THE
CREATION, STRUCTURE, AND INTERPRETATION
OF THE LEGAL TEXT
INTRODUCTION
A legal text is
something very different
from ordinary speech. This is
especially true of authoritative legal texts: those that create,
modify, or
terminate the rights and obligations of individuals or institutions. Such texts are what J.L. Austin might have
called written performatives. Lawyers
often refer to them as operative or dispositive.
Authoritative legal
texts come in a
variety of genres. They include
documents such as:
constitutions
contracts
deeds
orders/judgments/decrees
pleadings
statutes
wills
Each
genre of legal text tends to have its own stereotypical format, is
generally
written in legal language (or "legalese"), and usually contains one
or more legal speech acts that are meant to carry out its intended
functions. Thus, a contract almost always
contains one
or more promises, a will contains verbs that transfer property at
death, and a
deed transfers property during the lifetime of its maker.
This article begins by
discussing the
origins of legal texts in the Anglo-American tradition. It
continues by surveying how they are
created. Then it reviews some of the
linguistic characteristics of these texts.
The article concludes with some comments on the implications of
the use
of these authoritative legal texts, especially with regard to their
interpretation. Although the focus of
the article will be on Anglo-American law, the general nature of legal
texts is
remarkably similar across legal systems, although the details of their
structure and use can vary considerably.
THE
DEVELOPMENT OF THE TEXT
Legal transactions
must originally have
been performed by means of speech, often accompanied by rituals of
various
types. With the development of
literacy, it became possible to make a record of such transactions in
writing,
or even to transact them in written form.
Indeed, the writing of contracts, wills, and codes of laws was
an early
function of literacy in many different parts of the world.
The
Evolution of Private Legal Texts
In England, the
birthplace of the common
law that is used throughout the English-speaking world, an early type
of legal
text was the will, as well as grants of land and other types of
property. Throughout much of the
Anglo-Saxon period,
wills and grants of land were made orally, usually with witnesses
present, and
accompanied by some kind of ritual, such as the symbolic handing over
of a clod
of dirt to the purchaser or recipient.
After England's conversion to Christianity, a class of literate
clergymen emerged. Before long, clerics
began to make written records of these wills and property transfers as
memorials of the transaction, especially when the gift was made to a
religious
institution that had an interest in preserving evidence of the
transaction in
case of a future dispute.
These early texts are
quite clearly
evidentiary rather than performative or dispositive.
As Brenda Danet and Bryna Bogoch (1994:105) have pointed out,
they were "after-the-fact records of the binding event that already had
taken place." In other words, the
performance of the legal act did not consist of the writing or the
signing or
sealing of a piece of paper or document.
The transaction was performed orally in front of witnesses. If a written document was made, it was
merely evidence of that oral ceremony, not an operative or dispositive
legal
document in the modern sense. This is
evident from the fact that for the most part, the scribes used verbs
that were
in the third person and the past tense, rather than the first person,
present
tense verbs that are commonly used performatively, as the following
introductory phrase illustrates:
HER is
geswutelod an ðis gewrite hu Ælfheah ealdorman his
cwidæ gecwæðan hæfð...
'Here
in this document it is declared how the ealdorman Ælfheah has
declared his
will...' (Will of Ælfheah, Whitelock 1930:22-23)
In the late
Anglo-Saxon period, however,
there are indications of a new trend in which legal texts were no
longer merely
evidence of land transfers or wills.
Over the centuries, it became the writing and signing of the
document
(or placing a seal on it) that constituted the legally operative or
dispositive
act. The legal transaction was now
performed by means of the text.
The transition in the
function of wills
was a very gradual process. When wills
were first written down, the text was considered rather weak evidence
of the
transaction that it purported to record.
Human memory was viewed as more reliable and less subject to
manipulation. But as literacy became
more common, the evidentiary value of the text increased.
Over time, the notion arose that legal
transactions-especially, important transactions-should normally be
evidenced by
a writing. Eventually, a written text
came to be considered an essential ingredient of the transaction. The English Statute of Wills, enacted in
1540, required that transfers of real property by will should be
evidenced by a
writing. Later English statutes extended the requirement of writing to
transfers of personal property upon death.
As a result, written evidence of a will was now essential.
The final critical
development in the
testamentary text was the parol evidence rule, which in the case of
wills
prohibits the introduction of evidence of oral discussions regarding
the
content of the text, subject to some narrow exceptions.
Thus, what the maker of the will (usually
called the testator) might have said to the lawyer who drafted the
will, or
what he might have said to anyone else about the contents of the will,
became
largely irrelevant. The evolution from
oral to written transaction was now complete, at least with respect to
the law
of wills. What mattered now was solely
the written text. That text was not
just the best evidence of the legal transaction. It
was not just the only evidence. At this
stage, the text had become the transaction.
A modern will is a specific type of legal
text that is taken as the definitive expression of the testamentary
intentions
of its maker.
The
development of English wills is a good illustration of how
legal texts are introduced into a culture.
In the beginning, such texts are almost always evidentiary,
serving as
nothing more than records of an oral transaction. Yet
the text can also become authoritative, as have wills in the
past few centuries. The same is true of
another common legal text, the deed, which is used to convey real
property. With wills and deeds, the
transaction in question can only be performed by properly enacting
written
text.
