CHARACTER OF LEGAL LANGUAGE: A CRITICAL ANALYSIS

Project submitted for the internal assessment

In the first semester of the academic year 2021-22

LEGAL METHODS

Submitted by-

Arivusudar. A

(BC0210007)

Submitted To-

Ms. Sumedha Sarkar

Course faculty, Asst. Prof of law, TNNLU

TAMILNADU NATIONAL LAW UNIVERSITY

(A State University established by Act No. 9 of 2012)

Tiruchirappalli

Tamilnadu-62009

JANUARY-2022

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 DECLARATION

I Arivusudar . A., Register Number- BC020007, hereby declare that this Research Paper /
Research Project work entitled “Character of Legal Language : A Critical Analysis” , has been
originally carried out by me, under the guidance and supervision of Ms. Sumedha Sarkar,
Assistant Professor of law, Tamil Nadu National Law University, Tiruchirappalli – 620-027. This
work has not been submitted either in whole or in part of any Degree / Diploma at any University.

Place : Tiruchirapalli

Date : 3rd January, 2022

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 CHARACTER OF LEGAL LANGUAGE: A CRITICAL ANALYSIS

INTRODUCTION

Language is the effective tool for communication. Use of language has become inevitable in all
fields of work, because it not only conveys our thought process to others but also helps us to
understand what other people try to communicate. Language being evolved into different forms, has
now laid down the foundation for the legal language to set its jurisdiction in the field of law. Legal
language is a distinctive part of language which involves detailed information about the legality.
Law employs language to create relationships between people and institutions, and these language-
defined and language-created relationships can be of enormous import. 1 Law and legality are not just
mere profession, but they are considered to be intrinsic skills and those who master these skills tend
to master the interpretation and understanding of legal language. Currently, there is an emerging
trend of using complicated aesthetical language and jargons other than legal maxims being used in
the course of legal profession, on the other hand there are steps taken by some legal professionals to
bring in the lucidity in the use of legal language but it is disheartening that even these steps tend to
create incomprehension in understanding the original context as a result it becomes ambiguous.
While there are concerns raised about the usage of legal language, it directly shifts
one’s focus to the character of legal language, its origin and how it is evolved over a period of time.
Character of legal language already has specified standards and limitations, but understanding the
usage of these characteristics of legal language is more important than to analyze plainly what is the
character of legal language. The way in which the judgments and verdicts are given is in such a way
that a normal man would find it difficult to understand, but it also necessary for everyone to
understand law and its dealings, as law is not only growing rapidly as a discipline but it is also
gaining importance even amongst the non-legal professionals of the country.
This brings in the question whether the judgments must focus legal
professionals or even the layman for understanding the legal language acquainted in it. The usage of
more verbose words which is couched with legal jargons irrespective of the legal maxims used,

1 “Coleman, Brady. “ARE CLARITY AND PRECISION COMPATIBLE AIMS IN LEGAL

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raises another basic question of what makes the use of jargons different from the legal maxims and is
it necessary. Though the character of legal language is specified and is defined, certain cases require
change in the way legal language is used at some circumstances, thus whether the use of legal
language must be facts and circumstance specific is debatable question, if yes then is it necessary to
have different approach in the use of legal language and if no, will it be tangible for a layman
involved in the particular case to understand the use of legal language. Thus, this project will mainly
focus upon how, where and to what extent characteristics of legal language can be used effectively in
such a way that layman to lawman can understand the complexities of legal language.

