This article, Aims to provide a relatively comprehensive description of legal Language, including how it got to be the way that it is, its present characteristics, how lawyers use language in the courtroom, and the movement to reform it. The major theme running through is how well legal language functions as a means of communication. Many of the other uses or goals of legal language, including the goal of winning cases, the law's desire to appear objective and authoritative, and lawyers' use of language as a marker of prestige and badge of membership in the profession, may limit or conflict with that central aim.
How did legal language get to be the way that it is? Is it the result of a conspiracy by lawyers to retain their monopoly? Or did it just develop naturally over the centuries? To answer such questions we need to look at the history of the language of lawyers.
Legal language has been called an argot, a dialect, a register, a style, and even a separate language. In fact, it is best described with the relatively new term sublanguage. A sublanguage has its own specialized grammar, a limited subject matter, contains lexical, syntactic, and semantic restrictions, and allows “deviant” rules of grammar that are not acceptable in the standard language. However we describe it, legal language is a complex collection of linguistic habits that have developed over many centuries and that lawyers have learned to use quite strategically.
There are virtually no remnants of the legal language of the original Celtic inhabitants of England, although there are some indications that it was poetic and not particularly comprehensible for ordinary people, a theme that continues to resonate.
The Anglo-Saxons pushed the Celtic language to the fringes of Britain. Some Anglo-Saxon words or legal terms have survived to today, including writ, ordeal, witness, deem, oathand moot. Words had an almost magical quality in Anglo-Saxon legal culture. Their law used alliteration and conjoined phrases, a practice that has, to a limited extent, survived to the present (as in rest, residue and remainder). The increasing linguistic complexity of Anglo-Saxon laws led to more complicated legal language, suggesting that the complexity of legal language may to some extent simply reflect an increasingly complicated society.
Christian missionaries landed in 597 and (re)introduced Latin. Latin terms that entered legal language in this period include words like clerk. One impact of Christianity was to encourage the use of writing, which was later to have a tremendous impact on the law. Although Latin was incomprehensible to most of the population, it enhanced communication at a time when there was no standard for written English.
Vikings raided the English coast, and eventually settled down. Legal terms from Norse include the word law itself, but otherwise the language did not have a large impact on legal English.
The Norman conquest in 1066 placed French-speaking Normans in virtually all important positions in England; French thus became the language of power. Virtually all English words relating to government are originally French. The Normans initially used Latin rather than French as a written language of the law. Only around 200 years after the conquest did French statutes appear. They remain French until the 1480s. Strong evidence that the courts operated in French did not appear until the end of the 13th century. The use of French in courts seems tied to the expansion of jurisdiction of royal courts during this period; royal courts were logically conducted in French, which was still the language of the aristocracy and royal household at this time. In a sense, therefore, adoption of French for legal purposes could initially have promoted communication with those most affected by royal law.
Ironically, at the same time that French was in ascendancy as the language of the law, use of Anglo-French as a living language was beginning to decline. It is probably no accident that this was also the period when a professional class of lawyers arose. Soon after 1400, Anglo-French was virtually extinct as a living language, but it had become firmly entrenched as the professional language of lawyers.
Throughout this period, Latin continued to be used as a legal language. It came to be known as “Law Latin,” and included various legal terms of French origin, as well as English words when clerks did not know the Latin. Legal maxims, even today, are often in Latin, which gives them a sense of heightened dignity and authority. Names of writs (mandamus, certiorari) and terminology for case names (versus, ex rel., etc.) are still in Latin, perhaps a reflection of the use of Latin for writs and court records until the early 18th century.
French eventually became a language used only by lawyers, and became known as “Law French.” Early efforts to abolish it in court proceedings failed. Possible reasons for the retention of Law French after its demise as a living language include claims that it allowed for more precise communication, especially with its extensive technical vocabulary; the dangers of having ordinary people read legal texts without expert guidance; the conservatism of the profession; and a possible desire by lawyers to justify their fees and to monopolize provision of legal services. If nothing else, it reflects the conservatism of the profession at the time.
Some of the characteristics of Law French that have left traces in today's legal language include addition of initial e to words like squire, creating esquire; adjectives that follow nouns (attorney general); simplification of the French verb system, so that all verbs eventually ended in -er, as in demurrer or waiver; and a large amount of technical vocabulary, including many of the most basic words in our legal system. Law French eventually was reduced to around 1000 words, forcing lawyers to add English words to their French texts with abandon. A notorious example is the “brickbat” case from 1631.
During this period, lawyers had to be trilingual in French, Latin and English. Each language was traditionally used in specified domains. Even more than today, perhaps, law was in those days a profession of words.
Use of Latin and Law French for legal purposes gradually declined, and was given a final coup de grâce in 1730.
Legal language was originally entirely oral. If there was a writing of a legal event, it was merely a report of the oral ceremony. Eventually, the writing became a type of autoritative text, the dispositive or operative event itself. What now mattered was what was written, and what was said became largely or entirely irrelevant. This progression can be seen in written reports of court proceedings, which first merely documented an oral event, but which later became the event itself, so that what is said in an appellate court in the United States today is legally immaterial; what matters is the written opinion. Legislation also went through this progression. Printing contributed to these trends by allowing for a standardized and widely-available version of the written text. Now all that matters is the enacted text of a statute, or the published version of a judicial opinion, which has led to an ever increasing fixation on the exact words of legislation, and has permitted the development of the doctrine of precedent.
As pleadings became written, rather than oral, they also became subject to increasing textual scrutiny and were often rejected for the smallest linguistic slip. This encouraged use of formbooks, which had a conservatizing effect on legal language by promoting continuing reuse of antiquated phrasing. And legal documents became ever longer as clerks and lawyers charged by the page. In part for these reasons, the legal profession began to find itself in low repute.
English colonizers transported legal English throughout the British Empire, including North America. Despite antipathy towards lawyers and the English, the Americans maintained English legal language. The Articles of Confederation were linguistically very convoluted and full of legalese. Thomas Jefferson advocated improving the style of statutes, although did not really follow through. The Declaration of Independence and American Constitution are elegant and relatively simple, but in general, American legal language closely resembled that of their former colonial masters. The same is true in other former English colonies. To a large extent, the retention of English legal language is closely related to the retention or adoption of English common law. People who adopt concepts from another culture tend also to adopt the words used to describe those concepts.
Lawyers did not invent Law French, or today's legal language, for the purpose of monopolizing the profession. It developed naturally, under the influence of diverse languages and cultures, as well as the growing complexity of the legal system and the shift from predominantly oral to mainly written communication. Yet to some extent, legal language does have the effect of enabling lawyers to retain their virtual monopoly on providing legal services. The fact that laymen remain dependent on lawyers for creating and “translating” legal texts makes it hard for lawyers to abandon their distinctive language.