Not all private legal
transactions require
authoritative written texts. Contracts
are a good example. In fact, in the law
of contracts we can see all three major stages in the progression from
the
exclusively oral to the authoritative written text.
Even today, there is no requirement that a contract be in
writing. A contract can be completely
oral, just as in Anglo-Saxon England.
If John promises Mary that he will mow her lawn tomorrow for a
certain
amount of money, and Mary agrees, they have made an enforceable
contract. It is also possible to make an
oral contract
that is memorialized by a written record that contains some or all of
its
terms. Suppose that Mary enters an
electronics store and orally agrees to buy a computer, to be delivered
in a
week and installed in her office. The
only writing might be a sales receipt that states "computer and
installation--$1000." Like an
oral Anglo-Saxon will whose terms are written down by a monk, this is
an oral
agreement accompanied by an evidentiary text.
The transaction is not performed by writing out the sales
receipt. Rather, it is accomplished
orally; the
receipt is simply evidence of the oral event.
Stated somewhat differently, the contract in this case is the
agreement
the parties made, not the receipt. If
there
is a subsequent dispute about the agreement, what the parties said to
each other
will be crucial.
Incidentally, as a
result of the Statute
of Frauds, some types of contracts are only enforceable if there is a
record of
this kind. This does not mean that the
whole contract needs to be in writing--just that there be a memorandum
of the
most important terms. It basically
requires written evidence that there actually was an oral agreement. For instance, many contracts relating to
real property must be evidence by some kind of writing.
Finally, the parties
to a contract might decide
that they want to create an authoritative text of their agreement. Lawyers call this an integrated
agreement. If the parties decide to
reduce the entire agreement to writing, any terms that are not included
in that
writing become legally irrelevant. When
a court needs to decide what the agreement was between the parties, it
is
supposed to look only at the text itself.
In other words, a text that is considered a fully integrated
agreement
constitutes the contract itself. It is
not just evidentiary, but has become authoritative in a new way.
Public
Texts
The evolution of
public legal texts, like
statutes and judicial opinions (called "judgments" in England), was
similar to that of private texts.
Directly after the arrival of Christian missionaries in England,
codes
or compilations of laws began to appear, usually in the name of the
king who
had them written down. The function of
these early codes was mainly to record or memorialize laws
that
already existed orally. For the most
part, the codes did not create new law, but rather created a record of
law that
already existed in people's minds or memories.
Such texts, in other words, were mostly evidentiary.
Legislation, in the
sense of enacting
innovative rules of behavior, was rare in England until the end of the
thirteenth century. Even then, the
texts of such early legislation were not authoritative in the modern
sense. According to legal historian J.H.
Baker (1990: 236), medieval legislation was "not a text which had been
pored over word for word by the lawmakers, with debates upon the
wording." In fact, the drafting of
the text of early statutes was typically done by clerks or judges after
parliament had given its assent. In
addition, before the invention of printing the written versions of the
texts
were often inconsistent with one another.
The text of legislation was merely evidence of Parliament's
intent at
this stage, and sometimes not particularly convincing evidence.
As a result, statutes
were quite freely
interpreted during this period. Without
authoritative and accurate texts, it is difficult and dangerous to
focus too
much on the words of the statute. To
quote Baker (237) once again, the medieval courts "had no authentic
texts
available to them, and argument in court rarely turned on the precise
wording
of a statute." Medieval judges
were able to engage in "creative exegesis," which often depended as
much on policy as on the letter of the statute.
But towards the end of
the fifteenth
century, legislation in England underwent an important shift. It became--in the words of Plucknett (1944:
248)--"the deliberate adoption of specific proposals embodied in
specific
texts." The text of statutes was
no longer simply evidence of the law, but constituted the law itself. The verbs no longer referred to what the
king "hath ordained" or what Parliament "have established,"
but began to speak in the present tense of what the king and Parliament
are
enacting by means of the statute.
Statutes also
illustrate another important
distinction between evidentiary and authoritative texts.
Earlier statutes were essentially a type of
transcript or minutes written by a bureaucrat from the chancery
regarding a
decision made by Parliament. In
contrast, an authoritative text is deemed to have been written by the
person or
body that enacted it. Of course, in
reality such texts are drafted by bureaucrats or lawyers.
But courts regard the words in a modern will
as those of the testator, just as they consider the legislature as
being the
author of a statute. This attribution
of authorship is obviously a large part of the reason that legal texts
of this
kind are viewed as so authoritative.
There
was now greater respect for the written text.
Accordingly, judges felt themselves increasingly constrained by
the
language of the text itself. As we will
see later in this article, the growing authoritativeness of the text of
statutes led naturally-though not inevitably-to an increasingly literal
mode of
interpretation.
The other main source
of law in a common
law system is judicial opinions. A
judicial opinion contains the reasoning of a judge in support of a
decision. Early English judges no
doubt gave their opinions orally. The
first written documents containing judicial pronouncements in England
date from
the end of the 13th century. These
texts, as might be expected, were at first merely evidentiary. They contained summaries of the arguments of
lawyers and the decisions of judges.
They were originally intended as learning tools for law students. Critically, these reports of what happened
in court were not written by the judges themselves, but by the students
or
practitioners who were present in the courtroom.
