Why is legal writing such a godawful mess? Last week, we began our look for answers. This week, those answers begin to reveal themselves.
Our guide is Peter M. Tiersma’s Legal Language. Its first section is a history of the origins of both written and oral legal communications. Last week we learned about legal language’s Celtic, German, and Scandinavian roots. This week those always-exasperating French get their turn.
During the 9th and 10th centuries, the Northmen, another group of tough-as-nails Vikings (similar to those that conquered much of England) conquered much of France. Proving, I suppose, the magic of France, the Northmen in just a few generations became Normans, quite French in language and culture.
In 1066, William, Duke of Normandy, claimed the English throne and invaded England. He defeated the English King Harold at the Battle of Hastings—this was the Norman Conquest that your history major friends used to talk about to make themselves sound smart. Before long, the ruling class in England spoke Anglo (Norman) French. English was subjugated to the lower classes.
But legal language did not become dominated by Norman French for centuries. The Normans were accustomed to writing their laws in Latin, so it began to dominate English in legal writing. Anglo French did not appear in legal documents until 1275, more than 200 years after the conquest.
Now here’s where things get really interesting. As French slowly began to dominate in legal writing, it began to fade away as a spoken language. As the justice system became more centralized, it became more dominated by Norman French. At the same time, lawyering was becoming less a trade and more a profession. Think about it: part of what defines a profession is the development of a language unique to its members. Medicine, finance, and the clergy all have their own languages that are opaque to outsiders. What better way to build a wall around the legal profession than to embrace French just as it was fading away as a spoken language?
This law-only language (Law French) eventually became comprehensible only to lawyers who were trained in it. It was almost utterly opaque to native readers of not only English but probably French as well. This led to (and this is my favorite part of this section of Tiersma’s book) the first legal writing in plain English law. Let’s let Tiersma explain:
In 1362 the Statute of Pleading was enacted, condemning French as “much unknown in the said Realm” and noting that parties in a lawsuit “have no Knowledge nor Understanding of that which is said for them or against them by their Serjeants and other Pleaders.” In order that “every Man of the said Realm may the better govern himself without offending of the Law,” the statute required that all pleas be “pleaded, shewed, defended, answered, debated, and judged in the English tongue.” Records could still be kept in Latin. Ironically, the statute itself was in French and seems to have had limited effect.
Which all sounds eerily familiar.
Latin, another language that the typical English person could not speak or write, continued to hold an important place in legal writing. Latin was the language of the clergy and educated elite. It also had the advantage of being standardized, with set grammar and spelling traditions. English had a number of dialects.
In Law Latin, phrases were often written in English and then repeated in Latin. Sometimes English words were morphed into Latin. “Murder” became murdrum. Clerks provided what Tiersma calls “an English gloss” for readers who did not know Latin: sorceri vocati wytches “sorcerers, called witches.” Law Latin also borrowed from French as well, Latinizing French words: barganizando “bargaining,” attornatus “attorney,” and juratores “jurors.”
Writs, which are letters issued in the name of the sovereign, had typically been written in Latin, and were usually addressed to a Sheriff ordering him to do something. This is why we still write writs of habeas corpus “seize the body,” certiorari “to be more fully informed,” subpoena “under penalty,” and quo warranto “by what authority.”
Latin was also used extensively for legal maxims, sayings that teach us and help us remember legal concepts. Many survive. One of the most revered is ubi jus, ibi remedium “where there is a right, there is a remedy,” and another is expresio unius (est) exclusio alterius “the expression of one implies the exclusion of another.”
It’s either hilarious or heartbreaking, depending on one’s modern perspective, how the continuing use of Law French was defended. While critics called the use of a language nobody but lawyers and judges could understand a conspiracy to monopolize power, lawyers defended it in creative ways. Sir Edward Coke explained that Law French protected the public. Using English would allow “the unlearned by bare reading without right understanding might suck out errors, and trusting in their conceit, might endamage themselves, and sometimes fall into destruction.” This was the same argument made for keeping the Bible in Latin. If ordinary folks could read it, they might start to question Church doctrine and dogma.
Lawyers also hid behind the myth of precision. Then, as now, the law required some technical terms that had specific meanings. But that’s no argument for wholesale preservation of a dead language.
Next week: English makes a comeback!
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