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LINGUISTIC FEATURES OF LEGAL LANGUAGE
CHAPTER ONE: INTRODUCTION
1.1 Background to the Study
It is an undoubted fact that in every human affair language is ranked first. Human beings interact with one another with ease because they share a common code that makes up the language. Language distinguishes man from animal. It is because of the use of language that man is called “a talking animal” (homo loquens) in the words of Pushphinder Syal and D.V. Jindal (6). There are, however, other means of communication used by humans such as gestures, flags, horns, braille alphabet, mathematical symbols, morse code, sirens, sketches, maps, acting, miming, dancing, to mention no more. All these systems of communication are extremely limited; they are not so flexible, comprehensive, perfect and extensive as language is (Syal and Jindal 5). With the use of language, human beings establish and maintain social relationship. Expression of thoughts, feelings and emotions are equally done through the use of language. It is mostly through language that our non-material cultural heritage is preserved. It is also through the instrumentality of language that knowledge is imparted and disputes settled. This implies that the language to be used to achieve these objectives must be clearly understood by the recipients because as soon as the bridge that holds communication collapses, the objective is defeated. The Tower of Babel in the Holy Bible, a magnificent edifice that was to be constructed, was a failure as a result of incomprehensibility of language used among the builders. Femi Akindele and Wale Adegbite define language as a system of sounds or the vocal symbols by which human beings communicate experience (2). There is no doubt that the authors, Akindele and Adegbite, are among the functional grammarians. These grammarians are interested in the social functions of language and the fact that humans use it to express themselves and to manipulate objects in their environment. Another definition given by Saussure and Harris sees language as a formal system of signs governed by the grammatical rules of combinations to communicate meaning (5). This definition stresses the fact that human language can be described as a closed structural system consisting of rules that relate particular meanings. Writing on the importance of language, Syal and Jindal affirm, ‘language is ubiquitous in the sense that it is present everywhere in all activities. It is as important as the air we breathe’ (6). The above statement lends credence to the fact that language lies at the core of social co-existence.
Language affects every sphere of life: scientific, technological, religious, social, personal and interpersonal spheres. Each of these different spheres selects the language it uses. By implication, every profession has its own type of language for effective communication. The concept register, therefore, refers to this variation of language according to use. One of the main characteristics of register, as Yule puts it, is that it is the use of special jargons. To him, jargon is the ‘technical vocabulary associated with a special activity or group’ (245). He is of the opinion that jargon helps to connect those who see themselves as ‘insiders’ in some way while excluding ‘outsiders’. Following this argument, sports commentary, medical reports, and advertisement are linguistically different.
Law, just like every other discipline, has its own peculiar language, which may seem arcane to the majority of the masses. The peculiarity of a legal proceeding or document is not a recent phenomenon. In fact, it has been a long established tradition. Perhaps, an observer can infer and safely, too, conclude that a legal document is not meant for an ordinary audience but for the “initiated,” who are, by their professional training, saddled with the responsibility of encoding and decoding the legal document. There are basically various genres of legal writing. These include:
- a) Operative Legal Documents: These include pleadings, petitions, orders, contracts, deeds and wills. They tend to use a great deal of legalese.
- b) Expository Documents: They are documents that explain the law, including office memoranda, judicial opinions, and client letters. They tend to be informal but written in standard English, with little legalese, except that they use many technical terms.
- c) Persuasive Documents: These include briefs to a court and memoranda of authorities. Tiersma n.p.
It is ironical to observe that documents drafted more directly for clients (operative documents like ‘wills’ and ‘contracts’) seem to contain mostly legalese, while those directed to colleagues within the profession (expository and persuasive documents) contain relatively less. Tiersma, a professor of law, categorizes the legal terminologies thus:
- a) Special words and phrases unique to law. Examples of such are: tort, fee simple absolute, noration, asylee, detainee, expellee, tippee et cetera.
- b) Quotidian words: These have different meanings in law. Some examples are action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit).
- c) Archaic Vocabulary: Legal writing employs many old words and phrases that were formerly quotidian language, but today exist mostly or only in law, dating from the 16th century. Some English examples are herein, hereto, heretofore, herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjectives).
- d) Loan words and phrases: A good number of words in the English legal concept are from French and Latin. Some of the words borrowed from the French language include: estoppels, laches, and voir dire. From Latin, these words came into the English language: ertiorari, habeas corpus, prima facie, inter alia, mens rea, sub judice. These words, most times, are not italicized in the English writing as they are not considered foreign in the language any longer. Tiersma n.p.
The features of legal language have not been exhausted. Other unusual constructions are apparent in legal texts. The same writer, Tiersma, points out that legal language is full of wordiness, redundancy, and often contains multiple negatives, lengthy, complex, and impersonal constructions. Sometimes, judges refer to themselves as ‘courts’ instead of using ‘I’. Today, definitions are normally descriptive, which means they are used based on usage but in legal language, they are prescriptive. Telegraphic language also abounds in legal language. In a normal court sitting, this is usually heard:
Lawyer: Objection my Lord.
