Law, Culture and the Humanities 2006; 2: 29- 50

Some Myths About Legal

Language
Peter M. Tiersma
Loyola Law School, Los Angeles

Over the centuries, much has been written about the language of the law. The
language of lawyers is archaic and conservative. It is full of Latin and French. It is
wordy and redundant, pompous and dull, and either highly precise or madden-
ingly indeterminate. Perhaps the most interesting suggestion is that legal language
is itself a myth, in that it is really just ordinary language with a great deal of
technical terminology. Some of these assertions have more than a kernel of truth,
others are complete myths, and yet others should be relegated to that status as
quickly as possible. Law, Culture and the Humanities 2006; 2: 29- 50

In its ordinary meaning, a "myth" often refers to a fiction or false belief that
is held by someone else. We seldom consider our own beliefs to be myths.
And when we label someone else's belief a myth, it is usually not meant as a
compliment. Given its pejorative and somewhat provocative connotations, a
prudent person might avoid the word altogether.
It might have been better to refer to "common misconceptions" about
legal language in the title of this commentary. In fact, that phrase would
probably be more accurate. What I like about the word "myth," however, is
that it is often used to refer to something that is accepted as received wisdom
without much investigation. And a myth also tends to present a simple
explanation for something that is actually more complex. Moreover, myths
persist because they seem plausible to the people who believe in them and fit
in well with their view of the world.
Thus, many lawyers believe that legal language is a relatively precise
mode of communication, and in any event is far more precise than ordinary
language. Plain English advocates argue that even if legal language is
precise, ordinary language would do the job just as well. Critics of the
profession assert that lawyer's language is not precise at all, and suggest that
the law maintains its distinct speech and writing style mainly to mystify the
public and to justify the fees that lawyers charge their clients. Each of these
views can be called a "myth," in my view, because it presents a simple
Address for correspondence: Peter M. Tiersma, Loyola Law School, Los Angeles, 919 Albany
Street, Los Angeles, CA 90015.
E-mail: Peter.Tiersma~lls.edu

0 Association/or the Study of Law, (Cluture and thze Humanities 2006 /O. 1 191 117438721061wO35oa
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30 Peter M. Tiersma

explanation for the profession's preservation of legalese that has some truth
to it, but on closer examination is only partially correct.
In any case, whether we call them "myths" or "misconceptions" or "half-
truths" or even "statements about legal language that are partly true but
need further qualification," there are few simple generalizations that one
can make about legal language. Much depends on whether a lawyer or
judge is communicating orally or in writing, on the type of text that is
being produced, on the strategic objectives of the lawyer, and many similar
factors.
A final preliminary note is that I will regularly refer to David Mellinkoff's
book, The Language of the Law, as a source of some of the myths that I hope to
at least partially debunk. Mellinkoff's book, which has deservedly become a
classic study of the linguistic habits of the legal profession, did a great deal to
energize the study of legal language. He would probably have been the first
to acknowledge that some of his assertions should have been- or, in fact,
were -more nuanced than I might suggest here. In addition, it's a tribute to
his influence that some of the features of legalese that he condemned have
largely disappeared, thus rendering mythological what was once a relatively
accurate statement about legal language.
Let's proceed to consider some of these myths.

I. Legal Language is Archaic and Conservative

One of the more common assertions about legal language is that it is full of
archaic words and phrases. According to MellinkofI, "the language of the
law retains numerous Old and Middle English words and meanings which
have long since passed out of general usage. ' Illustrations include words and
phrases such as "to wit," "aforesaid," and "witnesseth," adverbs of the sort
"herein" and "therewith," and phrasal expressions like "comes now
plaintiff" and "further affiant sayeth not."
There is no doubt that many lawyers continue to sprinkle their written
work with archaic expressions, often because habit, laziness, or economy
encourages the continual recycling of forms that were successfully used in
the past. In addition, once a word or phrase has received an authoritative
interpretation by the courts, lawyers will be inclined to continue using it
even if it may have changed in meaning or become obsolete in ordinary
speech. The language of an average will or deed today is remarkably similar
to equivalent documents made hundreds of years ago. Of course, it's not all
that surprising that the language in a deed, whose function has remained
essentially unchanged for centuries, should have remained quite stable, as
evidenced by the alliterative phrase "to have and to hold," which can be
traced back to Anglo-Saxon times and is still sometimes used today.

1. David Mellinkoff, The Language of the Law (Boston: Little, Brown and Company, 1963), p. 13;
see also Michele M. Asprey, Plain Language for Lawyers (Annandale, New South Wales:
Federation Press, 1991), pp. 88- 89.

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 Some myths about legal language 31

Yet archaic language is not as popular as it used to be. It has been under
relentless attack during the past few decades. The opposition, sometimes
called the Plain English Movement, has fought for the rights of consumers
to understand legal documents that affect their lives and fortunes. The
movement has had an impact. In the United States, federal law now
requires clear, conspicuous, accurate, or understandable language in many
types of consumer transactions, including the Truth in Lending Act, the Fair
Credit Reporting Act, the Magnuson-Moss Warranty Act. The Securities
and Exchange Commission requires that disclosures be made in plain
English. On the state level, New York State enacted America's first general
plain language law in 1978. Other state legislatures have passed similar
measures. A common feature of all these laws is that they require the
avoidance of archaic linguistic features.2
Within the profession itself, courses on legal writing, which all law
students must generally take, strongly encourage prospective lawyers to use
ordinary and up-to-date language, to the extent possible.3 It seems to be
having some effect. Although older lawyers still sometimes use archaisms
like said, aforesaid, hereinbefore, thereof, or to wit, these forms are gradually
becoming stigmatized. A hundred years ago United States Supreme Court
opinions were full of such anachronistic language, but today it is highly
unusual. 4
Moreover, despite its stodgy reputation, the language of lawyers can
sometimes be surprisingly creative and innovative. Lawyers are quick to
coin a new word when their existing vocabulary is insufficient.5 Consider
recent additions to the legal vocabulary, such as a shrinkwrap license (where a
software user agrees to terms contained in software itself, or in a user's
manual, merely by opening the box), or a clickwrap license (where the user
clicks on a box or icon, indicating acceptance of the terms of the license).
Other illustrations are terms using the prefix e-, as in e-commerce, e-business,
e-contract, e-signature, and e-postmark. Thus, although the profession's reputa-
tion for using archaic language was still very much in evidence forty years
ago, when Mellinkoff first published his study of the language of the law, it is
considerably less true today.
Unfortunately, it's too early to classify this belief about legal language as a
myth. What is particularly troubling is the stubborn persistence of archaic
language and unnecessary legalese in precisely those contexts that most
directly affect the rights of ordinary citizens. It is impossible to obtain
reliable statistics, but in my experience, commonplace documents like trusts
and wills, car rental agreements, contracts and licenses relating to software
purchases, homeowner's and driver's insurance policies, and documents
relating to the purchase and financing of real property, among many others,

2. See generally Peter M. Tiersma, Legal language (Chicago: University of Chicago Press, 1999),
pp. 211 -230.
3. See Richard Wydick, Plain Fnglisl/ifor Lawyers (Durham: Carolina Academic Press, 1994).
4. See Tiersma, Legal Language, pp. 217 - 218.
5. The point was also made by Lawrence Friedman, "Law and its Language," George Washlington
Law Review 33 (1964), p. 563.

