Introduction
In a recent article in this journal on the subject of human rights foundationalism, Ari Kohen said that the “… question of whether there is something inherent in human beings from which our rights spring is fundamental to any attempt at understanding human rights” (2006: 244). Kohen says that the arguments for this “inherent something” include the doctrine of the intrinsic value of human life proposed by Ronald Dworkin and the doctrine of the secular sacredness of persons proposed by Michael Perry (CitationDworkin 1994: 68–69 cited in Kohen 2006; Perry 1998: 27–28 cited in Kohen 2006: 240). Kohen argues against these doctrines and suggests that human dignity may be a recently developed concept. A similar view is held by William Schulz who said that human rights are “… the best way we know of at the moment to counter cruelty and build a decent society… human rights might be a fad that could just as well not be in fashion tomorrow” (CitationSchulz 2002: 26 cited in Kohen 2006: 251–252). This view is anathema to Perry and Dworkin. How can this argument be resolved?
One way to help resolve it is through empirical linguistic study of the history of the meaning and use of words that represent human rights concepts. In this paper I report on a study of the history of a concept that is central to human rights doctrine, the English phrase fair trial: “The idea of a fair trial is central to human rights doctrine, not only as a right in itself, but because without this one right, all others are at risk; if the state is unfairly advantaged in the trial process, it cannot be prevented in the courts from abusing all other rights” (CitationRobertson 2004: fair trial).
The findings of this study are that fair first collocated with trial in the seventeenth century and since then the meaning of fair trial has varied with changes in meaning of the word fair itself. When people first spoke of a fair trial they meant a trial that was roughly “free from blemish,” reflecting a meaning of fair that was in use until the nineteenth century. A fair trial might be described as a long trial or a trial in which all evidence was allowed to be heard, or a trial in which a deaf witness was not excluded from giving evidence or an impartial and attentive trial. It was the integrity of the process that delivered a fair trial so that judges spoke of “the fair trial of the action” or “a fair trial of the question which should decide everything between the parties.” This “free from blemish” meaning of fair trial became obsolete in the nineteenth and twentieth centuries and was replaced by a new meaning implying “procedural fairness,” based on a “check list approach,” where questions are asked against a set of rights of a party in the trial (CitationOED 2005, fair). For example, “Was the defendant presumed to be innocent?” “Did the defendant know the accusation against him/her?” A fair trial became one that observed certain rights that had become possessions of the party being put on trial. This shift in meaning occurred at the same time as a shift in the meaning of fair allowed speakers to comment on actions by one person affecting another person and to call those actions being fair to or being unfair to.
The article begins with a discussion of methodology and data collection, followed by a history of the meanings and use of fair and an examination of historical legal uses of fair trial in the Old Bailey Proceedings Online for the period 1674–1834 and The Law Reports of England and Wales for 1865–2005. There follows a discussion of the present day meaning and use of fair trial. Having established that the current meaning of fair trial is a new arrival in the language, I ask the question, “How can such a novel concept spring from “something inherent in human beings”? (CitationKohen 2006: 244). After all, if the concept is universal, one might have expected it to be an ancient one like justice and one might expect it to exist in many other languages. I suggest that this human right is not universal but a cultural export of the English-speaking peoples and one of many of the kind described by Claudio Véliz in his book The New World of the Gothic Fox (1994: 115).
Methodology
Words may come and go in a language but during the time that they are in use their form is relatively constant when compared with their meaning. In the case of the form of the word fair, people have adopted different spellings from time to time but its phonetic form remained more or less recognizable in Old, Middle, and Modern English (faezer, faier, faire, fayr, fayre, fair). However its meanings have changed considerably. Compare this line from Chaucer “She was as fair as is the Rose in May” c1385 (CitationOED 2005) with a sentence from Aeroplane Monthly 1993 “He proved to be a hard but fair task master” (CitationCollins Wordbanks Online 2007). A modern speaker can understand the line from Chaucer, perhaps with some assistance of the simile of the rose, but, for Chaucer, the 1993 sentence would have been nonsense.
Behind the relatively fixed and transparent world of linguistic form is a shadow world of meaning. It is a world where words have multiple meanings that come and go over time according to fashion, cultural changes, practical needs, and so on. This becomes obvious as we grow older and are astounded to hear the familiar words of one's youth changed out of all recognition, so that “a gay person” no longer means “a happy person” but a homosexual and a group of women can be addressed as “you guys!” Indeed a word form might be compared to a bus on a long journey and its meanings might be compared to the passengers on the bus. It begins its journey with a passenger or two and as it goes along, some passengers get off, some get on, and some never get off.