Legal slang is equally prevalent in law. ‘Tro’ stands for ‘temporary restraining order’, ‘Slapp’ stands for ‘suit for strategic lawsuit against public participation’, ‘Rogs’ stands for ‘interrogatories’, ‘Grant cert’ stands for ‘grant a writ of certiorari’ and many other unusual sentence structures (47). Another striking feature of legal language that deserves the attention of linguists is the dearth of punctuation marks in legal discourse. Colon and semi-colon, capitalization and full stops are essential punctuations but in legal write-ups they are sparingly used. A paragraph is usually terminated by a colon, semi-colon or dash. The ‘full stop’ is most often used to mark off the end of a sentence that comes last in a paragraph. The reason, according to Students’ Handbook on Legal Drafting and Conveyance, is that a paragraph is a unit of a sentence (10). As a result, the speech, and to a greater extent, the text produced by such legal systems may be difficult for the lay public to understand. Tiersma commenting on the nature of legal language has this to say:
One of the great paradoxes about the legal profession is that lawyers are, on the one hand, among the most notorious abusers. Why is it that lawyers, who may excel in communicating with a jury, seem incapable of writing an ordinary, comprehensible English sentence in a contract, deed or will? Tiersma n.p.
Supporting the above observation, the author cited an example of a modern will which he calls ‘an empty prose’:
I give, devise and bequeath all of rest, residue and remainder of my property which I may own at the time of my death, real, personal and mixed, of whatsoever kind and nature and whatsoever situate, including all property which I may acquire or to which I may become entitled after the execution of this will, in equal shares, absolutely and forever, to ARCHIE HOOVER, LUCY HOOVER, his wife, and ARCHIBALD HOOVER, per capital, to any of them living ninety (90) days after my death. Tiersma n.p.
The above will can be re-written in a simpler language if the writer wishes thus: “I give the rest of my estate in equal shares to Archie Hoover, Lucy Hoover, and Archibald Hoover, assuming they survive me by at least 90 days.” As mentioned earlier in this work, other categories of legal documents ‘fare no better’. To Tiersma, lawyers purposely write long texts where a simple sentence is available. Richard Wydick, a professor of law and author of a popular manual on legal writing has a similar view. He says:
We lawyers do not use plain English; we use arcane phrases to express commonplace ideas; seeking to be precise, we become redundant; seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause …, glazing the eyes and numbing the minds of our readers (9).
Besides the redundant nature of legal language, the complexity has greater negative impact on a good number of legal professionals. Research has shown that the jurors (people who decide legal cases) do not always understand fully the instructions given to them by judges. The research carried out by Robert and Veda Charrow confirms this. They had a group of subjects who were Maryland citizens eligible for jury duty listen to a tape recording of jury instructions. The subjects were to paraphrase what they heard to the best of their abilities. Surprisingly, almost half of the information was missing from some of the paraphrase. What exactly caused the incomprehensibility? The difficulty was due, not so much to vocabulary items, but mostly to particular types of grammatical constructions (6). It should be noted that nowhere are the consequences of poor communication more dramatic than in capital cases. If for instance many state penalty laws instruct jurors to weigh mitigating and aggravating evidence, ‘mitigate’ is a formal word that many people do not understand, and ‘aggravate’ is a legal homonym. It has an ordinary meaning (annoy) that differs in an important way from its legal meaning which is a reason to put someone to death. There is evidence that many jurors do not understand these terms very well even though they are essential in deciding whether to recommend a death sentence or not. Even highly educated judges may be dumbfounded by legal prose too. During an oral argument regarding an insurance policy in 1969, Chief Justice Weintraub of the New Jersey Supreme Court confessed: “I don’t know what it means. I am stumped.” Similarly, Justice Haneman admitted, “I can’t understand half of my insurance policies.” And Justice Francis suggested that the policies are kept ‘deliberately obscure’ Tiersma n.p.
It is pertinent that members of the public should understand the consumer documents. These are documents which directly affect their rights and obligations. These include wills, medical consent forms and consents to search, release of liability, legal notices, petitions, orders and warning. For instance, it is necessary for one to comprehend the ideas written on the deeds one signs so as to fully understand the consequences of what one signs. No matter how technical and intricate legal language appears the fact that the terms used are made up of grammatical terms still remains. In other words, the language of law, though technical, can be linguistically investigated. For Crandell and Naerssen cited in Ezekulie, the interest of linguists is shared within the profession. They put it thus:
Since the 1970’s, lawyers, doctors, and business professionals have been increasingly concerned with language-related problems in their work. Examples include the comprehensibility of legal documents and attempts to make them accessible to the consumer or the real and potential miscommunication between medical personnel and patients, with possibly life-threatening result (219 – 220).
As a result of this shared interest which goes on between linguists and other professional bodies, Crandell and Naerssen suggest that both the linguists and other professionals should work together in order to arrest the situation. Ezekulie reports that in 1978 an effort was made by Shirley Brice Heath and Charles Ferguson at the Linguistic Society of America Summer Institute where they, the two authors, introduced language problems from a variety of professional contexts to linguistics (3). This particular act which was the first of its kind paved way for subsequent work in language and professions. With this, language study is geared towards taking care of the needs of individuals for language use in their specific fields.
