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The past, present and future of legal English in the UK and abroad “It has often been said that law and language are intimately linked, as language structures the way we think and, consequently, the way we think as lawyers”1. As Sjef van Erp points out, the language of the law influences the way we perceive it. In this paper I will be looking at how this language has changed and is still changing due to various political forces aimed at ensuring uniform international legal standards, and at how such changes affect the very way in which the law is perceived. I will start by briefly examining how legal English developed within the United Kingdom as a result of various historical events, before moving on to consider the use of English as an international legal language, with particular reference to the EU. Subsequently, I will look at how domestic and international factors are helping legal English develop into an increasingly uniform language whose future is only partly in the hands of native speakers.
1. The English legal system: its development and language 1.1 Development The legal system in England has evolved from three sources, namely the common law, equity and statute law. The development of the first two, in particular, does much to explain the complexity of legal English, and before moving on to strictly linguistic considerations, we will briefly look at these two areas. The common law originated as a direct consequence of the Norman Conquest in 1066, as matters originally handled by local courts began to be handled by the King’s courts, and by the justices who travelled the country on his behalf. This gradually led to a
based on natural justice and moral rules. In order to bring a matter before these courts. The complaints were initially dealt with by the King in Council. moreover. created problems of jurisdiction. since common law courts only recognised legal ownership and possession based on the feudal system. These appeals frequently concerned property rights. and deals with many of the matters traditionally brought before the Court of Chancery. Courts in fact may . Over time. the rules of equity were often in conflict with those of the common law. Due to the very nature of their conception. Over time. but were later delegated to the King’s chief minister. those that felt they had suffered injustice as a result appealed to the King for remedy. An important point to remember is that the principles of common law and equity are both subject to the doctrine of stare decisis. since under the common law a right existed only if there was a procedure for enforcing it (ubi remedium ibi ius). with the result that modern courts administer both law and equity. and the issue was not resolved until their unification under the Judicature Acts of 1873-75. Moreover. As the writ system caused common law to become increasingly rigid and procedureoriented. and strict adherence to the forms was vital to success of an action: “common law claims became highly technical. the Chancellor. each type of action developed its own procedural peculiarities. the Chancellor. An action was initiated by making a special request to the royal official. asking him to deliver a writ to the court. with the nature of the form of action often determining the content of the law and whether a particular claim could succeed”2.situation in which the custom of these courts became the law ‘common’ to England and Wales. or binding precedent. the Court of Chancery. but in such cases equity would prevail. The principles of the two original systems however survived. bankruptcy and probate. namely business disputes. precise procedure had to be followed. and would reject any claims based on rights of tenancy or trust. which applied rules of equity. each with their own courts and procedures. the decisions of the King’s courts actually created law. the Chancery Division was created within the High Court of Justice. the continued existence of two parallel systems. and ultimately led to the creation of a separate court. In other words.
in a prior decision. Latin was the preferred language for written law. the court ruled that a certain term or formula had a particular meaning. The problem with a French-dominated legal system was that the uneducated Englishman who had a case before the court could not understand what was being said. however. and thus of the courts.decide whether or not equitable principles should be applied in a given case. 1. but not on how they may applied. In 1362. Eventually. being bound by previous equitable rulings. By the 14 th century. As we shall see. however. The Norman conquest obviously led to the adoption of French as the language of official use. Although clearly a positive move in terms of access to justice. estoppel and bail. French dominated also this field. tort. and translating the original formulas was not always a straightforward task. where its influence on the spoken legal language of the time was extensive. As mentioned before. If. Examples of the vast French terminology still basic to legal English vocabulary include damage. following the introduction of printing and its standardising influence on written language. this is one of the main arguments against linguistic change presented by lawyers.2. Language Legal English did not actually start out life as just English. the Statute of Pleadings3 established that English was to be the language of court proceedings in order to deal with this. then this precise term or form would have to be adopted in future in order to achieve the same particular meaning. Nevertheless. The doctrine of binding precedent is one reason why language has played such an important role in the common law. this legislation brought with it a series of linguistic and legal complications. that statutes began to be printed in English. form was of vital importance in the rigid common law procedures. It was not until the end of the 15th century. some of the French terms disappeared and others were simply integrated into the language used by the legal profession. and continued to be so for two centuries after the Conquest. The language of legislation and the courts was in fact predominantly French and Latin. . lien.
