HISTORICAL BACKGROUND OF LAW AND LANGUAGE:

According to PLATO—"Human language is a result of divine gift." Language is a powerful

medium of symbols, meanings, communication and expressions. Though, language is a
medium of law but awareness regarding language is essential in the field of law. The founder
of realistic theory Mr. GEREMY BENTHAM had made efforts to bring awareness in respect
of relationship between language and law. During the 18th century, he criticised the then
prevailing draftsmanship containing pseudo expressions and _ complexities. BENTHAM’s
view encouraged simplification and unambiguous expression of language. During the 20th
century the Australian Semantic scientist LUDWIG WITTGENSTEIN, inspired the jurists to
study language and law. He propounded the concept that the use of language is a human
enterprise. According to him, functions of philosophy are comprehension of language and to
provide logical explanation of ideas. He said, the complicated words and various theories
could be interpreted in simple manner only by philosophical study of language.
WITTGENSTEIN drew attention towards Westernised literature by which language gets
activated. The meaning of words depends upon its use in-language. The function of
philosophy is not to interfere with actual use of language but to interpret the language.
WITTGENSTEIN was an inspirer of ordinary language. How to draw guidelines from
ordinary language is a topic for research in the field of law.
The importance of studying the role of language in law was realised during the 20th century.
In England GLANVILE WILLIAMS and in U.S.A. WALTER ROBERT emphasised the role
of language in law in their respective studies. According to WILLIAMS there is a penumbra
of uncertainties over words. The doubt arises due to the use of legal hypothesis having
multiple meanings. On the other hand, justice, tort and administration of law instead of
providing reasonable meanings provide expression to the inner conscious.
WALTER ROBERT emphasised on the word ‘conscious’ while saying law. According to him
language is a main tool of social control. He believes that there are ambiguities in norms and
rules. ROBERT played the important role in development of common law in England. He
stated that common law procedure is not the rule of soul but it is merely a rhetoric.
For the last two decades the efforts are being made to establish relationship between law and
language by means of linguistic and semiotics. Subject-matter of semiotics deals with the use
of language. The semiotics does not only expose the meaning of legal terms, symbols but also
political, psychological and sociological roles of legal language. It is used for studies relating
to legal philosophy, legal sociology and also for study of legal text books.
The main object of study of law and language is to achieve clarity and simplicity in legal
language. BENTHAM, wanted to use such a language in which there would not be any scope
for judges to use their discretion. Law should have a clear language with minimum
ambiguity. However, simplifying legal language is a matter of debate because the legal
language contains number of technical words and specified words and their use cannot be
avoided.
COMPARATIVE DESCRIPTION OF LAW AND LANGUAGE:
The comparative description of law and language can be undertaken under the following
heads:
(i) Social Importance:
Law and language have an important place in society. They play an important role in
determining social relations. The term ‘language’ has its origin from Latin word "lingua"
which means tongue.
According to BLOCH and TRAGER—"A language is a system of arbitrary vocal symbols by
means of which a social group cooperates."
According to Encyclopaedia Britanica—language is an arrangement of symbols of sound by
which human system establishes communication among different social groups having
different cultural backgrounds.
On the other hand, the term "law" originated from two words 1.e. "Log" of Norse and "Legu"
of Anglo-Saxon language. These two words have been taken from Verb to be called ‘Leggja’.
The expression “'Leggja" means authoritative statement or determination. Some of the
