CREATION, STRUCTURE, AND INTERPRETATION
OF THE LEGAL TEXT
A legal text is something very different from ordinary speech. This is especially true of authoritative legal texts: those that create, modify, or terminate the rights and obligations of individuals or institutions. Such texts are what J.L. Austin might have called written performatives. Lawyers often refer to them as operative or dispositive.
Authoritative legal texts come in a variety of genres. They include documents such as:
Each genre of legal text tends to have its own stereotypical format, is generally written in legal language (or "legalese"), and usually contains one or more legal speech acts that are meant to carry out its intended functions. Thus, a contract almost always contains one or more promises, a will contains verbs that transfer property at death, and a deed transfers property during the lifetime of its maker.
This article begins by
origins of legal texts in the Anglo-American tradition. It
continues by surveying how they are
created. Then it reviews some of the
linguistic characteristics of these texts.
The article concludes with some comments on the implications of
of these authoritative legal texts, especially with regard to their
interpretation. Although the focus of
the article will be on Anglo-American law, the general nature of legal
remarkably similar across legal systems, although the details of their
structure and use can vary considerably.
THE DEVELOPMENT OF THE TEXT
Legal transactions must originally have been performed by means of speech, often accompanied by rituals of various types. With the development of literacy, it became possible to make a record of such transactions in writing, or even to transact them in written form. Indeed, the writing of contracts, wills, and codes of laws was an early function of literacy in many different parts of the world.
The Evolution of Private Legal Texts
In England, the birthplace of the common law that is used throughout the English-speaking world, an early type of legal text was the will, as well as grants of land and other types of property. Throughout much of the Anglo-Saxon period, wills and grants of land were made orally, usually with witnesses present, and accompanied by some kind of ritual, such as the symbolic handing over of a clod of dirt to the purchaser or recipient. After England's conversion to Christianity, a class of literate clergymen emerged. Before long, clerics began to make written records of these wills and property transfers as memorials of the transaction, especially when the gift was made to a religious institution that had an interest in preserving evidence of the transaction in case of a future dispute.
These early texts are quite clearly evidentiary rather than performative or dispositive. As Brenda Danet and Bryna Bogoch (1994:105) have pointed out, they were "after-the-fact records of the binding event that already had taken place." In other words, the performance of the legal act did not consist of the writing or the signing or sealing of a piece of paper or document. The transaction was performed orally in front of witnesses. If a written document was made, it was merely evidence of that oral ceremony, not an operative or dispositive legal document in the modern sense. This is evident from the fact that for the most part, the scribes used verbs that were in the third person and the past tense, rather than the first person, present tense verbs that are commonly used performatively, as the following introductory phrase illustrates:
HER is geswutelod an ðis gewrite hu Ælfheah ealdorman his cwidæ gecwæðan hæfð...
'Here in this document it is declared how the ealdorman Ælfheah has declared his will...' (Will of Ælfheah, Whitelock 1930:22-23)
In the late Anglo-Saxon period, however, there are indications of a new trend in which legal texts were no longer merely evidence of land transfers or wills. Over the centuries, it became the writing and signing of the document (or placing a seal on it) that constituted the legally operative or dispositive act. The legal transaction was now performed by means of the text.
The transition in the function of wills was a very gradual process. When wills were first written down, the text was considered rather weak evidence of the transaction that it purported to record. Human memory was viewed as more reliable and less subject to manipulation. But as literacy became more common, the evidentiary value of the text increased. Over time, the notion arose that legal transactions-especially, important transactions-should normally be evidenced by a writing. Eventually, a written text came to be considered an essential ingredient of the transaction. The English Statute of Wills, enacted in 1540, required that transfers of real property by will should be evidenced by a writing. Later English statutes extended the requirement of writing to transfers of personal property upon death. As a result, written evidence of a will was now essential.
The final critical development in the testamentary text was the parol evidence rule, which in the case of wills prohibits the introduction of evidence of oral discussions regarding the content of the text, subject to some narrow exceptions. Thus, what the maker of the will (usually called the testator) might have said to the lawyer who drafted the will, or what he might have said to anyone else about the contents of the will, became largely irrelevant. The evolution from oral to written transaction was now complete, at least with respect to the law of wills. What mattered now was solely the written text. That text was not just the best evidence of the legal transaction. It was not just the only evidence. At this stage, the text had become the transaction. A modern will is a specific type of legal text that is taken as the definitive expression of the testamentary intentions of its maker.
The development of English wills is a good illustration of how legal texts are introduced into a culture. In the beginning, such texts are almost always evidentiary, serving as nothing more than records of an oral transaction. Yet the text can also become authoritative, as have wills in the past few centuries. The same is true of another common legal text, the deed, which is used to convey real property. With wills and deeds, the transaction in question can only be performed by properly enacting written text.
