1

CHARACTERISTICS OF ENGLISH LEGAL LANGUAGE

By Jens Peter Hovelsø

TABLE OF CONTENTS

Introduction
1 The origins of English legal language
1.1 Before 1066: Celts, Anglo-Saxons and Vikings
1.2 1066-1362: Penetration of Latin and French.........
1.3 After 1362: The slow roll-back of Latin and French
2 The directive function of legal language...........
3 The structure of legal language....................
3.1 Introduction to the structure of legal language ...
3.2 Level of formality.................................
4 Sentence structure in legal language...............
4.1 Long complex sentences.............................
4.2 Periodic sentences.................................
4.3 Adverbials between the verb and the object.........
4.4 Long adverbials between auxiliary and main verbs...
5 The adverbial phrase...............................
5.1 Adverbial + participle.............................
5.2 Archaic adverbials.................................
6 The noun phrase....................................
6.1 Rare use of pronouns...............................
6.2 Dominance of postmodifiers ........................
6.2.1 Postmodification by a non-finite clause............
6.2.2 Postmodification by a "such...as" relative clause
7 The verb phrase....................................
7.1 Special use of "shall".............................
7.1.1 Tentative rules regarding the (non-)use of "shall"
7.1.1.1 Use the present tense after the word "if" .........
7.1.1.2 Use "shall" only for the imperative................
7.1.1.3 Use present tense in definitions instead of shall
7.1.1.4 Avoid using a negative subject + affirmative shall
7.2 Archaic use of "said"..............................
8 Frequent use of strings of synonyms................
9 Pragmatics in writing English legal texts..........
Bibliography.......................................
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INTRODUCTION

This material is intended for students of legal English at Aalborg University. The purpose of the
material is to familiarize the student with the characteristics of English legal language as regards
syntax, lexis and to some extent pragmatics. Hopefully, the material will help students improve their
understanding of English legal texts as well as their ability to adapt to legal style in translations into
English of legal documents, in accordance with the requirements of the communicative situation.

Reference is made throughout to the ongoing discussion within the legal community between
traditionalists and advocates of "Clarity for Lawyers" or "Plain English Style". And although the
material is intended to be descriptive rather than prescriptive, it does contain recommendations to
avoid certain definitely outdated legal mannerisms. As an important contributor to the literature of
English legal language has said,"When and when not to use particular language is the lawyer's daily
decision. If some reason requires special language, the choice is made. If there is no reason for
departure from the language of common understanding, the special usage is suspect. If, in addition, a
special usage works evil, it should be abondoned, and quickly." (Mellinkoff 1963:i) As we shall see,
the case may not be quite as simple as that. However, already Thomas Jefferson, the main author of
the American Declaration of Independence and President of the USA 1801-1809, commented on the
complexities of English legal documents

which, from their verbosity, their endless tautologies, their involutions of case within case, and
parenthesis within parenthesis, and their multiplied efforts at certainty, by saids and aforesaids, by
ors and ands, to make them more plain, are really rendered more perplexed and incomprehensible,
not only to common readers, but the lawyers themselves. (Garner 1987:334)

The material begins with a short outline of the history of English legal language, continues with a
more extensive analysis of the lexical and syntactical characteristics, and ends with a discussion of
pragmatics in writing English legal texts: Should traditional legal writing be followed, or should
greater clarity or simplicity be the goal?

A word of caution: This version is based on a scanned copy of the original text, my harddisk
containing the original having suffered a fatal breakdown. Consequently, there may be
occasional typographical oddities left in terms of spacing, spelling, etc.

August 1995.
Amended and abbreviated in January 2004.
Jens Peter Hovelsø
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1. The origins of English legal language

1.1 BEFORE 1066: CELTS, ANGLO-SAXONS, AND VIKINGS

The British Isles have seen significant changes in terms of the origins of its population over the
centuries, in particular until the Norman Conquest in 1066. The original Celtic population was driven
into the fringes of the islands by the Angles, Saxons and Jutes, whose invasions began in the year
449. The language of the invaders, known as Anglo-Saxon and later as Old English, replaced the old
Celtic language, except for a number of relics, mostly in the form of place names. Some of the basic
words in the legal vocabulary actually date back to the early Anglo-Saxon or Old English period, for
instance "guilt", "guilty', "hire", "manslaughter", "murder", “oath", "own", "sheriff", "swear", "thief",
"will" and "witness". All of these words are not confined to legal English, but form part of the general
English vocabulary. However, a few words dating back to that distant past are still in use in legal
language exclusively, namely the adverbs formed from "here-“, such as "hereafter", "herein",
"hereof", etc. (Thrysøe 1978:17)

The Vikings, whose raids on the British Isles began in 790 and later resulted in permanent
settlements, also left their stamp on the English language, although Old English and Old Norse were
so similar that the two peoples were able to understand each other, much like Danes, Norwegians and
Swedes today. The most basic words were common to the two languages, for instance: "man", "wife",
"father", "mother", "folk", "life", "house", "will", "can", "meet”, "bring", "hear", "see", and many
more. A few legal terms from that period survived the Norman Conquest, such as "gift", "loan", "sale"
and "wrong", as well as "law” itself (from "lagu"), "outlaw" ("utlagu"), and "mål", which eventually
disappeared from the English language (apart from the compound "blackmail"), but is still part of the
Danish language, also in the sense in which it was once part of English, namely that of "legal action".
(Sheard 1970:174) Compare for instance with Danish "kæremål" and "søgsmål".

