Simon Tanner

The past, present and future of legal English in the UK and abroad

“It has often been said that law and language are intimately linked, as language

structures the way we think and, consequently, the way we think as lawyers”1.

As Sjef van Erp points out, the language of the law influences the way we perceive it. In

this paper I will be looking at how this language has changed and is still changing due

to various political forces aimed at ensuring uniform international legal standards, and

at how such changes affect the very way in which the law is perceived.

I will start by briefly examining how legal English developed within the United

Kingdom as a result of various historical events, before moving on to consider the use

of English as an international legal language, with particular reference to the EU.

Subsequently, I will look at how domestic and international factors are helping legal

English develop into an increasingly uniform language whose future is only partly in the

hands of native speakers.

1. The English legal system: its development and language

1.1 Development

The legal system in England has evolved from three sources, namely the common law,

equity and statute law. The development of the first two, in particular, does much to

explain the complexity of legal English, and before moving on to strictly linguistic

considerations, we will briefly look at these two areas.

The common law originated as a direct consequence of the Norman Conquest in 1066,

as matters originally handled by local courts began to be handled by the King’s courts,

and by the justices who travelled the country on his behalf. This gradually led to a

situation in which the custom of these courts became the law ‘common’ to England and

Wales. In other words, the decisions of the King’s courts actually created law. In order

to bring a matter before these courts, precise procedure had to be followed, since under

the common law a right existed only if there was a procedure for enforcing it (ubi

remedium ibi ius). An action was initiated by making a special request to the royal

official, the Chancellor, asking him to deliver a writ to the court. Over time, moreover,

each type of action developed its own procedural peculiarities, and strict adherence to

the forms was vital to success of an action: “common law claims became highly

technical, with the nature of the form of action often determining the content of the law

and whether a particular claim could succeed”2.

As the writ system caused common law to become increasingly rigid and procedure-

oriented, those that felt they had suffered injustice as a result appealed to the King for

remedy. These appeals frequently concerned property rights, since common law courts

only recognised legal ownership and possession based on the feudal system, and would

reject any claims based on rights of tenancy or trust. The complaints were initially dealt

with by the King in Council, but were later delegated to the King’s chief minister, the

Chancellor, and ultimately led to the creation of a separate court, the Court of Chancery,

which applied rules of equity, based on natural justice and moral rules. Due to the very

nature of their conception, the rules of equity were often in conflict with those of the

common law, but in such cases equity would prevail.

Over time, the continued existence of two parallel systems, each with their own courts

and procedures, created problems of jurisdiction, and the issue was not resolved until

their unification under the Judicature Acts of 1873-75. The principles of the two

original systems however survived, with the result that modern courts administer both

law and equity. Moreover, the Chancery Division was created within the High Court of

Justice, and deals with many of the matters traditionally brought before the Court of

Chancery, namely business disputes, bankruptcy and probate.

An important point to remember is that the principles of common law and equity are

both subject to the doctrine of stare decisis, or binding precedent. Courts in fact may

decide whether or not equitable principles should be applied in a given case, but not on

how they may applied, being bound by previous equitable rulings. The doctrine of

binding precedent is one reason why language has played such an important role in the

common law. If, in a prior decision, the court ruled that a certain term or formula had a

particular meaning, then this precise term or form would have to be adopted in future in

order to achieve the same particular meaning. As we shall see, this is one of the main

arguments against linguistic change presented by lawyers.

1.2. Language

Legal English did not actually start out life as just English. The language of legislation

and the courts was in fact predominantly French and Latin. The Norman conquest

obviously led to the adoption of French as the language of official use, and thus of the

courts, where its influence on the spoken legal language of the time was extensive.

Nevertheless, Latin was the preferred language for written law, and continued to be so

for two centuries after the Conquest. By the 14th century, however, French dominated

also this field. It was not until the end of the 15 th century, following the introduction of

printing and its standardising influence on written language, that statutes began to be

printed in English. The problem with a French-dominated legal system was that the

uneducated Englishman who had a case before the court could not understand what was

being said. In 1362, the Statute of Pleadings3 established that English was to be the

language of court proceedings in order to deal with this. Although clearly a positive

move in terms of access to justice, this legislation brought with it a series of linguistic

and legal complications. As mentioned before, form was of vital importance in the rigid

common law procedures, and translating the original formulas was not always a

straightforward task. Eventually, however, some of the French terms disappeared and

others were simply integrated into the language used by the legal profession. Examples

of the vast French terminology still basic to legal English vocabulary include damage,

lien, tort, estoppel and bail.

