Ewa Helińska

The evolution of legal terminology in English: a lexico-

semantic study

Warsaw University

January 2004
 Table of contents

Preface 1
Introduction 2
Chapter 1. Legal terminology used in the courtroom 4
1.0 Introductory remarks 4
1.1. Brief view on the history of English language 4
1.2. Historical overview of the development of English law 6
1.3. Evolution of the term law 10
1.4. Surviving Old English terminology 10
1.5. Medieval origins of legal terminology 12
1.5.1. Latin element 12
1.5.2. French element 13
1.5.3. Evolution towards English 15
1.6. Modern English legalese 16
1.6.1. Assignment of new meanings to earlier borrowings 16
1.6.2. Sources of conservatism of the written legal language 17
1.7. Partial conclusions 18
Chapter 2. Legal terminology used in the courtroom 20
2.0. Introductory remarks 20
2.1. General notions on the origins of oral legal presentations 20
2.2. Courtroom vocabulary of Anglo-Saxon origin 21
2.3. Latin elements 23
2.4. French vocabulary in the courtroom 24
2.5. Transition from French to English as the language of the courtroom 26
2.6. Modern English courtroom legalese 27
2.7. Partial conclusions 29
Chapter 3. Written modern legalese versus spoken legal language 31
3.0. Introductory remarks 31
3.1. Brief comments on the legal surrounding shaping language of law 31
3.2. Similarities between written and spoken legalese 33
3.3. Differences between written and spoken legalese 38
3.3. Attempts at the simplification of legal language 41
3.4. Partial conclusions 42
Conclusions 45
Bibliography 47

0
 Preface

This work aims at the presentation of the development of English legal terminology

under the influences of the historical events, with the special attention drawn to the

impact of the foreign languages shaping the modern legal lexicon. The corpus analysed

comes from two positions: “International Business Transactions” and “Making Your

Record: Courtroom Guidebook for Attorneys and Law Students”, being the textbooks

instructing on preparation of the written and spoken legal presentations, and thus the

source of the most typical phrases and terminology of the language of the law. The

emphasis is put on the evolution of meanings of the modern law words, and moreover,

the characteristic features of the legalese are analysed and presented.

1
 Introduction

Each profession, whose representatives deal with the constrained environment, develops

its own language. The jargon of any professional group helps in a proper description of

the problems the members encounter. Ordinary language fails when an intricate

procedure with specific conditions needs to be defined. Legal language developed in

order to define and deal with specific social events and interactions between people,

which may have profound and long lasting effects on lives of their participants.

The language of law people does not differ from the ordinary language when

phonology or morphology is concerned. It is a lexical and semantic level when

differences appear. The lexicon and semantics generate the majority of difficulties legal

laymen have when dealing with this jargon. However, those problems have not appeared

within the short period of time. Rather, they are the outcome of the millennial evolution

of the legal language.

The jargon of lawyers has not developed within the isolated environment. When

describing legalese, one should remember about the history of the ordinary English, as

well as the evolution of the social system. The peculiarities of the legal order of the

English-speaking world have their reflections in the language. Moreover, the evolution of

the legal procedures, as well as the impact of the foreign systems is mirrored in the legal

jargon.

This work specifies the historical circumstances which shaped the language of

law. Also, the influence of the foreign languages on the legal lexicon is presented. Those

two elements created the jargon which is hard to understand for people who do not deal

2
with law on the daily basis. Moreover, the typical elements illustrating the most

important processes of the legalese evolution are listed, and the semantic difficulties

discussed.

3
 Chapter 1

Legal terminology used in contracts

1.0. Introductory remarks

This chapter aims at the presentation of the evolution of the legal terminology used in

documents. Written legalese was built of the native Anglo-Saxon lexicon, and then

supplemented by the words originating from the foreign languages. The meaning of that

terminology altered in the course of time, resulting in the type of language which differs

substantially from the plain English used in non-legal literature.

Sections 1.1., 1.2. and 1.3. have the purpose of introducing historical

circumstances and linguistic environment which shaped English legalese. Further

sections deal with the development and evolution of the terminology and its unique

features distinguishing language of lawyers from other uses of English.

1.1. Brief view on the history of English language

English is a member of the Indo-European family of languages. The Germanic and the

Romance are, as far as the study of the development of English is concerned, of great

importance. English is a member of the Germanic group of languages. It is believed that

this group began as a common language about 3,000 years ago. By the 2nd century BC,

this language had split into three groups:

4
  East Germanic, spoken by peoples who migrated to southeastern Europe. No East

Germanic language is spoken today, and the only written East Germanic language

that survives is Gothic.

 North Germanic, which evolved into the modern Scandinavian languages: Danish,

Norwegian, Swedish, and Icelandic.

 West Germanic, which gave birth to modern German, Dutch, Flemish, Frisian,

and English.

Latin had been only a minor influence on the English language before the Norman

Conquest. Surviving words from this period have been absorbed during the Roman

occupation and owing to the conversion of Britain to Christianity in the seventh century.

French words after the Conquest replaced in some cases Old English words; for

example crime replaced firen. In other cases, French and Old English components

combined to form a new word, as the French gentle and the Germanic man formed

gentleman. In some examples, two different words with roughly the same meaning

survive into modern English. Thus we have the Germanic doom and the French judgment,

or wish and desire.

In 1204 AD, King John lost the province of Normandy to the King of France.

England became the chief concern of the nobility, rather than their estates in France, and

consequently the nobility adopted a modified English as their native tongue. About 150

years later, the labouring and merchant classes grew in economic and social importance,

and along with them English increased in importance compared to Anglo-Norman.

This mixture of the two languages came to be known as Middle English. By 1362,

the linguistic division between the nobility and the commoners was largely over. In that

5
year, the Statute of Pleading was adopted, after which English began to be used in the

courts and in Parliament.

The next wave of innovation in English came with the Renaissance. The revival

of classical scholarship brought many classical Latin and Greek words into the Language.

Two other major factors influenced the language and served to separate Middle and

Modern English: the Great Vowel Shift and the printing press, which was brought to

England in 1476 by William Caxton. As a result, the dialect of London, where most

publishing houses were located, became the standard.

The principal distinction between early- and late-modern English is vocabulary.

These new words are the result of two historical factors: the Industrial Revolution and the

rise of the technological society and rise of the British Empire. As a result of these two,

new words for things and ideas that had not previously existed became necessary, and

furthermore, English adopted many foreign words. Virtually every language on Earth has

contributed to the development of English, from Finnish (sauna) and Japanese (tycoon) to

the vast contributions of French and Latin.

1.2. Historical overview of the development of English law

The first written legal documents in England were produced by the Anglo-Saxons. The

oldest writings which survived are dated to around 400 A.D. They contained ideas drawn

from Frankish and the continental folk-law. The first code of laws in Britain was set

down by King Aethelberth of Kent. His laws constitute the earliest body of law expressed

in any Germanic language. “Aethelberth’s code, and the latter seventh-century codes

from Kent and Wessex, suggest a mixture of local tradition with borrowings from the

6
Continent. Whatever their practical usefulness (which is doubtful), the kings who made

them clearly wanted to seem sophisticated: lawgivers in the classical mould” (Morgan

1993: 82).

