THE NATURE OF LEGAL LANGUAGE
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Peter Tiersma, The Nature of Legal
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One of the great paradoxes about the legal
profession
is that lawyers are, on the one hand, among the most eloquent users of
the
English language while, on the other, they are perhaps its most
notorious
abusers. Why is it that lawyers, who may excel in communicating
with
a jury, seem incapable of writing an ordinary, comprehensible English
sentence
in a contract, deed, or will? And what can we do about it?
Consider, first, the eloquence of the legal
profession.
Daniel Webster was famed for his oratory skills. Called upon to
assist
the prosecution in a murder case, Webster addressed any hesitations the
jurors
might have harbored about their power to punish the guilty. In
doing
so, he provided a memorable defense of the theory of deterrence:
The criminal law is not
founded in a principle of vengeance. It does not punish that it
may
inflict suffering. The humanity of the law feels and regrets
every
pain that it causes, every hour of restraint it imposes, and more
deeply
still, every life it forfeits. But it uses evil, as the means of
preventing
greater evil. It seeks to deter from crime, by the example of
punishment.
This is its true, and only true main object. It restrains the
liberty
of the few offenders, that the many who do not offend, may enjoy their
own
liberty. It forfeits the life of the murderer, that other murders
may
not be committed.
A very different
picture of the deterrent effect of punishment
was painted by Clarence Darrow, another great legal orator.
Darrow
sought to persuade a judge to spare the lives of his two young clients,
who
had pled guilty to a sensational murder:
What about this matter
of crime and punishment, anyhow? ... Mr. Savage tells this court that
if
these boys are hanged, there will be no more murder.
Mr. Savage is an optimist.
He
says that if the defendants are hanged there will be no more boys like
these.
I could give him a sketch of
punishment,
punishment beginning with the brute which killed something because
something
hurt it; the punishment of the savage; if a person is injured in the
tribe,
they must injure someone in the other tribe; it makes no difference who
it
is, but somebody. If one is killed his friends or family must
kill
in return.
You can trace it all down through
the
history of man. You can trace the burnings, the boilings, the
drawings
and quarterings, the hanging of people in England at the crossroads,
carving
them up and hanging them as examples for all to see.
At the end of his long argument, Darrow
had the judge in tears. Despite
angry mobs lusting after a hanging, the judge sentenced the young men
to
life in prison.
Yet as mentioned, lawyers are also among the worst
abusers
of language. Contemplate the convoluted and redundant nature of
the
typical modern will, a document so important that it is effective only
if
signed in the presence of witnesses. The first problem is the
title:
Last Will and Testament. There is no difference between a will
and
a testament, so either term would suffice. And to label this the
last
will is absolutely ludicrous. Virtually every will traditionally
bears
this title, regardless of whether it is the first, the last, or
somewhere
in the middle.
The will produced by a modern-day Webster or Darrow
would
probably begin with the words:
I, HELEN HOOVER, of the
Town of Goleta, County of Santa Barbara and State of California, 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.
More simply stated: I declare that this
is my will and revoke any previous
wills.
The next provision is normally the
following:
I direct my Executor
to pay my funeral expenses and all
my just debts, except those secured by mortgage or otherwise, out of my
estate.
This clause is almost always completely
useless. Virtually every jurisdiction
makes the estate legally liable for debts and funeral expenses,
regardless
of any directive in the will.
After some specific gifts comes the critical part of
almost
any will: the residuary clause. Once more, this example was taken
virtually
verbatim from an actual--and fairly typical--modern will:
I give, devise and bequeath
all of 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, in equal
shares,
absolutely and forever, to ARCHIE HOOVER, LUCY HOOVER, his wife, and
ARCHIBALD
HOOVER, per capita, to any of them living ninety (90) days after my
death.
Again, the reader is inundated by a
flood of convoluted and largely empty
prose. All that need be said is I give the rest of my estate in
equal
shares to Archie Hoover, Lucy Hoover, and Archibald Hoover, assuming
they
survive me by at least 90 days.
Other categories of legal documents fare no
better.