Not all private legal transactions require authoritative written texts. Contracts are a good example. In fact, in the law of contracts we can see all three major stages in the progression from the exclusively oral to the authoritative written text. Even today, there is no requirement that a contract be in writing. A contract can be completely oral, just as in Anglo-Saxon England. If John promises Mary that he will mow her lawn tomorrow for a certain amount of money, and Mary agrees, they have made an enforceable contract. It is also possible to make an oral contract that is memorialized by a written record that contains some or all of its terms. Suppose that Mary enters an electronics store and orally agrees to buy a computer, to be delivered in a week and installed in her office. The only writing might be a sales receipt that states "computer and installation--$1000." Like an oral Anglo-Saxon will whose terms are written down by a monk, this is an oral agreement accompanied by an evidentiary text. The transaction is not performed by writing out the sales receipt. Rather, it is accomplished orally; the receipt is simply evidence of the oral event. Stated somewhat differently, the contract in this case is the agreement the parties made, not the receipt. If there is a subsequent dispute about the agreement, what the parties said to each other will be crucial.
Incidentally, as a result of the Statute of Frauds, some types of contracts are only enforceable if there is a record of this kind. This does not mean that the whole contract needs to be in writing--just that there be a memorandum of the most important terms. It basically requires written evidence that there actually was an oral agreement. For instance, many contracts relating to real property must be evidence by some kind of writing.
Finally, the parties
to a contract might decide
that they want to create an authoritative text of their agreement. Lawyers call this an integrated
agreement. If the parties decide to
reduce the entire agreement to writing, any terms that are not included
writing become legally irrelevant. When
a court needs to decide what the agreement was between the parties, it
supposed to look only at the text itself.
In other words, a text that is considered a fully integrated
constitutes the contract itself. It is
not just evidentiary, but has become authoritative in a new way.
The evolution of public legal texts, like statutes and judicial opinions (called "judgments" in England), was similar to that of private texts. Directly after the arrival of Christian missionaries in England, codes or compilations of laws began to appear, usually in the name of the king who had them written down. The function of these early codes was mainly to record or memorialize laws
that already existed orally. For the most part, the codes did not create new law, but rather created a record of law that already existed in people's minds or memories. Such texts, in other words, were mostly evidentiary.
Legislation, in the sense of enacting innovative rules of behavior, was rare in England until the end of the thirteenth century. Even then, the texts of such early legislation were not authoritative in the modern sense. According to legal historian J.H. Baker (1990: 236), medieval legislation was "not a text which had been pored over word for word by the lawmakers, with debates upon the wording." In fact, the drafting of the text of early statutes was typically done by clerks or judges after parliament had given its assent. In addition, before the invention of printing the written versions of the texts were often inconsistent with one another. The text of legislation was merely evidence of Parliament's intent at this stage, and sometimes not particularly convincing evidence.
As a result, statutes were quite freely interpreted during this period. Without authoritative and accurate texts, it is difficult and dangerous to focus too much on the words of the statute. To quote Baker (237) once again, the medieval courts "had no authentic texts available to them, and argument in court rarely turned on the precise wording of a statute." Medieval judges were able to engage in "creative exegesis," which often depended as much on policy as on the letter of the statute.
But towards the end of the fifteenth century, legislation in England underwent an important shift. It became--in the words of Plucknett (1944: 248)--"the deliberate adoption of specific proposals embodied in specific texts." The text of statutes was no longer simply evidence of the law, but constituted the law itself. The verbs no longer referred to what the king "hath ordained" or what Parliament "have established," but began to speak in the present tense of what the king and Parliament are enacting by means of the statute.
Statutes also illustrate another important distinction between evidentiary and authoritative texts. Earlier statutes were essentially a type of transcript or minutes written by a bureaucrat from the chancery regarding a decision made by Parliament. In contrast, an authoritative text is deemed to have been written by the person or body that enacted it. Of course, in reality such texts are drafted by bureaucrats or lawyers. But courts regard the words in a modern will as those of the testator, just as they consider the legislature as being the author of a statute. This attribution of authorship is obviously a large part of the reason that legal texts of this kind are viewed as so authoritative.
There was now greater respect for the written text. Accordingly, judges felt themselves increasingly constrained by the language of the text itself. As we will see later in this article, the growing authoritativeness of the text of statutes led naturally-though not inevitably-to an increasingly literal mode of interpretation.
The other main source of law in a common law system is judicial opinions. A judicial opinion contains the reasoning of a judge in support of a decision. Early English judges no doubt gave their opinions orally. The first written documents containing judicial pronouncements in England date from the end of the 13th century. These texts, as might be expected, were at first merely evidentiary. They contained summaries of the arguments of lawyers and the decisions of judges. They were originally intended as learning tools for law students. Critically, these reports of what happened in court were not written by the judges themselves, but by the students or practitioners who were present in the courtroom.
