Source: Rupert Haigh, Legal English, Second Edition, Rouledge-Cavendish, 2009, pp.1-5
THE DEVELOPMENT OF MODERN ENGLISH
The English language contains elements from many different European languages and has also borrowed words from a wide variety of other languages. It is impossible to grasp how these influences affect the language without understanding a little about the history of the British Isles.
Prior to the Roman invasion in 55 BC, the inhabitants of Britain spoke a Celtic dialect. Latin made little impression until St. Augustine arrived in AD 597 to spread Christianity. Latin words are regularly used in English, particularly in professional language. In the legal profession, Latin phrases like inter alia (among others) and per se (in itself) remain in current use.
Subsequently, the Angles, Saxons and Jutes invaded the British Isles from mainland northern Europe. The language they brought with them forms the basis of what is known as Old English. This gives us the 100 most commonly used words in the English language (words like God, man, woman, child, love, live, go, at, to).
The Vikings began to raid the northeast of England from Scandinavia from the eighth century onwards. At a later date, a significant number of Vikings settled in this area, bringing with them their own linguistic contribution (which can be seen for example in the numerous place names in the northeast of England (and Scotland) ending in –by or –thorpe, –wick, –ham and in words such as egg, husband, law, take, knife).
In 1066 the Normans invaded from northern France and conquered England. Words such as court, parliament, justice, sovereign and marriage come from this period.
Later, the English helped themselves initially to further words from French, such as chauffeur, bourgeois, elite. As the British Empire expanded, further opportunities to borrow words arose – words such as taboo and pukka came into the English language from that period.
The result of this multiplicity of linguistic influences is a rich and diverse language with a complex grammar and many synonyms. For example, a coming together of two or more people could be a meeting or gathering (Old English), assignation or encounter (Old French), a rendezvous, rally or reunion (French), a caucus (Algonquin), pow-wow (Narragansett) or a tryst (Old French).
SOURCES OF LEGAL ENGLISH
Legal English reflects the mixture of languages that has produced the English language generally. However, modern legal English owes a particular debt to French and Latin. Following the Norman invasion of England in 1066, French became the official language of England, although most ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many words in current legal use have their roots in this period. These include property, estate, chattel, lease, executor and tenant.
During this period, Latin remained the language of formal records and statutes. However, since only the learned were fluent in Latin, it never became the language of legal pleading or debate.
Therefore, for several centuries following the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all writing was done in French or Latin. English was not used in legal matters.
In 1356, the Statute of Pleading was enacted (in French). It stated that all legal proceedings should be in English, but recorded in Latin. Nonetheless, the use of French in legal pleadings continued into the seventeenth century in some areas of the law. In this later period, new branches of – in particular – commercial law began to develop entirely in English and remain relatively free of French-based terminology.
As the printed word became more commonplace, some writers made a deliberate effort to adopt words derived from Latin, with the aim of making their text appear more sophisticated. Some legal words taken from Latin in this way are adjacent, frustrate, inferior, legal, quiet and subscribe. Some writers also started to use a Latin word order. This led to an ornate style, deliberately used to impress rather than inform. Even today, Latin grammar is responsible for some of the ornateness and unusual word order of legal documents. It also lies behind the frequent use of shall constructions in legal documents.
English was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
WHAT MAKES ENGLISH DIFFICULT?
It is said of chess that the game takes a day to learn, and a lifetime to master. In similar vein, English is reputed to be an easy beginner’s language in which it is nevertheless very hard to achieve native-level fluency. Why is this?
There are probably four main factors that make English difficult to master. These are:
1 Lack of clear rules of grammar. We have seen how English is a product of various different linguistic traditions. One of the results of this is a comparative lack of consistent grammatical rules. Prepositions are a clear example of this.
2 Extensive vocabulary. There are many different ways of saying the same thing in English. This is again due to the fact that English draws upon different linguistic traditions. For example, if you wanted to say that something was legally permissible, you could use the Old Norse (Scandinavian)-derived word, lawful. Alternatively, you could use the Latin-derived word, legitimate. Or, if you wanted a more emotive word, you could use the Old English word, right. To take another example, when talking about employment do you say calling, career, profession, employment, job, work, occupation or vocation?
