Chapter 3

1.Precision 2.Information (over)load 3.Universality and aloofness 4.Systemic character 5.Structure and Formalism 6.Initialisations and Acronyms 7. Sentence complexity and diversity of

language elements 8.Archaism and solemnity

A. Needless repetition of the same sense in different words; redundancy.

b. An instance of such repetition.

A noun is not replaced by a pronoun if that can cause ambiguity as to the subject or the object of the sentence

In the past: lawyers not only repeated ikey substantives but added a precision-word, e.g. the said, in front of substantives; this tradition – goes back to medieval times and is still partly to be seen in what is called chancellery style in various countries

To minimize the risk of polysemy A first orientation about a concept used in

law and can be used as a framework for the development of legal argumentation in a case

Legal terms may have multiple meanings (polysemy)

Therefore, they are often defined within a particular context to avoid mistakes and misunderstandings

Legal language – many definitions Corpus iuris civilis (Code, Digest, Institutes,

Novellae; the Digest: 246 legal definitions)

Real and terminological Real d.: concern entities that exist in reality in the

physical world (e.g. real property) “Goods are movable by their nature, or if the law

so determines” (Les biens sont meubles par leur nature, ou par la détermination de la loi)

Terminological d. only exist in legal reality (e.g. an obligation)

The borderline between real and terminological definitions – often vague

Extension: the class of entities to which a term refers

Intension: common characteristics of all the meanings of the term)

Formulated by enumerating the sub-classes that form the class to be defined; this is possible where the sub-classes are well-known and their number is limited

The definitio per genus et differentiam The starting point – to indicate the class to

which the sub-class to be defined (species) belongs

The next step: to show the elements by virtue of which the sub-class to be defined differs from the other sub-classes included in the class

Legal system – based on classifications

Combines the characteristics of real and terminological definitions, as well as those of extensive and intensive d.

Common law countries – detailed definitions

MEANING OF “HOUSE” AND “HOUSE AND PREMISES”, AND ADJUSTMENT OF BOUNDARY.- (1) For purposes of this Part of this Act, “house” includes any building designed or adopted for living in and reasonably so called, nothwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and-

(a) where a building is divided horizontally; the flats or other units into which it is so divided are not separate “houses”, though the building as a whole may be; and

(b) where a building is divided vertically the building as a whole is not a “house” though any of the units into which it is divided may be…. (p. 68)

Principal terms in international treaties – often defined in treaties themsleves; legal institutions differ from one country to another;

interpreters of a treaty form a heterogenous audience characterised by linguistic pluralism

“For the purposes of this Convention (…) (b) a trustee shall not be regarded as an agent of the trust, of the person who has created the trust, or of the beneficiaries (Aux fins de la présente Convention (…) (b) le trustee n’est pas considéré comme un intermédiaire agissant pour le compte du trust, du constituant ou du bénéficiaire)” (the (Hague) Convention on the Law Applicable to Agency)

- the institution of trust: traditionally unknown in continental Europe it was necessary to define the connection between trust and the Convention

Eisenbahn is “ein Unternehmen, gerichtet auf wiederholte Fortbewegung von Personen oder Sachen über nicht ganz unbedeutende Raumstrecken auf metallener Grundlage, welche durch ihre Konsistenz, Konstruktion und Glätte den Transport grosser Gewichtsmassen beziehungsweise die Erzielung einer verhältnismässig bedeutenden Schnelligkeit der Transportbewegung zu ermöglichen bestimmt ist, und durch diese Eigenart in Verbindung mit den ausserdem zur Erzeugung der Transportbewegung benutzten Naturkräften (Dampf, Elektrizität, tierischer oder menschlicher Muskeltätigkeit, bei geneigter Ebene der Bahn auch schon der eigenen Schwere der Transportgefässe und deren Ladung, usw.) bei dem Betrieb des Unternehmens auf derselben eine verhältnismässig gewaltige (je nach den Umständen nur in bezweckter Weise nützliche oder Menschenleben vernichtende und die menschliche Gesundheit verletzende) wirckung zu erzeugen fähig ist.” (RGZ= Reichsgericht in Zivilsachen I, 247) (p. 69)

Background of this judgment: a law adopted in 1871 which imposed strict liability on railway companies for risk created

Lawyers for the railway companies attempted by all means to limit the notion of railway in order to avoid strict liability

Commercial contracts and wills drawn by common-law lawyers often include definitions

ARTICLE ONE DEFINITIONS “Beneficiary” means the recipient of a bequest

made by this Will. “Bequest” means a gift made by this Will. “My children” means my daughter REBECCA