It seems that by the fifteenth century lawyers were beginning to treat descriptions of court proceedings not just as interesting or educational reports of what happened in court, but as actual sources of law. This, of course, was the beginning of the common law, where judges create legal rules by deciding cases that function as precedents for later decisions.
Yet the text of judicial opinions never became authoritative in the way that statutory text is. English lawyers were well aware of this distinction, referring to statutes as lex scripta ("written law"), which they compared to the lex non scripta of the common law. To this day, the common law remains relatively oral, especially in England. English judges, including appellate judges, can still decide cases orally, and their opinions may or may not be reported. Although it has become unusual, it is still possible for an English lawyer or judge to invoke an oral (unreported) decision as a precedent that should be followed in a later case.
The highly authoritative nature of the statutory text has promoted a tendency to interpret statutes by close analysis of the words of the text. Judicial opinions, in contrast, are interpreted more by legal reasoning than by means of textual analysis. To decide the rule established by a precedential case, a common-law judge or lawyer traditionally must consider the facts of the case and how it was decided, and then use reasoning to determine which legal principle was necessary to produce the outcome. That principle was known as the holding or ratio decidendi of the case. The text of the opinion is generally felt to be very helpful in identifying the holding, but it is traditionally not considered conclusive.
It is worth observing
opinions are more textual in the United States. At
the end of the eighteenth century, American judges began to
issue written opinions. In fact, most
American jurisdiction require it. Even
though books containing judicial opinions are still called "reports"
in the United States, they are no longer the result of a "reporter"
going to court and "reporting" the proceedings. Rather,
they consist almost entirely of
opinions written by the judges themselves, and are normally published
verbatim. The end result is that
today--at least, in the United States--what an appellate judge
during oral argument--has no value as precedent. What
matters, for legal purposes, is what appellate judges write
in their opinions. This has led to a greater emphasis on the text in
determining the holding or ratio decidendi of a case.
Judicial opinions are still felt to be different from statutes
the United States, but the distinction is starting to blur.
THE CREATION OF LEGAL TEXTS
The Enactment or Execution of a Text
Legal texts, especially authoritative texts, tend to be created or executed in very formal ways. Wills are a good example. The text of the will itself is quite formal, in the sense that most wills follow a relatively rigid structural format and are written in what is commonly known as legalese. Once the will has been drafted, the testator typically gathers in a room with two witnesses. The testator declares that this is his will and signs it in the presence of the witnesses. The witnesses, who must see the testator sign or acknowledge the will, then each sign the will as well.
Although the rules are less strict than they once were, defects in the execution process can still be fatal. Many common-law jurisdictions require that each witness sign the will in the other's presence. Suppose that a testator goes to one witness, declares that a document is his will, and has the witness sign it. He replicates the process with another witness the next day, outside of the presence of the first witness. In such jurisdictions, the will is not valid.
There are a number of reasons that the text of wills must be executed with these relatively strict formalities. The main reason is to ensure that this text is, in fact, intended to be the testator's will. It is not just a draft of a will, or a casual list with ideas of who should get the testator's possessions when she dies. Rather, it must be meant to be a legally operative document that will actually give away the testator's possessions upon death. Anyone who goes through the rigid formalities of executing the will should be aware of the act's consequences. In other words, the formalities and ritual help us identify this unambiguously as an authoritative legal text.
The situation is different with contracts, which as we have observed can be oral and relatively informal. Certain types of contractual transactions must be evidenced by a writing, but most need not be. Even when the provisions of an agreement are reduced to writing, the signing of the writing can occur without any particular formalities (although giving a handshake or drinking a glass of champagne may be customary in some situations). The greater informality makes sense in light of the fact that most people engage in numerous contracts during their lifetimes, such as ordering a cup of tea or promising to pay the owner of a parking lot for the privilege of temporarily parking one's car there. Making authoritative texts of the content of each agreement would not be practical.
The lower level of formality does have a drawback: it may be unclear whether the parties have made a contract or not. Many contracts cases revolve around whether the parties made an agreement that is legally enforceable, or whether they were merely involved in preliminary discussions or negotiations. In contrast, someone who has gone through the formalities of executing a will is highly unlikely not to know that the result is a legally valid will.
In the area of public
like wills, are very textualized-usually are enacted with great
according to established procedures.
Since the early 1400s it has been established in England that a
must be debated and accepted by both houses, lords and commons, and
receive the assent of the monarch.
Most American jurisdictions have similar requirements embodied
constitutions. Promulgation or
publication may also be required. The
purpose of these formal procedures is to guarantee that it a piece of
parchment does, in fact, constitute
a particular type of authoritative legal text: a statute.
What Does the Text Include?