Here is part of what is called a deed of trust:
Borrower covenants that
Borrower is lawfully seised of the estate hereby conveyed and has the
right
to grant and convey the Property and that the Property is unencumbered,
except
of the encumbrances of record. Borrower warrants and will defend
generally
the title to the Property against all claims and demands, subject to
any
encumbrances of record.
This is not a dusty old parchment from
an obscure English archive.
I signed this document seven or eight years ago when I bought my
house.
A mortgage or deed of trust is one of the most important obligations
that
a person can undertake. Yet how many homeowners have any idea
what
it means to be lawfully seised of anything, or what encumbrances of
record
are? How many would realize that this paragraph could require
them
to pay large amounts of attorneys fees if there turn out to be problems
with
title to the property?
Or consider the legalistic warning commonly
contained
on isopropyl alcohol, a substance some people might be tempted to drink:
FOR
EXTERNAL USE ONLY
Will produce serious gastric disturbances if taken
internally.
Does this mean that you should only
drink it outdoors? Clearly that
is not the intent. But if the message is do not drink, why not
just
say so?
Legal language has become so notorious that it has
entered
the realm of popular humor. To Will Rogers once wrote that "the
minute
you read something and you can't understand it you can almost be sure
it
was drawn up by a lawyer. Then if you give it to another lawyer
to
read and he don't know just what it means, why then you can be sure it
was
drawn up by a lawyer." The Marx Brothers lampooned the language
of
the law in A Night at the Opera; Groucho and Chico successively lopped
off
portions of a contract relating to the party of the first part, party
of
the second part, party of the third part, and so forth ad nauseam.
Current lawyer jokes make a similar point:
After months of bickering,
a divorce lawyer completes negotiations with the other side and calls
his
client with the good news.
"So what did you work out?"
George
asks the lawyer.
"Well, what it boils down to is
that
the party of the first part, to wit, George Smith, shall convey to the
party
of the second part and to her heirs and assigns forever fee simple to
the
matrimonial estate, including all property real and personal and all
chattels
appurtenant thereto."
"I don't get any of that," George
muttered.
"That's right."
Even highly educated
judges may be dumbfounded by legal
prose. During oral argument regarding an insurance policy in
1969,
Chief Justice Weintraub of the New Jersey Supreme Court confessed: "I
don't
know what it means. I am stumped." Justice Haneman
admitted,
"I can't understand half of my insurance policies," and Justice Francis
suggested
that the policies are kept "deliberately obscure."
Why can't lawyers write more clearly, concisely, and
comprehensibly?
We know they can communicate well enough when they want to. So
why
must so many important legal documents--documents that govern our
rights
and obligations as citizens, that allow a bank to repossess our house,
or
that determine who is responsible for damage to a rental car--be in
virtually
unintelligible legalese?
The Rise of Legal Language
Perhaps the language of lawyers is so convoluted
simply
because of the conservatism of the profession and its veneration of
history
and tradition. To some extent, legal English is indeed a product
of
its history. It is a story of Anglo-Saxon mercenaries,
Latin-speaking
missionaries, Scandinavian raiders, and Norman invaders, all of whom
left
their mark not only on England, but on the language of its law.
The English language can be said to have begun
around
450 A.D., when boatloads of Angles, Jutes, Saxons and Frisians arrived
from
the Continent. These Germanic invaders spoke closely related
languages,
which came to form what we call Anglo-Saxon or Old English.
Although
the Anglo-Saxons seem to have had no distinct legal profession, they
did
develop a type of legal language, remnants of which have survived until
today.
Examples include words like bequeath, goods, guilt, manslaughter,
murder,
oath, right, sheriff, steal, swear, theft, thief, ward, witness and
writ.
Besides vocabulary, an Anglo-Saxon characteristic
that
left traces in legal English is alliteration. As opposed to
rhyme,
where the ends of words are phonetically the same, alliteration
requires
that words begin with the same sound. Anglo-Saxon poetry strove
to
have two or three words in each line alliterate. Alliteration is
not
only poetic, but makes phrases easier to remember, an important feature
in
a largely preliterate society.
Most Anglo-Saxon alliterative phrases have
disappeared
from our language. One that has survived is to have and to
hold,
which is still part of many marriage vows. And an Old English
poet
could almost have coined the phrase rest, residue and remainder, a
ponderous
but poetic expression still found in many wills, as is hold harmless in
contracts.