The next major step in the development of English law was connected with the

conquest of England by William, Duke of Normandy. “He systematized landholding and

made England the most completely organized feudal State in Europe, in which every

piece of land was held of a feudal superior, who held of a higher superior, and so up to

the King” (Walker 1980: 403). The introduction of orderly ideas on organisation of a

feudal state, combined with a great survey of England, known as Domesday Book, served

as a basis for the further development of common law. However, law was still formed on

the basis of Canute’s laws and older English dooms, accommodated to Norman law. The

legal literature at that stage comprised of treatises and writs.

The first treatise on common law was written in the 12th century by Ranulf de

Glanvill (Walker 180: 404). De Legibus et Consuentudinibus Angliae had a form of the

commentary on writs and fixed the main features of English law, i.e. its being royal,

common to the whole kingdom and determined by the form of procedural writs. The next

two centuries brought statutes, restating fundamentals of the common law for the

purposes of applying English law in the newly conquered parts of Britain (Statutum

Walliae) or for a further regulation of the feudal system – Quia Emptores (Walker 180:

405).

A major change in the legal system came in 1362, when the English language

replaced French in the courts of law. Other valuable sources of the knowledge of the law

are the so-called Year Books. “The Year Books, records of points of pleading in cases,

7
collected by terms and years, originated early in the reign of Edward I and continued,

being a fairly complete and continuous record from about 1350, to mid-sixteenth century,

forming an invaluable record of the growth of the law” (Walker 1980: 405). They present

that even in the 14th century a decision of a court might lay down a general rule for all the

courts in the country how to decide in similar cases.

The 15th century witnessed growing formalism and inflexibility in the English

legal system. Attempts at a reduction of the complexity of law were made by Thomas

Littleton, whose Tenures is considered the first law book printed in England (Walker

1980: 406). This book was written in the so-called “Law French” and later on translated

into the vernacular by Edward Coke (Coke on Littleton). It was the first book teaching

law.

The next important period in terms of the introduction of new ideas into English

law was Renaissance. This period brought revival of interest in ancient theories and

Roman law which resulted in the re-introduction of Latin legal terminology into English.

However, De Laudibus Legum Angliae written by Sir John Fortescue for prince Edward

was meant to show a superiority of English law over Roman law, although the work itself

was in Latin. The book aimed at presenting detailed information on the elements of legal

profession and jurisprudence, as well as on how the lawyers should be trained.

The Restoration period was marked by a considerable legal reform as a result of

which medieval feudal law disappeared. The most important, The Habeas Corpus Act

(1679), introduced the modern concept that no person can be held against will without

justification. Restoration also brought two major historical works on law by Matthew

Hale: History of the Common Law and History of the Pleas of the Crown.

8
 The Industrial Revolution caused diversion of the law, which focused on

contracts, banking and labour rather than on land, which was the main interest of the

secular legal system during the medieval period. These times saw also the publication of

the Commentaries on the Laws of England by Sir William Blackstone (1765), aimed at

the consolidation of English common law into a unified system (Walker 1980: 407).

Commentaries helped to model the American law and powerfully influenced the further

development of the English legal system.

Next great changes in English law came in the 19th century, when a modern court

system developed and a series of statutes introduced procedural reforms in all branches of

law. Moreover, the system of precedents became fully established, following organisation

of the courts’ hierarchy and an establishment of the House of Lords as a court with

professional staff. Subsequently, a large number of treatises and texts were written,

attempting at a systematisation of branches of law (e.g. Larceny Act, 1861) or

rationalisation (Frederick Pollock, Law on Torts, 1887).

The 20th century developed new branches of law, such as administrative or

welfare law. The main object of legal efforts on a national scale was a systematic

reconsideration and a revision of the law system. At the same time, almost every area of

legal activity produced documents of minor importance, but needed in smooth

functioning of courts and economy. Constantly new ideas and innovations appear and are

set in a variety of works on law; however the assessment of their significance and impact

on the future development of law belongs to next generations.

9
1.3. Evolution of the term law

The most important word in the whole legal terminology is the noun law. There are no

written records on legal vocabulary before the Anglo-Saxon invasion, and thus the term

describing the idea of law in Celtic language is not known. However, some of the

surviving manuscripts in Cymric Welsh and Irish Gaelic give hints to the legalese of

these times. Still, a purely Celtic vocabulary, as well as any Roman words connected with

law (remnants of the Roman domination) disappeared in the 5th century, when Anglo-

Saxons invaded Britain.

The word lagu from which present-day word law derives, was introduced into Old

English in the 8th century, when Vikings invaded Britain (Tiersma 1999: 17). One of the

words Anglo-Saxons used earlier to define the idea of law was riht, which survived until

the present times as right. However, all Anglo-Saxon terms describing the idea of law

were replaced by ON lagu, which meant “that which is laid down or that which is fixed”.

The noun lagu was derived from ON licgan meaning to lie.

In Middle English the form lagu evolved into the forms lawe and laghte. In the

early 14th century the noun lauier “lawyer” was registered which was a result of the

combination of lawe “law” + the suffix – iere. The spelling of lawyer with –y- was first

attested in 1611. Both law and lawe were used up to the 17 th century.

1.4. Surviving Old English terminology

The most apparent remnants of Old English terminology are combinations with adverbs

here and there, e.g. herein or thereof. Various such compounds survived in today’s legal

10
terminology, which are close to their original OE forms. Some of them survived only in

legal language, but ceased to be used in everyday speech.

(1) The law’s customary use of O.E. within as an adjective – the within lease, etc. – is
now a rare bird in the nonlegal speech where it started. (Mellinkoff: 1963:)

Some words used in legal documents survived, although their meaning changed.

One of them was the verb deem “to pronounce judgement”, which still means “to

consider”. (Mellinkoff 1963: 47)

Old English law words also include borrowings from Scandinavian. Among them

the noun bў “dwelling” which survived in the compound by-law (Serjeantson 1935: 66).

That noun defined the law governing a town, and now it denotes “A law or rule

governing the internal affairs of and organization” (AHDEL)

Another word popular in all kinds of commercial contracts is sale, which also has

Scandinavian origin.

(2) Another trading term is sala “SALE” (O.N. sala), found in O.E only in Aelf.
Voc. 180, where it is equivalent to uenditio. (Serjeantson 1935:)

The most important borrowing of all legal words is law. The borrowing and its

evolution has been discussed in Section 1.2.1.

The Old English terminology, of Saxon and Scandinavian origin, has been almost

completely replaced by the Norman French legalese after the Norman Conquest of 1066.

it does not mean that the OE terms were insufficient to describe the legal situation nor

that OE speakers were unable to adjust themselves to the changing situation. As

Mellinkoff puts it:

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(3) French penetration of English – in the general speech and in law
language – was not a simple matter of a more sophisticated language
overpowering a weakened or impotent primitive. Old English was a
vigorous, flexible tongue, fully capable of adepting itself to new
concepts of law as it adapted itself to new concepts of religion. The fact
that French took a leading position in law language cannot be explained
on the ground that there was something inherent in the language which
made it better for the expression of law than English. French in law is
more a matter of the accidents of history than of the science of
linguistics. (Mellinkoff 1963: 58-59)

1.5. Medieval origins of legal terminology

Two languages: Latin and French, shaped legalese in the Middle Ages. They were

regarded to be languages of the educated. Latin was traditionally used in the Church

procedures, also those covering legal matters, such as marriage, and French was the

language of gentry and literate.

