Legal
Language, Early Modern English and Their Relationships
Dale
Barleben
Copyright 2003
This opinion is too long. I apologize for its length but I simply didn’t have time to write a shorter one. (U.S. v. Price)
The judge’s sentiment in U.S. v. Price seems synecdochic of common attitudes toward the bench and bar, both within the modern period and in eras past. Judges and lawyers alike built a reputation for verbosity and impenetrability in both written and spoken communication. Yet there seems to be a parallel and perhaps prevailing historical cultural attitude that legal language be as precise and accurate as possible, so long as it protects the interests of those involved. This brief article first examines the emergence and development of legal discourse and them moves to analysing its interfaces with the non-legal register through the Early Modern English (EMnE) period, with the aims of both giving an overview of the origins of EMnE legal vocabulary and providing some cultural background with which to contextualize this evolution.
The importance of clear, concise writing is not exclusive to legal discourse, yet this type of writing is crucial to the legal register’s ability to operate. David Crystal captures the multifaceted and at times seemingly mutually exclusive aims of legal language, equally applicable in modern or more ancient legal registers:
Legal language is always being pulled in different directions. Its statements have to be so phrased that we can see their general applicability, yet be specific enough to apply to individual circumstances. They have to be stable enough to stand the test of time, so that cases will be treated consistently and fairly, yet flexible enough to adapt to new social situations. Above all, they have to be expressed in such a way that people can be certain about the intention of the law respecting their rights and duties. No other variety of language has to carry such a responsibility. (Cambridge Encyclopedia 374)
The importance of legal language to define precisely has always been the focus, and perhaps purpose, of legal discourse. This need for precision surely influenced the malleability of the lexicon, in its adoption and adaptation of words outside common English usage.
Modern English Legal vocabulary finds its roots about the time of the Norman Conquest. Old English, Latin and French were progenitors for legal EMnE, as borrowings from these latter two languages helped shape the later lexicon. Old English words retained were less precise, yet were already ingrained in “boilerplate” legal language that relied on these phrases for their consistency. Latin and French, in contrast, were used more to indicate precise meanings for evolving concepts of law that needed articulation, yet also led to the impenetrability commonly associated with such language. Both Latin and French also held prestige value in their usage, which underscored the closed nature of legal language and its belonging to a self-regulating society. While Latin is still synonymous with legal language in practice, many less obvious French borrowings are also still used today, though they were adopted during the EMnE period. As Tom McArthur notes, “In 1362, French ceased to be a language of pleading, but its legal use was not officially abandoned until 1731” (591). The highly developed dependence upon Latin is traceable prior to the EMnE period:
The written language of the law after the Conquest was at first Latin and English. Latin was predominant and gained ground steadily. By the time William the Conqueror died, Latin was the language of formal written documents. It was not classical or medieval Latin, however, but a variety of Latin, law Latin, that included many Latinised English and Old French words. (Maley 12)
Maley’s remarks demonstrate that both need and precedent drove the reliance of early English legal lexicon on Latin. Words that already carried specific meanings in legal thought were adopted directly into English legal language. Other words, while borrowed from Latin, were adapted to suit the legal practitioner’s needs. David Crystal provides a useful topography of legal terms and their associated origins demonstrating both adoption and adaptation:
Old and Middle English words are retained, though no longer in general usage:
aforesaid heretofore thereby
forthwith thenceforth witnesseth
There are many Latin words and phrases, only a few of which have become part of the language as a whole (e.g. alias, alibi):
corpus delicti nolle
prosequi sui
juris
ejusdem generis res gestae vis major
French is the source of much legal language, though many words are now in general use (e.g. appeal, counsel, crime, plaintiff):
demurrer estoppel lien
easement fee simple tort
(The English Language 101)
While many of these terms entered the legal lexicon before EMnE, words like demurrer have directly traceable roots in this period. In either case, this list highlights the ways some words slip seamlessly into common usage, while others remain particular to legal discourse. During the EMnE period, the legal lexicon continued to borrow words, especially from Latin and French, both for reasons of need and specificity, but also, again, because of the associated prestige associated with foreign loan words.