1.2 1066-1362: PENETRATION OF LATIN AND FRENCH

The system of English law as we know it, basically the Common Law, evolved after the Norman
Conquest: The Normans brought with them a distinct legal profession, a centralised system of justice,
and a wealth of legal concepts and procedures. After the Conquest, the spoken languages of the
country were English, French (the everyday language of the Normans) and Latin, the language of the
clergy. (It is estimated that about 10,000 French words were absorbed into English and that
approximately 7500 of these are in use today.) The written languages of the law were at first Latin and
English, with Latin being the dominant of the two. By the 13th century, however, French had taken
over as the language of the law, "strangely enough when French as a language for communication was
dying out and the English language was rapidly replacing it”. (Maley 1994:12) The widespread
explanation of this phenomenon is that the lawyers wanted to have a "secret" language not used by the
population generally, in order to preserve a professional monopoly.
1.3 AFTER 1362: THE SLOW ROLL-BACK OF LAW LATIN AND LAW FRENCH

The first attack on French as the language of the law came with an act of Parliament in 1362, the
Statute of Pleadings, which recommended that English should be used in the oral pleadings in court,
as French was not always understood by the parties to the case. (The Act itself was written in
French!). The act did not really change anything, but over the next centuries English did slowly
reassert itself in law. Another landmark was the act in 1650 titled "An Act for Turning of the Books
of the Law and All Process and Proceedings in Courts of Justice, into English". From 1704 onwards
all law reports have been in English, which has also been the language of the law in all other legal
contexts. About the centuries-long influence of French in legal matters, Sheard (1970:225) comments:

We may therefore expect French, so long the official language of the law, to have had
strong influence on our legal vocabulary, and in Pollock and Maitland - History
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of English Law (I, pp. 80-1) we find: "It would be hardly too much to say that at the
present day all our words that
have a definite legal meaning are in a certain sense French words.. In the province of
justice and police with its fines, its gaols and its prisons, its constables, its arrests, we
must, now that outlawry is a thing of the past, go as far as the gallows if we would find
an English institution". And our French-named institution, Parliament, recently
considered doing away with even that survivor.

It is an exaggeration to say that English legal language is a sort of French, even if the number of
French loans is impressive. A few examples of verbs having to do with the actions taking place at law
illustrate this, such as: accuse, acquit, arraign, arrest, banish, blame, condemn, convict, indict, pardon,
plead, seize, sue, warrant. (Sheard 1970:226)

The French - and Latin - words that contribute to the legal vocabulary and have retained their original
form can be divided into two categories (in addition to anglicized words), for instance:

1. LAW LATIN WORDS KNOWN 2. LAW LATIN WORDS KNOWN

BY THE LAY PERSON ONLY BY THE SPECIALIST

affidavit consensus ad idem

alibi ejusdem generis
proviso ultra vires
prima facie mens rea
versus obiter dictum

3. LAW FRENCH WORDS KNOWN 4. LAW FRENCH WORDS KNOWN

BY THE LAY PERSON ONLY BY THE SPECIALIST

action chose in action

claim chattel
condition fee simple
damage feme sole

The contributions to the legal vocabulary from the different sources of Old English, French, and Latin
eventually resulted in confusion as to which term would be the proper one to use in a given context:
would "will" or "testament" to the job? In such situations the draftsmen would often choose to use
both words, just to make sure. The result is that English legal language is both wordy and often
characterized by strings of synonyms like "last will and testament", "keep and maintain", "deem and
consider", "fit and proper", etc.

The process of anglicising the language is slowly grinding on. For instance, the Sale of Goods Act
1979 replaced the old "French" word chose with the English synonym thing in the expression "chose
in action", which then became the slightly more meaningful "thing in action". (A simple explanation
of a "thing in action" is that it is something valuable but intangible, for instance a debt.) Similarly, the
legal remedy "stoppage in transitu" was rephrased as "stoppage in transit". (Kadar 1992:200,216)
(And today, the common term is “stoppage during transport”.)
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Illustration: Newsweek, 1999

In closing, consider this example of the language blend:

After a French marriaqe or an Old English weddinq, you have entered into O.E. wedlock,
which is the same as French marriage (as an institution) or the gratuituous complication
matrimony (Latin via Old French). You may buy a home in Old English or purchase it in
French, take possession in French and own it in Old English. You have an Old English
child, who will also be a French infant and a Latin minor. You write an O.E. will or a
Latin testament. In it you dispose of your French property which was once the same as
O.E. goods or French chattels, until both goods and chattels were limited to movables.
there was also a time when you could bequeath (O.E.) everything you could devise
(French), and you could once seriously devise a bed. In Old English you forgive debts,
and at one time you could pardon them in French. An O.E. sheriff or a French constable
arrests you for French larceny which is the same as O.E. theft or stealing. You get an
English lawyer or a French attorney who goes to a French court, approaches the O.E.
bench, and speaks to the French judge. The O.E. witnesses take an O.E. oath and swear
in Old English that their French evidence is not English hearsay. The O.E. foreman of a
French jury brings in a French verdict of O.E. guilty, and in a former day you might end
up on an O.E. gallows or a French gibbet, unless you got a French pardon. (Mellinkoff
1963:58)

2. The directive function of legal language

In short, the function of legal language is to impose rights and confer obligations, either on the entire
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population or just a segment. The rights or obligations are typically imposed or conferred by
lawmakers - in Britain Parliament, in Denmark the Folketing - or by individuals entering into
contractual relationships. In this context we are mostly interested in the language used in contracts.
However, examples of legal language lifted from legislation have been included.

Since the general function of legal language is to impose rights and obligations, the function is said to
be directive, as opposed to expressive or informative, for instance. Subcategories of the directive text
type found in legal language are typically those of permission, ordering, and prohibition. The
common characteristic of those text types is that the intention is to affect the behaviour of the receiver.

The typical form of directive language, the imperative, is seldom found in legal language. (However,
the headline of the Power of Attorney after the bibliography provides an example of an imperative.)
Instead, there is a tendency to use "shall", not to denote the future tense but to indicate an order. This
use is sometimes referred to as "legal injunction" (Quirk and Greenbaum 1973:54), exemplified by:
"The Vendor shall maintain the equipment in good repair." We shall return later to the imperative use
of "shall". For now, however, consider the difference between (a) "The Director shall give to the
Committee.." - which is a clear order - and (b) "The Director has the duty to give to the Committee..".
Is there actually a difference? If there is one it is that only (a) has the force of ordering, whereas (b) is
- at least at face value a description of a state of affairs. It is, however, quite clear that a description
like "The Director has a duty to give to the Committee..” has a directive language function.