This work concerns itself with examining how legal professionals use language to communicate through acts, wills, and deeds of assignment and how readers, who may not be familiar with legal expressions, can work on linguistic messages in order to comprehend them. The researcher’s aim is to find out and explain the linguistic features of the language especially as it affects its syntactic and semantic features. Earlier on, it is noted that language is very essential and the very essence of communication. Drawing inspiration from Crystal, communication refers to the transmission and reception of information (a message) between a source and a receiver using a signalling system: in linguistic contexts. Source and receiver are interpreted in human terms; the system involved is a language (89). The means by which thoughts, ideas, wishes, intents and the likes are conveyed from the sender to the receiver is communication. Interpersonal channel and mass communication channel are the two main types of channel. The former involves either face to face network of exchange between two or more persons or direct communication between two persons through the aid of Information and Communications Technology (ICT) such as phones, face book, 2go, to mention but three, while mass communication involves conveyance of information through mass media to large segments of the population at the same time. Out of the three documents examined by this work only the legal acts use mass communication channel to reach the target audience. Wills and deeds/agreement are more or less meant for a given individual(s). No matter the communication channel used, the vehicle through which the information is disseminated is language. These documents are very important as they contain issues relating to rights and obligations of citizens. The public gets to see the world of legal practitioners through these documents. There is no doubt that if the consumers of these documents have clear understanding of them, it will, to a greater extent, affect their attitudes as regards human rights and obligations.
Inasmuch as language is the instrument employed in writing these documents, it is pertinent, therefore, to study the use of language in them in relation to its linguistic features as a means through which a layman can understand them better.
1.2 Statement of the Problem
If there is a sector that demands the attention of every human being, it is the legal sector. Everybody is involved directly or indirectly in matters pertaining to human rights and obligations. Every individual desires that his rights be respected. But this becomes unattainable when the person has no full knowledge of his rights. In legal writing, there are many keystone words used that are not in Standard English. Also, archaic terms, doublets and triplets, technical and semi-technical terminologies, unfamiliar pro-forms characterise the legal lexicon. ‘This is done to keep the common man ignorant of exactly what a certain law or phrase means’ writes Hubpage Inc (n.p). One’s level of knowledge of legal terms influences one’s personnel as well as one’s social life in a given society. By making our law system above the intellect of the common man, the lawyers and other legal professionals retain control over their profession and imbue it with a distinct jargon.
Legal documents are not written to intimidate the non-professionals, but to enlighten everybody on the issues relating to their rights and obligations. Hence, the incomprehensibility of the language employed in them as a result of the arcane nature of the language creates a communication gap between the writer and the reader. A consequence of this development is that the objectives of producing such vital legal information become unfeasible as the meaning of such writings are shielded from the beneficiaries especially the non-professionals.
Many researchers interested in forensic linguistics have investigated the language of courts reflecting, generally, the complexity of legal language and what makes legal language sound Greek to the non-law professions and cause it to be incomprehensible but none has really ventured into complexities of the language of acts, wills and deeds of assignment. Thus, the problem of this study in question form is, therefore: What are those inherent linguistic features of the language employed in acts, wills, and deeds of assignment?
1.3 Purpose of the Study
This work which concerns itself with the study of the linguistic features of legal language will reveal the linguistic elements which constitute legal terminologies and how they are used in sentences. The structures of the legal language will be investigated.
The study is going to examine the distinct features of legal language by analyzing the syntactic structure and the semantics of the language employed in legal acts, deeds of assignments and wills with a view to pointing out its relationships as well as its differences with the general syntactic structures and semantics of the English language. Attempt will be made to find out whether legal structures used in acts, wills, and deed of assignments follow the acceptable English language structures or deviate from them. Secondly, the study will to ascertain if the expressions/sentences used in these selected documents have meanings other than what they mean in normal English usage
1.4 Significance of the Study
First, this research work will, to a greater extent, draw the attention of the layman to the peculiarity of legal language by revealing the underlying linguistic features of the language. The syntactic and semantic peculiarities of legal language are, hence, investigated. Here, attempt will be geared towards enhancing the understanding of the style that is unique to legal documents.
Secondly, the work will help the law students to recognize and as well appreciate the fact that legal language is more or less linguistically complex in nature and get themselves prepared for the task before them. It will be equally beneficial to legal practitioners by giving them insight on how legal sentence structures are built and how to influence language to suit the eccentricity of their profession. Consequently, both the beginners and the professionals will be greatly assisted on how to make use of the supposed language of their profession appropriately.
For the students of linguistics and the general public, this work will expose them on the nature of legal language thereby simplifying the complexity which in turn will make them appreciate the aesthetic use of legal language. This work hopes to make comprehension of legal writings easier in order to accelerate people’s interest in reading them.
Lastly, this work, no doubt will galvanize further researches in English for Specific Purposes (ESP) not only in law but in other professions.
1.5 Scope of the Study
The focus of this research work is on selected legal documents which include acts, wills and deeds of assignment. The documents were selected due largely to the fact that they are characterized by linguistic aberration.