An historical study of the lexicon allows us to compare the shadow worlds of past and present meanings to reveal a different conceptual universe inhabited by past speakers. The particular value of investigating real utterances from the past is that speakers were not conscious that what they said might be studied in later times. In this respect, an historical study of the lexicon can be likened to an archaeological dig where the archaeologist unearths buildings and artifacts that were made to be used and not made with a view to their being studied at some future time. Of course we can examine sources that were made with a view to being studied, such as dictionaries and histories, but they must be read with caution because they are conscious productions reflecting the views of their authors.
In the present study the “archaeological” method is to listen to words out of the mouths of witnesses, counsel, and judges uttered during the course of proceedings and to confine linguistic analysis to those utterances in the context in which they are spoken. I want to make it quite clear that this is not a history of trial procedure, nor a legal history of any kind, but a linguistic study of the way that fair trial was used in courts on the day that it was said.
We can study the meaning of a word by examining the words that surround it, known as “collocates.” When we find a familiar word occurring with strange collocates then that suggests that its meaning has changed. For example in an early cookbook the reader is many times told to use “fair water” (Anonymous 1615: 4, 5, 10, 12, 34, 39) and to use a “fair cloth” (40, 56). For example:
To boil a Teal, or Widgeon, on the French fashion. [Ducks]
Parboil either of these fowls and throw them in a pail of fair water (for that takes away the ranckness of the flesh). [Partly cook either of these birds and throw them in a bucket of pure water (because that takes away the bad smell of the meat).] (p. 10)
A Cambridge Pudding
Let your liquor boil, and throw your pudding in, being tied in a fair cloth. [Let your liquid boil, and throw your pudding in, tied by a clean cloth.] (p. 37)
Today it is impossible to speak of “fair water” or a “fair cloth.” We would say “pure water” or “clean water” or a “clean cloth.” Yet the adjective clean does appear in the cook book: “put them in a […] clean Pipkin” [a small earthenware pot] (p. 55). This is not the place to untangle this puzzle. My point is simply that “fair water” is unacceptable today and that tells us that the meaning of fair has probably changed. Thus, if we see a seventeenth century collocation that is acceptable today, such as “fair trial,” it follows that its meaning may have changed also.
Another way of analyzing the meaning of a word is to look for comments in the surrounding text. For example, “they were brought to a fair trial at the Old Bailey, where it was proved by good evidence…” from which we can guess that a fair trial required “good evidence” (OBP January 31, 1679: trial of William Ireland, T16790131-1). Another source of direct access to contemporary intuitions is dictionaries, particularly those that contain definitions rather than lists of synonyms and those that contain evidence from examples of use. One of the best of course is Dr. Samuel Johnson's A Dictionary of the English Language (Johnson 1755/1812).
Data
I collected legal examples of language use from two sources: The Proceedings of the Old Bailey 1674–1834 (OBP; CitationOBP 2005) and The Law Reports of England and Wales (1865–2005). The Old Bailey is London's Central Criminal Court. The Proceedings of the Old Bailey began to be published at a time when there was great interest in criminal literature and they were, at first, commercial publications intended for sale to the general public rather than formal court records. After 1712 the reports attempted to be exact transcriptions of the trials and from 1775 the City of London required that they be a “true, fair and perfect narrative” of every trial (OBP, Publishing History of the Proceedings, Official Publication, 1778–1834). They have recently become available on a Web site where they are described as “the largest body of texts detailing the lives of non elite people ever published,” containing 101,102 trials held between April 1674 and October 1834 (CitationOBP 2005: homepage). This is no idle claim. Like theYearbooks before them in Law French (e.g., CitationBaker 2002), The Proceedings of the Old Bailey are an historical and linguistic treasure house giving direct access to the speech of ordinary people over a period of 150 years.
For the period 1865–2005 I collected examples from The Law Reports available online for electronic searching (The Law Reports of England and Wales 1865–2005). These are mostly appeal cases in all jurisdictions including common law, equity, probate, divorce, and admiralty in civil and criminal jurisdictions. I collected historical examples of ordinary language usage from the large quotations database of the OED. Contemporary examples of use in ordinary language were collected from Collins Wordbanks Online, a 56-million-word corpus available on subscription for searching on the Internet. It consists of written and spoken texts from newspapers, magazines, radio, books, and ephemera from the United Kingdom, United States, and Australia. This was chosen because it attempts to be a general representation of present-day English.