SUSAN WEISS, born January 24, 1987M my son CHRISTOPHER WEISS, born June 5, 1990; my stepson WILLIAM PAUL WEISS, whether or not later adopted by me, and any other children born to or adopted by me after I execute this Will

Detailed definitions give the impression that legal language is entirely accurate and without ambiguity, which is not the case

Legal vocabulary – words with multiple meanings; no amount of detailed definition can avoid all cases of ambiguity; likelihoood of ambiguity increases with more detailed definition: it is complicated and it is attractive to consider it complete in spite of the possibility of gaps

Enumerative lists often raise the problem of knowing if they are exhaustive or merely explanatory

Au sens du présent titre, on entend par: Matériels de base, générateurs des matériels forestiers de reproduction;-les peuplements, notamment les vergers à graines, pour les matériels de reproduction générative; les clones et les mélanges de clones en proportions spécifiées pour les matériels de multiplication végétative; Matériels forestiers de reproduction: - les semences: cônes, infrutescences, fruits et graines, destinés à la production de plantes par voie générative; (…)(Code forestier) p. 71

Accuracy and precision – fundamental characteristics of legal language

Result from the requirement for legal protection and legal certainty

To avoid the possibility of arbitrariness, legal rules should be formulated without ambiguity

Written form – necessary for accuracy Oral legal knowledge – uncertain and

changeable Archaic law: summary character – concrete

situations, presented in rhythmical form for mnemonic reasons

Modern, complex society – enormous number of legal rules

Legal language should be as concise as possible to avoid laws and regulations that would otherwise be over-long and unclear

At the same time, legal language should avoid over-abstraction to enable decoding with minumum effort

The key: to know for whom laws are written – experts or citizens?

Even laws concerning fundamental questions of citizens’ lives – written for experts who are charged with their technical application (e.g. social and fiscal law)

Laws – highly complex: distributive justice, which presupposes highly detailed rules

Often – mathematical formulas relating to the calculation of some welfare allowance or a tax to be paid

Social and fiscal laws should be written very compactly, with as high a density of information as possible, to prevent their becoming over-long

The legislator does not suppose that laws of a technical character are understandable to the general public

Such laws – communicated to citizens by means of short-form bulletins, leaving out the details

In many civil-law countries – the language of judgments – overloaded with messages; appearance of abridged codes

Today – judgments closer to ordinary language; because of this, they have become too long and their internal logic is weakened; a judgment formulated in ordinary language contains more secondary elements, impeding the transmission of the legal message, than a traditional compact judgment

Modern law-abstract character; regulates entities that are mental creations: rights and obligations; in Swedish legislation: only 5-8% verbal substantives refer to entities that exist in time and space

Law – based on experience drawn from the real world but it regulates hypothetical future cases; timespan linked to legal rules – often characterised by universality, impossible to see from the chronological standpoint: “timelessness of law”

Verbs: conditional is common, while the present tense dominates

Private documents: parties have to prepare for possible change of circumstances; to some extent, the clauses have to allow for hypothetical situations

Frequent use of passive: brings the object of the action into the foreground, giving the actor only a secondary role

Even when actors are in the foreground, individuals are pushed into the background by personification of authorities and corporations: e.g. the ministry orders (…), the court finds(…)

Actors to do not appear under their private names but are called by their titles or functions: director, president, etc

Private persons -named according to their roles: applicant, appellant, defendant

Advocates seek to lend their arguments an appearance of objectivity to make them credible and convincing (e.g. “It appears that Article 27 of the law on judicial records should be interpreted so that (…); not: “It seems to me…)”

At one time, the intention was to impress readers or listeners by a legal text, by stressing the sacred character of the law and by using magical rhythm; some features still exist: the language of oaths, the rituals of justice

Legal language today: official and formal Neutral style: to have an effect on the

understanding, rather than the feelings, of the reader or listener

Legal style: cold: rejects all that is affective and does not include emotional elements

Legal texts: no exclamation or question marks

Neutrality of legal language – guaranteed by the fact that many legal texts (laws, administrative instructions, on the Continent also judgments) pass through the offices of several commentators and stylists before receiving their final form: they are not from a single hand

Legal language – characterised by “zero style”; however: advocates’ closing speeches are often affective

Sobriety of legal language – visible in legislative texts

Dissenting opinion of judge Musmanno, of the Pennsylvania Supreme Court, in the case relating to Henry Miller’s “Tropic of Cancer”:

“Cancer” is not a book. It is a cesspool, and open sewer, a pit of putrification, a slimy gathering of all that is rotten in the debris of human depravity. And in the center of all this waste and stench, besmearing himself with its foulest defilement, splashes, leaps, cavots and wallows a bifurcated specimen that responds to the name of Henry Miller…

a figure of speech that describes a subject by asserting that it is, on some point of comparison, the same as another otherwise unrelated object.

a type of analogy and is closely related to other rhetorical figures of speech that achieve their effects via association, comparison or resemblance

All the world's a stage,And all the men and women merely players;They have their exits and their entrances;

In contrast to medieval times, modern legal language is neutral; no longer figurative

Only a few modest traces remain of the colourful legal language of the past, mostly in the form of legal maxims

In modern legal language, metaphors are rare

Metaphors: common in solemn speeches on the notion of law, its fundamental principles, etc.

Metaphors e.g. “landscape of legal culture”

Some legal terms originate from metaphors Metaphor: useful linguistic means involving

sth new that has to be named; brings out features analogical to the new and the old; thanks to a metaphor, it is possible to describe the functions and structure of a phenomenon, without defining it in detail; enables expression of a process or state without inventing a new term, which always requires a ‘running in’ period. (e.g. virus as a computer term)

“burden of proof” (Roman law: onus probandi: calques all over Europe: onere della prova, carga de la prueba, charge de la preuve, Beweistlast, bevisbörda,

Source of law

Italian authors often use images that express combat (difesa, combattimento), or thought process (Il percorso argomentativo seguito, itinerario di ricostruzione)

lion’s partnership (Lat. societas leonina), lion’s share (Lat. pars leonina) – examples that go back to Aesop’s fables.

Matthias Calonius: ‘Natural law does not accept a contract according to which one party obtains all profit and the other party bears all loss, or according to which there accrues to one party a greater part of the profit or loss than that corresponding to their input into the company. Such a company is termed a lion’s partnership after the famous fable by Aesop…”

Today: “inequitable share”

Legal order – systemic character: each element forms part of a greater whole

An article forms part of a law, and a law forms part of legislation.

In civil-law countries, precedents complement legislation; in common-law countries they are of fundamental importance; legal science – also important; result: each element should be in harmony with the entirety of the legal order

Systemic character – highlighted when a new law is adopted or an old one reformed; this is reflected in a great number of laws and regulations that include articles in direct contradiction or otherwise in discord with a new or reformed law; dispositions of those other laws and regulations need to be modified

Systemic character of the legal order . Components of the order linked to one another by references: intertextuality

given that law relies on authorities (e.g. the legislator, the courts), a legal text has a dependent relationship with other texts; an article of the law refers to other articles of the same law or to other legislative texts, a judicial decision refers to laws, a legal textbook or treatise refers to laws, etc.

References – horizontal (between two laws) or vertical (from a decree to a law, from a judicial decision to a decree)

Frequency of references -influenced by traditions of a legal culture

1. in reinforcing the systemic idea of the legal order, references are appropriate for eliminating internal contradictions

2. References show the wider contexts to which the different elements of the legal order belong; informative and mnemotechnical function. A reference shows that another legal text exists that links to the issue involved

3. References eliminate repetitions, the text becomes lighter and more economical

Too many references make a text difficult o understand, potentially causing mistakes and misunderstandings; a legal text becomes a “hypertext” weighed down with a large number of references making the reader lose the thread of the document; such a text saves space but is very difficult from the reader’s stand-point

“A person who fails to make a declaration, or who does not make it in a correct or complete manner, or in due time, contrary to paragraph 2 of Art. 4, paragraph 1 of Art. 26, Art. 27, Paragraph 1 or 2 of Art 28, paragraph 1 or 2 of Art. 28 a, paragraph 2 of Art. 34 paragraph 1 or 2 of Art. 38 or paragraph 2,3 or 4 of Art. 42, or who fails to attach the items prescribed by law to the declaration, contrary to paragraph 2 of Art. 26, paragraph 2 of Art. 34, paragraph 2 of Art. 38 or paragraph 3 or 4 of Art. 42, contravenes the law (decree implementing law on firearms, Art 43, p. 4) German legislation on firearms

Terms should be used as logically and consistently as possible in all legal contexts

Linguistic cohesion In different laws, the same terms obtain the

same content as far as possible

Logical disposition helps to place legal information in a hierarchy

Legal text moves from the abstract to the concrete, from the substantive to the procedural

