Lawyers' Language

The Distinctiveness of Legal Language

Alfred Phillips

• Publisher: Routledge
• Year: 2003
• ISBN:
  9781135788353
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

An interesting examination of law as language use or discourse, this study looks at the transformation of ordinary language into a special discourse for the purposes of the legal system. It is widely accepted that legal discourse is obscure, and often the public resent the fact that access to the law of the land is obstructed by the opaqueness of legal language. This book argues that the development and maintenance of law's special language can be justified. The myth that law can be written in either plain' or ordinary' language is exploded, and the linguistic obscurity of law is traced to its necessary complexity. The notion of representation is applied to the relation that exists between legal language and ordinary language.

1
BREAKING GROUND

Does everyone know the law?

This book raises and attempts to answer some fundamental questions on the law through a study revolving around lawyers' language, taken to mean the distinctive discourse used in stating and practising the law. The questions start to come into focus as soon as the need is felt to reconcile the use of a special discourse with two foundational principles: one, that ignorance of the law excuses no one; and the other, that justice should not only be done but should also be seen to be done. In passing, it is interesting to see revealed in the language traditionally used to express the first of these principles a couple of the distinctive characteristics of legal discourse. To the lawyers of the past, the Latin version would have been more familiar in the shape of the brocard: ignorantia juris neminem excusat. Notice that this is the negative equivalent of the legal presumption that everyone knows the law. Indeed, it turns out to be triply negative: ‘no-one’ instead of ‘everyone’, ‘ignorance’ in place of ‘knowledge’, and the overall effect to rule out, not to rule in. Here are marks of lawyers' language, the proneness to recruit terms from dead languages and the recourse to a syntax of multiple negatives. Despite the discernible trend for today's lawyers to modernise their language rather than parade a line of linguistic zombies, lawyers' language is far from being understandable by the averagely competent speaker of ordinary language. And exactly the same problem affects the second principle that justice be seen to be done. The requirement for open justice is taken to refer to the need for manifest fairness in the conduct of proceedings in court. But the hypothetical observer of open justice finds his view obstructed by the chinese wall of an alien and alienating language.

It is in relation to the first principle that the questioning is sharper. The negative form, ruling out ignorance of the law as an excuse, fits the criminal law better than the civil. It forms the basis on which all participants engage in the trial. Any claim by the law-breaker that he did not know that there was a law to be broken would be inadmissible. Even the layman would be likely to greet such a defence with derision, literally speaking, to laugh it out of court. Ye t the presumption in its positive form, that knowledge of the law is universal, seems just as worthy of derision. Just to contemplate the labyrinthine intricacies of the act defining the crime of theft in English law suggests that the presumption is bizarre.

---

---

CASE STUDY

A motorist had made it a condition that he would provide a specimen of breath for analysis only after he had consulted a law-book. The magistrates had dismissed the charge that he had failed to provide a specimen of breath, deciding that the condition amounted to a reasonable excuse. The prosecution's appeal against the dismissal was allowed. The motorist's response to the officer's request ‘plainly constituted a refusal’.¹ A similar fate had befallen a motorist in a previous case whose legal knowledge was sufficiently extensive to allow him to make a specific request to read the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice before breathalysis.² Ignorance of the law excuses nobody!

---

---

The presumption that everyone knows the law (‘presumption of knowledge’) is itself law. Can it be said, therefore, that everyone knows the presumption? There is no crisp answer. The best that can be hazarded at this stage in the argument is a paradoxical one: that the presumption would be recognised as reasonable in the sense of pragmatically indispensable, and unreasonable in the sense of immediately falsifiable.

Make a comparison with the widely, if not universally, known presumption of innocence. This is just as fundamental to the criminal process as the presumption of knowledge. It is in its very essence rebuttable; it only stands unless and until guilt is proven. By contrast, the presumption of knowledge is irrebuttable. If the validity of either presumption were challenged, the same initial, positivist response would be available: it has the authority of the law. But, if probed for a substantive justification, each could lay claim to a different ground for its legitimacy. The presumption of innocence would be claimed to be just. But clearly, a different claim would require to be advanced for the presumption of knowledge. Without a doubt it can be justified on grounds of expediency. Yet this seems too weak a basis to support a presumption which is not only irrebuttable but also purports to describe a state of affairs.