The History of Fair
The adjective fair once had a meaning roughly equivalent to today's beautiful. This meaning is now obsolete. It was popular to describe beauty of person: “In this troubled season… was the Queen delivered at Westminster of a fair son” (CitationOED 2005: 1548) and “A gentlewoman…fair of body” (CitationOED 2005: 1553). Over the years new meanings developed so that fair became a color term limited to two referents, the complexion and hair of persons. For example in Shakespeare's Othello, “Your son-in-law is far more fair than black” (CitationOED 2005: 1604). Fair implied whiteness; a color that is associated with purity and goodness in Western thought. It came to be used to describe objects such as fruit, paper, water, and handwriting as in “Fair water may suffice to wash the feet” (CitationOED 2005: 1655).
Sometime in the late sixteenth century fair began to develop a new meaning so that it could describe actions such as play, trade, quarrel, and fight and allowed speakers to comment on a person's actions as fair, unfair, done fairly, done unfairly, and done by fair means not foul. Words often come to have new meanings when someone uses a word normally applied to physical objects to describe something more abstract, such as an action. A classic example of this shift is the story of the word bias. At first it meant “an oblique or slanting line” (CitationOED 2005: bias) and was later used in the game of bowls to describe the weight fixed on a bowl that prevented the bowl from running a straight line. Then someone decided to use bias to describe people's actions and this person was understood. The usage caught on and spread to legal discourse so that a judge could be visualized to be like a bowl not running in a straight line and be said to have a bias. For example, “The Law will not suppose a possibility of bias or favour in a judge” (CitationBlackstone 1978 [1765–1769]: III. 361). The shift in the meaning of fair to describe actions was similarly caused by a process of metaphorization, so that the positive associations of beauty, whiteness, and purity were transferred to actions by invited inference (CitationTraugott and Dasher 2002: 12). It was following this shift in its use to describe actions that fair began to collocate with trial in the seventeenth century.
At the time when fair began to collocate with trial, the meaning and use of fair differed from present-day English. For example its meaning in 1721 was glossed in a dictionary as “clear, beautiful; Also, just, right” (CitationBailey 1969/1721). Bailey distinguished two meanings, “fair (clear, beautiful)” that modified things and “fair (just, right)” that modified actions. Later in the eighteenth century Dr. Samuel Johnson suggested “equal, just,” “not effected by any insidious or unlawful methods; not foul,” and “equitable; not injurious” (Johnson 1755/1812 fair). Consider the following examples where fair appears in sentences that would be unacceptable today.
Standard of proof in evidence:
There was a fair proof against the prisoner, who but denied the fact, and the jury found him guilty to the value of 10 d. [10 pence] (OBP September 6, 1716: trial of William Rumney, t17160906 16)
A conveyance [a document transferring land]:
I and my wife had sold the land to my brother, and I had received my dividend for it, and gave him power to do any thing necessary to make a fair conveyance. (emphasis added; OBP June 28, 1733: trial of Josiah Reader, Eleanor Maybank, John Trundle, Miriam Prestidge, James Duffield, Mary Pearson, t17330628-44)
A subpoena [a document requiring a witness to attend court]:
Counsel. Have not you declared you knew no ill of Freeman? … Freshwater. I did say I knew no ill of him till this 5th of March: I said I would do nothing to his prejudice, except I had a fair subpoena. (emphasis added; OBP September 8, 1736: trial of George Sealey, Thomas Freeman, t17360908-67)
The adjectives used in place of fair in those contexts today would be: a fair proof “a sufficient proof,” a fair conveyance “an effective conveyance,” and a fair subpoena “a valid subpoena.” These uses all imply something like “validity” or “correctness” or “free from fault” or “free from blemish.” The nouns modified in examples (1)–(3) are all entities, either physical or abstract. To illustrate the use of fair to describe nouns that refer to actions, we can do no better than look at the phrases fair question and fair answer. Consider this examination in the trial of Ann Brogdon for forgery of a will where a witness to the forgery was asked about previous involvement in forgery:
Q. Is this the first time you have been concerned in any thing of this kind?
Aickin. No I have been concerned 2 or 3 times I believe 4 or 5 is the most I am sure I have not six times.