Other illustrations are any and all and each and every, both beloved by
lawyers.
To some extent, this tradition may explain the penchant of the
profession
to concatenate long lists of words joined by and or or, with or without
alliteration.
The Anglo-Saxons used not only Old English as a
legal
language, but also Latin. Although Latin was introduced to
England
during the Roman occupation around the time of Christ, it became a
major
force only after the arrival of Christian missionaries in 597.
Before
long, Latin was the language not only of the church, but of education
and
learning. The association between literacy and the church became
so
strong that the two were almost synonymous. The terms clerk
(someone
who can write) and cleric or clergy (priest) derive from the same Latin
term.
For centuries, English courts recognized a type of immunity for the
clergy;
to avoid the gallows, you simply had to read a verse from the Bible
(sometimes
called the "neck verse").
Latin was important for English law mainly as the
language
of court records. The practice of using Latin versus in
case
names (for "against") harks back to these times. English lawyers
and
judges were also prone to express sayings or maxims about the law in
Latin.
An example that has survived is caveat emptor.
A later influence on the language of the law was
Scandinavian
in origin. During the eighth century, Vikings began raiding the
English
coast and eventually settled down. The English borrowed from
these
Scandinavians the most important legal word in the English language:
the
word law itself. Law derives from the Norse word for "lay" and
thus
means "that which is laid down."
A couple of centuries later another group of
Scandinavians
had a far more profound and lasting impact on the language of English
lawyers.
These were the Normans, whose name ultimately comes from
northman.
The Normans were originally Vikings who conquered the region of
Normandy
during the ninth and tenth centuries. In the course of a few
generations,
the Viking invaders of Normandy became French both culturally and
linguistically;
the Northmen had become Normans.
William, Duke of Normandy, claimed the English
throne
and conquered England in 1066. Before long, the English-speaking
ruling
class was largely supplanted by one that spoke Norman French. As
(over)stated
much later by Sir Walter Scott in his novel Ivanhoe: after the Norman
Conquest,
"French was the language of honour, of chivalry, and even of justice,
while
the far more manly and expressive Anglo-Saxon was abandoned to the use
of
rustics and hinds, who knew no other."
In the beginning, the Normans wrote legal documents
in
Latin, not French. Around 1275, however, statutes in French began
to
appear. By 1310 almost all acts of Parliament were in that
language.
A similar evolution took place with the idiom of the courts. At
least
by the reign of Edward I, towards the end of the thirteenth century,
French
had become the language of the royal courts.
Oddly, the use of French in the English legal system
grew
at the very time that its survival as a living language was in serious
question.
The English historian J.H. Baker has observed that outside the legal
sphere,
Anglo-French was in steady decline after 1300. Even the royal
household,
the last bastion of French, switched to English by the early 1400s.
Unhappiness about this state of affairs led to what
might
be considered the first plain English law. In 1362 Parliament
enacted
the Statute of Pleading,
condemning
French as "unknown in the said Realm" and lamenting that parties in a
lawsuit
"have no Knowledge nor Understanding of that which is said for them or
against
them by their Serjeants and other Pleaders." The statute required
that
henceforth all pleas be "pleaded, shewed, defended, answered, debated,
and
judged in the English Tongue." Ironically, the statute itself was
in
French!
The legal profession seems to have largely ignored
this
statute. Acts of Parliament did finally switch to English around
1480,
but legal treatises and reports of courts cases remained mostly in
French
throughout the sixteenth century and the first half of the
seventeenth.
Six hundred years after the Norman Conquest, and around three hundred
years
after French was virtually a dead letter in England, it was still being
used
as a professional language by English lawyers!
Complaints continued to mount. In 1549, Thomas
Cranmer,
first Protestant archbishop of Canterbury, recounted that "I have heard
suitors
murmur at the bar because their attornies pleaded their cause in the
French
tongue which they understood not." Roughly a century later, the
Puritans
took power, beheaded the king, and passed a law in 1650 that required
all
case reports and books of law to be "in the English Tongue only."
The
Puritans evidently had a zest not only for plain living, but also for
plain
language. But in 1660, after the monarchy had been restored, this
"pretended
act" was repealed and the old state of affairs returned. Lawyers
rejoiced
and resumed writing in Law French, at least for the next few decades.
