6

LEGAL LANGUAGE Examining Language in Legal Institutions

Legal analysis or planning inevitably involves working with strange words (like “tort” and “pleading”) plus common words used in new ways with unfamiliar meanings (such as “civil” and “damages”). A humorous story is sometimes told in legal circles about parties who are faced with the process of “execution,” which in law means seizing someone’s property to settle a debt they owe. But such terminology is not much of a joke to non-lawyers. The challenge of comprehending legal expression only increases when the time comes to do some legal research. In this chapter we look at legal language as an obstacle to understanding law from a critical legal studies perspective, and to the pursuit of justice for people who are not legal professionals.

Many have described law as having its own language, sometimes called legalese, and others have considered law to be a dialect within society.1 As I discuss below, the language of the law is probably better described as a “creole,” a distinct combination of other languages with its own life and development.

It is not only unique words, phrases, and uncommon meanings that distinguish legal language from everyday conversation or writing. As I discussed previously, the legal system claims to be at least semi-autonomous in relation to other social systems. One way the legal system promotes its autonomy and affirms its self-sufficiency is to require people making use of the law to adopt a unique terminology for expressing concepts, ideas, perspectives, and assumptions. Being able to communicate using this special language is a criterion for credible expression of legal ideas and arguments. This “policing” of communication results in limiting references and links to systems of thought outside law, and encourages development of a distinct self-referential context of communication for legal purposes. Legal communication thus occurs within a dense web of interrelated legal meanings and ideas which those outside the legal system find difficult to grasp.

LEGAL DISCOURSE

Legal discourse refers to the flow of communication with unique characteristics that occurs among people who operate the legal system. One feature of such discourse is the use of legal language, but those who study legal discourse look beyond the mere form of speech or writing to examine its effects, both within the legal system and on those outside it—that is, on society as a whole. This section examines how legal language is used to accomplish the purposes of lawyers, judges, and other “insiders” who are part of the legal system.2

First, it is important to note that language is both the tool and the product of the legal system. Words are its input and output. Certainly, physical actions may be taken as a consequence of legal decisions (imprisonment, foreclosure and sale of property, etc.) but they are justified and respected because of the language of judgments, not the physical power of judges. The power of the law lies in words. John M. Conley and William M. O’Barr put it this way, “language is not merely the vehicle through which legal power operates: in many vital respects, language is legal power. The abstraction we call power is at once the cause and effect of countless linguistic interactions taking place every day at every level of the legal system.”

For this reason, one of the primary purposes of legal discourse is to maintain its own legitimacy and respect as a valued discourse in society. In the previous chapter I noted that the steps taken in legal processes are intended to fulfill public expectations of procedural justice. In the same way, legal discourse is expected to embody justice in words. The phrase “just words” can thus be read ambiguously to mean that legal discourse is merely words, but is also expected to produce words that are just—the language of justice.

What are the characteristics of legal discourse that set it off from ordinary speech and writing? One key feature is that the discourse of law presents concepts and ideas such as authority and justice as if they exist independently of law, as real forces in the world similar to gravity and magnetism. Legal discourse describes itself as searching for, finding, and giving effect to such forces. Another way of describing this activity is to say that it involves reifying (creating objects out of) concepts. Critics label these effects as word games played either by deluded or deceptive lawyers and judges. Either the members of the legal system just do not realize that they are actually creating what they claim to be searching for, or they do know, and use legal discourse to reinforce their own power in society. We might say that legal discourse is therefore about imaginary objects, or more suspiciously, used to mystify outsiders. Thus, concepts such as justice should be considered figments of the imagination or political slogans (or both). Perhaps legal discourse reifies justice to mask its insubstantiality in an effort to reassure the public.

Another feature of legal discourse is what Peter Goodrich calls its “unity, coherence and univocality.”3 According to orthodox legal theory, all the law (at least for a specific territorial jurisdiction) forms a logical whole that is internally consistent, coherent, and self-sufficient. In other words, all the knowledge required to render justice is contained in the law and expressed by legal discourse. For Goodrich, this is a false claim. He argues that legal discourse is inescapably rhetorical (intended to persuade)—it is a discourse that attempts to convince everyone the results of legal decisions are inevitable, and that mere arguments can be transformed by the magical words of the law into legal certainties.

