miércoles, 12 de octubre de 2011
What makes legal language difficult?
One of the main reasons why legal language is sometimes difficult to understand is that it is often very different from ordinary English. This comprises two issues:
(1) The writing conventions are different: sentences often have apparently peculiar structures, punctuation is used insufficiently, foreign phrases are sometimes used instead of English phrases (e.g. inter alia instead of among others), unusual pronouns are employed (the same, the aforesaid, etc), and unusual set phrases are to be found (null and void, all and sundry).
(2) A large number of difficult words and phrases are used. These fall into four categories, brief details of which are given below.
Legal terms of art
Legal terms of art are technical words and phrases that have precise and fixed legal meanings and which cannot usually be replaced by other words. Some of these will be familiar to the layperson (e.g. patent, share, royalty). Others are generally only known to lawyers (e.g. bailment, abatement).
Terms of art should be differentiated from legal jargon. Legal jargon comprises words used by lawyers, which are difficult for non-lawyers to understand. Jargon words range from near-slang to almost technically precise words. Well-known examples of jargon include boilerplate clause and corporate veil.
Jargon includes a number of archaic words no longer used in ordinary English. These include annul (to declare that something, such as a contract or marriage is no longer legally valid) and bequest (to hand down as an inheritance property other than land).
It also includes certain obscure words which have highly specialised meanings and are therefore not often encountered except in legal documents. Examples include emoluments (a person’s earnings, including salaries, fees, wages, profits and benefits in kind) and provenance (the origin or early history of something).
Jargon words should be replaced by plain language equivalents wherever possible.
Legal meaning may differ from the general meaning
There is also a small group of words that have one meaning as a legal term of art and another meaning in ordinary English. One example is the word distress, which as a legal term of art refers to the seizure of goods as security for the performance of an obligation. In ordinary English it means anxiety, pain or exhaustion.
Here are some further examples:
- Consideration in legal English means an act, forbearance, or promise by one party to a contract that constitutes the price for which the promise of the other party is bought. Consideration is essential to the validity of any contract other than one made by deed. Consideration in ordinary English means; (1) careful thought, (2) a fact taken into account when making a decision, (3) thoughtfulness towards others.
- Construction in legal English means interpretation. ‘To construe’ is the infinitive verb form of the term. Construction in ordinary English means: (1) the action of constructing [e.g. a building]; (2) a building or other structure; (3) the industry of erecting buildings.
- Redemption in legal English means the return or repossession of property offered as security on payment of a mortgage debt or charge. Redemption in ordinary English usually means Christian salvation.
- Tender in legal English means an offer to supply goods or services. Normally a tender must be accepted to create a contract. Tender in ordinary English means: (1) gentle and kind; (2) (of food) easy to cut or chew; (3) (of a part of the body) painful to the touch; (4) young and vulnerable; (5) easily damaged.
Rupert Haigh, Legal English (Second Edition), Routledge Cavendish, 2009.