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The Use of Legal English (Legalese) in Ghanaian Law Courts

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 UNIVERSITY OF CAPE COAST

DEPARTMENT OF COMMUNICATION STUDIES

TERM PAPER

Programme : MA Communication Studies

Course : Sociolinguistics of English as a second
language (811s)

Index No. : AR/MCS/15/0001

Topic:
The use of legal English (legalese) in the Ghanaian law courts

By Isaac Bisilki

Date Presented
28Th July, 2015
Introduction

Language is a unique characteristic of a group of people, usually those of one origin, which helps
them to communicate with one another. The Oxford Advanced Learner's Dictionary (8th edition)
defines language as a ''system of communication in speech and writing that is used by people of
a particular country or area''. From the above definition, it is deduced that every natural language
has a defined origin. English is no exception. It is the mother tongue of indigenous British. Even
though Ghana has its own languages, it adopted English as its official national language. This is
due to the fact that Ghana was a British colony and therefore inherited the latter’s system of
administration, including the language. Hence the usage of English in all official documents:
constitution, statutory provisions as well as in formal settings such as the law courts.

No formal communication can, therefore, take place in an organisation without the use of
language - verbal or nonverbal. Even though other languages are permitted in some Ghanaian
law courts, English is the most formal language used, especially its written form. For instance,
court proceedings are recorded in English. Other legal documents such as subpoenas and letters
of summons are also written in English.

Specialised usage of English language by different organisations

English language has gained specialised usage in formal organisations in Ghana. Each institution,
based on its needs and culture, developed a customised version of the English language. This
makes its usage by each institution unique from others. So does it apply to the Ghanaian law
courts. The law court is one of such institutions that has gained popularity for its specialised usage
of the English language.

The use of English in the law court could be formal, informal or plain. The choice of any of these
forms depends on the dictates of each situation and who is involved in it. The formal use of
English in the law court is termed legal English (legalese). This paper therefore focuses on the use
of legal English in the law courts in Ghana.

Tiersma (2000) defines legal English as a ''complex collection of linguistic habits that have
developed over many centuries and that lawyers have learned to use quite strategically''.

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According to Sanford (2006 ), ''the mention of legal English tends to conjure up in the mind of the
layperson 'legalese' which are often incomprehensible verbiage found in legal documents as well
as an arcane jargon used by attorneys'' (7). These definitions suggest that legalese cannot easily
be understood by laypersons except people of the legal profession. By this understanding, it can
be inferred that legalese are specialised vocabulary and unusual sentence structure used in the
law court.

Mellinkoff (1963) has it that legalese have some special features which tend to distort their
ordinary meanings. That, legalese are generally ''wordy'', ''unclear'', ''pompous'' and ''dull''. This,
according to him, is largely attributable to the origin of legal English.

Therefore, to understand why Mellinkoff associates these features with legal English requires an
appreciation of their history in the British law. A study by Solan (1993) revealed that the Anglo-
Saxon, the Scandinavian nomads, the French and Latin speakers made imprints on the English
law and its language.

This study revealed that the Anglo-Saxons used not only old English as a legal language, but also
Latin. Solan established in his study that although Latin was introduced to England during the
Roman occupation around the time of Christ, it became a major force only after the arrival of
Christian missionaries in 597. Before long, Latin was the language not only of the church, but of
education and learning. This connection of Latin with literacy and the church became so strong
that the two were almost synonymous. For example, the terms clerk (someone who can write)
and cleric or clergy (priest) were derived from the same Latin term. For centuries, English courts
recognized a type of immunity for the clergy; to avoid the gallows, people simply had to read a
verse from the Bible (sometimes called the "neck verse"). This popularised the learning of Latin:
many people wanted to enjoy the immunity associated with reading Latin verses in the Bible in
the event of facing a court hearing.

