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Legal Language is Exclusionary

One of the basic pillars on which the legal profession stands is language. Language plays an indispensable role in the functioning of law. From Acts passed by Legislature to the drafting of Business Contracts, all these are entirely dependent on language.

Analysis
The basic assumption that the word exclusionary carries is that only a certain section of society has access to it. Law is more related to day to day life of people. They enter into a contract with others, file lawsuits, and more importantly, they are governed by it. Hence people have the desire to comprehend and understand these laws and are frustrated when they fail to do so.

Complexities in Legal Language

There are three types of complexity that people come across about legal language: Lingual, Legal and Traditional complexity.

One should keep in mind that these complexities arise not only in English but any language that is used in drafting. Even outside India where countries have laws written in different languages such as Spain and Japan, we see that people face the same problem.

Lingual Complexities

Long Sentences:

There exists an inverse relationship between the length of the sentences and comprehension. According to Plain Language Association International, a sentence should have a maximum of twenty words for a layman to read and comprehend properly if the reader understands all the words used in the sentence.

However, legal literature like Acts and Ordinances consist of words far from the above-mentioned limit. In a sample survey done by Jaya Verma, where she took around eleven different Indian Legal texts, she found that the average number words in a sentence were 71.33, with the longest sentence ranging as much as 400 words. Prof. Prakasham’s study on the Indian Evidence Act shows that an average sentence consists of 93 words. Hence, long sentences make the legal language difficult to comprehend.

Sentence Discontinuity:

Sentence Discontinuity occurs when two parts of sentences that should come together end up distancing themselves upon the insertion of an element. This discontinuity is perhaps peculiar to legal literature.

Use of Doublets:

Doublets are two words which come together and convey the same meanings individually. For example, terms and conditions, cease and desist, etc. these words connote the same meaning yet have been used together. There were two languages used in court during the initial period of common law, namely French and Latin.

The use of doublets was done to provide linguistic diversity and inclusivity in courts. With time both French and Latin words when used in modern legal English reflect the same meaning. However, lawyers and judges still use these words adding a burden of repetition. Thus, it clearly shows legal language has not changed with time.

Legal Complexity:

Legal complexity arises due to the lack of legal knowledge. This complexity is faced only by laymen, unlike lingual complexity which is faced by laymen and legists alike.

Terms of art:

Terms of Art are words that have a specific meaning in law and are exclusively used by lawmen. The legal concepts behind these words are alien to laymen. These words require at least a basic knowledge of the various streams of law for their comprehension. For example, the word demise means a transfer of property by lease but in colloquial usage, it denotes the death of a person.

Latin and French Words:

To make matters worse, legal language, especially that which is prevalent in common law countries, contains words present in Latin and French. The use of Latin maxims in the legal literature has become a tool for ostentation, as is the use of archaic and complex vocabulary. However, some academicians argue that these words have been traditionally passed to the fraternity and the majority of jurists would know what it means. If these words are replaced by colloquial words, draftsmen must specifically mention the meaning and ambit covered by the word. Examples of Latin and French words include in re, vis majure ,mens rea, prima facie, etc.

Archaic words:

Legal literature comprises of texts which are outdated and have been extinct from colloquial usage. It has become a trend among lawyers to use these archaic words.

Traditional Complexity

One of the pragmatic reasons why lawyers write complex ‘Legalese’ is that it has become a legal tradition. It has caused a bandwagon effect. Not using the typical legal language while drafting a contract, writing a judgment or presenting a brief is considered radical. Junior lawyers are often chided for not writing the complex legalese.

Justification

The justification offered by lawyers for their language is as old as the language itself. According to lawyers, the purpose of drafting laws is not to have a vast readership, but to make sure that there are substantive codified rules and regulations. These rules and regulations need to be applied over some time. Hence, draftsmen should consider all the considerable loopholes that men can use it to break what law meant in the first place.

Secondly, the legal words carry a wide spectrum of meaning which has been evolved through various cases and statutes. For example, Negligence doesn’t just mean carelessness, but it includes, defendant, owing to a duty of care, breaching it and causing damage to the plaintiff, the concept of Res ipsa loquitur etc. It is so wide a term that a layman cannot understand what comes under its ambit. Thus, it is not feasible to write thousands of words in a contract to explain the meaning of a single word used in it. Therefore, it is better not to tamper with the legal complexities.

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