DEFINED CHARACTER OF LEGAL LANGUAGE

2.1. TRANSFORMATION OF LEGAL LANGUAGE:

Legal language is the formalized language which is used in court of law, because one cannot use
his/her own native language. Legal language is not something which is restricted to the use of
only judges, lawyers or law delegators, but it is used even by layman while drafting documents
such as contracts, license, etc., so it is important that as a citizen everyone must have some
knowledge of the legal language. Legal language has a defined and specific character in this
contemporary period. The way in which legal language has attained this conceptuality is
influenced by many factors and conditions, it can be said that legal language has evolved over a
period of time to attain this present version.
The origin of legal language dates back to socio-political conditions and the influence of Anglo-
Saxon mercenaries, Latin speaking missionaries, and Scandinavian and Norman war tribes.2 The
law were first written in Latin language around 1300 and until 1485 it was written in French, then
it was written in both English and French for some years, since 1489 it is exclusively written in
English. Thus it is a notable fact that legal language has gone through many changes in different
period of time to emerge into the existing one. Whether the legal language has become more
complicated or is it reformed into simpler one can be understood from the legal history which is
not within the scope of this research, but it can be said that there were many reformations from the
origin of legal language to make it in more understandable way. Let’s understand the specified
character of legal language.

2Anna Schneiderová, Historical Background to English Legal Language, Faculty of Law, Matej Bel University in
Banská Bystrica, Slovakia, p. 117-126

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2.2 CHARACTER OF LEGAL LANGUAGE:
David Mellinkoof, had identified 9 chief characteristics legal language. 3.

• Usage of common words which has uncommon meanings, some words are written which
are used frequently but have uncommon meanings such as for indicating lawsuits ‘action’
is used in the same vein, ‘ofcourse’ is used to refer to matter of right in legal language.
these common words that we use in normal sense may be interpreted in different way in
legal language.
• Usage of outdated English words, some words which were used very commonly during 18th
or 19th century is still being used in legal language despite of its evolution. Such as
‘aforesaid’ and using words like ‘such’ as an adjective.
• There is a common trend in legal language of frequently using Latin words and phrases ,
because first of all, as mentioned earlier Latin was used mostly to write law regarding
aspects and secondly, English language itself had lent some of the words from Latin and
French .
• In general vocabulary French words are not used in much effect as some are more technical
such as demurrer, voire dire, etc
• ‘Use of technical words with specific meaning’ which is called Art, such as habeas corpus,
res judicata, etc.
• Some legal words which does not come under the ambit of Art is also used which is more
specific to particular group which is called as ‘argot’, but that has greater impact in legal
language such as ‘reasonable man’.
• More formalistic use of words, legal language is adhered to more formalism both in written
and in oral use. There are some euphemistic terms used such as ‘may it please the court’,
‘address the bench’, etc.
• Sometimes legal language may use very deliberate words which mey give more flexible
meanings in interpretation such as malice, expenses, etc.
• Attempts at extreme precision which includes phrases that try to keep the restricted,
restricted, such as ‘and no other purpose’.4

3 Coleman, supra note 1, at 377

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In addition to these 9 definitive characteristics, there are other four characteristics which are also
seen in legal language but not most often (i) using words which are unnecessary to the judgments,
which may infer the same meaning without the use of these words. (ii) Long winded sentences
without proper construction or framework which makes it incomprehensible. (iii) using pompous
words in order to show it in more flowery manner. (iv) Writing in lifeless way, which seems very
boring to read.
These general characteristics of legal language is used today in the legal field for both
written and oral representation of law, but it seems that all these features are more verbose in
nature and is generally more complicated in nature. It is very difficult for a layman to understand
and incorporate this character of legal language when dealing with it. But, these characters’ of
legal language are followed for several years and is standardized which is gives a uniformity
within the profession. It gives a universal framework for the legal professionals, because the words
which are used in one place can be interpreted in a different way when spoken or written in
another place even it comes under the pursuit of same language, and generally in common law
countries, there is the culture of precedence, which one crucial judgment sets forth a benchmark
for other similar cases. Thus it is important that judgments are framed systematically so that the
judges could interpret the precedence to the fullest and award the best possible justice.
But in 2016, the supreme court had set aside the Himachal Pradesh high court judgment on the
grounds of language used being intangible. The two judges MB Lokur and Deepak Gupta felt it
was difficult to read the judgment as the words being used is not in proper synchronization. The
most surprising fact about the case is even the lawyers who were directly involved in the case felt
it difficult to understand the verdict of the case. A few lines from the judgment :