3. The structure of English legal language

3.1 INTRODUCTION
For an introductory impression of English legal language, take a look at EXAMPLE 1 (try to consider
the textual features only, disregarding the unfamiliar legal terminology):
EXAMPLE 1 (extract from a Mortgage Deed):
THIS MORTGAGE made the ....day of .... One Thousand nine hundred and .... BETWEEN ... of ....
(hereinafter called "the Mortagor") of the one part and the Midland Bank Limited (hereinafter called
"the Bank" which expression shall include and extend to their assigns) of the other part
WITNESSETH that in consideration of the Bank making or continuing advances or otherwise giving
credit or affording banking facililies for as long as the Bank may think fit to the Morgagor upon the
terms that the Bank shall be secured as herinafter appearing the Mortgagor pursuant to every power
and by force of every estate enabling him in this behalf DOTH hereby as beneficial owner demise and
convey unto the Bank ALL AND SINGULAR the lands and hereditaments described or referred to in
the Schedule hereto Together with (in addition to any fixtures passing by reason of the demise
hereinbefore contained) all fixtures whatsowever now or at any time hereafter affixed or attached to
the said premises or to any part thereof other than and except trade machinery as defined by Section5
of the Bills of Sale Act 1878 TO HOLD the said lands hereditaments and premises unto the Bank for
the term of 4000 years from the date hereof without impeachment for waste and as to such additional
fixtures absolutely but as to all the premises subject to the proviso for redemption hereinafter
contained that is to say PROVIDED ALWAYS and it is hereby agreed and declared that if the
mortgagor or his successors in title shall on demand pay to the Bank all and every the sum and sums
of money which now are or shall at any time be owing to the Bank by the Mortgagor anywhere on the
current account of the mortgagor or any other account whether from the Mortgagor solely or from him
jointly with any other person or persons or from any firm in which he may be a partner including the
amount of notes or bills discounted or paid or other loans credits or advances made to or for the
acommodation or at the request either of the Mortagor solely or jointly or of any such firm as
aforesaid or any moneys for which the Mortgagor may be liable to the Bank or in any way whatsoever
together with in all the cases aforesaid all interest commission discount and other Bankers' charges
including leagal charges occasioned by or incident to this or any other security held by or offered to
the Bank for the same indebtnedness or by or to the enforcement of any such security then and in such
case the Bank shall at any time after such payment shall have been so made upon the request and at
the cost of the Mortgagor or his successors in title surrender and reconvey the said premises to him or
them or as he or they shall direct(..)(Example from Bunzel 1981:II)
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The textual characteristics of the Mortgage Deed in EXAMPLE 1 include:

1)The absence of indentations - the text appears as a solid block of text.

COMMENT: The absence of indentations has been explained both by the cost of paper (or rather
parchment) when legal writing originated centuries ago and by the desire to prevent tampering with
the text: It was difficult to add to the text when it was written as a solid block. Today, this style has
generally been discarded.

2)The use of capital letters in certain words that would not normally be written with an initial
capital letter or with capital letters throughout.

COMMENT: The use of capital letters in the first two words of the document - THIS MORTGAGE -
is a relic of the tradition in Medieval times to decorate the first letter or word; just think of old bibles.
Even closer to this tradition is the use of Gothic letters as seen in the opening words of many current
contracts. At the same time, using capital letters throughout the most important elements of a contract
may also serve as an aid to the understanding of the structure of the text, in particular in the absence
of punctuation:

THIS CONTRACT (the subject)

WITNESSETH (the verb)

It is still very common to begin a contract in this way:

A CONTRACT MADE on (date)

BETWEEN company X of (address)
AND company Y of (address)
WHEREBY IT IS AGREED AS FOLLOWS:

This type of "frozen" introduction to a contract is often referred to as a preamble.

Apart from the use of capital letters for decorative/ traditional purposes, and/or to aid the
understanding of the text, initial capitals are used to signify defined words. For instance, in the
document under study Midland Bank Limited is defined as "the Bank", and from then on it is referred
to as "the Bank". In this way a generic term takes on a specific reference.

3)The absence of full stops and punctuation generally.

COMMENT: As can be seen, the entire text of EXAMPLE 1 contains no punctuation at all.

However, punctuation should be used throughout as a guide to the meaning of the text. However, it is
still possible to come across legal documents without punctuation. Instead, spaces and capital letters
may be substituted for traditional punctuation marks:

The plan attached hereto is a copy extract from the Company's layout plan and is intended to indicate
only the approximate position and extent ot the plot which will be transferred to the Purchaser As
soon as practicable the Company will carry out a survey of the plot and following such survey will it
necessary prepare and supply to the Purchaser's solicitors for use with the Transfer an accurate plan
based on such survey showing the exact position and extent of the plot to be transferred to the
Purchaser The company hereby expressly reserves the right to substitute (for use with the Transfer)
notwithstanding the completion ot the sale and purchase the survey plan for the plan attached hereto
The company will take due care in the setting out of the Estate but differences between the plan
attached hereto and the plan to be attached to the Transfer may occur and it is hereby expressly agreed
 8

and declared that such differences shall not annul the sale nor shall they entitle the Purchaser to any
compensation or abatement in the purchase price provided that such differences do not materially
affect the value of the Buildings and the property.(Quoted in Adler 1990:68)

As Adler comments, it is so clear where the full stops should appear that their omission is pure
affectation.

4)The use of archaic verbal forms (line 5: witnesseth, line 10: doth)

COMMENT: Such verbal forms are now rare and should never be copied.

5)The use of archaic adverbials (line 2: hereinafter, line 12: hereto)

COMMENT: This is a typical feature of legal style even today. An analysis of the uses of such
adverbials follows in section 5.3.

6)Special use of "shall" (lines 22-24: if the Mortgagor or his successors in title shall on demand
pay to the Bank all and every the sum and sums of money which are now or (..))

COMMENT: We have already touched upon this dominant characteristic of legal style in connection
with the directive language function, and it will be examined at length in section 7.1.

7)Extremely complex sentence structure

COMMENT: See section 4.1 for a detailed discussion of this aspect of legal language.

The text contains further characteristics of legal English which will be referred to later. For now, the
above findings will probably be sufficient to warn the reader that legal English can be extremely
complex. However, the example used as an illustration is extreme, and should definitely not serve as a
model for writing legal texts. Also, we shall continually follow the argument between traditional legal
draftsmen (:writers of legal documents) and the advocates of greater clarity in legal writing.

3.2 LEVEL OF FORMALITY

At this stage it is probably quite apparent that legal English is extremely formal, in that the markers of
a high level of formality include these features which are all found in EXAMPLE 1:

1)frequent use of abstract nouns, compounds, specialist words and

foreign words
2)scarcity of personal pronouns (contributing to an impersonal style
and thus distance)
3)frequent use of passives
4)unambiguous denotation of nouns
5)few or no connotative words or other expressive features
6)long noun phrases
7)long complex sentences (Borg 1993)

It can be argued that the level of formality is so extreme that legal language is "frozen". This is a
result of the sender-receiver relationship in legal texts, as the texts will always be written by experts,
to be read by other experts. One might argue that in an insurance policy the addressee is not a lawyer
but a houseowner insuring a house or a tourist buying additional insurance cover for a trip to a
country not covered by national health insurance. In the end, however, if a dispute arises, the
 9

insurance policy will be examined in court by legally trained experts (lawyers and judges).