At the time that the shift in common law courts was being made from French to English,

there was some concern as to whether different words with the same referent actually

had the same meaning. Just to be safe, legal drafters began to include both terms, and

the resulting constructions, composed of synonyms or near synonyms, have continued

in use up to the present day. Examples include: last will and testament; terms and

conditions; null and void; breaking and entering; free and clear; and right, title and

interest.

Meanwhile, in the courts of equity, which had never been bogged down by rigid

common law procedure, having moreover been set up to remedy it, English flourished.

Here, the Middle English period saw the introduction of many words that lawyers

continue to use today, despite their having fallen from general use, such as

notwithstanding, aforesaid, witnesseth, and the many compound words based on where,

here, and there4.

During the 16th and 17th centuries many technical terms were introduced, such as

affidavit, alimony and subpoena, all borrowed from Latin and all still used today. The

introduction of such words was mainly due to a desire prevalent in this period to

improve English by means of the importing classical terminology and imitating the

rhetorical effects of the classical writers.

As we have seen, legal English is thus the result of rigid procedural forms and

terminology translated from French into English, the maintenance of original French

terms, the introduction of Middle English terms and the importation of terms from

Latin. Accusations that the language of the law contains antiquated vocabulary5 and

syntax are thus clearly founded, but as we shall see, many lawyers defend this linguistic

fossilisation as a guarantee of stability.

2. Legal English in the EU and the wider international context

The use of English as a legal language is, however, obviously not confined to English-

speaking countries, and also plays a major role in international law. The use of legal

English as a lingua franca has many potential pitfalls, however, not least because the

legal systems of other countries often bear little resemblance to that of the UK. We have

seen the particular historical events behind the development of legal English, and it

would be absurd to expect terminology which such ancestry to be universally

applicable. However, the concepts embodied in the terminology are widely recognised,

and despite differences in emphasis, contracts and tort, for example, are disciplined in

all legal systems. The need to focus on similarities to overcome difference is in fact at

the heart of legal English as used in an international context. The UK’s membership of

the EU has brought a number of obstacles of a legal-linguistic nature, since the EU legal

system is based on the Continental ‘civil law’ or ‘codified law’ system. With its reliance

on a series of codes (e.g. civil, penal, administrative) and a constitution, such a system is

in many ways fundamentally different to English law. The need to publish EU legal

documentation embodying civil law concepts in English, however, has inevitably

influenced the UK legal system itself, and Alcarez has gone so far as to say that the

“dividing line between the two systems is becoming increasingly indistinct”6.

Beveridge, meanwhile, while agreeing with the need for an ‘international’ legal English,

claims that the English used in international contexts (in particular, contracts) is in many

cases still anchored to common law language:

Often it is English-speaking common law lawyers, working in international law

firms, who are creating these international contracts and of course they are going

to use the language and structure and form with which they are comfortable. But

even if it is not this, but rather the drafter is a civil law lawyer who is a non-

native speaker of English and the governing law of the contract is that of a civil

1 S. van Erp, Electronic Journal of Comparative Law, vol. 7.3 (September 2003), available at http://www.ejcl.org/73/editor73.html.2 R. Ward, A. Wragg, Walker & Walker’s English Legal System, Oxford 2005, p. 5.3 The statute was of course written in French.4 Examples include: whereby, whereto, wherein, thereto, thereby, thereinafter, thereupon, hereby, hereinafter and hereto.5 As we have seen, examples abound. A brief, but nevertheless useful overview can be found in D. Crystal, The English Language, London 2002 (2nd edition), p. 101.6 E. Alcarez, B. Hughes, Legal Translation Explained, Manchester 2002, p. 48.

law country, this language continues to be used because our common-law

contracts are being used as precedents as they are written in English.7

Whatever one’s opinion on the current state of international legal English, and the

extent to which it remains based on common law language, many scholars propose on

one hand a simplification of legal language (in both its common law and international

varieties), and on the other a drive for uniformity. These two clearly related goals are

being pursued by a number of institutions, as we shall now see.

