Legal Language as a Special Language: Structural Features of English Legal Language

List of contents:

1. Introduction

2. Main part
2.1 What are special languages? A definition
2.2 Legal English as a special language
2.3 Some structural features of English legal language
2.3.1 Complex sentences – full of redundancies and a remarkable word order
2.3.2 Passives and nominal style – defocusing the agent
2.3.3 Further impersonal constructions – refusing pronouns
2.3.4 Accuracy by means of negations and doublets
2.4 Preciseness versus impreciseness

3. Conclusion

1. Introduction

The English language has taken over the key role in international trade, marketing, tourism, legislation and policy-making. It has achieved “the enhanced status […] as the dominant world language [which] has led to an increased demand for the training of competent specialists able to mediate” (Alcaraz Varo/Hughes, 2002: 1). This goes along with a “phenomenal increase in the teaching of ‘the other Englishes’, i.e. ‘English for special (or specific) purposes’ (ESP)” (ibid.: 2). What is the reason for this development? And why do experts have to mediate?

The following piece of work entirely dedicates itself to domain specific English language – language and law. It concentrates on a particular aspect of this field: characteristics of the structure of legal English. My essay gives an overview of the central structural features that mould legal language, without claiming completeness though. A closer look at the structure of the language of the law could help finding answers to the questions raised above. Legal professionals aim at a precise explanation of facts which should leave no doubts at all. This aim forces them to use a certain kind of language pattern: looking exact meanings up in a professional dictionary, including a high amount of definitions in legal texts, as well as numerous complex and ancient phrases deriving from Law French and plentiful enumerations which can all together form a single sentence covering several lines. Dependent on which party they represent, lawyers make frequent use of features that reduce the agent in his identity while emphasizing the action – a matter of strategy which has the impeding of comprehension as a consequence. Therefore, the problem that arises is that the field of law becomes completely unapproachable for laymen, as they are scarcely able to follow legal discourse. Even well-educated native speakers often find it hard to understand the language used in court. However, the access to one’s right is important. People, especially when situated on the bench as the defendant, must understand law in order to know how to behave correctly.

To begin with, I will provide the reader with an overall definition of special languages and explain why to regard them as a variety of a language; afterwards I will illustrate this at the example of the language of the law. Subsequently, the foundations for the structural analysis of legal English will have been laid. Language has to serve as the vehicle for transporting what the law is about. But legal language does not actually seem to be a good packaging of legal contents. That is why experts are asked to diminish the barrier and mediate between the language of the law and common speech. Does legalese function as an obstacle rather than a vehicle then? This question will have to be considered in the following part.

2. Main part

2.1 What are special languages? A definition

Before depicting and discussing the characteristics of legal language as a special language, one needs to know what a special language is in general, i.e. one has to define the term ‘special language’. Alternatively, the term ‘language for special purposes’ is in frequent use as well. In the following, I will operate synonymously with both expressions.^[1]

Characteristic of a special language is its use by experts of a certain field or subject to communicate among each other. Therefore, elements of a group language are inherent, but it can rather be described as a mixture of a group and special language, particularly when the two main features melt together, namely its exclusiveness and its reference to a special subject matter. The focus on the issue is a criterion of delimitation which dominates much more so that the group character becomes only marginal.

The debate on how to categorize special languages has developed two parties. They argue whether special languages are closed systems existing next to common language, or if they just show various deviations concerning the lexicon amongst other things. Some linguists state that it is inadequate to provide an overall definition for special languages and that it is only possible to define them within a certain field. Others describe special languages as varieties with general characteristics in which institutionalized language planning has become effective. This aspect implies that no evolution takes place; this kind of language is considered as a policy from the outside, as nothing natural. The (guided) acquisition of a special language happens through explicit rules which need common language for their introduction, and no language practice at all.

The latter is the approach to which I would agree because special languages cannot exist without the standard language. They can therefore be defined as subsystems or sub varieties of the ordinary language.

Special languages find their origin in the eighteenth century, as they are based on the division of work. Their rapid development depends on the time when specialization in the working world found a climax; this is to regard before the background of the Industrial Revolution. The earliest special languages were only used orally, for the most part by sailors or craftsmen. With the Industrial Revolution in the eighteenth and nineteenth century, however, the development of special languages as we know them today was initiated (above all technical languages and languages in the field of natural science). That means in practical, the more differentiated the working process is and the more complex technologies are, the more special languages are developed and part with the standard language. In this context, it must be mentioned that written language is typical of special scientific languages. It strives for precision and has to free itself from colloquial language, which has the existence of artificial languages as a consequence. This non-naturalness mainly manifests itself in the use of formulas and a great quantity of termini as defined linguistic signs, since they are key components of logic, medicine or chemistry, amongst others.