there was some concern as to whether different words with the same referent actually had the same meaning. The introduction of such words was mainly due to a desire prevalent in this period to improve English by means of the importing classical terminology and imitating the rhetorical effects of the classical writers. null and void. having moreover been set up to remedy it. many lawyers defend this linguistic fossilisation as a guarantee of stability. the Middle English period saw the introduction of many words that lawyers continue to use today. and right. aforesaid. legal drafters began to include both terms. Meanwhile. and the resulting constructions. and there4. Legal English in the EU and the wider international context . the introduction of Middle English terms and the importation of terms from Latin. 2. witnesseth. Examples include: last will and testament. As we have seen. such as affidavit. such as notwithstanding. but as we shall see. legal English is thus the result of rigid procedural forms and terminology translated from French into English. have continued in use up to the present day. Just to be safe. despite their having fallen from general use. English flourished. During the 16th and 17th centuries many technical terms were introduced. composed of synonyms or near synonyms. the maintenance of original French terms. alimony and subpoena. title and interest. Here. all borrowed from Latin and all still used today. which had never been bogged down by rigid common law procedure. free and clear. Accusations that the language of the law contains antiquated vocabulary5 and syntax are thus clearly founded. here. breaking and entering.At the time that the shift in common law courts was being made from French to English. in the courts of equity. and the many compound words based on where. terms and conditions.
Beveridge. contracts and tort. many scholars propose on one hand a simplification of legal language (in both its common law and international . such a system is in many ways fundamentally different to English law. administrative) and a constitution. and despite differences in emphasis. The use of legal English as a lingua franca has many potential pitfalls. obviously not confined to Englishspeaking countries. while agreeing with the need for an ‘international’ legal English. civil. penal. however. claims that the English used in international contexts (in particular. for example. however. who are creating these international contracts and of course they are going to use the language and structure and form with which they are comfortable. We have seen the particular historical events behind the development of legal English. the concepts embodied in the terminology are widely recognised. But even if it is not this. and the extent to which it remains based on common law language.g. however. and Alcarez has gone so far as to say that the “dividing line between the two systems is becoming increasingly indistinct”6. The need to publish EU legal documentation embodying civil law concepts in English. However.7 Whatever one’s opinion on the current state of international legal English. meanwhile. has inevitably influenced the UK legal system itself. The UK’s membership of the EU has brought a number of obstacles of a legal-linguistic nature. not least because the legal systems of other countries often bear little resemblance to that of the UK. working in international law firms. but rather the drafter is a civil law lawyer who is a nonnative speaker of English and the governing law of the contract is that of a civil law country. contracts) is in many cases still anchored to common law language: Often it is English-speaking common law lawyers. are disciplined in all legal systems. this language continues to be used because our common-law contracts are being used as precedents as they are written in English. The need to focus on similarities to overcome difference is in fact at the heart of legal English as used in an international context. With its reliance on a series of codes (e. and it would be absurd to expect terminology which such ancestry to be universally applicable.The use of English as a legal language is. since the EU legal system is based on the Continental ‘civil law’ or ‘codified law’ system. and also plays a major role in international law.