It seems that by the
fifteenth century
lawyers were beginning to treat descriptions
of court proceedings not just as interesting or educational reports of
what
happened in court, but as actual sources of law. This,
of course, was the beginning of the common law, where
judges create legal rules by deciding cases that function as precedents
for
later decisions.
Yet the text of
judicial opinions never
became authoritative in the way that statutory text is.
English lawyers were well aware of this
distinction, referring to statutes as lex scripta ("written law"),
which
they compared to the lex non scripta of the common law.
To this day, the common law remains
relatively oral, especially in England.
English judges, including appellate judges, can still decide
cases
orally, and their opinions may or may not be reported.
Although it has become unusual, it is still
possible for an English lawyer or judge to invoke an oral (unreported)
decision
as a precedent that should be followed in a later case.
The highly
authoritative nature of the
statutory text has promoted a tendency to interpret statutes by close
analysis
of the words of the text. Judicial
opinions, in contrast, are interpreted more by legal reasoning than by
means of
textual analysis. To decide the rule
established by a precedential case, a common-law judge or lawyer
traditionally
must consider the facts of the case and how it was decided, and then
use
reasoning to determine which legal principle was necessary to produce
the
outcome. That principle was known as
the holding or ratio decidendi of the case.
The text of the opinion is generally felt to be very helpful in
identifying the holding, but it is traditionally not considered
conclusive.
It is worth observing
that judicial
opinions are more textual in the United States. At
the end of the eighteenth century, American judges began to
issue written opinions. In fact, most
American jurisdiction require it. Even
though books containing judicial opinions are still called "reports"
in the United States, they are no longer the result of a "reporter"
going to court and "reporting" the proceedings. Rather,
they consist almost entirely of
opinions written by the judges themselves, and are normally published
verbatim. The end result is that
today--at least, in the United States--what an appellate judge
says--for example,
during oral argument--has no value as precedent. What
matters, for legal purposes, is what appellate judges write
in their opinions. This has led to a greater emphasis on the text in
determining the holding or ratio decidendi of a case.
Judicial opinions are still felt to be different from statutes
in
the United States, but the distinction is starting to blur.
THE
CREATION OF LEGAL TEXTS
The
Enactment or Execution of a Text
Legal texts,
especially authoritative
texts, tend to be created or executed in very formal ways.
Wills are a good example. The text
of the will itself is quite formal,
in the sense that most wills follow a relatively rigid structural
format and
are written in what is commonly known as legalese.
Once the will has been drafted, the testator typically gathers
in
a room with two witnesses. The testator
declares that this is his will and signs it in the presence of the
witnesses. The witnesses, who must see
the testator sign or acknowledge the will, then each sign the will as
well.
Although the rules are
less strict than
they once were, defects in the execution process can still be fatal. Many common-law jurisdictions require that
each witness sign the will in the other's presence.
Suppose that a testator goes to one witness, declares that a
document is his will, and has the witness sign it.
He replicates the process with another witness the next day,
outside of the presence of the first witness.
In such jurisdictions, the will is not valid.
There are a number of
reasons that the
text of wills must be executed with these relatively strict formalities. The main reason is to ensure that this text
is, in fact, intended to be the testator's will. It
is not just a draft of a will, or a casual list with ideas of
who should get the testator's possessions
when she dies. Rather, it must
be meant to be a legally operative document that will actually give
away the
testator's possessions upon death.
Anyone who goes through the rigid formalities of executing the
will should
be aware of the act's consequences. In
other words, the formalities and ritual help us identify this
unambiguously as
an authoritative legal text.
The situation is
different with contracts,
which as we have observed can be oral and relatively informal. Certain types of contractual transactions
must be evidenced by a writing, but most need not be.
Even when the provisions of an agreement are reduced to writing,
the signing of the writing can occur without any particular formalities
(although giving a handshake or drinking a glass of champagne may be
customary
in some situations). The greater informality makes sense in light of
the fact
that most people engage in numerous contracts during their lifetimes,
such as
ordering a cup of tea or promising to pay the owner of a parking lot
for the
privilege of temporarily parking one's car there. Making
authoritative texts of the content of each agreement would
not be practical.
The lower level of
formality does have a
drawback: it may be unclear whether the parties have made a contract or
not. Many contracts cases revolve
around whether the parties made an agreement that is legally
enforceable, or
whether they were merely involved in preliminary discussions or
negotiations. In contrast, someone who has
gone through
the formalities of executing a will is highly unlikely not to know that
the
result is a legally valid will.
In the area of public
law, statutes-which,
like wills, are very textualized-usually are enacted with great
solemnity and
according to established procedures.
Since the early 1400s it has been established in England that a
statute
must be debated and accepted by both houses, lords and commons, and
then
receive the assent of the monarch.
Most American jurisdictions have similar requirements embodied
in their
constitutions. Promulgation or
publication may also be required. The
purpose of these formal procedures is to guarantee that it a piece of
paper or
parchment does, in fact, constitute
a particular type of authoritative legal text: a statute.
What
Does the Text Include?