Again, Latin at a point became important for English law mainly as the language of court records.
The practice of using Latin versus in case names (for "against") harks back to these times. English
lawyers and judges were also prone to express sayings or maxims about the law in Latin. This
resulted in a great influence of Latin on the English law.
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A later influence on the language of the law was Scandinavian in origin. Solan further revealed
that during the eighth century, Vikings began raiding the English coast and eventually settled
down. The English borrowed from these Scandinavians the most important legal word in the
English language: the word ‘law’ itself. The word ‘Law’ is therefore derived from the Norse word
"lay" and thus means "that which is laid down."

Solan, again, indicated that a couple of centuries later another group of Scandinavians had a far
more profound and lasting impact on the language of English lawyers. These were the Normans,
whose name originated from Northman. The Normans were originally Vikings who conquered
the region of Normandy during the ninth and tenth centuries. In the course of a few generations,
the Viking invaders of Normandy became French both culturally and linguistically; the Northmen
had become Normans. Their later contact with the English language, such as other different
languages noted earlier, left traces on the English law, thus, as unique words and expressions.
This influence of these foreign languages on the English law initiated Mellinkoff’s features
identified earlier in this paper.

Legalese can be expressed in both oral and written forms. According to Tiersma (1999), legal
English extensively uses technical terminology that can be categorised in four ways. These include
specialised words, quotidian words, archaic words and loan words. The specialised words and
phrases in this context refer to those unique to law, e.g., tort, novation, etc. The quotidian words
are however those having different meanings in law. For example, words such as action (lawsuit),
consideration (support for a promise), execute (to sign to effect), and party (a principal in a
lawsuit).

Tiersma explained archaic vocabulary as old words and phrases that were formerly quotidian
language, but today exist mostly in law, dating from the 16th century. They include words such
as, herein, hereto, hereby, heretofore, herewith, whereby, wherefore, among others. The loan
words and phrases are those vocabularies from other languages. In legal English, these include
terms derived from French (e.g. estoppel, laches, voir dire, etc.) and Latin (e.g. certiorari, habeas
corpus, prima facie, inter alia, mens rea, sub judice, amicus curea, etc.) and are not italicised as
English legal language, as would be foreign words in mainstream English writing.

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Legalese come in the forms of words or expressions. For example, below are some legalese and
their corresponding meanings in the law courts:

Bench: The Judge's seat or the judge, himself or herself. For example, the attorney addressed the
bench.

Brief: A written or printed document prepared by the lawyers or litigants on each side of a dispute
and submitted to the court in support of their arguments - a brief includes the points of law which
the person wished to establish, the arguments he or she uses and the legal authorities on which
he or she rests his or her conclusions.

Appearance: The participation in the proceedings by a party summoned in an action, either in

person or through an attorney.

Award: A decision of an Arbitrator, judge or jury.

Acknowledgment: The act of going before a qualified officer (e.g., Clerk) and declaring the
validity of the document. The officer’s certification that the declaration was made is known as
the acknowledgment.

Acquit: The act of freeing a person from the charge of an offense by means of a decision, verdict
or other legal process; to discharge.

Action: A civil judicial proceeding whereby one party asserts a claim against another for a wrong
done or for protection or enforcement of a right or prevention of a wrong; requires a pleading
and service of papers on the other party.

Actual Place of Business: Any location that the defendant, through regular solicitation or
advertisement, has held out as its place of business.

Ad Damnum: Clause of a pleading alleging the dollar amount of a claimed loss or injury.

Adjournment: A temporary postponement of the court proceedings until a specified future time.

Adjudicate: To hear or conduct a trial, try and make a judicial decision.

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Adversary: An opposing party. For example, the defendant is the plaintiff's adversary.

Adversary System: The system of trial practice in the United States of America and some other
countries in which each of the opposing or adversary, parties has full opportunity to present and
establish its contentions before the court.

Affiant: One who swears to an affidavit; deponent.

Affidavit: A sworn or affirmed statement made in writing and signed; if sworn, it must be
notarized.

Affinity: Related by marriage; family relation with family of spouse’s.

