News and Views Issue 3: Spring 2000
Language and Civil Justice
The keynote address at the opening ceremony
of the Canadian Bar Association Annual Conference in Edmonton on August 22, 1999,
was given by John Ralston Saul. At the conclusion of his address, the Chair of
the Forum, Doug F. Robinson, QC, and the Executive Director, Diana Lowe, spoke
with Mr. Saul about his compelling comments and the relevance of his address to
the Forum goal of bringing together "the public, the courts, the legal profession
and government to strive to ensure that civil justice is accessible, effective,
fair and efficient". Limitations of space prevent us from publishing the full
text of his address; however, Mr. Saul has generously allowed the Forum to publish
the following excerpts. We chose these excerpts in particular because they speak
to the need to clarify our laws and our legal system so that all Canadians can
understand and participate in both the justice system and in efforts occurring
in every Canadian jurisdiction to reform the civil justice system.
[But caution does not mean time wasted. Caution does not mean useless complexity;
it does not mean money spent foolishly by citizens for you; it does not mean debates
in our law courts that are incomprehensible to the people, the citizens. It is
very, very important.] If the citizens don't understand the legal debate, then
the legal debate has lost its purpose in a democracy. [Caution, on the contrary,
means the search for clarity, for the long term direction of justice in society].
. . .[Translation]
And secondly, at the receiving end, the sheer weight that I have talked about,
the quantity of laws leads inevitably to the rise of specialist language, your
specialist language and there are several of them within the legal profession.
And that, of course, that specialist language-what I call the dialects of modern
corporate specialization, we have thousands of them in different areas-separates
the citizen from their law because they simply don't understand what you are talking
about out there.
It is the same in medicine. It is the same in philosophy. It is the same in post-modern
fiction. The same in almost every area. The modern elites have in a sense defended
themselves by giving themselves a dialect which allows them to say, "This is so
complicated, my dears, you couldn't possibly understand it." And it simply isn't
true.
I was in the Outback in Australia about six months ago and I was talking to an
Aboriginal, a Walpre man, and out of the blue he suddenly said that in English
there were three types of language: formal language which is sort of polite, rough
language and then political language. And what was interesting was what he meant
by political language wasn't traditionally what we mean by political language.
What he meant by political language was legal, technocratic language. The same
is true in French.
And the one that he found the most difficult with and felt was the most destructive
was that kind of political language. The language of a managerial, corporatist
society in which every corporation - I am using it in the medieval sense, in which
each corporation, the lawyers, the writers, the doctors, the businessmen, the
economists-are driven to develop their own dialects so that they are incomprehensible
to outsiders.
Language is central to the functioning of a democracy. Civilizations work when
language means communication. Civilizations are in deep degeneracy, if you will
forgive a strong word, when language is used to obscure and prevent comprehension.
. . .
And on top of that, citizens know a great deal more. This is the best educated
public we have seen in the history of the world. They know a great deal more.
They are ready to take part if they can find ways to take part.
But the reality is that this new participation, this new involvement by different
kinds of lawyers and interested citizens, it is wonderful but it is outstripped
on a daily basis by the growing quantity, the growing complexity and the growing
dialects. . . .
. . . [Y]ou have an enormous obligation to help break the myth of inevitability
which hangs over our society. The inevitability of the big events and of our necessity
to adjust to them. You have an obligation to clarify how law works, to give meaning
to the words "legal reform".
John Ralston Saul
The full text of this address is available in the Canadian Bar Association
1999 Year Book. To order, contact Monique Cassidy, Publications Coordinator,
at 1-800-267-8860 or nickiec@cba.org