A third characteristic of legal discourse scholars have noted is its “poetic” quality. Here poetic is not used in the sense of being imaginatively appealing or playfully provocative, but dense and self-referential, like the self-contained world expressed by a good poem. One legal term is played off against another in a kind of dance of meaning that is familiar to the initiated but hard to follow by laypersons. Thus, legal discourse is embedded in multiple contexts and layers of significance that allows it to be read or spoken with a variety of meanings, like multiple interpretations of a poem. Although legal discourse is used to govern the “real world” it actually creates its own world of meaning in a way similar to creative writing.

Critics have identified adverse consequences of these features of legal discourse. According to William E. Conklin, the pain experienced by people who suffer legal wrongs is reconstituted in narratives that make sense in law, but do not truly reflect the feelings and desires of those it describes. He suggests that “the secondary legal discourse, as a result, strangely produces a suffering after one has allegedly been harmed.”4 Others have observed that the unique assumptions and conventions of legal discourse can disadvantage members of the public who do not communicate in the same way. When called upon to answer in court, members of some cultures may not respond in the way legal discourse considers credible, perhaps with hesitation or silence that is misinterpreted. Legal discourse can embody cultural or gendered prejudices that operate against the fair treatment of minorities and women within the legal system. Finally, we should also question whether the supposedly universal discourse of Western competition through rational debate in the adversarial system is truly adaptable to other cultural settings.

Sociolinguists who study law have discovered adverse effects of legal discourse in a variety of settings. Conley and O’Barr discuss research that shows how women are “re-victimized” by the language and procedures typically found in rape trials; how people may be manipulated through the discourse of mediators focused on settlement; and how legal discourse reflects predominantly male patterns of speech and behaviour.5

Many people also defend legal discourse. They believe that because doing justice is one of humanity’s highest aspirations, a unique legal discourse is to be expected, and is perhaps inevitable. Just words (words embodying justice) should be somewhat different than ordinary language, much as poetry differs from prose. According to this view, justice is such a difficult and important concept that it warrants creating a special discourse with which to pursue it.

This discussion of legal discourse raises again the question of the nature of the relationship between law, the legal system, and the society they serve. Critical legal studies scholars working alongside those in other disciplines, such as linguistics and communication studies investigate whether legal discourse is of sufficient enough value in aiding the smooth operation of the legal system to outweigh its disadvantages to the public.

LEGAL VOCABULARY

Legal language has a unique vocabulary that makes it different it from everyday speech and writing. This section explores legal vocabulary and its uniqueness.

One of the frequent criticisms of legal language is that it is often incomprehensible to the ordinary citizen because of its vocabulary. In one respect, however, legal language today may be an improvement on everyday language. This is in the area of gender neutrality. In the latter part of the twentieth century, feminists drew attention to the gendered vocabulary of the law, such as using “he” to mean both genders. The traditional approach was to legally define such masculine terms to “include” the female gender. Critics pointed out that “inclusion” of subordinated women did not treat the sexes equally. Law, they said, should practice what it preached and embody gender equality in its language since it declared parity to be a human right. In response to such criticism, lawyers and judges were encouraged and educated to change their vocabulary. It appears that these efforts have been successful according to a recent study of decisions in United States courts. Judith D. Fischer states, “professionals in many fields recognize that gender-biased language makes women invisible and constructs an inaccurate world. While some commentators express concerns that gender-neutral language will be awkward or annoying, language experts identify graceful ways to surmount these obstacles. The use of gender-neutral language has increased in many fields, including the legal profession.”6

Some of the “graceful ways” to employ gender-neutral writing that Fischer identifies are: using plurals so that “they” (instead of “he”) is appropriate; avoiding the need for pronouns (“a person who”); and using paired pronouns (“her or his”). Finally, she makes the point that judges today have largely come to expect gender-neutral language, so people should strive to use it when presenting arguments to them. Using gender-neutral vocabulary is one aspect of legal language today that should be emulated in ordinary writing.

