Legal Language is Exclusionary
1) Introduction
Words are a powerful weapon if you know the correct way to use them in certain situations. The same is true with the law. I would suggest that law up to a certain extent is a game of words and language. From Acts to contracts to arguments, all is dependent on language. However, the general perception is that legal language is not for all and is limited to some, due to its complex, technical, and formal nature. While it aims to provide precision and clarity, it ends up becoming an impediment to the common people. Hence the need for lawyers.
This article examines the exclusionary nature of legal language, intricating the hurdles it creates for the common man.
2) Definition
Legal language is an interdisciplinary term as it involves law and linguistics. It is a game of terminology and interpretation.
According to Prof. Sheila Hyatt, legal language comprises the following.
Firstly, new words and phrases that are exclusively used as legal terms, like Mens Rea, Res judicata, Modus Operandi, etc.
Secondly, normal terms like Malice, take a new meaning in the field of law. Another example would be the term consideration, used in contract law, which means offering something valuable to the party in exchange for something, and not thoughtfulness as it means in the common English language.
Thirdly, the meaning of terms changes depending on the situation they are being used in. For example, Possession would mean physically having something, but a person can be said to be in possession of something even though that person does not physically have the object and only has the knowledge of the location of that object, (possession is of various types like real, symbolic, constructive, etc.). Thus, the same word has different meanings depending on how it is used.
Fourthly, some words are used as a short form of complex legal concepts and are subject to the discretion of judges over a long period, like unfair competition, foreseeable, etc.
Hence, in legal language, the use of mere words changes the whole meaning of the sentence. For example, She resides in India and She is domiciled in India are sentences that may be viewed as similar by a common man but have different meanings in legal language.
3) History
The evolution of legal language is connected to the history of Britain. During the Norman invasion of Britain, Anglo-Norman French became the official language of Britain, becoming the language of law. Later in 1066, Latin became the language of statute but not of proceedings held in court. This is also the reason why the current legal language also includes French and Latin terms like chattel, Ad hoc, de facto, etc.
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.[1]
According to,Proceedings in the Court of Justice Act, 1730. Latin was replaced by English. As a result, new branches of law such as commercial law began to be developed entirely in English.[2]
Once upon a time, the sun in Britain never set, leaving much of the world's population with the dominance of the English language. Hence the places where the English language was used for law were influenced by Britain.
4) Language Complexity
There are three types of complexity that we come across in legal language i.e. lingual, legal and traditional complexity.[3] These complexities are experiences regardless of the language used like English, Spanish, and Indian languages like Marathi, Malayalam, etc.
i) Lingual Complexities- According to Plain Language Association International, a sentence should have no more than 20 words for it to be understood by the layman. But the acts and statutes cross this limit. A study by Prof. Prakasham on Indian evidence showed that an average sentence in legal language consists of 93 words, making it difficult for common people to understand it.
Legalese i.e. legal professionals deliberately make the legal language more exclusive. For example, in common English, to wish Christmas, one would say, Merry Christmas. But in legalese, it would be said as, In accordance with traditional customs and observations, I hereby extend to you seasonal salutations. Or to translate a simple sentence like Can I call you back in legalese it would be, Would you please grant me an extension of time in which to contact you via telephone?. This also makes the legal language more complex and exclusive.
ii) Legal complexities would be the lack of knowledge of basic legal principles to the public. Since law is a vast field ranging from petty civil matters to property matters to tax matters to criminal matters, covering all sorts of crimes. Therefore, a term would have different meanings in different contexts. Moreover, the use of French and Latin words and phrases creates a complex legal vocabulary, increasing the barrier for the layman.
iii) Traditional complexity- The use of legalese is also because lawyers want the people to not understand the legal language to maintain the profession of lawyers. Because if every other person started to understand legal language, the profession of lawyers would face a loss. Another reason for the use of legalese would be to avoid any loopholes for any scenario. Moreover, even I the words are simple, their ambit is so wide that layman could not possibly understand it completely. For example, Article 21 of the Indian Constitution is about life and personal liberty, but its scope is vast.
The vagueness of legal language creates problems. According to the Standford Encyclopedia of Philosophy, there are three ways in which the legal use of vague language is distinctive- [4]
First, legal systems need to provide for the authoritative resolution of disputes as to the effect of the use of vague language (where in some other domains of the use of language, we can get by without any such resolution).
Secondly, vagueness in legal language is distinctive because lawmakers avoid ordinary vague expressions like driving very fast and prefer precise speed limits. When the law uses vague language, it uses abstract evaluative expressions. Ronald Dworkin has claimed that abstract expressions are not vague at allthat they have a different semantics from that of vague words like heap .
Thirdly, the legal context of an expression may be very different from other contexts of its use. Principles of legal interpretation (for example, a legal requirement that vague criminal enactments are to be interpreted as applying only in clear cases) may make the legal effect of the use of a word more precise than its ordinary effect. The interpretation of a legal prohibition on careless driving demands an understanding of what counts as careless for the purposes of the law. The effect of a vague legal prohibition may be governed by precedents that rule out decisions that would otherwise be a reasonable application of the vague language.
5) Conclusion
It is not that legal language is extremely exclusive. People have made it exclusive. This exclusionary nature has had implications on justice as it affects people's ability to navigate through the legal system. It further limits laymans understanding of the law, creates a system of power dynamics between the legal professionals and common people, and creates excessive and complete reliance of laymen on lawyers which could also affect the common person financially.
What needs to be done to prevent this is to have legal simplification whereby plain language is used while maintaining a balance between precision, clarity, and simplicity.
Citation
1) Admin, History, meaning and scope of Legal Language, Hindu Law, 10 February 2022.
History, Meaning, and Scope of Legal Language - Hind Law (hindlawedu.com)
2) Admin, History, meaning and scope of Legal Language, Hindu Law, 10 February 2022.
History, Meaning, and Scope of Legal Language - Hind Law (hindlawedu.com)
3) Jerrin, Legal Language is Exclusionary, Legal Service India E-Journal.
Legal Language is Exclusionary (legalserviceindia.com)
4) Timothy Endicott, Law and Language, the Stanford Encyclopedia of Philosophy (Spring edition 2022). Law and Language (Stanford Encyclopedia of Philosophy)