3. Moves towards the simplification of legal language in the UK

Legal language has long been subject to criticism for its hermetic and convoluted

nature, and in the 19th century Jeremy Bentham spoke out against legalese as

“excrementitious garbage”8. In Britain, the Plain English Campaign was set up with the

aim of fighting against “gobbledygook, jargon and misleading public information”9, and

one of its favourite targets is the legal profession10. Cutts maintains that “in most legal

documents only a few words are genuinely technical. The rest are plain words with

ordinary meanings, or legal-flavouring words that smell of the law but can be replaced

by plain words”11. He advocates legal language based the use of such plain words and

inspired by a desire for clarity, hopefully resulting in “death, or at best very limited life,

for the three ugly brothers ‘hereof’, ‘whereof’ and ‘thereof’, their kissing cousins

‘herein’, ‘hereinafter’, and ‘hereinbefore’ and their wicked uncles ‘hereby’, ‘thereby’

and ‘whereby’”12. Alcarez and Hughes, however, doubt that any “attempt at

simplification can ever be more than a cosmetic operation designed to reassure the

general public”13, not least because many lawyers are extremely resistant to linguistic

change. Various reasons have been offered to explain this reluctance, with the more

7 B.J. Beveridge, “Legal English – how it developed and why it is not appropriate for international commercial contracts”, available at http://www.tradulex.org/Hieronymus/Beveridge.pdf.8 Quoted in M. Cutts, The Plain English Guide, Oxford 1996, p. 140.9 Quoted from the Campaign’s website, at http://www.plainenglish.co.uk/.10 It should however be said that many lawyers themselves support the campaign, and have even set up their own organisation, Clarity, to combat the use of legalese.11 M. Cutts, op. cit., p. 141.12 Ibid., p. 142.13 E. Alcarez, B. Hughes, op. cit., p. 15.

cynical claiming that by enveloping their language in a mystical aura, lawyers aim to

perpetuate their elite social and professional status and thus, amongst things, justify

their high fees. Others argue that due to the law of precedent, reference is repeatedly

made to past decisions and authoritative texts written in the traditional language, and

that the use of such forms is thus the best guarantee of justice. Still others see the use of

legal language as one of a lawyer’s fundamental professional skills, to be preciously

guarded, and as Snijders remarks, “legal practitioners will think that the advantages of

innovation are not worthwhile compared to the loss of knowledge and skill entailed by

it”14. Moreover, many lawyers are unwilling to abandon their outdated formulas because

they consider them “less prone to semantic change and so have the advantage of clarity

and certainty to those that understand them”15. They argue that what may merely seem

pleonasm in fact allows a high degree of precision to be achieved. I am more inclined to

view many instances of this as the perpetuation of antique forms just for the sake of it.

A case in point is the formula “signed, sealed and delivered”, often found at the foot of

a deed, despite the fact that deeds are no longer actually either sealed or delivered.

While one may love the Medieval feel of legal language, this doesn’t mean it should be

held up as a model for contemporary English. Clinging on to obsolete forms simply

because of their beauty may arguably be worthwhile in some modes of discourse

(religious ritual, for example), but such a stance is hardly defensible in the field of law,

where clarity to the contemporary reader is paramount, and where democracy demands

the removal of any unnecessary obstacles to the understanding of language which is

already per se technical.

As Alcarez and Hughes rightly point out, “no form of discourse can feed off the past

alone”. They also note the first signs of change, however, claiming that we are

beginning to see “a more contemporary idiom creeping into both the speech and writing

of lawyers”16. A rejection of antiquated language has in fact already taken hold in UK

statute law, without any adverse effects on the guarantee of justice, and it is to be hoped

that the legal profession as a whole will be encouraged to follow suit.

14 W. Snijders, “Building a European Contract Law: Five Fallacies and Two Castles in Spain”, Electronic Journal of Comparative Law, vol. 7.4 (November 2003), available at http://www.ejcl.org/ecgl/74/art74-2.html.15 Ibid., p. 7.16 E. Alcarez, B. Hughes, op. cit., p. 13.