3 The use of phrasal verbs in English (and legal English). For example, you put down a deposit, and you enter into a contract. These combinations must be learned individually because they involve using a verb with a preposition or adverb or both; and, as noted above, prepositions do not follow clear grammatical rules. Some of the phrasal verbs most commonly used in legal English are set out in a glossary at the back of the book.
4 The use of idioms. Idioms are groups of words whose combined meaning is different from the meanings of the individual words. For example, the expression over the moon means ‘happy’. Idioms are frequent in ordinary English – they are a distinctive element of the way native English speakers use the language. They are found less often in legal English, but exist in some legal jargon. For example, the expression on all fours is used to refer to the facts of a case that correspond exactly to the facts of a previous case.
WHAT MAKES LEGAL LANGUAGE DIFFICULT?
One of the main reasons why legal language is sometimes difficult to understand is that it is often very different from ordinary English. This comprises two issues:
1 The writing conventions are different: sentences often have apparently peculiar structures, punctuation is used insufficiently, foreign phrases are sometimes used instead of English phrases (e.g. inter alia instead of among others), unusual pronouns are employed (the same, the aforesaid, etc), and unusual set phrases are to be found (null and void, all and sundry).
2 A large number of difficult words and phrases are used. These fall into four categories, brief details of which are given below.
Legal terms of art
Legal terms of art are technical words and phrases that have precise and fixed legal meanings and which cannot usually be replaced by other words. Some of these will be familiar to the layperson (e.g. patent, share, royalty). Others are generally only known to lawyers (e.g. bailment, abatement).
A number of frequently encountered terms of art are defined in the glossary of legal terminology at the back of this book.
Terms of art should be differentiated from legal jargon. Legal jargon comprises words used by lawyers, which are difficult for non-lawyers to understand. Jargon words range from near-slang to almost technically precise words. Well-known examples of jargon include boilerplate clause and corporate veil.
Jargon includes a number of archaic words no longer used in ordinary English. These include annul (to declare that something, such as a contract or marriage is no longer legally valid) and bequest (to hand down as an inheritance property other than land).
It also includes certain obscure words which have highly specialised meanings and are therefore not often encountered except in legal documents. Examples include emoluments (a person’s earnings, including salaries, fees, wages, profits and benefits in kind) and provenance (the origin or early history of something).
Jargon words should be replaced by plain language equivalents wherever possible.
Legal meaning may differ from the general meaning
There is also a small group of words that have one meaning as a legal term of art and another meaning in ordinary English. One example is the word distress, which as a legal term of art refers to the seizure of goods as security for the performance of an obligation. In ordinary English it means anxiety, pain or exhaustion. Here are some further examples.
Word and its legal English meaning
Word and its ordinary English meaning
|Consideration in legal English means an act, forbearance, or promise by one party to a contract that constitutes the price for which the promise of the other party is bought. Consideration is essential to the validity of any contract other than one made by deed.||Consideration in ordinary English means; (1) careful thought, (2) a fact taken into account when making a decision, (3) thoughtfulness towards others.
|Construction in legal English means interpretation. ‘To construe’ is the infinitive verb form of the term.||Construction in ordinary English means: (1) the action of constructing [e.g. a building]; (2) a building or other structure; (3) the industry of erecting buildings.|
|Redemption in legal English means the return or repossession of property offered as security on payment of a mortgage debt or charge.||Redemption in ordinary English usually means Christian salvation.
|Tender in legal English means an offer to supply goods or services. Normally a tender must be accepted to create a contract.||Tender in ordinary English means: (1) gentle and kind; (2) (of food) easy to cut or chew; (3) (of a part of the body) painful to the touch; (4) young and vulnerable; (5) easily damaged.|
Words may be used in apparently peculiar contexts
A number of words and phrases, which are used in ordinary English, are also used in legal English but in unusual contexts. Examples include furnish, prefer, hold. For details of the meanings of these and other words and phrases, refer to the glossaries dealing with obscure words and phrases at the back of the book.