LANGUAGE AND LAW English Legal Contexts, Texts and Terminology English in legal contexts in international and national perspectives — Vocabulary of the law — Introduction to English legal texts — English legal texts in different legal contexts — Features of English legal texts and language — Reflections on legal language To succeed in the profession of law, you must seek to cultivate command of language. Words are the lawyer's tools of trade. Lord Denning (1979), English judge and Master of the Rolls, 1899-1999 BEFORE WE BEGIN Progressive, controversial, loved, criticised: Lord Denning was one of England’s most influential judges; as Master of the Rolls, he presided over the Civil Division of the Court of Appeal in London during the twentieth century, and contributed to the modernisation and development of the civil law in the United Kingdom, reflecting the role of judges of the superior courts in a common law legal system. In a common law system, judicial precedent—the law contained in decided cases—is a source of law that must be followed, and judges have power to make law by pronouncing new rules when deciding cases, if Parliament has not passed law on the matter in dispute. This power is recognised as part of the judicial function in @ common law country.! In his book The Discipline of Law,? quoted above, Lord Denning is addressing young people as they prepare for a career in the law. He highlights the importance of gaining great skill in the use of language. Words, not other implements, are the lawyer’s tools of trade. Is this emphasis on language and words applicable to your legal system, too?1.2 THE VOCABULARY OF THE Law 1.2.1 Introduction to Terminology and Other Legal Vocabulary Terminology is central to a course in legal English. Indeed, terminology is a fun- damental component of the law itself.! _ Law terms may be single words (like courts, arbitrator, treaty) or multi-word units (like common law, equal rights, EU Treaties) having specialised or technical meanings in the law. All examples are taken from 1.1 above. We can investigate the meaning of law terms using general dictionaries or, better, specialised law dictionaries or glossaries, discussed below. Technical terminology is only part of the vocabulary of the law: in this chapter we have adopted this wider phrase to include not only strictly technical terms, but also the many other words, phrases and modes of expression that are typically found in legal discourse and may have special meanings or uses in legal contexts that are not found in general English. In addition to nouns (such as dispute, constitution, privilege), it is important to focus our attention on verbs, adjectives, | adverbs and adverbial phrases (such as conclude, equal, equitably, according to).tc— 1.2.2 Discovering Meaning and Dictionary Use ring the meaning (or use) of terminolgg, . using the term will; it is cone For a valid approach to discove " contexts, examine the illustration below, only as a noun (not as a verb). Definition of will from a general English monolingual learner’s dictionary Which meaning(s) could be relevant in a legal context? will3 /wil/ noun 1 [C,U] the power of the mind to choose what to do; a feeling of | strong determination: Both her children have got very strong wills. . . .2 [sing] what % | wants to happen in a particular situation: My mother doesn’t want to sell the house ang | Idon’t want to go against her will. 3 (C] a legal document in which you write down who should have your money and property after your death: You really ought to make will. 4 willed [in compounds] having the type of will mentioned: a strong-willed weak-willed person." Co Comment on a general English monolingual learner’s dictionary The Oxford Wordpower Dictionary is one example of an excellent monolingual learner's dictionary of English for intermediate to upper-intermediate learners of the language. The third meaning of will shown in the extract above is specifically Jegal—what is this type of document called in your language? The second mean- ing could also be relevant, e.g. the will of the parties to a contract. _~ In definition 3, we note one peculiarity for a lawyer: the reference to ‘money and property. Legally, these are not two distinct ¢; ; simply one form of property, belonging in the class of Persona jal (moveable property), as opposed to real property or land omnes including buildings, trees, lakes, etc). The definitions of legal vocabulary in a good 8eneral English monolingual ling dictionary are simple and generally correct, They Provide help fui ‘ information and examples so that we can observe correct patter, ful grammatical using the word in complete sentences. We can also learn collocens (structures) for ners that are typically found together), such as the verb + noun k ‘ons (word part- a will. Phonetic script: /will and the accompanying CD-Rom creane 3: to make Ne resources can teach you