However, though French is regarded as the official language of the law after the

Conquest, but at first it was Latin and English which continued being used in the

documents. The evolution towards French was based upon the opinion that this language

was considered to be more precise. Moreover, it provided lawyers with the formalised

phrases serving as ready summaries of arguments. Nevertheless, Latin served as the legal

language of writs up to the 18 th century (Tiersma 1999: 25). The first writ in French was

a translation of William’s laws (Mellinkoff 1963: 66).

1.5.1. Latin element

Latin terms have been present in English since the introduction of Christianity. However,

numerous legal terms of Latin origin were introduced into English via French after the

Norman Conquest. The word of utmost importance for the documentation relating to law

12
is the adjective legal. It emerged in Middle Ages and its origins can be traced down to

legalis.

Even when French was constantly growing in importance, Latin remained

language of the educated people, including the clergy, who produced numerous legal

writs. Moreover, Latin “could operate as a lingua franca in a country where dialect

differences could be substantial.” (Tiersma 1999: 25). English, widely used, though

gradually displaced by French in legal matters after the Conquest, varied depending on

part of Britain it was used in, so Latin helped in conveying the message, as it was

understood everywhere by the educated people.

Another evidence of employing Latin into legal writings can still be found in the

names of the documents. Such example is subpoena – “A writ requiring appearance in

court to give testimony” (AHDEL). Its name originates from the opening of the medieval

document summoning to obey the king’s orders: “sub poen…” meaning “under the

penalty…”

1.5.2. French element

Together with the rise of the profession of a lawyer, which took place in the 13th century

(Mellinkoff 1963: 98), numerous borrowings from French appeared in the legal language.

Although at this time French was less and less used by Englishmen, even by the gentry,

in the legal matters it began competing with Latin. First of all, French began to be widely

used in the courts of law, and then in legal literature.

In this period most of the borrowings in English came from Norman French,

defined as a “dialect of Old French spoken by Normans in Normandy” or Anglo-French,

13
which is understood as “Old French used in England after the Norman Conquest”

(Mellinkoff 1963: 103).

Preservation of a dead language in the legal writings was justified by the fact that

French was little understood by the common people, which allowed lawyers to keep their

prestige as interpreters and intermediaries in the legal matters. (Tiersma 1999: 29)

Moreover, French in law was thought to be more precise and less susceptible to changes

than English. Additionally:

(4) The formalized phrases of Law French were regarded as a convenient shorthand
for summarizing legal arguments on paper. Law French also contained many
terms for which there were no English equivalents. (Tiersma 1999: 29)

One of the most important words of French origin is agreement. Examples of

other terms are seize (F saisen), power (F powere), office, usage. However, apart from the

borrowings from French in which a noun was adopted and preserved, there are also many

examples in which English nouns were originally infinitive forms of Anglo-French verbs

with the suffix –er. Such words are merger, waiver, joinder. (Tiersma 1999: 30)

French provided English legalese with a highly technical vocabulary. Gradually it

began being replaced by English, and French words assimilated and adaptated to English

morphology. “By the seventeenth century, therefore, Law French was barely more than a

large number of technical terms glued together with a few oft-repeated function words.”

(Tiersma 1999: 33)

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1.5.3. Evolution towards English

In 1362 English was restored in the courts of law (Walker, 1980: 405). However, the

Year Books and the statutes were prepared in French or in Latin up to the 15th century.

There were no documents in English which could serve as a professional background for

pleading in courts or the preparation of writs, so the majority of documents was still

prepared in French. Nonetheless, gradually French began being replaced by English,

when in the 15 th century the practice of oral pleading before the court of law displaced

the custom of placing written pleadings.

“English mixed freely with French and Latin” (Mellinkoff 1963: 117). This

caused the appearance of the phenomenon of word doubling. Matching of words which

are synonyms is one of the most characteristic features of the legalese. The following

coupled words are representative compounds with a strictly legal character:

(5) acknowledge and confess (Old English; Old French)

act and deed (French or Latin; Old English)
breaking and entering (O.E.: F.) (Mellinkoff 1963: 121)

The final and decisive element, helping in the establishment of English as a

language of law, was An Act for turning the Books of the Law, and all Process and

Proceedings in Courts of Justice, into English. Although it did not have the immediate

result of repelling French from the legal documents, it was a milestone in the process of

acknowledging English as the language of law.

15
1.6. Modern English legalese

The process of shift in the preparation of legal documents first from French and then

from Latin into the vernacular took centuries. After the Commonwealth reforms lawyers

were gradually forced into writing documents in English. At first, they copied Latin word

order and vocabulary, which created numerous lexical and semantic problems due to the

fact that Latin was a highly inflected language and English has already lost most of its

inflections.

The example of such problems is and/or ambiguity. This compound is extensively

used in commercial contracts. It dates back to the 16th century, when translation of legal

documents from Latin into English was a regular procedure. “Vel was used to mean nor

(still a disjunctive), but vel was also used to mean and, ignoring the traditional distinction

between disjoining and copulating.” (Mellinkoff 1963: 148-149) In order to avoid

ambiguity resulting from the direct translation, and, as well as or began appearing as a

compound conjunction.

1.6.1. Assignment of new meanings to earlier borrowings

Geographical discoveries and the development of commerce, as well as industrial

revolution, caused that land law, which flourished in Middle Ages, lost its leading

position. In the 18 th century emphasis began being put on the partnerships, joint-stock

companies, contracts, banking and employment. (Walker 1980: 407) More frequent

commercial contracts with foreigners and new fields of law caused assignment of new

meanings to the older borrowings. For example, consideration, originally French, meant

16
“contemplation”, but from the 15th century it began to denote a reason or a motive. Under

the influence of Italian assicuranza the OF borrowing assurance gained a new meaning

of an agreement making something secure.

Although law was undergoing constant reforms, its language, especially the

written form, still retains archaic traits and vocabulary. Its construction, based on Latin, is

stiff and aimed at the utmost precision of expression, realised by words such as aforesaid

or hereinafter. The specific meanings of legal terminology, combined with the doubling

of words of the same meaning, e.g. cease and desist, in which both parts of the compound

mean the same, create a technical jargon difficult to understand by people not accustomed

to law.

1.6.2. Sources of conservatism of the written legal language

Originally legal language was entirely spoken. Gradually, legal acts began being put in

the writing. However, the first legal documents were after-the-fact records which served

as aids to remembering and evidence that the binding event took place. (Tiersma 1999:

36) The tendency to put emphasis on the document rather that on the oral presentation

developed during centuries, and was helped by the invention of printing.

With the printing, the legal language was standardised and the law was fixed. The

permanence of the printed legal document caused that even if the non-technical language

evolved, lawyers still based on the printed document which caused legal language to

fossilise.

Another cause of conservatism of legal language was “the development of form

books, which contained illustrations of effective pleas”. (Tiersma 1999: 41) Language in

17
such books preserves features of the language even hundreds of years old, but if it

describes examples of successful legal solutions, it still remains to be used.