Because it was the main language of the profession
for
so many centuries, French has had a tremendous influence on legal
language.
A vast amount of legal vocabulary is French in origin, including such
basic
words as appeal, attorney, bailiff, bar, claim, complaint, counsel,
court,
defendant, demurrer, evidence, indictment, judge, judgment, jury,
justice,
party, plaintiff, plea, plead, sentence, sue, suit, summon, verdict
and
voir dire.
Another example of French influence is that in that
language
adjectives normally follow the noun that they modify. Several
such
combinations are still common in legal English, including attorney
general,
court martial, fee simple absolute, letters testamentary, malice
aforethought,
and solicitor general. Also, Law French allowed the
creation
of worlds ending in -ee to indicate the person who was the
recipient
or object of an action (lessee: "the person leased to").
Lawyers,
even today, are coining new words on this pattern, including asylee,
condemnee,
detainee, expellee and tippee.
The French of lawyers became increasingly corrupt,
and
its vocabulary more and more limited. By the seventeenth century
lawyers
were tossing in English words with abandon. Consider a famous
case
from 1631, in which a condemned prisoner threw a brickbat at the
judge.
The report noted that he ject un brickbat a le dit justice, que
narrowly
mist. The judge was not amused. He ordered that the
defendant's
right arm be amputated and that he be immediatement hange in
presence
de Court.
Parliament finally ended the use of Latin and French
in
legal proceedings in 1731. By then, however, it was delivering
merely
a coup de grâce.
Things were similar in the United States.
Despite
initial antipathy in the colonies towards the legal profession, the
Americans
soon realized that they needed to develop a system of justice.
The
only real model at their disposal was the English one. The
fledgling
American states adopted not only England's common law, but its language
as
well. Nonetheless, criticism of legal language continued.
Thomas
Jefferson complained about the verbosity of statutes, their endless
tautologies,
and "their multiplied efforts at certainty by saids and
aforesaids."
Yet American legal language ended up being very similar to its English
parent.
Back in England, another critic pointed out that the
simple
phrase I give you that orange, when written out by a lawyer, would
become
something like the following:
I give you all and singular,
my estate and interest, right, title, claim and advantage of and in
that
orange, with all its rind, skin, juice, pulp and pips, and all right
and
advantage therein, with full power to bite, cut, suck, and otherwise
eat
the same, or give the same away as fully and effectually as I the said
A.B.
am now entitled to bite, cut, suck, or otherwise eat the same orange,
or
give the same away, with or without its rind, skin, juice, pulp, and
pips,
anything hereinbefore, or hereinafter, or in any other deed, or deeds,
instrument
or instruments of what nature or kind soever, to the contrary in any
wise,
notwithstanding.
Unfortunately, the example is just as
apt today. Witness the will and
deed of trust reproduced at the beginning of this essay.
Clearly, the legal profession has tended to be quite
conservative,
especially in the past. But old habits and tradition cannot fully
explain
why modern lawyers persist in using archaic jargon passed down over the
centuries.
Actually, lawyers can be quite creative and innovative when it
suits
their purposes. They have readily coined neologisms like palimony
(alimony paid to a "pal" or unmarried partner) and hedonic
damages
(money damages for loss of the pleasure of life). And, as we
have
seen, lawyers can speak eloquently and very understandably to jurors
during
trial. If legal documents are inscrutable--as many are--it is
more
than a matter of tradition.
A Conspiracy of Lawyers?
Some critics have suggested that the long retention
of
legalese is not just due to the profession's general conservatism, but
comes
from what might be called a "conspiracy of gobbledygook." As
suggested
by David Mellinkoff, who wrote a classic critique of the language of
the
law: "What better way of preserving a professional monopoly than by
locking
up your trade secrets in the safe of an unknown tongue?"
Mellinkoff's
reference was to Law French, but he could just as well have been
writing
about legalese today.
Bentham was one of the more ardent proponents of the
conspiracy
theory, referring to "lawyer's cant" as "an instrument, an iron crow or
a
pick-lock key, for collecting plunder." After all, he wrote, if
you
strip away all the jargon, "every simpleton is ready to say--What is
there
in all that? 'Tis just what I should have done myself."