Q. Can't you get up to six?
Aickin. That is not a fair question I never was evidence [a witness] but once, and that was against Sarah Loather, who was convicted last Sessions. (emphasis added; OPB July 28, 1744: trial of Ann Brogdon, t17440728-32)
Although “That is not a fair question” is acceptable today, it does not mean that the question is what we would today call “unfair to the witness.” It means that it is a “blemished” question containing an insinuation that should not have been made. Why do I say this? Because speakers could use the phrase fair answer to describe the reply to a question: a use that is unacceptable today. Consider the next example where Bartholomew Harnet is tried for giving perjured evidence in a robbery trial. Harnet cross-examines a witness and puts an inconsistency between the witness's evidence at the robbery trial and at the perjury trial:
Thomas King. William Holms and his father-in-law came to my house, on the 19th of July in the evening: It was a little turned of 8, and in a little time, about 9, his wife and sister came, and they all stayed till 11 at night, and then all went away together. […]
Defendant. There was no talk of his wife being there when you gave your evidence at his trial?
King. What's the matter there was not?
Court. You must give him a fair answer.
King. I gave the same evidence then, and could not say otherwise, for I should have been wrong if I had.
(emphasis added; OBP December 6, 1732: trial of Bartholomew Harnet, t17321206-73)
The judge orders a fair answer because the question of an inconsistency between the witness's evidence in the two trials is relevant to the witness's credibility. Today a judge ordering a witness to give a fair answer would not be understood. The judge might say, “You must answer the question.”
The use of fair to describe actions that were “free from blemish” continued in the nineteenth century in uses such as “the rules of fair battle” (OED 1831), “fair play” (OED 1833), “fair competition” (OED 1833), “fair deal” “by fair fighting and not by murder” (OED 1848), “fair recovery,” and “fair sport” (OED 1846). Significantly the expression “being fair to someone” did not occur in the OED until 1864:
Nor is it quite fair to newspaper readers or skimmers to expect them [etc.]. (emphasis added; OED 1864)
However this use was rare until the early twentieth century when an unmistakably “person-centered” use of fair to became established:
But let us see all we can to-night.… That wouldn't be fair to Florence. It's a bit tripper, isn't it? (emphasis added; OED 1926)
The argument that the queue system is fair to everybody. (emphasis added; OED 1941)
These uses of fair to illustrate a change in the ordinary use of fair from uses that describe actions that met a standard generally in battle, play, or deals, to uses that describe actions meeting a standard in the way that they affected another person. As we shall see, this change occurred at the same time as a shift in courtroom uses of fair trial from uses that described trials that met a standard generally to uses that described trials meeting a standard in the way that they affected a party to the trial.
The History of Fair Trial
Early Uses
The absence of the collocation fair trial in early texts can be established by searching texts where it might be expected to appear. There are no uses in Sir Thomas More's Utopia (CitationMore 1995/1516), a work by a celebrated lawyer and Lord Chancellor. There are none in the works of the great judge, Sir Edward Coke (pronounced “Cook”) (1552–1634). I searched 289,000 words of his writings and found 16 occurrences of fair referring either to persons or to things (“an ancient and fair descended Family de Littleton,” “the fair lilies and roses of the Crown,” “fair and ancient manuscript”) but none modifying nouns such as trial. The adjective that Coke uses to describe a trial is indifferent. For example:
And to the end that the trial may be the more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the Court, the Judges ought not to deliver their opinions beforehand of any criminal case, that may come before them judicially. (emphasis added; 2003: Vol. 2, 1013)
Here the word fair in its modern sense could be substituted for indifferent and fairness for indifferency. After all, a fair trial today allows for judicial impartiality and trial according to the evidence. However such a substitution would be a “modern-centric” imposition on the text of a use that was entirely foreign to the conceptual universe of the early seventeenth century.
The first reference to fair trial in the OED is in 1623: “When they had been convicted in a fair trial…then to have adjudged them according to the Law.” That appears to be an isolated occurrence because there are no further uses in the OED in that century. In Literature Online, a large database of drama, poetry, and prose, the first use of fair trial to refer to a legal trial is in 1684: “I am, my Silvia, arrested at the suit of Monsieur the Count, your Father, for a Rape on my lovely Maid: … I fear not a fair trial” (CitationLION 2006).
The Old Bailey 1674–1834
Although fair trial originated in the seventeenth century, it would be entirely mistaken to think that it was an important feature of legal discourse as it is today. It was in fact exceedingly rarely used between the years 1674 to 1834, the period covered by the OBP. There are only 16 occurrences in the OBP, not counting those implying a “test,” such as “he determined to give me a fair trial [in employment] (OBP November 28, 1833: trial of John William Harrie, t18331128-84). In a database of 101,102 trials covering 160 years, this is a very low frequency and clear evidence of the unimportance of fair trial before 1835. Had it not become popular in the twentieth century, it would have been a minor curiosity, consigned to the dustbin of history together with the long forgotten expression indifferent trial.