the correct pronunciation, Using a dictionary, you could copy important information into your Vocabu- lary notebook, as in the example below: wil (noun, Countable) pron: Mtl Detnition: A wil is & legal document in which you write down who should have terey and property after your death, (Oxford wordpower Dictionary) Cromple: You really ought to make a will Collocation: 0 make & will Fpanslaton (your language) ‘These dictionaries contain all classes of words (verbs, adjectives, adverbs, etc), not just nouns. Depending on your language level, you could select an advanced level dictionary." Be aware that general dictionaries have some weak points for legal vocabulary research: they only contain commonly used words, so many law terms will not be found; you may find a common word, such as land, only in its general meaning (the solid part of the surface of the earth) but not in its legal meaning (the class of immoveable/real property); for complex terms, definitions may be too simple and therefore not entirely accurate. Often the wording of a legal term in a general dictionary is ‘diluted’ thus aiding comprehension but limiting the use of related words in a legal context. In conclusion, we recommend that you use a general monolingual learner’s dic- tionary of English for valuable support with vocabulary, collocations and grammar patterns. These reference works provide useful linguistic information and a good starting-point for more specific research using specialist dictionaries or resources. Definition of will from a good specialised law dictionary Compare this definition with the general dictionary definition above—what have you discovered? will n. A document by which a person (called the testator) appoints *executors to administer his estate after his death, and directs the manner in which it is to be dis- tributed to the beneficiaries he specifies. To be valid, the will must comply with the formal requirements of the Wills Act 1837 (see EXECUTION OF WILL), the testator must have “testamentary capacity when the will is made, and he must make it of his own fee wishes without any *undue influence. A will can be amended ...!5 Comment on a specialised law dictionary As the example shows, a good law dictionary is both a language resource and a al resource. It explains a small aspect of the law and introduces related termi- nology (e.g, the testator) in the definition itself,VOCABULARY OF THE LAW party rights law guarantee trust freedom be subjected to be entitled to hearing charge offence guilty trial try justice liberty presumed innocent tribunal determinationsibutty “ ‘ Example: it’s fun to go to a party! But in legal language, party is a key noun with many uses aS explained in the Glossary of law terms at the end of this book—see below. Party, 7. parties, mpl. A party is one of the sides taking part in a legal transac- tion, such as a contract (a contracting Party) or a treaty (a High Contracting Party); each of the sides involved ina legal dispute is a party to the case; a person or entity outside a certain transaction is a third party; in politics and government, a political party is an organised group representing specific interests and policies, and seeking election. As party illustrates, the meaning, or better, use of vocabulary in the law must be understood in relation to a specific context, explored below. Refer to the Glossary to check your work in Task 1. 1.23 Examining Legal Vocabulary in Context It is essential to develop the habit of focusing attentively on the use of legal vocab- ulary in the different legal contexts you meet. It is more interesting and productive to examine terminology in real legal contexts: you will expand your vocabulary, and also your legal knowledge. For example, a famous Will:'* In the name of God, Amen. I, William Shakspeare, of Stratford-upon-Avon in the county of Warwick, Gent., in perfect health and memory (God be praised,) do make and ordain this my last will and testament, in manner and form following; that is to say: ... I give and bequeath unto my daughter Judith one hundred and fifty pounds of lawful English money ... I give and bequeath to Hamlet [Hamnet] Sadler twenty-six shillings eightpence, to buy him a ring; ...'? Comment By examining vocabulary in authentic contexts like this, we can learn more about its meaning and appropriate use. Most of the language in Shakespeare's will, above, is still used in these legal documents today. For example: the pair of verbs,‘T give and bequeath’ (to bequeath means specifically to give personal the erty by will), Observe also the classic phrase ‘my last will and testament’ rate serve the specific grammar pattern: I give and bequeath to someone (Judith) omething (money). ‘In perfect health and memory’ refers to the testator’s mental health anq therefore capacity to make a will, ' The Internet is a convenient way to find original legal documents of interest, You can enrich your legal vocabulary by examining the content and language of even a short paragraph of text, as illustrated above. Many examples of original legal texts are provided in this book. 1.2.4 Vocabulary in Context: the Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) was adopted and pro- claimed by the General Assembly of the United Nations (UN) on 10 December 1948.?