Why does legal English continue to remain archaic?

Question

Perhaps this is a question for Law.SE if one exists, but I am asking here as there are other nice questions on English history.

There is some historical development account presented in Wikipedia, but I find it grossly inadequate to answer the question. English has always been a language that borrows and enriches itself, but retains its original flavour all the same. Why has a similar linguistic edification not happened with legal English? The question, in its elementary form:

• Why has legal English simply not moved on?

Answer 1

Because every attempt to change it makes the law more complex and more expensive. The archaic terms, like 'plaintiff' and 'writ' had clear definitions, partly because they had been hammered out over generations. A well-intentioned attempt to make it easier for the layman to understand (which every new Government tries to bring in) replacing them with 'claimant' and 'claim form' ends up causing confusion at the margins: if one partner in a marriage starts the divorce process but makes no financial claim while the other does, which one is the claimant? A writ was different in important respects from an originating summons; if both are replaced by a Claim Form, does the distinction survive? And, of course, confusion at the margins is where lawyers are needed, and where it gets expensive.

This is not pure guesswork on my part; in 2000, the British courts made a huge effort to simplify the civil courts' language and procedure. Everybody agreed that it was overdue, as the Rules of the Supreme Court were over a thousand pages long, and had to be re-issued every two years. Several of the brightest people in the country spent years rewriting the rules, and I was one of the people who had to try to make it work. It failed miserably; it turned out that words mean different things in different contexts (as any contributor here knows), so to replace one archaic term needed several near-synonyms, and each occurrence had to be scrutinised by the whole committee to see which applied. In practice, of course, this was impossible.

(As an analogy, try to debug a thousand-page program where each occurrence of each variable has to be replaced with one of six alternatives, but nobody knows which; and, of course, regular updates change both the variables and the structure while you're working. Large parts of it are safety-critical, since it bears on the liberty of the subject; and it has to be compatible with other systems across the world, in a variety of languages and with different philosophies.)

The current Civil Procedure Rule book is heading towards two thousand pages, and is replaced every year, with quarterly updates. And, of course, the expense and confusion were not blamed on the politicians who ordered the change (and moved on before it happened), but on the lawyers and civil servants.

TL;DR: Because archaic English is clear and logical, while modern replacements are more confusing than helpful.

Answer 2

As TimLymington and others have pointed out, the old, archaic words have strictly-defined meanings that a "more common" word does not have.

I'd like to also point out that legal documents must be unambiguous to an extent not required of most writing. Suppose in a novel the author writes, "Bob dropped by the office where his wife was waiting with her boss. He kissed her briefly and they left." Who did Bob kiss, his wife or her boss? Technically the language is ambiguous, but I think we would normally assume that the writer meant that he kissed his wife. If a few paragraphs later we learn that Bob is having an affair with his wife's boss and his wife doesn't mind, and so he is kissing her boss, we might be annoyed at the writer for the momentary confusion, but it's no big deal. We figure it out and move on.

But suppose a legal contract says, "Acme Trucking Company will deliver the shipment to the Beta Company warehouse. They will pay the invoice from Nadir Machine parts within 30 days." Who is the "they" who is supposed to pay for the shipment, Acme or Beta? Any reasonable person would say that of course the trucking company isn't expected to pay for the merchandise, that's the receipient's responsibility. But the text is ambiguous, and a lawyer could argue that the contract means that the trucking company must pay for the goods delivered to Beta. I'm sure a smart lawyer could come up with some plausible-sounding reason why this was part of the deal and thus the intended meaning of the contract.

I once got burned when a legal document that I was a party to mentioned a certain $4000 in assets, and then later in the document said that I had the rights to this $4000, but failed to clearly connect the reference that it was mine to the earlier statement describing it. So the lawyer on the other side said that this was a different $4000 and that the ownership of the first $4000 was therefore unspecified, and so his client was entitled to half of it. We eventually settled the matter by me agreeing to give him ... I forget how much ... toward the legal bills that his client was unable or unwilling to pay, and thus the client got nothing from the negotiations and it all went to the lawyer. But that's another story.

Anyway, my point is, legal documents are verbose because they dare not risk leaving any case not covered, because a smart lawyer for the other side may try to exploit any such ambiguity. While for most documents you could say, "Oh, just use your common sense", or "If you don't understand, ask me and I'll explain it," you can't do this with legal documents.

Could they be less verbose and use less mysterious language than they do? Probably. But it's not the slam-dunk easy thing to do that you might imagine.

Answer 3

Broadly speaking, I think the answer is "because there's not very much incentive for lawyers to change things" unless in a particular case particular wording is shown not to be adequate. The wordings/expressions that over time 'appear to work' stick, with little motivation to meddle with them.