“In sequel thereto finality besides conclusivity stands imputed to the findings recorded
by the learned first Appellate Court qua the relevant factum probandum of the
defendants’ not warranting vis-à-vis them any rendition of any decree of mandatory
injunction arising from theirs during the pendency of the suit before the learned trial Court
or during the pendency of the suit before the learned First Appellate Court raising
obstructions on the path by stacking material thereupon whereby the user of path by
the plaintiffs depicted in the decree of permanent prohibitory injunction besides
embodied in tatima Ex.PW-1/A stood fully forestalled besides thwarted.”5

5 Niranjan Pal And Anr. Vs Chaitanyalal Ghosh And Anr., AIR 1964 pat 401

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Aishwarya Bhati, the judge appearing for tenant mockingly had commented in the court that she
needs to hire an English professor to understand the judgment. Thus, in the verge of this
convoluted judgment is was sent for redrafting
The legal language which was framed for the ease of the legal professionals to understand itself
turned contradicting in the above case. The judges as well as lawyers were not able to scrutinize
the meaning of the judgment. This can be taken as an example for the future cases of how a
judgment must be framed, as the factors influencing the case is not just facts of the case,
authenticity and reliability of the resources and evidence in court of law, but also the grounds of
language being used, it not only specifies the judgment but also the way in which a lawyer
articulates in favor of his client. “A lawyer must read and interpret the written decision of judges,
for this the lawyer looks for the language of the opinion, evaluating the meaning and significance
of each of the cues and at last synthesizes the results” 6. Thus, legal language must be acquainted
in such a way that these people in legal profession understand the very essence of what is written.

LEGAL LANGUAGE: JARGON vs. LEGAL MAXIMS

With the analysis of the character of legal language, it is known that legal professionals use certain
words which are uncommon to layman, but these words are not always what it is termed to be
‘art’, that is the words which are necessary for a verdict to be established. Legal maxims are the
‘art’ which is prevalent for the purpose of law, it defines a long definition precisely as a maxim
with one or two words, but the same is not true with jargons. Jargons are technical words which is
used by occupational or professional groups, the judges has increased this tendency of using legal
jargons which are more flowery and verbose in nature. The judges have the freedom to give a
judgment in a verbose manner which may sometimes be weaved into sparkling legal interpretation
but on the other hand, with this excessive freedom in hand few judges, use overblown verbose
language which often have long winded sentences, repetitive in nature and often misleading the
true meaning of the judgment. These overblown and aesthetical words are sometimes disrupting
the value of a judgment and in addition to that create chaos in reading a judgment by a layman to a
lawman. In the 230th report of law commission of India, it revealed a shocking fact that judges to
show their versatility in their language skills by including unnecessary quotes of Shakespeare,
6 LINDA H. EDWARDS ET AL.., LEGAL WRITING AND ANALYSIS 31 (4th ed. 2015, at 60

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William wordsworth and also some Sanskrit quotes and brag up their points instead of
administering plain English which everyone can understand. In the previous section, we have seen
that the language being used must be understandable by lawman, but while buttressing a judgment
with more jargons in addition to the use of inevitable legal maxims, it gets more complicated.
Journalist Binoo K had commented that “Indian judges with few exceptions love purple prose
which they mistake to be or believe to be Shakespearean language”, which depicts the position of
judges. When dealing with the qualitative aspect of the legal language, it brings quantitative
aspect into the picture, these verbose words and jargons elaborate the verdict of the judgment in
addition to its complication. When UK judgments are barely around 50 pages, Indian judgments
are too long in nature which is almost couched which jargons, it gets exceed to 500 to 1000 pages
judgment, this is mainly due to the inclusion of unnecessary words

In 2018, the supreme court had given a nearly 500 page judgment to
decriminalize homosexuality in the light of section 277, it was because the judges used quotes
heavily from Shakespeare and others wok. In the same way in Subramanian Swamy Vs. Union of
India, which was filled pleading to decriminalize defamation under section 499 of IPC was a 268
page judgment given by justice Dipak Misra, the judgment upheld the criminalization of
defamation. This judgment was ridiculed for two reasons, firstly the court said that “reputation of
an individual was an equally important right and stood on the same pedestal as free speech” 7, thus
it was put to sarcasm for equating right to free speech with right to reputation. The other reason
was the words used in the judgment was too overblown with legal jargons with verbose dexterity
and these usage of words which gives a wrong interpretation of the judgment .