The first use of fair trial in the OBP was in 1676, only two years after the first publication of the OBP in 1674. This early occurrence is some indication that the phrase may have been in use in courtrooms prior to that date:
An account of the sessions before Easter Term 1676, beginning April the 5th. There were then no fewer than fifteen men and one woman convicted (per Patriam) upon fair trials for their respective crimes, who received sentence of Death.
(emphasis added; OBP July 11, 1667: Front Matter, 1-7 f16770711-1)
The second reference to a fair trial in 1676 was:
To rob the King thus was a heinous and daring attempt; but two other ventured higher, presumed to rob God himself, by committing a burglary on Enfield Church, and stealing thence a surplice, a tippet, a green carpet, some plate, &c. One of them on his arraignment pleaded guilty, and the other on a fair trial was proved to. (emphasis added; OBP March 7, 1677: trial of One, Other, t16770307-5)
Because these first uses are unexplained, the meaning of fair trial can only be guessed at. However other examples occur with comments in the surrounding text that give some clues to the meaning. In the following treason case the reporter says that “it was proved by good evidence that” the defendants had attempted to kill the King:
Grove and Ireland were to have acted the most bloody part, for which they were brought to a fair trial at the Old Bailey, where it was proved by good evidence that they (with another) were to have Kill'd the King. (emphasis added; OBP January 31, 1679: trial of William Ireland, John Grove, t16790131-1)
The following trial was fair because both parties were heard at length; the prisoner was shown “great Indulgence” and the evidence was “clear and positive”:
The trial was long in hearing on both sides, and great indulgence was extended towards him by the Court, as ever was showed to any man in the like circumstance at that Bar; the evidence was clear and positive against him, as to every point of the charge of the indictment, and he had all the advantage of a fair trial. (emphasis added; OBP June 5, 1690: trial of Matthew Crone, t16900605-22)
The length of a trial appears to indicate a fair trial because time was allowed for both sides to properly put their case, especially in an era when trials were short by modern standards, so that the reporter thought fit to comment on the unusual length of the hearing. The strength of the evidence is again seen as an indicator of a fair trial, because a conviction on weak evidence would imply that the defendant had not had a fair trial. The same reason is given in the trial of Ruth Phillips for clipping coins:
The Prisoner still urged her innocency, and declared that the bag of money which proved to be clipped, was left at her house, by one Cha. Phillips who was gone into the country, to whom she had sent a letter, but could not hear of him, and could not prove any thing on her behalf to any purpose; so after a very long and fair trial, she was found guilty of high treason. (emphasis added; OBP June 29, 1692: trial of Ruth Phillips, t16920629-32)
In 1751 John Baker was indicted for not surrendering himself as required by a royal proclamation addressed to an outlaw named “John Baker of Hadlee.” Baker was wanted for custom's offenses. Counsel for the defense argued that the description in the proclamation did not allow his client to “take the benefit of a fair trial”:
The proclamation was for one John Baker of Hadley to surrender himself, if at the same time there were John Bakers of Hadley, and although this was a John Baker, and living at another place, he cannot be so described as to give him that benefit that the proclamation allows him to take, a fair trial. (emphasis added; OBP April 17, 1751: trial of John Baker, t17510417-37)
The defendant was acquitted, presumably because the imprecise wording of the proclamation prevented him from receiving a fair trial. This is not how fair trial would be used today, because today identity is a matter of proof and not a matter of procedural fairness.
At the trial of William Dodd for forgery in 1777 the judge sentenced him to death in the following address:
Dr. William Dodd, you have been convicted of the offence of publishing a forged and counterfeit bond, knowing it to be forged and counterfeited, and you have had the advantage which the laws of this country afford to every man in that situation, a fair, an impartial, and an attentive trial. (emphasis added; OBP May 14, 1777: trial of William Dodd, o17770514-1)
In 1786 a judge admitted the evidence of a deaf and dumb witness so that “a fair and full trial may be held”:
[T]hen here is a person [an interpreter. I. L.] who could communicate to him and report the question of the prisoner to the Court & jury so that a fair & full trial may be had therefore that monstrous doctrine will not ensue. (emphasis added; OBP January 11, 1786: trial of William Bartlett, o17860111-1)
In example (12) a fair trial meant “good evidence,” in (13) a long trial was equated with a fair trial, and in (17) a full trial is equated with a fair trial. However, the main point made by the judge in (17) is that there would not be a “fair and full trial” if the witness was excluded from giving evidence. This collocation of full with fair, which looks odd to modern eyes, shows that the judge was not concerned primarily with the rights of the defendant but to see that the trial was conducted properly according to the principles and practice of the courts and to ensure that “monstrous doctrine will not ensue.” In the eighteenth century examples in the OBP, the expression fair trial occurs with “impartial and … attentive” (16) and refers to a matter of evidence (17). In present-day English, specific matters of evidence are not any part of a test for a fair trial and fair trial is unlikely to appear with attentive trial and satisfactory trial. The same use of fair trial can be seen in an outburst by Ellen Conner in the nineteenth century. She quite spontaneously objects that she is not getting a fair trial because witnesses are giving false evidence against her:
Prisoner Conner. I am not having a fair trial; they are all swearing false against me. (emphasis added; OBP December 3, 1829: trial of Jack Coleman, Ellen Connor, t18291203-152)
This use would raise eyebrows today because it is not false evidence or the lack of evidence that prejudices a fair trial today but errors in procedure from the moment of arrest to the moment of verdict.