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32 Peter M. Tiersma

remain largely inaccessible to the average person. Of course, archaic

language is only part of the problem. Other features of what is commonly
called legalese, including the use of technical terms without definition and the
mere length of some of these documents, are also highly problematic.
The time has come to complete the mythologizing of archaic language
and other forms of legalese. All too often those who use such language have
little incentive to change, because the use of mystifying language makes
clients more dependent upon their services or allows those who draft
documents to obscure oppressive conditions. While there has, as mentioned,
been legislation in certain states and in some limited subject areas, broader
legislation needs to be enacted in many more jurisdictions. In fact, why not
adopt a rule that basic documents like wills, trusts, and consumer contracts,
are not enforceable unless they are written in ordinary English that the
average user of that document can understand?

II. Legal Language Is Full of Latin and French

Another posited characteristic of legal language is that it contains
disproportionate amounts of Latin and French (iainly Law French).
Mellinkoff mentions this feature,6 and my high school guidance counselors
seem to have believed it as well, advising me to enroll in Latin when they
found out I was interested in law. The importance of French to the law had
apparently escaped them.
Latin has certainly had a powerful influence on the language of the law.
In medieval England, it was the language not only of the church, but of
education and learning. More importantly, through the beginning of the
eighteenth century, Latin was the language of court records. The practice of
using Latin in case names ("versus" or "in re") harks back to these times.
English lawyers and judges were also prone to express sayings or maxims
about the law in Latin. An example that is still widely known is "caveat
emptor." And writs, like the famous writ of habeas corpus, were typically in
Latin. As a result, most writs continue to be known by the first words, or a
critical phrase, from the original Latin writ ("certiorari," "mandamus," "qui
tam," "supersedeas," etc).
Medieval English lawyers therefore needed to have a working knowledge
of Latin, since pleadings and the record were in that language. But the role
of Latin diminished rapidly after English courts stopped using the language
for writs and records over two hundred years ago, and American courts
never used Latin for these purposes. Latin maxims survived somewhat
longer, but most modern lawyers and judges would be hard pressed to quote
more than two or three Latin maxims (most commonly, they might know
caveat emptor and de minimis non curat lex). In fact, when Mellinkoff wrote his
seminal work forty years ago, the profession's use of Latin had already
become mostly mythological.

6. Mellinkoff, Language /ftIe Iaw, pp. 13- 16.

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 Some myths about legal language 33

Yet, although Latin is for all intents and purposes a dead language, it
lingers on like a patient on life support. There are recent books aimed at
teaching lawyers essential Latin words and phrases.7 Articles still appear
praising the use of Latin in the law, and claiming that "Latin just works,
where the English equivalent does not."8 The most recent edition of Black's
Law Dictionary, published in 2004, has an appendix of legal maxims,
virtually all in Latin, that runs on for 60 pages and, by my estimate, contains
two to three thousand maxims.
Even more surprising is that a study of the use of Latin by three courts
(the United States Supreme Court and the high courts of California and
Massachusetts) found that use of Latin has actually been increasing during the
past half century. The research was limited to 15 common words and
phrases, so it may not give an accurate overall picture. But it does document
a clear increase in the frequency of the expressions inter alia (among other
things), vel non (or not), sub silentio (in silence), sua sponte (of its own accord),
and ratio decidendi (reason for decision).9 What is interesting about these
results is that the technical use of Latin seems to be stable or declining, as
the concepts to which the Latin terminology refer become obsolete or are
replaced by English. The Latin phrases that are advancing in popularity are
either non-technical (such as inter alia) or have very acceptable English
equivalents (such as "holding" for ratio decidendi or "on its own motion" for
sua sponte). Latin thus seems to be persisting not so much for its ability to
express technical concepts, but increasingly for the more general purpose of
lending an aura of erudition to one's writing.
Although legal language retains a fair number of Latin words and
phrases, the notion that lawyers should learn Latin is obviously a myth. I'm
happy to have learned some Latin in high school, but only because I
sometimes feel the urge to decipher medieval texts, invariably with the aid
of a dictionary. The average lawyer can simply memorize the meaning of a
few words and fixed phrases, just as felons in England could at one point
avoid hanging by memorizing, and then reciting in court, a verse of the
Psalms in Latin (affectionately known as the "neck verse"), thereby
"proving" that they were members of the clergy. 10
French had what was in many ways an even more profound and lasting
impact on the language of English lawyers. As is well known, William, Duke
of Normandy, conquered England in 1066, an act that forever changed the
nature of the English language, infusing it with a substantial amount of
Romance vocabulary. Soon after the Conquest, the English-speaking ruling
class was replaced by one that spoke Norman French. By 1310, most acts of

7. Russ Versteeg, Essential Latin fir Lawyers (Durham: Carolina Academic Press, 1990); Datinder
S. Sodhhi, Latin Words and Phrases fir Lawyers (Don Mills, ON: Law and Business Publications,
1980).
8. Phil S. Gillies, "Latin in Vermont Law," Vermont Bar,7jurnal 28 (2002), p. 15.
9. Peter R. Macleod, "Latin in Legal Writing: An Inquiry into the Use of Latin in the Modern
Legal World," Boston College Law Review 39 (1997), p. 238.
10. J.H. Baker, An Introduction to Englishi Iegal History (London: Butterworths, 1990), p. 587. Any
comparison of lawyers to felons is unintended.