That lawyers actually created legal English, or
cling
to old habits, to keep the public in the dark and protect their
monopoly
on legal services is surely exaggerated. Still, lawyers seem to
trot
out their most ancient, redundant, and convoluted phrases when writing
documents
directly for clients, particularly wills. The average will (for
an
estate without potential tax liability) is not conceptually all that
complex,
and most of the language is pure boilerplate. Yet lawyers are
able
to charge hundreds of dollars for drafting one. All too often,
complexity
of language masks simplicity of content.
Justifying fees is not the only reason for the
persistence
of legalese. Their distinctive language allows lawyers to mark
themselves
as members of the profession. Law students soon learn how to
"talk
like a lawyer." Use archaic words like aforesaid, herein and
to wit. Embed them in convoluted syntax. And never
use
one word where a longer phrase is available.
Perhaps the best way to sound like a lawyer is to
throw
in as much legal vocabulary as possible. There are literally
thousands
of technical terms from which to choose. Words of Latin and
French
origin are particularly impressive. No one will doubt that you
are
a real member of the bar if you can convincingly bandy about phrases
like
expunging a lis pendens or quashing a subpoena duces tecum.
Lawyers may also have strategic reasons for favoring
legalese
and the obscurity it engenders. For instance, an outfit that
rents
hang gliders to the public may be legally obligated to warn of the
dangers
of the sport, but at the same time would not want to discourage
potential
customers. Or a department store might wish to give out credit on
one-sided
or even oppressive terms, but might fear that consumers would balk if
they
realized the truth. Convoluted and incomprehensible legalese is
the
obvious solution.
Perhaps a more legitimate justification for the
longwindedness
of the profession derives from its adversarial nature. Virtually
any
legal document is liable, at some point in its existence, to be picked
apart
by an opponent eager to exploit a loophole or ambiguity in hopes of
wiggling
out of an agreement or contesting a will. Legislation is no
exception;
almost any statute will be subjected to intense scrutiny by lawyers
trying
to poke holes in it on behalf of their clients. Those who draft
such
documents must anticipate these attacks. Therefore, they
obsessively
try to cover every base, plug every loophole, and deal with every
remotely
possible contingency. The result is ever longer, denser, and more
complicated
prose.
"Covering all the bases" is no doubt the explanation
for
a highly contorted definition of buttocks in a Florida ordinance aimed
at
reducing the amount of exposed flesh in public places. To require
dancers
to cover their buttocks, without more, would only invite them to skirt
the
rule by wearing the skimpiest covering possible. The county thus
deemed
it prudent to define buttocks as precisely as it could:
the area at the rear of the
human body (sometimes referred to
as the gluteus maximus) which lies between two imaginary lines running
parallel
to the ground when a person is standing, the first or top of such lines
being
one-half inch below the top of the vertical cleavage of the nates
(i.e.,
the prominence formed by the muscles running from the back of the hip
to
the back of the leg) and the second or bottom line being one-half inch
above
the lowest point of the curvature of the fleshy protuberance (sometimes
referred
to as the gluteal fold), and between two imaginary lines, one on each
side
of the body ...
The basic intent of the drafters is
clear. The result is far from it.
Economics is yet another factor that helps explain
the
persistence of legalese. For one thing, the realities of a busy
practice
encourage lawyers to make abundant use and reuse of forms. Large
corporations
mass-produce preprinted standardized forms for similar reasons.
In
each case, legal professionals can save time (and hence, money) by
recycling
old verbiage, rather than having to reinvent the wheel for every
transaction.
An unfortunate consequence, however, is that the language of decades
and
centuries past is continually revived.
The legal system as a whole also has goals that may
conflict
with the goal of clear communication. For example, it endeavors
to
state the law as authoritatively as possible. Formal, archaic and
ritualistic
language helps accomplish this goal by conveying an aura of
timelessness
that makes the law seem almost eternal, and thus more credible and
worthy
of respect. Courts enhance their sense of legitimacy by depicting
themselves
as virtually unchanging institutions of ancient lineage.
Ritualistic
language (such as the oyez, oyez, oyez or hear ye, hear ye,
hear
ye that opens a court session) separates legal proceedings from
ordinary
life, marking them as being special and important.
