The Complexities of Legal Language: Understanding Legal English
Introduction
To explore the topic of legal language, this essay will first focus on defining the language itself.
Language is the expression of thought by means of speech-sound. It is sum-total of such signs of our thoughts and feelings as are capable of external perception and as could be produced and repeated at will. Language means a system of words and their use and it is a way or communicating, ideas, feelings and desires by means of a system of sound symbols. The dictionary meaning of the word “language" is system of sounds, words, patterns, etc. , used by humans to communicate thoughts and feelings. It also means ‘words, phrases, etc. ,’ used in a sentence form by a particular group of people.
Language is the conveyance medium in which thoughts and ideas are transmitted from one to another. The multiplicity of thoughts and complexity of ideas in modern times necessitate wither a starting increase in the coinage of words, or the giving to existing words many meanings, such as primary or a secondary, general or specified, popular or technical. It includes both words written or words spoken. It is a medium with the help of which we communicate with one another our ideas, our feelings, our thoughts, our emotions, etc. Language has two forms – one is spoken and the other is written. Spoken language consists of sounds and the written language has its alphabet consisting of letters both capital and small in some languages. The letters carry the sounds in written form. Sentence formation in any language is controlled by grammar.
Each language has its style. Each country has its own language. Great Britain has its English language, France has French, Russia has Russian, China has Chinese, Japan has Japanese, and Germany has German Language. Similarly there are many languages in many countries. However, there are multilingual States like India. In India there are a number of languages – Hindi as national language and languages in schedule eight of Indian constitution such as Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Mathuri, Malayalam, Manipuri, Marathi, Negali, Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu, Urdu. Besides these languages, there are a number of other languages and dialects.
Legal language
Each language has a common or ordinary language form consisting structural and common words. The common language form is the language which is used by one person to converse with another person who happens to speak and understand the said language. Generally, no technical words or phrases are used in conversation. As far as possible, a simple and understandable language is used to communicate one’s feelings and sentiments to another. It is day-to-day communication language. Common language contains a simple or short sentences with commonly used words.
With the development of technology and science, knowledge has been extended to different branches and each branch contains a specific terminology. Language, now can be divided into various categories in accordance with the use, such as scientific language, commercial language, legal language, so on so forth.
Law has its own technical language which is called legal language. Laws, lawyers, judges and legal draftsmen are concerned with legal language. Legal language is different from common or ordinary language. The legal language has its own terminology and its own style.
Legal language means a language used by the persons connected to the legal profession i. e. , the language used by the lawyers, the jurist and legislative draftsmen in their professional capacities and in law courts.
Use of adjective ‘legal’ with ‘language’ has special connotation and speaks of a specialized language of or related to law. The language of law is the court language. The use of court language affects the interacting parties such as judges, lawyers, litigants and other personnel engaged in delivery of judgments, arguments, evidence, summons, etc. at different levels of courts. The adequate flow of communication to different categories of persons necessary for speedy and fair trial and dispensation of justice. Judges who do not know the language of the clients but can follow the arguments presented by the lawyers, need to ensure that the views, evidence, arguments, etc. , put forward by the clients and witnesses have been correctly and adequately conveyed to them through the medium of transaction and interpretation. They must not feel any barriers of communicating with regard to knowledge of precedents and case histories at different levels of court.
When different languages are used at different levels of courts this constraint is likely to arise and practically language becomes a barrier in dispensation of justice in several cases. The linguistic competence of judges has serious implications for interpretation of law and formulation of decisions on the basis of fact and arguments. The understanding of court proceedings by the clients and their participation in the judicial process is also crucial to fair trial and justice. There must be understanding between clients, lawyers and judges for the delivery of justice in courts.
English as Legal Language in India
British system of the administration of justice was introduced in India with the firm root of British rule. Indian Legal System is based on the Anglo-Saxon legal system. As is the case of legal system so is the case with legal language. India does not have legal language developed out of our indigenous system and languages. Along with English many other languages are inseparably associated with the legal language. English is born Anglo-Saxon legal system in which Celt and Anglian were indigenous languages of the England and Saxon was a German language. English continued words derived from many languages of tutonic and Romanic school in Europe. English enriched by accepting words from other languages such as Latin, Greek, French, etc. In this background legal language in India mainly based on English, the alien language and is bound to be problematic in India.
All the acts, Codes were in English language. Law institutes teach law through English Medium. English is used in the administration and proceedings of transactions in courts. Al the legal documents and transactions are made through English language.
Even Indian Constitution is written in English language and Article 394A asks the president to arrange for translation of the constitution into Hindi language. The authoritative text in Hindi is in use since 23-8-1988.
Distinctive Features or Characteristics of Legal Language/Legal Terms
The ‘Legal Language’ has the domain of its own. It has its own terminology, its own style and form. The use of Latin words and expressions makes the legal language complicated. Many Latin terms and expressions are used in legal language, which require explanations. ‘Ignoratia, Juris Non-excusat, volenti non fit injuria, Damnum sine injuria, etc. , are legal expressions which are required to be explained with special reference to decide cases. ‘Mens rea’, ‘ab initio’ etc. , are legal terms which have specific meanings and are used exclusively in expressing the principles of law. A number of legal maxims such as ‘ubi jus ibi remedium’, ‘Act non facit reum nisi mens sit rea’, ‘Action personalis moritur cum persona’, ‘Ex nudo pacto non oritur actio’ etc. , are required to be explained as they have specific meanings and specialized expressions conceal many thoughts and ideas. Legal terms, expressions and doctrines used in a statute cannot be interpreted in a haphazard manner.
Old English and Middle English words are also used in legal language. Sometimes French words are also used. Sometimes common words which are used in general English are used in a legal sense creating thereby confusion in the minds of readers.
The use of words – ‘hereinafter, hereto, herein, therein, whereby, whereas, therefor’ etc. , in legal language has given it an exclusively new.
When enacting a piece of legislature, certain words and phrases which are familiar in legal language are used like ‘nevertheless’, ‘provided’, ‘provided also’, ‘it shall be and may be lawful’, ‘is hereby authorized, empowered being in force’, except as otherwise directed by’, ‘nothing in any act or acts to the contrary notwithstanding’, etc. These words and phrases convey a fixed, distinct and unambiguous meaning so as to ensure that neither the lawyers nor judges are capable of making two meanings out of these words and phrases.
References:
- Legal Language, Legal Writing and General English (Sixth Edition, 2014) by S. C. Tripathi
- Legal Language, Legal Writing and General English by B. M. Gandhi
- Legal Language and Legal Writing by S R Myneni
- Textbook on Legal Language & Legal Writing by K. L. Bhatia
- Legal Language Legal Writing & General English by S. K Mishra
- Jhabvala Legal Language & Legal Writing (2nd Sem 5Yr LLB) by Jhabvala
