LEGAL LANGUAGE

The language of the law may also be referred to as the legal language. It is a mini-language to the
English language that is used by lawyers, judges and other persons within the legal profession. It
is a formal language grounded on rational rules which are different from the ordinary English
language in terms of morphology, vocabulary, semantics and syntax. 1 Most of the differences
between the normal English language and legal English are an outcome of its origins and history.
Hence it is claimed that the legal language is possibly a creation of its history. This is because it
is based on the historical tales of the Anglo-Saxons, Latin speaking missionaries and Norman
invaders, all whom not only influenced England but also to the language of law in England.

The language of the law has two main features; the use of legalese versus the use of plain
English.2 Legalese refers to the traditional style of legal writing that was used by lawyers. It is
wordy, indirect, embraces the use of technical terms and phrases; both Latin and French. Plain
English on the other hand is the opposite of legalese. It is an appendage of the language of the
law that was introduced to remedy the short comings of the traditional legal language which is
characterized by use if legalese. Plain English is clear, concise, correct and complete. 3

The following are some of the contemporary problems associated with the language of the law;

a) Use of lengthy, overwritten, self-conscious and repetitive sentences- this makes it hard
for the average person and to some extent members of the legal profession to
comprehend. For example, The Governor may not appoint persons other than those
qualified by the Personnel Management Agency instead of The Governor must appoint a
person qualified by the Personnel Management Agency.
b) Unusual word order- this is also referred the inversion of words for example where the
verbs come before the subject instead of the subject being followed by the verb. Unusual
word order results to ambiguity and difficulties in understanding legal language and
proceedings. e.g. For the purpose hereinafter appearing…. Or will at the cost of the
defendant forthwith comply with the same…, at slow speed… instead of slowly, the

1
Probert Walter, Law and Persuasion; The Language Behavior of Lawyers (1959).
2
Ibid.
3
Ibid.
 phrase until such time as… instead of until, and saying at that point in time… instead of
then.
c) Use of Technical Terms- a layman will not be able to understand the document when
terms such as waiver, restraint of trade, restrictive covenant and promissory estoppel are
used.
d) The use of terms of art- this refers to the use of special words with special meanings e.g.
the word constructions which in law denotes the giving of meanings to terms and phrases
as used in legal documents and instruments as opposed to the act of building or creating.
The term consideration in English refers deliberations. This is however not the case when
it comes to the language of the law where consideration under the Law of Contracts
means, an act or forbearance or promise by one party to another and constitutes the price
of the subject matter.
e) Use of doublets and triplets- this entails the repetition of words used to mean exactly
the same thing, usually a single legal concept thus making the sentence wordy, redundant
and to some extent causing confusion e.g. null and void, care and attention, perform and
discharge and terms and conditions.
f) Use of passive voice over active voice- The active voice eliminates confusion by
bringing the Subject (Doer) to the forefront. This construction makes clear to the reader
who is to perform the duty. The passive voice makes sentences longer and roundabout
for example, the regulation was written in the office by the drafter. Active voice is
simpler e.g. the drafter wrote the Regulation in the Office.
g) Use of needless words such as compound prepositions- because of the fact that instead
of since, call your attention to the fact that instead of remind you, in many cases instead
of often or in many instances instead of frequently.
h) The use of Latin terms and phrases such as nunc pro tunc, which simply means now
for then and, mutatis mutandis, which means with the necessary changes.

As outlined in the above discussion, we see the many disadvantages and problems that arise out
of the use of legal jargon as compared to plain English. However, it is also important to
understand why advocates would at certain circumstances prefer to use legal jargon as compared
to plain English. The discussion that follows is therefore a justification for the use of legal jargon
in legal documents.
 1. Necessity

Lawyers write for a potentially hostile audience, in an adversarial atmosphere where documents
are prone to scrutiny by loophole seeking opponents. Change from legalese to plain English can
lead to uncertainty and simplicity to ambiguity.