Furthermore, the legal system desires to have the
law
appear maximally objective. Court orders are typically in the
passive
voice (the writ of certiorari is granted), creating the impression that
such
acts are accomplished without the intervention of a fallible human
agent.
The objectivity of the law is reinforced by judges' use of the third
person,
referring to themselves as the court, rather than I.
Broad and impersonal statements of legal rules (Any person who does X
shall
be guilty of a misdemeanor) make the law seem supremely
impartial.
Of course, such impersonal statements once again reduce clear
communication.
Broad and sweeping generalizations are far less effective than warnings
that
if you do the following, I will throw you into prison.
Much more could be said about legal language, and to
those
who are interested, I recommend beginning with my book, Legal Language, as well as the additional
resources
listed below.
ADDITIONAL RESOURCES
On the history of legal language
Baker, J. H. An Introduction to English Legal History. 3d ed. London:
Butterworths,
1990.
Baker, J. Manual of Law French. 2d ed. Aldershot, Eng.: Scolar
Press,
1990.
Blake, N. F. A History of the English Language. New York: New York
University
Press, 1996.
Holdsworth, William Searle. A History of English Law. Boston: Little,
Brown
and Co., 1922–.
Kibbee, Douglas A. For to Speke Frenche Trewely: The French Language in
England,
1000–1600: Its Status, Description and Instruction. Amsterdam: John
Benjamins
Publishing Co., 1991.
Legge, M. Dominica. "French and the Law." In Year Books of Edward II.:
10
Edward II., A.D. 1316–1317, edited by M. Dominica Legge and William S.
Holdsworth,
xliv. London: Bernard Quaritch, 1935.
Maitland, Frederic William. "Of the Anglo-French Language in the Early
Year
Books." In Year Books of Edward II.: 1 & 2 Edward II., A.D.
1307–1309,
edited by Frederic W. Maitland, xxxiii. London: Bernard Quaritch, 1903.
Mellinkoff, David. The Language of the Law. Boston: Little, Brown and
Co.,
1963.
Plucknett, Theodore F. T. A Concise History of the Common Law. 5th ed.
Boston:
Little, Brown and Co., 1956.
Pollock, Sir Frederick, and Frederic William Maitland. The History of
English
Law before the Time of Edward I. 2d ed. Washington, D.C.: Lawyers
Literary
Club, 1959.
Richardson, Malcolm. "Henry V, English Chancery, and Chancery English."
55
Speculum 726 (1980).
Woodbine, George E. "The Language of English Law." 18 Speculum 395
(1943).
On the Nature of Legal Language
Bentham, Jeremy. The Works of Jeremy Bentham. Edited by John Bowring.
Edinburgh:
W. Tait, 1843.
Bowers, Frederick. Linguistic Aspects of Legislative Expression.
Vancouver:
University of British Columbia Press, 1989.
Crystal, David, and Derek Davy. Investigating English Style.
Bloomington:
Indiana University Press, 1969.
Friedman, Lawrence M. "Law and Its Language." 33 Geo. Wash. L. Rev. 563
(1964).
Garner, Bryan A. A Dictionary of Modern Legal Usage. 2d ed. Oxford:
Oxford
University Press, 1995.
Gibbons, John. Language and the Law. London and New York: Longman, 1994.
Goodrich, Peter. Languages of Law: From Logics of Memory to Nomadic
Masks.
London: Weidenfeld, 1990.
Gustafsson, Marita. Some Syntactic Properties of English Law Language.
University
of Turku, Publications of the Department of English, 1975.
Hiltunen, Risto. Chapters on Legal English: Aspects Past and Present of
the
Language of the Law. Helsinki: Suomalainen Tiedeakatemia, 1990.
Jackson, Bernard S. Making Sense in Law: Linguistic, Psychological and
Semiotic
Perspectives. Liverpool: Deborah Charles Publications, 1995.
Klinck, Dennis R. The Word of the Law: Approaches to Legal Discourse.
Ottawa:
Carlton University Press, 1992.
Solan, Lawrence M. The Language of Judges. Chicago: University of
Chicago
Press, 1993.
[source: int/atlantic]