English legalese is described as verbose. Lengthy sentences and complex style

have their basis in the past, when clerks were paid by the page for the written documents.

However, this tendency has not been reduced during the centuries, and modern English

legalese uses long phrases and sentences, conjoining them with and and or. It is not only

to avoid ambiguity, but also to preserve the conservative legal style.

1.7. Partial conclusions

English legalese terminology underwent profound changes during the centuries. The

evolution of the vocabulary was connected not only with the overall advancement of the

legal system, but reflected the impact foreign languages have had upon English.

Although numerous Old English words still are used in law documents, the core

vocabulary is of French origin. It is the result of the Norman Conquest, which introduced

French law and established French as the language of the court of law. Later French used

in the courtroom environment fossilised and became utterly different from the everyday

French used in the Continent. At the same time Norman French stopped being spoken by

Englishmen. The only application of this language could be found in legal surroundings,

and in the course of time it has been reduced only to the vocabulary, which was further

anglicised.

Another factor which heavily impacted English legal terminology was Latin. It

influenced law documentation directly, as in the case of canon law or indirectly, when

Latin borrowings were adopted via French. Latin was used in legal writings alternately

18
with French, and gradually reduced to the certain scope of vocabulary which was further

partially anglicised.

The language of English law documentation is difficult to understand due to the

complex processes of assimilation of different elements originating from foreign

languages. The specific jargon of lawyers, which produces problems with understanding

legal writings, is now tried to be reformed, although replacing technical vocabulary

which evolved during centuries by simpler forms is hardly possible.

19
 Chapter 2

Legal terminology used in the courtroom

2.0. Introductory remarks

In this chapter the evolution of the oral legalese is presented. The sections below

illustrate the development of the courtroom oral presentations, their linguistic

background, as well as the sources of the terminology, with the special focus on the

Anglo-Saxon, Latin and French elements. Moreover, some changes of the meanings of

the borrowings and words of native origin are presented.

2.1. General notions on the origins of oral legal presentations

Although the majority of legal terms used in contracts and before courts of law are the

same, there exists a specific legalese jargon, characteristic only of the oral presentations

of legal cases in courtrooms. However, legal terminology used now both in the courtroom

and in contracts has the same origin in the oral tradition. As law had to regulate the life of

illiterate people, men of law developed oral legalese first and, basing on this, the

documentation jargon evolved. The oral presentation of cases took the legal literary

fashion. Still, the present legal vocabulary contains characteristic poetic features, such as

alliteration and rhythmic phrases.

(6) It is a short step from the most ancient Anglo-Saxon oaths to the redundant but
poetic truth, the whole truth and nothing but the truth, Old English words joined
in an oath still current. The power of alliteration has also helped preserve in the
law tautologies such as to have and to hold, mind and memory, new and novel,

20
 aid and abet, part and parcel, safe and sound, rest residue and remainder, while
other rhythms help keep alive the duplicating remise, release, and forever
quitclaim; give, devise and bequeath; and the more meaningful ready, willing
and able. (Mellinkoff 1963: 43)

Even now these phrases used in the courtroom help lawyers to memorise their

presentation for the jury when they close argument. Traditional sayings and poetic

features which are remnants of the times when law had to be laid down for the illiterate

people are still found in modern legalese.

2.2. Courtroom vocabulary of Anglo-Saxon origin

Anglo-Saxon courtroom proceedings are thought to be of almost no value for the law of

the present day. They were based on Germanic law, mainly Danelaw, and were replaced

after the Norman Conquest by the French law later adapted to English surroundings.

Nevertheless, there are numerous terms of Anglo-Saxon origin which have survived in

the present law of the courtroom, though the legal procedures of the Anglo-Saxons and

Scandinavians were pushed out by French customs.

One of the most important legal terms connected with the courtroom procedure

whose origins lay in Old English is the noun oath. Nowadays it means “sacred or solemn

voluntary promise usually involving the penalty of divine retribution for intentional

falsity and often used in legal procedures” (Encyclopaedia Britannica) and is used as a

customary statement during legal proceedings. However, it is not decisive in any way. In

Anglo-Saxon times, however, the oath was taken by one of the parties in the case which

swore that their version is true. “Oath was the primary mode of proof, an oath going not

to the truth or specific fact, but to the justice of the claim or defence as a whole”

21
(Wormald 1999: 290). It was for God to decide whether the oath was spoken by the right

party. “Failing to repeat the formula word for word, or even stammering, could be fatal to

one’s case” (Tiersma 1999: 13).

Another example of technical legal terms whose origins lay in the Anglo-Saxon

vocabulary is hearsay now meaning “Evidence based on the reports of others rather than

the personal knowledge of a witness and therefore generally not admissible as

testimony.” Its first usage in the today’s sense was recorded in the 14th century

(Mellinkoff 1969: 56). The later meaning was also ‘a rumour’, but in the technical law

sense it is still used nowadays.

Another important legal word that can be traced back to Old English is witness. It

derives from Anglo-Saxon witan which meant ‘to know’. It used to denote ‘knowledge’

or ‘evidence’, but now means ‘someone who appears in a court of law to say what they

know about a crime or other event’.

Moreover, the terms of courtroom customary equipment and procedures have

their roots in Anglo-Saxon times. Melinkoff lists them in the following words:

(7) The trappings of the courtroom also borrow from common Old English. The jury
or witness is in the box, the witness takes the stand, and the judge, who is a
member of the bench, also sits on it. From the perch he grants a lawyer motion to
strike. When – after his labours – counsel (like the Lord) rests, it is an Old
English rest he takes, as distinguished from the French residue rest (Mellinkoff
1969: 56)

Although the scope of the Old English legal vocabulary which has survived to the

present is less numerous than borrowings from French, it should not be underestimated.

As at the certain point of time English was the language of the common people and the

illiterate, and French the language of the educated, lawyers preferred to use French and

22
Latin terminology. However, a number of English phrases were preserved out of

necessity: men of law had to be understood by their clients.

2.3. Latin elements

Latin legal vocabulary before the Norman Conquest was formed following the

introduction of Christianity in the 6 th century. The establishment of the Church also

brought canon law, which regulated matters like marriage. Words such as client, admit,

and legitimate were introduced in that period (Tiersma 1999: 16).

After the Conquest, although the prevailing language in the secular courtrooms

was French, Latin still had a huge impact on the legal vocabulary. The extensive use of

Latin expressions by lawyers allowed one to distinguish between the legal application of

this language from others, thus producing term law Latin, which corresponds to law

French. A Mellinkoff puts it:

(8) (…) law Latin is intended to differentiate Latin used in the law from other
languages used in law and also from Latin words used outside of the law. It is in
this sense that the term is still used by lawyers to describe the plentiful residue of
Latin in the language of the law. (Mellinkoff 1963: 74)

Examples of words which were adopted from Latin and then anglicised are

innuendo or testify (Tiersma 1999: 27). As the latter word is considered, it has competed

for centuries with Old English witness. Also other Latin phrases used in courtroom

legalese in the Middle Ages have survived up to the present day. They were neither

anglicised nor changed in any way, preserving their original meaning. The relevant

examples include phrases like corpus delicti or ex post facto.

23
 Legal professionals who appear in the courtroom have also names whose origins

go back to Latin. Advocate and procurator have roots in the canon law. These terms

defined persons who took part in Church proceedings. Later on they began to be also

used in the secular courts of law.

