I was running a (for me) routine Westlaw search several weeks ago when I ran across The Literary Case for Legal Ambiguity, by Ona Russell, in, of all places, the August 2006 Orange County Lawyer (requires Westlaw Access.)
Ask anyone trained in literary studies to comment generally on legal discourse and they would likely invoke the late French philosopher Jacques Derrida's influential theory of deconstruction. Simply put, deconstruction sets out to expose the implicit assumptions underlying claims to absolute truth, especially claims structured on the kind of binary oppositions that inform much of the law: right or wrong, decent or obscene, guilty or innocent, the "either-or" propositions that erase the all too human shades of grey.
Derrida based his theory on the work of linguist, Ferdinand de Sauassure, who argued that language is an arbitrary system of signs in which no inherent relationship exists between a name--the "signifier"--and the thing to which it refers--the "signified." There is nothing in a flower that requires it to be called as such. A rose by any other name would smell as sweet.
If that were true, Derrida reasoned, then words should be rigorously interrogated, given, so to speak, the third degree. All words. particularly those that pass through the ages unchallenged, congeal around accepted ideas. "He," for instance, until recently the universal pronoun for all humankind. Or "handicapped," connoting an "in" rather than "dis" ability. Words, that is, whose meanings are presented as ahistorical, fixed and self-evident.
The article compares Derrida's work to Edward H. Levi's 1949 "An Introduction to Legal Reasoning" (a connection also made by Garret Wilson in his 2002 review of Levi's book), and points out the strategic utility of ambiguity in language:
To win a case, to hand down a decision, one must often "pretend" that words and the things they represent are indeed either black or white. Often, but not always. There are in fact times when the inherent ambiguity of language may serve the case, when it can be used as a rhetorical strategy to raise doubt, reasonable or otherwise.Clarence Darrow is celebrated as a master of winning cases through rhetorical obfuscation which, the author urges, can be learned from literature:
Moby Dick and books of its ilk are admittedly tough to get through. . . . But it nevertheless might be worth giving such works a try. For what they show is that the "letter of the law" can be as ambiguous as the spirit. Moreover, that the literary shade of grey can be the color of legal success.
Not the most subtle rendering of Derrida's work I've seen, but also not what I expected to find in the official publication of the Orange County California Bar Association, where one is more likely to see pieces on "Pre-Dispute Jury Waivers," "California’s Estate Tax Dilemma" and "Ethically Speaking: Avoiding Common Client Complaints."