Summing up and adding to the findings above, the characteristics of English legal writing that will be
discussed here include:

1. long complex sentences

2. long adverbials
3. frequent placing of adverbials between the verb and the
object
4. adverbial + participle (instead of participle + adverbial)
5. tendency to avoid pronouns
6. long noun phrases characterized by long postmodifiers
7. special use of the modal verb "shall"
8. frequent use of strings of synonyms
9. long adverbials between the modal verb and the main verb
10. archaic adverbials like "hereinafter" and "hereto"
11. archaic use of "said"

These characteristics will be examined in the following sequence: First, the structure of the English
legal sentence; second, the noun phrases, followed by the verb phrases and ending with the adverbial
phrases. Strings of synonyms will also be examined.

4. SENTENCE STRUCTURE IN LEGAL LANGUAGE

4.1. Long complex sentences

EXAMPLE 1 can serve to illustrate the frequency of long complex sentences in legal English. The
complex sentence is one which consists of more than one clause, and very often subordinating
conjunctions like "if" and "unless" signal conditional clauses that define the conditions on which
certain acts or consequences depend. For instance:

"(..) if the Mortgagor or his successors in title shall on demand pay to the Bank all and every the sum
and sums of money (...) then and in such case the Bank shall (...) surrender and reconvey the said
premises to him or them (..)" (Lines 22 ff).

4.2 Periodic sentences

The first known analysis of syntactic patterns in legal language was published in 1843 by George
Goode, an English barrister. (Quoted from Dick 1985:56) Goode found that the "legal sentence" could
be broken down into four basic elements, namely
1) the legal subject
2) the legal action
3) the case
4) the conditions.

As it may be difficult to distinguish between Goode's categories of "case" and "conditions", those
elements will be lumped together here under the heading "conditions":

1) the legal subject: the person given a right or an order to take some action

2) the legal action: the right or order given to the legal subject
 10

3) the conditions: those circumstances that must be present for the legal subject to be
entitled or ordered to some action

To see how this works out in practice, consider these examples:

EXAMPLE 2 (Syntactic pattern of legal sentence):

condition: If the number of directors of a corporation is

more than six,
legal subject: the directors
legal action: may elect from among their number an executive committee

EXAMPLE 3 (Syntactic pattern of legal sentence):

condition (a): If proceedings have been stayed,

condition (b): and if default occurs under the charge,
legal subject: the court
legal action: may remove the stay

This pattern can be found in most legal sentences. Today, however, we might analyse the latter
example in this way:

adverbial (a): If proceedings have been stayed,

adverbial (b): and if default occurs under the charge,
subject: the court
verb: may remove
complement: the stay

Generally, the above example is typical of legal sentences in that it shows the dominance of
adverbials: Most of the text in legal documents is used to precisely define those circumstances that
should apply for the action to be taken by the subject.
Goode himself insisted that the order of elements should be that shown: ADVERBIAL - SUBJECT -
VERB - COMPLEMENT. As the influence of this tradition is still felt in legal English today, the
style tends to be periodic, meaning that the entire period has to be read in order to grasp the meaning.
This of course makes reading very difficult - one may have forgotten how the sentence began when
one reaches the end of it and finally arrives at subject and verb.

Consider another example:

EXAMPLE 4 (Extract from Construction Industry Long Service Leave (Amendment) Act 1985
(Victoria, Australia)):

If the liquidator or trustee does not comply with any provision of this section (or fails as trustee duly
to pay the long service leave charges for which the liquidator or trustee is liable under sub-section (3))
the liquidator or trustee must to the extent of the value of the assets which have been taken into the
liquidator's or trustee's possession and which are or have been available at any time for the payment of
the long service leave charges be personally liable to pay the lonq service leave charges
(In Adler 1990:42)

The sentence can be analysed as follows:

Adverbial 1: If the liquidator or (etc, lines 1-4) (conditional subclause)

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Subject: the liquidator or trustee (line 4)

Verb: must (line 4)

Adverbial 2: to the extent of the value (etc, lines 4-7)

Verb: be

Subject complement:personally liable to pay (..) charges

How much simpler it would have been if the writer had organised the text as follows:

The liquidator or trustee is liable for the long service leave charge if..

On the basis of the example above, it can be argued that the main "provisional clause" - that is the
main clause containing legal subject and legal action - is often rather short, and that the extreme
sentence length is a result of all the "qualifications~ or "reservations" that list the circumstances in
which the action should or should not be taken anyway. In fact, Bhatia (1994: 151) states that

"The most important characteristic of the legislative statement is the use of qualifications (.) Most
legislative provisions are extremely rich in qualificational insertions within their syntactic boundaries.
(If) qualifications on the one hand make the main provisional clause more precise and clear, they can
also promote ambiguity if they are not placed judiciously. That is the main reason why legal
draftsmen try to insert qualifications right next to the word they are meant to qualify, even at the cost
of making their legislative sentence inelegant, awkward or even tortuous. If they can help it, it will
never be ambiguous. The result of all this effort is that these qualifications are inserted at various
points where they create syntactic discontinuities rarely encountered in any other genre."

What is particularly interesting here is the concept of syntactic discontinuities in the form of
qualifications or reservations. shatia includes as a good example a section from the British Housing
Act 1980. His analysis of this section of the act is reproduced below, but first let us have a look at the
section as it appears in the statute books:

EXAMPLE 5 (Excerpt from the Housing Act 1980 (UK)):

Where the dwelling-house with respect to which the right to buy is exercised is a registered land, the
Chief Land Registrar shall, if so requested by the Secretary of State, supply him (on payment of the
appropriate fee) with an office copy of any document required by the Secretary of State for the
purpose of executing a vesting order with respect to the dwelling house and shall (notwithstanding
section 112 of the Land Registration Act 1925) allow any person authorized by the Secretary of State
to inspect and make copies of and extracts from any register or document which is in the custody of
the Chief Land Registrar and relates to the dwelling-house.