The coexistence of Old English and Latin legal terminology resulted in the

semantic change of some terms. For example, English manslaughter and Latin homicide

meant the same, but in the course of time the latter became a more general term, while

the English term acquired a more technical sense. Another pair of synonyms of the same

meaning is Old English bequest and Latin legacy. (Mellinkoff 1969: 75).

Nevertheless, Latin had more impact on written English than on speech. It is still

used while citing maxims referring to certain procedures of law, but it was French

language which mostly influenced the vocabulary of the courtroom.

2.4. French vocabulary in the courtroom

After the Norman invasion the language of the gentry, judges and royal courts was

French. The use of French in the courts of law was caused by its being the language of

education, and, along with Latin, used by clergy and scholars (Mellinkoff 1969: 100).

Moreover, French began replacing Latin in the secular courts of law after priests were

banned from taking part in courtroom procedures as representatives in lay courts

(Holdsworth 1922: 313). Around 1200 lawyers began to form a legal profession which

also helped in making French a legal language.

(9) Once lawyers constituted a profession, it made some sense for them to develop
their own professional language. And because lawyers were trained not at the
university (where the language of instruction was Latin), but by other lawyers at

24
 the Inns of Court, the mechanism was in place for French to be passed down
from one generation of lawyers to the next, even after it died out among the rest
of the population. (Tiersma 1999: 24-25)

As regards the names of legal professions and procedures, French supplied such

basic terms as judge and judgement. These words evolved from the original forms jugge

and jugement (Serjeantson 1935: 122). Another technical legal word, plaintiff, denotes a

person who starts litigation. Although it came into English from French, as in the case of

various other legalese terms, its origins lay in Latin (Mellinkoff 1963: 110).

Another example of French penetration into the English legal vocabulary in the

courtroom is the verb to defend. Its origins lie also in Latin, where it was used in the legal

sense to deny. In Middle English it meant “to ward off attack”, but in the 15th century it

absorbed the present legal meaning (Mellinkoff 1963: 118).

Many basic legal words, used not only in highly specific legal surroundings, but

also in common speech, came from French, for example: marriage, warrant, evidence or

order. (Serjeantson 1935: 136)

However, the use of French words in common speech declined in time, and legal

French became a highly technical language understood only by the professionals. The

first attempt to make the language of the law more comprehensible came with the Statute

of Pleading, in which it was stated that “Pleas shall be pleaded in the English tongue, and

inrolled in Latin” (Mellinkoff 1963: 111). Gradually, French began to be replaced by

English in the courts of law.

25
2.5. Transition from French to English as the language of the courtroom

After the Statute of Pleading (1362) which restrained the use of French in the courtroom,

English began acquiring significance as the language of pleas. The process was

accompanied by a simultaneous shift from oral to written pleading. That fact allowed

present researchers to observe how English replaced French as a result of the Statute of

Pleading, since in the course of time there was constantly growing number of legal

documents written in the vernacular.

French, less and less used as the language of everyday communication, was

preserved almost entirely in the law and literature. It began to fossilise and became

restricted to the technical use only.

(10) Law French gradually underwent drastic simplification. When it was still a
natural language, it would have had its own pronunciation. There would have
been sounds that did not exist in English, just as in modern French and most
other languages. Over time, however, its distinct phonetic and phonological
features seem to have been lost; lawyers pronounced it as though it were English.
(Tiersma 1999: 29-30)

However, French was not abandoned as the language used in the courts of law.

“Law French was still heard at the Inns of Court, and occasionally in the law courts,

especially in exchanges between bench and bar” (Mellinkoff 1969: 123). It was still the

source of borrowings, and for example in the fourteenth century words such as evidence,

warrant, jurisdiction, and pardon were taken from French. (Serjeantson 1935: 136).

French finally yielded to English. The technical expressions were preserved, but

they were used as single words, while the whole sentence was in English. Some features

of French have been kept in legal expressions, as was, for example, word order, where

26
adjectives followed the modified noun. Hence, lawyers speak of solicitor general,

attorney general, or notary public.

The final act, banning French, as well as Latin, from the legal procedures, was

passed in 1731 and said:

(11) (…) all writs, process, and returns thereof, and proceedings thereon, and all
pleadings, rules, orders, indictments, informations, inquisitions, presentments,
verdicts, prohibitions, certificates, and all patents, charters, pardons,
commissions, records, judgements, statutes, recognizances, bonds, rolls, entries,
fines and recoveries, and all proceedings related thereto, and all proceedings of
courts leet, courts baron and customary courts, and all copies thereof, and all
proceedings whatsoever in any courts of justice within that part of Great Britain
called England, and in the court of exchequer in Scotland, and which concern the
law and administration of justice, shall be in the English tongue and language
only, and not in Latin or French, or any other tongue or language whatsoever
(…) (Mellinkoff 1939: 133)

However, a complete ban on the use of foreign language in the courtroom did not

solve the problem of the obscurity of legalese. By the eighteenth century, when this act

entered into force, the language of lawyers was as hard to be understood by people

uneducated in law as the written one. A mixture of French and Latin, which also entered

English via French, contributed to a further blurring of the meaning of the message

delivered by the lawyers in the courtroom surroundings.

2.6. Modern English courtroom legalese

The historical evolution of the legal profession and the impact of various languages upon

the legalese terminology and style of speaking resulted in creation of the technical jargon

which is hard to understand for non-professionals. As Tiersma puts it:

(12) No doubt one of the things that make legal language hardest to understand is its
unusual vocabulary. Although some technical terms are relatively well known

27
 (defendant, judge, jury), others are at best vaguely familiar to many people
(beyond a reasonable doubt, negligence or wrongful imprisonment). Further
terms – legal homonyms – seem familiar but have unexpected meaning for the
average person (as in aggravation or file a complaint). Still other vocabulary is a
complete mystery to nonlawyers, including words like estoppel, lis pendens, per
stirpes, testator and tortfeasor. (Tiersma 1999: 203)

Archaic, very formal vocabulary, often of foreign origin, constitutes a problem

with comprehension for people who have little contact with the law. Also, courtroom

procedures customarily employ constructions which make spoken legalese more formal

and precise, hence more intricate, for example passive voice, overuse of modals, multiple

negation and forming long, complex sentences (Tiersma 1999: 206-210).

Lawyers developed a highly technical language also by choosing only some of the

variety of meanings a given word is assigned. “They make a technical use of an ordinary

English word by taking care in their deployment to pick up some, but not all, the ordinary

meanings” (Morrison 1993: 317).