Once a legal document
has been formally
executed or enacted, it would seem to be a trivial matter to determine
what is
part of the text and what is not. It is
certainly true that the formalities of executing a text like a statute
usually
make the content of the statute sufficiently clear.
Only text that has gone through the formal enactment process is
part of the relevant statute.
Explanatory materials or reports by legislative committees are
not part
of the text, although they may sometimes be helpful in resolving
ambiguities. The same holds for
wills. Whatever textual material comes
after the title "Last Will and Testament," and before the signature,
is part of the will. Such clarity is
one of the reasons for requiring formal execution.
A consequence is that
additions and
changes to the text must be made in an equally formal manner. A legislature cannot delete a sentence in a
statute by ordering the clerk to cross it out on the official copy,
even if a
majority votes in favor of the idea and it obtains presidential
approval or
royal assent. Rather, the legislature
must enact a new statute, with all the requisite formalities, that
declares
that the previous statute is to be amended by striking out the sentence.
Formalities required
for textual
modification of private documents are usually somewhat less strict,
because
they were originally enacted or executed with fewer formalities. There are a number of exceptions, of course,
such as written contracts and wills.
Like a statute, a will can be modified only by a formal
amendment,
called a codicil, which must be executed following the same procedures
as the
will itself.
While the legislature
may be expected to
know how to properly amend a statute, ordinary citizens are far less
aware of
the textual conventions of the law when it comes to private legal
transactions. Suppose that Aunt Hattie,
who had no children, has a will leaving all her property to her
favorite
charity. After she dies, a list is found
in her safe deposit box that gives various personal property to her
nieces and
nephews upon her death. Is the list
part of the text of the will? Although
there are exceptions, the answer is no in most Anglo-American
jurisdictions. The reason is that the
list was not properly executed, so it never became authoritative text
and
therefore has no legal effect. Aunt
Hattie would doubtless be dismayed by the outcome.
Consider another
example, again from the
law of wills. Uncle Bob has a provision
in his will giving $5000 to Alice, his favorite niece.
A year before his death he crosses
"$5,000" and writes above it "$10,000." What
does Alice get? In many common-law
jurisdictions, the
interlineations is ineffective, and Alice gets the original sum of
$5000. In others, the act of crossing out
the words
or numbers will be effective, but the insertion of additional text (the
number
"$10,000") was not done with proper formalities and therefore is
invalid. Alice gets nothing.
The reason, of course, is that a person
cannot change authoritative text by such informal means.
To modify a will, you have to execute a new
will or a codicil with all the required formalities.
A final example comes
from contract
law. Suppose that a business owner
sends a letter soliciting bids to buy ten new computers, to be
installed by the
seller. The letter states that the
computers are meant to run a complex software application.
A vendor offers to sell and install the
computers for $50,000 and sends the vendor a contract, which both the
business
owner and the vendor sign. Before
signing, the vendor assures the business owner that the computers will
run the
software. The written contract sets out
the terms of the sale, states that the computers are not warranted to
be fit
for any particular purpose, and contains a "merger" or
"integration" clause declaring that this is the entire agreement
between the parties. If the computers
later do not run the software properly, many people would be surprised
to learn
that traditionally courts do not consider the oral assurances about the
software to be enforceable, because they were not contained in the text
of the
contract. The integration or merger
clause essentially turns the written document into not just a record of
the
agreement, but an authoritative text that has become the contract
itself.
In recent years,
courts have tried to
mitigate the harshness of these textual conventions in various ways,
especially
where ordinary people with no legal training were involved. Even with such reforms, however, it is clear
that legal text is something quite different from ordinary speech and
writing.
Perhaps the closest
analogy to legal texts
are religious texts like the Bible. For
many believers, the Bible is not just a record of the relationship
between God
and his people, or inspirational writings by saintly people. Rather, they view it as an authoritative
text that contains the words of God himself.
Though the words were drafted by mere mortals like Moses and St.
Paul,
it is God who speaks through the text.
This is quite parallel to legal texts, like statutes and wills,
which
are drafted by clerks or lawyers, but are deemed to be the
authoritative
expression of the legislature or testator in whose name they were
written. This tends to promote a very
literal
interpretation, as well as strong prohibitions against adding to or
subtracting
from the text.
Expanding
the Text by Incorporation
Even though the rules
relating to the
formation and revision of legal texts can be quite rigid, the concept
of text
is in some ways surprisingly abstract.
It is generally the case that once you enact or execute an
authoritative
legal text, like a will or statute, only what is within the four
corners of the
document is part of the text. Things
outside the text, whether spoken or written, are relatively less
important, or
completely irrelevant, in determining the nature of the transaction
governed by
the text.
We have also seen that
one way to add to
the text is by means of an amendment or codicil, which must be executed
with
full formalities. An interesting aspect
of the process of amendment is that legally the result is that there is
now one
new text--even though that text is physically contained in two
documents. The two documents, original and
amendment,
are molded into a single text. Thus, if
a will dated 1980 contains the clause, "I give $5000 to my niece
Jane," and a codicil executed in 1990 states, "I revoke my previous
gift of $5000 to Jane and substitute the sum of $10,000," the
testator's
will is deemed to have the following text: "I give $10,000 to my niece
Jane." This is true even though
there may be no physical document containing those exact words. In many
jurisdictions, a principle called "republication by codicil" has the
further effect of "updating" the will, so that all of the text is now
considered to have been executed in 1990, even if actually written in
1980.