Once a legal document has been formally executed or enacted, it would seem to be a trivial matter to determine what is part of the text and what is not. It is certainly true that the formalities of executing a text like a statute usually make the content of the statute sufficiently clear. Only text that has gone through the formal enactment process is part of the relevant statute. Explanatory materials or reports by legislative committees are not part of the text, although they may sometimes be helpful in resolving ambiguities. The same holds for wills. Whatever textual material comes after the title "Last Will and Testament," and before the signature, is part of the will. Such clarity is one of the reasons for requiring formal execution.
A consequence is that additions and changes to the text must be made in an equally formal manner. A legislature cannot delete a sentence in a statute by ordering the clerk to cross it out on the official copy, even if a majority votes in favor of the idea and it obtains presidential approval or royal assent. Rather, the legislature must enact a new statute, with all the requisite formalities, that declares that the previous statute is to be amended by striking out the sentence.
Formalities required for textual modification of private documents are usually somewhat less strict, because they were originally enacted or executed with fewer formalities. There are a number of exceptions, of course, such as written contracts and wills. Like a statute, a will can be modified only by a formal amendment, called a codicil, which must be executed following the same procedures as the will itself.
While the legislature may be expected to know how to properly amend a statute, ordinary citizens are far less aware of the textual conventions of the law when it comes to private legal transactions. Suppose that Aunt Hattie, who had no children, has a will leaving all her property to her favorite charity. After she dies, a list is found in her safe deposit box that gives various personal property to her nieces and nephews upon her death. Is the list part of the text of the will? Although there are exceptions, the answer is no in most Anglo-American jurisdictions. The reason is that the list was not properly executed, so it never became authoritative text and therefore has no legal effect. Aunt Hattie would doubtless be dismayed by the outcome.
Consider another example, again from the law of wills. Uncle Bob has a provision in his will giving $5000 to Alice, his favorite niece. A year before his death he crosses "$5,000" and writes above it "$10,000." What does Alice get? In many common-law jurisdictions, the interlineations is ineffective, and Alice gets the original sum of $5000. In others, the act of crossing out the words or numbers will be effective, but the insertion of additional text (the number "$10,000") was not done with proper formalities and therefore is invalid. Alice gets nothing. The reason, of course, is that a person cannot change authoritative text by such informal means. To modify a will, you have to execute a new will or a codicil with all the required formalities.
A final example comes from contract law. Suppose that a business owner sends a letter soliciting bids to buy ten new computers, to be installed by the seller. The letter states that the computers are meant to run a complex software application. A vendor offers to sell and install the computers for $50,000 and sends the vendor a contract, which both the business owner and the vendor sign. Before signing, the vendor assures the business owner that the computers will run the software. The written contract sets out the terms of the sale, states that the computers are not warranted to be fit for any particular purpose, and contains a "merger" or "integration" clause declaring that this is the entire agreement between the parties. If the computers later do not run the software properly, many people would be surprised to learn that traditionally courts do not consider the oral assurances about the software to be enforceable, because they were not contained in the text of the contract. The integration or merger clause essentially turns the written document into not just a record of the agreement, but an authoritative text that has become the contract itself.
In recent years, courts have tried to mitigate the harshness of these textual conventions in various ways, especially where ordinary people with no legal training were involved. Even with such reforms, however, it is clear that legal text is something quite different from ordinary speech and writing.
Perhaps the closest analogy to legal texts are religious texts like the Bible. For many believers, the Bible is not just a record of the relationship between God and his people, or inspirational writings by saintly people. Rather, they view it as an authoritative text that contains the words of God himself. Though the words were drafted by mere mortals like Moses and St. Paul, it is God who speaks through the text. This is quite parallel to legal texts, like statutes and wills, which are drafted by clerks or lawyers, but are deemed to be the authoritative expression of the legislature or testator in whose name they were written. This tends to promote a very literal interpretation, as well as strong prohibitions against adding to or subtracting from the text.
Expanding the Text by Incorporation
Even though the rules relating to the formation and revision of legal texts can be quite rigid, the concept of text is in some ways surprisingly abstract. It is generally the case that once you enact or execute an authoritative legal text, like a will or statute, only what is within the four corners of the document is part of the text. Things outside the text, whether spoken or written, are relatively less important, or completely irrelevant, in determining the nature of the transaction governed by the text.
We have also seen that one way to add to the text is by means of an amendment or codicil, which must be executed with full formalities. An interesting aspect of the process of amendment is that legally the result is that there is now one new text--even though that text is physically contained in two documents. The two documents, original and amendment, are molded into a single text. Thus, if a will dated 1980 contains the clause, "I give $5000 to my niece Jane," and a codicil executed in 1990 states, "I revoke my previous gift of $5000 to Jane and substitute the sum of $10,000," the testator's will is deemed to have the following text: "I give $10,000 to my niece Jane." This is true even though there may be no physical document containing those exact words. In many jurisdictions, a principle called "republication by codicil" has the further effect of "updating" the will, so that all of the text is now considered to have been executed in 1990, even if actually written in 1980.