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34 Peter M. Tiersma

Parliament were in French. Similarly, although Latin was the language of

record in the courts, judges and lawyers seem to have addressed each other
in French.
Ordinary people continued to speak English, however, and eventually
even the francophone aristocracy became English-speaking. The decline of
French in England is confirmed by the enactment of the Statute of Pleading
in 1361, which condemned French as "unknown in the said Realm" and
provided that henceforth all pleas be "pleaded, shewed, defended,
answered, debated, and judged in the English Tongue."'l Ironically, the
statute itself was in French!
Despite this statute, many legal treatises and reports of court cases
remained in French throughout the sixteenth century and the first half of
the seventeenth century. English statutes were enacted in French until the
1480s.12 John Baker points out that French was still being used for formal
pleading in English courts as late as 1731, and was used for moots in the
Inner Temple as late as 1778.13 The legal profession's persistent use of Law
French, long after it had died out as a living language, lends support to
arguments that lawyers intentionally keep their language obscure in order to
maintain their monopoly on legal services.
Because of its long retention by English lawyers, French has had a
tremendous influence on legal language. A vast amount of legal vocabulary
is French in origin, including such basic words as "appeal," "attorney,"
"bailiff," "bar," "claim," "complaint," "counsel," and "court," to name just
a few. French word order, in which adjectives normally follow the noun that
they modify, can be seen in many terms that remain common in legal
English, including "attorney general," "court martial," "fee simple
absolute," "letters testamentary," "malice aforethought," and "solicitor
general."
Another feature that we have inherited from Law French is a rule of word
formation that allows a word for the object of an action to be created by
adding -ee, thus complementing the suffix -or (or -er). A common
example is "employer/employee," but the law has a vast supply of these
related terms, such as "assignor/assignee," "mortgagor/mortgagee," and
'lessor/lessee." 14
Despite its huge influence on the language of lawyers, about all that can
be said about Law French today is that it provided the law with a large
inventory of technical terms. Legal language may have a higher percentage
of words of French origin than does ordinary speech, but it is simply a
matter of degree. Of course, words of French origin can sometimes cause
minor headaches, such as determining the proper plural for "court martial"
or "Cattorney general." Those who recognize these phrases as being French
can easily produce the "proper" plural ("courts martial" and "attorneys

1 1. 36 Edward III, stat. i, chap. 15.

12. Tiersma, Legal Languatge, p. 21.
13. J.H. Baker, "The Three languages of the Common Law," McGill IUJ. 43 (1998), p. 20.
14. Tiersma, Legal Language, pp. 28- 33.
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 Some myths about legal language 35

general"). Those for whom these words are ordinary English will tend to
pluralize them as "court martials" and "attorney generals." Such problems
are not unique to law. Consider the pluralization of "cactus," "colloquium"
or "memorandum."
Another problem is that use of related words like "mortgagor" and
"mortgagee" or "lessor" and "lessee" tends to confuse lay speakers of
English, and should therefore be avoided, especially in documents meant to
be read by the public. The reason is not so much that they are French in
origin, however, but that they are unknown outside the profession. Most
people have no trouble at all with "employer" and "employee."
Obviously, the notion that legal language has a lot of French is a myth. To
be more exact, it is a historically correct but currently trivial fact about the
language of the profession. Despite its huge influence on legal English in the
past, most of the French in lawyers' language has become so anglicized that,
with the exception of a few words and phrases, it is no longer recognized as
foreign.
It is worth observing that while there seems to be a mild resurgence in
the use of Latin phrases, mostly to embellish one's writing, the same does
not appear to be true of French. The reason, I believe, is that despite
the general cachet of the French language, Law French sounds decidedly
odd to modern ears. This is particularly true if it is pronounced in the
traditional fashion ("oyez" pronounced as "oh yes" and "cestui que trust"
pronounced as "setty kee trust"). People familiar with modern standard
French are likely to shy away from such bizarre-sounding phrases. The
persistence of French in legal language, if anyone still believes it, is clearly a
myth.

III. Legal Language Is Wordy and Redundant

The language of the law has also been described as wordy and redundant. 15
The law of wills provides ample evidence. Just about every modern
American will bears the title "Last Will and Testament." Of course, there
is no difference between a "will" and a "testament," so either term by itself
would suffice. And to label every will that someone writes the last will,
regardless of whether it is the first will, the last, or somewhere in the middle,
is ludicrous. A title like "Will ofJane Doe" would be far more informative
and less redundant.
The typical modern will begins with language such as the following:
I, HELEN HOOVER, of the Town of Goleta, County of Santa Barbara
and State of California, do hereby make, publish and declare this as and
for my Last Will and Testament, hereby revoking all wills and codicils
thereto heretofore by me made.

15. Mellinkoff, Language of/lte Law, pp. 24- 25.

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36 Peter M. Tiersma

Notice the redundancies ("make, publish and declare" and "as and for")
and the contorted word order ("heretofore by me made.") More simply
stated: "I declare that this is my will and revoke any previous wills."
After some specific bequests comes the critical part of almost any will: the
residuary clause. Once more, this example was taken virtually verbatim
from an actual - and very typical - modern will:
I give, devise and bequeath all of rest, residue and remainder of
my property which I may own at the time of my death, real, personal
and mixed, of whatsoever kind and nature and wheresoever situate,
including all property which I may acquire or to which I may become
entitled after the execution of this will, in equal shares, absolutely and
forever, to ARCHIE HOOVER, LUCY HOOVER, his wife, and
ARCHIBALD HOOVER, per capita, to any of them living ninety (90)
days after my death. 16

Again, the reader is inundated by a flood of convoluted and largely empty

prose. If I give someone all the "rest, residue and remainder" of the
property that I own at death, it obviously includes real, personal and mixed
property, no matter where it is located, as well as property I acquired after
executing the will. Also note the archaic terminology: "of whatsoever kind"
and "wheresoever situate." All that really need be said is: "I give the rest of
my estate in equal shares to Archie Hoover, Lucy Hoover, and Archibald
Hoover, but only if he or she survives me by at least 90 days.?" I happen to
teach the law of trusts and wills, and although I have come across one or
two plain-language wills without such wordiness and redundancy, they are
rare indeed. Other legal documents, like contracts, deeds, summons, and
indictments, also tend to exhibit these features, although usually to a
somewhat lesser extent than wills.
At the same time, it is not true that wordiness and redundancy is a feature
of all legal language. Lawyers certainly do not talk this way, unless perhaps
they are quoting verbatim from a will or other document. Thus, at most the
wordiness and redundancy attributed to legal language are features of the
written language of the law. Moreover, they are not characteristic of all types
or genres of legal text. As mentioned, they are mainly found in documents
like wills, deeds, contracts, and a few other types of documents. These are
operative or dispositive texts that create or modify a legal state of affairs. In
speech act theory they are sometimes called performatives. 17 Because these
sorts of documents perform important legal transactions, lawyers are highly
reluctant to deviate from well-established language that seems to have
worked well enough in the past, even if it is archaic and repetitive.
What also seems to play a role is that wills (which of all legal texts are
probably most wordy and redundant, and most resistant to reform) are a

16. Hovanesian v. HoJsnesian, 1993 WI, 392962 (Conn. Super. Ct., Sept. 14, 1993).
17. See J.I,. Austin, How to Do Things with [ords (Cambridge, MA: Harvard University Press,
1962).