linguists expressed disagreement and claimed that the word "Law" has been taken from the
word "Lag" of old Norse which is used as "league" or "team". It means that the word "Law"
originated from such hypothesis which binds business or | provides cooperation under single
formula. Similarly, the word ‘Religion’ (Law) originated from the word metal v.e. ‘bhra’
which means acceptance or keep united. So, the subject-matter of law and language deals
with the social binding.
In fact, law and language are the essential elements for systematic formation of society and
its stability.
Language provides communication within society. Law settles the conflicting interests in
societies and helps in existence of society. Whereas language provides peace and harmony in
societies, law maintains conducive atmosphere. The Andhra Pradesh High Court in
Yedallapalli v. District Revenue Officer,’ has held that law is a social arrangement. It is a tool
for social control and its ultimate aim is public welfare.
ii) Similar Cultural Consciousness in Language and Law:
Like language, law too has a regional form. Law and language both show cultural
consciousness and nationality. Languages contain diversity of words, sentences, sounds and
meanings. Similarly, law too differs from country to country. Therefore, the founder of
Historical Theory CARLWAN SAVEINI affirmed the importance of law’ regarding the nature
of country, cultural consciousness, public mood and Volkjeists. The communication and its
acceptability are easy and simple in mother tongue. Similarly, the law made and developed on
the basis of indigenous cultural and_ social background is easy to follow and implement.
For instance, at present our criminal law and evidence law have their roots in foreign lands,
that’s why we still find difficulty in its application. It is true that indigenous language
communicates harmony, whereas law binds life with discipline and settles conflicts.
(iii) Changeability of Language and Law from Complexities to Simplicity:
Like language, the law is also changeable. The language keeps changing and expanding on
the basis of use and experience. The present form of Hindi language has travelled through its
different forms like Vedic, Sanskrit, Pali, Prakrat and Apbhransh. Origin of English language
is from Anglo-Saxon languages. Saxson is a German language and Celtic and Anglican are
languages of England. Origin of English language is mainly a combination of Celtic and
Anglican languages.
Therefore, it can be said that the legal system established by means of language called Anglo-
Saxon and its study is called Anglo-Saxon jurisprudence.
(iv) Problem of Language and Law—Ambiguity and Multi meanings:
The main problem of language and law is ambiguity, multiple meanings and doubtfulness in
its contents. On such issues LORD BACON commented that "the greatest sophism of all
sophism is the equivocation and ambiguity of words and phrases."
However, LORD MENSFIELD commented that in the world, most of the controversies arise
from words. It is a fact that the human vocabulary is incomplete. There is hardly any word
which is perfect and definite.
In fact, what is law is a riddle. It is the image of inner spirit of interpreter and the maker. It is
not possible to provide definition of law which is complete, contemporary and having
universal acceptability. Law is an expression of divine will. Law is correlated with nature; it
is omnipresent and unchangeable. It is natural along with changeable contents of things. Law
is supreme, a series of standards, and a combination of primary and secondary rules. It is a
result of public and social awareness, a protection of interests. It maintains balance among
conflicting interests with minimum loss. Law is a result of group conflict, a mirror of society,
a social fact, a Constitution of State, and is an object itself. Law is the means to achieve
objects etc. Law is describable infinitely. JUSTICE KRISHNA AYYER expressed the
aforesaid views as there is nothing complete in law because it controls life, which is relative.'
So, ambiguity and doubtfulness appeared in law and language. Legal system and dynamics of
society are attempts to remove lacunae in law and language arising due to ambiguous
expressions.

