This article is written by Amogh Kane.
Table of Contents
Abstract
Law is a subject that is dependent on the intricacies of language. Legal speech, or the language of the Law, is difficult for a layperson. Critical thinking is a notion that has been thriving for centuries; this is a tool to help us simplify the language. It is often observed that the language used by legal professionals is introcate, and the format is difficult to understand; in such a situation, it is obligatory to make use of critical thinking in order to understand it. A legal professional has to use critical thinking to decode the legal documents. Every language has different interpretations of different words; the same thing follows with legal language. The main aim is that the reader of legal documents should be able to use his logical mind and critical thinking to analyze any legal text in order to get its true meaning.
The question that remains is if the legal fraternity is taking the use of critical thinking in legal language seriously? There isn’t a simple answer, there are many pilot programs in progress, but the practice of using critical thinking in language hasn’t really kicked off. The idea is that when budding lawyers are taught Law and legal language with the help of critical thinking, they excel in the field. As of now, more efforts are required to include Critical legal thinking universally into legal education. Legal language and legal English are two different factors; legal language is not necessarily English; even if the language of communication of legal language changes, its complicated nature does not. Universities need to understand the importance of legal language and alter the legal course outline to induce critical thinking into it.
Introduction
Critical Legal thinking is an essential aspect of the Law, and the Law is directly connected with language. Despite having an apparent certitude that both Legal theory and legal practice are and mostly have been contingent on the tools of Linguistic and rhetoric analysis, yet no systematic study of the relationship of Law and Language has taken place.
Critical legal thinking is defined as:
“The process of identifying legal issues, determining the relevant facts, and applying the applicable Law to come to a conclusion that answers the legal question the issues present. The legal professional must understand the audience for whom the document is being prepared: the client, the supervising attorney, and other members of the legal team, or the court.”
Law is an overwhelmingly linguistic institution; it is coded in the language, and the legal concepts are accessible only through language. Be it court cases or police interviews; Language always plays an important role. ‘Johannes Bratt Andenæs,’ a Norwegian Jurist, said:
“Legal science differs from the natural sciences: the laws of nature are the same everywhere. The difference is evident in the relationship between language and its object. The language of natural science cannot change reality: if a plant is described wrongly or inaccurately, it remains as it was none the less. But if the legislator, in a new law, describes a legal phenomenon otherwise than in an earlier law, then the legal reality changes: the Law only exists in human language.”
In past few years, a new field of social science has emerged, which is the interrelation between Law and Language. Linguists, Lawyers, social Scientists are attempting to hurdle disciplinary barrier to study how the function of Law in society relate to language.
In simple words, Critical thinking in Law affects a Lawyer’s ability to comprehend case law and legal documents. The ultimate aim of any written text is to deliver a message to readers or receivers and receive feedback from the receivers. The essential elements of communication are:
- Sender – Sends the message.
- Channel – The medium that is used to communicate the message. (example- books, speech, video)
- Receiver – Receiver reconstructs the message.
- Feedback – The sender receives feedback from the receiver.
To explain the importance of effective communication, here is an example of a case that took place in England in 2012, known as the Twitter Joke Trial. In 2010, a 26-year-old man learning that the airfield he was supposed to travel from was closed off due to heavy snowfall decided to tweet about the incident on Twitter. His exact tweet was, “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together; otherwise, I’m blowing the airport sky high!” The 26-year-old man was charged, tried, and found liable for sending a ‘menacing electronic communication.’ In this situation, there is a strong indication that the threat is not real.
Nonetheless, it was read literally by the airport authorities, police, and the trial court. In this case, the suite was quashed by the high court after a span of two years. This case is primarily related to freedom of speech and expression, but this also throws light on the importance of critical legal thinking in language. In the above case, if the trial courts had not taken this in a literal sense, then the case would not have made it to the high court. If something is a menace or not is a question of interpretation.
Lawyers devote a good portion of their time creating, articulating, and distributing word-based finished items. Charles Alan Wright, a leading civil procedure and criminal practice expert, said:
“The only tool of the lawyer is words. Whether we are trying a case, writing a brief, drafting a contract, or negotiating with an adversary, words are the only things we have to work with.”
