“All rise! Hear ye, hear ye, hear ye….”
These are among the first words spoken in trial, yet these words represent just a sample of the confusion that lay ahead in trial for a layperson, someone who is not trained in law. Part of what makes the law seem so foreign to laypeople is the language that is used to conduct legal affairs in contracts, trials, legislation, and jury instructions. Scholarly attention transformed the intersection of law and language into a fertile area of study, called legal linguistics or forensic linguistics. The specialized terminology and language used by legal professionals and in legal documents is coined ‘Legalese’. Features of Legalese that cause it to be infamously confusing to understand and even difficult to use are discussed below:
English and the common law system both have long histories stretching back to the Middle Ages. As such, the law is scattered with archaic wording and foreign phrases. Words like heretofore, thereupon, and whereabouts are the remnants of language that was once popular but are now used only in specialized discourse communities, such as the legal field. However, these words serve a purpose; by condensing several words into one, these words minimize repetition (a common feature further complicating Legalese). Additionally, several Latin and Old French phrases are preserved within the law and Legalese. Examples include: en banc (French), force majeure (French), habeas corpus (Latin) malum in se (Latin), and mens rea (Latin).
NOTE: Check out our Legally Word Series to help demystify legal language!
Word Doubling, or the use of two or more words from the same grammatical category joined together, is a common feature of legalese. Scholars theorize there may even be a tendency towards repetition in a multilingual society. The development of the English language provides several opportunities for word doubling as a result of multilingualism to arise; for example, during the Middle Ages in England Norse, Anglo-Saxon, Latin, and Old French were used concurrently. Examples of doubling that persist include: to have and to hold (both Old English); mind and memory (Old English and Old French), to aid and abet (both Old French); safe and sound (French and Middle English); part and parcel (French pair), will and testament (Old English and Latin) (Solly, 2016).
Vagueness might seem to be a counterintuitive feature of the legal profession. After all, lawyers are often tasked with describing the indescribable with precision. Crystal and Davy reaffirm lawyers’ “need to avoid ambiguity, to be precise or vague in just the right way, to evade the possibilities of misinterpretation” (Solly, 2016). However, words such as reasonable, proper, and good are incorporated into a variety of statutes and legal documents. These words, imprecise by nature, are left to judicial interpretation to define and clarify.
In all, legal language is a double-edged sword. Supporters of Legalese maintain it serves as a means of precision for lawyers and other legal professionals. Its archaic language holds specific meaning and can easily refer to precedent and established legal concepts. Meanwhile, critics point to the confusion Legalese causes among those who are not legal professionals. The Harvard Business Review even published a case for plain-language contracts.
Citations & Further Reading
Block, G. (1986). Legal Language, Lay Meanings. ETC: A Review of General Semantics, 43(2), 169-174. Retrieved July 7, 2021, from http://www.jstor.org/stable/42576809
Burton, S. (2018). The Case for Plain-Language Contracts. Harvard Business Review. January-February 2018, 134-139. Retrieved July 7, 2021, from https://hbr.org/2018/01/the-case-for-plain-language-contracts
Cheng, L. (2017). Most Common and Confusing Legal Words (Legalese) Explained Simply. Asia Law Network Blog. Retrieved July 7, 2021 from https://learn.asialawnetwork.com/2017/10/03/common-confusing-legal-words-legalese-explained-simply/
Hargitt, S. (2013). What Could Be Gained in Translation: Legal Language and Lawyer-Linguists in a Globalized World. Indiana Journal of Global Legal Studies, 20(1), 425-447. doi:10.2979/indjglolegstu.20.1.425.
Solan, Lawrence M., Legal Linguistics in the US: Looking Back, Looking Ahead (July 29, 2019). Legal Linguistics Beyond Borders: Language and Law in a World of Media, Globalisation and Social Conflicts, Brooklyn Law School, Legal Studies Paper No. 609, Available at SSRN: https://ssrn.com/abstract=3428489
Solly, M. (2016). Stylistics of legal discourse. In The Stylistics of Professional Discourse (pp. 58-80). Edinburgh: Edinburgh University Press. Retrieved July 7, 2021, from http://www.jstor.org/stable/10.3366/j.ctt1bgzc59.8