Incidentally, this isn't a phenomenon unique to English.

Answer 4

TimLymington has hit the nail on the head with his excellent answer.

The key thing here is that English Common Law is based on cases. In many situations there is no actual written law passed by parliament, just eight centuries worth of previous Judgements. Lawyers have cited three hundred year old precedents in cases involving electronic commerce.

So changing the language used is actually a pretty drastic step, which would invalidate much of this case law and involve establishing a new set of precedents over many expensive court cases. By the time this process was complete the language used would probably be considered archaic by most English speakers.

Answer 5

I sometimes need to translate 16th century legal documents from the Latin of the time. I have noticed that when they are preparing a document for a client they are very verbose; however when doing something like recording proceedings for a manor court, they shorten it up and abbreviate it all to death (e.g. "ufus" for "ad usus et fructus.") I have been told by those more learned that the reason was that at the time they charged clients by the word. I suspect that today charging by the hour still translates into more words = more money.

Answer 6

Simply put, it's the Semantics. Good law documents have to be precise and perfectly clear, unambiguous and not open to interpretation. Contrast this to religious documents where it's exactly the opposite!

The use of uncommon ( archaic ) words is because no one can claim they don't know what these words mean in context of a legal document. There are decades if not hundreds of years of precedent to what these words mean in a legal context.

The complexity and verbosity is because English is a very contextually loose language; both grammatically and semantically. You have to be perfectly clear in what you are trying to communicate because it could cause your client lots of harm; maybe even their freedom, depending on the situation.

The same problem exists in writing requirements documents for software; simple terms like MAY, SHALL and MUST are always defined at the beginning of the document by referencing another document that defines what they mean.

Answer 7

The legal discourse aims to emulate the precision of formal logic. The main goal and the origin of logic was to convince beyond doubts. And that is also needed when you need to be, or to be seen as, just. Logic, and mathematics in general, tends to address this precision by using formal languages as opposed to common language. One of the features of formal languages is that they have fixed grammatical rules, and fixed terminology.

Sometimes the terminology has to be invented, like noetherian, or borrowed like ring. Then you define these terms to have very specific meanings. Specially interesting is when the terminology is borrowed from common language and the meaning assigned has nothing to do or is largely unrelated to the meaning in the common language.

Now, what occurs in the legal discourse is similar. One shouldn't see the use archaic language in legal English as part of the common language. Instead, you can imagine they are part of a formal language (or a language that attempts to be as formal as possible). Well, I should say this is roughly the case, because legal discourse is much closer to common language, and it has to be mixed and understood as this by many, than logic.

The fact is that since the goals of both are similar, they tend to present forms that are similar. As in mathematics you don't want to be changing the terminology in broadly used and well defined concepts, you try not to do the same in legal English.

Answer 8

Let me offer a controversial point of view.

First, let's be clear what we mean by "legal English". I suspect you mean the language used in contract drafting (something I now do for a living) rather than in the drafting of statutory material or that used by judges in giving judgment or written reasons. They are not in practice quite the same.

For contract drafting, language is not at all static, nor is there any reason for it to be so.

The reason for conservatism is that many lawyers who draft contracts - and a great many more who are not lawyers - rely on precedents. People are reluctant to change language used in precedents, either (i) out of the belief that the language is well tested (which may be mistaken); (ii) because of shortness of time - the reason for using a precedent is to save time; or (iii) very often because they lack the confidence or understanding to do so.

In English law, the meaning of words in a contract is essentially a matter of fact (the approach to how to determine that meaning is a matter of law of course) which means that when juries existed, it would be a jury matter and importantly not subject to precedent. This means that, strictly speaking, the decision of a court on the meaning of a word is not precedential.

Various people have suggested that words have developed well defined meanings and that is why they continue to be used. This is in general terms an error. There are certain words that are well understood but they are mostly technical terms and even then there is considerable doubt about them. For example "indemnify" or "indemnity" are really a lot less clear when you drill down to meaning than they should be.

Ultimately the job of an (English) court is to try to work out what a hypothetical objective observer would have understood the parties to mean by the language they used. That observer is not bound by precedent.

This is why the best contract drafters - not just here in England but internationally - do try to avoid hackneyed phrases or archaisms and why there is considerable work done to try to modernise usage. See for example the work of Ken Adams, who has been working hard in this direction in the USA. The best precedent books, at least in contact and corporate law, use modernised language and do evolve over time.

In summary: legal English does and is moving on steadily, but at an unequal pace in different contexts.