The doctrinal model of research design is recommended to approach the prescribed study goals, intensive literature review on the subject will be implemented, and the topics under study will be thoroughly investigated. Both empirical and descriptive are this doctrinal work adopted for the writing of analysis work. The investigator has made an attempt to analyze all outlets such as books, journals, and e-resources objectively. As a real contribution to research, the views of research scholars, professors and other professionals who have worked with this topic will be included. In the analysis, e-resources have made a significant contribution to accessing the most important and current site knowledge that has allowed the researcher to examine the topic across different dimensions.
Critical Thinking
A philosophy that has been evolving for more than 2500 years is critical thinking. In the middle of the late 20th century, the foundations of critical thought were laid. The statement by Michael Scriven & Richard Paul, made during the 8th Annual International Conference on Educational Reforms and Critical Thinking, in the summer of 1987 read:
“Critical thinking is the intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action. In its exemplary form, it is based on universal intellectual values that transcend subject matter divisions: clarity, accuracy, precision, consistency, relevance, sound evidence, good reasons, depth, breadth, and fairness.”
In a pioneering study on critical thinking and education, Edward Glaser defined critical thinking as follows:
“The ability to think critically, as conceived in this volume, involves three things:
(1) an attitude of being disposed to consider in a thoughtful way the problems and subjects that come within the range of one’s experiences;
(2) knowledge of the methods of logical inquiry and reasoning; and
(3) some skill in applying those methods.”
Critical thinking demands that every belief or form of understanding be tested in a persistent manner. Critical thinking also requires the ability to identify the problem and to find a solution to solve it.
History of Critical Thinking
The use of the term ‘Critical Thinking’ to describe an educational aspiration was first proposed by an American philosopher John Dewey in 1910, who usually referred to it as ‘reflective thinking.’
In the 1930s, several schools engaged in the Progressive Education Association’s eight-year analysis that embraced critical thought as an educational objective. With intellectual vocabulary such as this in the forefront, at least basic critical thinking movements within any subject area can now be introduced to students. Moreover, in theory, there is no reason why students should not take the basic instruments of critical thinking that they learn in one area of study and apply it with necessary adjustments) to all the other domains and subjects they study.
Language
The faculty that men possess to express their perceptions and ideas to one another by means of articulate sounds is called language. Nevertheless, ideas can be communicated without sound by writing, and when ideas are communicated in this way, it is called Written Language. Conventionally, certain sounds have a definite meaning in one or many countries; these sounds, when combined together, are called a language. Most non-human species exchange information but none of them are known to have a communication system as complex as humans.
Legal Language
In simple words, the vocabulary used by legal profession-related people is considered legal language also the language used in their professional capacity by jurists, attorneys, and parliamentary drafters. Since the Law is a technical subject, it speaks through its own register. It is vital to understand Legal Language, as this is the subcategory of language that is generally used in courts or while writing Legal Documents. Students of Law first started taking an interest in language in the 1970s. During the conference sponsored by the National Science Foundation, Walter Probert stated:
“There needs to be a greater concern in the law, of all places, with language behaviour, not just language, but language behaviour”. The study of Language and Law begins with a pair of subjects. Intuitions: The power of Law to control Human Affairs is connected in an essential way with the fact that words count and there are ‘serious’ as well as ‘frivolous’ use of language; critical aspects of communication processes in the handling of ‘cases’ may have a significant consequence for individuals and groups. We need to demarcate the boundaries of the field of Language and Law broadly enough to incorporate relevant circumstances in both preliterate societies without a legislature, courts, or legal personal and highly differentiated legal subsystems.
Legal English
The specialized variety of English language used by lawyers and legal professionals in Legal documents is called Legal English. David Mellinkoff had said in the book “The Language of Law” that Legal English uses “distinctive words, meanings, phrases, and modes of expression.” There is a distinction between the modern language and the language of Law; vocabulary and conventions have been accumulated in the language of the Law, compiled and maintained over decades. To this extent, ‘English’ used by Legal professionals is considered from everyday speech ‘English.’ Legal English uses a specialized version of specific terms and linguistic patterns governing the teaching of legal language.