Affidavit of Service: An affidavit intended to certify or prove that service of a writ, notice, or
other document has been made.

Affirm: An act of declaring something to be true under the penalty of perjury by a person who
conscientiously declines to take an oath for religious or other pertinent reasons; also attorneys
are permitted to affirm rather than swear under oath.

Affirmation: A solemn and formal declaration under penalties of perjury that a statement is true,
without an oath.

Amicus Curiae (“friend of the court”): A non-party to a proceeding whom the Court permits to
present his, her views.

Annul: To make void or cancel. An example could be, ‘to annul the votes’.

Answer: A paper submitted by a defendant in which she or he responds to and/or denies the
allegations of the plaintiff; the usual response to a complaint or petition.

Appeal: A proceeding to have a case examined by a higher court to see if a lower court's decision
was made correctly according to law.

Appellant: The party who takes an appeal to a higher court.

Appellee or Respondent: The party against whom an appeal is taken.

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Arbitration: The submission voluntarily or involuntarily of a disputed matter to selected persons
and the substitution of their award or decision for the judgment of a court or its confirmation by
the court as a judgment of the court.

Argument: A reason given in proof or rebuttal to persuade a judge or jury.

At Issue: Whenever the parties to an action come to a point in the pleadings or argument which
is affirmed on one side and denied on the other, the points are said to be "at issue".

Attachment: The taking of property into legal custody by an enforcement officer (See specialty
section: Recovery of Chattel).

Attestation: The act of witnessing an instrument in writing at the request of the party making the
instrument and signing it as a witness.

Bill of Costs: A written statement of the (itemised taxable) costs and disbursements that a
successful party may recover from the losing party.

Bill of Particulars: Factual detail submitted by a claimant after a request by the adverse party
which specifies, clarifies or explains further the claims and/or facts alleged in a pleading.

Calendar: A schedule of matters to be heard in court.

Calendar Call: The calling of matters requiring parties or their attorneys, to appear and be heard,
usually done at the beginning of each court day.

There are also address systems in the law court which the lawyers and the judges use when
interaction during proceedings. The following are some examples of the commonly used
constructions in the Ghanaian law courts. They indicate the address, its addresser and the
addressee. For example, a lawyer may address a judge ''my lord'', ''the bench'', ''your honour'',
among others. This is to show respect to the authority of the judge in determining the fate of his
or her client in the law court.

Also, lawyers may address each other: ''my learned colleague'', ''my respected colleague'', ''my
senior colleague'', ''counsel'', among others, as a way of maintaining the mutual respect expected

6
of lawyers in the law court. The judge could also address lawyers such as ''counsel'', ''your learned
colleague'', among others.

Generally, standard phrases such as the following have prevalent usage in the law court. They
include leading questions, suggesting by the choice of words or the structure of the question
what the answer should be.

Another commonly used phrase is, ‘objection, my lord! ’. This means the question asked is not
admissible or is unfair to the objector. The judge may respond, 'objection overruled'. Meaning it
is rejected; not accepted. On the other hand, the judge may also use the phrase, ''objection
sustained'', meaning the objector has a case and therefore the statement by the learned
colleague is unacceptable and cannot hold.

The use of legal English has been widely criticised by many for its complexity. Will Rogers once
wrote that "the minute you read something and you can't understand it you can almost be sure
it was drawn up by a lawyer. Then if you give it to another lawyer to read and he doesn't know
just what it means, then you can be sure it was drawn up by a lawyer." Critics hold the view that
lawyers actually created legal English, or cling to old habits to keep the public in the dark and
protect their monopoly on legal services. It is therefore seen as a deliberate act of lawyers to
ensure complexity of language in order to mask simplicity of content.

Again, it is believed that their distinctive language allows them to mark themselves as members
of the profession. This, critics claim, manifests in how law students are encouraged to learn how
to talk like lawyers - using archaic words like ‘aforesaid’, ‘herein’, ‘to wit’, among others.