Does it matter if the truth-claim, which is implied by the status of the presumption of knowledge as a description of a state of affairs, is false? According to positivist doctrine, the law is the law. It consists of the rules, principles and precepts which properly issue from institutionalised law-making procedures. Its legitimacy is based on the authority of the sovereign command vested in or held by a legislative assembly or on its adherence to a constitution. Purely formal legitimacy, however, is not enough for the legal system to serve its purpose as the underpinning of a peaceful society. The law must make another and different claim to legitimacy for the aberrant individual to feel that he has been rightly sanctioned by the power, for the loser in a dispute to accept the justness of his defeat in litigation and for the parties to rest content with a negotiated compromise. The nature of this claim is that the law is fair, just and reasonable. The legal system leans on its formal legitimacy, and the additional claim to validity is not explicit. Rather, the claim to validity underlies and shapes the discourse of law, for if it were to turn out to represent (legal) fiction, the law would seem to become incapable of performing its function of opinion- and will-formation in society.

Lawyers' language not only alien but also alienating

To sum up the argument so far: the law's effectiveness as a system of justice depends on its legitimacy, which in turn demands that the presumption of knowledge is tenable as a description of the state of affairs to which it refers; the remoteness of the language of the law from ordinary speech argues against the presumption. But this remoteness alone does not account for the apparently deeply felt and aggressively expressed repugnance aroused by legal utterances and texts. Tw o alienating traits of lawyers' language have already been identified in the opening paragraph. My book The Lawyer and Society assembled a portmanteau indictment from sources which went back to Edward VI of England, west to America and east to Hong Kong:³

The basic deficiency of legal language is believed to be its obscurity otherwise described as opacity, impenetrability, unintelligibility. This is thought to be caused, or contributed to, or aggravated, by the use of long and involved sentences of indeterminate structure, straggling over many subordinate clauses, careless or defiant of the laws of grammar; inside these malformed sentences are some words and phrases which are superfluous and some which are semantically senile, and specialised terms, a lot of which are meaningless.⁴

Later in this chapter I review recent attempts by various self-qualified linguotherapists to force legal language to submit to a complete transfusion, or at least a course of injections, of plain language. I conclude that these efforts are misguided and their failure is inevitable. Certainly, as with ordinary speech or any other special language, numerous instances of bad use even by competent speakers are inescapable. In the particular case of lawyers' language, the professional scrupulousness of legal writers, conveyancers and parliamentary draftsmen works in favour of good use, while its intricacies work against it. But the felt need for therapy, together with the wide-ranging attacks on its alleged obscurity and unintelligibility, suggests a pathology. The very virulence and frequency of the criticism offer a clue to the nature of the diagnosis. After all, ordinary readers humour or tolerate the recondite commentaries in the press written in the special language of economics, and the esoterics of certain types of music and art criticism. The difference in the case of the legal text is that the ordinary person (rightly) believes himself or herself, not a select few nor a particular elite, to be its addressee. Legal language is diseased in that an irksome ‘membrane’ is interposed, screening off the legal text from its proper audience or readership. This critique becomes sharper and more radical in theories which suggest that the disease is fostered by lawyers themselves in pursuit of their professional interests.

‘When a goat is present it is stupid to bleat in its place’⁵

Regardless of whether it is accepted that such a self-interested intent lies behind the development of legal language, the next question that arises is whether the supply of legal services overcomes the problem created by its obscurity. Is the availability of access to a lawyer for consultation and representation sufficient in itself to justify the presumption of knowledge, even ignoring the reality that ‘availability’ may stand for no more than a right of access without any implication that the (largely financial) means required to make the right effective are within the reach of all?