“The assertion by the Union of India and the complainants is that the reasonable restrictions
are based on the paradigms and parameters of the Constitution that are structured and
pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social
ethos, need and feel of the time, for every right engulfs and incorporates [the] duty to
respect [an]other’s right and ensure mutual compatibility and conviviality of individuals based
on [the] collective harmony and conceptual grace of eventual social order; and the
asservation on the part of the petitioners is that freedom of thought and expression cannot be
scuttled or abridged on the threat of criminal prosecution and made paraplegic on the
mercurial stance of individual reputation of the societal harmony, for the said aspects are to
7 Subramanian Swamy V. Union of India, (2016) 7 SCC 221.

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be treated as things of the past , a symbol of [the] colonial era where the ruler ruled
over this[his] subjects and vanquished concepts of resistance; and, in any case, the individual
grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy,
and viewed from a prismatic perspective, there is no justification to keep the provision of
defamation in criminal law alive as it creates concavity and unreasonable restriction in
individual freedom and further progressively mars [the] voice[s] of criticism and dissent which
are necessitous for the growth of genuine advancement and a matured democracy”8

These were few lines from the judgment, it was critically analyzed by a former law professor,
Tunku Varadarajan in the wire journal, as he quotes “ it is so riddled with adjectives – as to be
impenetrable to lawyer and lay reader alike. It is among the worst sentences I’ve encountered in
all my years of reading legal materials. As an exercise in clarity, try rewriting this long, single
sentence as two or three shorter ones, using fewer adjectives and synonyms.” 9
The above words that are bolded seem to be unnecessary and
sometimes more verbose. ‘paradigms and parameters’ does not imply any explicit meaning over
here and removing it will not create any impact in the judgment. The word ‘pedestaled’ is not
necessitated to turn into a verb but it was without any proper framework. ‘conceptual grace of
eventual social order’ seems to much more ambiguous, because it raises a question of how can a
social order be eventual and conceptual in general terms . The word ‘asservation’ is poly-
syllabic, there more meaningful words such as assertion which could have been uused in this
place. On the other hand, ‘viewed from a primastic perspective’ is itself a meaningless phrase
and does not have any accordance or relevance to the judgment. As the apex court of India,
supreme courts judgments have more persuasive effect as well as set forth the precedence to a ll
other emerging cases. In this regard, it is essential that the judgments must be given in such a
way that it is understandable by lawman to layman, though legal maxims can be administered in
the use of legal language as it absolutely necessary to avoid confusions and ambiguity, legal
jargons which is not needed in particular judgment can be avoided by the judges so that it can
be well understood by layman to lawman. These kind of tradition of using ineptitude and
aesthetical words are not just common in India alone recently, Pakistan’s supreme court in one
of its judgment where they ruled out the case to remove its prime minister Naw az Sharif from

8 Id, at 7
9 Tunku Varadarajan, Judgment by Thesaurus, THE WIRE, May 16, 2016.

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the position of prime minister, the judgment had begun with the metion of Mario Puzo’s 1969
novel “The Godfather”, before quoting 19 th century novelist Honore De Balazac, in the original
French . The next question that would raise if it legible and tangible to use plain English
language instead of the use of these overblown and verbose jargons so that everyone can
understand a judgment easily, but this is requires a detailed analysis of work which will be
briefly dealt in the next chapter.