° Did you know that every year on this date people celebrate International Human Rights Day all over the world?Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations .., Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any Kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3. Everyone has the right to life, liberty and security of person. Article 4, No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. © United Nationslegal vocabulary may haye context. ve; : above, ha term is used. Meaning and use. As in the example partys "hic : in different meanings depending on the context ore Example: guarantee, In Article 11 UDHR, ae antee indicates a form of of human rights and criminal law, the noun a “i a person accused of q legal protection of a right, a safeguard. In Article ; i joy ‘all th crime (‘Everyone charged with a penal offence’) has the right to enjoy e generally in the fields to be informed of : , the right guarantees necessary for his defence, such as ‘ nce. B the accusations against him and sufficient time to prepare his an _ y contrast, the noun guarantee is commonly known in a commercial context, where it indicates a manufacturer’s promise to repair, replace or compensate for defective goods (a warranty); in addition, a guarantee (also spelt guaranty) is a secondary agreement in which one person (the guarantor) assumes legal responsibility (liability) for the debt of another person if that person (the prin- cipal debtor) fails to pay or honour his or her obligation. When interpreting a text, be sure to consider the precise meaning of words in the specific context. Collocation. The term collocation indicates the way words naturally occu together in text.) We may think of collocations as words that are y : va used in combination with each other, forming natural ‘partnerships. 'y $$$Example: innocent and the opposite, guilty, are two key adjectives in legal English. Notice the collocations we find by focusing on the language of Article 11 UDHR: Innocent: presumed innocent (verb + adj) but also, presumed innocent until proved guilty, the right to be presumed innocent and the longer phrase Everyone has the right to be presumed innocent, Guilty: proved guilty (verb + adj) but also, Presumed innocent until proved guilty, proved guilty according to law and the longer phrase Everyone has the right to be presumed innocent until proved guilty according to law, expressing a human right, one of the principles of a fair trial. By focusing our attention on collocations in legal language, we move from the level of the single word to possible or typical combinations of words and even entire phrases. By using this approach, we become aware of the way words are actually used in natural text, so developing our lexical skills and expanding our vocabulary. It is therefore essential to observe collocations as you work on a text and to record them systematically in your personal terminology system (1.2.5 below). This approach to vocabulary in context will also help you to memorise words in ‘chunks’ and could improve your ability to recall and use lexis, as native speakers do, in teady-made chunks, improving your fluency.?? Below are some different kinds of collocation with examples of the key legal noun right, from the UDHR, above: adjective + noun human rights verb + noun Everyone has the right verb + adj + noun Everyone is entitled to all the rights noun/noun + and + noun/noun dignity and rights, rights and freedoms, rights and obligations noun + prep + noun the right to life noun + prep + poss adj + noun the determination of his rights noun + verb + adj the right to be presumed innocent Can you find further examples, with vocabulary of your choice, in the text? Grammar patterns. On the relationship between grammar and lexis, linguist Dave Willis said, ‘I used to think these were quite separate, that grammar was about sentences and lexis was about words.