Calnan on jurisprudence
Keeping it simple
'I don’t think writers are sacred, but words are. They deserve respect. If you get the right ones in the right order, you can nudge the world a little or make a poem which children will speak for you when you’re dead.'
In his play The Real Thing, Tom Stoppard reminded us of the responsibility which we have to use words properly. And that is surely particularly true of lawyers, for whom words are their tools of trade.
But this is not a polemic about the importance of writing clear and simple English. What I am concerned about here is what words mean.
The recent tendency of judges in a number of jurisdictions around the world is to stress the importance of context when interpreting the meaning of words. At its most extreme, this is reflected in the view that words do not, by themselves, mean anything. The American contract scholar, Arthur Corbin, referred to the ‘great illusion … that words, either singly or in combination, have a “meaning” that is independent of the persons who use them’. The same theme has been taken up by the judiciary. In one of his judgments, Oliver Wendell Holmes said that: ‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and context according to the circumstances and the time in which it is used.’
The problem with this approach is that it gives the person interpreting the words a great deal of licence to decide what they mean. This is anathema to commercial lawyers. The approach of many judges is to recognize that most expressions do have a natural meaning and that, in the words of Lord Mustill, ‘the enquiry will start, and usually finish, by asking what is the ordinary meaning of the words used’. Although it may be theoretically correct that a word can only have a meaning in the context of its background facts, most words are pretty easy to understand in the context of the few words which surround them.
But not always. Take The Aragon, a case decided by the English courts in the 1970s. A charterparty only allowed the charterer to use the vessel within ‘USA East of Panama Canal’. The question at issue was whether the US Gulf was within that limit. By referring to an atlas, it transpired that the US Gulf is in fact to the west of the meridian of longitude on which the Panama Canal stands. On the face of it, therefore, a trip to the US Gulf would be outside the charterer’s limits. But the court took a different view. The purpose of the charter was to carry out a round trip from Europe to the east coast of North America and then back. In this context, what was meant by the words ‘USA East of Panama Canal’ was a port in the United States which did not entail going through the Panama Canal. The natural meaning of the words was not their meaning in isolation. The meaning of the words could only properly be understood in context.
© Norton Rose Fulbright LLP 2020