Matti Rissanen, while investigating the developments in legal language in EMnE notes that, “the first Acts of Parliament written in English appeared at the end of the fifteenth century. Their language was most obviously based on the writings produced by the Chancery and other state offices in the course of the century” (120). While borrowing continued through the EMnE period, there was, however, no official proclamation necessitating the use of English for the laws of England until the mid-seventeenth century. As Maley describes, “It was not until 1650, by An Act for Turning the Books of the Law, and all Processes and Proceedings in Courts of Justice into English (455 (1650 11 Acts and Ordinances of the Interregnum) that English became the official language of the law” (12). Regardless of the Act, however, legal lexicon in EMnE continued to use established naturalized words and phrases from other languages. In effect, many of those terms originally “borrowed” were never given back, as they were now considered part of English legal lexicon.
Specific words borrowed from other languages played key roles in the development of the legal lexicon in EMnE. Returning to the above example, the word demurrer was recorded by 1547 in an Act proclaimed by King Edward VI (OED). The word referred to a specific legal document, which, when introduced, admitted the facts alleged by the opponent’s pleading, yet proposed that these facts did not entitle that opponent to any relief, thus vitiating the need for a pleading which includes a full defence. While the word developed alongside other meanings, these too were tied to legal practice, as by 1533, the word also meant “a state of hesitation or irresolution,” with reference to legal proceedings.
Another example of strong French influence in EMnE arises regarding the word tort. While the OED cites an early example of the word around 1387-8 pertaining to the concept of injury, it was not until around 1586 when legal lexicon adopts the word and the specific meaning associated with the law of torts, namely, “the breach of a duty imposed by law, whereby some person acquires a right of action for damages.” While the previous meanings of the word dealt with injury, it is not until the legal lexicon develops that it acquires significance in the procedural sense. By this time, the further legal concepts of both duty and a right of action are also specific legal tropes embodied in the word tort.
Rissanen notes some further unique developments in legal EMnE discourse that evidence the need for utterly unambiguous language. The first of these includes the preference of the word shall over will in legal language because “the aim of neutrality and generality favoured the choice of a single auxiliary to indicate the neutral future, and in this context the natural choice was shall, which was the more depersonalized of the two and frequently used when obligation was involved” (122). Citing statistical data from the Helsinki Corpus over four periods of approximately seventy years beginning in 1420, Rissanen traces the increasing usage of the word shall in legal documents, while also noting the opposite trend in less formal genres; fiction, romance and private letters each display a propensity away from the less personal auxiliary shall. In this example, common EMnE seems to elide the influence of legal lexicon, and progress along its own, more personal path.
Another important influence Rissanen catalogues is the tendency of EMnE legal language to omit multiple negation in order to provide language as clear and unambiguous as possible (125). While this syntactical construct pervaded both Old and Middle English, Rissanen links the beginnings of the movement away from this usage to EMnE legal texts. While the Helsinki Corpus notes the continued use of this language scheme outside legal texts, the legal texts themselves have done away with such constructs as not . . . no by the sixteenth century.
A final noteworthy characteristic of legal EMnE was the emergence and standardization of punctuation that followed the movement toward standardization in English Statue law (Salmon 47).
There were further important developments in the EMnE period that evidence not only the evolution of legal lexicon, but its influences upon the non-legal English register.
Syntactical influence emerges in the provided (that) construct (Rissanen 126). In order to provide an economical and clear transition in cases of conditional subordination, legal language adopted this phrasal connector. Between the early fifteenth and late seventeenth centuries, common English language seems to have pursued the legal usage of the word as increases in the latter were invariably followed by increases in the former.
EMnE legal vocabulary had numerous influences on non-legal registers. One such characteristic of EMnE legal language that made its way into more common registers is compound adverbs (Rissanen 127). Words like hereby, therewith, thereto and therefore each share a developmental past closely linked with the EMnE period. Compound adverbs have indeed become synonymous, and perhaps stigmatized, as part of legal language. By the 1590s, for example, John Donne was producing pointed satire ridiculing not only legal practice, but also the language most closely associated with it, including compound adverbs. Another characteristic related to vocabulary active at the time was the production of binomials; that is, new terminology “commonly formed by combining a native term, or an integrated loan word, and its foreign (near-) synonym (Nevalainen 363). Terms like “bargain and sale” or “breaking and entering” are such examples, combining a French term and a term from Old English, to enumerate the specifics of a legal concept. Similar such binomials in the literary register were often also common, but functioned for completely different reasons, including, for example, the production of paradox (Adamson 562-3). Another closely related influence regarding vocabulary was the cataloguing of the lexicon and its usage issues, which led to legal dictionaries becoming more widely used amongst both lawyers and the general public. Rastell’s 1579 legal dictionary, for example would have found an audience both inside and outside the Inns of Court in London, the only accepted training centre for lawyers in the period. While published with a legal audience in mind, the book’s influence upon non-legal users was certainly plausible.