and as Snijders remarks. “legal practitioners will think that the advantages of innovation are not worthwhile compared to the loss of knowledge and skill entailed by it”14. hopefully resulting in “death.varieties). Cutts maintains that “in most legal documents only a few words are genuinely technical. ‘whereof’ and ‘thereof’. Various reasons have been offered to explain this reluctance. to be preciously guarded. with the more cynical claiming that by enveloping their language in a mystical aura. many lawyers are unwilling to abandon their outdated formulas because they consider them “less prone to semantic change and so have the advantage of clarity and certainty to those that understand them”15. lawyers aim to perpetuate their elite social and professional status and thus. and one of its favourite targets is the legal profession10. or at best very limited life. Others argue that due to the law of precedent. their kissing cousins ‘herein’. 3. The rest are plain words with ordinary meanings. Moves towards the simplification of legal language in the UK Legal language has long been subject to criticism for its hermetic and convoluted nature. He advocates legal language based the use of such plain words and inspired by a desire for clarity. justify their high fees. and ‘hereinbefore’ and their wicked uncles ‘hereby’. These two clearly related goals are being pursued by a number of institutions. Alcarez and Hughes. and that the use of such forms is thus the best guarantee of justice. jargon and misleading public information” 9. not least because many lawyers are extremely resistant to linguistic change. In Britain. Moreover. Still others see the use of legal language as one of a lawyer’s fundamental professional skills. ‘thereby’ and ‘whereby’”12. They argue that what may merely seem . and in the 19th century Jeremy Bentham spoke out against legalese as “excrementitious garbage”8. reference is repeatedly made to past decisions and authoritative texts written in the traditional language. or legal-flavouring words that smell of the law but can be replaced by plain words”11. as we shall now see. however. and on the other a drive for uniformity. the Plain English Campaign was set up with the aim of fighting against “gobbledygook. ‘hereinafter’. for the three ugly brothers ‘hereof’. amongst things. doubt that any “attempt at simplification can ever be more than a cosmetic operation designed to reassure the general public”13.
As Alcarez and Hughes rightly point out. Moves towards the uniformity of legal language in the EU and internationally The EU is itself an active supporter of the Plain English campaign. however. which openly acknowledges its debt to Martin Cutts’s The Plain English Guide. moreover itself presented in refreshingly direct everyday language. Fight the Fog17. Clinging on to obsolete forms simply because of their beauty may arguably be worthwhile in some modes of discourse (religious ritual. claiming that we are beginning to see “a more contemporary idiom creeping into both the speech and writing of lawyers”16. but in the wider international field. the EU has published the Joint Practical Guide19. A case in point is the formula “signed. They also note the first signs of change. Such a public declaration of language policy. this doesn’t mean it should be held up as a model for contemporary English. which states that . without any adverse effects on the guarantee of justice. and serves to “make sure [the] message ends up in [the] readers’ brains. The booklet is aimed at “all writers of English at the European Commission” involved in drafting or translation. sealed and delivered”. where clarity to the contemporary reader is paramount. I am more inclined to view many instances of this as the perpetuation of antique forms just for the sake of it. In a drive to achieve not only simplification. despite the fact that deeds are no longer actually either sealed or delivered. “no form of discourse can feed off the past alone”. is bound to further encourage the simplification of legal language. A rejection of antiquated language has in fact already taken hold in UK statute law. for example). not just in the UK and the EU. but such a stance is hardly defensible in the field of law. and where democracy demands the removal of any unnecessary obstacles to the understanding of language which is already per se technical. 4. not their bins”18. but also uniformity. and it is to be hoped that the legal profession as a whole will be encouraged to follow suit.pleonasm in fact allows a high degree of precision to be achieved. often found at the foot of a deed. having published a booklet. While one may love the Medieval feel of legal language.
Another aspect worthy of note for our purposes is the consideration that member states may need to transpose acts into their own legal framework. so that citizens and economic operators can identify their rights and obligations and the courts can enforce them.20 The first aim is clarity. and cross-cultural. in accordance with uniform principles of presentation and legal drafting. This is certainly understandable from a more pragmatic point of view. where necessary. and the Guide in fact states that “terms which are too closely linked to national legal systems should be avoided” 22. the Member States can correctly transpose those acts in due time. chosen English as their language of communication. English is the one in which cross-cultural comprehensibility is most actively pursued and most likely to be achieved. have. having been drafted according to principles of plain English. clearly. everyday language should be used”21.Acts adopted by the Community Institutions must be drawn up in an intelligible and consistent manner. in fact. The source system is. in order to be able to express it simply. in order to ensure unambiguous interpretation while facilitating access to legislation on the part of citizens. Moreover. as mentioned. This presupposes a linguistic drafting approach which avoids culture-based jargon and opts wherever possible for simple terms based on common denominators. At the same time. this choice exacerbates the language problem as the English legal language is closely connected with . Texts written in this variety of English are in themselves bound to have great influence. and the Guide in fact goes on to suggest that authors “should attempt to reduce the legislative intention to simple terms. simply because. but also legal-linguistic change in the UK. is a variety of legal English which is both simplified. civil-law in nature. which try to establish a common European legal framework. in spite of all the existing linguistic diversity. The result. of all the EU languages. as van Erp remarks. In so far as possible. and so that. the working groups. and their suitability for transposition into domestic legislation is bound to further boost the process not only of legal. as it obviates the immediate need to develop multilinguistic uniform terminology and makes it easier to focus more directly on the legal problems to be solved.