4. Moves towards the uniformity of legal language in the EU and internationally

The EU is itself an active supporter of the Plain English campaign, having published a

booklet, Fight the Fog17, which openly acknowledges its debt to Martin Cutts’s The

Plain English Guide. The booklet is aimed at “all writers of English at the European

Commission” involved in drafting or translation, and serves to “make sure [the]

message ends up in [the] readers’ brains, not their bins”18. Such a public declaration of

language policy, moreover itself presented in refreshingly direct everyday language, is

bound to further encourage the simplification of legal language, not just in the UK and

the EU, but in the wider international field.

In a drive to achieve not only simplification, but also uniformity, the EU has published

the Joint Practical Guide19, which states that

Acts adopted by the Community Institutions must be drawn up in an intelligible

and consistent manner, in accordance with uniform principles of presentation

and legal drafting, so that citizens and economic operators can identify their

rights and obligations and the courts can enforce them, and so that, where

necessary, the Member States can correctly transpose those acts in due time.20

The first aim is clarity, in order to ensure unambiguous interpretation while facilitating

access to legislation on the part of citizens, and the Guide in fact goes on to suggest that

authors “should attempt to reduce the legislative intention to simple terms, in order to be

able to express it simply. In so far as possible, everyday language should be used”21.

Another aspect worthy of note for our purposes is the consideration that member states

may need to transpose acts into their own legal framework. This presupposes a

linguistic drafting approach which avoids culture-based jargon and opts wherever

possible for simple terms based on common denominators, and the Guide in fact states

17 Available at http://ec.europa.eu/translation/writing/clear_writing/fight_the_fog_en.pdf.18 Ibid., p. 1.19 Office for Official Publications of the European Communities, Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions, Luxembourg 2003.20 Ibid., p. 5.

that “terms which are too closely linked to national legal systems should be avoided” 22.

The result, clearly, is a variety of legal English which is both simplified, having been

drafted according to principles of plain English, and cross-cultural. The source system

is, as mentioned, civil-law in nature. Texts written in this variety of English are in

themselves bound to have great influence, and their suitability for transposition into

domestic legislation is bound to further boost the process not only of legal, but also

legal-linguistic change in the UK.

Moreover, of all the EU languages, English is the one in which cross-cultural

comprehensibility is most actively pursued and most likely to be achieved, simply

because, as van Erp remarks,

in spite of all the existing linguistic diversity, the working groups, which try to

establish a common European legal framework, have, in fact, chosen English as

their language of communication. This is certainly understandable from a more

pragmatic point of view, as it obviates the immediate need to develop multi-

linguistic uniform terminology and makes it easier to focus more directly on the

legal problems to be solved. At the same time, this choice exacerbates the

language problem as the English legal language is closely connected with

English legal concepts, which sometimes fundamentally differ from civil law

concepts.23

I would argue that this privileged position of English, and the fact that it is being used

prevalently by non-native speakers, inevitably leads to simplification and the

abandonment of excessive jargon. Moreover, despite van Erp’s fears, I do not feel that

“this choice exacerbates the language problem”, simply because non-native speakers

from civil law systems will have no inclination, or indeed reason to adopt ill-fitting

common law terms to express civil law concepts. They are much more likely to prefer

‘neutral’ language, not least because that is what the EU guidelines, as seen above,

require.

21 Ibid., p. 11.22 Ibid., p. 19.23 S. van Erp, op. cit.

Moving outside the confines of the EU, it is in the area of trade and international

business that we find two sets of guidelines aimed at standardising international legal

instruments, namely the Unidroit Principles of International Commercial Contracts24

and the United Nations Convention on Contracts for the International Sale of Goods

(CISG)25. The original aim of these sets of rules was of course to provide standardised

international legal instruments, and as such they have had wide-ranging influence26.

M.J. Bonell, in his report on the Principles, mentions that “also in view of the fact that

the UNIDROIT Principles are available in virtually all the principal languages of the

world, they play an increasingly important role in assisting parties in negotiating and

drafting cross-border contracts”27. Adopting a similar approach to that used in EU

drafting seen above, the Principles consciously “avoided the use of terminology

peculiar to any given legal system”28. The Principles are published in the three official

languages of the International Institute for the Unification of Private Law, namely

English, French and Italian, as well as in German, Spanish, Chinese, Korean, Romanian,