Another way to add to the text is by means of what is called incorporation by reference. This is a procedure that allows a document outside of the will itself to be made part of the testamentary text. Thus, if Aunt Hattie had added a clause to her will stating that she incorporated by reference a list of personal property located in her safe deposit box, the list becomes part of the text of her will and the property will go to her various nieces and nephews.
An interesting aspect to incorporation by reference is that the document must exist when the will is executed. If Aunt Hattie tries to incorporate a document that she plans to write in the future, it does not become part of the text. Moreover, if she changes the list after the will was executed, many jurisdictions deem the changes to be ineffective. The reason is that she can only change the text of the will by means of the required formalities relating to execution of wills.
So we see that despite
the rigid rules
relating to how it is created and given effect, the legal text is
rather abstract concept. A testator can
execute a will in 1980, make a list of gifts of personal property in
execute a codicil in 1990 that makes some changes to the 1980 will and
incorporates the list by reference. All
of these documents, molded or integrated together, constitute a will
STRUCTURE AND LANGUAGE OF LEGAL TEXTS
The most salient feature of the structure legal texts is that they are highly formulaic or stereotypical. Some texts can be quite elaborate in terms of structure, of course, but routine legal documents tend to follow a predetermined structure that changes little over time. A statute, for instance, normally has some or all of the following elements:
An act to consolidate certain enactments relating to the constitution and proceedings of the Scottish Land Court...
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in present Parliament assembled, and by the authority of the same, as follows...
(1) The Scottish Land Court...shall continue in being.
(2) The Land Court shall consist of [the following persons]....
(5) One of the members of the Land Court shall be a person who can speak the Gaelic language...
Exceptions or provisos:
Subsection (3)(b) above shall not confer...
Short title or citation:
This Act may be cited as the Scottish Land Court Act 1993.
Additional possible clauses, which typically come at the end of a statute, may relate to matters such as administration of the act, enforcement, transitional provisions, repeals of earlier acts, and schedules.
Although the basic structure of statutes has remarkably stable for hundreds of years, there have been some changes. In the past, acts tended to have long preambles, usually beginning with the word "whereas." They occurred directly before the enactment clause and recited the mischief that the statute was intended to remedy. Preambles have largely gone out of style. A relatively modern innovation, on the other hand, is the use of definitions, which specify how a word or phrase is to be understood in the act in question.
Private legal documents like contracts also tend to have a relatively fixed structure. Because there are a large number of different types of contracts, however, there are many different formualas or templates in use. Wills, as might be expected, follow a more routine structure, since they virtually all have the same purpose: the transfer of property at death, as well as some ancillary functions such as appointing an executor or a guardian for minor children. A typical will almost always bears the caption "Last Will and Testament." The introductory paragraph is typically something like the following:
I, _______, of __________, do hereby make, publish and declare this as and for my Last Will and Testament, hereby revoking all wills and codicils thereto heretofore by me made.
The introductory paragraph is generally followed by several numbered paragraphs (or "articles") that relate to payment of funeral expenses and debts, appointment of an executor, and-if there are minor children-the appointment of a guardian.
The essence of the will consists of the bequests (gifts of property or amounts of money). These also tend to be phrased in ritualistic and stereotypical language. Most wills begin with a list of specific bequests:
I give and bequeath to ______ of _____ the sum of ______, to be his absolutely and forever, if he be living ninety (90) days after my death...
The specific bequests are generally followed by a gift of what is called the residue (all the rest of the estate) in the residuary clause:
I give, devise and bequeath all of said rest, residue and remainder of my property which I may own at the time of my death, real, personal and mixed, of whatsoever kind and nature and wheresoever situate, including all property which I may acquire or to which I may become entitled after the execution of this will, absolutely and forever, to _____ ...
The body of the will usually ends with a phrase such as the following:
IN WITNESS WHEREOF, I have hereunto set my hand and seal at _____, this ___ day of _____.
The archaic nature of these texts is highlighted by the fact that many modern wills continue to refer to a seal, even though the testator merely signs the document, and it is inconceivable that a modern judge would invalidate a will based on its absence.
Next comes the signature of the testator, at what is called the "foot" of the will. Beneath the testator's signature is normally what is called the "attestation clause" and the signature of two witnesses.
Wills and statutes are but two examples of the archaic and stereotypical structure of many legal texts. One of the main reasons for this repetitious structure and language is that the lawyer who draft these wills tend to base their work on forms that they have inherited from older lawyers or which they find in books of forms. Not just the structure, but the language itself tends to be ritualistic and archaic, as shown in the next section.