This section of the act can be divided into the parts belonging to the main provisional clause (legal
subject and legal action) on the one hand and qualifications (conditions, circumstances, reservations,
etc) on the other as follows (next page):
 12

(Bhatia 1994:152)

As is shown here, the repeated interruptions of the main clause by the numerous qualifications make
the text difficult to read, but also allow for a greater degree of precision: The legal action can only be
taken in a strictly defined set of circumstances. We have already seen that verb phrases are often
interrupted, and this will be elaborated on in section 7, but it is interesting to note that legal draftsmen
do not consider any phrase boundaries sacrosanct, be it a verb phrase, a noun phrase, a prepositional
phrase or a binomial phrase.
(A binomial phrase is "a sequence of two or more words or phrases belonging to the same
grammatical category having some semantic relationship and joined by some syntactic device such as
"and" or "or", for instance "act or omission" and "device and consent". (Bhatia 1994:143)) The
following examples are of such discontinuous/interrupted phrases:
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EXAMPLE 6 (Discontinuous noun phrase):

A secure tenant has the right -

(a) if the dwelling house is a house, to acquire the freehold of the dwellinq-house;

(b) if the dwelling-house is a flat, to be granted a long lease of the dwellinq-house

EXAMPLE 7 (Discontinuous binomial phrase):

Where a secure tenant serves on the landlord a written notice claiming to exercise the right to buy, the
landlord shall (unless the notice is withdrawn) serve on the tenant, within four weeks or, in a case
falling within subsection
(2) below, eight weeks, either
(a) a written notice admitting the tenant's right; or
(...)

EXAMPLE 8 (Discontinuous prepositional phrase)

Any power of the Secretary of State to make an order or regulation under this Act shall be exercisable
by statutory instrument subject, except in the cae of regulations under section 22(1) or paragraph 11 of
Schedule 3, to annulment in pursuance of a resolution of either House of Parliament.

(All examples from Bhatia 1994:148-9)

Referring to the definition of the function of legal language as directive, it can now be argued that the
legal sentence can actually be divided into a descriptive part - the conditions and a directive part: the
subject and the action to be taken.

One objection to the reflections on legal subject/grammatical subject is that in many cases the legal
subject does not neatly coincide with the grammatical subject, for instance in passives:

Overhead protection shall be provided above a scaffold where there is danger of material falling on a
person on the scaffold.

However, the analysis still points to the essentials in legal texts: (1) To whom is the
law/right/obligation proposed to apply?
(2) What is the law/right/obligation? and
(3) In what circumstances does the law operate?
(Adapted from Dick 1985:61)
 14

4.3 Adverbials between the verb and the object

In unmarked language, an adverbial is not normally placed between a verb and its object. (See for
instance Steller & Sørensen, 457.) However, this rule can be broken if the object is particularly
long and important, as in:

We must examine carefully the meanings of the words we use.

(Example in: Steller & Sørensen, 457)

As the object is often particularly long in legal English, the structure of

VERB-ADVERBIAL-OBJECT is often found here, for instance:

EXAMPLE 9 (Adverbial between verb and object):

The Mortgagor shall pay to the Bank all and every the sum and sums of money which now are or shall
at any time be owing to the Bank by the Mortgagor.

EXAMPLE 10 (Adverbial between verb and object):

The Client shall pay to the Consultant an annual fee of £100,000 exclusive of VAT.

Unmarked language would have preferred:

The Client shall pay an annual fee of £100,000 exclusive of VAT to the Consultant.

4.4 Long adverbials between auxiliary and main verbs

Going back to a previous example from an Australian Act, the following passage illustrates the point:

EXAMPLE 11 (Long adverbial between auxialiary and main verbs):

The liquidator or trustee must to the extent of the value of the assets which have been taken into the
liquidator's or trustee's possession and which are or have been available at any time for the payment of
the lonq service leave charge be personally liable
(...)

The result of such long adverbials between auxiliary and main verbs is, in other words, that of an
interrupted or discontinuous verb phrase.

5 THE ADVERBIAL PHRASE

We have now seen how adverbials dominate the English legal sentence, in particular in the form of
long conditional subclauses describing the conditions in which the legal action is to take place.
However, there are two further characteristics of the adverbials found in legal language, namely the
adverbial +
participle order frequently found and the use of archaic adverbs.

5.1 Adverbial + participle

In ordinary unmarked language the word order is that of participle + adverbial, as in the
underlined passage: in the
 15

comments mentioned below, etc. However, in legal language the word order is often inverted to
become that of adverbial + participle. An example of this can be found in the Mortgage Deed in
Example 1:

all such charges as hereinbefore mentioned

However, even in traditional texts ("Common Law Style") the opposite word order can be found
(please note the inconsistency of style):

EXAMPLE 12 (excerpt from a lease):

"The said Lessee covenants, promises and agrees that it will not carry on or suffer to be carried on any
business in the herein demised premises under a name or a style other than the name of the said
Lessee as designated herein nor call or suffer the herein demised premises or any business carried on
therein to be called by any name other than such name, without the written consent of the Lessor first
had and obtained." (Dick 1985:184)

Only two of the underlined passages are characterised by unmarked word order, the rest of the text
contains many archaic examples of legalese, eg a doublet, a triplet and the legalese use of "said” (cf.
7.2).

By the way, using "Plain English Style" Example 12 would be rewritten as follows:

EXAMPLE 13 ("Plain English" revision of a clause in a Lease):

The lessee must not carry on business or let business be carried on in the leased premises by any name
other than its own (as described in this lease), without first getting the Lessor's written consent.
 16

5.2 Archaic adverbs like "hereinafter" and "hereto"

Even today, most contracts will contain abundant occurrences of the "hereinafter", "hereto", and other
"here-" or "there" words that are generally totally redundant. Adler (1990:55) states that "hereby" is
one of the legal profession's favourite useless words, but "There are many other useless "here-" words,
which pad out the sentence to no purpose and help the reader forget what it is about: herein,
hereinafter, hereinbefore, hereunto." Example 14 illustrates the use of these adverbials:

EXAMPLE 14 (extract from an Operating Agreement):

3(1) This Agreement shall commence on the date hereof and shall continue for 8 years from the
Opening Date (subject to continuation and prior termination as hereinafter provided).