Legalese can make a document more concise while also protecting the client from future battles
over word meaning. For example, Section 85 of the Traffic Act provides for driving under
influence of drink4 as a traffic offence. This provision is written in plain English save for the
length of the statement. As a result, there are a number of loopholes in the provision. For
example, does a sugar rush resulting from taking too much soda amount to driving under
influence of a drink? If a driver under the influence of alcohol is still able to have proper control
of the vehicle, should he be punished under this provision of the law? As seen above, it is easy
for a person to rely on these loopholes in order to escape liability.

2. Complexity

Some legal concepts are inherently complex. They are incapable of expression in plain English.
If plain English is used you tend to use more words thus making the sentences long and wordy.
This would consequently go against the very critique against legal jargon having very long
sentences. It could also lead to the loss of meaning intended by the drafters of the legal jargon
thereby causing a miscommunication. E.g Stock exchange transactions, negotiable instruments
i.e bill of lading, punitive damages, habeus corpus.

3. Audience

The kind of audience you are communicating to are mostly fellow advocates and magistrates or
judges who understand legal terminologies. E.g when giving a professional undertaking to a
fellow advocate, use of the word ‘vendor’ will be appropriate and when giving an opinion to the
parties in a transaction, use of the word ‘seller’ will be more appropriate.

4. To avoid misinterpretations in the future

4
S 85 Traffic Act Cap 403 rev. 2016
Legalese guards the future of misinterpretation which could lead to huge unintended
consequences. This arises where the same word could have different and even opposite meanings
in plain English and in legalese. For example; in plain English, the term “continue” means ‘to
resume or carry on’ it is even provided as a synonym to the word ‘proceed’. In procedural law
however, a motion to continue a matter or to ask for a continuance means, ‘to ask for an
adjournment or postponement of an action pending in court’ 5 Similarly, to “stay” in plain English
has been held to means “to continue or persist in a certain activity” whereas in legal jargon, “stay
of proceedings” means ‘to halt further progress in the proceedings or trial where it would be
inappropriate for it to continue.’6

5. Adoption of legal jargon to everyday conversations

A number of words that are traditionally legal jargon are adopted into the English language such
that even persons who are not conversant with the legal jargon use and understand the meaning
of such words. For example, bona fide, prima facie, habeus corpus, amicus curiae, caveat
emptor,mandamus and others. Therefore, it would not be necessary to use plain English to
communicate the meaning of such words to the layman

Legalese V. Plain English

It is important to note that most if not all the contemporary problems are associated to the use of
Legalese. Legalese is hard to read especially if the message is meant for the layman. Therefore
however hard you work to put down your ideas on paper, it might not achieve its intended
purpose if your recipient cannot easily follow your reasoning. For instance the use Latin words
that could leave a client frustrated especially if such words were in a letter addressed to them. It
could also make them feel like they are silly just because they can’t understand your letter. It is
pursuant to these reasons that it is important to uses Plain English.

In the matter of The Estate of Waigwa Wachira, Justice Teresia Matheka highlighted the
following;

5
Black’s law dictionary 2nd edition.
6
Andrew L & T. Choo, ‘Abuse of Process and Judicial Stays of Criminal Proceedings,’ (2008) Oxford University
Press.
“The first thing I note is that neither the Law of Succession Act nor the Probate &Administration
rules use the term grant de bonis non administratis. I cannot see why, for sake of simplicity, and
sticking to the rule, we cannot just use the term ‘un-administered estate’. I can imagine the un-
represented petitioner struggling with the term, knowing what she wants from the court, and
wondering she cannot just ask exactly what she is seeking from the court. The term may sound
nice rolling off the tongues of ‘learned friends’ but I am of the view that it simply adds an un-
necessary mystique to this process.”7

7
Succession Cause No. 593 of 2001.
Bibliography

1. Andrew L & T. Choo, ‘Abuse of Process and Judicial Stays of Criminal Proceedings,’
(2008) Oxford University Press.
2. Black’s law dictionary 2nd edition.
3. Goddard, C., Didactic aspects of legal English: Dynamics of Course Preparation (2010).
4. Probert Walter, Law and Persuasion: The Language Behavior of Lawyers (1959).
5. S85 Traffic Act Cap 403 rev. 2016
6. Succession Cause No. 593 of 2001.
7. Thomas v Thomas (1842) 2 QB 85