How Judges Use Language: A Study of Judicial Opinions and Rhetoric

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Language is not merely a tool for judges — it is the very essence of judicial power. Every judicial opinion, whether from a constitutional bench or a lower court, is crafted through words that define rights, impose duties, and set precedents. Judges, through their written and spoken language, not only interpret the law but also shape public perception of justice. Understanding how judges use language allows us to see how law evolves in different systems and how rhetoric becomes a bridge between legal reasoning and social legitimacy. This linguistic bridge is especially vital in constitutional democracies, where judicial language often mediates between abstract legal norms and lived social realities.

The Power of Judicial Language

Judicial language is distinct from ordinary speech. It combines precision, authority, and persuasion. A judge’s words do more than resolve disputes — they establish principles that influence future decisions. For instance, when Justice H.R. Khanna in ADM Jabalpur v. Shivkant Shukla (1976) declared that “life and liberty are not gifts of the State,” he was not merely interpreting the Constitution — he was affirming a moral truth against political pressure. Such language becomes immortal in legal discourse. These expressions often transcend the courtroom, entering public discourse and shaping civic understanding of rights and justice.

In judicial writing, how something is said often carries as much weight as what is said. The rhetorical choices — tone, structure, and metaphor — can turn a routine judgment into a landmark ruling. Judges thus act as both legal interpreters and moral philosophers through their linguistic expression.

Rhetoric in Judicial Opinions

Rhetoric in law refers to the art of persuasive communication. A well-reasoned judgment must not only be legally sound but also rhetorically effective. Aristotle described rhetoric as the art of finding the available means of persuasion, and judicial rhetoric operates on similar principles — appealing to logic (logos), credibility (ethos), and emotion (pathos).

• Logos (Reasoning): Judges rely on logical consistency and statutory interpretation. For example, in Kesavananda Bharati v. State of Kerala (1973), the majority opinions use structured logic to develop the “basic structure doctrine.”
• Ethos (Authority): Judicial ethos stems from impartiality and credibility. The tone of judgments often reflects restraint, dignity, and neutrality, reinforcing the institutional authority of the court.
• Pathos (Moral Appeal): In human rights or social justice cases, emotional appeals are often implicit. Justice D.Y. Chandrachud’s language in Navtej Singh Johar v. Union of India (2018) combines empathy with constitutional morality, appealing to human dignity and equality. His opinion emphasized that constitutional morality must prevail over social prejudice, using inclusive language that resonated with both legal and human rights communities.

Thus, rhetoric in judicial writing serves both a persuasive and a pedagogical function — it explains the law and inspires respect for justice.

Comparative Insights: Common Law vs. Civil Law Traditions

Judicial language varies widely between legal systems.

1. Common Law System (e.g., India, UK, USA):

• Judges write detailed, reasoned judgments.
• Precedents are central; therefore, judicial language must be explicit and explanatory.
• Opinions often reflect individual judicial styles — some concise, others literary or philosophical.
• The use of rhetorical flourish and moral reasoning is more common.
• Example: U.S. Supreme Court Justice Oliver Wendell Holmes used vivid language, calling the law “the prophecies of what the courts will do in fact.”

2. Civil Law System (e.g., France, Germany, Japan):

• Judicial opinions are shorter and more formal.
• Focus lies on the application of codified statutes rather than precedent.
• Rhetorical style is restrained, avoiding personal expression.
• The emphasis is on clarity and uniformity rather than individual voice.

Comparative Implication:
While common law judges often “create” law through interpretation, civil law judges “apply” law as written. Consequently, the former’s linguistic choices shape jurisprudence more visibly, while the latter emphasize legal certainty through precision and consistency. This divergence also affects legal education and public engagement — common law judgments are often studied for their reasoning style, while civil law opinions are valued for doctrinal clarity.

Practical Insights: How Language Shapes Judicial Reasoning

1. Defining Ambiguity:
   Judicial interpretation often arises because legislative language is vague. Judges use linguistic tools — literal, golden, and purposive rules — to resolve ambiguity.
2. Structuring Arguments:
   A well-structured opinion follows a pattern: facts, issues, arguments, reasoning, and decision (ratio decidendi). The logical flow ensures transparency and public trust. This structure also aids appellate review and legal pedagogy, allowing judgments to be dissected and debated with clarity.
3. Use of Metaphor and Analogy:
   Metaphors simplify complex ideas. For instance, the “living tree” doctrine in Canadian constitutional law likens the Constitution to a growing tree — symbolizing adaptability.
4. Judicial Tone:
   Tone reflects judicial temperament. A respectful and reasoned tone strengthens legitimacy, while a harsh or sarcastic tone can undermine it.
5. Language and Accessibility:
   Modern courts increasingly emphasize plain English judgments. The Supreme Court of India has recently promoted simplified language to make justice more understandable to the public. Initiatives like judgment summaries in regional languages and plain English guidelines reflect a growing commitment to linguistic accessibility.

Judicial Language and the Public Sphere

Judicial opinions are not confined to legal professionals — they reach the public, the media, and policymakers. The rhetorical quality of judgments can shape societal narratives about justice. In landmark social cases like Vishaka v. State of Rajasthan (1997) or S.R. Bommai v. Union of India (1994), the language of the court transcended technical interpretation, becoming a declaration of democratic values.

Moreover, the accessibility of judicial language plays a role in promoting judicial accountability. When judgments are clearly reasoned and written in comprehensible language, citizens are better equipped to understand and critique them. In an era of social media and instant news, the rhetorical clarity of judgments can influence public opinion, legislative reform, and civic activism.

Challenges in Judicial Communication

Despite its importance, judicial language faces challenges:

• Overly technical jargon alienates non-lawyers.
• Translation issues arise in multilingual jurisdictions like India. For example, while Hindi translations of judgments exist, the authoritative version remains English, which can create interpretive asymmetries for non-English-speaking litigants.
• Lengthy judgments often obscure key reasoning.

Balancing legal precision with clarity remains a constant judicial challenge. Courts are increasingly aware that justice must not only be done but be seen to be done — and language is central to that visibility.

Conclusion

Judges wield language as their most powerful instrument of justice. Through words, they interpret laws, articulate values, and influence societies. Judicial opinions are thus more than legal documents — they are rhetorical acts of authority, reason, and morality. Comparative insights reveal that while the form and tone of judicial language differ across systems, its ultimate purpose remains universal: to express justice in a way that resonates with both the law and the human conscience.

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References

1. Aristotle, Rhetoric (translated by W. Rhys Roberts, 1954).
2. H.R. Khanna, Neither Roses Nor Thorns (1980).
3. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
4. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
5. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
6. Neil MacCormick, Legal Reasoning and Legal Theory (1978).
7. Lord Denning, The Discipline of Law (1979).
8. J. Stone, Legal System and Lawyers’ Reasonings (1964).

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