Serbian.23 I would argue that this privileged position of English. simply because non-native speakers from civil law systems will have no inclination. which sometimes fundamentally differ from civil law concepts. in his report on the Principles. inevitably leads to simplification and the abandonment of excessive jargon. as seen above. all these documents are available in English- . require. they play an increasingly important role in assisting parties in negotiating and drafting cross-border contracts”27. Bonell. their written reports. it is in the area of trade and international business that we find two sets of guidelines aimed at standardising international legal instruments.J. Moreover.English legal concepts. were in English. The Principles are published in the three official languages of the International Institute for the Unification of Private Law. Russian. namely English. mentions that “also in view of the fact that the UNIDROIT Principles are available in virtually all the principal languages of the world. and thus presumably discussions. or indeed reason to adopt ill-fitting common law terms to express civil law concepts. They are much more likely to prefer ‘neutral’ language. Korean. as well as in German. Spanish. Turkish and Vietnamese. M. and the fact that it is being used prevalently by non-native speakers. Chinese. namely the Unidroit Principles of International Commercial Contracts24 and the United Nations Convention on Contracts for the International Sale of Goods (CISG)25. Moving outside the confines of the EU. Romanian. and the members of the working group responsible for drawing up the Principles were from wide variety of countries and language backgrounds29. With the exception of two working documents originally written in French (but nevertheless translated into English). as is clear from working group documents available on the Institute’s website30. and as such they have had wide-ranging influence26. French and Italian. Adopting a similar approach to that used in EU drafting seen above. However. I do not feel that “this choice exacerbates the language problem”. not least because that is what the EU guidelines. The original aim of these sets of rules was of course to provide standardised international legal instruments. despite van Erp’s fears. the Principles consciously “avoided the use of terminology peculiar to any given legal system”28.
as we have seen. Personally. with common law English shifting more towards the civil-law-based international version than the other . the language is being taken up by non-native speakers and moulded to their needs. This is also due to the fact that not all countries/languages have their own official text of the convention31. French. thus ensuring wider comprehensibility. the future As we have seen. although official versions of the CISG are available in English. Spanish. Some are the result of conscious efforts to effect language change. any kind of international legal uniformity is likely to bring linguistic standardisation along with it. the increasing consolidation of an international legal English based on civil law principles and produced by groups composed prevalently of non-native speakers. reference is most often made to the English text of the convention in international lawsuits. I have the impression that these two varieties of legal English are likely to become increasingly similar. Portuguese and German. Conclusions. Chinese. Of course. and that the English version is evidently considered the most widely understandable. there are various forces. even when neither of the litigants is from an English-speaking country. in the EU and in the international community at large. Here. and as we have seen. scholars are somewhat divided on the issue. while in other cases. Russian. within the UK. Arabic. It is a matter of debate as to how much common law language influences international legal English and how much the opposite is the case. working to achieve uniform legal English. It is in fact the multinational nature of such groups that saves the entire process from becoming just another case of Anglo-American linguistic imperialism. and as our opening quote implies.only versions. 5. the fact that the members of international legal drafting groups work in English has the ‘side effect’ of facilitating linguistic uniformity despite this in itself not being their main aim. viz. It will be of no surprise at this point to learn that. The consequences of this approach are of course identical to those seen above with reference to EU legislation.
preferably by interpreting or by incorporating European rules in their general standards.way round. disturbing effect on the national system. the most suited to the challenges posed by the environment. antiquated “legal flavouring has virtually gone from modern UK laws. This means that the national authorities have to adapt their national rules. This process is already underway. Many may miss their wherebys hereinafter. but I for one will be more than happy to trade them in for a legal lingua franca understood without any risk of ambiguity in an increasingly global market.33 Whereas Snijders seems to see this as a cause for concern.e. Moreover. i. which proves how redundant it is elsewhere”32. . We will see the survival of the fittest. in the sense Darwin originally intended. thus also leading to a simplification of UK legal drafting. linguistic and legal processes go hand in hand. I do not feel that such evolution need necessarily be negative. as Snijders reminds us: European concepts may have a disintegrative. The result is a kind of creeping Europeanisation of national law. and as Cutts points out. like good faith or negligence.