Legal language, broadly construed as the language of the legal profession, has been the object of numerous studies, many of which advocate reforming it to make it more understandable to the ordinary citizens whose lives and fortunes may be affected by it. Many pejorative adjectives have been used to describe the language of the law, including "wordy," "unclear," "pompous," and "dull." More specifically, the literature on legal language suggests that it differs in a number of ways from ordinary speech, to wit:
1. Technical terminology (such as seisin, testator, libel per quod, hedonic damages).
2. Archaic, formal, and unusual or difficult vocabulary (such as said/aforesaid; to wit; hereinafter).
3. Impersonal Constructions (avoidance of the first and second person pronouns "I" and "you"; judges referring to themselves as "the court").
4. Nominalizations ("the injury occurred...").
5. Passive constructions ("the girl was injured...").
6. Multiple Negation ("innocent misrecollection is not uncommon").
7. Long and Complex Sentences (sometimes hundreds of words long).
8. Wordiness and redundancy ("I give, devise and bequeath the rest, residue and remainder of my estate...").
The list above contains some of the more commonly mentioned ways that legal language is thought to differ from ordinary speech. Collectively, these features are often called legalese.
It is interesting to observe that when the literature refers to features of legal language, it is almost always in reference to written legal language. The illustrations come from pleadings, contracts, wills, statutes, judicial opinions, and other legal texts. Recent studies of courtroom interaction or conversations between lawyers and clients reveal that the members of the legal profession normally do not speak legalese. A lawyer arguing to a jury, or discussing a matter with a client, or even arguing a point of law to a judge, wishes to be understood and generally employs formal but fairly ordinary standard English. Lawyers and judges inevitably use a lot of technical vocabulary, but their speech usually does not contain an inordinate amount of legalese.
In reality, many or most of the commonly-mentioned characteristics of legalese are not so much features of legal language per se as they are features of authoritative legal texts. In fact, it is generally true that the most authoritative texts (statutes and wills) tend to have the highest percentage of legalese in them. Judicial opinions, which are not authoritative text in the same way that statutes are, tend to be written in more ordinary English. The style of opinions is usually formal, of course, and contains a fair amount of legal jargon, but it does not have an inordinate amount of legalese.
To a large extent, legalese-and thus, the language of legal texts-can be considered to be an extreme version of formal written language. Research by linguists into the differences between speech and writing has pointed out that, as a general matter, written text is more planned and speech more spontaneous. Related to this difference is that a hearer must process an utterance as it is being spoken, while a reader can go over a written sentence again and again until she has figured it out. Such differences are easy to exaggerate, but it certainly is true that legal text is planned in advance, which makes it possible for sentences to be much longer and more complex than in speech, as well as more dense. Written language has also been correlated to greater occurrences of nominalized verbs and passive constructions (Chafe 1982), both of which are also considered to be features of legalese.
Interestingly, there is one prominent aspect of legalese that is not necessarily associated with formal writing: its wordiness and redundancy. Consider the phrase: "I give, devise, and bequeath the rest, residue, and remainder of my estate, real and personal, and wheresoever situate..." This could just as well be phrased as: "I give the rest of my estate..." Wordiness and redundancy is explained by idiosyncratic features of the legal profession, including its conservatism, a desire to "cover all the bases," and an attempt to discourage clients from trying to draft their own legal texts without the assistance of a lawyer.
Although both the
structure and language
of legal texts tends to remain formulaic and archaic, there is a
movement that favors making these texts more accessible to both the
the legal profession. Particularly in some
Australian states, parliamentary drafters have experimented with the
of statutes, adding flow charts and examples to help readers understand
content. In various parts of the world,
there has been a movement to make the language of legal
that affect the welfare of ordinary consumers-more comprehensible. There is much
still to be accomplished,
Interpreting Legal Text
One of the most oft-observed features of legal interpretation is the tendency of many judges and lawyers to interpret legal texts in relatively literal or acontextual ways. For instance, English judges during the eighteenth and nineteenth centuries developed the "Plain Meaning Rule," under which an interpreting judge was supposed to look at the text of a legal document and determine whether its meaning was "plain," based purely on the text contained within the four corners of the document. If so, the meaning of the document should be derived solely from the text itself, without reference to any "extrinsic evidence" (outside sources). Thus, the meaning of a statute could not take into account statements made by legislators during debates, or reports by legislative committees. What a testator said to his lawyer was likewise deemed irrelevant in determining the meaning of the will that the lawyer subsequently drafted. Only if the meaning of the text was ambiguous could judges appeal to outside sources to help determine its meaning. Thus, if a man's will left his earthly possessions to "my wife," many judges would hold that this referred unambiguously to his legal spouse, ignoring extrinsic evidence that he had abandoned his legal spouse many years ago and taken up with another woman whom he habitually called "my wife." Perhaps morality can justify such an outcome, but ordinary principles of language can not.