All these features reflect the fact that a lawyer speaking Law French (for a

definition of Law French see Section 1.2.4.) or so-called “Law Speech” outside the

courtroom is considered to use the language which, although may be called English, is

not comprehended by an ordinary speaker. The preservation of French or Latin phrases,

as well as their pronunciation which differs from the ordinary English pronunciation, are

features distinguishing legalese from the language used by the common speaker. As

Morrison describes it:

(13) When lawyers go outside those groups and forget to switch out of code or short-
talk, they sound inarticulate to the rest of us, or, worse, incomprehensible.
Usually someone in the group asks these lawyers to repeat themselves; and, as
the joke’s mark the hits home, the smart ones then switch into English; and the
others repeat themselves. Sometimes, of course, lawyers refuse to use ordinary
English in order to impress or intimidate. (Morrison 1993: 335)

28
 Modern spoken legalese behaves as any live language. It absorbs new borrowings

on constant basis and develops dialects which differ depending on the localisation. For

example, the United States law do not use names of professionals barrister and solicitor,

unless they refer to the British legal system. Also meanings of technical terms vary. In

British English judgement means “outcome of the case”, but also “the statement of

reasons for the disposition”, while in American English the meaning of this word is

constrained to the first one. Another example is provided by idioms. “An American

lawyer is admitted to the bar, while a British barrister is called to the bar and may

eventually take silk (become a Queen’s Counsel).” (Tiersma 1999: 134).

2.7. Partial conclusions

Spoken English legalese underwent the same evolution as the legal language used in

documents, although written law language originated from the speech and became more

important in the later stages of the development of English law. The speech of lawyers

involves terminology having roots in Old English, French and Latin. In the course of

time, it reached such a level of complexity that it is hard to be understood by people who

do not deal with law on a regular basis.

However, spoken legalese shows more flexibility and far less complexity than

written legal English. Constantly, it creates new idioms and absorbs borrowings, which

later enter into documents. It is a live language, which evolves, creating its dialects.

Although it is characterised by the stiffness and formality, it may be called a “slang”, as

lawyers not only use words hardly comprehensive for the ordinary people, but also

29
continually use clipped terms or acronyms, or coin new words defining legal actions

(Tiersma 1999: 137).

30
 Chapter 3

Written modern legalese versus spoken legal language

3.0. Introductory remarks

This chapter has a goal of comparing the two varieties of legalese and presenting that

although they seem to have the same lexicon, the result, that is a speech and a document,

differ from each other. In the sections beneath the author of this work aims at

enumerating and linguistic analysis of these differences, as well as pointing the

similarities in use of legal terminology in speech and writing.

3.1. Brief comments on the legal surrounding shaping language of law

Although it should seem to be uniform in all its uses, language of law differs when one

compares a written document and a record of the lawyer’s speech. These differences may

be explained with reference to the historical development of the legal profession. At the

beginning law was shaped in the society of mostly illiterate people. In Anglo-Saxon times

legal language was lively, creative and expanding. What really counted was oral

presentation of legal arguments. Writings served only as evidence of oral ceremonies.

Later, when the growing use of French was blurring the clarity of legal language,

a simultaneous process of shift in importance from spoken language to written documents

began taking place. The most decisive factor which ultimately decided on the greater

importance of legal writs was the printing press. Not only did it help to standardise legal

31
language, also the spoken one, but also caused fossilisation of legal writing. Archaic

forms and unusual phrases were preserved owing to the books teaching law, which kept

old patterns of legal expressions and styles of writing which were abandoned elsewhere.

Such a style was passed from one generation of lawyers to the next.

Another factor which increased existing differences between spoken and written

legalese was the institution of precedent, understood as “a judgment or decision of a court

that is cited as an example or analogy to justify deciding a similar case or point of law in

the same manner” (Encyclopaedia Britannica). Its impact on the written language of the

law is described by Tiersma as follows:

(14) A strict notion of precedent would be very difficult to maintain without written
opinions. Most judges and lawyers could not remember and follow a decision
that was made fifty or a hundred years before. Even if they had heard of the
decision, they would be able to conveniently “forget” it if it was not worth
following. With authoritative written opinions, however, judges have felt
themselves bound by the decisions made generations or even centuries ago. In
citing those opinions, lawyers and judges often repeat – and thus keep on life
support – ancient verbiage that should long since have died out. (Tiersma 1999:
40)

Specialist jargon used by lawyers in writings as well as in the speech acts serves

not only the purpose of conveying a professional message. It is used to mark membership

of a specialist group (Gibbons 2003: 37). Lawyers are perceived, and perceive

themselves, as the elite. The use of the language full of terms of the trade, hardly

understood by the rest of society, increases their prestige.

Oral legalese keeps much of the pattern of legal writings. However, there are

certain features which are not possible to be realised in speech. Also, spoken language

has a tendency to simplify and shorten utterances, which adds to its clarity and increases

the contrast between speech and writing.

32
3.2. Similarities between written and spoken legalese

English legalese, both in its written and spoken form, is a language of a specialised

group, and as such it uses the terms of art. These expressions are understood as “a

technical word with a specific meaning” (Mellinkoff 1963: 16). In the course of time

lawyers developed a set of specific words which can be used only in the legal

surrounding, both spoken and written. Legalese terms of art have a well defined sense,

although assigning the absolutely precise meaning to them is sometimes impossible, as

law refers to social life, which frequently changes in the scope of accepted norms. Thus,

the semantic range of a given word changes altogether with the changes in the social

surroundings. Negligence, negotiable instrument or special appearance may serve as

examples of such terms of art. However, as English speaking world shares majority of

terms of art, their meaning may additionally slightly differ depending on the location.

Tiersma explains this phenomenon in such a way:

(15) Each of the fifty American states is a separate jurisdiction, with its own laws,
court system, and bar. Precise language is possible only when there is a unified
speech community that consistently uses a term in the same way. With such
splintered jurisdiction, attaining agreement on the exact use of legal terminology
is close to impossible. (Tiersma 1999: 109)

The evolution of the English legal language produced a jargon which combines

archaic words of Old English origin, as well as French and Latin terms. These

anachronisms cause the legalese to be difficult to understand and interpret. Lawyers tend

to use the archaic forms even if they may be replaced by simpler ones. This feature,

33
namely the use of archaic expressions, is compared by Tiersma to the characteristic

attributes of language of the religious service.

(16) The ritualistic language and ceremonies of the courtroom have much in common
with a religious service, and serve much the same purpose. The rituals and
archaic language indicate that this is a special occasion, quite different from
ordinary discourse. The formal and unusual clothing of the main participants –
the vestments of priests, or the robes and wigs of judges – reinforce the
impression that this is a solemn occasion and add an aura of authority to the
proceedings. (…)
Many written legal documents also have an extremely formal quality, an
impression often intensified by archaic words or grammar. Pleadings to the court
typically begin with the phrase Comes now plaintiff… Likewise, such documents
often end with equally ritualistic words, as when a compliant finishes with the
prayer for relief: Wherefore, plaintiff prays for relief as follows… (Tiersma
1999: 101)

In the course of time borrowings from other languages which existed along with

the native expressions with the same meaning, acquired new semantic properties. Thus,

they allowed for a further development of technical vocabulary, as in the case of child

(OE), infant (F) and minor (L), which had the same meaning, but now define people of

different age for the legal purposes (Gibbons 2003: 43).

Both spoken and written language use some of the modal verbs more often than

others. The most characteristic verb which legalese employs frequently is shall. Unlike in

the ordinary discourse, in the legal use this word does not express future, being employed

not only in first person. As it serves to express obligation or declaration, shall could be

easily replaced by will or must, depending on the context, but it adds an aura of solemnity

to a legal document or speech. However, archaic use of do as in the expression I do

appoint is misleading to any person not accustomed with law. This type of use of do in

the ordinary speech signals emphasis, while in the courtroom surroundings it is a

formulaic expression.