Another way to add to
the text is by means
of what is called incorporation by reference.
This is a procedure that allows a document outside of the will
itself to be made part of the testamentary text. Thus, if Aunt Hattie
had added
a clause to her will stating that she incorporated by reference a list
of
personal property located in her safe deposit box, the list becomes
part of the
text of her will and the property will go to her various nieces and
nephews.
An interesting aspect
to incorporation by
reference is that the document must exist when the will is executed. If Aunt Hattie tries to incorporate a document
that she plans to write in the future, it does not become part of the
text. Moreover, if she changes the list
after the will was executed, many jurisdictions deem the changes to be
ineffective. The reason is that she can
only change the text of the will by means of the required formalities
relating
to execution of wills.
So we see that despite
the rigid rules
relating to how it is created and given effect, the legal text is
actually a
rather abstract concept. A testator can
execute a will in 1980, make a list of gifts of personal property in
1985, and
execute a codicil in 1990 that makes some changes to the 1980 will and
incorporates the list by reference. All
of these documents, molded or integrated together, constitute a will
dated
1990.
STRUCTURE
AND LANGUAGE OF LEGAL TEXTS
Structure
The most salient
feature of the structure
legal texts is that they are highly formulaic or stereotypical. Some
texts can
be quite elaborate in terms of structure, of course, but routine legal
documents tend to follow a predetermined structure that changes little
over
time. A statute, for instance, normally
has some or all of the following elements:
Long title:
An act
to consolidate certain enactments relating to the constitution and
proceedings
of the Scottish Land Court...
Enactment clause:
Be it
enacted by the Queen's most Excellent Majesty, by and with the advice
and
consent of the Lords Spiritual and Temporal, and Commons, in present
Parliament
assembled, and by the authority of the same, as follows...
Substantive provisions:
(1) The Scottish Land
Court...shall continue in
being.
(2) The Land Court shall consist
of [the
following persons]....
(5) One of the members of the
Land Court shall
be a person who can speak the Gaelic language...
Exceptions or provisos:
Subsection
(3)(b) above shall not confer...
Short title or citation:
This
Act may be cited as the Scottish Land Court Act 1993.
Additional
possible clauses, which typically come at the end of a statute, may
relate to
matters such as administration of the act, enforcement, transitional
provisions, repeals of earlier acts, and schedules.
Although the basic
structure of statutes
has remarkably stable for hundreds of years, there have been some
changes. In the past, acts tended to have
long
preambles, usually beginning with the word "whereas."
They occurred directly before the enactment
clause and recited the mischief that the statute was intended to remedy. Preambles have largely gone out of
style. A relatively modern innovation,
on the other hand, is the use of definitions, which specify how a word
or
phrase is to be understood in the act in question.
Private legal
documents like contracts
also tend to have a relatively fixed structure. Because
there are a large number of different types of contracts,
however, there are many different formualas or templates in use. Wills, as might be expected, follow a more
routine structure, since they virtually all have the same purpose: the
transfer
of property at death, as well as some ancillary functions such as
appointing an
executor or a guardian for minor children. A typical will almost always
bears
the caption "Last Will and Testament." The introductory paragraph is
typically something like the following:
I,
_______, of __________, do hereby make, publish and declare this as and
for my
Last Will and Testament, hereby revoking all wills and codicils thereto
heretofore by me made.
The
introductory paragraph is generally followed by several numbered
paragraphs (or
"articles") that relate to payment of funeral expenses and debts,
appointment of an executor, and-if there are minor children-the
appointment of
a guardian.
The essence of the
will consists of the
bequests (gifts of property or amounts of money). These also tend to be
phrased
in ritualistic and stereotypical language.
Most wills begin with a list of specific bequests:
I give
and bequeath to ______ of _____ the sum of ______, to be his absolutely
and
forever, if he be living ninety (90) days after my death...
The
specific
bequests are generally followed by a gift of what is called the residue
(all
the rest of the estate) in the residuary clause:
I give,
devise and bequeath all of said rest, residue and remainder of my
property
which I may own at the time of my death, real, personal and mixed, of
whatsoever kind and nature and wheresoever situate, including all
property
which I may acquire or to which I may become entitled after the
execution of
this will, absolutely and forever, to _____ ...
The
body of the will usually ends with a phrase such as the following:
IN
WITNESS WHEREOF, I have hereunto set my hand and seal at _____, this
___ day of
_____.
The
archaic nature of these texts is highlighted by the fact that many
modern wills
continue to refer to a seal, even though the testator merely signs the
document, and it is inconceivable that a modern judge would invalidate
a will
based on its absence.
Next comes the
signature of the testator,
at what is called the "foot" of the will. Beneath
the testator's signature is normally what is called the
"attestation clause" and the signature of two witnesses.
Wills and statutes are
but two examples of
the archaic and stereotypical structure of many legal texts. One of the main reasons for this repetitious
structure and language is that the lawyer who draft these wills tend to
base
their work on forms that they have inherited from older lawyers or
which they
find in books of forms. Not just the
structure, but the language itself tends to be ritualistic and archaic,
as shown
in the next section.
