法律英語, 法律文章과 文體·기교 - 英美法상 比喩法·유추·擬制와 완곡어법을 중심으로 -

Probably much to the surprise of many continental lawyers accustomed to the orthodox formal style, the language of Anglo-American case law is profusely verbal without being necessarily vulgar. The common law, as it is often called, commands a genuinely colloquial style, which is less authoritarian and more litigant-minded and litigation-friendly. Such an "informal" diction is the customized way of tailoring court decisions and legal discourse to meet the needs of the average man with no or little background of professional legal education. By contrast, Korean judicial decisions are written predominantly in formal style, not to speak of unnecessarily archaic and pedantic legal terminology. An undeniably wide and deep chasm thus exists in Korean legal and spoken language, a far cry from the prevailing practice of Anglo-American case law. The approximation of the judicial to vernacular speech has thus been a paramount precondition for bridging the gaping gap in any meaningful judicial reform initiatives. Despite its rich pool of wisdom, the common law had long been sidelined and relegated to the secondary, marginal status in this country because of its haphazard, wholesale reception and subsequent ‘lopsided’ administration of German law during the past century. The envisaged U.S.-modelled Korean law schools would reverse the tide, restore a balance and spell a cataclysmic change. Legal education and training on the strength and methods of the judge-made law would speed up a convergence of legal vocabulary with spoken one. Synchronizing the inception of Korean law schools with an in-depth investigation of the common law would cause Korean lawyers to tap into the world’s living legal stories spanning more than a millenium. It is an ever-evolving reservoir of experience, insights and wisdom derived from and sifted through disputes of everyday life of ordinary people. The case law is the result of empiricist, inductive and analytical reasoning, as contrasted with a priori, deductive, syllogistic thinking of continental law. Anglo-American judges have been trained to write in colloquial style, granting the general public a maximum possible access to law, although it is true that even English judical decisions were often communicated in legal cants and jargons. Such encoded legal terms was elusive, ambiguous and hard to crack for commoners. Replete with allusive style and skills, the common law need be pursued not necessarily as the positive role model for legal writing but rather as that for legal imagination, inspiration and reasoning to be tapped, internalized and inherited. The history of the common law has borne out its uninterrupted interaction with the English literary heritage. Literature, acting as an unquenchable source of humanism and enlightenment, has consoled the competition- fatigued human mind and elevated the strife-stricken human soul. Literature also keeps a watchful eye on the administration or obstruction of justice to bring substantive and procedural law into the public domain of scrutiny. Anglo-American literary legacy has thus had much resonance in legal mind and reasoning. As such, law and literature share in common certain properties: They are human stories, both having dawned with civilizations, and appeal to common sense and reason. They have much to do with human existence and experience, real or imaginary, over elemental human emotions and conducts in society and nature. They hand down moral or legal judgments on the spiritual or material conditions of human and social life. A comparison of trials with plays or performing arts will showcase this intimate relationship. Proof of facts in intent and causation in ancient Athens proceeds similar to that in modern trials and dramas. An interdisciplinary course in law and literature will thus provide a new perspective for observing the law from outside, introduce a fresh angle on jurisprudence and legal process, help law students to better read and write legal texts, and impart skills of advocacy, Judge Richard Posner wrote in his 1988 work entitled “Law and Literature”(p.18). To help get to the point and get across an arresting and lasting message, English judgments and writings frequent the reservoir of such literary techniques as metaphor, simile, humor and wits, irony, euphemism, legal fiction, analogy and contrast. The English legal literati are the true alchemist of metaphoric, witty, ironic and euphemistic language, some microscopic and others telescopic. In particular, similes are more memorable than their literary equivalents because of their concreteness, vividness, and unexpectedness, according to Judge Posner. Adjudicating on an aircraft accident case in 1944, the U.S. Supreme Court seasoned its decision with a literary flair: “Planes do not wander about in the sky like vagrant clouds.... The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls”(Northwest Airlines v. Minnesota, 322 US 292, 303). Here, aeroplanes are likened to casually vagrant clouds(simile), but the contrast is obvious and telling in the following sentences. The passage quoted is easy to remember but hard to forget about. In a 1940 case, the U.S. Supreme Court quipped that pricing was the “central nervous system of the economy”, a apparent metaphor. A modern heir to the utilitarian philosopher Jeremy Bentham, however, while not hiding hostile animus against figurative legal speech, has been quoted as having stated “Metaphorical language in law is often a source of obfuscation”. Caution need therefore be exercised against an abuse of metaphor in legal reasoning and expression. Meanwhile, English judicial discourse has been laced with a touch of irony or light irony not amounting to dramatic irony. Irony is an unkind joke expressing annoyance and upset but falling short of total or sarcastic disapproval. It is a cynical but polite reaction by saying the opposite of what one can normally figure on. Irony is thus “consciously subjective, enthusiastically rational, and critically emotional”, according to an English literary