Legal Language as a tool of communication

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This article was written by Agam H Maloo, a student of Raffles University, Neemrana.

“Language shapes thoughts and emotions determining one’s perception of reality”

• Benjamin Whorf

Words are salient feature of law. In the legal field, Legal Language is always an important tool not only for communicating ideas and thoughts but to establish rights and obligations, to distribute information, to enable communication within the legal profession. There are some universal feature of the legal language i.e., extreme precision, obscurity, ambiguity, archaism (structures and vocabulary).

Words or phrases such as res judicata, impleader, executory interest, demurrer and mens rea,oblige students to acquire some new vocabulary. Learning the meaning of these words is essential to understand any case or discussion which uses them.

With the help of some example, in spite of common words there is a specific explanation words there are words whose meaning expands, contracts or changes, depending on the context or the place in which it is used. In one context (divorce, for example), a person may be considered a “resident” of a state if she has lived there for 6 months. In another context (getting a driver’s license) a person may be considered a “resident” after just a few days. In one state, a person may be said to “possess” a firearm if it is within his/her reach in an auto. In another state, that person might have to be in control of the firearm to be considered in possession of it. Thus, the same word can have a different meaning depending on what question is being asked, and where it is being asked.

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.

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.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.

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. An example that has survived is caveat emptor. As such in Legal course there is a specific subject Interpretation of Statutes. Earlier, Judges and Lexicons interpret express in Latin.  William, Duke of Normandy, claimed the English throne and conquered England in 1066.[1]

In 1362 Parliament enacted the Statute of Pleading[2], 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 Sergeants and other Pleaders.”  The statute required that henceforth all pleas be “pleaded, shewed, defended, answered, debated, and judged in the English Tongue.”

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.[3]

Exclusive Features and Functions of Legal Language:

• In legal language uses archaic and rarely used words and expressions. For Example: there is enactment clause found at beginning of any law passed by Westminster.[4]
• Binomials and Trinomials (also known as ‘strings’) are particulary common in the language of contract and wills, e.g., “… the terms and conditions set forth in this agreement …”.
• Formulaic Expression, in general sense are used as, e.g., “Do you swear to tell the truth, the whole truth, and nothing but the truth?”
• Majorly use of French and Latin word is the essential feature of legal language, it gives beauty and different accent to the language like, de facto, de jure, ratio decidendi, obiter dicta, etc.
• There is a lot repetition in legal texts as such in legal language pronouns are sporadically, g., Powers of vice-chair 11. Where (a) a member of a Board is appointed to be vice-chair either by the Assembly or under regulation 10, and (b) the chair of the Board has died or has ceased to hold office, or is unable to perform the duties of chair owing to illness, absence from England and Wales or any other cause, the vice-chair shall act as chair until a new chair is appointed or the existing chair resumes the duties of chair, as the case may be; and references to the chair in Schedule 3 shall, so long as there is no chair able to perform the duties of chair, be taken to include references to the vice-chair.[5]
• In Legal language there are long complex sentences with intricate coordination and subordination. UN resolutions are generally made up of one long sentence, e.g., Resolution 2038 (2012).
• Syntactic discontinuities are persistent in legal language. They barge the natural flow of sentence by inserting information, e.g., Developed country Members shall, if requested by other Members, provide copies of the documents or, in case of voluminous documents, summaries of the documents covered by a specific notification in English, French or Spanish. This are some italics styles which are denoting the sentences which barge natural flow.[6]
• The passive is very common in legal, especially where it is not necessary to specify the agent, e.g., The acronym EURES shall be used exclusively for activities within EURES. It shall be illustrated by a standard logo, defined by a graphic design scheme. The logo shall be registered as a Community trade mark at the Office for Harmonisation in the Internal Market (OHIM). It may be used by the EURES members and partners.[7]
• The language of the law tends to use a highly formal, impersonal style, always in the third person, e.g., When a prisoner is found guilty of an infraction of the laws of this state or the rules of the department, gain-time may be forfeited according to law.
• There are so many list and they are long in nature they can be typically found in definition provisions, e.g., “Person” means an individual, corporation, limited liability company, partnership (limited, general or otherwise), association, trust, business trust, unincorporated organization, or other entity or group.
• Nominalilzationit is the process by which a grammatical expression (very often a verb phrase) is turned into a noun phrase, e.g. to apply = to make an application. It is a common feature of formal language in general. For example, Art. 38 (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General[8], …No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law ….[9]

Conclusion:

Finally, students need to develop a heightened respect for linguistic precision. Because the meaning of words is so crucial to the craft of lawyering, students will be expected to use words carefully and precisely. The legal meanings of words constitute the common language of lawyers and judges, who rely on this language to communicate efficiently and effectively.

[1]Mason E., The House of Godwine: The History of a Dynasty, (London, 2004), p.110

[2]http://www.languageandlaw.org/TEXTS/STATS/PLEADING.HTM

[3]Peter Tiersma, The Nature of Legal Language, http://www.languageandlaw.org/NATURE.HTM.

[4] ‘Be it enacted by the Queen’s most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:’

[5] Section II of the Local Health Boards (Constitution, Membership, and Procedures) (Wales) (Regulations 2003).

[6]The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), (Notification Procedure) no. 8.

[7]Amendment No. 2To Amended And Restated CreditAgreement.

[8] Constitution Act, 1982, Part V, Procedure For Amending The Constitution of Canada,

[9] International Covenant on Civil and Political Rights.