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