Though it both borrows from non-English languages and sometimes develops in opposite directions to more common English language, Rissanen also notes that legal discourse influences EMnE in still further “standardising” ways, including spelling, while non-legal discourse often adopted characteristics of other genres:
All in all, it seems that in spelling the standardising model offered by documents and statutes had a strong influence of other genres of writing; in the case of syntax and lexis, on the other hand, laws and documents adopted forms from other genres, decontextualised and deregionalised them, and thus marked these forms as part of the standard. (121)
As legal practice progressed through the EMnE period, the codification of legal precedent into statue began to provide a body of knowledge from which standard spelling might more easily evolve. Moreover, as the lexicon drew in strong influences of other writing forms and then decontextualised and deregionalised them, it also provided a form of lexical levelling. Using language that is precise enough so as not to lead to ambiguity, yet general enough to cover a vast range of potential cases was, and is, one of the law’s most important mandates.
While Rissanen’s work with the Helsinki Corpus yields numerous insightful results, the reliance upon scientific analysis of word occurrence somewhat neglects the relationships between legal and non-legal language active in the EMnE period, as illustrated by the example set by the Inns of Court. Again, perhaps the example set by John Donne might prove representative. R. C. Bald records Donne’s involvement with the Inns of Court and his interaction with poets and politicians alike, citing such progenitors at the Inns as Sir Thomas More and William Rastell. Rastell, as mentioned, undertook his legal dictionary immediately prior to Donne’s involvement with the Inns, and would have influenced Donne’s thinking not only within the legal context, but from a more general lexical perspective also (Bald 53). Donne’s friendships at the Inns profoundly affected his interaction with non-legal society for the rest of his life, though he was a member only between 1591 and 1594. The matrix of influential and politically important persons that interacted there further augmented the prestige value of belonging to the Inns of Court. Those belonging to the non-gentry class could become upwardly mobile by qualifying to study at the Inns as “the professions and commerce were roads to gentility” (Raumolin-Brunberg 27). For Donne, then, the Inns of Court became a node of interaction between literary and legal discourse. As the Inns were the ultimate training ground for barristers in England during the EMnE period, anyone wishing to practice had to pass before this self-regulating body. Yet many of the gentry attended without intention to practice, but rather to become more proficient in the art of rhetoric. The result was a coterie of poets developing within the legal society of England. As Wilfrid Prest comments, “the inns of court poets of the 1590s were fortunate enough to hit upon a style which neatly embodied both the rejection of an established literary convention and an approximate statement of their own social and personal attitudes” (156).
To this end, the Inns of Court provided further influences upon common EMnE in the dispersion of their coterie forms into the public forum. The poems Donne wrote during the early 1590s while attending the Inns, for example, were originally intended only for his coterie audience. When these Satires and Elegies were later published in the public forum, much of the legal language used to satirize law and the legal profession began to circulate in England’s literary culture. Over the centuries, these poems have received much attention from literary critics, thus providing yet another inroad for legal language within the literary canon. Donne’s verses like, “In the in’terim my letter should take place / Of affidavits; words, words, which would tear / The tender labyrinth of a soft maid’s ear,” (159) demonstrate how his use of legal lexicon both infiltrated his poetry and provided spaces in which he might satirize the practice of law itself. While it would be nearly impossible to trace the ways these interactions occurred by means of statistical evaluation, it is nonetheless important to be aware of such influence.
While the importance of borrowing, spelling and other morphological issues remains tantamount to understanding the important developments in EMnE legal lexicon, the dialogic relationship between legal and literary thought within the context of the Inns of Court would provide a fruitful point of departure for further investigation.
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U.S. v. Price, 448 F. Supp. 503, 503 (D. Colo. 1978).
Literary Reference
Adamson, Sylvia. “Literary Language.” Lass 539 – 653.
Bald, R. C. John Donne – A Life. Oxford:
Oxford University Press, 1970.
Donne, John. The
Complete English Poems. Toronto: Penguin, 1996.
Sokol, B. J. and Sokol, Mary. Shakespeare’s Legal Language. London: Athlone Press, 2000.