrs Ozolins' belief as to what Mrs Ozolins' contractual partner's belief is about the specifics of the property to be transferred.

The specifics of the Semantic representation involved would depend on the particular Semantic theory that was being applied, but the Semantic answer to the legal/factual issue involved is that Mr. Conlon's belief about Mrs. Ozolins' intentions was indeed the same matter of fact as Mrs. Ozolins' belief about Mr. Conlon's intentions.

So it seems that such cases (and no doubt many others) would indeed benefit from input from experts in Linguistics. The drawback would be that linguistics tends to be rent by schisms and a prey to fashions, like many other fields !

Last Update: 28 December 2003