UNIVERSITY OF DAR ES SALAAM

SCHOOL OF LAW
(FORMERLY FACULTY OF LAW)
LEGAL DRAFTING
LW 304
INDIVIDUAL ASSIGNMENT

COURSE COORDINATOR: DR. TENGA

NAME: MWAKASISI DIANAJULIETH
REG NO: 2010-04-04407
QUESTION
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.
(Peter Tiersma, The Nature of Legal Language)
In reality, many or most of the commonly-mentioned characteristics of legalese are
not so much features of legal language per se as they are features of authoritative
legal texts.
(Peter Tiersma, The Creation, Structure and Interpretation of Legal Texts)
a) What are the elements of authoritative legal texts?
b) Are there any structural and inherent grounds, apart from mere pomposity and
protection of a trade monopoly, that justify the use of legalese in
authoritative legal texts?

a) A legal text is something very different from ordinary speech. This is especially
true of authoritative legal texts: those that create, modify, or terminate the rights and
obligations of individuals or institutions1. Authoritative legal texts are the texts that
are used in the legal practise to establish a certain rule or to establish a certain
ceremony in which parties in it are liable or bound by such document. They include
constitutions, contracts, deeds, orders, pleadings, statutes, wills.
It has the following elements that are not structural but rather capture the nature of it;
It is binding; the authoritative legal text is binding unto the parties under it to the
performance or non-performance of an act. For example a contract between two
parties will bind the parties under the contract to fulfil their duty under the contract.
It is perfomative, the authoritative legal text usually requires that a certain act shall
be performed by an individual under that text. This mainly influenced by the binding
nature of it thus making the parties perform.
It has authorship; the authoritative legal text has authorship. Authorship would
pertain to mean the act that it is written by someone, it has an identity of the
constructing party and so a document such as a will can tell one who exactly made
the will.
It is stereotypical in that it follows certain form in which it is written down and so all
the legal texts are understood and recognized through this stereotype for example
the statutes are recognized as to how they are written.
b) Legalese is said to be the formal and technical language for legal documents. It
was first used in 1914 for legal writing that is difficult for laymen to understand. The
1 Peter Tiersma, The Creation, Structure, and Interpretation of the Legal Text,
http://www.languageandlaw.org/LEGALTEXT.HTM

use of legalese is said to follow the pomposity of the profession where the lawyers
find it to be self-important and very special to use and at times it is used to protect
the secrets of the trade in order to ensure that the layman may not be able to
manipulate the system once it is known how the law applies and so legalese comes
into play. The other reasons may include;
Conservatism, the use of legalese makes the legal profession seem conservative as
to the customs that were adopted as the law began. It is historical and so old and the
use of the legalese ensures that the language used is conserved to what only
lawyers would require
Eventuality, the use of legalese follows eventuality where the language is used for a
certain purpose and place. The identification of the profession is one thing and the
use of the legalese for a certain purpose is another for example a lawyer in his daily
activities will use ordinary English but due to the drafting of legal documents or oral
submission in court then the use of legalese comes in.
Long-windedness of the profession, the legal profession requires a lot of clarity
especially when drafting legal documents in order to avoid ambiguity and so in order
to ensure that all areas are covered in a document then the tendency to use legalese
is seen. This is to ensure that no opposition can be able to discredit the document.
Legal nomenclature, the use of legalese provides for the use of it to be seen as only
for legal matters and so helpful where one requires a certain class of words when
drafting legal documents.

Justifying fees, once legalese is used it looks as though a lawyer has actually had a
lot of work to do in drafting a legal document that may have severe implications onto
the client and so the high fees are justified through the use of legalese.
Professional identity, the use of legalese even for law students helps identify the
legal profession in the sense that one can be identified through the use of word such
the Latin maxims to be identified as a lawyer. It therefore encourages the use of
legalese as it is considered to be a prestigious profession once one is a lawyer.
Obscurity, the use of legalese helps obscure what exactly can lie within the text that
may make another party who may be a lay man not be interested in the plain
meaning of it. It can be seen more interesting through the use of legalese even
where the main issue is pointless and so enables to hide what exactly can repell
others from respecting the legal profession.
Economic, the use of legalese is economic as a lawyer is not necessarily required to
formulate new documents as can use the same forms use from time to time by
lawyers. It saves both time and money as the lawyer has no need to invent just
cultivate.
However the use of legalese cannot be justified to the detriment of a layman as to
the advantage of a lawyer. The use of legalese is difficult or a layman to understand
considering that the use of it specifically for such as there are not many lawyers
compared to laymen and so the dependence of them to get legal documents leads
the laymen in a difficult position once they try to analyse as whether the legal
documents are in their favour.

REFERENCES
Catherine Soanes and Angus Stevenson (eds) Concise Oxford English Dictionary
11th edition
Peter Tiersma, The Creation, Structure, and Interpretation of the Legal Text,
http://www.languageandlaw.org/LEGALTEXT.HTM
Peter Tiersma, the Nature of Legal Language,
http://www.languageandlaw.org/NATURE.HTM