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 Some myths about legal language 37

reliable source of revenue for many legal practices. Probably the most
common reason for someone to go to a lawyer is to have a will drafted. I
suspect that lawyers worry that if they draft wills in plain English ("I give my
vacation cabin at Lake Tahoe to my sister, Mary, and the rest of my estate to
my children"), their will-writing business will dry up as potential clients start
writing their wills themselves. Thus, not only the genre of legal text, but also
the strategic objectives of lawyers, can strongly influence their language.
Another important observation is that verbosity and redundancy are not
necessarily coextensive. There is little doubt that American statutes and
private legal documents are often quite wordy. A recent study found that the
average American commercial contract was several times longer than the
German equivalent, something that also seems to be true of legislation. 18
German lawyers and legislators can apparently make do with far fewer
words than Americans. Although the reasons are not entirely clear, at least
part of the explanation must lie in the adversarial legal system in common
law countries. If you fear that a document or statute will be ruthlessly
dissected by very smart lawyers who are well paid to undermine its effect,
you will try to anticipate as many contingencies as possible and to plug
loopholes before they can be exploited. That can require a lot of words.
Consequently, in a culture of mistrust, those words are not necessarily
redundant.
A good illustration is legislation aimed at regulating the sale or ownership
of assault weapons. Perhaps in a legal system that is less contentious,
legislation could refer to "assault weapons" as such. Or it might suffice to
have a relatively straightforward definition. Unfortunately, the term is not
easy to define even under the best of circumstances. When the gun lobby is
looking over your shoulders, ready to challenge just about any regulation on
the subject of guns as vague or otherwise unconstitutional, a straightforward
definition of "assault weapon" becomes almost impossible.
California decided to make its ban as specific and comprehensive as
possible by creating a long list of regulated weapons by make and model. In
order to avoid having new models circumvent the law with very minor
design changes and a new name, the legislation allows the state attorney
general to petition courts to add weapons to the list if they are similar to
those already on it.19 Such an approach takes a large number of words,
although it is hard to label them redundant. The same is true of the very
wordy and complex Internal Revenue Code. While there are periodic
attempts to shorten and simplify the Code, the great lengths to which people
will go to avoid paying taxes and the complexity of our economy will almost
certainly doom those efforts. Even if such legislation is enacted, lawyers and
accountants will find loopholes that need to be plugged, constituents will

18. Claire A. Hill and Christopher King, "How Do German Contracts Do As Much with Fewer
Words?," CGi.-Kent L. Rev. 79 (2004), p. 889.
19. For details and additional discussion, see Peter M. Tiersma, 'A Message in a Bottle: Text,
Autonomy, and Statutory Interpretation," Tulane Law Review 76 (2001), pp. 462 -471.
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38 Peter M. Tiersma

petition for what appear to be reasonable credits or deductions, and before

long the Code will be just as long and complicated as it is now.
While wordiness may sometimes be justified, or at least understandable, it
can easily go to almost ridiculous extremes. Multiplying words seems to be
the solution to just about every legal problem; few lawyers ever remove
them. Thus, a California lawyer recently wrote an article for practitioners
regarding no-contest clauses, routinely inserted into most wills. The clauses
basically state that if a beneficiary challenges the validity of a will (hoping to
get more money), and if she does not win her case, she will lose whatever
benefit she was originally slated to receive. The lawyer pointed out several
possible but rather unlikely challenges that might be made to a will, and
which conceivably might not be covered by the standard no-contest clause.
She then recommended that the usual clause, which is around seven lines
long, be replaced by a much more verbose one consisting of 48 lines - seven
times as long as the original.20 There might be unusual situations where
such a long and complex no-contest clause would be advisable, but it is
certainly not needed in the average will.
The belief that legal language is wordy and redundant is thus at least
partly true. It is certainly the case that legal documents tend to have a lot of
words. Most are not, however, terribly redundant. When they are, we
should probably be suspicious that the drafting lawyer is being far more
cautious than is necessary, perhaps trying to make work for himself and
generate additional fees, or is mindlessly copying forms that should have
become obsolete a long time ago.

IV. Legal Language is Pompous and Dull

Another purported feature of legal language is that in terms of style, it tends
to be pompous and dull. This was certainly the opinion of Mellinkoff,21 and
we have probably seen enough examples to convince us that, were this a
trial, the profession should throw itself on the mercy of the court. It's
probably inevitable that legal documents, which can involve very weighty
matters, have little literary merit. In fact, "dull" is often a severe
understatement, as any litigation associate who has spent a few weeks
preparing for a document production can attest.
Yet on closer examination, the language of lawyers again proves not to be
monolithic. The Roman lawyer Cicero was renowned for his rhetorical
abilities. Those who saw Johnny Cochran's closing argument in the
celebrated trial of OJ. Simpson can probably offer a variety of adjectives
to describe it, but "dull" is not likely to be one of them. In fact, lawyers can
be remarkably eloquent. Daniel Webster was famed for his oratory skills.
Called upon to assist the prosecution in a murder case, Webster addressed

20. Shirley L. Kovar, "Updating the No-Contest Clause," CGa/if/ Trusts and Estates Q; 5 (Fall 1999),
p. 24.
21. Mellinkoff, Language of tie Law, pp. 2 7 - 29.

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 Some myths about legal language 39

any hesitations the jurors might have harbored about their power to punish
the guilty. In doing so, he provided a memorable defense of the theory of
deterrence:
The criminal law is not founded in a principle of vengeance. It does not
punish that it may inflict suffering. The humanity of the law feels and
regrets every pain it causes, every hour of restraint it imposes, and more
deeply still, every life it forfeits. But it uses evil, as the means of
preventing greater evil. It seeks to deter from crime, by the example of
punishment. This is its true, and only true main object. It restrains the
liberty of the few offenders, that the many who do not offend, may enjoy
their own liberty. It forfeits the life of the murde-rer, that other murders
may not be committed.22

A very different picture of the deterrent effect of punishment was painted by

Clarence Darrow, another great legal orator. Darrow sought to persuade a
judge to spare the lives of his two young clients, who had pled guilty to a
sensational murder:
What about this matter of crime and punishment, anyhow? ... Mr.
Savage tells this court that if these boys are hanged, there will be no more
murder.
Mr. Savage is an optimist. He says that if the defendants are hanged
there will be no more boys like these.
I could give him a sketch of punishment, punishment beginning with
the brute which killed something because something hurt it; the
punishment of the savage; if a person is injured in the tribe, they must
injure somebody in the other tribe; it makes no difference who it is, but
somebody. If one is killed his friends or family must kill in return.
You can trace it all down through the history of man. You can trace
the burnings, the boilings, the drawings and quarterings, the hanging of
people in England at the crossroads, carving them up and hanging them
as examples for all to see.23

At the end of his long argument, Darrow had the judge in tears. Despite
angry mobs lusting after a hanging, the judge sentenced the young men to
life in prison.24
I doubt that the spoken language of lawyers is any more pompous or dull
than the language of other professionals. With respect to written documents,
the subject matter poses severe restraints on how creative and eloquent
lawyers can be. A particularly interesting illustration is the use of verse in
judicial opinions. In a Kansas case not too long ago the judge tried to liven
up a memorandum decision discussing the sentence of a woman accused of

22. Peter Lagarias, Effectzve Closing Argument (Charlottesville: Michie, 1989), pp. 189- 190.
23. Op. Cit., p. 266.
24. Op. Cit., pp. 301- 302.

