A genteel old lady who met me for some legal advice asked why we lawyers write in a strange way. She was stumped by “in witness whereof, I have set my hand hereto…”. She asked me if there were substitute words for hereof, thereof, inter alia, and of other strange words that she could not understand. And then she asked — why is it that in an agreement a “party of the first part” did something or the other to someone known as “party of the second part”.
The old lady is not alone. Over centuries the “language of the law” has been the subject-matter of criticism and jokes. Jonathan Swift in Gulliver’s Travels (1726) wrote of a society of lawyers who spoke in “peculiar cant and jargon of their own, that no other mortal can understand”. Thomas Jefferson complained in 1817 that in drafting statutes his fellow lawyers had the habit of “making every other word a “said” or “aforesaid” and saying everything over two or three times, so that nobody but we of the craft can untwist the diction and find out what it means”.
Will Rogers, a famous stage and motion picture actor, humourist, and newspaper columnist, of the 1920s and 30s in the United States summed it up best—ironically—in his speech at a meeting of the American Bar Association in July 1935 in Los Angeles:
“The minute you read something and you can’t understand it you can almost be sure that it was drawn up by a lawyer. Then if you give it to another lawyer to read and he don’t know just what it means, why then you can be sure it was drawn up by a lawyer. If it’s in a few words and is plain and understandable only one way, it was written by a non lawyer. Every time a lawyer writes something, he is not writing for posterity, he is writing so that endless others of his craft can make a living out of trying to figure out what he said….”
Mr Rogers died in a mysterious plane crash in Alaska a few weeks after this speech. Lawyers did not claim any responsibility.
So, what makes the “language of the law” incomprehensible? It is the accumulated baggage of words and conventions gathered and retained over centuries. To the extent that “English” as used by the profession is considered different from common speech “English”. It includes not only distinctive words, phrases, and expressions but also manner of composition. This combination forms the “language of the law” that is associated with law, the courts, and of course the profession.
We use various techniques to confuse the hell out of you. We use common words and give them uncommon meanings. To non-lawyers “demise” means a person’s death; to us it means “transfer of a property by lease”. To non-lawyers “presents” means “gives”; to us it means “this document”. To non-lawyers “motion” means “movement or process of moving”; to us it means “application to a court”. To non-lawyers “said” means the past and past participle of “say”; it is an adjective for us, for example, the “said” building.
We use long sentences so that by the end of it the reader needs another lawyer to explain what it means. We use words which are of antiquity— which go back thousand years—and are not in current general usage—words such as aforesaid, forthwith, henceforth and thenceforth. We use multiple words to convey an idea where one would do. We will say “null and void and of no effect whatsoever” when just “void” or “null” would be good enough.
We love Latin—some of our beloved words: ab initio, ex parte, ex post facto, de minimis, in pari materia, in personam, mens rea, mutatis mutandis, pari passu, res judicata, quasi, sui generis. Everyone is expected to be proficient in Latin, so that should not be a problem!
Like other professions, we also have our “terms of the art”—these are our special technical words which carry a specific meaning. That is shorthand language for us. These are words like: agency, bail, dictum, felony, garnishment, injunction, negotiable instrument, master and servant, lessee, lessor, novation, surety.
But we also use “argot”—which linguists describe as slang or jargon of a profession. It is form of a language of communication within a group. Sometimes deliberately designed to exclude those outside the group. Argot is insufficiently technical or specific to qualify as a “term of the art” but we pretend it is. Here is a sampling: at issue, cause of action, four corners of the instrument, on all fours, show cause, purported, pursuant to, set down for hearing, reversed, remanded, time is of the essence, without prejudice. This is our daily staple of legalese and jargon.
Then we have pompous and formalistic stuff. There are words of ceremonial and ritualistic flavour—the majesty of the law bit. Many of these constructions and words are peculiar to language of the law. For example: “to all to whom these presents come, greetings”, “know all men by these presents”, “for such other and further relief as which this Hon’ble Court may deem just and proper to meet the ends of justice”, “may it please the court”, “the truth, the whole truth, and nothing but the truth, so help me God”, prior (instead of “before”), subsequent (instead of “after”)”. Most of this confuses old ladies and others.
In simple terms, the language of the law is full of “long sentences, awkward constructions, and fuzzy-wuzzy words”, as an author Rodell said in 1936. His piece was aptly titled “Woe unto you, Lawyers”. Verbose and complex are other adjectives that we hear about “our” language of the law.
Critics remind us lawyers that lawyer’s job is to communicate law and legal concepts to laypersons who need to understand their rights and obligations. They remind us that centuries have passed, that the common speech English language has developed over time with good substitutes for old world words, that the social and economic developments have forever changed our audience, that now the law engages with the lives of common persons and is not domain of an elite.
But we persist in the belief that our language is “precise” as a technical language with words specific to legal concepts. Generations swallow this rationale. The truth is that apart from the terms of the art”, the language of the law is not precise like numbers or scientific names. If there are multi volume dictionaries of Words and Phrases Legally Defined — that does not demonstrate much “precision”. Lawyers are conservative, cautious, and often do what was done before solely because it was done before. Lawyers have become victims of a terrible habit as far as language of the law is concerned. Or is it lethargy?
There may also be a sociological reason. We function as a profession and to make ourselves special and distinctive we claim our own rituals, customs, practices, and “our” language of the law. Stuart Auerbach, who once covered legal affairs at The Washington Post, has speculated that lawyers’ language serves “as a secret handshake in a fraternity, letting others know you are one of the tribe.” In more recent times, technology may have played a perverse role. Verbosity and lack of desire to improve or change or question language in use could be attributed also to use of computers, scanners and photocopiers and other equipment which enables creation (or “assembling” these days) of large documents through copy paste. The opportunity to draft a document ground up with line by line composition is unheard of these days.
Lawyers spend a large part of their time crafting, articulating and delivering end products which are made up of words. In all areas of our work—writing pleadings and conducting oral arguments in a court, drafting contracts, negotiating, writing opinions, or giving advice—words are the only things we have to work with. But we are unaware of the history of the language of the law. Legal writing is not taught as a subject in most law schools. Most lawyers have never read or consulted any textbook on legal writing. Not many can give the name of any authoritative text or author on the subject. Language of the law is “picked up” by one generation from the other. Suitability and relevance of the vocabulary of “language of the law” in the contemporary world is not discussed in the profession. The conventions, construction, use of words, and style which developed in different contexts hundreds of years back continue to flourish.
In many parts of the world, plain English movement is catching up. Britain, Australia, Canada, New Zealand, United States—and in many other countries—the language of the law is being simplified—be it drafting of legislation, court proceedings, contracts, and myriad of day-to-day documentation such as insurance policies and product warranties. In India we are yet to begin. About time we started.