The Plain English Movement
Plain English is basically the form of English that is easy for a layperson to understand. In 1971 the American National Council of Teachers formed a committee on Public Doublespeak, the objective of which was the development of teaching kits to foster a critical attitude towards language among students. After his election, President Jimmy Carter passed an executive order requiring “Clear and simple English” as a means of improving government regulation. A movement named “Plain English” was launched. Insurance and banks in private as well as the federal sector started holding conferences on language reform in order to make the language of contracts understandable to a layperson.
Development of Pragmatics in Legal Language
Focus on performance-based speech has led to the emergence of a field called Pragmatics. This term is of a threefold classification that goes back to the philosopher Pierce, but it was first made known by Morris in 1938. Semantics studies the relationship between signs and the object to which they apply, syntactic analyses the formal relationships among signs, and pragmatics examines the relation of signs to interpreters. Pragmatics deals with the aspects of meaning which are derived from the context of the specific text. Gazdar defined pragmatics in 1979 as, “The study of those aspects of utterance meaning which cannot be accounted for by straight forward reference to truth conditions of the sentence uttered”.
The study of pragmatics includes work in three areas, all of which are necessary for language and Law, though their implications for this field have hardly begun to be explored. These are speech acts, presuppositions and conversational postulates, and discourse. Whereas the first two focus on individual utterances and their links to context, the third topic takes as its unit of analysis whole complexes of utterances, whether written compositions or spoken dialogue.
Critical thinkers and their characteristics
How are you going to know who a critical person is? Buskist and Irons (2008) happily say that critical thinkers do not have critical thinking imprinted on their faces and bodies, nor do they place on t-shirts labelled with—I’m a critical thinker. They exhibit a welter of attitudes and abilities, which are very apparent in the circumstances involving problem resolution. Undoubtedly, many characteristics are essential to what educators reveal to students about their specific academic disciplines as well as to how students handle concerns in daily life.
Indeed, if there is one potential that college can cultivate in students, it is how to incorporate what they learn in their daily life in their courses. Unfortunately, academic contexts have put so much focus on “what to think” instead of “how to think.” Schafersman (1991) argues that “we are really capable of passing on to our students the substance of what we teach, but sometimes struggle to teach them how to think objectively and analyze effectively.” Children are not born with the ability to think objectively, nor do they, in the absence of tacit and explicit guidance, grow this potential beyond survival-level thought. Critical thought needs to be taught, so educators are all relied upon to improve the capacity for critical thinking of learners.
Critical Thinking and Language Learning
Teaching critical thinking is an essential aim of contemporary education, as it equips students in a continually changing society with the knowledge required to reason about social relations. Critical thinking is known to be the implementation of cognitive techniques that facilitate the assumed optimal performance as the working concept. It is objective, purposeful, and reasoned-oriented. It is a mindset that is responsible for solving questions, formulating inferences, measuring probability, and decision-making. Based on the available environments, qualitative researchers are able to apply those talents in a necessary manner, without delay, and even deliberately.
The interrelation between Critical thinking and language
Critical thinking (CT) has long been recognized as a lifelong capacity to make difficult decisions that people have to make in their family, academic and social lives. In this fast-paced and ever-changing world in which we live; Critical thinking is not a mere luxury; several scholars have found it an essential survival ability. Education theorists argue that critical thinking is the primary purpose of learning and is central to higher education in particular. There has been a change from seeing learning solely as mechanical instruction to conceptualizing learning as a continually changing mechanism of hypotheses being found, challenged, and reformulated. In research related to student achievement and attitudes, critical thinking skills have also gained growing recognition, and a diverse body of educational research has recorded the importance of cultivating higher-order thinking skills and the significant influence of critical thinking on the achievement of learners in EFL (English as a Foreign Language) contexts.
