Language and Law: The Incomprehensible Lawyer [Part II]

Bar & Bench May 12 2018

Jyoti Sagar

The first part of this article described the peculiarities of the language of the law. In this concluding part, we cover the fascinating history of the lawyers’ language, why the legal profession persists with its language even though the English language for the rest of the world has changed from the middle ages and evolved, and the green shoots of change.

The characteristics and manner of composition of the language of the law are founded in antiquity. It is also an intended (or unintended) result of developments in political, societal, and technological spheres. Here are some examples:

  • Over some 700 years, the language of the law developed through waning and waxing of different languages and influences – Celtic, Norman, Latin, and French.  Latin was the required language of court proceedings a long time back as was French for a period. During that time, statutes were also in Latin and French. English was still developing, evolving and absorbing words from many languages. Latin and later French were more precise during that time. Latin and French were languages of the elites and lawyers were part of the elites.
  • Latin and French remained more prominent languages in the legal world despite legislation to enforce English as the language of the law. The earliest legislation  being “Statute of Pleadings” in 1356 and later in 1650 “Act for turning the Books of the Law, and all Process and Proceedings in Courts of Justice into English”. Literacy was catching up in England, beginning from the 13th century, with common people learning English language. But the legal profession continued to be the preserve of elites ensuring that despite attempts to enforce use of English, in practice Latin and French remained as languages of the law to maintain that exclusivity. “English” as the language of the law came in to prominence from the 18th century. But Latin and French words survived then and continue to survive now in the language of the law though equivalent words of daily usage English are available.
  • “Word doubling” was a consequence of mixing of languages. “English” with its law vocabulary as used by lawyers had continued to evolve with borrowing of many law words from Latin, OE, ME, Old French, Latin and French. It became a common practice to together use words from different languages carrying the same meaning – for example, null and void (Latin : Old French); will and testament (Old English: Latin); fit and proper (Old English: French); save and except (French : Latin). This was done generally under the belief that it would add clarity in a scenario of uncertainty as to acceptance of a word not in use earlier. At other times, it was to add emphasis. The habit extended to using two words - from the same origin - carrying the same meaning.  For example, the following pairs from Old English: have and hold; from and after; let or hindrance; each and every. This habit survives until today adding verbosity to our writing.
  • Long sentences – interesting history of why these exist in language of the law. Before there were means of mechanical reproduction (printing press) all communication was oral. Legislation was recorded in hand on parchments which could be accessed when needed. Greek and Latin writings on parchments carried signs (usually a dot in the middle of a line) which signaled to the reader (who would be reading aloud) that it was time to take a breath! Punctuation was merely an aid to oral delivery. Punctuation usage in rudimentary form existed in Old English.
  • It was only in early 15th century that in Chancery courts “paper” replaced oral pleadings. As all of this was going on, the punctuation conventions with their grammatical effect had not fully developed generally for English language.
  • The printing press arrived in latter part of the 15th Printed copies of laws and law reports became more common and with that punctuation signs became a bit of a problem. Different printers would end up using different signs or position the signs at different places. For example, statute printed by one printer may have the word “traders,--” while the other printed it as “traders’—“, (in the first case “,” appears as a “comma” and in the other case with the punctuation sign moving up “ ’ ” it became an “apostrophe”) conveying two very different meanings.
  • The argument went that the printer’s action could not change the law. It was in this context coupled with the long tradition that punctuation was for oral effect and not for grammatical sense, that at a certain time it became conventional to ignore punctuation for interpretation of statutes and not treat it as part of the statute.[1]
  • The practical result for later generation of lawyers and legal writers was an indifference to punctuation. That led to the long sentence tradition. “One sentence” form documents – entire sale deeds or other documents composed as one long sentence – came in to vogue. A sentence became unit of truth and all had to be stated in one sentence to give proper legal meaning!
  • Over centuries, English as a language evolved with adoption of uniform punctuation signs which had well understood effects on the meaning. With the advent of paper pleadings with copies for the readers being provided, documents ceased to be read aloud in a court room. Documents in hard copy came to be read by people in silence. We moved on computer screens. With complexity of transactions, we have documents which are hundreds of pages long and not short form deeds.
  • Research shows that long unbroken sentences are difficult to grasp and understand. But we lawyers have continued with the idea of the long sentence – though the context disappeared a long time back. Here is an example of a form document from a well-known form book in India:[2]