unidroit. in particular. 32 Cutts. van Erp. Principles of International Commercial Contracts. Legal Translation Explained. A revised edition was brought out in 2004. A brief. an independent intergovernmental organisation based in Rome.co. . B. Walker & Walker’s English Legal System.ejcl. Oxford 2005. Hughes. Rome 2004. 101. the Netherlands. whereto.org/english/workprogramme/study050/s-050-listofdocs1998-2004. 2 R. and have even set up their own organisation.. Clarity. 142. Egypt. 30 http://www. Alcarez. op. 19 Office for Official Publications of the European Communities. Ward. Brazil.J. cit. China. hereby. UK. cit. is presented as an unofficial translation: “traduzione non ufficiale convenzione delle nazioni unite riguardante i contratti di vendita internazionale di merci” (my emphasis). Cutts. Denmark. 3 The statute was of course written in French. p..pdf. Australia. Manchester 2002. p. p. examples abound.org/Hieronymus/Beveridge. 6 E. The official texts in the various language versions can be found at http://www.org/73/editor73. Ghana.. Snijders. 28 UNIDROIT. 23 S. 12 Ibid. 22 Ibid. p.. B. thereinafter. p.plainenglish. p. 21 Ibid. 141. 13. Cutts. thereby. 10 It should however be said that many lawyers themselves support the campaign. 11. Joint Practical Guide of the European Parliament. 13 E. 7.. the Council and the Commission for persons involved in the drafting of legislation within the Community institutions. but nevertheless useful overview can be found in D. USA. Lithuania and Hungary. 25 Ratified in Vienna on 11 April 1980.tradulex. London 2002 (2nd edition). p. p.4 (November 2003). Belgium. Luxembourg 2003. available at http://www. p. vol. B. “Legal English – how it developed and why it is not appropriate for international commercial contracts”. available at http://www. cit. viii.html. The Plain English Guide. Beveridge. p.J. 14 W. 8 Quoted in M.. Snijders.eu/translation/writing/clear_writing/fight_the_fog_en.ch/cisg/materials-text. 33 W. p. wherein. 7 B.pdf. in Uniform Law Review. 4 Examples include: whereby.html. at http://www.html. 11 M. thereto. vol.1 S. 29 Italy. The Unidroit Principles were first published in 1994. p.ejcl. thereupon. Hughes. 31 The Italian version.. 7. despite being the subject of Italian Law no. op.3 (September 2003). 15 Ibid. cit. 48. 5 As we have seen.pdf. 24 UNIDROIT is the International Institute for the Unification of Private Law. van Erp. Hughes. Electronic Journal of Comparative Law. 19. France.uk/. amongst others. cit. available at http://www. “UNIDROIT Principles 2004 – The New Edition of the Principles of International Commercial Contracts adopted by the International Institute for the Unification of Private Law”. The English Language. 17 Available at http://ec. Alcarez. 15. hereinafter and hereto. Rome 2004. p. 18 Ibid. op. Crystal. Russian Federation. 5. Electronic Journal of Comparative Law. and for the Chinese Contract Law of 1999. 27 M. op. p. op. A. 5. to combat the use of legalese. Canada.. commercial law between States. 140. 7. op. cit. have been chosen as a model for the new Civil Codes of Estonia. Bonell.. 16 E. for example. 9.cisgonline. for example. Wragg. harmonising and co-ordinating private and. 1. “Building a European Contract Law: Five Fallacies and Two Castles in Spain”. Oxford 1996.org/ecgl/74/art74-2.. p. 20 Ibid. 142.europa. p. aiming to study needs and methods for modernising. 26 The Unidroit Principles. Germany and Japan. 765 of 11/12/85. Alcarez. 9 Quoted from the Campaign’s website.
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