Garner (p. 265) strongly condemns the use of these here- and there- words, saying that "unfortunately
they do not occur just here and there"(!) but that they are often thrown in "to give legal documents
that musty legal smell." He offers the following illustration: "The exclusive right to enter upon land,
drill oil wells thereon, and remove therefrom the oil to exhaustion, paying therefor a portion of the
oil extracted or the equivalent of such portion, is a property right that the law protects."

The legalese adverbials in Example 14 can be avoided if the clause is rewritten as follows:

3(1) This Agreement commences today and continues for 8 years from the Opening Date
(subject to continuation and prior termination as provided below).

In this connection we might also briefly consider the "soever" group mentioned by Adler (p. 56):
whatsoever, whosoever, whomsoever, wheresoever, etc.

EXAMPLE 15 (extract from a Power of Attorney):

"ALSO to examine, state, settle, liquidate and adjust all or any account or accounts, depending
between myself and any person or persons whomsoever. ( .)"
 17

6 THE NOUN PHRASE

6.1 Rare use of pronouns

Pronouns are usually used to avoid repetition and thus to make the text less tedious to read. However,
it is generally argued that it may be dangerous to use pronouns in a legal document when there is a
possibility of reference to two or more people. An example of potential misunderstanding owing to
ambiguous pronominal reference is provided in the following:

An ambiguous reference may occur in a will where a life interest is given to a wife and the remainder
is given to a niece: If the testator then goes on to provide that a $5,000 legacy should be given to
"her" immediately after his death, the ambiguity is patent. Since the niece's enjoyment of the
remainder is postponed, the testator may have wished the niece to have some immediate cash. On the
other hand, perhaps the income from the estate is not magnificent or the testator anticipated a lengthy
interval after his death in gathering the estate assets together. He may have wanted his wife to have
some immediate cash. The legatee should therefore always be named. (Dick 1985:70)

Accordingly, the Mortgage Deed in EXAMPLE 1 provides the following example:

.. the Mortgagor does hereby covenant with the Bank that the Mortgagor will..

However, there are those who reverse the argument, saying that pronouns should be used whenever
possible (Adler 1990:47) and would therefore prefer a pronoun in the following text:

The late Mrs X bequeathed one fourth of her estate to her grandson, who is one of your clients, and
our clients feel that they must honour the wishes of the late Mrs X and utilize the rest of the monies
for the good cause for which she bequeathed the same. In the circumstances, we do not feel that it is
our clients' place to suggest figures for a 'split', however if your clients wish to suggest figures, we
will of course obtain our clients' instructions. (Adler 1990:18: Letter from one lawyer to another)

6.2 Dominance of postmodifiers

The style of legal English is highly nominal, meaning that

(abstract) noun groups dominate. In contrast to what is found in technical English, legal English relies
on postmodifications rather than premodifications. The preference for postmodifications is due to the
desire for precision, postmodifications generally being less ambiguous than premodifications.
(Unlike the case in technical English, in legal English precision is not sacrificed for a greater degree
of compactness.) To see how pre- and post-modifications differ in terms of precision, consider these
examples:
 18

EXAMPLE 16 (Ambiguous premodifications):

a) a clear water container

b) racing car driver

In a), is the container a water container which is clear, or is it a container for clear water?

In b), is the driver driving a racing car, or is it a car driver who is racing?

In practice, hyphens often help to clarify the meaning:

a clear-water container

(Examples from Dick 1985:70.)

The preferred modification of noun groups in legal English then is the postmodification.
Postmodifications in the form of a prepositional phrase or a relative clause will be well-known already
from other registers, and we shall therefore study only postmodifications in the form of non-finite
clauses and "such..as" relative clauses.

6.2.1 Postmodification by a non-finite clause

The postmodification is frequently a relative clause from which the relative pronoun "which" and a
form of "be" have been deleted, in other words a reduced relative clause. Consider the following
example:

EXAMPLE 17 (extract from an Agency Agreement):

2. Appointment
The Agent is appointed the sole agent of the Company in the Territory defined in Schedule 1 hereto
for the sale of the goods defined in Schedule 2 hereto on the terms and subject to the conditions set
out below.

The reduced relative clauses in the above example can be expanded into: (..) the Territory which has
been/is defined in Schedule 1
hereto for the sale of the goods which have been/are defined in Schedule 2 hereto on the terms and
subject to the conditions which have been/are set out below.

6.2.2 Postmodification by a "such .. as" relative clause

A frequently found postmodifier in legal English is the finite relative clause introduced by the relative
pronoun "as" having "such" as its antecedent. An illustration of what is meant by this is provided by
the underlined passage in the following extract from a contract:
 19

EXAMPLE 18 (extract from a Consultancy Agreement):

3 Consultant's obligations
3.1 During the period of this Agreement the Consultant is employed to provide independent
advisory services to the Client for an aggregate of One hundred and fifty (150) days and
such additional days as may be agreed in each twelve month period of this Agreement
beginning 1st April 1992.

In unmarked language, the underlined passage might have read instead:

(150) days and (any) additional days which may be agred.

It can be concluded that "such..as" is an archaic, formal structure which should be avoided outside
legal language. On the other hand, it can lend a legalise flavour to a legal document in which it will be
rather "harmless".

7 THE VERB PHRASE

7.1 Special use of "shall"

The abundant use of the modal verb "shall" is one of the chief characteristics of English legal
language. Pure statistics show the significance of "shall" as a marker of legal language: An analysis
carried out in 1994 (Nielsen 1994) of the frequency of modal verbs in three different text types in
English - (a) judgments, (b) contracts, and (c) unmarked language - provides ample proof of this, for
which reason the findings are summarised here.

The analysis consisted in finding the rank order of modal verbs among the 200 most frequent words in
each of the three text types. The result is shown below:

Judgements Contracts Birmingham Corpus

would 29 shall 7 would 44
may 56 will 25 can 60
should 63 may 35 could 71
could 74 must 101 will 77
must 106 may 118
will 107 should 133
can 118 must 141
shall 146 might 155
cannot 156

The rank of "7" for "shall" in the "Contracts" column indicates that "shall" is the seventh-most
frequent word in that text type. (One can imagine that the articles a/an and the as well as and and or
are the top scorers). The fact that "shall" comes in 7th place is quite remarkable: It is not even among
the 200 most frequent words in the Birmingham Corpus (collection of general non-specialised texts.)
In judgments, it comes in 146th place only.

