I invite you to come along as I finally learn the real reasons most legal writing is bloody awful. Not “why” in terms of the battles between Legal Writing in Plain English and “traditional” legal writing, but by learning the history of legal writing itself.
I’m reading Legal Language by Peter M. Tiersma. He has a J.D. from U.C. Berkeley Law School and a Ph.D in linguistics from U.C. San Diego. He teaches at Loyola Law School. His book is a history of legal language. It’s not textbook-y in the least; in fact, it’s very readable. And it’s fascinating. But instead of just urging you to read it (which you probably won’t—who reads history of language books in the summer?), I’m going to read it for you and over the next few Saturdays I’ll share what I’m learning.
You’re welcome, in advance.
Now, to the barricades!
First let’s hear from Professor Tiersma:
In varying degrees, legal language has always differed from ordinary speech. When the differences became large enough, there were generally protests and attempts to improve the situation. Yet, after each reform, the gap between legal and ordinary language again gradually widened, leading to yet another round of protests and reform. Perhaps we should learn something from the past, rather than endlessly repeating it.
Origins of legal speech
Before the time of Christ, the people we now call the British (or Britons) were Celts, who dominated most of Britain and Ireland, as well as large parts of western Europe. But then those pesky Romans conquered, and ruled until their empire collapsed in the 5th century. Their language (Latin) and laws left with them. This opened up the Britons to attacks from the Scots and their neighbors, the Picts. After centuries of Roman domination, the Britons were apparently not too skilled at the whole fighting-and-killing thing, so around A.D. 450 they hired Germanic mercenaries from the continent. And naturally those mercenaries brought their robust language along.
We’ve decided to stay a while
The problem: the Germanic warriors liked their home-away-from-home and decided to stay. So they took over almost all of what is now England, and their Germanic language Anglo-Saxon (or Old English) won the day as well. The Anglo-Saxons called their new home Angle-land, which morphed eventually into England. A few outer areas of the country stayed free of Germanic dominance (as they had of Roman rule also), and their Celtic languages survived. (Welsh is still spoken today.) That’s why you never want to refer to someone from Scotland or Wales as “English.” You’ll likely get an earful, and if you’re in a pub, maybe worse.
The Anglo-Saxons had no legal professionals (imagine that), but they did have legal terminology, such as witness, and will, but not as in, I will mock your weak attempts at blogging, but as an expression of desire. One surviving example is where there’s a will there’s a way or if you will. That’s why that document you sign that reveals who gets your beloved Pez dispenser collection when you die is still called a Will.
In that era, the use of exact combinations of words was crucial to winning a legal battle. A plaintiff in a civil case would have to recite his oath (not a promise to tell the truth, but his side of the story) orally, and could not err, or even stammer. The defendant would recite his oath under the same pressure.
Many of the “terms of art” of the era used alliteration for emphasis and to help litigants remember them so as to recite them correctly. Survivors include aid and abet, clear and convincing, part and parcel, and have and hold.
The return of Latin
In A.D. 597, Christian missionaries landed in England. The religion quickly spread through the country. The church’s language, of course, was Latin. And as church influence grew, so did Latin’s influence, in particular through canon law, which the church used to dictate in matters of family and marriage. Tiersma credits the church for developing literacy in general in England. And written laws soon followed. People with religious training were most of the first literate people in England. The term clerk was used to mean priest; note the similarity to cleric. Clerics became synonymous with scribes, with the result that today clerks are those educated folks that keep the official records of a court.
As my Minnesota friends know well, in the 8th century, Scandinavian Vikings began raiding the English coast. While they did not entirely conquer England, they occupied substantial portions, and many stayed, and of course brought their own legal traditions, known as Danelaw, along. In the 11th century, Canute the Dane became king of England.
The Scandinavian languages and Anglo-Saxon Old English were somewhat similar, but Danelaw brought to England the most important legal word of them all: law. So, as one who works with a saw is a sawyer (because sawer is too hard to say), one who works with the law is a lawyer.
Next week: The Norman Conquest and the coming of (eek!) French!
(image: Corfe Castle ruins from Shutterstock)