Other aspects of legal vocabulary are unique to the history and functions of legal language. One result of the history of legal language is the use of many foreign words that often do not retain the same meaning as in their original language. This occurs also in ordinary speech and writing because English has frequently incorporated words from other languages. Just think of “percent,” “quorum,” and “post mortem,” from Latin, and “RSVP,” “allege,” and “entrée” from French. But legal language uses foreign terms that are not found often, if at all, outside legal discourse.

Modern legal language is actually based on three languages: Old English (and other Anglo-Saxon languages), Latin, and French. This heritage reflects the history of English law, on which common law legal systems are based. Until the Norman conquest of England in 1066, laws were expressed in the local Anglo-Saxon dialects. The Normans brought with them one language of the continent, a dialect of French. As lawmakers, they began writing legislation in their own language, which was in turn adopted by lawyers and adapted to their own purposes. This was the beginning of what is known as Law French.

Law French quickly became less like French and more like legalese. French words were pronounced as if they were English, and given legal meanings not found in ordinary French. Some Law French words were also incorporated into ordinary English language, although many still have unique alternative meanings in law. Some examples of such words with a French origin are: attorney (person authorized to act for another or, in the United States, a lawyer), bailiff (officer of the court engaged in enforcement), estate (property left at death or type of landholding), mortgage (creditor’s claim to land of the debtor) and venue (place of trial of a legal case). Other Law French words are only found in legal discourse: cestui que trust (beneficiary of a trust), en banc (group of judges hearing a case together), estoppel (being prevented from denying something), and voir dire (questioning someone before proceeding with a trial). One famous Law French word still used is Oyez (let us hear). This call is announced three times at the beginning of sittings of the United States Supreme Court.

The final language that has contributed words to the legal vocabulary is Latin. As the language of the church in the Middle Ages, Latin was considered authoritative and was adopted by the courts as their language of record. Documents filed in court were in Latin, resulting in standard forms of pleadings in legal proceedings. If a claim could not be fitted into Latin, then it could not be pursued. The effect of Latin forms has continued to the present day. Some legal proceedings still go by Latin names: habeas corpus (deliver up the person) and certiorari (certify the record of a hearing for review). In 1992, the High Court of Australia had to struggle with the common law concept of terra nullius (nobody’s land) when considering whether it was possible to recognize the existence of Aboriginal title.7

Here are some other important Latin terms still forming part of legal language: ab initio (from the beginning), ex parte (without notice), mandamus (required to act), mens rea (intent to do something), and pro se (acting without a lawyer). The terms pro bono, or pro bono publico (for the public good) have also entered ordinary language as meaning a voluntary unpaid act. Lawyers are frequently encouraged to take cases pro bono where the client cannot afford to pay.

Efforts are now being made to eliminate some unnecessary Law French and Latin terms from the legal vocabulary. The English courts have recently adopted new procedural rules in which the following substitutions were made: claimant (instead of plaintiff), statement of case (for pleadings), and disclosure (replacing discovery).

Change in legal vocabulary is possible. It is largely through the efforts of the plain language movement that such change has been brought about, and that is the subject of the next section.

PLAIN LEGAL LANGUAGE

The plain language movement (sometimes called plain English) has its roots in critiques of political and bureaucratic language in the mid-twentieth century. In 1945, Rudolf Flesch described official government language as officialese or gobbledygook.8 Flesch went on to devise a test of the understandability of writing based on measures of word and sentence length. At about the same time, the novelist George Orwell (the author of 1984) criticized political language in reaction to the distortions and excesses of war propaganda. The rules of clear writing that Orwell proposed remain relevant today:

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
2. Never use a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
6. Break any of these rules sooner than say anything outright barbarous.9

Ernest Gowers took up the challenge of reforming official language, and in 1948 produced a guide to plain writing for the English government, and the latest edition continues to be used.10 It was not until the 1970s, however, that the need for plain language in legal speech and writing was widely recognized. In the United States, legislation was passed requiring plain language in some consumer contracts, and the federal government adopted plain language objectives. International organizations dedicated to promoting the use of plain language such as Clarity International were formed, and today there is an extensive literature on plain legal language including guides and critiques.