But it is the representative, rather than the consultative, role of the lawyer which by far predominates. The question on the client's lips is not: what is the law? Rather than to be instructed by the lawyer on the law, he is there to give instructions to the lawyer to act on his behalf. The lawyer's consultative role is performed largely in the course of taking instructions as a preliminary to her representation of the client. Most of most lawyers' time is spent on deeds. Significantly, the alternative meanings of ‘deed’ point to the nature of the relationship between legal draftsman and client. The ‘deed’ prepared by the draftsman on the client's behalf, when executed (signed) by the client, represents the legal act or ‘deed’ executed (performed) by the client. Deeds are always complex. They are sites at which numerous fields of law intersect. But despite the complexity, the presumption of knowledge can be considered justified since the lawyer's knowledge of the law is imputed to the layman.

It is not in the writing of documents, but as speech, that the law is dramatised for the public. In litigation and negotiation, the lawyer openly takes the place of her client. The advocate's opening words are: ‘I represent …’. Moreover the interposition of the lawyer as conveyancer can be held to validate the presumption that her client knows the law in relation to the ‘deed’ instructed by him. Is there some equivalent in the case of the legal representative as advocate or negotiator in the resolution of a dispute? On the contrary, the difference between the two situations is clearcut. The conveyancer ‘represents’ the client by acting on his behalf. Dispute resolution, on the other hand, starts from a fait accompli and is concerned with its consequences. The theoretical framework of the process, the trial or the negotiation, by which the dispute is resolved, can be described in the form of an extreme paradox. It is basic that in the performance of the act giving rise to the dispute the party is assumed to know the law which will define his act and determine its legal consequences. Ye t the adversarial nature of the process itself demonstrates that there is room for argument on this very question. For the purposes of the argument, we can ignore the uncertainties of theory and take the process of adjudication as consisting of the application of a rule or principle of law to a particular set of facts (an act and its surrounding circumstances). The law, that is, the applicable rule or principle, exists and is uncontestable but it has to be found. There is the paradox: side by side with the assumption that the party knew the law before or while performing the act, we have to set the revelation that the lawyer could not know the law until the very moment of the judge's decision.

The conclusion then must be that although access to professional expertise goes towards the justification of the presumption of knowledge it does so only to a strictly limited extent. In the course of the analysis we have come across the problem of the uncertainty of the law, discovering that it is in a sense unknowable. And yet, the specificity of ‘the law’ requires, in the ideal at least, that there is a single right answer. Again, since law is almost entirely written down in accessible statutes, case reports, textbooks and commentaries, how can the law be ‘unknowable’ to legally qualified and competent readers of those texts? We can see that its unknowability arises from the necessity to match a general rule or principle (an indeterminate number of which become systematised to form the law) to an individual case. The process of matching involves an act of judgement. The sense in which the law is unknowable, then, becomes clearer if one compares the statement: ‘I judge this to be so’ with the statement: ‘I know this to be so’. In the final chapter, the process of matching general rule or principle to particular case is analysed within a semantic frame of reference. Meaning, which was highlighted at the beginning of this chapter as the problem, emerges at the end as the means whereby the contradictions can be reconciled.

The following case study is a variant on a mundane situation met every day by the motorist, where the law, so to speak, pulls back its veil and stares him in the face.

---

---

CASE STUDY

Imagine a stretch of road in a sparsely populated area, which is marked by a 30 mph sign but which to the approaching motorist is visibly free of sharp bends, roadworks and other hazards. The message conveyed by the sign is that a body to which law-making authority for the purpose has been delegated has imposed a speed limit on this stretch of road. He assumes that the conditions required to make the speed limit law have been met.

There is no doubt but that the approaching motorist knows the law: he understands the meaning of the sign. Certainly, if he were to reflect, he might well be disposed to challenge the law's validity, ‘validity’ in the sense already explained. Reasoning that a speed limit is justified solely in the interest of road safety, he might be tempted ...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Introduction
• 1 Breaking ground
• 2 How critical language theory seeks and then struggles against its own undoing
• 3 Interpretation
• 4 Constructive interpretation
• 5 Conclusions
• Notes
• Index