34
 In general, lawyers try to employ as much formal vocabulary and complex

constructions as possible. The level of formality is sometimes unnecessarily high, which

results in the obscurity of meaning and a general impression of pomposity. Gibbons

(2003: 85) gives such examples:

(17) An interesting aspect of the language of the law is the use of formal rather than
informal vocabulary – the use of solicit rather than ask, proceed rather than go,
effect rather than make, and so on. (…) It can be also associated with archaic
language – for instance a barrister may crave leave from a judge, rather than ask
for permission.
This phenomenon is particularly marked in the case of police – it is
sometimes stereotyped as the police officer saying ‘I was proceeding down the
highway in a south easterly direction’ rather than ‘I was walking down the road’.

Complex legal style is also realised by means of prepositional phrases. Their use

is justified, the same as in the case of other similarly complex structures, by the attempts

to exclude any ambiguity which could create further problems for lawyers and their

clients, as well as to ensure the clarity of legal text or speech (Bhatia 1994: 143). The

examples of such prepositional phrases are for the purpose of, in pursuance of, by virtue

of.

Legal discourse, in its written and spoken form, aims at the maximum precision.

Therefore, legal lexicon relies strongly upon definitions and a maximum constriction of

the meaning of words. As Williams puts it “in law we make sharp consequences hang

upon these words of gradation. The question whether a man is left in freedom or detained

in a mental institution depends on whether he is judicially classified as sane or insane”

(Williams 1993: 115). In other words, legal lexicon must avoid ambiguity, as it may

result in disadvantageous consequences for the lawyers’ clients.

35
 One of the ways of the realisation of the utmost precision is the practice of using

synonyms while defining a certain concept. Therefore, one can find in the court

proceedings, as well as in legal documents, expressions such as cease and desist, force

and effect or null and void. Synonyms often come from two different languages (for

example French and English) or in the case they represent words which are borrowings

from the same language, they were introduced into English at different time periods. At

the time when such doublets first appeared, they were meant to make a document or an

oral presentation understood by people from different language backgrounds (Gibbons

2003: 43). However, currently they are accused of creating redundancy and wordiness of

legal English.

The quest for precision is also realised by means of avoiding pronouns. Both

spoken and written realisations of legalese avoid using pronouns such as he, she or it.

Instead, full names are constantly repeated, adding to stiffness and the dull character of

legal language. The explanation of this phenomenon may be that “legal drafters find it

safer to avoid pronouns, since lawyers are notoriously expert at exploiting any possible

ambiguity or alternative interpretation” (Gibbons 2003: 63).

While preparation of their documents and speeches, law people often employ

words defining absolutes, such as all, none, never, irrevocable, impossible, wherever,

whoever. These items also serve as means of the further building of precision, excluding

any exceptions. However, one can observe the contradictory movement of keeping by the

lawyers the margin of safety, realised in phrases such as including but not limited to or

without prejudice.

36
 The same goal of maximum precision and inclusion of all the information into the

text or a speech is realised by means of using multinominal phrases. Bhatia defines them

as “a sequence of two or more words or phrases belonging to the same grammatical

category having semantic relationship and joined by some syntactic device, such as ‘and’

or ‘or’ ” (Bhatia 1994: 143). Lawyers, by enumerating all possibilities, aim at the state

where the document or speech produced by them covers each of the situations their

clients may encounter. The examples are phrases like directly or indirectly, consists of or

includes, advice and consent, etc.

A legal text or speech tends to use numerous multiple negations, which adds to

non-intelligibility and may create misunderstandings. Negations cover not only words

such as not or never, but also prefixes such as mis- or un- e.g. in the noun

misunderstanding. Moreover, while writing or speaking lawyers eagerly employ ‘hidden’

negatives, such as unless or deny (Gibbons 2003: 171). Multiple negations make legalese

more difficult to understand and the recent movement to make legal speech more

comprehensible advises to avoid multiple negatives.

Another feature which is common to written and spoken legal language is the use

of ordinary words which have specialised meanings. Tiersma (1999: 111) gives in his an

exemplary list which illustrates legal understanding of such terms:

(18) Action: not a physical movement, but a lawsuit

Aggravation: in death penalty law, not merely something that annoys you, but a
reason to sentence someone to death.
Brief: a noun referring to a type of legal document, not an adjective, and despite
the name, virtually never brief.
Continuance: the postponement of a proceeding until a later date; if a judge
continues a hearing, it will not continue, but will stop and start up again later.
Motion: a request that a court issues an order or engages in some other act; the
only thing that moves is the lawyer’s lips.
Notice: formally notifying a person or something, as in giving notice of (or

37
 “noticing”) a claim against that person. It is legally effective, as a rule, regardless
of whether anybody notices it.

Such use of words which have utterly different meaning in ordinary English is

characteristic of any technical jargon, including legal one. These meanings are often

limited not only to legal surroundings, but their application is also typical of law

(Mellinkoff 1963: 11). However, use of the ordinary words with specialised meaning may

cause misunderstanding between lawyers and legal laymen not acquainted with the law.

Moreover, this is another feature which supports the opinion that legal language is too

complicated and non-intelligible.

3.3. Differences between written and spoken legalese

Although spoken and written legalese employs the same vocabulary, there are certain

features which differentiate these two types of legal language. It is sometimes impossible

to speak in the way a legal text is written, unless it is being read. Moreover, some of the

elements used in the legal writings are not present in speech, and on the whole, spoken

acts tend to be shorter and simpler in terms of vocabulary used than written ones.

What appears in legal writings and is not common in the speech is the custom of

inserting definitions into the document, which is connected with the general tendency to

eemploy the utmost precision. Thus, lawyers, usually at the beginning of the document in

the part named “Recitals” or “Definitions”, precise as exhaustively as possible the terms

they consider being the most important for this document. Such definitions are called

“declaratory definitions” (Tiersma 1999: 117) since they aim at declaring what a given

38
word means in the context of a given document rather than focusing on the meaning of

the word given by the dictionaries.

A major difference between written and spoken legalese arises from the fact that

writings are planned and presented to the receiver in an overall revised and intended

form. Speech includes the element of spontaneity and cannot be constructed in exactly

the same way as writing. The consequence of the planning of the document is a deliberate

choice of more formal phrases. Moreover, texts are lexically denser. A lawyer

constructing any type of a legal document uses more content words and fewer structure

words, creating complex noun phrases which include maximum information (Gibbons

2003: 20).

The high level of formality in legal texts is also realised by means of

passivisation. Passives are not so frequently used in speech as it would be difficult to

produce any longer spoken act without sounding artificial and peculiar. They are used in

the formulaic expressions, such as giving orders by judges. Tiersma explains this as

follows: “To appear as authoritative as possible (and to avoid the first person), judges

typically start and order not with I order… but with it is ordered, adjudged and decreed”

(Tiersma 1999: 76).