However, there are cogent reasons why lawyers often prefer to strictly construct their sentences,
either in spoken or written form with legalese. It is held that the best way to sound like a lawyer
is to throw in as much legal vocabulary as possible. This is to give lawyers a unique identity as
members of the legal profession; thereby reduce the doubt that they are real members of the
bar. And the criterion to holding to that status is to convincingly bandy about phrases like,
''expunging a lis pendens” or “quashing a subpoena duces tecum'', among others.

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Lawyers also have strategic reasons for favoring legalese and the obscurity it engenders. For
instance, an outfit that rents hang gliders to the public may be legally obligated to warn of the
dangers of the sport, but at the same time would not want to discourage potential customers. In
order to succeed, the obvious solution is convoluted and incomprehensible legalese.

Another legitimate justification for the long-windedness of the profession is due to its adversarial
nature. Virtually any legal document is liable, at some point in its existence, to be picked up by
an opponent eager to exploit a loophole or ambiguity in hopes of wiggling out of an agreement
or contesting a will. Legislation is no exception; almost any statute will be subjected to intense
scrutiny by lawyers trying to poke holes in it on behalf of their clients. Those who draft such
documents anticipate these attacks. Therefore, they obsessively try to cover every base, plug
every loophole; deal with every remotely possible contingency. The result is ever longer, denser
and more complicated prose.

In conclusion, legal English (legalese) is a specialised version of the English language used in the
law courts. It is a characteristic of the English law which can be traced to the Anglo-saxon, the
Scandinavian normads and other languages which have left their traces on English. Whilst it is
highly criticised for its complexity to the layperson, its usage is still respected - giving the law
courts a unique identity.

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References

1. Bowers, F. (1989). Linguistic Aspects of Legislative Expression. Vancouver: University of

British Columbia Press.

2. Crystal, D. and Derek D. (1969). Investigating English Style. Bloomington:

Indiana University Press
3. Friedman, Lawrence M. (1964). Law and Its Language. 33 Geo. Wash. L. Rev. 563

4. Garner, Bryan A. (1995). A Dictionary of Modern Legal Usage. 2d ed. Oxford: Oxford
University Press
5. Gibbons, John. (1994). Language and the Law. London and New York: Longman

6. Goodrich, P. (1990). Languages of Law: From Logics of Memory to Nomadic Masks. London:
Weidenfeld.

7. Gustafsson, M. (1975). Some Syntactic Properties of English Law Language. Finland:

University of Turku, Publications of the Department of English

8. Hiltunen, R. (1990). Chapters on Legal English: Aspects Past and Present of the Language of
the Law. Helsinki, Finland: Suomalainen Tiedeakatemia

9. Jackson, Bernard S. Making Sense in Law: Linguistic, Psychological and Semiotic Perspectives.
Liverpool: Deborah Charles Publications, 1995.

10. Holdsworth, W. S. (1922). A History of English Law. Boston: Little, Brown and Co.

11. Klinck, Dennis R. (1992). The Word of the Law: Approaches to Legal Discourse. Ottawa:
Carlton University Press

12. Mellinkoff, D. (1963). The Language of the Law. Boston: Little Brown and Co.

13. Peter, The Origins of Legal Language (October 20, 2010). OXFORD HANDBOOK ON
LANGUAGE AND LAW, L. Solan, P. Tiersma, eds., 2010; Loyola-LA Legal Studies Paper
No. 2009-45. Available at SSRN: http://ssrn.com/abstract=1695226
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 14. Sanford, S. (2006). Language and the Law. Retrieved 10Th October, 2018 from

http://idiom.ucsd.edu/~schane/law/introduction.pdf

15. Solan, L. M. (1993). The Language of Judges. Chicago: University of Chicago Press

16. Tiersma, P. M. (1999). Legal Language. University of Chicago Press: Chicago

17. http://legal-dictionary.thefreedictionary.com/legalese

18. http://www.ovtg.de/3_arbeit/englisch/monster/_hpgen_content02.htm

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