critic. Milan Kundera may well be quoted among contemporary writers as one of the most reputed and prominent maestros of bitter ironies, satires and even paradoxes. Kundera’s literary tongue in such works as 「Zert」(The Joke: 1967), 「The Book of Laughter and Forgetting」(1979), 「The Unbearable Lightness of Being」(1984) and 「Slowness」(1994) may seem not particularly poignant, pungent or stinging, but masks the ironical, pathetic and paradoxical messages and undertones. Compared to irony, satire is a more outright and impolite disapproval. Paradox, like an ambivalent attitude, refers to a seemingly impossible statement containing two conflicting ideas that are both true. Satire, paradox or parody need therefore be avoided in judgments for obvious reasons. The economist Adam Smith trimmed and spiced up with a hint of irony An Inquiry into the Nature and Causes of the Wealth of Nations to leave behind an indelibly refreshing, enduring and arresting impression: “He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it....he intends only his own gain, and he is, led by an invisible hand to promote an end which was no part of his intention”(pt.IV, ii, 9). Analogy is an important tool used by the Anglo-American courts to prove the point, whilst legal fiction is another indispensable technique deeply ingrained and embedded in English legal reasoning. Thus, apart from Dostoevski’s literary fiction of detective stories, legal fiction has been liberally employed in such concepts, doctrines or principles as an average or reasonable man, lack of due care/diligence(fault, negligence), constructive fraud, constructive possession, constructive delivery, constructive conversion and constructive total loss in the common law. Legal fiction has also found its expression in such a phrase as “technically in a state of war” which is synonymous with “legally at war”, but “factually at peace”. Again, legal fiction has made its way in the doctrine of Act of State and Act of God. Again, it has made its presence in establishing causal connection(causation), a legal device contrived to attribute the consequence of an act or a series of acts to a probable or proximate (legal) cause or a chain of such causes. An ardent advocate of metaphors and legal fiction, Sir William Blackstone had this to say in his Commentaries on the Laws of England: “The only difficulty that attends them arises from their fictions and circuities, but, when once we have discovered the proper clew, that labyrinth is easily pervaded. We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The inferior apartments, now converted into rooms of convenience, are cheaper and commodious, though their approaches are winding and difficult”(vol. iii, p.268). Again, euphemism or circumlocution, though generally understood as a taboo in law, is not rare nor unusual in Anglo-American judicial opinions. Indeed, the law is often reluctant to call a spade a spade. In this case, insinuation or circuity is the legal code for communication. Thus, Lord Denning referred in a judgment to an urgent call of nature instead of saying ‘urination’. Life insurance may be another example, for it is in fact insurance against the risk of death, or "insurance against death risk". Further, a labor strike is often referred to as an ‘industrial action’. For all these striking parallels and similarities between law and literature, obviously, the law does not always see eye to eye with literature. True, literature is not about logic, analysis, or proof of facts or allegations. Its primary function, it is said, consists in the narration of life as realistic as possible to touch a chord of sympathy, empathy and emotions and to create catharsis from a humanistic perspective. Aesthetic touch or artistic flair, implicit and insinuating, has been literature’s favorite means of communication. Nor is literature the ‘liberated area’ or utopia for the law to turn to whenever left in the lurch. Nor is the figurative parlance the essential characteristics or conditions sine qua non of legal writing. Indeed, symbolic allusions would irrevocably compromise judicial integrity beyond the legal limits of clarity, objectiveness and preciseness. Again, the metaphor, for instance, tends to elide the essential reasoning process, according to Judge Posner. True, legal tongue is characterized and distinguished, hopefully, from other dictions by clear, plain and unequivocal terms. Judges need avoid abusing figurative speech at least in the ratio dicidendi, if not in the obiter dicta, perhaps. All in all and on balance, allusive style and skills are not necessarily elusive or an illusion in law, nor a total absurdity or solecism. Time-honored literary diction or even rhetorics in English case law attests to the competitive and viable qualities of figurative narratives. A unique fusion of prose and verse, a judicial discourse composed with a refined and restrained fair, flair and figure of speech would crystallize Shakespearean creativeness merged with Newtonian exactness. It is just as architecture is an exquisite amalgamation of art and science (and engineering). A judicial prose flashing with well-pruned, trimmed-down literary tongue would, like the jewellery studded in the crown or the mother of pearl nestled in the niches of lacquered wooden ware, generate an aura of grace, elegance and dignity beyond compare. As such, literary skills will illuminate and inspire the minds of the Korean legal profession down the millennia, enriching and embellishing legal lexicon, spruced, polished and tidied up. Home to idyllic and serene settings of nature, literature makes lawyers pause for contemplation, provides lawyers with food for thought, and helps them foster cultured heart and elevated soul. It will leave an indelible mark on the minds of lawyers. A justice well versed in literature will thus be hailed as the learned man of letters and lauded as the erudite bearer of the enlightened spirit. A seasoned judge of literary bent will shine on and be remembered or even revered as a man of mark for his creative mind, expertise and enterprise.