“Disclaimer by a Member of a Joint Family in respect of the Separate Property of a Member

To ALL WHOM THIS MAY CONCERN

KNOW ALL MEN BY THIS DEED poll I, AB, son of etc ............. declare as follows: WHEREAS I, the said AB along with CD son of etc., both residing at ............... constitute a Hindu undivided family joint in food, worship and estate AND WHEREAS by a conveyance dated ............ executed by one EF in favour of the said CD it was witnessed that the said CD purchased the property fully mentioned and described in the Schedule thereto with his own moneys and without any aid or contribution from the said family or its estate AND WHEREAS in the circumstances aforesaid the said property belongs absolutely to the said CD as his separate property but nevertheless it is necessary and expedient to have a disclaimer from me in terms hereunder contained to avoid future disputes and differences in relation thereto, NOW, KNOW YE ALL BY THIS DECLARATION I, the said AB, declare and confirm the said property as the personal property of CD and disclaim and release all my supposed right, title and interest claim in the said property and every part thereof absolutely and forever.

The  Schedule above referred  to

IN WITNESS WHEREOF etc.

Signed, sealed and delivered”

Main body consists of one sentence with 185 words.

There was a time in the 18th century when lawyers and the clerks were paid by the length of the documentation.[3] Bloating or padding of documents started then. But it goes on today with verbosity and inflated documents – even though lawyers do not get paid by the length of documentation.

Why do we persist?

The language, conventions, and forms which developed in a different context hundreds of years ago, remain firmly embedded in the system. Why?

Most of us lawyers are not fully aware of the history of the “language of the law”.  We use it because it is there. That is how it has been. The suitability and relevance of the vocabulary of “language of the law” in the contemporary world is not a subject of any serious discussion in the profession.

Language and writing skills are generally not part of law school curriculum. This, despite the fact that lawyers spend most of their time in articulation. Most lawyers have never read or consulted any text book on legal writing. Not many can even give the name of any authoritative text or author on the subject. Lawyers “pick up” the language of the law from older generation and pass it on to the younger generation – and that cycle goes on.

The development of English language – adopted and understood by people outside of the legal profession – seems to have been ignored by the profession in this cycle of generational handover.

Critics within the profession (rare!) and outside the profession (for a thousand years!) remind us lawyers that our job forever has been to communicate law and legal concepts to the layperson who needs to understand her rights and obligations.

They remind us that centuries have passed, that the common speech English language has developed over time with good substitutes for old world words, that the social and economic developments have forever changed our audience, that now the law engages with the lives of common persons and has ceased to be a domain of the elites.

We ignore the criticism. We ignore the needs of our audience. We become defensive. We have, we believe, good reasons for persisting with “our” language of the law. If the world has changed in the meanwhile, that be damned. It is not our problem.

Precision and Precedent

We lawyers argue that language of the law is “precise” – that it is like a technical language which has words specific to legal concepts. It would be “unprofessional” if we did not use the language “our” way. We believe that lawyers cannot take risk of using words and expressions which have not been used in the past because these new words may not carry the “precise” and “well established” meaning that the language of the law has been familiar with for a long time.

Generations accept this rationale without question and are afraid of any change. Safer to reproduce the words, style, and tone that have stood the test of time as being “precise” and well established by precedent.

The truth is that other than the “terms of the art”, there is not much precision in the language of the law. Many of the words that we now identify as law words never were precise. Lawyers started using them because they were the common currency of people able to write, not because they were either precise or distinctive. The fashion in words changed. The styles changed. But the language of the law remained static. In surviving, these words have not become what they never were - precise. These are the junk antiques of legal vocabulary. [4]

Most words of the language of law are not precise like numbers or scientific names (for example, botanical or zoological) which mean the same thing to everyone who uses them. “There is more precedent for the use of law words than there is for law itself. That's the trouble with precedent to establish meaning. There is too much of it. And it keeps changing.”[5]

Mellinkoff is dead right.  Go to a law library and look at the multi-volume dictionaries of “Words and Phrases Legally Defined” and see for yourself how “precise” really are the words that we believe are “precise”. Lawyers are conservative, cautious, and often do what was done before solely because it was done before. Lawyers became victims of habit as far as language of the law is concerned. “Lawyers use strings of synonyms out of habit.”[6]. We suffer from lethargy.