Teaching critical thinking is an essential element of contemporary education, as it enables students in a continually evolving society with the knowledge required to reason about social relations. Students need to go beyond consuming textbook content to acquire such expertise and learn to construct skills involved in assessing facts, analyzing alternative evidence, and arguing for solid motives. Not only are these critical thinking skills vital for students to do well in education, but they are also crucial in future workplaces, social and behavioural environments where sound choices are to be taken on a regular basis carefully and separately. The priority given to critical thought is now a global phenomenon.
Critical thinking is a skill that is required in every field of study, be it language, arts, or sciences. While the Law and the Language usually have been treated separately in the past, they share similar characteristics; both are uniquely human and essential to the fabric of society, and they symbolically are rule-governed. A lawyer seldom gets a direct answer to a question of Law; he needs to research in legal books. Critical thinking is required for him to select the designated book in which he might find the answer. Language and critical thinking grow together and nurture each other’s development. Even as children begin to engage in critical thinking, their language skill expands because they are encouraged to use and develop more complex words.
In the UK, some schools have introduced critical thinking skills into Legal education; it was observed that when students were thought to think, they were able to express themselves better. Furthermore, thinking abilities have been shown to promote language learning, such as drawing inferences from unfamiliar language components and focusing on connections between languages. The ability to draw influence from unfamiliar language components has proved particularly helpful in legal context since legal; language is infinitely diverse; the experience and hold over legal language does not matter when one has to draw a conclusion from the context of a sentence.
There are three areas of language where critical thinking is applicable the most, the areas are:
Word choice
Words affect the way an audience responds to an argument; effectively using words is not achievable by everyone. When selecting our vocabulary, we have to use our critical thinking ability so that the word we select turns out to be the one that is correctly required in that sentence. According to the Warph-Saphir hypothesis, “words of a particular language help to determine the way that people interpret the events that occur.”
Ambiguity
Having ambiguity in a sentence is never a purpose in Legal Language; if this is a competition about who writes better legal language, one who has ambiguity is the first loser. “A word, phrase, or sentence is ambiguous if it has more than one meaning,” as mentioned in the Kent Bach Routledge Encyclopedia of Philosophy.
Intensity
Whenever any legal professional speaks, he must understand the intensity of a specific topic and also of the words he is speaking. The intensity of one’s language means the use of words and phrases that often negatively raise the emotional level of any communication encounter.
Conclusion
We can infer from the above explanation that, Legal language is challenging to understand, is framed in a way that needs critical thinking to understand. Every Legal document is designed in a way that it should not contradict itself. The language used in Legal documents have far-reaching effect; if there is a phrase having multiple meaning in a legal document, it could be exploited by the opposite party.
Even if a lawyer is trying to argue a case, he has to convince the Judge, the opposite lawyer and even his client about the facts of the case, for doing, so lawyer needs excellent command over the language. The legal professional needs to use the correct terminology, stress on the valid points; for the legal professional to do this critical thinking ability is required. In a more straightforward language, a lawyer put up a story, and it is his job to make people believe that the story is true.
It is strongly suggested that teachers support their students to become successful critical thinkers after an in-depth analysis of the latest literature on critical thinking, i.e., assist them in improving both the critical thinking skills and critical attitudes to cope with the problems and developments generated by the age of information. In terms of classroom education, the constructive use of queries by teachers, actively engaging students in debates on challenging and inspiring subjects, and multiple ways of respect-based reflection could involve students in substantive phases of critical thought.
Critical thinkers must take into consideration the language needs and requirements of the audience and or the reader. After due consideration, one should proceed to try and persuade the audience to adopt a particular point of view. Using the correct language can always charm the audience and also increase the credibility of the speaker. The language itself determines how an individual would perceive his environment.
Critical thinking can improve a person’s word choice, enable him to decide when to stress upon a particular word, when to lower his voice, and all other modulations required in language. To a legal professional, language is equivalent to his bread and butter; after all, the Law is simply a combination of words the society adheres to. Therefore, to excel in a legal setting, it is essential to learn critical thinking in relation to language.
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