Speech differs from a legal text also by its constant interaction with the

surrounding context shared by the speakers, and written document refers only to the text

contained within, or to other documents (Gibbons 2003: 21). Thus, the language of legal

writings can be highly decontextualised and abstract, especially in the case of legislation

drafting. As Gibbons puts it:

(19) The other aspect of decontextualisation has to do with the different resources
provided by speech and writing. In face to face speech much of the speaker’s

39
 attitude to what s/he is saying is communicated by intonation, voice quality,
gesture and facial expression. Emphasis and information flow is communicated
to a large degree by stress, pausing and pace. Decontextualised writing has few
resources to represent these non-verbal features, so in writing we tend instead to
use grammar and vocabulary choices to represent them. (Gibbons 2003: 23)

Decontextualisation of writing causes the writer to make a legal document as

autonomous as possible, inserting there each piece of information connected with the

subject. In the court of law, a lawyer may always consult other present parties to clarify

any arising ambiguity, while it is impossible in the case of a legal text.

Another feature which results from the fact that written legalese, opposite to

speech, relies on planning in the sense of flow of the information is that sentences in legal

documents tend to be extremely long and complex. Lawyers generally try to embed as

much of the information into one sentence, exhaustively presenting all the possibilities

and excluding all the ambiguities. Such sentences have grammatical complexity, and “a

tremendous quantity of information inserted between the subject (…) and the verb phrase

(…)” (Tiersma 1999: 57).

Legal language used in the courtroom has a tendency to be less complex and

formal than its written variety. Speech lacks the lexical density of the document, uses

shorter sentences and may employ even informal expressions. However, technical terms

of art remain. Tiersma gives the example of the informal use of language in the legal

context: “An American lawyer might tell opposing counsel to shove that demurrer up

your ass” (Tiersma 1999: 136).

40
3.3. Attempts at the simplification of legal language

Modern English legalese is accused of incomprehensibility. The evolution of legal

language produced a jargon which instead of providing people a set of clear rules, blurs

the meaning of the information presented in the documents and courtroom procedures.

Reading any legal text demands far more time than in the case of other texts and its

understanding relies on the knowledge whose scope is much wider than that of an

ordinary man.

The Plain Language Movement aims at purging the legal language of unnecessary

elements which make it so difficult to comprehend. The supporters of this movement

claim that antiquated vocabulary should be replaced with a modern one, more clear for an

ordinary man. It should be remembered that legalese is found not only in the courts of

law and in commercial contracts, but also in everyday consumer documents, such as

warranties or life insurance policies. Thus, it is highly important to make legal documents

understandable for the maximum people possible. In Great Britain the attempts at the

simplification of legal language met a considerable success, as Gibbons illustrates:

(20) More recently in Britain the plain language movement has had a major success
in persuading the government and mainstream English law authorities to
implement change towards plain language. They have assisted the Master of the
Rolls, Lord Woolf, in producing the 1998 Civil Procedure Rules (SI 1998 3132)
which substitute many forms, documents and procedural wordings with clearer
equivalents. (…) A number of arcane legal terms have been replaced: for
instance a plaintiff is now a claimant, a pleading is now a statement of case.
Law Latin has been replaced with English – ex parte, inter partes, in camera and
sub poena have become with notice, without notice, in private and a summons.
(Gibbons 2003: 173)

41
 Plain legalese, which could be understood by the majority of ordinary people, is

postulated to be possible to achieve by means of shortening the sentences, eliminating

vagueness (that is difficulties with fixing the exact intended meaning) and wordiness,

diminishing pomposity and stiffness of legal language. While the complexity of syntactic

structures may be reduced quite easily by avoiding embedded clauses and complex

passive constructions, the lexical level is hard to be simplified, as it evolved during

centuries, and lawyers are a conservative group, unwilling to apply any reforms to their

language. Moreover, it should be emphasised that the non-intelligibility of legalese

makes lawyers necessary, thus further reducing the zest to make legal language more

comprehensible.

3.4. Partial conclusions

Legalese in its written and spoken form is mostly the same. In both realisations it uses the

same scope of vocabulary and similarly complex constructions. The differences between

these two types of legal language arise from the fact that written legalese is planned,

while spoken legalese comprises of the element of spontaneity and may include informal

expressions, impossible to be found in the documents.

Both written and legal language may be characterised by:

 Use of terms of art

 use of phrases of Latin or French origin

 use of phrases originating from Old English, which ceased to be used in the

general vocabulary

42
  use of jargon

 overuse of formal phrases

 use of words which belong to the general vocabulary but acquire uncommon

meaning in the legal context

 tendency to use absolutes in order to maximise precision.

Modern English legalese is a language hard to comprehend by people without a

proper educational background. It developed as a result of complex historical processes,

and in its modern form it illustrates the conservatism of people creating this language.

Numerous expressions of foreign origin present which languages exerted their impact

upon English in the course of history. This feature, that is use of the expressions which

are hard to comprehend for the general audience, raised a demand to simplify the

language of lawyers.

Legalese is said to aim at the utmost precision. This goal is realised by various means,

beginning from the definitions as exhaustive as possible, and ending at the complex

prepositional or multinominal phrases. However, it is worth remembering that legal

language is a tool aiming at providing advantages to a client of a lawyer, not at seeking

accuracy. Thus, sometimes deliberately unclear or general expressions may be found both

in the speech and in law documents.

The language of lawyers relies on the formulae. All the conservatism of the legal

lexicon may be explained by the fact that legal vocabulary is considered to be very

precise and definite. Expressions used for centuries proved to bring success, so they are

still used in the modern legal practice. Formality helps lawyers to keep their prestige, and

difficulties with understanding provide new clients. It seems that attempts at reforming

43
the language by means of passing legislations will not bring an immediate success, as the

people helping to construct new laws are lawyers themselves.

44
 Conclusions

The language of the law has been shaped for centuries. Not only did it change in the

overall processes of the evolution of English, but also under the impact of historical

events, which sometimes abruptly introduced new terminology or styles of legal

presentations.

Both written and spoken legalese underwent the same stages of evolution. The

original Anglo-Saxon terminology has been gradually replaced or supplemented by Latin

and French words, so that the lexicon of the present day lawyer consists of only some of

the words of Anglo-Saxon origin which survived up to now. Latin as the language of the

educated and scholars influenced English legalese in the significant way. Moreover, Latin

penetrated English also via French. However, it is French which provided the most of the

elements of legal lexicon. Unfortunately, the borrowings from French create problems

with understanding for the people unaccustomed with the language of law people.

The process of development of English legalese produced certain features which

make this type of language so different from others. Archaic words, ritualistic

expressions, borrowings and complex phrases alienate a legal profession and help in the

creation of the impression of the law proceedings’ uniqueness and significance. Although

the speech of lawyers is characterised by a certain level of freedom, the whole language

is stiff, maximally precise and difficult to understand.

Convoluted vocabulary is preserved also due to the existence of the institution of

precedent, where lawyers base on the judgement issued decades or even centuries ago.

That allows for using words which have died out in the ordinary language or for

45
preserving the archaic meaning of the words, further adding to the problems with

comprehension of the legalese.

In the process of the legalese evolution, a hermetic jargon has been created.

Centuries of the dominance of French and Latin caused the fact that the majority of the

legal vocabulary is of foreign origin. Although the history of the law recorded the

attempts at the purification of the language, it seems that the replacing the Latin and

French phrases with the English equivalents is futile. The jargon of lawyers, shaped

during the centuries, serves perfectly the purpose of the expression of the intricate legal

procedures with the utmost objectiveness and precision.

46
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