(v) Similar Characteristics in Communications of Law and Language:

Language is one of the most important discoveries. Language is the chief means of
communication. Law and legal system are also an arrangement of communications. Like
language, law is a part of super genus. Like communication system of language there is
communication system of law. Therefore, for the development and prosperity of law and
language, similar symbolic question’s function—
1. Who is communicating? —Originator
2. To whom information is being given? —Receiver
3. What is the mode of communication? —Code
4. What is the content of communication? —Message
5. Which way communication is received? —Instrument
 6. What is the object of message? —Verb
7. What obstructs the communication? —Interruption
8. Nature of communication system —Capability and Changeability.
9. To make communication more admissible and developed —Adaptability

The law and legal system are an arrangement of rules, which control the human conduct or
behaviour.
According to DWARKAN—Law is a part of principles, policies and standards. However, law
sociologists include institutions and relations along with the rules and the law.
Views in this regard—According to AUSTIN—In a diplomatic society the law-maker is the
Parliament i.e., British Parliament, however, some of the people are of the view that the
source of law is the conservative custom and some are of the view that the law originates
from judgment. Primary origin of law may be identified in any way but the humanitarian
statement would be the same.
2. On the basis of nature there can be two types of receivers of message. Law is a
combination of primary and secondary rules. Ordinarily the receiver of primary rule is
specifically the subject-matter of law and the receiver of secondary rule is that from whom
implementation of law is expected. Thus, second category of receivers of messages are judges
(who examine the cases), legislatures (who make law), police and authorities (who apply the
law).
3. Code is a developed means of law in communication. Sometime messages are
communicated without the study of written law. For example, a citizen who has frequent
dealing or encounter with the police, receives knowledge regarding power of the police
without the study of police manual.
4. Under a system of law a group of messages or series of messages are included. However,
such messages may be universally imperative or specifically imperative. The imperative form
of message is likely to do something which may propose prohibitory standards.
5. Legal messages may be received by various means. In a fully literate society, legal
messages can be received by hearing. In modern society, eyes play an important role in
receiving messages. In case of written law the message can be received by studying.
However, other than this the messages can be received by means of proceedings of the court
1. consultation with legal advisers or by means of challenging the rights.
6. The object of communication of law intends to do or not to do something. According to
HART—law provides facilities, besides passing an order or direction. Such orders/directions
may be constructive or protective or even destructive.
7. Under legal system, its standards are capable of making changes from time to time. Even
the conservative laws may be changed from time to time. Later on, it can be codified.
However, the shortcomings of such codes are removed by the legislatures on the
recommendation of the Law Commission. Hence, the changeability and adaptability are the
essential elements of the law, which are affected by the appropriate mechanism.
IMPORTANCE OF LANGUAGE FOR LAW
Law is made by means of language. Law is controlled by logic. It is an admitted fact that the
working of an advocate is attached to words. Words are not only the instruments of thoughts
but they also control them. Advocates adopt language which makes his interpretation and
construction strong. Thus, the words are not object themself but are means to achieve objects.
Law by means of language establishes social control and also performs its working. For
example—Rights, Duties and Torts, these terms are carriers of social control. It is a universal
fact that the scope for use of language in law is very wide and extensive. Language fulfils two
objectives in law—
• First rule is that it assists in making statement relating to fact;
• Second rule is that it assists and gives effect to convincing. Interpretation of statute is
done by means of language which is to be calied legal language. However, static form
of law can be seen in reports, Constitution and in text books. Dynamic form of law
can be seen in judgments, arguments and drafting.

Words contain magic. Sometimes two words appear to be the same in their meaning,
but use of analytical legal mind in it may show micro difference in their meaning.
Ultimately, such differences in words amount to different legal results. It has been
experienced that there are words which ostensibly express no different meanings but
in legal analysis micro different meanings are found. Therefore, such differences in
meanings are capable of delivering different legal consequences.

Thus, it can be said that difference in meaning of words cause different legal
consequences. Though, efforts are being made to remove such magic effects of words,
superficial magic effect of words still continues.

Admittedly, language has always remained important for law. Good command over
language would make law admissible and application of law would be easy. Thus, if
the language used in law is clear, simple and popular it wouid be convenient to
implement and hence, it would achieve its purpose.