The Law Reports 1865–2005
Fair trial was not much heard in the courtrooms of the Old Bailey during the period 1674 to 1834 and neither was it much heard in the courtrooms of the High Court and the Court of Appeal before 1950. The rate of usage can be seen in the numbers of cases in which the expression fair trial was used at least once in a law report during the period 1865 to 2005: 1865 to 1874 (8), 1875 to 1899 (50), 1900 to 1924 (29), 1925 to 1949 (25), 1950 to 1974 (79), 1975 to 1999 (165), and 2000 to 2005 (117). In the 85 years to 1950 fair trial was mentioned in 112 reports but in the 55 years since 1950 it has been mentioned in 361 reports. The greatest increase in frequency was in the years 1975–2005.Footnote 1
In The Law Reports for the nineteenth century the old “court-centered” use of fair trial continued. For example, in the following report the judge expressly distinguishes between the “fair trial of the action” and the “the interests of the respective parties in this particular case.” He is speaking of a defendant counterclaiming against a plaintiff personally and the plaintiff as executor in the administration of the estate of a deceased person:
I must also say that even supposing I am wrong, and that in certain cases it would be possible to join a counter-claim against the plaintiff personally with a counter-claim against him in an executorial capacity, we ought to jealously guard against its being done in such a way as to embarrass and inconvenience the fair trial of the action; and it appears to me that such joinder would be inconvenient and undesirable in the interests of the respective parties in this particular case.(emphasis added; MacDonald v. Carington [1878–1879] L.R. 4 C.P.D. 28 at 36, per Denman, J.)
Other nineteenth century uses of fair trial refer to the trial itself being correctly run rather than a trial that protects the rights of one party. For example in the following judgment the judge speaks of “a fair trial of the question,” “one fair trial of the issues,” in the context of seeking “to secure what justice demands.” He is speaking of the need for a “test action” for a ruling on 1 of 78 similar cases:
[W]hat was intended was that there should be a fair trial of the question which should decide everything between the parties. Now the Judge must decide what is a fair trial, whether there really has been a test action tried, […] that there should be one fair trial of the issues between the parties. (emphasis added; Amos v. Chadwick [1878] L.R. 9 Ch.D. 459, at 464–465)
Although uses of fair trial to imply a trial that was correctly run were still common in the nineteenth century we see the beginnings of what might be uses that imply a trial run to protect the rights of one party. In linguistics this is a well-known phenomenon called “semantic overlap” where old and new meanings coexist for a period before the old one dies out. In the following cases the possessive verb “have” is used together with a failure of a party to exercise their right to call witnesses:
When a true bill has been found, and the indictment removed into the Court of Queen's Bench, and a day fixed for the trial, the case is pending; and it is contempt of Court to address public meetings, alleging that the defendant is not guilty, and that there is a conspiracy against the defendant, and that he cannot have a fair trial. (emphasis added; The Queen v. Thomas Castro [1873–1874] L.R. 9 Q.B. 219 at 219)
The Plaintiff had a fairtrial before the committee. He had an opportunity to call witnesses, but did not call one. He took the whole matter pro confesso [“neglects to answer the claims” IL] without a word of protest. (emphasis added; Baird v. Wells [1890] L.R. 44 Ch.D. 661 at 667)
At this point I want to make an observation that may account for the rise in the popularity of fair trial in the twentieth century. In example (19), Mr. Justice Denman is referring to a rule of court that gives power to strike out statements in pleadings that were scandalous or tended to prejudice “the fair trial of the action” (Order XVII, Rule 1, Rules of the Supreme Court). The Rules of the Supreme Court were promulgated following the law reforms of the Judicature Acts 1873 and 1875 that abolished the courts of law and equity and fused their jurisdiction in one Supreme Court. The fact that fair trial, a collocation seldom used in courtroom discourse before 1834, was used in rules for pleading in the new Court, may have promoted its use amongst lawyers. Court rules are constantly referred to in litigation work and none more so than rules of pleading. Furthermore the rule containing fair trial was itself litigated, so that the expression found its way into the Law Reports by that means in five reports between 1864 and 1900.Footnote 2 The Law Reports, like the court rules, are constantly referred to by practitioners and generations of law students have memorized them and have been examined on their knowledge of them. In such circumstances it is not difficult to imagine the expression fair trial gaining wider currency of use down the generations.
