William Shakespeare’s famous words in his Henry VI, Part Two, ‘The first thing we do, let’s kill all the lawyers’, have for centuries summed up the frustration which laypeople feel when meeting someone from the legal profession. Their parlance always seems so opaque and obstructive, and you’re never quite sure what they actually mean. This impression is not exclusive to those unlucky enough to appear in court, but also to anyone who filled out a tax form, tried to make sense of a tenancy agreement, or understand the terms and conditions of their phone contract. The language always seems impenetrable to the uninitiated (and oh so boring).
But why do they use it and wouldn’t it be better if they didn’t? Our modern legal language has very deep roots and can be traced back to ancient and medieval lawyers and legislators. I would like to put forward the unpopular opinion that we should keep legalese and that by understanding its history better we might even learn to appreciate it.
What are they talking about?
Before we decide whether to keep legal parlance, we should first consider what it really does. The legal language common in ‘the West’ (and the places that were colonised by it, and in international institutions) was shaped in medieval Europe and is traditionally reliant on Latin. The most common complaints are that it is repetitive, superfluous, uses weird structures, and is very, very dull.
So, let’s deal with the repetitiveness first. One reason for this is that authors of legal texts often wanted to cover all conceivable eventualities. A common thing to do, then, was to give a blanket statement and then methodically list exceptions, thus avoiding unexpected loopholes (at least in theory). This often resulted in repeating the same sentence over and over again with slight variations which makes one want to shout ‘get on with it!’.
Regarding the weird superfluous phrases, a lot of it comes down to complementary forms, for example: singular and plural (any and all or omnes et singulis in Latin), active and passive (to do and to have done or facere seu fieri facere), present and future (now and in the future or qui nunc est vel pro tempore fuerit), as well as phrases containing verbs which largely overlap (for example the wedding classic to have and to hold which comes from the ubiquitous Latin phrase habere et tenere. See more Latin phrases in the glossary below). These stilted structures have the same purpose as the repetitions: to cover all bases.
As for the dullness, much of it comes from the legal text’s grammatical structure. While (counterintuitively) the language is for the most part quite straightforward and regular, sentences tend to run very long (more than the reasonable person’s attention span) and have many subclauses listing different scenarios and exceptions. Precision and clarity are preferred over legibility and elegance. Anything that does not need to be included in the text would therefore probably be omitted, lest it be exploited as a loophole by a crafty litigator, and what is left usually serves some technical purpose.
Ancient legalese
To see how, as tech people say, these are ‘features not bugs’, let’s look at one of the oldest law codes that we know of today, the Code of Hammurabi. This code was written in cuneiform in the Akkadian language on a stele dating from around 1753 BC found in Babylon (modern day Iraq). Articles 206-208 talk of compensating someone who was injured in a quarrel:
The Louvre stele with the Code of Hammurabi.
So, as we see, we start with a general statement and then a series of conditions and stipulations. Here the phrasing is refreshingly to the point, but in the three or so millennia that followed laws have become more complex and nuanced, so the language had to adjust accordingly.
Roman law
Skipping ahead to the sixth century AD, Roman lawyers were hard at work collecting laws and imperial decrees into what became known as the Body of Civil Law (Corpus Juris Civilis) at the request of emperor Justinian (482-565). Let’s look at an example from this corpus which deals with corrupt judges:
Emperor Justinian in a mosaic from San Vitale in Ravenna.
Communal legalise
These sort of measures do not only apply to potential criminals, but also to the people who enforce the law. In late medieval Italy (13th-14th century) communes – which were city states with varying levels of autonomy – had a system according to which foreign officeholders were invited to govern the city for a fixed term. Since infighting between different families and factions was the norm, the thought of inviting an unaffiliated impartial outsider was a no-brainer. But this was also quite a risky move since foreigners wouldn't necessarily know or care about local customs and privileges and they might even decide to overstay their welcome. Therefore, particular attention was dedicated to stating very clearly what fell within their remit (and what didn’t). Here is an example from statutes of Bologna from 1288 which defines the authority (arbitrium) of the fango notary:
A tomb of one of the Glossatori (legal experts) from Bologna in the piazza of San Domenico.
Impassioned legalise
We’ve seen how the very characteristics of legal language which make it seem unappealing to some are also what make it functional and effective. Sometimes, when taken to the extreme, this sort of language can even be considered rousing and passionate.