MEANING OF LEGAL LANGUAGE AND ITS SCOPE AND PROBLEMS

(i) Meaning of Legal Language.
Legal language means the language which is being used by the persons engaged in legal
profession.
Law is a technical subject like any other subject. Like a technological subject, law too has its
specific language and terminology to be called its own ‘Register’. Like any other
technological subject, the interpretation of law is carried out by means of specific language.
The expression "legal language" means not merely a language. The use of adjective "legal"
shows that legal language is a specific language. The scope and extent of legal language is
very much wide, because the legal language deals with the common man. Administration of
law or judgment of court affects the common man. There is a general conception regarding
the legal language that a common man cannot understand the legal language as it is a
technical subject. Only the legal experts are able to understand the technicality of legal
language because they possess skill to understand it.
Undoubtedly, the legal language differs from ordinary language. The constitutional language
is a part of the legal language. In fact, the constitutional language is the foundation of the
legal language by which laws obtains statutory status.
(ii) Scope of Legal Language.
Different types of people come within the ambit of the legal language. However, some of the
people are compulsorily legal experts and some of the people are not compulsorily legal
experts in the absence of knowledge of law. In modern society there are two categories of
people—({i) those who are affected by law and (ii) those who deal with law 1.e., legal
experts—
• Ordinary citizen—Compulsorily not legal expert.
• Law-maker (member of Parliament or member of Legislative Assembly)—
Compulsorily not legal expert.
• Judge—Compulsorily legal expert.
• Legal adviser—Compulsorily legal expert.
There are five dimensional communications in the field of law.
1. The first dimension is the law-makers, then the judges who implement it and legal
advisers are the contributors in the communication of the provisions of the law.
Since the law-makers are not compulsorily legal experts, they cannot unfold the
technicalities of law. This is to be considered as one-sided communication, called
Constitution. The language of the Constitution is technical, over which the law-
makers do not have command. The intention of the law-makers is communicated by
the draftsman by use of technical language.
2. The second dimension is the interaction which takes place between the judges and the
legal advisers. This can be formal or informal. In the court exchange of views do
occur between the judges and the advocates. These exchanges of views are not much
technical and therefore, it’s language is compulsorily simple. But, the language of the
briefs submitted by the advocates and the judgments delivered by the judges could be
more technical.
3. The third dimension of communication is of informal advice or exchange of views
between two or more advocates in their office or the exchange of views among the
legal experts. This kind of communication is informal, however mostly technical.
4. The language of the fourth dimension of communication is simple. This type of
communication takes place between ordinary citizen and legal adviser. The language
of an ordinary client is simple. The legal adviser uses simple language to the best of
his ability because lack of clarity may create misunderstanding.
5. The last and the fifth dimension of the communication exists among ordinary citizens,
which are expressed in contracts, wills and in information.
ASHOK R. KELKAR has divided the legal communications as the following. These are of
five types—
• Communications from the law-makers to the judges and advocates—i.e. the
Constitution and its preamble.
• Communications from the judges to the advocates and vice-versa—i.e. judgments,
briefs, conversations in the court room, part of judgment and brief like the preamble.
• Communications among the judges, advocates and the legal experts.
• Communications from jury to judges, from legal adviser to client, from client to legal
adviser and from parties to the judges.
• Communications among ordinary citizens i.e. contracts, wills, bye-laws and
information etc.
In aforesaid situations the language of the constitutional judgments is more technical.

iii) Problems of Legal Language.

Law is an inexact science like philosophy, psychology and other social sciences. There is no
mathematics or prakrat science found in the legal language. Due to ambiguity in the human
language, the legal language too has its own problems. The word "legal" appears to be a
Noun but it is used as an Adjective. In respect of the word "legal" whether it is a Noun or
Adjective, no real difference could be drawn. Instead of "law firm" the words "legal firm" is
not used.
Similarly, instead of "legal doctrine" the expression "law doctrine" is not used. There are
many problems relating to the legal language, these are as follows:
(A) Problem Due to Uncertainty and Doubt.
There are number of words which have uncertain meanings and thus problem arises.
For example, the word "right" has been used for giving about half a dozen meanings
and there is no more ambiguous word than "right" in the legal literature. Its one
meaning is just, morally good and another meaning is correct, true. Sometime such
uncertainty causes disastrous results.

(B) Problem Due to Incompleteness of the Human Language.

Legal language is a part of the language which has been made by the human beings.
Therefore, incompleteness of language affects its expressions and due to such
incompleteness true interpretations could not be made. For example, whether an
album is a book—Answer is "no", whether a bicycle is a carriage—Answer is "no",
whether a flag is a document—Answer is "no".

(C) Problem Due to change in the meaning of words from time to time.
The meaning of many words gets changed as time passes—Meaning of some words
become narrow and meaning of some words get widened and also meaning of some
words are modified. For example—the word "asylum" is used as a place for any kind
of shelter but with the passage of time the word "asylum" is used for a place wherein
mentally sick persons stay for treatment, however, its old meaning has not
 disappeared. According to the word derivatives the word "accident" means an
unexpected event occurred without appropriate cause. This meaning is reserved under
the Workmen’s Compensation Act to interpret homicide as an accident. In Niswet v.
Rayan, ‘it was held that, if any person has committed murder by stabbing a knife,
such murder amounts to an accident. Similarly, in Trim School v. Kelly,’ while
working in a law school, a teacher was attacked and consequently, his death
amounted to accident.

