2021×28, Thursday: Words and weasels.

Words change the world. Sometimes they do so as a result of malice aforethought. Maybe, just maybe, there’s a word for that…

Sometimes words are just beautiful, in context, for their own sake. No idea how this street in Birmingham came to this name. But on the day I took this photo, having gone to Birmingham from Essex for a hearing that was called off at the last moment, I couldn’t have asked for a mot more juste.

We lawyers love words.*

It’s an professional deformation. Perhaps particularly (but certainly not exclusively) for us barristers; our working lives consist overwhelmingly of finding precisely le mot juste for every situation our clients face.

But the law is made up of words. And their meaning, especially in the specific context and usage (grammatical, purposive, even cultural and historical) in which they’re deployed, is our stock in trade.

Sometimes it makes us pedants, to lay eyes. And sometimes that’s right. 

But take the simplest of contracts. A few words, between two people. But words which create a promise that binds. That create, in a sense, a new reality.

No surprise, then, that how words are properly to be understood occupies an immense proportion of jurisprudence. 

Just read paragraphs 10-13 of the Supreme Court’s judgment in Wood v Capita – the most recent apex court distillation of how we, in England and Wales, are meant to read a contract. As a judge slightly testily pointed out to me earlier this month, this was in a sense simply the upsum of a string of earlier cases familiar to any commercial hack: Rainy Sky, Arnold, Investors Compensation Scheme. Continuity, not change, as Lord Hodge said in para 15. 

(That claim of consistency is a familiar trope in Supreme Court, and before it House of Lords, writing. After all, a critical element of a top Court’s job in a common law jurisdiction is to take legal situations where precedent has become knotted and cut through it to provide a definitive roadmap. Cloaking that in the idea that “this is what everyone really meant all along” – my favourite example being the “restatement” of Twinsectra’s take on dishonest assistance in Barlow Clowes – is part of the fun.)

In another sense, though, Wood was again words changing the world: setting out, in fewer than 1,000 words, a definitive guide to how words and context should be balanced so as to come to a true understanding.

(* Which means sometimes we love them for their own sake, not because of their world-altering power. Take a recent piece by Helen Lewis, which described automatic cars as “babyfied clutch-free go-karts”. I’m so jealous. But I’m also overjoyed that such a gleefully descriptive combination of words has come into the world.)


The way words change the world came home to me consciously after reading a lovely piece (thanks to the blessed John Naughton for pointing it out) about the word “performative”. The piece has changed my world: it means I’m going to stop deploying that word in its now-usual usage (indicating that someone’s using speech merely as a sign-post to demonstrate their “sincerity”, rather than actually planning to do anything about whatever problem that speech is addressing). Because, so Wilfred M McClay writes, that’s almost a diametrical opposite to its original coinage: which was to denote words which don’t describe, but do. Words which change the world. 

As McClay explains:

Once we’re alerted to this distinction, we begin to see it in many places. When the bride and groom say “I do” in their marriage ceremony, or when the officiant pronounces them man and wife, when promises are made and words of permission are granted, when a will orders the bequest of a precious object, and in fact in nearly all contracts—the language being used is performative in character. It is language that does not merely describe something. It enacts something.

Now, I’m no stickler when it comes to changing meaning. I’m more descriptive than prescriptive. Language evolves, as do we (culturally, if not biologically – or rather, the latter is so many orders of magnitude slower that it’s not relevant in this context). 

But some words are valuable because their “old” meaning has powerful relevance. In our current, riven condition, the word “disinterested” – with its core meaning of “no skin in the game” – seems to me more important than ever, and treating it the same as “uninterested” seems to me not only lazy, but dangerous. 

And as a lawyer, the idea that there’s an adjective which neatly describes the kind of language on which so much rests – and about which we professionally obsess – is a welcome one.


Mind you, perhaps there’s another use for “performative” which elides, to an extent, the two meanings – apparently contradictory though they may seem.

You see, contrary to some popular views, there’s one thing we (and here I’m talking about barristers in particular, in our relationship to courts) just don’t do. Not unless we’re wholly lacking in ethics, and deserve to get thrown out of the profession.

We don’t mislead. Sure, we argue our case. We highlight what helps and downplay what doesn’t. We try to persuade the tribunal that the world is as our client would prefer. That’s our job. And sometimes, I admit, that can come fairly close to the line of eliding what is into what we want it to be.