The Plain Meaning Rule held sway in England throughout the twentieth century, although it has recently lost some of its force. In the United States, it came under attack by both judges and legal academics over the course of the previous century. Many courts began to look at the outside evidence to determine whether the language of a text really was as plain as it seemed. If the external evidence revealed an ambiguity, they would then consider the evidence in determining the meaning of the text. In the area of statutory interpretation, it became relatively acceptable to look at a statute's legislative history to help determine the meaning of an ambiguous word or phrase. Sometimes a judge's view of the intent of the legislature, or of the purpose the statute, might even justify going beyond what seemed to be its "plain" meaning.
At the end of the twentieth century a counter-revolution arrived in the form of what is now called "Textualism." Its strongest advocate is Justice Antonin Scalia of the United States Supreme Court. Essentially, textualists urge judges to focus more on the text of a statute, and less on the intentions of the legislature. In that sense, textualism could be viewed as attempting to resuscitate the Plain Meaning Rule.
Those who oppose textualism tend to place greater emphasis on the intentions of the legislature (intentionalists) or on the goal or purpose of a statute (purposivists). They often make the linguistic argument that textualism rests on a misguided or simplistic view of language. No text can have a meaning independent of the intentions of its maker. In fact, the search for meaning invariably focuses on what a speaker meant by an utterance.
It is certainly true that in ordinary spoken language, we normally aim to determine the meaning that a speaker intended to convey, and use any pragmatic information that might be available to determine the speaker's communicative intentions. Whether we inevitably use the same strategy to interpret written language, and in particular, authoritative legal texts, is less clear.
One important difference between spoken language and written text is that writing tends to be more permanent than speech. This is certainly true of legal texts, which on occasion remain in force for hundreds of years. And writing tends to be more planned, while speech is usually relatively spontaneous. It is certainly true that legal drafters plan texts carefully in an effort to cover every base and foresee every future contingency. They will never completely succeed, of course, but the fact that they try is in itself significant. Judges will therefore be inclined to hold that if a text would logically be expected to deal with contingency X, but does not, the text should be interpreted as not extending to X. For example, if a statute forbids motorized vehicles, bicycles, and roller skates in a park, judges would traditionally hold that it does not extend to skateboards, even though that might seem to come within the purpose of the statute. If the legislature had intended to include skateboards, they could have said so.
A related difference is that a speaker is usually engaged in face-to-face contact with the hearer, whereas a writer normally is not. Consequently, it is possible for a speaker to monitor whether the hearer seems to understand-and, if not, to explain something again in different words. Written legal texts usually do not allow for such subsequent explanation and elaboration. Thus, the drafter must take time be as clear and precise as possible, because he will not have a second chance to explain something. This is why legal drafters tend to be so obsessed with precision. Whether they achieve it is another issue, but judges who interpret a text assume that the drafter chose his words carefully. If a drafter of a statute uses two words that are similar in meaning, such as "residence" and "domicile," the assumption will be that this is not free variation, but that two distinct meanings were intended.
Moreover, spoken interaction often involves people who know something about each other, or who can infer certain information about their interlocutor based on the situation in which they find themselves. Face-to-face interaction also allows for the communication of additional information by nonverbal means. The hearer may thus use, in addition to language, shared background information or nonverbal cues to determine the communicative intentions to the speaker. Writers must normally signal all their intentions verbally. This difference promotes a somewhat more literal interpretation of written texts. An utterance spoken to a friend might well be understood--as intended--to be a joke or ironic comment, based on what the friend knows about the speaker and the speaker’s tone of voice. Someone who read the same words on paper might take them more literally.
Because writing is relatively permanent, legal drafters can create texts that might have to be interpreted many years or even centuries in the future by an unknown audience. For the most part, all the drafters have at their disposal to accomplish this aim is the written word. In terms of background information, the main thing drafters can assume about their audience is a basic knowledge of the world and the legal system. Such texts will therefore have to be written in a highly autonomous style, in which the drafter aims to place into the text as much information as is needed to interpret it (Kay 1977). The ideal is that a legally educated reader will be able to interpret the text without recourse to other information, even if situated thousands of miles away or many years later. Critically, this ideal provides the underpinnings of the Plain Meaning Rule. Lawyers are deemed to place all relevant intentions into the text, and judges who interpret the text presume that they were successful.
Of course, this idealization of how legal texts are created and interpreted flies in the face of what we know about human language. Language is not always clear, and there is no such thing as a fully autonomous text. Most members of the legal profession are aware of these limitations, which explains why even judges who adhere to the Plain Meaning Rule do not apply it when the text is ambiguous. Nonetheless, judges have often had an inflated notion of how the textual conventions of the profession enable judges to interpret a carefully drafted text without recourse to outside materials.