This infrequency of "shall" in ordinary language lends weight to the observation that it is a now
unpopular word, a favourite of legislators and lawyers but otherwise almost obsolete:

Traditionally, "I shall" and "you will" both mean one thing, whereas "I will" and "you shall" mean
something else. So few people know or care about the distinction that even if a speaker uses it
correctly, the listener cannot be sure he was doing so, so the doubt about the meaning remains. (..)
Normal use now is for "shall" to be replaced by "will" to express the future and "must" to express the
imperative. (Adler 1990:43)
 20

In contracts, however, "shall" is primarily use to express the imperative. The following example is of
a "false" imperative, a false imperative being one where no person (physical or legal) is "ordered" to
do something:

EXAMPLE 19 (extract from a Sole Agency Agreement):

1. Commencement and Term of Agreement

This Agreement shall commence on 1 June 1995 and subject to the right of termination it shall remain
in force until terminated by not less than 3 months' prior written notice by either party to the other.

(Many writers on aspects of English legal language would, however, prefer the present tense
instead of "shall" in such cases)

However, the use of "shall" in the following examples is not used to denote future tense but rather
to impose rights and obligations (a type of imperative):

EXAMPLE 20 (extract from a Sole Agency Agreement):

8. Termination
8.1 Either party shall have the right (..)
to terminate this Agreement if the other party
(..)

Were it not for tradition, the passage might as well have read:

Either party has the right to terminate this Agreement if the

other party (..).

As appears, using the simple present tense instead of a modal verb structure would change nothing,
apart from the "legalistic flavour" of the text.

Even in conditional clauses where the simple present tense would be preferred in unmarked language,
"shall" may be used instead:

EXAMPLE 21 (extract from a Consultancy Agreement):

If any dispute whatsoever shall arise between the parties hereto with respect to the construction or
effect of this Clause, the matter shall be determined by the Auditors of the Clients for the time being.

A further example:

If the basis of computation of the said index shall have changed, any official adjustment between the
differing bases of computation published by the Department of Employment shall be binding on the
parties hereto.

Whether or not the "shall" should be used in legal style, is probably a matter of taste as well as the
sender-receiver relation-ship. This will be commented on in the section on pragmatics.

In Canada, lawmakers themselves have taken a well-considered approach to what they consider good
legal style and thus also the use/non-use of "shall". For instance, the Canadian "Interpretation Act
 21

1980" says the following:

"The law shall be considered as always speaking where a matter or thing is expressed in the present
tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and
every part of it according to its true intent and meaning."

Using the above quotation as his point of departure, Dick (1985) continues:

"Two examples show how the present tense is prevalently used in the statutes. The first is found in the
Business Corporations Act:

43. Nothing in this Act prohibits the issue of debt obligations in bearer form.

Most lawyers would wrongly use "shall prohibit" it they were drafting such a statement into a legal
document. The second is found in the same Act.

196. A voluntary winding up commences at the time of the passing of the resolution
requiring the winding up or at such later time as may be specified in the resolution.

If the verb "shall commence" were used, the result would be a false imperative since no person is to
act or refrain from acting."

7.1.1 Tentative rules regarding the (non-)use of "shall"

Dick (1985) recommends that the following rules be followed in this context:

7.1.1.1 Use the present tense after the word "if"

Do not write: *If it should appear to the tribunal

Write instead: If it appears to the tribunal

Do not write: *If the basis of computation of the said index shall
have changed

Write instead: If the basis of computation of the said index has

changed

7.1.2 Use "shall" only for the imperative, use "may" as permissive

This rule is generally observed, it seems. Compare for instance the Companies Act 1979, section 37:

The directors may call general meetings and, on the requisition of members pursuant to the provisions
of the Act, shall forthwith proceed to convene an extraordinary general meeting for a date no later
than eight weeks after receipt of the requisition.

7.1.1.3 Use present tense in definitions instead of "shall"

Do not write:
*Death taxes shall mean taxes imposed on (..)

Write instead:
Death taxes mean taxes imposed on (..)
 22

Do not write:
*In this contract the Territory shall mean (..)

Write instead:
In this contract the Territory means (..)

7.1.1.4 Avoid using a negative subject with an affirmative "shall"

Do not write:
*No executor shall dispose of (..)

Write instead:
No executor may dispose of (..)

Regarding the rule immediately above, however, Dick admits that the rule is often not followed in
legislative drafting. A typical example is found in the 1978 Cambridgeshire County Council
byelaws on the employment of children and young persons:

EXAMPLE 22 (Negative subject with an affirmative "shall")

8. No child shall be employed for more than four hours without a period of one hour or more for
rest and recreation.

9. No child shall be employed in any work out of doors unless he or she is suitably shod and is
suitably clad for protection against inclement weather.

Please note the inconsistency which appears in section 12 in the same set of byelaws:

12. (..)
(b) No child may be employed unless he has been granted an authorised permit issued by the
Authority after
(...)

Generally, as the examples show, practice differs from theory. Probably, many English clients prefer
the use of "shall" (as well as the rest of the features of legal style) to simplified language. However,
the above rules are worth keeping in mind when translating into English and may enable the translator
to strike a balance between the two extremes of unthinking traditionalism and radical clarity that
might not be acceptable to the client.

7.2 Archaic use of "said"

An example can be seen in the Mortgage Deed in EXAMPLE 1:

1.17: (..) the said lands etc

Already in 1947, the American Bar Association Journal commented on this use of "I said":

"Why do so many lawyers and judges interlard their manuscript with that unnecessary word "said"?
They do not use it in their ordinary conversation. Literary men, other than lawyers, do not use it in
their writings." (Quoted in Dick (p. 140))
 23

A further comment by Dick on the use of "said":

"Many lawyers adopt the custom of prefacing words by "said" or "aforesaid" where the name or
description occurs over and over again; yet they do this in many documents in which there is no cause
for confusion. Piesse notes how irritating is the phrase "my said wife Dorine". Most testators have
only one wife."

Since there is certainty of reference, "said" adds nothing by way of precision. Consequently, "said"
should be omitted from modern legal contracts. Garner (p. 488) adds that "said" typies legalese and is
often parodied by laymen. Indeed, it may even be unconsciously parodied by lawyers, eg:

A considerable number of persons were attracted to said square by said meeting, and said bombs and
other fireworks which were being exploded there. A portion of the center of the square about 40 to 60
feet was roped off by the police of said Chelsea, and said bombs or shells were fired off within the
space so inclosed, and no spectators were allowed to be within said inclosure. The plaintiffs were
lawfully in said highway at the time of the explosion of said mortar, and near said ropes, and were in
exercise of due care. (Quoted in Garner, p. 488)

However, examples can still be found of the use of "said" in numerous standard documents still in
use, for instance charterparties.