Language
Legal language,
broadly construed as the
language of the legal profession, has
been the object of numerous studies, many of which advocate reforming
it to
make it more understandable to the ordinary citizens whose lives and
fortunes
may be affected by it. Many pejorative
adjectives have been used to describe the language of the law,
including
"wordy," "unclear," "pompous," and "dull." More
specifically, the literature on legal
language suggests that it differs in a number of ways from ordinary
speech, to
wit:
1. Technical terminology
(such as seisin,
testator, libel per quod, hedonic damages).
2. Archaic, formal, and
unusual or difficult
vocabulary (such as said/aforesaid; to wit; hereinafter).
3. Impersonal
Constructions (avoidance of the
first and second person pronouns "I" and "you"; judges
referring to themselves as "the court").
4. Nominalizations ("the
injury
occurred...").
5. Passive constructions
("the girl was
injured...").
6. Multiple Negation
("innocent
misrecollection is not uncommon").
7. Long and Complex
Sentences (sometimes
hundreds of words long).
8. Wordiness and
redundancy ("I give,
devise and bequeath the rest, residue and remainder of my estate...").
The
list above contains some of the more commonly mentioned ways that legal
language is thought to differ from ordinary speech.
Collectively, these features are often called legalese.
It is interesting to
observe that when the
literature refers to features of legal language, it is almost always in
reference to written legal language.
The illustrations come from pleadings, contracts, wills,
statutes,
judicial opinions, and other legal texts.
Recent studies of courtroom interaction or conversations between
lawyers
and clients reveal that the members of the legal profession normally do
not
speak legalese. A lawyer arguing to a
jury, or discussing a matter with a client, or even arguing a point of
law to a
judge, wishes to be understood and generally employs formal but fairly
ordinary
standard English. Lawyers and judges
inevitably use a lot of technical vocabulary, but their speech usually
does not
contain an inordinate amount of legalese.
In reality, many or
most of the
commonly-mentioned characteristics of legalese are not so much features
of
legal language per se as they are features of authoritative legal texts. In fact, it is generally true that the most
authoritative texts (statutes and wills) tend to have the highest
percentage of
legalese in them. Judicial opinions,
which are not authoritative text in the same way that statutes are,
tend to be
written in more ordinary English. The
style of opinions is usually formal, of course, and contains a fair
amount of
legal jargon, but it does not have an inordinate amount of legalese.
To a large extent,
legalese-and thus, the
language of legal texts-can be considered to be an extreme version of
formal
written language. Research by linguists
into the differences between speech and writing has pointed out that,
as a general
matter, written text is more planned and speech more spontaneous.
Related to
this difference is that a hearer must process an utterance as it is
being
spoken, while a reader can go over a written sentence again and again
until she
has figured it out. Such differences
are easy to exaggerate, but it certainly is true that legal text is
planned in
advance, which makes it possible for sentences to be much longer and
more
complex than in speech, as well as more dense.
Written language has also been correlated to greater occurrences
of
nominalized verbs and passive constructions (Chafe 1982), both of which
are
also considered to be features of legalese.
Interestingly, there
is one prominent
aspect of legalese that is not necessarily associated with formal
writing: its
wordiness and redundancy. Consider the
phrase: "I give, devise, and bequeath the rest, residue, and remainder
of
my estate, real and personal, and wheresoever situate..."
This could just as well be phrased as:
"I give the rest of my estate..."
Wordiness and redundancy is explained by idiosyncratic features
of the
legal profession, including its conservatism, a desire to "cover all
the
bases," and an attempt to discourage clients from trying to draft their
own legal texts without the assistance of a lawyer.
Although both the
structure and language
of legal texts tends to remain formulaic and archaic, there is a
growing
movement that favors making these texts more accessible to both the
public and
the legal profession. Particularly in some
Australian states, parliamentary drafters have experimented with the
structure
of statutes, adding flow charts and examples to help readers understand
the
content. In various parts of the world,
there has been a movement to make the language of legal
texts-especially those
that affect the welfare of ordinary consumers-more comprehensible. There is much
still to be accomplished,
however.
Interpreting
Legal Text
One of the most
oft-observed features of
legal interpretation is the tendency of many judges and lawyers to
interpret
legal texts in relatively literal or acontextual ways.
For instance, English judges during the
eighteenth and nineteenth centuries developed the "Plain Meaning
Rule," under which an interpreting judge was supposed to look at the
text
of a legal document and determine whether its meaning was "plain,"
based purely on the text contained within the four corners of the
document. If so, the meaning of the
document should be derived solely from the text itself, without
reference to
any "extrinsic evidence" (outside sources). Thus,
the meaning of a statute could not take into account
statements made by legislators during debates, or reports by
legislative
committees. What a testator said to his
lawyer was likewise deemed irrelevant in determining the meaning of the
will
that the lawyer subsequently drafted.
Only if the meaning of the text was ambiguous could judges
appeal to
outside sources to help determine its meaning.
Thus, if a man's will left his earthly possessions to "my
wife," many judges would hold that this referred unambiguously to his
legal spouse, ignoring extrinsic evidence that he had abandoned his
legal
spouse many years ago and taken up with another woman whom he
habitually called
"my wife." Perhaps morality can
justify such an outcome, but ordinary principles of language can not.