Typical of languages for special purposes is that they are nationally understood, there is no dialect existent. For that reason, they can be described as languages with the intention of functional elaboration. In the process which a special language undergoes, the most prestigious variety has to be selected and then codified. We call this progression ‘standardization’. (It must be noted here that in the field of law, oral versions used to be the stronger ones before formulating and establishing written laws. In the context of special languages in general, this means that they would not exist without standardization, since a valid language for all those who are involved in this business would not have been determined.)

Communication with non-professionals requires the development of a comprehensible language; sometimes one cannot even recognize the margins to the special language. A problem which can be observed in every-day life is “Fachsprachenhaftigkeit”; professionals stick to their technical terminology even in interaction with laymen as they are rarely trained to verbally leave their special area of focus in order to communicate with the unknowing public outside their field.

Accordingly, special languages depend on the partners of communication and its place. Is it a conversation from expert to expert, or does the specialist interpret his language and translate it for a layman? The different genres differ in these categories as well and are self-contained in order. As a consequence, sub forms of special languages are necessary for the contact to laymen although ways of manipulation may be a possible outcome of this course then (as can be regarded in the field of advertising).

Another important feature of special languages is their use of a large amount of words that do not exist in ordinary speech, that is to say they either cannot be found there at all, or they are used in a completely different manner and cause problems of misinterpreting.

Moreover, the syntactic peculiarities of special languages cannot be regarded without their lexical specialties; the nominal style is preferred as much as the passive voice and extensively long sentences, complex subjects tend to be expressed in one phrase only. Because of an abundance of nominalizations, special languages do not consist of a large number of verbs; their use is estimated at only nine per cent whereas it reaches fourteen per cent and more in common language.

Lastly, the idea that standard language is universal and poly-functional, which implies that special languages are mono-functional and hence limited, cannot be maintained. This would mean that we actually would not need expert language at all. Ordinary language, however, is not able to cover all fields of matter in reality.

2.2 Legal English as a special language

For centuries, the legal business had its own separate language at its disposal, which was Law French. French was an established technical language which still offers expressions for matters today where no alternatives have been found. When lawyers exercised in Anglo-French in the English courts, they were basically speaking a variety of French which was still in use among the nobility. But from the last centuries on, almost all legal concerns have been completed in English, although it differs from common speech in many aspects. On the one hand, the overall language with which lawyers operate is English. In contrast, not every term and construction of legal English would be tolerated in ordinary English. Although, today, English plays the role of the official language in law, legal language cannot be called official English.

David Mellinkoff entitles law as a “profession of words” (O’Barr, W. “The language of the law”. In: Ferguson / Heath (eds.), 388). He defines legal language as “the customary language used by lawyers in those common law jurisdictions where English is the official language. It includes distinctive words, meanings, phrases, and modes of expression” (Mellinkoff, 1963: 3). In his explanations, he puts emphasis on the fact that legal language is a “label for a speech pattern with a separate identity” (ibid.). He states that it is not only formed by the law alone, but as well by the established speech of the lawyers’ environment. That means, the concurrence of dominant common law and dominant English provides ground for legalese (cf. ibid.: 4).

After having dealt with Mellinkoff’s agreeable definition of the concept of legal language, the question arises whether the language of the law is a separate language or if it can be categorized as a variety. Whereas the elements of Law French which remained in the courts might certainly be considered as a distinct language, it serves best to treat legal language as “a variety of English […] [which] follows the rules that govern English in general” (Tiersma, 1999: 49). This view perfectly matches with the overall idea of special languages, which I have pointed out in the earlier chapter.

If one regarded legal English separated from the qualities of common speech, it would no longer be complete enough to function as a language. This gives linguists the justification to look upon modern legal English as “a set of linguistic features that are superimposed on everyday speech” (ibid.: 142). In the next chapter, I will discuss in detail which features are part of this concept.

Linguists have lately examined language varieties in terms of sublanguages which they define as “languages used in a body of texts dealing with a circumscribed subject area […] in which the authors of the documents share a common vocabulary and common habits of word usage” (ibid.: 143). This explanation implies that the legal language variety is a component of the English language as a whole, which substantiates my previous argumentation, but it owns typical character traits as the following: it has a limited subject matter, contains lexical, syntactic and semantic restrictions and allows marked rules of grammar, most of which are not acceptable in standard language. Furthermore, particular structures in this variety appear unusually frequently (cf. ibid.). Not to forget how seldom register markers emerge in other sublanguages, they are significant in legal language.

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^[1] This chapter is based on ideas withdrawn from Nabrings, Kirsten (1981): Sprachliche

Varietäten (Tübingen: Gunter Narr Verlag).