8 Frequent use of strings of synonyms

Dick (1985:125) argues that lawyers feel so bound by tradition that they seldom scrap any of the
time-worn phrases containing strings of synonyms, mentioning the following example from a gas
pipeline easement, where the transferor conveys to the transferee:

the exclusive right, liberty, privilege and easement

One of the words would have done the job, the additional three adding nothing to the contract.

Some writers argue that many of the doublets (two synonyms together) and triplets (three synonyms
together) survive because many legal documents are drafted by inadequately trained lawyers and by
lay persons, the drafter without adequate legal training having a greater tendency to use redundant
synonyms, perhaps for fear of otherwise changing the legal contents.

Examples of doublets:

all and every

authorize and direct
due and owing
have and hold
null and void
over and above

Examples of triplets:

business, enterprise or undertaking

goods, chattels and effects
have, hold and possess
legal, valid and binding
nominate, constitute and appoint
 24

It is important to bear in mind the redundancy of these strings of synonyms when translating into
Danish: It may not be necessary to find equivalent strings of synonyms where one word might do the
job. On the other hand, the translator's client might be somewhat suspicious at a translation running to
only half or a third of the original English text. Considerations regarding such "streamlined"
translations would normally have to be made in consultation with the client - who might incidentally
be the translator's employer as well.

Having considered a number of characteristics of legal English, we might end by quoting a 19th
century parody of legalese:

The declaration stated, that the plaintiff theretofore, and at the time of the committing of the
grievance thereinafter mentioned, to wit, on, etc., was lawfully possessed of a certain donkey,
which æaid donkey of the plaintiff was then lawfully in a certain highway, and the defendant
was then possessed of a certain wagon and certain horses drawing the same, which said wagon
and horses of the defendant were then under the care, government, and direction of a certain
then servant of the defendant, in and along the said highway; nevertheless the defendant, by
his said servant, so carelessly, negligently, unskilfully, and improperly governed and directed
his said wagon and horses, that by and through the carelessness, negligence, unskilfulness, and
improper conduct of the defendant, by his said servant, the said wagon and horses of the
defendant then ran and struck with great violence against the said donkey of the plaintiff, and
thereby then wounded, crushed, and killed the same, etc." (Quoted in Garner, p. 334)

9. Pragmatics in writing or translating English legal language

The point of departure here will be the observation that "if all text production involves elements of
original creation, the translator's role as target text author comes to the fore. As a result, attention
may be concentrated on rhetorical and communicative aspects of translation, on the pragmatic
modifications required to accommodate new audiences, in short, the whole field of translational
behaviour." (Jakobsen 1993:67) What is particularly interesting here, in my opinion, is the focus on
praqmatic modifications. As Jakobsen (1993:68) continues, "interlingual translation always and
necessarily involves cultural translation, and cultures not only express ideas differently, they shape
concepts and texts differently."

For this reason I believe that what we should aim at in translating legal texts into English would be
to achieve equivalent effect or what has also been called "dynamic equivalence", meaning that the
translated text produces the (almost) identical effect on the readers as did the original on its readers.

It is beyond the scope of this introduction to English legal language to analyse Danish legal language,
but in my opinion a Danish legal text is generally less removed from ordinary language than
English legal texts, although it embodies features of formal language. Most important of all, however,
the legal text is in fact not purely informative (defining rights and obligations) but something more,
in that both contents and language imply an authority which permits, orders or prohibits certain acts.
Even where the order is veiled as a permission, the authority is clear: "You may go" will often imply
that the employee who receives this message has no other choice than to leave. This authoritative
dimension is conveyed by different linguistic means in English and Danish legal texts, for instance.
Therefore, in order to achieve equivalence also regarding the authoritative dimension, semantic
("word-by-word") translation is not appropriate.

Instead, the communicative type of translation seems more relevant in the legal field. Newmark
(1988:48) has said about the the sort of equivalence called for here that "Equivalent effect is an
important intuitive principle which could be tested but, as is often the case, the research would not be
worth the effort." Newmark also says that in informative texts, equivalent effect is desirable only in
respect of their (in theory) insignificant emotional impact.
 25

An aim in translating a legal text (which is unmarked within the legal-language register in the source
language) into English might be to write a target text which is equally unmarked within its field in
the target language, thus obtaining equivalent effect. (There will not be agreement that this should be
the
aim.) However, if the aim is to use unmarked language in a translation, it is important to be aware
that the unmarked text type in the legal field today in Britain seems to be the traditional text type,
whereas simplified texts strike their readers as unusual: However paradoxical this may seem, they
divert a greater share of the reader's attention from the message to the code, according to research
being carried out by Winter (1995). In preparation for a larger survey, she organized two discussion
groups, one consisting of trainee solicitors, the other of members of the general public. Both groups
were generally opposed to the simplified versions of legal documents, preferring instead the
traditional ones, even if they were in principle supportive of reform. Some of the members of the
public group felt patronised by the radically simplified documents, others believed that a legal
document should look official.

In trying to explain the opposition to reform - which she is in favour of herself - Winter offers a
number of reasons:

1. Legal language is the tool of the profession

2. Legal language has power: The most important function of legal language is performative,
meaning that the utterance of a speech act actually changes the state of affairs: A person who is
pronounced "guilty" is guilty (even if in reality it is a miscarriage of justice).

3. Legal language is highly ritualized, in a similar way to religious language. (Perhaps one of the
major explanatory factors regarding clients' opposition to reform.)

4. The primary goal of legal language is not popular understanding, but legal accuracy.

5. Lawyers' fears of losing income if clients are led to believe that they can write the documents
themselves, or become reluctant to pay the same fee for a shorter/simplified document.

6. Legal language is used as a means of social distancinq.

In the argument between traditionalists and reformers, it may be difficult for the translator to strike an
entirely satisfactory compromise between the extremes of pompous legalese and radical simplicity.
For now, I believe that a straw to cling to could be that of having "information identity" and
"equivalent effect" as the goal.
 26

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