The Plain Meaning Rule
held sway in
England throughout the twentieth century, although it has recently lost
some of
its force. In the United States, it
came under attack by both judges and legal academics over the course of
the
previous century. Many courts began to
look at the outside evidence to determine whether the language of a
text really
was as plain as it seemed. If the
external evidence revealed an ambiguity, they would then consider the
evidence
in determining the meaning of the text.
In the area of statutory interpretation, it became relatively
acceptable
to look at a statute's legislative history to help determine the
meaning of an
ambiguous word or phrase. Sometimes a
judge's view of the intent of the legislature, or of the purpose the
statute,
might even justify going beyond what seemed to be its "plain"
meaning.
At the end of the
twentieth century a
counter-revolution arrived in the form of what is now called
"Textualism." Its strongest advocate is
Justice Antonin
Scalia of the United States Supreme Court.
Essentially, textualists urge judges to focus more on the text
of a
statute, and less on the intentions of the legislature.
In that sense, textualism could be viewed as
attempting to resuscitate the Plain Meaning Rule.
Those who oppose
textualism tend to place
greater emphasis on the intentions of the legislature (intentionalists)
or on
the goal or purpose of a statute (purposivists). They
often make the linguistic argument that textualism rests on
a misguided or simplistic view of language.
No text can have a meaning independent of the intentions of its
maker. In fact, the search for meaning
invariably focuses on what a speaker meant by an utterance.
It is certainly true
that in ordinary
spoken language, we normally aim to determine the meaning that a
speaker
intended to convey, and use any pragmatic information that might be
available
to determine the speaker's communicative intentions.
Whether we inevitably use the same strategy to interpret written
language, and in particular, authoritative legal texts, is less clear.
One important
difference between spoken
language and written text is that writing tends to be more permanent
than
speech. This is certainly true of legal
texts, which on occasion remain in force for hundreds of years. And writing tends to be more planned, while
speech is usually relatively spontaneous.
It is certainly true that legal drafters plan texts carefully in
an
effort to cover every base and foresee every future contingency. They will never completely succeed, of
course, but the fact that they try is in itself significant. Judges will therefore be inclined to hold
that if a text would logically be expected to deal with contingency X,
but does
not, the text should be interpreted as not extending to X.
For example, if a statute forbids motorized
vehicles, bicycles, and roller skates in a park, judges would
traditionally
hold that it does not extend to skateboards, even though that might
seem to
come within the purpose of the statute.
If the legislature had intended to include skateboards, they
could have
said so.
A related difference
is that a speaker is
usually engaged in face-to-face contact with the hearer, whereas a
writer
normally is not. Consequently, it is
possible for a speaker to monitor whether the hearer seems to
understand-and,
if not, to explain something again in different words.
Written legal texts usually do not allow for
such subsequent explanation and elaboration.
Thus, the drafter must take time be as clear and precise as
possible,
because he will not have a second chance to explain something. This is why legal drafters tend to be so
obsessed with precision. Whether they
achieve it is another issue, but judges who interpret a text assume
that the
drafter chose his words carefully. If a
drafter of a statute uses two words that are similar in meaning, such
as
"residence" and "domicile," the assumption will be that
this is not free variation, but that two distinct meanings were
intended.
Moreover, spoken
interaction often
involves people who know something about each other, or who can infer
certain
information about their interlocutor based on the situation in which
they find
themselves. Face-to-face interaction
also allows for the communication of additional information by
nonverbal
means. The hearer may thus use, in
addition to language, shared background information or nonverbal cues
to
determine the communicative intentions to the speaker.
Writers must normally signal all their
intentions verbally. This difference
promotes a somewhat more literal interpretation of written texts. An utterance spoken to a friend might well
be understood--as intended--to be a joke or ironic comment, based on
what the
friend knows about the speaker and the speaker’s tone of voice. Someone who read the same words on paper
might take them more literally.
Because writing is
relatively permanent,
legal drafters can create texts that might have to be interpreted many
years or
even centuries in the future by an unknown audience.
For the most part, all the drafters have at their disposal to
accomplish this aim is the written word.
In terms of background information, the main thing drafters can
assume
about their audience is a basic knowledge of the world and the legal
system. Such texts will therefore have
to be written in a highly autonomous style, in which the drafter aims
to place
into the text as much information as is needed to interpret it (Kay
1977). The ideal is that a legally
educated reader
will be able to interpret the text without recourse to other
information, even
if situated thousands of miles away or many years later.
Critically, this ideal provides the
underpinnings of the Plain Meaning Rule.
Lawyers are deemed to place all relevant intentions into the
text, and
judges who interpret the text presume that they were successful.
Of course, this
idealization of how legal
texts are created and interpreted flies in the face of what we know
about human
language. Language is not always clear,
and there is no such thing as a fully autonomous text.
Most members of the legal profession are
aware of these limitations, which explains why even judges who adhere
to the
Plain Meaning Rule do not apply it when the text is ambiguous. Nonetheless, judges have often had an
inflated notion of how the textual conventions of the profession enable
judges
to interpret a carefully drafted text without recourse to outside
materials.