Sociological Reasons:

There may be a stronger sociological reason. We function as a profession and to make ourselves special and distinctive, we claim to have our own rituals, customs, and practices. We believe that “our” language of law is special to us. Jeremy Bentham complained many hundred years back that lawyers do this deliberately. Stuart Auerbach, who once covered legal affairs at the Washington Post, wondered if the lawyers' language serves "as a secret handshake in a fraternity, letting others know you are one of the tribe."

Or as Professor Lawrence M. Friedman of Stanford Law School said, a "specialized vocabulary reinforces the group feelings of members.... Legal style and the vocabulary of lawyers ... are indispensable for the cohesiveness and the prestige of the profession.

Technological Reasons

Technological developments may have played a perverse role as far as development of “language of the law” is concerned. Verbosity and lack of desire to improve or change or question language in use could be attributed also to use of computers, scanners and photocopiers and other equipment which enables creation (or “assembling” these days) of large documents through copy paste.

The opportunity to draft a document ground up with line by line composition is unheard of these days. It is so much easier to pick up a form document or a precedent and simply use it with no need (or desire) to relook at the language with intent to improve readability. The judgments too have become lengthy with reproduction of written arguments filed by all parties – all being made possible by submission of soft copies on storage media.

The Plain Language Movement

Language of the law has been criticized for long. However, for a long time within the profession many great writers have promoted use of plain-language – be it for legislation, pleadings and other legal documents.

Thomas Jefferson, two centuries and more ago, suggested to a law student to acquire “…..the most valuable of all talent, that of never using two words where one will do.” George Coode, the leading authority on legislative drafting said in 1842 that the most legal documents can be written in "the common popular structure of plain English."[7]

Over half century later, JG Mackay said “Latin words and, where possible without sacrificing accuracy, technical phrases should be avoided, the word best adapted to express a thought in ordinary composition will generally be found to be the best that can be used…” and good drafting says in the plainest language, with the simplest, fewest, and fittest words, precisely what it means."[8]

David Mellinkoff, in 1982, wrote “Most law can be expressed in ordinary English. Most of it is. But by the time lawyers get through mushing up ordinary English, very few English speakers and only some lawyers can recognize it. They throw in words that were headaches before the age of steam. They try to get by, stuffing law into sentences that aren't built to take the load. Instead of rejecting the rubbish and keeping the good in the language of the law, they swallow it whole. And end up with lawsick”.[9]

Lord Denning, one of the finest judges of the 20th century said, “Don’t use long words. Unless your hearers or readers understand them. You may understand them yourself, but they may not. If your hearer says to himself, ‘That is a word I’ve never heard before. What does it mean?’, you have failed. If your reader says, ‘I must look it up in the dictionary’, again you have failed. You have not conveyed your meaning to him. A lot of speakers and writers do not appreciate this simple truth. They use long words so as to ‘show off’.[10]

Here is a great example of Lord Denning’s plain English writing style:

Value added tax is a new thing. It was introduced in England so as to bring us in to accord with the taxing system in the common market. It was imposed by the Finance Act 1972, which contains all the principles relating to it. It is imposed not only on goods, but also on services. Everything which is not a supply of goods is a supply of services: see section 5(8). It is charged as a percentage (25 per cent or 10 per cent or 8 per cent) of the price or the charge and is added to it: and the trader is accountable to the revenue for it. The statute provides, however, for some goods and services to be “zero‐rated”, that is, to be charged nothing: see section 12; and for others to be “exempt” from the charge altogether: see section 13. We are here concerned with a claim that a particular supply of services should be zero‐rated. It arises out of the special arrangement for student travel. In 1973 the British Railways Board found that many students were travelling by coach rather than by rail: because the coaches were cheaper – indeed almost half the fares on the railway. In order to meet this competition the board in 1974 promoted a scheme by which a student should pay £1∙50 and in return get a right to travel half‐fare for the next six months. The question is whether value added tax is chargeable on the £1∙50, or not?[11]

Denning shows that complex legal concepts and issues can be written in everyday English without having to use Latin, long and difficult words, long sentences, jargon and legalese.