Even if the profession's textual conventions facilitate or encourage a relatively literal mode of interpretation, it does not follow that a textualist approach to interpreting legal texts is inevitable. of course, if the "plain meaning" of the text seems to correspond to the evident intentions of its author, there is unlikely to be an issue for the courts to decide. Problems arise when the apparent meaning of the text is not consistent with evidence regarding the intentions of its makers. Or a legal document might contain a "gap" in that it does not address a particular issue that one would normally expect to be included. In that event a court might need to decide whether the gap was intentional, indicating an intention not to legislate on the subject, or an oversight, in which case the court might wish to determine what the legislature would have done if it had considered the matter.
A textual approach privileges the text over authorial intent. If there is an ambiguity, text will trump evidence of intent. If there is a gap, a judge will deem it to be intentional, rather than trying to fill the gap according to the probable intention of the author. This approach flows forth naturally from the textual practices of the legal profession. An intentionalist approach, on the other hand, tries to carry out the intentions of the legislature, even when the text seems to be ambiguous or incomplete. It is more consistent with the interpretive practices that speaker employ in ordinary conversation. After all, the point of ordinary language understanding is to determine what the speaker meant by an utterance.
The "best" approach to interpretation of legal texts-particularly statutes--is ultimately a political question rather than a linguistic one. Different legal systems have had varying interpretive practices over time, depending largely on the current view of the institutional role of lawmaker and judge. In a democratic system where lawmakers are elected by popular vote are deemed to express the will of the people, it makes sense for judges (who are often not elected) to carry out as best they can the evident intentions of the legislature.
Yet at times it may be more important to preserve the integrity or cohesiveness of a legal text. Criminal law is perhaps the best example. In this area, the rule of law requires that a statute clearly inform citizens what types of conduct will subject them to punishment. It should be possible for a citizen to know, based upon reading a statute, that certain conduct is prohibited. Such a citizen should not be forced to hire a lawyer to investigate whether there might be some legislative history buried in an archive that could potentially enlarge the statute's scope. If the penal code does not ban conduct that the legislature would like to prohibit, the legislature should amend it. In this way, the integrity of the text can be preserved.
Textual integrity may also be important in private legal transactions. Parties to a commercial contract, especially when they cannot entirely trust each other, may find it useful to stipulate that their agreement consists only of the written text of the contract, which is to be interpreted according to the textual conventions of their business. An aging testator with squabbling descendants may also derive some measure of comfort from setting down her wishes in the form of a definitive text that can only be changed by following a strict set of formalities.
In many other situations, it makes little sense to elevate form over substance. If a statute consists of directions to government bureaucrats, the need for a coherent text is usually not all that pressing. As long as the bureaucrats can determine from the language of a statute what the legislature intends for them to accomplish, they should carry out those intentions. Moreover, the bureaucrats in question should have a familiarity with the legislature's policies and can even hire lawyers to research the legislative history of a statute, if need be. Because the bureaucrats and the legislature share a great deal of background information, the legislature need not speak as clearly and comprehensively as it must in the penal context.
The nature of the audience should also be considered. If a legal document like a contract or will is produced by a person who is untrained in the law, and who is therefore unfamiliar with its textual conventions, there is no logical reason to interpret that document in a textual way. Something that is written in ordinary English should be interpreted as such.
interpretation involves a
symbiotic relationship between the encoder and decoder of language. To the extent that language is encoded using
particular textual conventions, it should be decoded taking those
into account. If,
on the other hand, it
is encoded as ordinary language, it should be decoded as ordinary
It has long been known that the language of the legal profession is different from ordinary speech. To some extent, those differences can be accounted for by the fact that legal documents tend to be drafted in formal literary English. Many of the features of legal language are also found in the more formal written varieties of ordinary English.
Yet there are also some important ways in which legal texts are quite distinct from other writings. This results in large part from the textual conventions of the profession, which enable the creation of a text which, once properly enacted or executed, comes to be viewed as the authoritative expression of the intentions of its author. The formal creation of such texts tends to promote a relatively textual, or literal, interpretation.
The formalities surrounding the creation and interpretation of authoritative legal texts can provide a degree of certainty to their makers and users. But those same formalities, because they differ from how ordinary people tend to write and understand documents, can also frustrate the intentions of legislators, testators, and others deemed to be the authors of the text in question. In all areas of the law, there has been a tendency in recent years to draft and enact legal texts in less formal ways, and to interpret them in ways that are more consist with the intentions of their makers. With the exception of some areas of the law where authoritative text plays a particularly important function, this trend seems likely to continue.
Less clear is the impact that new technologies will have on legal conventions relating to text. It is now possible to embed hyperlinks in legislation that contain definitions or cross references to other parts of the law. And text no longer necessarily consists of ink marks on paper. How this will change the legal conception of text is unclear, but it seems inevitable that it will.
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