It is not surprising that some lawyers and judges have opposed the move to plain legal language. The principal counter-arguments have been that plain language is not as precise as traditional legal language, and that using new words may create doubt about whether long-accepted meanings based on traditional terminology are still valid. The supporters of plain language reject these objections. They counter that old forms of documents and traditional wording have their faults and should not be perpetuated as if they were perfect; that plain language can be just as precise, and is not intended to change the meaning and intent of the law; and that plain language is more efficient because meanings are clear at first glance.

Legislation is often the target of criticism for its lack of plain language. Traditions of legislative drafting (writing legislation) go back to the nineteenth century and follow patterns that are not found today in ordinary speech or documents. For instance, it is a common practice to state all the conditions related to a required or prohibited act before actually indicating what must be done or avoided. Consider this hypothetical rule of the road: “When entering an intersection which is not controlled by traffic signals or signs, and where the intersecting roads are both highways with the same number of lanes, the driver of a vehicle, except an emergency vehicle with its lights flashing, shall yield the right of way to vehicles on their right.” This type of composition leaves readers hanging: they have to finish reading the entire section before learning what the law requires. In very long rules of this type, it is sometimes easy to lose sight of all the conditions and exceptions, thus interfering with understanding the section as a whole. In defence of legislative drafters, it has been recognized that they face a difficult question: what is the audience for a statute? Is it lawyers, judges, the general public, or just those members of the public who will be directly affected by the law? The target audience will probably vary depending on the type of legislation in question, perhaps requiring different styles of drafting to meet the needs of the expected audience in each case.

Using plain language is also recommended in legal speech. There are many instances where the public is orally addressed for legal purposes by judges, lawyers, and police. Unless what is said is correctly understood, justice may not be done. Where there is a criminal trial with a jury, the judge gives instructions to the jury about the law and their duty to consider all the evidence. If this oral presentation is not clearly understood, the verdict may be faulty. Police give cautions to those they arrest concerning their right to remain silent under the law and also advise them of their rights to hire a lawyer. If these statements are not well understood, an arrested person may give up their rights in error. These are situations where the liberty of a person may depend upon the clearness or incomprehensibility of oral legal language.

Richard Darville and Gayla Reid provide some plain language guidelines:

• Say who does what to whom (avoid passive constructions like “the form must be filed … “)
• Write sentences that flow forward (avoid interrupting sentences with too many subclauses)
• Replace “difficult” words with familiar ones (use “get” instead of “acquire”; “end” instead of “expiry”)
• Explain technical words and terms of art (ordinary words that have a special legal meaning)11

Here are some examples Darville and Reid give of terms of art and their plain language counterparts: action (legal proceeding); the Bar (lawyers); the Bench (judges); damages (compensation); find a fact or hold a correct interpretation (decide something, when done by a judge).12

Is it possible, using plain language, to make all legal writing and speech perfectly understandable to the average member of the public? There are arguments for and against this proposition. Perhaps legal language is so embedded in the thinking, writing, and speaking of professionals within the legal system that it must inevitably remain somewhat foreign and incomprehensible to average members of the public. Wider-spread legal literacy may help to counteract this tendency by making the public more familiar with legal language which will hopefully then become more understandable. It should not be necessary to become a lawyer in order to be able to work effectively with legal language.

Plain legal language is also important in contracts, where the involved parties need to know their rights and obligations under the agreement. Plain language critics have criticized many large businesses such as banks and insurance companies for using contracts with wording that is complex, archaic, and sometimes printed so small as to be almost illegible—the infamous “fine print.” One response has been government action either to prescribe clearer wording by law that businesses must use in their documents or to require that some contracts be reviewed for clarity before being approved for use. Today, many companies make it part of their marketing strategy to proclaim that their documents are in plain language and thus consumer-friendly.