PRECISION AND CLARITY IN LEGAL LANGUAGE

The poised trend of using verbose and loquacious words had raised concern among the people
about the critical use of these words and there is overwhelming support for administering plain
English language than to go with flowery legal language, at the same time many scholars have
issued their concerns either through publications or in social media about the effect of
administering plain English rule. It is a general view that people say that legal language has to be
more ‘clear and precise’, precision and clarity may seem to mean the same but when looking to it
in a detailed way it can inferred that both are not one on the same as both of them deals with
different connotations, clarity can be obtained if you could use plain English language such that it
is understood by layman too, but can we achieve precision is a matter of question. Using plain
English can seem as the best way of approaching legal language from a layman view, but it may
create more room for confusion and interpretation. While using legal terms a brief concept can be
explained with a single phrase, but if it is to be explained in plain English, it must be framed in
such a manner the words used does not amount to ambiguity. So it may have to elaborated so as to
avoid confusion, by this way it cannot be precisely written and this is the reason why precision and
clarity cannot be mistaken to be on the same the boat.
Hyland, a defense traditional legal writer argues that conceptuality is more
important for everyone to understand law. Either if it is a layman or lawman, understanding the
conceptuality is law quintessential part, without which if we write even in plain English language,
the person cannot understand the true essence of the law and its significance. Legal discourse is a
vast study and it is self contradictory and hypocritical, thus it requires interpretation of the text in a
meaningful way, but when using plain English the interpretation of the law may sometimes be

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misleading as well as deceptive in nature. The traditional words that are used in judiciary carry
precise meanings and when this is being substituted by plain English words, the legal effect and
control of the text gets bewildered, because simplification of legal language must turn into ‘over-
simplification’ which disrupts the whole function of a legal language.
Ritter, in his book had given clear cut explanation of legal effect of the language used and how it
works an instrument of understanding,

“The longer established a category of legal instruments is, the more formalized the language of
such instruments becomes and as the buildup of case law and statutory alterations of the
applicable law increases, the language of the instrument becomes a less and less reliable guide to
its actual legal effect and more and more difficult to understand without a knowledge of the hidden
context of case law and statute law” 10

Legal language gets more ambiguous, when a simple term can be defined in different
interpretation, when it comes to legal maxims there is already specified narrowed definition of it ,
but in plain English a single term can be interpreted in many different ways. At the same time
precision which is a expected character of the legal language would also not be fulfilled. In some
instances plain language would be more understandable and would give more clarity when used
with proper framework of statutes. For example, a Singapore statutory law , control of rent act,
defines ‘domestic premises’ as "a building or part of a building used wholly or chiefly as a
separate”11 . The kinds of words such as ‘building’, ‘dwelling’ gives the readers a clear picture of
what the law is focused upon than using as ‘domestic premises’. These kinds of instances can also
be seen in judgments where the judges try to simplify the legal language used in the verdict in
order to make it more understandable and keeping it precise. In the case of ‘Lancashire county
council v M and others’12 , justice Peter Jackson, has written his judgment in a more simpler way
without using any legal maxims or jargons; in fact the only formal record that was used in the case
was ‘section 38 of the children act 1989’, it is an intriguing fact that he even used smile emoji for
the easiness for the children involved in the case to understand as it is a family law case. This was
considered to be a welcoming way of legal language that can be used by many people, including

10 PA Ritter, "Simplification of Legal Language and the Bank of Nova Scotia Plain Language Mortgage Form" [1981]
Faculty of Law Review 171
11Control of Rent Act, ordinance 22, 1953
12 Lancashire County Council V M and others [2016] EWFC 9

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the one in legal profession but there were some controversies raised by critics as well. In this
particular case, it deals with the care order of the children pleaded by their mother and whose’s
father is arrested for burglary and for his acts involving terrorism, thus the case is centered around
the children for whom the care order must be given to their mother or not is the issue. The
judgment was given in favor of their mother, that the care order of the children were given to their
mother and grandmother, the judgment given by justice peter ;

“The mother left a message in the caravan for the father’s sister, who I will call the aunt. It told
her how to look after the family’s pets. The message said that the family would be back on 3
August. It has a ☺ beside the date. After the family left, the police searched the caravan. They
found the message and say that the ☺ is winking, meaning that the mother knew they wouldn’t
be coming back. I don’t agree that the ☺ is winking. It is just a ☺. The police are wrong about
that, and anyhow they didn’t find anything else when they searched the caravan.” 13