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40 Peter M. Tiersma

engaging in prostitution. The judge's decision began as follows (name of the

defendant omitted):
This is the saga of__
Whose ancient profession brings her before us.
OnJanuary 30th, 1974,
This lass agreed to work as a whore.
Her great mistake, as was to unfold,
Was the enticing of a cop named Harold.
Unknown to __) this officer, surnamed Harris,
Was duty-bent on __s lot to embarrass.
At the Brass Rail they met,
And for twenty dollars the trick was all set.

The judge's censure (not for writing bad verse, but for bringing the judiciary
into disrepute) was later upheld by the Kansas Supreme Court.25
Is legal language dull? It often is, and sometimes that may be just as well.

V. Legal Language Is Precise

Another statement often heard about legal language is that it is much more
precise than ordinary language. Mellinkoff observed that lawyers "make
many attempts at precision of expression," although he also noted that those
attempts were not always successful.26 The legal profession itself generally
has a more favorable view about its ability to write precisely. In fact, the
purported precision of the language of the law is often used as a justification
for not making greater use of ordinary English. In the past, English lawyers
defended their use of Law French on the ground that technical terms in
French were more exact and less subject to change than was ordinary
English.27 Along similar lines, Thomas Jefferson, who was a member of a
Virginia committee charged with recommending what law the newly-
independent state should adopt, stated that the committee decided to retain
much English law and also English legal language. They explicitly decided
not to modernize the language, because "[t]he text of these statutes has
been so fully explained and defined by numerous adjudications, as scarcely
ever now to produce a question for our courts."28
Of course, if legal language were as precise as advertised, court dockets
would not be filled with cases requiring the resolution of an uncertainty or
ambiguity in a statute, contract, or other legal text. Lawrence Solan has
discussed some of the linguistic issues that arise in such cases. A relatively

25. In re Rome, 542 P2d 676 (Kan. 1975). See alsoJohn C. Kleefeld, "Rhyme and Reason," The
Advocate 62 (3 May 2004), pp. 351- 363.
26. Mellinkoff, Language of tie Law, pp. 22 -23.
27. Tiersma, Legal Language, p. 29.
28. Thomas Jefferson, "Autobiography," in Paul Leicester Ford, ed., The l47okv of Tlhomas jefer.on
(New York: G.P Putnam's Sons, 1904), vol. 1, pp. 69- 70.

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 Some myths about legal language 41

common problem is the scope of adjectives like "willfully" or "knowingly."

For example, if a statute makes it illegal for anyone to "knowingly make a
false statement in a matter within the jurisdiction of any agency of the
United States,'" the defendant clearly must have known that he made a false
statement. Whether he must also have known that it involved a matter
within the jurisdiction of an agency of the United States is less clear. The
reason is that the scope of "knowingly" is potentially ambiguous, a problem
that arises with some regularity in the criminal law, which is full of adverbs
(such as "knowingly," "willfully," "intentionally") relating to a defendant's
state of mind.29 Solan's book discusses several other examples of syntactic
ambiguity in legal language.
Another common problem with legal language is the meaning of words,
and in particular the fit between a word in a statute or other text, and the
thing or event in the real world that is the subject of dispute. Solan points
out that it is hard to define words, especially words for categories, by listing
the conditions that are necessary and sufficient for membership in that
category. In addition, people's judgments are often heavily influenced by
prototype effects (the fact that many categories invoke a prototypical
member).30
Consider the oft-discussed problem of a prohibition on "vehicles" in a
park. We might try to define "vehicle" by listing its necessary and sufficient
conditions as: (1) that it have wheels, and (2) that it be designed to move
people or things from one place to another. That's probably not a bad
definition, but notice that the prohibition might extend to airplanes, which
have wheels but do not use them as their primary means of locomotion. It
would certainly prohibit wheelbarrows, even though they might be needed
in the park by maintenance personnel, and baby carriages, which are fully
consistent with the use of the land as a park. Perhaps the definition can be
tweaked to include all and only those means of conveyance that pose a
danger or disturb the peace in parks, but it will not be easy.
Moreover, when we hear or use a word like "vehicle," it usually calls to
mind a prototypical example of that category, perhaps a car or other large
motorized means of conveyance. We would all agree that a truck is a vehicle,
because it is close to the prototype. But as Solan points out, words tend to
become fuzzy at the margins, causing many people to begin to waver if
asked whether roller skates or skateboards or baby carriages are "vehicles,"
even if they fit within our definition.
We might be tempted to conclude that the legendary precision of legal
language is just that - a legend, or to stay with our theme, a myth. There
are certainly those who believe that legal language - and perhaps all
language - is highly indeterminate. Paul Campos, for instance, appears to
take the position that the words of a legal text can be made to mean just

29. Lawrence Solan, The Language ofjudges (Chicago: University of Chicago Press, 1993), pp. 67-
75. See alsoJeffrey P Kaplan & Georgia M. Green, "Grammar and Inferences of Rationality
in Interpreting the Child Pornography Statute," Wask. U L.Q 73 (1995), pp. 1223-51.
30. Solan, Language f/judges, pp. 94- 99.

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42 Peter M. Tiersma

about anything, depending on the intention of the author. In a nutshell, he

posits that "Words do not mean; people do."3'
There is no doubt that authorial intention is extremely important in
determining the meaning of a word or sentence, but if it is indeed the only
thing that matters, it follows that legal language can never have any
precision at all. A word is precise only if there is general agreement in the
profession that it is or ought to be used in a relatively specific sense, and if
lawyers in fact use it in that sense. Admittedly, a judge might decide that the
drafter of a document did not have this meaning in mind and might follow
the drafter's intended meaning, but it would not be at all strange in that
situation to say that "this word conventionally means X, but in my opinion
the author actually intended to communicate Y, so in this case I'll interpret
it as meaning Y"
Observing actual practice, we find that legal language can indeed be
relatively precise at times. In fact, many of the linguistic problems identified
earlier can be remedied, although the solution sometimes requires a few
more words. Thus, we can avoid the ambiguous scope of adverbs by using
verbs instead: "Any person who makes a false statement, and who knows (1)
that the statement is false, and (2) that the statement was made in a matter
within the jurisdiction of any agency of the United States, shall be
punished." Or if knowledge of jurisdiction is not required: "Any person
who makes a false statement in a matter within the jurisdiction of any
agency of the United States, and who knows that the statement is false, shall
be punished."
We can also manage some of the uncertainty and fuzziness in the
meaning of words. Uncertainty about a word's application to a specific fact
situation can be minimized by carefully defining the word, as we attempted
to do with "vehicle." Of course, the definition may not be satisfactory,
perhaps because it includes too much or too little, but an authoritative
definition (as when a court defines a word in a statute, or when the
legislature itself defines it) can, if done well, make the meaning of the word
more precise.
Instead of defining a term, or in addition, it is possible to list the
members of a category. Recall that California decided to list all makes and
models of assault weapons. This is a verbose approach, as we saw previously.
It is also quite rigid. And the words on the list may themselves need
interpretation. Nonetheless, a list of prohibited weapons or vehicles is
substantially more precise than the terms "assault weapons" or "vehicles"
as such.
Even though legal drafters can increase precision by methods such
as these, they cannot banish uncertainty and ambiguity entirely. One
reason is that the drafter may not realize that a statute as written is
potentially ambiguous, or may not be able to conceive of all possible
contingencies, or may not be able to anticipate future developments. These
31. Paul E Campos, "Reflections on the Intersection of' Law and Linguistics: This Is Not a
Sentence," 14as/h. U L.Q 73 (1995), p. 978.