The Sacred and Most Sacred Ordinances were two pieces of legislation approved in Bologna in 1282 and 1284 to protect the Bolognese ruling class from their enemies (which they considered violent and dangerous). The closing rubric which speaks of preserving the content of the Ordinances contains the following:
If during a quarrel one man strikes another and wounds him, then he shall swear, “I did not injure him wittingly,” and pay the physicians.
If the man dies of his wound, he shall swear similarly, and if he (the deceased) was a free-born man, he shall pay half a mina in money [a mina was an ancient unit of weight for silver or gold].
If he was a freed man, he shall pay one-third of a mina .
Emperor Antonius. It is established that in whichever case, be it private or public or to do with the imperial treasury, where money was given to whomever, either the judge or the opposing party, he who, having lacked confidence in a just sentence, puts the hope of [succeeding in their] lawsuit in corrupt bribery, shall lose the legal process. (Codex Iustinianus, 7.49.1)
Here again, we see the same repetitions and concatenating clauses which for all their wordiness can be summed up in four words: please don’t take bribes. But you can’t just ask nicely because the sort of people who are inclined to bribery would probably look for a loophole, so the jurist has to try and close those by being very specific.
We establish that the notary of the lord podestà who presides over the streets and works in the city of Bologna shall have arbitrium to inquire into any and all things which have been or will be entrusted to him according to any statute or reformatio…
[…] And no other interpretation, commentary or supplement to [the ordinances] can be given or made, nor any addition, alteration or omission, nor any name or surname or letter or syllable can be put in or added or be taken away or replaced at the beginning, in the middle, or at the end or in any part of these; rather, simply and vigorously, absolutely, indissolubly, to the letter of the law [lit. ‘just as (every) letter lies and sounds’], so it must be understood and observed and fulfilled, maintained and defended and put into full effect, and not in any other way or manner that can be spoken or conceived. […]
Was all this necessary? Perhaps. Wordy? Incredibly. Superfluous? Sure. But was it dull? Absolutely not. This, I’d argue, is an address by someone who is extremely passionate about preserving their rights and freedoms and it has a certain almost comedically bombastic charm. Did it work? Nah, this legislation was revoked in 1292 and then brought back shortly thereafter before disappearing entirely by 1335.
So after familiarising ourselves a bit with the history, structures and peculiarities of legalese, we have seen that it is very useful in what it was developed for: translating the ephemeral principles of justice into a worldly technical language. This technical language (not unlike an architectural plan, financial report, or computer code) is primarily meant for practitioners and makes sense when you know how to read it. So since legal language is ubiquitous in our lives, becoming more familiar with it can be helpful, and maybe then we wouldn’t want to kill all the lawyers (E&OE).
Sources
Code of Hammurabi translated by L. W. King, 1915.
Codex Iustinianus (Krueger edition, 1877), 7.49.1 (https://droitromain.univ-grenoble-alpes.fr/Corpus/CJ7.htm#49)
Gina Fasoli and Pietro Sella, eds., Statuti di Bologna dell’anno 1288 (Città del Vaticano, 1937), vol. I, p. 454; vol. II, p. 173.
Mario Ascheri, The laws of late medieval Italy (1000-1500): foundations for a European legal system (Leiden, 2013).
Glossary of common Latin legal phrases
Ab initio - from the beginning
Actus reus - a guilty act
Bona fide - in good faith
Caveat (emptor) - (buyer,) beware
(non) Compos mentis - (not) of sound mind
Cui bono - who benefits?
De facto - in fact
De iure - of law
De novo - anew
E.g. (exempli gratia) - for example
Etc. (et cetera) - and other things
In absentia - in absence, absently
Habeas corpus - lit. you shall have the body (basically, no one can be unlawfully imprisoned)
In flagrante delicto - caught in the act
Locus standi - standing place (the right to appear before a court)
Mea culpa - oops, my bad!
Mens rea - a guilty mind (guilty intention)
Nota bene (n.b.) - note well, pay attention
Obiter dictum - saying in passing
Prima facie - on the face of it
Pro bono - lit. for the good (e.g., when lawyers don’t work for a fee)
Quid pro quo - a thing for a thing
Res ipsa loquitur - the issue speaks for itself
Sine qua non - indispensable thing/ condition
Sub judice - under a judge
Sui generis - of its own kind, unique