A noted Canadian scholar of legislation and legal interpretation, Ruth Sullivan, has considered whether laws can be made understandable for all. In her view, no single approach to legislative drafting will be satisfactory. Rather, “a commitment to direct and effective communication entails constant experiment and change in the service of maximum personalization.”13 “Personalization” for Sullivan means that the most vulnerable members of the public affected by statutes (who may not be able to afford a lawyer to interpret it for them) should be helped by the wording of the text to understand how the law affects them. Improved legal literacy among the public would also help to achieve this worthy goal. We will examine again the limits of using plain language in law in Chapter 8 when considering legal interpretation.

LANGUAGE RIGHTS

Most people think it is important to be able to read the law, and to be allowed to speak and write in legal proceedings in a language they feel comfortable with. If they are unable to do this, a legal system may lose legitimacy in their eyes. For this reason, language rights are part of the law in many countries, particularly those where two or more languages are spoken by large numbers of citizens. Canada is a prime example. Language rights are included in several sections of the Charter of Rights and Freedoms. Section 16(1) states that Canada has two official languages, English and French, and Section 19(1) states that both languages may be used in all federally created courts.. This protection applies to provincial courts, with judges appointed in this way. Section 14 of the Charter gives the right to have an interpreter to anyone who does not understand the language of legal proceedings. According to section 18, statutes passed by Parliament must be published in the two official languages, and both versions are equally authoritative. Constitutionally protected language rights can have real effect, as shown by the decision of the Supreme Court of Canada in the case Re. Manitoba Language Rights.14 The court decided that many provincial statutes were invalid because they were not published in French, but allowed the government time to have them translated, and thus kept on the books.

Some groups of Canadians think further language rights should be established. In 2009, the government of the Territory of Nunavut passed a law giving greater recognition to the language of the Inuit people. Language groups in other countries also seek greater legal rights. For instance, Scotland has secured the right for its ministers to interact with the European Union in Scots Gaelic.

Writing legislation so that it is easily understood is difficult enough when using one language, but it is even more challenging with two because both languages may not have corresponding words for some legal concepts. The French language, for instance, has been used in the Civil Code of France and Québec, but this system has concepts that are not duplicated in the common law. And the converse is also true for common law concepts normally expressed in English that are not found in the legal language of civil code systems. The problem is made even more difficult in Canada by the requirement that both language versions are considered equally authoritative; the meaning in one language does not prevail over a different meaning in the other. How can you express the same meaning in two languages with divergent concepts? Roderick A. MacDonald calls this the problem of legal bilingualism. He emphasizes the point that mere translation is not enough. That approach, he suggests, leads to bureaucratic language being adopted merely because it is easy to translate, but which does not express the legal meaning accurately. MacDonald advocates full bilingualism in legal practice: “Legal bilingualism would ultimately require bilingualism in all its practitioners. Rather than encouraging or even allowing two distinct official legal cultures to form around two languages, the practice of legal bilingualism would draw on both languages to construct one official legal culture.”15

Much progress toward such a goal has been made in writing statutes in Canada. The current legislative drafting practice in the federal government includes paired, co-equal drafters in both official languages, use of jurilinguists (linguistic experts specialized in legal language), and drafting guidelines tailored to both languages.

Canada is not the only country that must deal with the problem of expressing law in two (or more) languages. For example, in Hong Kong the legal system is based on common law traditions reflecting its former status as a British domain. However, the law is now expressed in Mandarin, the language used in mainland China for current legislation in the civil code tradition. Legislative drafters in Hong Kong face many of the same challenges as their Canadian counterparts. It may, however, be an advantage to be required to look at law through the lenses of two languages. Making law in two languages can contribute to enriching its expression and stimulating its development in both languages.