Since the 1970s, many countries - notably UK, Canada, Australia, New Zealand, Hong Kong, and the United States have moved towards plain language. Statutes written in plain language have not led to problems that skeptics warned. In fact, an empirical study would probably confirm precisely the opposite.

The legal profession, including the Bar Associations in many English speaking jurisdictions, started promoting use of plain language years back. In the US, for example, the State Bar of Michigan formed such a committee in 1979, and the State Bar of Texas formed one in 1990; other state bar associations followed. In Australia, the Centre for Plain Legal Language has been promoting the use of plain English in legislation and otherwise.

Similarly, in 1992 the Law Society of New South Wales in Australia, issued a “plainer” form of contract for sale of land. In the early 1990s, the Real Estate Forms Committee of the State Bar of Texas issued plain-language forms for deeds, deeds of trust, leases, and other forms.

There are several instances where official bodies and others have changed and are changing standard forms. For example, the English Law Society's 1990 and 1992 editions of the Standard Conditions of  Sale use direct and simple language to the extent possible, sentences  that are  relatively  short  and free of legalese. Leading law firms in London have for some years promoted the use of plain English.

The Plain English Campaign has been promoting use of plain English with some success. Clarity is an international organization which promotes plain language of the law.

Where we stand in India

As a common law jurisdiction, we received a package – which included the language of the law. In our contentious and non-contentious practice, we adopted and continue to use what we “picked up”. English is not the first language for a vast majority of the legal profession in India. The standard of language in the legal profession is not great as is.

There is no discussion or debate on the language of the law, its relevance, and the need to change and improve. There is little awareness of use of plain English. There have been a few efforts. For example, Vidhi’s Manual on Plain Language Legislative Drafting. Curriculum Development Committee, constituted in 2009 by the Bar Council of India, in its draft report of February 2010, advocated the inclusion of “Legal English” as a subject in law school curriculum. However, that did not go past the draft stage.

More recently, Society of Indian Law Firms (SILF) has taken the initiative to promote use of plain English. SILF is in the process of undertaking awareness and training campaigns to familiarize its members with the concepts of plain English.

The members of SILF - including the top firms of the country - have shown interest in taking this project forward. SILF proposes to organize and conduct training sessions for its member firms on tips and techniques for use of plain English. That could kickstart the movement by building critical mass and scale to sustain a culture of using plain English.

And a modest beginning could be to follow just a few simple rules.

Avoid: Latin and jargon (whereas, heretofore, notwithstanding, provisos); superfluous and difficult words; and long sentences.

Adopt: use of “active” voice rather than “passive voice”; a sentence construction where the subject, the verb, and the object are kept as close to each other as possible.

SILF also promotes the idea of inclusion of Language and Writing Skills instruction as a credits program in law school curriculum in India. Let the new entrants to the profession be better prepared and equipped in this area than the earlier generations were. SILF also proposes to make efforts for introduction of plain English in legislative process – both primary and delegated legislation – by raising awareness and collaborating with relevant agencies of the government and other concerned organizations.

And about time that we start this journey.

Jyoti Sagar is the Chairman and Founder of J Sagar Associates, and the Managing Partner of K&S Partners. An abridged version of this article was first published in The Economic Times on March 3, 2018.

[1] Maxwell, On the Interpretation of Statutes

[2] DeSouza’s Coveyancing 13th Edition Page 1080

[3] 9 Holdsworth, A history of English Law

[4] David Mellinkoff

[5] David Mellinkoff

[6] Jacques Barzun

[7] George Coode,  On Legislative Expression

[8] Introduction to an Essay on Art of Legal Composition Commonly Called Drafting

[9] Legal Writing :  Sense and Nonsense

[10] Essay on Plain English, The Closing Chapter, 1983

[11] British Railways Board v. Customs & Excise Commissioners, 588 Weekly Law Reports May 27, 1977

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