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 Some myths about legal language 43

are not necessarily shortcomings of legal language, but relate instead to

limitations on our ability to legislate and on human cognition more
generally.
Nonetheless, language itself has limitations. We have already seen that
the meaning of a word is not as exact as many people think. We are
not good at defining words, which in any event become indeterminate
in marginal cases. Moreover, the meaning of a word is determined by
usage in the community, but that usage is not always consistent. Consider
the technical terms "per capita" and "per stirpes," which determine
whether and how to distribute assets by will or by intestate succession to
descendants of an heir who died before the death of the testator. These
terms can, in fact, be relatively precisely defined.32 Yet California lawyers
seem to have confused the terms so frequently that the legislature saw fit to
enact a statute declaring that a will using the term "per capita" should
normally be read as meaning "per stirpes." 3 No matter how precise a term
might be in theory, therefore, in reality it can only be as precise as the range
of its usage dictates.
Part of the problem may be that wills are usually written by lawyers who
have a very general practice and limited exposure to wills law. It may be that
in some specialized areas of the law, where the number of practitioners is
small and the level of professionalism is high, relatively precise commu-
nication is indeed possible. A mundane illustration is a chain of coffee shops
in the United States, where both employees and regular customers learn a
precise shorthand for ordering specialty drinks. I have learned to order a
"grande nonfat no-foam latte," and I virtually always get exactly the same
drink, no matter where in the country I happen to be. Of course, the code
does not work in other chains or independent coffee shops. But it does
illustrate that if a sufficiently exact usage exists within a specified
community, often aided by specialized training, fairly precise communica-
tion is indeed possible. In larger and more diverse communities, of course,
usage is much less systematic.
An additional constraint on precision is that sometimes vagueness or
generality may be deemed desirable. The legislature may have wanted to
give decisionmakers some flexibility, or may not have been able to reach
agreement on more specific language. The Constitution, for instance, bans
"cruel and unusual" punishments, but makes no attempt to define or list
them. The framers left it to later generations to give more exact meaning to
the phrase.
So, how precise is legal language? There are several devices that can
enhance precision when needed, but there are also limitations caused by
human cognition, the nature of language, a large and unruly profession, and
an occasional desire for generality and vagueness. Absolute precision is
clearly a myth. All in all, however, legal language is precise enough to get
the job done. Millions of transactions take place every day without incident,

32. Problems are sometimes posed by adopted children and halfbloods.

33. Cal. Probate Code, § 246.

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44 Peter M. Tiersma

and we have a legal system that manages to resolve the linguistic problems
that inevitably arise. Whatever the shortcomings of legal language, it usually
works well enough.

VI. Legal Language Is a Myth

The final myth I'd like to discuss is that legal language is itself a myth.
Obviously, I couldn't resist a catchy heading. But there are indeed those who
suggest that the language of the law is in reality nothing but ordinary
language, with a lot of technical terminology appended to it.34 Likewise,
there are those who suggest that legal language can be interpreted just like
ordinary language, which presupposes that legal language is not funda-
mentally different from ordinary speech and writing.35 Other scholars have
posited that many of the distinct conventions of legal interpretation
are derivable from principles regulating ordinary conversation, and thus
are not at all unique to law.36
Given how peculiar and incomprehensible legal language can often seem
to the average speaker of English, the notion that lawyers speak and write
ordinary English may seem highly counterintuitive. But it seems to me that
this notion must be taken seriously, although perhaps not for the reasons
previously advanced for it. Although most rules governing ordinary
conversation also apply to legal language, the language of law is in many
important respects quite different ordinary speech. On the other hand, it is
much harder to distinguish legal language from ordinary but highly formal
written language.
The most commonly-cited linguistic features of legal language are the
following:37
1. Technical vocabulary. This includes words such as "asportation,"
"demurrer," "interpleader," "estop," "quitclaim," "reverter," or to
"expunge a lis pendens," along with many other examples. We might
also include jargon like "black-letter law," "boilerplate," "case on point,"
"chilling effect," "conclusory," and "judge-shopping."
2. Archaic, formal, and unusual or dificult terminology. We have already
discussed archaic language. Examples of formal or unusual terminology
include the lawyerly proclivity to speak of "commence" and "terminate"
in place of "begin" and "end," or the use of "indicate" and "advise" to
mean ''say" or ''tell" ("my client has advised me . .

34. See Mary Jane Morrison, "Excursions into the Nature of Legal Language," Cleveland Stale L.
Rev. 37 (1989), p. 271.
35. SeeJan Engberg, "Statutory Texts as Instances of Language(s): Consequences and Limitations
on Interpretation," Brooklyn Int'l Uj. 29 (2004), p. 1135. See also Symposium: What Is
Meaning in a Legal Text?, Washi. U L.Q 73 (1995), pp. 771- 970.
36. Geoffrey P. Miller, "Pragmatics and the Maxims of Interpretation," Wis. L. Rev. (1990), p.
1179; M.B.W Sinclair, "Law and Language: The role of pragmatics in statutory
interpretation," U Pills. L. Rev. 46 (1985), p. 373.
37. The list is based on Mellinkof1, Language of the Law, and Tiersma, Legal Language, pp. 203- 210.

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 Some myths about legal language 45

3. Impersonal constructions. Illustrating this feature is avoidance of first and

second person pronouns ("I" and "you"), and preference for the third
person in referring to oneself (as in "this court finds").
4. Passive constructions. Much legal writing prefers verbs in the passive
voice, especially favoring what are called agentless passives, as in "mistakes
were made," which hides or deflects attention from the person who was
responsible for the action.
5. Nominalizations. Another characteristic of legal language is preference
for nouns and nominalizations (nouns derived from verbs, such as
"consideration" or "injury") over verbs ("consider" or "injure"). This
feature can also reduce emphasis on the actor.
6. Negation. It has also been suggested that legal language contains high
levels of negation. In fact, the problem seems to be multiple negation
rather than negation per se.38
7. Long and complex sentences. Legal English tends to have long sentences, in
some extreme cases going on for hundreds of words before reaching a
period. Blackstone's Commentaries contains an appendix that repro-
duces an indenture from the year 1747; one sentence goes on for 1463
words before coming to a complete stop.39 Often the sentences have high
levels of embedding, which leads to syntactic complexity. Consider a
sentence from the California jury instructions: "Do not assume to be true
any insinuation suggested by a question asked a witness."40
8. Wordiness and redundancy. See discussion in section III.