Even if the
profession's textual conventions
facilitate or encourage a relatively literal mode of interpretation, it
does
not follow that a textualist approach to interpreting legal texts is
inevitable. of course, if the
"plain meaning" of the text seems to correspond to the evident
intentions of its author, there is unlikely to be an issue for the
courts to
decide. Problems arise when the
apparent meaning of the text is not consistent with evidence regarding
the
intentions of its makers. Or a legal
document might contain a "gap" in that it does not address a
particular issue that one would normally expect to be included. In that event a court might need to decide
whether the gap was intentional, indicating an intention not to
legislate on
the subject, or an oversight, in which case the court might wish to
determine
what the legislature would have done if it had considered the matter.
A textual approach
privileges the text
over authorial intent. If there is an
ambiguity, text will trump evidence of intent.
If there is a gap, a judge will deem it to be intentional,
rather than
trying to fill the gap according to the probable intention of the
author. This approach flows forth
naturally from the
textual practices of the legal profession.
An intentionalist approach, on the other hand, tries to carry
out the
intentions of the legislature, even when the text seems to be ambiguous
or
incomplete. It is more consistent with
the interpretive practices that speaker employ in ordinary conversation. After all, the point of ordinary language
understanding is to determine what the speaker meant by an utterance.
The "best" approach to
interpretation of legal texts-particularly statutes--is ultimately a
political
question rather than a linguistic one.
Different legal systems have had varying interpretive practices
over
time, depending largely on the current view of the institutional role
of
lawmaker and judge. In a democratic
system where lawmakers are elected by popular vote are deemed to
express the
will of the people, it makes sense for judges (who are often not
elected) to
carry out as best they can the evident intentions of the legislature.
Yet at times it may be
more important to
preserve the integrity or cohesiveness of a legal text.
Criminal law is perhaps the best
example. In this area, the rule of law
requires that a statute clearly inform citizens what types of conduct
will
subject them to punishment. It should
be possible for a citizen to know, based upon reading a statute, that
certain
conduct is prohibited. Such a citizen
should not be forced to hire a lawyer to investigate whether there
might be
some legislative history buried in an archive that could potentially
enlarge
the statute's scope. If the penal code
does not ban conduct that the legislature would like to prohibit, the
legislature
should amend it. In this way, the
integrity of the text can be preserved.
Textual integrity may
also be important in
private legal transactions. Parties to
a commercial contract, especially when they cannot entirely trust each
other,
may find it useful to stipulate that their agreement consists only of
the
written text of the contract, which is to be interpreted according to
the
textual conventions of their business.
An aging testator with squabbling descendants may also derive
some
measure of comfort from setting down her wishes in the form of a
definitive
text that can only be changed by following a strict set of formalities.
In many other
situations, it makes little
sense to elevate form over substance.
If a statute consists of directions to government bureaucrats,
the need
for a coherent text is usually not all that pressing.
As long as the bureaucrats can determine from the language of a
statute what the legislature intends for them to accomplish, they
should carry
out those intentions. Moreover, the
bureaucrats in question should have a familiarity with the
legislature's
policies and can even hire lawyers to research the legislative history
of a
statute, if need be. Because the
bureaucrats and the legislature share a great deal of background
information,
the legislature need not speak as clearly and comprehensively as it
must in the
penal context.
The nature of the
audience should also be
considered. If a legal document like a
contract or will is produced by a person who is untrained in the law,
and who
is therefore unfamiliar with its textual conventions, there is no
logical
reason to interpret that document in a textual way.
Something that is written in ordinary English should be
interpreted as such.
Ultimately,
interpretation involves a
symbiotic relationship between the encoder and decoder of language. To the extent that language is encoded using
particular textual conventions, it should be decoded taking those
conventions
into account. If,
on the other hand, it
is encoded as ordinary language, it should be decoded as ordinary
speech or
writing.
CONCLUSION
It has long been known
that the language
of the legal profession is different from ordinary speech.
To some extent, those differences can be accounted
for by the fact that legal documents tend to be drafted in formal
literary
English. Many of the features of legal
language are also found in the more formal written varieties of
ordinary
English.
Yet there are also
some important ways in
which legal texts are quite distinct from other writings.
This results in large part from the textual
conventions of the profession, which enable the creation of a text
which, once
properly enacted or executed, comes to be viewed as the authoritative
expression of the intentions of its author.
The formal creation of such texts tends to promote a relatively
textual,
or literal, interpretation.
The formalities
surrounding the creation
and interpretation of authoritative legal texts can provide a degree of
certainty to their makers and users.
But those same formalities, because they differ from how
ordinary people
tend to write and understand documents, can also frustrate the
intentions of
legislators, testators, and others deemed to be the authors of the text
in
question. In all areas of the law,
there has been a tendency in recent years to draft and enact legal
texts in
less formal ways, and to interpret them in ways that are more consist
with the
intentions of their makers. With the
exception of some areas of the law where authoritative text plays a
particularly important function, this trend seems likely to continue.
Less clear is the
impact that new
technologies will have on legal conventions relating to text. It is now possible to embed hyperlinks in
legislation that contain definitions or cross references to other parts
of the
law. And text no longer necessarily
consists of ink marks on paper. How
this will change the legal conception of text is unclear, but it seems
inevitable
that it will.
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