** Instead, Willis points out that Tecent research is showing a closer link between vocabulary and grammar, as, ‘in making sentences, we may start with the grammar, but the final shape of a sentence is determined by the words which make up the sentence’ By focusing‘ tterns’, or ‘the on the use of vocabulary in context, we may observe word pa gtTammar of words’ Example: entitled Lae Pattern—to be entitled to sth (something) = to have the righ th in this Full example: Everyone is entitled to all the rights and Nigel ae Declaration, without distinction of any kind ... (ArticleExample for Your Personal Terminology System Term: trial (noun) Definition: A trial is the process of examining and deciding a civil or criminal case before a court, the judicial examination of a case to determine all questions of law or fact. (Glossary, Common Law Legal English and Grammar) Example: Everyone charged with a penal offence has the right to be presumed inno- cent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (Art 11 para 1 UDHR) Grammatical patterns: to be on trial for sth. He was on trial for murder Collocations: fair trial, a public trial, to hold a trial Translation into your language: ... Other information: also, hearing—a fair and public hearing (Art 10 UDHR) related verb: to try She was tried for murder NB: leave space to add further examples, collocations etc as you continue in your studies of legal English. State your sources. Be eat ene 5 ere eeoeCHi Primary legal texts typical of a common law legal system ‘ Primary ‘egal texts a, tutes and delegated |e, islatic — Sources of law: legislation (statu ifn) pinion Gadget, published in the law reports); if there ig g wn en oy itution: the Constitution. : Tema arising from individual legal acts and tTansactiong, ments may be created by private individuals (eg. contracts, wins on 3 association), or they may be issued in an institutional context (eg vey ‘mons to juror, an arrest warrant, a divorce decree), Sum, We may classify these texts as ‘primary legal texts’ because they have the impor, characteristic of producing legal effects. We examine many such texts in this beak Primary legal texts typical of the international and EU legal orders — Treaties, e.g. the 1969 Vienna Convention on the Law of Treaties, the Conventions of 1949, the Treaty on European Union; certain non-bindi texts such as the Universal Declaration of Human Rights are similar to this text type and may have indirect legal effect. — In EU law: secondary legislation (acts created by the EU institutions, such a regulations, directives), — _ Resolutions of decision-making bodies such as the UN Security Council, UN General Assembly or European Parliament; — Texts in connection with dispute resolution, e.g. judgments of the IC] and other international courts and tribunals, arbitral awards, ‘We examine various texts from the international and EU legal orders in this book Secondary texts: academic and professional erature Secondary legal texts typical of a common law legal system are academic and Provessional literature used in connection With the study and practice of law and include the following (see 1.4.2 below for details of these text types); jextbooks, cases and materials books law reviews dictionaries and other works of legal reference, Secondary legal texts typic in i y Pical of the international and EU legal (ents found.in the common lan bon specialise, respectively, in inset ate similar Pecialism such as international human rights law) or EU j,y.°""@tional law m2 Textbooks, Case Books and Law Reviews 14s ‘Textbooks tbook presents and explains a whole branch or field of the law (e.g. criminal A ui nd law, EU law, human rights law). Written by an expert jurist, the textbook i idea a coherent description of the law, and every comment is backed up by le reference to the legal source, usually in footnotes (the section of a statute, rai ame of the case that is precedent for a rule etc). Textbooks are especially yy able in a common law legal system, where the law is not stated in general ‘odes put is to be found in a number of sources, principally legislation and case law (precedent). : ‘A textbook is usually several hundred pages long and provides an overview of the subject as well as detailed analysis and evaluations of developments in the Jaw. If there is a branch of law in which you are especially interested, by using the index of the textbook you can easily find introductory pages, or a specific section or chapter of the book you would like to read. Textbook explanations are also excellent for finding definitions of legal terminology. We shall read some extracts from textbooks on contract law in chapter eleven. Cases and materials books Cases and materials books are edited collections of extracts from the most impor- tant precedents (cases) and other source materials (e.g. legislation) in a specific branch of the law, published in a single volume (e.g. cases and materials on con- stitutional law). The collection is compiled by an expert in the field, and the book may contain analytical comment in addition to the source materials themselves. These books are very convenient to use for students; however, they do not sub- stitute for the law reports—published volumes containing complete texts of judg- ments that may be cited as the source of a legal rule in common law systems.