But we don’t just say black is white. We don’t gaslight. We don’t bamboozle, or trick, or confuse. Partly because we’re not allowed to. Partly because most judges are wise to that kind of thing. Partly because you always get found out in the end, and you’ve only got one reputation to lose. But also – perhaps a little bit – because, deep down, as lovers of words, doing this just feels fundamentally wrong. 

And yet we see it all the time. Weasel words. The truly dirty ones which don’t lie with untruth; instead, they lie with truth, or partial truth, or (still worse) with bullshit. Words like “clearly” – always a flashing red light indicating that someone is papering over cracks in their argument and hoping you won’t notice. 

And in politics, phrases like “enshrined in law” – a deliberately meaningless coinage which, as David Allen Green witheringly explains, seems to indicate decisive action where none actually exists. 

Why are phrases such as these so diabolical? Because they pervert meaning. They send signals intended as cover for inaction at best, or dog-whistles at worst. In the new sense, they’re little more than “performative”. Ouch.

But are they perhaps – also – “performative” in the “proper” sense as well? I think so. Because – as they seek to gaslight us into believing in action where none exists; or, as with recent pronouncements by our learned Attorney General, argue for a “rebalancing” of power to free judges from unwanted political entanglement, when in fact what’s called for is a naked and autocratic executive power-grab – they seek to redefine the world. To tell us: don’t believe your lying eyes. Believe us. 

These are words which try to change reality. They may be malevolent. 

But they’re still performative. And we ignore that at our peril.


2021vii8, Thursday: Passive, aggressive.

Apologies for the long gap. I may be pedantic, but some words have old meanings that carry genuine value – the more so because of the state we’re in.

I’m torn when it comes to language. 

On the one hand, I’m absolutely alongside the idea of seeing linguistic evolution on a prescriptive rather than normative basis. Language changes with usage. It always has. And one of the joys of English is how – generally – receptive it’s been to incoming influence. 

On the other, there are some usages that are on my “die in a ditch for this, even if it’s a hopeless cause” list.*

I know. These two stances are potentially mutually contradictory. But there’s sense in it, I think, so long as one limits the second stance to a few areas where there’s a genuine, practical justification. 

So, for example, I limit my reaction to “literally” meaning “figuratively” to a mild internal flinch, although I flatly refuse to use it that way myself.

But “disinterested” used in place of “uninterested”? Hell, no. Particularly in our polarised world ([cough]Hancock and others in government giving jobs to their mates [/cough]), the secondary meaning of “interested” – that is, not something which fascinates you, but something you have a stake in – is more important than ever. Finding someone genuinely disinterested – that is, someone who can stand apart from a dispute and see it dispassionately (another great word), or at least someone with sufficient humility and wisdom to seek that position – has huge value. I don’t know another word which captures it quite as effectively. “Neutral”? “Objective”? “Unbiased”? Nope. They don’t mean the same. 

So yes: that one I’ll keep fighting for.

Slightly differently, but on a similar note, misplaced passives drive me nuts. This isn’t just parroting the Strunk & White-style simplism (ooh, that’s another word to defend) that actives are better than passives – not least because of the number of times things that aren’t actually the passive mood are quoted in defence of the position. Grrr. Not least because sometimes a passive is right: when you want to place the stress on the victim of an action, the passive can help keep the focus where it belongs. 

But far too often, there’s the “mistakes were made, lessons were learned” usage: what I call the “institutional passive aggressive mood”. The usage that obscures the fact that people did things that were wrong. That people need to learn and change. And that accountability, as opposed to blame, is important. And, if anything, makes it look like it’s your fault, not theirs, if you’ve got any further problem with them.

You know what? Don’t just listen to me on this. Go to this link, where the near-unparalleled US satirical website McSweeney’s (second only to The Onion, which published the best story in the world on Steve Jobs’ death a decade ago) does a bang-up job putting this very special linguistic usage precisely in the context it demands, with some nice animation to boot. Read it. Enjoy it. Make sure you get to the end. And see how you feel about the institutional passive aggressive then.

*As for whoever wrote the advert on the side of a double-decker bus I saw earlier this week, which used the American spelling “labeled”: well, I’m not the one who should be dying in a ditch for that.


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