Origins of the Legal Writing Wars, Part Three

We’ve learned a lot from Professor Peter Tiersma’s book Legal Language about the complex and messy development of legal writing in England. From the first conquest by the Vikings to the development of Law French and Law Latin, it’s fair to call this a history of a culture war, one that continues today.

The central question we seek to answer is: why has the push for legal writing in Plain English, which is not a modern phenomenon, met with so much resistance?

Off with his head!

We take up the story in the Commonwealth, during which the Puritans assumed power and beheaded the king. Having a love for plain living, the Puritans considered abolishing the common law, including its courts and practitioners, and replacing the common law with a pocket-sized code in ordinary English. Scary, eh? That didn’t happen, but in 1650 Parliament passed a law requiring that law books and judicial reporters be translated into English from Law French or Law Latin. Ten years later, after the monarchy was restored, the law was repealed and the old ways returned.

But Law French and Law Latin, as separate law languages, declined in use. By 1731, Parliament permanently killed them both off. But, perhaps unsurprisingly, it was nearly impossible to translate many terms into English, and another statute two years later provided that technical words could remain in the old languages.

Blaming Gutenberg

Keep in mind that, like all language, law language began as strictly oral communication. The written form is strictly derivative of the oral. From the 5th to the 7th centuries, transfers of land, for instance, were made strictly via oral agreements. The first written legal documents were merely records of the oral agreements. It took centuries for the method to flip to one in which the execution of a written document caused the legal act to take place. For instance, the Statute of Frauds was not enacted until 1677.

But the change was of course crucial to lawyers. Gradually, oral discussions became less important than written documents, until finally the parol evidence rule largely prohibited the introduction of evidence of oral discussions regarding the content of a legal agreement.

Similarly, records of judicial proceedings also evolved, and this too changed lawyering forever. The original reporters were just that, written accounts of what was said in the courtroom. Gradually, the reports began to emphasize more what the court ordered and less what the lawyers said. The final step to the process we know today was in the United States in the late 1700s, when judges began to systematically issue their opinions in writing. Legislation followed a similar path, with statutes morphing from reports of oral proceedings to written communications of the laws themselves.

All of this change was made possible by Gutenberg’s development of moveable type printing around 1450. Publication of law books exploded in the 1600s, and by 1800, the printed literature on English law included over fifteen hundred titles.

The wordsmithing begins

You can see where this is going. All these trends together put the essence of law into the written word, which became more powerful than any lawyer could have imagined just a few hundred years earlier. Tiersma writes:

Writing and printing also made possible the doctrine of precedent, which has had a very conservatizing effect on the law. A strict notion of precedent would be very difficult to maintain without written opinions. Most judges and lawyers could not remember and follow [an oral] decision that was made . . . a hundred years before. Even if they had heard of the decision, they would be able to conveniently “forget it” if it was not worth following. With authoritative written opinions, however, judges have felt themselves bound by decisions made generations or even centuries ago. In citing those opinions, lawyers and judges often repeat—and thus keep on life support—ancient verbiage that should long since have died out.

Verbosity triumphs

Despite the fact that eventually printing technology made the written word available even to the common folk, the changes in the law did not help the general public’s opinion of lawyers. Despite the fact that English was now the official language of the law, legal writing became more and more verbose. It’s difficult not to assume that one big reason was to protect the exclusive nature of the legal profession. The creation of the United States, despite what our elementary school teachers taught us, was not directed by a group of yeoman farmers; almost half the signers of the Declaration of Independence and a solid majority of the delegates to the Constitutional Convention were trained in the law. And knowledge is in fact power; lawyers continue to dominate politics on the state and national level despite the antipathy most voters feel toward the profession.

Next week: The quest for precision.

(image: typography workshop from Shutterstock)

Leave a Reply