°$ Law reviews {2 reviews are important for the in-depth analysis and criticism of legal devel- Spments found in the leading articles, essential for academic study and research. Ronee Published periodically and may be general, such as the Law Quarterly erie Ot the Harvard Law Review, or specialised, such as the Criminal Law "and national or international.15.1 Text Types across Different Legal Orders A statute, a judgment, a summons, a contract and a treaty are different types of ‘law, such as the Treaty of Rome, differs from an instrument of private law such as a written contract, even though both texts are based on agreement and cre- ate legal rights and duties for the parties. We may expect that written contracts from different legal systems, particularly in the common law world and in theised sphere of international commercial transactions, will be Benera aes some aspects of language and content, including terminology i context to another. Oo ae weedia a specific text type such asa judgment in differ, orders, we may find both similarities and differences in aspects such as conten text organisation, linguistic and judicial style, and even functions. For example, the judgment of an English superior court is noticeably different from judgment of the ECJ, and performs slightly different functions within system,” although both texts have the principal function of determining dispute before the court. | : Legislation, too, being an expression of national sovereignty, may vary from one legal system to another, although we can expect to find certain similarities in the texts of all legislation, including EU acts such as regulations or directives, nt legay e the legal the legal 1.5.2 The Function of Legal Texts: Producing Legal Effects We may distinguish in different ways between the texts mentioned in 1.5. 1, above. However, they are all undoubtedly legal texts. They share the defining character. istic of primary legal texts: they produce legal effect. We would suggest that the Purpose or function of this primary class of legal text is, precisely, to produce legal effect: to create, impose, define, modify, enforce, or extinguish legal rights and obligations, That is why legal texts are instrument: produce legal effects and regulate significé Property rights, business affairs and eve role of language ii s of such paramount importance: they ant aspects of people’s lives, such as their n family relationships. The characterising texts is to perform legal actions; we say that it is S mative. In fact, in legal texts we can find certain linguistic forms not found in other types of English text, that are typically used in legal language to obtain this performative function. For example, in texts such as laws, treaties and contracts, we frequently meet verb forms usi ing the modal verb ‘shall’ It_is not used with future reference as in general English, but produces the legal effect of imposing an obligation or granting a po er, oe ‘Observe these examples fern the texts examined in 1.3 above: In a treaty: ‘Everyone’s right to life shall be Protected by law? From Article 2(1) ECHR. The use of shall be protected imposes the obligation on the States “pally to protect everyone's right to life, = nag legislative text: ‘The House of Representatives ... shall have the sole Power of impeachment, From Article I, § 2, cl 5 of the Constitution ofthe United States. By these words, the power of impeachm ees : 2 lent unc Constitution is granted exclusively to the House of Representatives, ee tna cata Rte the Agent the Principal shall act dutifully and in go . Of shall act in this clause imposes the Principal to act according to the specified ‘dander a ety 1.5.3 Not Just Documents: the Role of Language in Law A legal text may be the expression of individual choice (e.g. a will), or agreement in personal or business relations (e.g. a contract, articles of association, etc); it may be the expression of the will or decision of a body which, in a jurisdiction, has r to take measures affecting people’s lives (the decree or judgment of a court, the enactment of a legislature). In these examples, n 7 the legal text represents more than just documentary evidence: it embodies the choice, agresmen, decbion 6 lecision or enactment, In other words, that choice, agreement, etc is given effect through the language used in the legal text-itself. As a result, legal texts and the language used in such texts to create legal effects are crucially important. What, for example, is the effect of the following clause in a contract? The Principal hereby appoints the Agent as its agent for the promotion of the Products in the Territory, and the Agent hereby agrees to act in that capacity, subject to the terms and conditions of this Agreement. This clause, at the beginning of a commercial contract, has the effect of creating the relationship of Principal-Agent between the parties (‘The Principal hereby appoints the Agent ... the Agent hereby agrees to act in that capacity’). The clause defines the scope of the agency relationship: it concerns the promotion of certain products in a certain