Structure of the text should be consistent: the principal items presented before secondary items, general rules before special conditions and exceptions

Logical structure of a code informs the reader about hierarchies of legal concepts and terms expressing those concepts

Thanks to such a structure, it is easy for a lawyer or translator to find in a code the terms they are looking for and to establish the contexts in which these terms are used

In archaic law, formalism was heightened by magical functions of the law;

With the help of language rituals, the Most High was invited to the judicial process and His will could be interpreted

Magical repetition – still reflected today in the formulas of the oath

Today: repetition underlines the authority of judges or civil servants (‘we should and do condemn’, ‘we declare, order and sign’, ‘I undertake to propose and do propose’ (Spain)

Anglo-American documents - rituals of repetition especially frequent

Formulas highlight hierarchies and conceptual opposites, and guarantee the understandability of synonyms

Advantages: 1) legal protection and certainty of procedures

require repetitive models of action in the application of the law; standardised words and phrases have an established interpretation

A lawyer copies a ready-to-use form from a collection of model documents or from a contract that he has previously drafted

2) An established model ensures that the legal act in question is performed in the form required by law

3) the use of a model means that the document is structured and arranged at both paragraph and sentence level

A model form arranges and composes the text of a document clearly and systematically

Standardises the use of words and prevents the document from becoming too long: economy of legal language

Saving time: self-drafting a judgment or a contract would take a lot of time and would require vast knowledge

Easier to archive and retrieve by computerised means

Legal forms - more or less fixed or flexible Often used in performative language acts,

but also appear in other contexts A form only appears as an invariable unit

within the genre of the text in question Model forms: linguistic petrifications;

syntax of legal forms - often archaic features

At times, a document almost wholly dictated by formula

In other cases, formalism only concerns certain expressions (opening and closing phrases in documents, as well as expressions that signal that a new section of the text begins from that point (e.g. considérant que, attendu que, par ces motifs; serve as signs of transition marking the start of a new section of the text

In common law judgments, judges as individuals are visible: their grounds are full and detailed, their language often colourful; true also of dissenting opinions; the position taken by the court expressed by the “we” form, and that of the judges as individuals by the “I” form;

In Germany, grounds of a judgment based on positions taken by legal science;

these grounds regularly cite books and articles by academic lawyers;

German judges write their grounds as scientific essays, which allows a dialogue with legal science;

frequent references to legal scholars

In France, judgments are condensed into a fixed formula in which the grounds are succinct and formal;

no dissenting opinions; a French judgment consists of a single

sentence structured by “key-words”, which vary between courts: attendu que (Court of Cassation, i.e. the Supreme Court and general courts of first instance, while administrative courts and some courts of appeal use the expression considérant que

Judgments in France – drawn up much more formally than in Germany or the common law countries

Votes of English and American higher courts are written individually, often highly personally; recently - reductions in differences of style of judgments,

EU: different legal traditions mingle

1000 years ago, the notarial profession developed in Northern Italy, later spreading in Europe

One of the main tasks: drawing up private documents

For repeat cases, model forms were developed, partly in Latin, partly in the vernacular

Language of model forms of private documents – traditionally as complicated and embellished as that of judgments and other official documents

Solemnity of forms – still visible today Long sentences

English: forms for wills – complicated, often running to several printed pages

SIGNED, SEALED, PUBLISHED AND DECLARED by the above-named person as and for a Last Will and Testament, and we did, in his presence, hereunto subscribe our names as witnesses thereto

In common-law countries increasing attention has been paid to clarifying the forms of private documents

An American lawyer, Thomas S. Word Jr, proposed forms for drawing up a will in understandable language - the plain-language will

I, John Quincy Doe, now residing in the city of Richmond, State of Virginia, being of sound mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking, annulling and canceling any and all wills and codicils heretofore made by me (original will)

Revised will: I, John Quincy Doe, of Richmond, Virginia,

make this will, and revoke all earlier wills and codicils

Official title of a law, a publication, or an office can be long and complicated Ie.g. Receueil de jurisprudence du droit administratif et du Conseil d’Etat)

The use of initialisation (RJDA) facilitates references to various texts

Space-saving

However: initialisations that are unfamiliar to the reader make the text more difficult to understand

Use of initialisations - an end in itself in legal circles

Unstable often- multiple meanings

The manner of constructing initialisations – not uniform; sometimes, the first letter of each word included, but often several words are omitted; recently: acronyms have become common in various countries; to enable pronunciation these include not only the first letters but often additional letters, which makes decoding still more difficult

The culture of initialisations- not uniform amongst lawyers even from the same country; many initalisations .