We have seen that some of these features are characteristic of only certain
types of legal language, or are no longer as true as they once were.
Nonetheless, the list certainly contains the linguistic features most
commonly attributed to legal language. What is interesting about this list
is that it shows a remarkable overlap with features that linguists have
associated with written language in general, and especially more formal
types of prose.
A study by Wallace Chafe andJane Danielewicz found, not surprisingly,
that writing generally contains a more literate (ie formal) vocabulary than
speech. They found that academic papers in particular packed a lot of
material into "information units" (roughly comparable to a sentence). They
also discovered that writers use more nominalizations and passives than
speakers do. And as opposed to casual speakers, who tend to produce simple
sequences of coordinated clauses, writers generally use more elaborate
syntax that requires more processing power to interpret. Chafe and
Danielewicz also noted that there were few first person pronouns in

38. Robert P. Charrow and Veda R. Charrow, "Making Legal Language Understandable: A
Psycholinguistic Study ofJury Instructions," Columbia Law Review 79 (1979), pp. 1325- 26.
39. William Blackstone, Commentaries on the Laws of England, Book the Second, Appendix (Oxfiord:
Clarendon Press, 1765-1769), pp. iii- v (the sentence in question is from the document entitled
Deed of' Release and begins with the words, "Whereas the marriage is intended ...
40. Califiornia Jury Instructions, Criminal, No. 1.02 (St. Paul: West, 1996).

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46 Peter M. Tiersma

academic writing, and that generally writing is more detached (ie

impersonal) than speech.41
An overview of linguistic research into the difference between speech and
writing by E Niyi Akinnaso confirms most of Chafe and Danielewicz's
conclusions. Although the research is sometimes inconclusive or contra-
dictory, most studies have found that writing (compared to speech) generally
has higher levels of abstraction and verbal density, more difficult and more
Latinate vocabulary, fewer personal pronouns, and more elaborate syntax
(including more subordination, as well as greater use of passive and nominal
constructions).42
It turns out that just about all the features attributed to legal language are
also characteristic of formal written prose. One exception is that there are
no studies finding more negation in writing, as far as I know, and at least one
study suggests that speech in fact has more negatives.43 This is not a serious
problem, since the overuse of negation in legal writing has never been
clearly established.
The other exception is that the research on writing with which I am
familiar does not establish that use of technical terminology is particularly
characteristic of writing, especially when comparing similar genres (such as
a spoken lecture and a written article on the same topic). It's quite possible
to use a lot of technical vocabulary in speech. Thus, leaving aside negation,
our comparison might lead us to conclude that the only major difference
between legal language and ordinary formal writing is that the former uses
more technical vocabulary. This conclusion offers small comfort to those
who claim that the language of the law is special and distinct from
ordinary communication. After all, there are large numbers of trades and
professions - carpentry, plumbing, accountancy, medicine, software deve-
lopment, and many others - that have extensive technical terminology.
Should we therefore conclude that legal language is nothing more than
ordinary English with a lot of specialized vocabulary? Is there no essential
distinction between the language of lawyers and that of plumbers?
I think that this would be the wrong lesson to draw. For one thing, legal
language has some minor deviations from ordinary language in terms of
pronunciation, spelling, and punctuation.44 It also has drafting and
interpretive conventions that differ from ordinary writing, such as the
one-meaning-one-form principle (avoid elegant variation), the repetition of
nouns where in ordinary writing the second and later occurrences of the
noun would be replaced by a pronoun ("Buyer promises that Buyer will
pay .. ."), and similar linguistic quirks that may or may not be justifiable but
are nonetheless distinct from ordinary writing. Normally, the use of two or

41. Wallace Chafe and Jane Danielewicz, "Properties of Spoken and Written Language," in R.
Horowitz and SJ. Samuels, eds., Comprehending Oral and 1f4rillen Language (San Diego: Academic
Press, 1987), pp. 83- 113.
42. E Niyi Akinnaso, "On the Diflerence Between Spoken and Written Language," Iangage and
Speech 25 (1982), pp. 97 125.
43. Douglas Biber, Variation Across Speech and Writing (Cambridge: University Press, 1988), p. 245.
44. Tiersma, Legal Language, pp. 51- 55.

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 Some myths about legal language 47

three terms to refer to a single person or object ("car," "automobile,"

"wheels") is considered unremarkable, but in legal texts it is generally
assumed that use of a separate word is intended to refer to a distinct
referent. Similarly, repeating a noun is usually taken, especially within a
single sentence, to indicate that the second occurrence of the noun refers to
something or someone different. If I say, 'John kissedJohn's girlfriend," we
normally assume that there are two distinct people named John, because
otherwise I would have said that John kissed his girlfriend. But this
convention is not followed in legal usage: "Buyer promises that Buyer will
pay" is normally assumed to refer to one person, not two.
More importantly, what we might broadly call the textual or literary
conventions of the profession are sometimes very distinct from ordinary
conventions relating to writing. To mention just two examples from the law
of wills, a person who handwrites her will on a bedroom wall and signs it has
made a valid will in many American jurisdictions. But if she types the will on
paper, and signs it, it is not effective. Or suppose that a woman goes to a
lawyer and executes a valid witnessed will giving $10,000 to her niece,
Sarah. She later crosses out that bequest and puts her signature in the
margin. In many states the gift remains effective.45 These results seem
completely antithetical to ordinary conventions of literacy.
There are also many genres of text in the legal realm that do not exist in
ordinary language, such as various types of contracts, deeds, wills, rules, and
statutes. Each has its own relatively rigid format and sometimes requires
specific forms of language.
Moreover, the legal mode of interpreting text is very different from how
we interpret ordinary writing. Suppose that you are reading a book of some
sort and come across an ambiguity. You might reread the text several times,
examine the context, and then use whatever intuitions and information you
have at hand to resolve it as best you can. You do not consciously apply rules
of interpretation that someone taught you.
Judges tend to have very explicit rules about interpreting legal texts,
especially statutes. An intentionalist judge may research a statute's history,
previous drafts, statements by sponsors on the floor of the legislature,
committee reports, etc., each of which will carry greater or lesser weight. A
textualist judge, on the other hand, will look only at the text itself, and
perhaps some related texts, as well as dictionaries. He may also invoke
certain canons of construction.46 In other words, an intentionalist judge
does not simply rely on whatever information she has before her, but digs
through often obscure archives for additional clues to a text's meaning. A
textualist judge, in contrast, refuses to consider certain types of information
even if it is known to him. Both of these approaches are different from how
we normally interpret text.

45. See Peter M. Tiersma, "From Speech to Writing: Textualiz.ation and Its Consequences," in
Marilyn Robinson, ed., Language and tIe Law: Proceedings of a Conference (Buffalo: William S Hein
& Co., 2003).
46. See generally William N. Eskridge,Jr., "The New Textualism," UCLAA L. Rev. 37 (1990), p. 621.