This judgment is seen to a model of clarity, though it may seem that these kinds of plain English
judgments can be easily written, it is practically not true. It requires more skills to write such
judgments as it must be clearer and second it must not create room for confusion, which may be
misleading. In one of the research works of Dr. Julia Brophy on children involved in legal cases
are aware of the details which is made public, had analyzed that this approach of using legal
language which is intended to be read and understood by the children directly involved in the case
is not new but there were some anticipations when such an approach was taken, saying that the
children must be bit more grown up to understand their domestic arrangements in tackling the
public documents. Lucy Reed on her ‘pink Tape Blog spot’ had appreciated justice Peter, as she
says it is not a easy task to write in such way although it might look easy, citing the example of her
own experience in writing a non-legal readership book called ‘Family Court Without a Lawyer’ .
Thriving into the question of whether all judgments can be given in such way to make the readers
clear in what the judgment resolves, in this case it was child centered and was in accordance with
the effect of judgment in the children’s life, thus it is more simple but the same cannot be used in
all circumstances, were the judgments are too crucial and important such as Subramanian swami
and others Vs Union of India.

13 Id at 12

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 Through the analysis of character of legal language and through the findings, the
researcher is of the opinion that, due to increase in globalization and wide range of job
opportunities, ,merely applying academic knowledge of what they have derived from their country
will not be sufficient in case of legal profession. Thus one has to be acquainted with the knowledge
of legal terminologies which is universally same and this will help oneself to excel in the career.
Also while looking on the precedence for any cases, we don’t necessarily look on to Indian case
alone but sometimes international case laws and the way of their reasoning and they dealt within
their jurisdiction, because we have retrieved the colonial laws which was laid by the Britishers. At
the same time, showing their erudition and using overblown vocabulary and verbose dexterity
unnecessarily leads to ambiguity and uncertainty which may lead the future judgments in
misappropriate way as each word in a judgment has an influencing effect in the forthcoming
judgments. Professional terminologies are made for better understanding and for making the
judgment precise, as people who are in the legal profession is all over the world from different
linguistic background, cultural background etc, thus use of universally accepted terminologies will
lessen the ambiguity but judgments must not be couched with meaningless jargons, thus it can
inferred that judges must essentially look on the circumstances of the case and give a succinct,
pithy and cogent judgment which is understood by people easily as a drive to transparency in law.

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 BIBLIOGRAPHY

CASE LAWS
1. Subramanian Swamy V. Union of India, (2016) 7 SCC 221
2. Lancashire County Council V M and others [2016] EWFC 9
3. Niranjan Pal And Anr. Vs Chaitanyalal Ghosh And Anr., AIR 1964 pat 401

NEWS ARTICLES
1. Does this court judgment make any sense ?, BBC NEWS April 21, 2017
2. Prashant Reddy Thikkavarapu, Awful reasoning and tortuous verbosity, THE HOOT, May
17,2016
3. Krishnadas Rajagopal, SC upholds law on criminal defamation, THE HINDU, May 13,2016
4. Why judgments must be succinct, pithy & cogent, THE FREE PRESS JOURNAL, Dec. 4, 2020
5. Tunku Varadarajan, Judgment by Thesaurus, THE WIRE, May 16, 201

JOURNAL ARTICLES :

1. Coleman, Brady. “ARE CLARITY AND PRECISION COMPATIBLE AIMS IN LEGAL

WEBSITES :

1. https://www.transparencyproject.org.uk/giving-a-clear-and-simple-judgment-how-
hard-can-it-be/. (Visited on dec.24, 2021)
2. http://www.legalservicesindia.com/law/article/2010/4/Defamation-Law-
Constitutionally-Valid-SC, (visited on dec. 26, 2021)

Books:

1. LINDA H. EDWARDS ET AL.., LEGAL WRITING AND ANALYSIS 31 (4th ed. 2015)

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