[A Sip of Books] The Language of Law Must Be Restrained and Delicate Like Poetry

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At a store, the owner found a wallet. He asked a nearby customer if the wallet belonged to him, and the customer claimed it was his and took the wallet. However, the wallet actually belonged to someone else. The court applied the charge of theft to the defendant who initially took the wallet and sentenced him to a fine of 500,000 won. The defendant appealed, arguing that he believed the wallet was his and therefore it was not theft. The second trial replaced the theft charge with fraud but maintained the verdict of guilty and a 500,000 won fine. Judges are the people who must thoroughly determine whether the charge applied to the defendant is theft or fraud, beyond the usual question of whether a wrongdoing occurred.

In Judge's Language, the Flesh of Judgments, the author explains that judges are a unique breed who persistently and relentlessly probe what kind of wrongdoing has occurred, even when it is clear that a wrongdoing exists. In the book, the author describes what kind of people judges are, what kind of people they should be, and what kind of writing their judgments represent. The book contains twenty-eight essays about law, judges, and judgments. Each essay begins with a sentence from an actual judgment. The author candidly reveals the reasons behind the judgment and his honest thoughts on it, much like a commentator explaining a baseball game.

I believe it is more accurate to reverse the saying "A judge's word is the law." It should be "The law is the judge's word." A judge's role is to discuss what law applies to a case and to explain how that law is interpreted. What a judge does is based on the 'law' and therefore cannot deviate from it. The law is like a 'judge's stake.' No matter how far a judge tries to stray, they can only go as far as the length of the rope tied to the stake. (p.20, The Stake Called Law)

There must be consistency and predictability in interpreting and applying the law. Just as in baseball, even if there are criticisms that the strike zone is too narrow or too wide, the strike zone cannot differ from yesterday to today. Only consistent and predictable rules create order, and only with order can those who follow the rules feel secure. This is called 'legal stability' in jurisprudence. Judges regard legal stability as one of the important values. (Omitted) However, judges do not insist solely on legal stability. Sometimes they surprise people with bold decisions. In South Korea's Military Service Act, conscientious objectors?whether for religious, moral, or philosophical reasons?have been uniformly sentenced to imprisonment of one year and six months or more (so that they are transferred from active duty to wartime labor service). The Supreme Court repeatedly affirmed the legitimacy of this decision in 2004 and 2007. But in 2018, the Supreme Court finally ruled that conscientious objection is a 'justifiable reason' for refusing military service (Supreme Court 2018.11.1 Decision 2016Do10912 Plenary Session). (Omitted) In this ruling, dissenting opinions criticized the majority for 'damaging the significant judicial value of legal stability' (Supreme Court 2018.11.1 Decision 2016Do10912 Plenary Session, dissenting opinions by Justices Kim So-young, Cho Hee-dae, Park Sang-ok, and Lee Ki-taek). However, the majority held that this change protects 'freedom of conscience' and 'tolerance and inclusion of minorities.' (pp.52?57, The Shadow Called Stability)

There is a legal maxim: "Give me the facts, and I will give you the law." Some may interpret this as the confidence of legal professionals that knowing the facts alone allows for correct judgment. But I interpret this maxim differently. It is a heartfelt plea: "Please tell us the truth," and an honest recognition of reality: "We third parties find it difficult to know the truth." Perhaps that is why courtroom movies often focus on the theme of seeking the truth. Since the truth is given to the audience beforehand, the audience's interest lies not in what the truth is but in the skill of approaching that truth. For me, the old courtroom movie A Few Good Men (1992) was exactly such a film. (pp.59?60, Difficult but Proper Resolution)

Poetry is the product of extremely restrained linguistic expression. To write good poetry, one must be able to sharpen words, just as poets Gao Dao and Han Yu revised their poems. Poetry and law are similar in that both strive to use language precisely and sparingly. Law operates amid sharply conflicting realities. Because it must capture this sharply adversarial reality in language, law must continually refine its language. For example, when enacting new laws, there is an effort to create sentences that are both concise and delicate, and interpretive theories develop as people strive to interpret these refined sentences. This is similar to how poetry has both composition and interpretation methods. (p.91, Pushing and Striking Law)

As a judge, I pursue knowledge as much as possible but also recognize that there are times when one must accept inevitable 'ignorance.' In situations that are ambiguous, one might mistakenly believe they 'know well.' One might pride oneself by saying "I don't not know," or honestly confess "I don't know well." However, between 'premature knowledge' and 'honest ignorance,' I believe 'honest ignorance' is a more prudent attitude and therefore less risky. (Omitted) A judgment must end by favoring one side. That is the role of a judgment to resolve disputes. Jurisprudence does not allow a judgment to end simply with a judge's 'I don't know' and has prepared theories in advance for such situations. This is the 'burden of proof doctrine.' Simply put, the burden of proof doctrine means 'to obtain the desired result or effect, one must prove the facts.' If one can prove the facts, one will obtain the desired result or effect; if not, one will not. Jurisprudence has developed this proposition by predefining the facts that must be proven to obtain a certain result or effect and allocating who must prove them. Ultimately, when a judge says 'I don't know well,' it means 'the proof is insufficient.' In other words, by applying the burden of proof doctrine, the judge means 'I will not allow the party to obtain the desired result or effect.' (pp.164?169, Burden of Proof)

The psychological term Rapport means 'mutual trust and emotional bond.' It is mainly used in the medical field to describe the relationship between a therapist and a patient. When rapport is established, the patient freely shares their condition and desires with the doctor and seriously accepts the doctor's diagnosis and prescription. Rapport is a prerequisite for the doctor and patient to walk together. Rapport is also important in trials and judgments. Trials and judgments are not unilateral outcomes completed by one person alone. They are the results built through interactions between judges and parties, and among judges themselves. (pp.179?180, The Expression of Humanity)

Judges, including myself, often use passive expressions in judgments such as '~it appears' or '~it is judged.' In fact, this violates the principle that judgments should be written in colloquial language. However, it is a habit of judges that is frequently used in practice. The reason for using passive expressions is to avoid indicating the subject. Expressions like '~it appears' or '~it is judged' can be changed to active expressions like 'This court finds that...' or 'This court judges that...' But since it feels awkward to explicitly state the court or panel as the subject, these passive expressions are often used by omission. (p.224, Professional Habit)

Judge's Language, the Flesh of Judgments | Written by Son Ho-young | Dongasia | 240 pages | 16,800 won

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