Fair Trial Today
The current legal use of fair trial incorporates the notion of a “regular procedure” or what is more commonly called “procedural fairness.” It is based on a “check list approach” in which questions are asked against a set of rights of the defendant in criminal cases. For example, Article 6, “Right to a fair trial,” in the English version of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is written into the law of England and Wales, contains rights of a defendant to “a fair and public hearing within a reasonable time by an independent and impartial tribunal,” to the presumption of innocence, to the right to know the accusation against oneself, to time and facilities for the preparation of the defense, to defend oneself in person or by legal assistance, to examine witnesses and compel their attendance, and to access an interpreter. The striking thing about this list when compared with earlier uses of fair trial is that all of the rights are “possessions” of the defendant and promote the principle of “equality of arms” where the defendant is allowed “a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis à vis his opponent” (CitationArchbold 2006: 16–64). Here are some further examples from ordinary language:
Then that in order to adequately protect their constitutional rights to a fair trial, they should be given separate trials so that the jury does not paint with a broad brush, which we contend they did here. (emphasis added; CitationCollins Wordbanks Online 2007).
Angry Carmen said: “How could these men get a fair trial when it was impossible for them to understand what was being said? There was no evidence against them. They are innocent.” (emphasis added; CitationCollins Wordbanks Online 2007)
Conclusion
I began this article by asking the question: how can we resolve the arguments for and against the proposition that human rights are “… something inherent in human beings” (CitationKohen 2006: 244)? The evidence presented in this study has shown that the present-day meaning and use of fair trial is no more than 150 years old. How then could it refer to something inherent in human beings? One answer might be that the concept is universal but not every language has a word for it:
It should be recalled that all human rights are “universal, indivisible and interdependent and interrelated.… While many societies, religions and cultures have not used the terminology of “human right”, contemporary scholars have discerned the existence of concepts of human rights across the world.… This is consistent with the position that all humans have rights, as otherwise … human rights would be elitist and discriminatory. (CitationMcCorquodale 2003: 188)
The author claims that scholars have found concepts of human rights worldwide despite the absence of “terminology” to describe them. This claim is not supported by any references to “contemporary scholars,” which is not surprising, because it is impossible to demonstrate that a concept can exist independently of a word to represent it, just as it is impossible to demonstrate that a concept can only exist if there is a word to represent it.
Another answer to the question is to say that fair trial is translatable. However it is not translatable into German and French which have lacunae in their conceptual universes that have been filled by borrowing the word fair into those languages. A dictionary of untranslatable words includes an entry for fair by Catherine Audard as follows:
The untranslatable fairness has become of new interest today because of the original use by the American philosopher John Rawls. In the French translation of his work A Theory of Justice […] fairness is rendered as équité [equity IL] … the English term fairness combines in such a peculiar way several semantic fields that some languages, such as German, have chosen to borrow rather than to translate it. For its part, French has borrowed the expression fair play, but in other respects it has to be satisfied with equivalents (honnêté, impartialité, justice and équité) none of which articulates in the same way the central ideas of honesty, impartiality, justice and equity that correspond to the term fairness. (CitationAudard 2004: 439–441)Footnote 3
The legal scholar, George Fletcher considers fairness to be untranslatable:
Remarkably, our concept of fairness does not readily translate into other languages. While the concept of justice appears, it seems, in all cultures, it is virtually impossible to find a suitable translation for fairness in European or Semitic languages. As a result, the term is transplanted directly in some languages such as German and Hebrew, and absent in others, such as French that are resistant to adopting loan words that carry unique meanings. Why has Anglo American culture cultivated this distinct concept of fairness? (CitationFletcher 1996: 81)
Further doubt concerning the universality of the idea of a fair trial comes from the history of European ideas. Its modern use may be an English reflection of a change peculiar to European thought. The change in the use of fair trial to a “person-centered” usage appears to have followed the attachment of “subjective rights” to persons after the Enlightenment. In the seventeenth century Locke developed what has been called a “… radically subjectivist view of the person” (CitationTaylor 1989: 172) that was very influential in the British Enlightenment. Eventually a concept of the individual developed that set the climate for a novel respect for the whole human species:
What is peculiar to the modern West … is that its favored formulation for this principle of respect has come to be in terms of rights. This has become central to our legal systems—and in this form has spread around the world. But in addition, something analogous has become central to our moral thinking. The notion of a right, also called a “subjective right”, as this has developed in the Western legal tradition, is that of a legal privilege which is seen as a quasi-possession of the agent to whom it is attributed. (CitationTaylor 1989: 11)
The changes in the use of fair trial that I have described track this change in the history of ideas. The criteria for a fair trial began to attach themselves to the individual defendant rather than the trial process as a whole, becoming “quasi-possessions” of the defendant. The language of fair trial laws reflects the change in possessive expressions such as “enjoy,” “have,” and “entitled to.” For example, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial” (United States Constitution 1791: Amendment VI) and “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” (European Convention for the Protection of Human Rights and Fundamental Freedoms 1950: Article 6, “Right to a fair trial”).