But, ordinarily "accident" means such a damage which is not done intentionally or
action which is without any motive. The meaning of word ‘animal’ has been changed
two sided. Initially, it was used for any animal who takes breath. In the same context
ARASTU said, "Man is a social animal". This meaning has been widened in the field
of science and all non-botanical forms of life included in it and fish is held to be an
animal. On the other side, in popular language, its meaning has narrowed and only a
four-legged living body is considered to be an animal.

(D) Problem Arising Due to Regional or Limited Meaning of the words.

Perhaps, there is no word of such dubious meaning having two or more definitions
even though its meaning is ambiguous. The words appearing to be antonymous could
not be defined correctly and perfectly. For example, ‘White’ and ‘black’; ‘night’ and
‘day’; ‘open and close’; ‘good and bad’ etc. Prima facie it appears that these words
are complete mutually. For instance—a door may either be closed or opened or it ay
be ‘ajar’, slightly open.

Similarly, whiteness or blackness are colour element of things. In law difference

between two words create pungent result. Whether a person is to be left free or
admitted in mental institution would depend upon the fact whether the court has
declared him ie oatias) healthy or mentally unhealthy.

(E) Problem Due to Humpty Dumpty use of words.

Interpreters play humpty dumpty with the words. For example—In legal proceedings
the word "action" is not used in the sense in which ordinarily its meaning or
understood. There are many such words which are used by the legal advisers with a
totally different meaning from their ordinary meanings. For example—Consideration,
Satisfaction, Brief, Composition, Construction, Ratio, Award, Delivery, Devise, Title
etc. Legal experts mostly use the words like fair, just and reasonable which are so
much ambiguous and cause difficulty. The legal experts have freedom to use them in
their own way. For example—Plaint, Onus, Estoppel, Covenant etc.

(F) Problem Due to Rhetoric Language.

Art of expression or efficiency in speaking is considered to be synonymous with the
legal language. The judgments of Courts are full of rhetoric language. In fact, among
all specified languages the legal language contains a web of words or is jargon ridden.
Grammatically, the word “as to" which is of doubtful statutory meaning and ignored
outside the law, is used at any time and in many ways. Reckless use of words “as to"
can be seen in the following sentences—
 i) As to the question, the plaintiff has no reply.
ii) She did not know as to where the offence was committed.

(G) Problem Due to Verbosity.

Sometimes, to express a view, two or three words are used differently. In ‘several
documents irritative words are unnecessarily used such as executor, heir, assigns and
administrator. These old words are still in use despite a change havjng been
incorporated in law.

(H) Problem Due to use of Legalistic Language.

It has been seen that while drafting, mostly the legal language is used. Consequently,
the legal language does not remain ordinary language for people and such mode of
legal language is problematic indeed.

(I) Problem of Legal Language—Measures For Its Removal.

It is true that like any language the specified legal language has problems such as
multiple meanings, ambiguity, verbosity and other limitations. There is dearth of
proper words for expressing all the ideas in clear manner. However, if the words are
used in performative manner, it provides clarity of expression to some extent.

According to PROF. HART—In contracts and deeds the use of performative language
would be able to provide more clarity and it deserves to receive attention. Thus, use
of performative language in legal language will be effective to solve problems of
legal language.

Due to technicalities of legal language not only the general public, but also the legal
experts at times find it difficult to understand. Therefore, it is desirable to simplify the
legal language. Instead of using verbosity, idiomatic language or traditional old
words, it is necessary to use simple language for effective communication.

CHAIRRO & CHAIRRO in his psycho-linguistic study emphasised on the use of

easily perceivable and simple legal language. He commented that in recent times, the
persons relating to law are unable to understand law in true sense and such concern is
increasing. This concern has encouraged the opinion regarding re-drafting of law in
simple English. Former President of U.S.A. Mr. JIMMY CARTER was also of the
view that to bring reform in executive machinery, it is necessary to use simple
English language in the federal orders and governmental orders, so that it could be
understood easily by those, from whom its implementation is desired.