By Susheela Srinivasan and Dr. B. Shakira Jabeen
English in legal documents in India is so unique that it goes by special nomenclatures — legal parlance, legal English, legalese, etc. This form of language is used in the Courts, legal documents, rules, bye-laws, judgments, Bills, Acts and amendments. A lawyer has to read and interpret it for layman. At what point does the language of law lose contact with common speech? What is it that makes the language of law difficult to comprehend?
Answers to these questions point at certain linguistic aspects used in legal writings. Vocabulary, syntax and semantics make the language of law different. The vocabulary used in legal writings is heavily borrowed from Latin and French languages as Latin was the language of administration and Law in England and French was the Court language.
British educated codifiers in India who drafted the statutes and legal forms borrowed the already existing terminology. Archaism, use of loan words, jargon and use of usual words with unusual meaning and doublets and triplets are the vocabulary features that make comprehension of legal documents difficult. Complicated sentence structures make the language of law quaint.
Archaism is use of outdated words. Modern English has done away with words from Old and Middle English which continue to be used in Theology and Law. Use of such words adds to the difficulty in understanding a piece of writing. Words like heretofore, hereinafter, wherein, aforesaid and notwithstanding are some of the examples of archaic expressions which are part of legal writing.
Loan words are words borrowed from other languages. The need for these arose as English and French languages were considered vulgar and deficient in logical expressions. Latin was the language of Law in England till 1066. Thereafter a variety of Latin known as ‘Low Latin’ containing Latinised English and French was used in courts till the Fourteenth Century. This explains the occurrence of Latin and French words in Indian legal documents written in English. A few of such Latin words are — ‘a priori’ meaning previous contentions, ‘prima facie’ meaning a case at first sight’, ‘habeas corpus’ meaning a writ to obtain the release of someone unlawfully detained, etc. Words borrowed from French have been so assimilated into legal parlance that they appear to be English like felony, larceny, covenant, battery, etc.
Jargon is words which are used exclusively in a special area. These are words particular to a subject. A word in general can have more than one meaning. But in law these jargons have only one meaning that cannot be disputed. For example, the jargon ‘citation’ means ‘quoting a decided case’, ‘negotiable instrument’ means ‘all rights that can be transferred simply by delivery’ such as cheques. These words have come to be recognised as part of legal register.
Words with unusual meaning are familiar words, used in legal expression with unfamiliar meanings. The general meaning of these words is different from its legal meaning. The word ‘access’ means ‘a right granted to a parent to visit his/her child’. Similarly, ‘conveyance’ means ‘a document transferring a free hold interest in land after sale’, ‘hearing in camera’ means ‘hearing a case in private’, ‘keeping a disorderly house’ means ‘the offence of operating a brothel’ and ‘sleeping partner’ is ‘a partner who assumes no responsibility for running a business’.
Doublets and triplets are overuse of synonyms. This feature is added to make things doubly sure of what it means. ‘Hired, engaged and employed’, ‘destroy, damage and defile’, ‘signed, sealed and delivered’ are some of the examples of the use of multiple synonyms for emphasis. Lawyers defend the use of such synonyms on the ground that they are motivated by the need to be precise. However, critics attribute this to ancient legal practitioners who were paid by the length of the documents.
These vocabulary features by themselves don’t make a piece of writing difficult to comprehend. The syntax of legal writings is mind-bogglingly complex. This complexity of syntax is a unique feature of legal documents. There is no end to the number of embedded clauses and modifiers in the sentence.
However, the never-ending length of the sentence is not the only cause of complexity of legal sentence structure. There were multiple efforts to reduce this complexity of syntax. Use of punctuation marks was one such effort. When law was written or codified in Latin in England, the Greek way of indicating pauses with punctuation marks was not followed.
Later when punctuations were introduced, they were not assigned meaning and they were not taken into account for interpretation. Whenever a dispute in meaning based on a punctuation mark was taken to court, it was ruled that punctuation could not be assigned meaning. However, this recent trend hasn’t eliminated the presence of very long sentences. The unusual structure with multiple modifiers in unexpected positions confuses the reader.
The language of law seems tedious and verbose. A reader is compelled to consult a legal expert to recover meaning from the syntactic labyrinth. There is a need to make legal language comprehensible to ordinary people. Paraphrased and translated versions which aid comprehension can help people understand the documents though these cannot be used for legal interpretation in a court of law.
Technically, all translations of legal documents will not be considered authoritative texts. There are multiple examples where translation of legal documents poses linguistic hurdles. Translation task can sometimes be baffling. Instead of one single language, if we use three or four languages that a group of friends know and put together the various words, it becomes an interesting task. Probably that’s how legal use of English developed.
[The writers are English Language Teaching (ELT) practitioners and alumnus of English and Foreign Languages University (EFLU), Hyderabad]