CRITICAL PERSPECTIVES ON LEGAL LANGUAGE

Criticism of the way lawyers and judges speak and write is not new. In the nineteenth century, the English legal reformer Jeremy Bentham called it “law jargon,” “lawyers’ cant,” and “flash language.”16 Great improvements have been made since then. A document commonly used by courts in Alberta formerly read as follows:

This document appoints someone to record and report the evidence of a witness who is outside the territorial jurisdiction of the court, but the language and composition are archaic, and the meaning is not obvious at first reading. Under the revised Alberta Rules of Court that came into effect in 2010, this form of appointment now reads:

Another court form currently used in Alberta is quite straightforward in its language:

This document is a notice to someone (called a Third Party) who is being added to an existing legal action because the defendant has a related claim against them. This addition allows the court to deal with all aspects of a legal dispute involving several parties at one time.

However, even this recently revised document contains phrases that may not be easily understood, such as address for service (place to which notices may be sent), and demand for notice (request to be notified). If a defendant is someone who has been sued, why are they referred to as “defendant’s(s’)/third party plaintiff’s(s’)”? It seems legal language is still out of the ordinary. Why is it so resistant to change?

One way to answer this question is by taking into account the different audiences to which laws may be addressed. Is it intended to be read by a member of the public, a judge, or other official? In defence of legal language, it has been said that so long as the public understands it when necessary, then it can continue to take the form of legalese for lawyers and judges because it causes no problems for them. This apology for uncommon legal language holds less weight when you recall that in a modern democracy, law is supposed to represent the will of the people, and lawyers are expected to serve the public. Another response to the problem of legal language suggests that it does change, but much more slowly than society. According to this view, new social ideas and practices must first become sufficiently widespread and well accepted before becoming capable of influencing the concepts and language of law.

Some criticize the use of legalese because its primary purpose seems to be to maintain lawyers’ status as elite professionals. Perhaps it is a way of mystifying the law so that the public is forced to rely on lawyers to “translate” for them. This is a conspiracy theory about the problem of legal language. It is more probable that many of the traditions and practices of the legal system, such as legal education, act to socialize lawyers into a professional culture that simply takes for granted the existence of a unique language and discourse.

Let’s look more closely at how the language of lawyers and judges differs from ordinary speech and writing. David Mellinkoff lists some notable idiosyncrasies of legal language:

• use of common words with uncommon meanings (e.g., commission, meaning a formal appointment in writing)
• use of old, rare, and foreign words (e.g., viva voce, meaning orally in person)
• use of terms of art (e.g. examine, meaning question)
• use of formal words (e.g. We)
• use of words with flexible meanings (e.g., reasonably)
• use of words to be extremely precise (e.g., within thirty days)
• use of redundant words (e.g., appoint, direct, authorize, and [em] power)20

Mellinkoff describes the overall style of legal language as unclear, pompous, and dull! He also lists the common justifications given by lawyers for maintaining it: greater precision, and shorter, more intelligible, more durable documents. In conclusion, Mellinkoff suggests that these desirable goals do not always require the status quo to be retained. Improvement in legal language is possible without sacrificing its value within the legal system.

The worst excesses of legalese are found in documents that record transactions such as contracts, wills, and leases, according to Peter M. Tiersma. These texts are operative in the sense that they perform legal actions such as selling, leasing, or giving property on death. Tiersma suggests that because they must be taken seriously by the people who sign them, and stand up to challenges by the other party, these documents must be wordy and follow recognized forms. Nevertheless he acknowledges “it is highly ironic that documents with the most legalese (like contracts, wills, deeds, and statutes) are also most likely to be read by clients and directly affect their interests.”21

The most serious question that arises from the uniqueness of legal language is whether it is a case of “the law versus the people.”22 Is legal language a barrier that restricts the public from using and benefiting from law? The plain language movement seems to be narrowing the gap between ordinary and legal language, but so long as the legal system maintains its position of relative autonomy from the rest of society, legal discourse and legal language will remain a challenge for people seeking justice through law.

CHAPTER REVIEW

After reading this chapter you should be able to:

• list some characteristics of legal language that have been criticized
• describe some features of legal discourse
• explain the history of legal vocabulary
• explain the concept of plain legal language
• list some improvements in legal language that can make it more understandable
• give some examples of language rights