By General editor of the Australian Law Dictionary, Trischa Mann
Legal language is rich and diverse. It’s no exaggeration to say there are tens of thousands of legal words. Some are specially defined in legislation, others are refined over time by judges, but most are given their ‘natural meaning’. To find that meaning, lawyers uses a case-based form of reasoning by analogy which relies heavily on metaphor: slippery slope arguments, floodgates arguments, bright-line distinctions and penumbras of doubt. But where do we draw the line? A former High Court justice who detected a fatal flaw in a barrister’s argument used to say, ‘All very well, but is there not a knife in the napkin?’ Does that usage make ‘knife in the napkin’ a legal phrase? Sometimes it’s hard to distinguish between ‘legal’ words and ordinary words, and the word-traffic flows in both directions.
So how did we select words for inclusion in the third edition of the Australian Law Dictionary (ALD)?
Some compact law dictionaries start with a big proprietary database and ‘cut it down to size’ for students and non-lawyers. By contrast, the ALD was designed from scratch, built from the ground up. For the first edition, we started with the core law subjects (called the ‘Priestley Eleven’, after the judge who chaired the education committee). We gave readers a one-page summary of each Priestley Eleven subject, including its core terms, and defined these terms in tinted boxes in the text. Related concepts emerged naturally in each area. We peer-reviewed and refined our lists, and asked academics in the field to draft or review entries. We want students to use legal words comfortably, so we weave our cross-references into the flow of the text rather than adding them at the end of the entry as others do.
Important words in ‘other subjects’ come next, as well as words ‘heard round the traps’ in the profession. These include words emerging in Bar and Law Society newsletters and journals on topical issues, and in student or young lawyer circles. We keep a constant eye out for these, and each new edition has had a sprinkling of legal words that are in the news or inform public debate. We give them a context to encourage legal thinking in place of opinion. Examples new to the third edition include Sharia law, Islamic banking and the burqa, as well as sexting and sexual servitude—all important topics with a social dimension and legal significance.
Other entries we think of as our ‘saving you embarrassment’ entries. We give pronunciation advice on tricky words, but not in phonetics (because we don’t think many people understand that notation). A magistrate recently confirmed my impression that young lawyers pick up court behaviour from American movies, and are prone to ask for a ‘continuance’ instead of an ‘adjournment’ (the term used in Australian courts). A warning about that finds a place in the ALD. Legal books and articles often use a gavel on the cover—we point out that in Australia auctioneers might bang gavels, but our judges don’t. And yes, it is ‘justice’ of the High Court, as set out in the High Court Act, not ‘judge’—but we have judges of the Supreme Court (called Justice Smith) and District or County Courts (Judge Smith).
Finally, we have our ‘Bramble Bush’ entries. Legal Realist Karl Llewellyn (2012) described law school as a ‘Bramble Bush’ in a little book of that name about law teaching. Llewellyn thought deep immersion in law was necessary to train good lawyers, but students also needed to be moved by law. Law had to break through students’ shallower impulses (to make money, gain prestige) and awaken them to the rewards of service in an honourable profession that loved the law. He started the book with a cryptic little verse:
There was a man in our town
and he was wondrous wise:
he jumped into a bramble bush
and scratched out both his eyes—
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.
In a 1941 article, ‘On the Problem of Teaching “Private” Law’, Llewellyn said he wanted students to:
see a society whole, and not in the mere image of one’s client; to see a man whole, and know sympathy where another would know bitterness or scorn. To [practise] law better, and live life more richly, because law is lived as a humanity, and human – as wisdom, but as wisdom always needing art. Such are the things an author drives to get into some communication to the student.
Llewellyn tried to communicate these things through his text. The ‘Bramble Bush’ approach treats legal education as a process of ‘making a lawyer’ by fostering the skill of thinking like a lawyer, which is a matter of expertise through instinct. First there is a naïve, adversarial understanding of law. The student must ‘wrestle through’ the ‘Bramble bush’ which ‘scratches out’ a legally uninformed emotional response to cases, and then scratches in a deeper, legally informed emotional attachment to law itself. The deep logic of the rule of law becomes instinctive and intuitive, and legal language plays a significant part in that.
The new third edition retains the structure of the first and second editions, but has a broader reach and includes significantly more entries. At a personal level, I see the ALD as part of a larger struggle against lack of time for reflection and a certain dehumanisation of law as it becomes increasingly instrumental. The structures in place in law schools (timetables, curricula, pre-planned ‘outcomes’ for each area of study) may be administratively necessary, but they can have a deadening effect. Law students experience high levels of stress and depression. The third edition, like its predecessors, is crafted to instil legal culture and a love of legal language, and these ‘Bramble bush’ entries in particular try to encourage browsing. Although space is always tight, the new edition keeps the entry for ‘Bramble Bush’, because we think it is important. There is no knife in the napkin this time. But if you think you’d like it to be there, write to OUP and let us know. We are grateful for feedback and, as always, keen to improve. And that makes another category—‘reader requests’. So far, there have been a few, and we hope there will be more.
K.N. Llewellyn (1941). On the Problem of Teaching “Private” Law. Harvard Law Review, Vol. 54, No. 5, pp. 775-810.
K.N. Llewellyn (2012). The Bramble Bush: On Our Law and Its Study. New Orleans LA: Quid Pro Books.
Trischa Mann is the General Editor of the Australian Law Dictionary.