It seems to me that the human right to a fair trial has sprung from the courtrooms of England and Wales rather than from “something inherent in human beings.” It is part of what the legal historian J. H. Baker has called “the insular and arcane learning of a small band of lawyers” that by a “breathtaking twist of fate” has spread around the world:
Having stood its ground in the land of its birth, the English common law became a force to rival the civil law beyond the seas. The men who sailed for the new world in the seventeenth and eighteenth centuries, and those who built the British Empire in the eighteenth and nineteenth centuries, took the common law with them as a matter of course. By a breathtaking twist of fate, the insular and arcane learning of the small band of lawyers who argued cases in a corner of Westminster Hall became the law by which a third of the people on earth were governed and protected, the second of the two great systems of jurisprudence known to the world. (CitationBaker 1990: 34)
To place this in a wider intellectual context, the spread of the concept fair trial may be part of what Claudio Véliz calls “the Hellenistic Aftermath.” He says that the Industrial Revolution of the English-speaking peoples:
engendered an immense number of cultural traits and artifacts that proved effortlessly and universally attractive not only to those in the neighborhood but to the millions obviously beyond the reach of any form of direct influence or compulsion. Certainly England never forced the French to play rugby, Uruguayans to join the Boy Scouts, or Bulgarians to watch television. The massive diffusion of these and countless other traits and artifacts proceeded unhindered by the declining fortunes of the empire.… This is a rare occurrence, without precedent other than that suggested by the Hellenistic Age, when the culture of an Athens that had long ceased to lead an empire or dominate the Aegean world expanded and flourished into the splendid centuries that spanned classical Greece and Augustan Rome. (CitationVéliz 1994: 115)
The English language with its load of cultural baggage has now become a world lingua franca. The common law has been widely diffused. At its core is a belief in the rule of law; a belief that is a hallmark of the culture of the English-speaking peoples. It was the subversion of this rule during the Eleven Years Tyranny that caused American migration and led Charles I to the execution block. Today the United States and Britain are fighting a war in Afghanistan to promote democracy with the express mission of imposing the rule of law there and of course its essential precondition, the right to a fair trial. Recently the philosopher John Gray has called this mission for universal democracy “secular utopianism.” Like Communism and Nazism it is based on pseudo-science, in this case social science, and pictures a world progressing towards a single model:
Since the French revolution, a succession of utopian movements has transformed political life. Entire societies have been transformed and the world changed forever. The alteration envisaged by utopian thinkers has not come about, and for the most part their projects have produced results opposite to those they intended. That has not prevented similar projects being attempted again and again, right up to the start of the twenty-first century, when the world's most powerful state launched a campaign to export democracy to the Middle-East and to the rest of the world. (CitationGray 2007: 1 & 3)
It may be that the claim for the inherent nature of human rights in all people is a kind of secular utopianism, an attempt to foist a single ideology on the world. My history of the idea of a fair trial does, I believe, in a negative way, support this argument because it suggests that fair trial is like rugby, the boys scouts, and television, simply a diffused cultural trait.
Ian Langford is an independent scholar. He was a legal practitioner and law academic. In recent years he gained a PhD in linguistics and taught and researched linguistics at Australian universities.
I wish to thank Anna Wierzbicka for her invaluable assistance with this study.
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