Only known by lawyers of a particular branch of the law, even from a particular court or government office

Dictionaries of initialisations and abbreviations .

In some cases, large dictionaries exist, while in others there are only modest lists or nothing at all

The World Dictionary of Legal Abbreviations – covers legal cultures speaking English, French, Italian, Portuguese and Spanish (German culture excluded)

Abbreviations shortening Latin words; e.g. ib. or ibid. = ibidem, ‘in the same work’

Symbols versus > (Finland); counterclaim: x

The legislator seeks to ensure respect for legal rules, notably by linguistic means: solemnity

The entry into force of a constitution – performed by a formula full of dignity

La Nación espaňola, deseando establecer la justicia, la libertad y la seguridad y promover el bien de cuantos la integran, en uso de su soberanía, proclama su voluntad de:

Garantizar la convivencia democrática dentro de la Constitución y de las leyes conforme a un orden económico y social justo. (…)

A close connection between the gravity of a text and its archaic character

Forms of judgment and of private documents – many repetitions and obsolete words of command (imperatives); inversion – typical of legal and administrative language

Archaic character of legal language: 1) conservatism of lawyers 2) translation 3) long legal tradition

Many characteristics of legal language can result in obscurity (initialisations, abbreviations, archaisms, “noun sickness”

Justinian – the new code should be laconic and understandable; the draftsmen were to “put together accurate laws drawn up in concise language” (certas et brevi sermone conscriptas…leges componere)

Allgemeines Landrecht fur die preussischen Staaten (1794) – clarity of language; avoids loanwords; a model for later codifications in Austria, Germany and Switzerland

Catherine II – instruction that new laws were to be drawn up in simple language, using words that everyone could understand

Force of tradition Ensuring the authority of justice Requirement of legal protection Complexity of society

Sentences longer and more complex than in other LSPs;

legal language – formed for over two millenia

Legal language – an instrument of the exercise of power reinforcing the authority of judges and government officials

Legal protection and legal certainty require established forms of procedure, clearly defined party roles, accurate text citations and models for guidance based on unambiguous formulas; this necessitates detailed regulation of procedures, which implies complicated language

New clauses are added but old ones are rarely eliminated; a long private document is more impressive, and means a bigger fee;

A long document is an obscure document

Society – increasingly complex Needs highly specialised system of legal

rules, which requires many new legal terms Only some of these rules are aimed to be

applied to every citizen; written for lawyers A return to the past: in the days when legal

Latin was the dominant legal language, legal texts were only intended for social elites

The legislator often regulates technical matters from other fields through legal language; result: an accumulation of obscurity: the language of the law, that of technology, commerce, etc. intermingle (e.g. EU texts)

Language specialists can only help to correct some defects of legal language: heavy sentence structures, useless repetitions and abbreviations, archaisms, over-learned words, etc.

The basic difficulty – in legal language words of ordinary language often have a technical meaning hidden behind an apparently clear expression: illusory comprehension – more dangerous than the situation where the reader realizes that he does not understand the text

Plain English Movement Lord Woolf’s Report on Access to Justice –

understandability of judicial language The structure of text – of great importance

from the standpoint of clarity; beyond brevity, logical construction facilitates comprehension

Attempts to eliminate long sentences, useless repetitions, double negatives, etc.

A correct understanding of terms – impossible without substantive knowledge of the subject involved

Legal terms often lack transparency

Should start with laws and regulations . The language used by the legislator is passed on to the courts and government offices

1. a law should be concise 2. Legislative language should respect rules

of grammar (correctness) 3. It should use terminology consistently

(precision) 4. It should avoid ambiguity (clarity) 5. Laws should be formulated in a logical

way, and the reasoning should be coherent

Apart from improving legislative language, only recommendations and training can influence the language of courts, given the independence of the judiciary

Efforts should be directed towards the higher courts, since inferior courts follow the language model that the former create

Continuous training of judges and government officials

Ministries, courts, government offices should have enough staff to draw up laws and draft legal documents

Pressure of work – one of the main threats to high-quality legal language

Linguistic pluralism EU documents – result of translation (often

heavy and artificial)

Guidelines for the quality of drafting of EU legislation: Joint Practical Guide of the European Parliament, the Council, and the Commission (2003): avoid using over.long sentences, uselessly complicated expressions and unnecessary abbreviations; technical terms should be used logically and consistently; detailed instructions on titles, textual construction and signs, as well as on references between various normative acts and various legal provisions