geographical area (terms such as ‘Products’ and “Territory, marked by initial capital (or ‘upper-case’) letters, are defined precisely in a previ- ous clause of the contract). The-clause also stipulates that the agency relationship is legally regulated by (‘subject to’) the contractual terms (‘terms and conditions’) contained in the contract (‘Agreement The example shows how even a single, short sentence from a legal text can produce a quantity of legal effect, significant for the people affected by it—in this case, the parties to the contract. Itis not surprising, then, that Jawyers—and perhaps this is especially true in the common law wworldare tadtionally so attentive 10 Janguage in the law. As we saw at the beginning of this chapter, Lord Denning, a prominent English judge, a advising young lawyers, focused on the importance of words—the lawyer's ‘tools of trade’; ee When you are called upon to address a judge, itis by them that you will hope to persuade the judge of th You have to interpret a section in a Statute or a paragra| your words which count most. leis | ¢ rightness of your cause, When ph in a Regulation, you have tostudy the very words. You have to discover the meaning by analysing the words—one by one—to the very last syllable. When you have to draw up a will or a contract, you have to choose your words well. You have to look into the future—envisage all the contingencies that may come to pass—and then use words to provide for them. On the words you use your client’s future may depend.,7! , We can note the power of language in the law: it is not purely expressive (as in literature) or descriptive (as in science and many ot! ner disciplines); language in a legal text does not simply describe phenomena which exist independently of the linguistic formulae in which they are expressed. Instead, legal principles are embodied in words, and this special relationship between language and law is par- ticularly evident in certain types of legal text, notably legislation. In the words of the great English jurist Sir John Salmond: The very words in which it is expressed—the litera scripta—constitute a part of the law itself. Legal authority is possessed by the letter no less than by the spirit of the enactment ...77154 written and Oral Language in the Law this book our attention is focused on written legal texts and language. Lord In ning, in the quotation set out in 1.5.3 above, pointed out the importance of Oo oral and written language for the aspiring lawyer. In the courtroom, oral language is a vital instrument for the lawyer to persuade the judge to decide in favour of the party he or she Tepresents. In the Anglo- ‘American legal system with its adversarial form of trial, the oral Proceedings in court are atthe centre of the judicial process, in both criminal and civil cases The Anglo-American civil trial provides the ideal forum for raising problems in this discursive manner. Throughout its history it has been strongly marked by the require- ments of trial by jury, although today it is only in the United States that the jury has any practical importance in private law. The proceedings take place in a single session, spread over several days if Necessary, and all the facts, as well as questions of law, are orally presented there and then by the litigants and discussed in an open and discursive manner, with the judge taking part.75 Written documents certainly have a role durin; ig the preparatory phase. For exam- ple, in a civil case, before the all-important day in court, a series of written docu- ments initiate and support the oral Proceeding, with each party serving a formal written statement of case”® on the other. However, even the judgment of the court will be pronounced o} in almost all cases (except for the Supreme Court) and only subsequently written down wo: rd for word, for publication in the law reports. In fact, the availability of the fin ten text of the judgment in published form is necessary to the operation judicial precedent as a source of law sain Taw gece intees for hundreds of years accurate written reports of judgments have been published, providing a record of judicial Pronouncements.77 We must observe that written texts are enerally more important than spoken -Gubuaet in the law. An authoritative written text is often the final legal result obtained after a process of negotiation (as of a contract or treaty) or debate (as of a law enacted by Parliament), or of oral Proceedings as described above (the Published text of a judgment). In conclusion, oral language is clearly a natural and integral part of legal activ- wand interaction, and'a Tawyer's choice of words is fundamenta in legal situa tions such as the courtroom. However, written texts, importantly, provide a fixed and permanent record of legal acts and events, and for certain texts, such asa Statute or a contract, are the direct source of legal obligation.