Benjamin Bestgen: Lawyers and profanity

Benjamin Bestgen: Lawyers and profanity

Benjamin Bestgen

This week Benjamin Bestgen considers swearing, without which many of us would struggle to get through the day. See his last jurisprudential primer here.

Unrelated to jurisprudential questions, a colleague recently mentioned the Jersey employment tribunal case of Wilkinson v Fairway Trust Limited [2020] TRE 091. The case concerned the necessity for regulated professionals to be transparent regarding gifts and possible conflicts of interest arising from personal relationships with clients. Emotions ran high for some, causing the tribunal judge to note that a certain witness “[…] had difficulty holding her invective in check” (at 94) and “[…] adding unnecessary adjectival embellishment.” (at 153).

Judges aren’t generally prone to blush at a bit of coarse language, so one wonders how expressive this particular individual must’ve been for the judge to put it onto the official record.

Swearing and colourful expressions will be familiar to most lawyers. As a profession, we work closely with people from all walks of life, often on matters that are stressful or contentious. Words being lawyers’ tools of trade, having a broad and varied vocabulary is a given. Therefore, I hazard a guess that most of us swear occasionally too or witness others swear.

Who the *beep* cares?

Foul language might cause discomfort in public spaces or the workplace but others plead freedom of expression, which includes a right to use invective. 

Certain swearwords are routinely “beeped out” or forbidden under broadcasters’ indecency policies or only hinted at in print media (e.g. “F***”, “S***” or obscured entirely through “$%&§@!”). Objectors say that this is inappropriately paternalistic and paints a sanitised, untrue image of people and society: people do swear and instead of censoring it, we should accept it as part of our life that we need to deal with and talk about in a reasonable manner.

Swearing can also get people arrested, especially when directed at police, e.g. in England under s.5 of the Public Order Act 1986 (or in Scotland for breach of the peace or s.38 of the Criminal Justice and Licensing (Scotland) Act 2010). 

Lawyers themselves are sometimes sworn at by clients, colleagues or parties related to a matter: a poor choice of words or an emotional expression uttered in anger and distress may be forgivable but others fall into verbal abuse, bullying or criminal threats territory. 

Is swearing morally bad?

People tend to have opinions on swearing, the feeling being that it’s somehow bad: probably offensive, not generally desirable, maybe even immoral. Philosopher Rebecca Roache analysed this question and noted the following: 

  • Context matters: in some contexts, we know, or reasonably ought to know, that our audience will be offended or hurt by certain invective. If we then swear, we either intend to offend or don’t care if we do, which raises moral concerns. But in other contexts, we know that expletives will be accepted, tolerated or even appreciated.
  • Expectations matter: we are more tolerant of swearing in young children or non-native speakers of a language because we assume that they may not know how offensive an expletive is. I consider that potentially social stereotypes also come into play: “She swears like a trooper/sailor.” indicates that we associate certain social environments or jobs with greater use of rough language and might accept it more from members of said groups.
  • Culture matters: different cultures and social groups have different sensitivities regarding foul language. While utterings like “God-damn!” or “Jesus-fudging-Christ!” are considered mild in Britain nowadays, blasphemy will cause grave offence in other parts of the world. Similar applies to sexualised, scatological or animal-based profanity. For instance, the “C-word” causes more upset in the US or Canada than in Scotland or Australia.
  • Linguistic boundaries matter: swearing cannot always be clearly separated from slurs, which are derogatory utterances intended to insult entire groups of people – women, men, immigrants, homosexuals, members of certain ethnicities or religions etc.
  • Leaving slurs and religious offence to one side, Roache notes that non-slurry, non-religious swearing is mainly morally objectionable if it is intended to demean, harass, intimidate, humiliate or provoke.

But in most cases, it’s more comparable to an etiquette breach than an immoral act. Causing offence is not necessarily immoral in itself. People get offended about all kinds of things that merit no moral consideration: just imagine you chamming your food and burping loudly in a fine restaurant or wearing sweatpants to a funeral and somebody taking issue with that. It’s rude but not morally suspicious.

The same applies to swearing during a polite conversation: it’s maybe rude but unlikely to be immoral. Roache, therefore, considers that we should not treat swearing as generally morally bad and also reflect on legal punishments we mete out for it: would swearing at a police officer in itself already be reasonable grounds for arrest? Should we sanction swearing at all if it’s not accompanied by other, worse behaviour?

Benefits of swearing

Neuroscientist Emma Byrne investigated swearing scientifically and found some impressive benefits. For example, swearing can increase pain resistance, make you temporarily stronger and benefit team cohesion and collaboration in the workplace. Swearing is also a complex social phenomenon we use to express aggression just as much as amusement, surprise, joy, frustration, disgust or disappointment. Linguistically, we use it for emphasis and illustration. Likewise, there is no evidence that regular swearers have an impoverished vocabulary or lower intelligence and only cuss because they can’t express themselves better – in fact, the opposite appears to be correct. Swearing amongst friends, close colleagues and intimate partners can increase trust and bonding. Even with people you know less well, a well-timed and honest curse can create a “human moment” that can benefit the relationship.

And lastly, according to jurist Alan E. Garfield, the late Professor Melville Nimmer won the US Supreme Court freedom of expression case of Cohen v California 403 U.S. 15, 16 (1971) by using the “F-word” expressly in court, while subsequent lawyers who censored themselves in the courtroom lost similar cases. 

Nobody suggests that lawyers should bring the profession into disrepute by obscenely ranting like fictional spin doctor Malcolm Tucker in “The Thick of it.”. But in appreciating the benefits of swearing while being mindful of when to swear and when not to, legal practice might remain grounded and well in touch with wider society.

The author thanks Michael Hancock and Kate Huntington for thoughtful and amusing discussions about swearing which inspired further research and ultimately this article.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

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