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48 Peter M. Tiersma

In sum, it would be a gross mischaracterization to suggest that lawyers

have a language of their own. But it would also be inaccurate to say that
legal language is nothing more than formal written language with some
additional technical vocabulary. Elsewhere I have suggested that it is a
sublanguage of English. Whatever the label, it is somewhere between a
separate language and ordinary English, and it is much closer to ordinary
English than many people seem to think.
There is an interesting variation on the myth that legal language is a
myth. Some people agree that legal language differs in some important ways
from ordinary speech and writing, but argue that these differences are
indefensible and should be eliminated. Essentially, their point is that law can
and should be expressed in ordinary English.
During the Commonwealth period in England, the Levellers advocated
abolishing the common law and replacing it with a pocket-book of law in
"plain man's English."47 Many supporters of the codification movement
also espoused the making of codes of law that ordinary people could
understand. In Europe, where it was widely implemented, codification may
have helped rationalize and clarify the law, but it does not seem to have
enhanced knowledge of the law among the citizenry.48 In the United States,
David Dudley Field argued that codification would make the law so simple
that it could be understood by any person of ordinary intellect,49 but once
again this goal was not achieved.
Can the law be expressed in ordinary English, or is this also a myth? The
short answer is that in theory it can be, but probably not in practice. The
law can certainly be expressed more plainly, but it is unlikely that ordinary
citizens will ever understand it completely.
We have seen that one thing that makes the language of lawyers distinct is
its large technical vocabulary. Such terms would obviously have to be
converted into plain English. I have no doubt that this can be done, but is it
a good idea? Even if we convert the Latin malum prohibitum into the plainer
English phrase "prohibited wrong," its technical meaning in criminal law
will be just as obscure to the uninitiated. Many technical terms are useful,
and it is senseless to try to eliminate them entirely.
Of course, it should be possible to define technical terminology in plain
language. A very interesting approach to explaining complex technical
terms is that of Natural Semantic Metalanguage (NSM), developed by
linguist Anna Wierzbicka and her colleagues. NSM endeavors to reduce any
word to a few semantic primes, which it claims to be universal.
Wierzbicka has applied her approach to the concept of "reasonable
man." Thus, "I think that X is a reasonable man" is reduced to:

47. J.H. Baker, An Introduction to E.nglisk Lgal Histor (London: Butterworths, 1990), p. 244.
48. Helmut Coing, "An Intellectual History of European Codification in the Eighteenth and
Nineteenth Centuries," in SJ. Stoijar, ed., Problens of Codification (Dept. of Law, Research
School of-Social Sciences, Australian National University, 1977), pp. 16-25.
49. Maurice Eugen Lang, Codification in the British Empire and America (Amsterdam: HJ Paris, 1927),
pp. 160- 162.

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 Some myths about legal language 49

a. I think about X like this:

b. X can think well about many things
c. when something happens to X, X can think well about it
d. because of this, X can think about it like this:
'I know what is a good thing to do now'
'I know what is a good thing not to do now'
e. if other people think about it for some time they can think the same
f. when I think about X like this, I think: this is good
g. I don't want to say more
h. I don't want to say that X is not like many other people.50
Clearly, NSM is an interesting approach, although I might quibble about
some of the details. But notice that a two-word phrase requires around 100
words of explication. One of Wierzbicka's students, Ian Langford, applied
her approach to criminal law, claiming that "highly complex and obscure
legal definitions can be replaced by simple explications which are clear,
accurate and noncircular."51 His explications of the various crimes are
indeed clear, but at times seem to have glossed over legal complexities that
would require many more words to explain. Part of his explication for
"murder" is that "people say: it is very bad if someone does something like
this." This seems to be aimed at the requirement that a killing be
"unlawful." But this requirement actually relates to excuse and justification,
each of which is itself quite complicated. Despite his prodigious efforts,
Langford on occasion finds himself admitting defeat, observing that
explicating a particular term would be "a complex exercise outside the
scope of this thesis."52 These problems would be less severe if we used
ordinary English, of course, but the need to define legal concepts would
remain, and would almost certainly result in statutes being much more
verbose than they are now. It's not so clear that this would be an
improvement over the current state of affairs.
Efforts to write law in plain English would also have to deal with the
textual conventions of the legal profession, which allow the meaning of a
word or phrase to be explained or sometimes modified by judicial decision.
Either we would have to abolish the ability of courts to do so, which would
radically change our legal system, or we would have to require judges
construing legislation to literally rewrite the language, or insert definitions,
in ordinary English, so that the language of the statute remains transparent.
Obviously, drafting the law in plain language would be pointless if readers
have to consult judicial opinions in order to know what a statute really
means.

50. Anna Wierzbicka, "'Reasonable Man' and 'Reasonable Doubt': The English Language, Anglo
Culture and Anglo-American Law," Inlernalional Journal of Speech, Language, and the Law 10
(2003), pp. 1 - 22.
51. Ian Langford, "The Semantics of Crime: A Linguistic Analysis," unpublished Ph.D. thesis,
Australian National University, 2002, p. 293.
52. Op. Cit., p. 302. See also pp. 313 and 320.

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50 Peter M. Tiersma

Thus, the main obstacle to writing the law in plain English is that, unless
the law itself is vastly simplified, it will require the use of so many words that
there will be nothing plain about it.
Most advocates of plain English recognize this problem. Although they
continue to agitate for plainer language in legal documents, including
statutes, they realize that many parts of the law are too complex to allow
them to be fully and comprehensibly explained to ordinary citizens. They
therefore advocate that those legal areas in which citizens have particular
interest, like criminal law, be officially summarized and explained.53 Not
only would such summaries help people understand the law, but they could
place a limit on how much of the law citizens are presumed to know, so that
ignorance of a statute's text would indeed be an excuse, but ignorance of the
summary would not be.

VII. Conclusion
Having completed this commentary, I'm not sure there's as much
mythology about legal language as I originally thought. But there are
certainly some differences of opinion, especially on the relationship between
legal and ordinary language.
Although I might seem somewhat critical of David Mellinkoff at times, I
am actually a great fan of his work. My own book on legal language started
out as an effort to update Mellinkoff's Language of the Law with new
information and a somewhat more linguistic approach.54 I soon came to
realize that I could update his work, but I would not be replacing it.
I can think of no more fitting way to end this essay than by quoting
Mellinkoff's apt observation that the language of the law should "agree with
the common speech, unless there are reasons for a difference."55

Acknowledgement
I would like to thank Larry Solan for comments on an earlier version of this article.

53. See Paul H. Robinson, Peter D. Greene, and Natasha B. Goldstein, "Making Criminal Codes
Functional: A Code of Conduct and a Code of Adjudication," 7. Crim. L. & Criminology 86
(1996), p. 304.
54. Tiersma, ILegal ILanguage.
55. Mellinkoff, Langua>ge of tle Law, p. vii.

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