Russian, Serbian, Turkish and Vietnamese, and the members of the working group

responsible for drawing up the Principles were from wide variety of countries and

language backgrounds29. However, as is clear from working group documents available

on the Institute’s website30, their written reports, and thus presumably discussions, were

in English. With the exception of two working documents originally written in French

(but nevertheless translated into English), all these documents are available in English-

only versions. The consequences of this approach are of course identical to those seen

above with reference to EU legislation, viz. the increasing consolidation of an

international legal English based on civil law principles and produced by groups

composed prevalently of non-native speakers, thus ensuring wider comprehensibility. It

is in fact the multinational nature of such groups that saves the entire process from

becoming just another case of Anglo-American linguistic imperialism. Here, the

language is being taken up by non-native speakers and moulded to their needs.

It will be of no surprise at this point to learn that, although official versions of the CISG

are available in English, French, Spanish, Arabic, Chinese, Russian, Portuguese and

German, reference is most often made to the English text of the convention in

international lawsuits, even when neither of the litigants is from an English-speaking

country. This is also due to the fact that not all countries/languages have their own

official text of the convention31, and that the English version is evidently considered the

most widely understandable.

5. Conclusions; the future

As we have seen, there are various forces, within the UK, in the EU and in the

international community at large, working to achieve uniform legal English. Some are

the result of conscious efforts to effect language change, while in other cases, the fact

that the members of international legal drafting groups work in English has the ‘side

effect’ of facilitating linguistic uniformity despite this in itself not being their main aim.

Of course, as we have seen, and as our opening quote implies, any kind of international

legal uniformity is likely to bring linguistic standardisation along with it.

24 UNIDROIT is the International Institute for the Unification of Private Law, an independent intergovernmental organisation based in Rome, aiming to study needs and methods for modernising, harmonising and co-ordinating private and, in particular, commercial law between States. The Unidroit Principles were first published in 1994. A revised edition was brought out in 2004.25 Ratified in Vienna on 11 April 1980. The official texts in the various language versions can be found at http://www.cisg-online.ch/cisg/materials-text.html.26 The Unidroit Principles, for example, have been chosen as a model for the new Civil Codes of Estonia, Lithuania and Hungary, and for the Chinese Contract Law of 1999, amongst others.27 M.J. Bonell, “UNIDROIT Principles 2004 – The New Edition of the Principles of International Commercial Contracts adopted by the International Institute for the Unification of Private Law”, in Uniform Law Review, Rome 2004, p. 9.28 UNIDROIT, Principles of International Commercial Contracts, Rome 2004, p. viii.29 Italy, Brazil, Canada, Ghana, Egypt, USA, Australia, Belgium, UK, the Netherlands, China, France, Russian Federation, Denmark, Germany and Japan.30 http://www.unidroit.org/english/workprogramme/study050/s-050-listofdocs1998-2004.pdf.31 The Italian version, for example, despite being the subject of Italian Law no. 765 of 11/12/85, is presented as an unofficial translation: “traduzione non ufficiale convenzione delle nazioni unite riguardante i contratti di vendita internazionale di merci” (my emphasis).

It is a matter of debate as to how much common law language influences international

legal English and how much the opposite is the case, and as we have seen, scholars are

somewhat divided on the issue. Personally, I have the impression that these two

varieties of legal English are likely to become increasingly similar, with common law

English shifting more towards the civil-law-based international version than the other

way round, thus also leading to a simplification of UK legal drafting. This process is

already underway, and as Cutts points out, antiquated “legal flavouring has virtually

gone from modern UK laws, which proves how redundant it is elsewhere”32. Moreover,

linguistic and legal processes go hand in hand, as Snijders reminds us:

European concepts may have a disintegrative, disturbing effect on the national

system. This means that the national authorities have to adapt their national

rules, preferably by interpreting or by incorporating European rules in their

general standards, like good faith or negligence. The result is a kind of creeping

Europeanisation of national law.33

Whereas Snijders seems to see this as a cause for concern, I do not feel that such

evolution need necessarily be negative. We will see the survival of the fittest, in the

sense Darwin originally intended, i.e. the most suited to the challenges posed by the

environment. Many may miss their wherebys hereinafter, but I for one will be more

than happy to trade them in for a legal lingua franca understood without any risk of

ambiguity in an increasingly global market.

32 Cutts, op. cit., p. 142.33 W. Snijders, op. cit.