English Language and English Law

ENGLISH LANGUAGE AND ENGLISH LAW

By Andrew Harding

I doubt whether anybody penning his or her ‘last will and testament’ ever considered why he or she was not simply making a will. It is probably attributed to long-standing usage, and therefore any innovation such as (horror!) omitting the ‘and testament’ might create some ambiguity, or, even worse, an incorrigible legal defect resulting in a family feud lasting generations. Lawyers probably encouraged this kind of thinking so that ordinary people (that is, their paying clients) understood that the lawyer was a real professional and his ways might be questioned only at considerable personal risk.

In fact the explanation is quite mundane and relatively sensible. ‘Will’ is Anglo-Saxon or Old English for the same thing as the Norman-French-derived ‘testament’. In both cases the word simply means a legal document disposing of one’s property on death. Legal drafters were sensitive to possibly different nuances of these two words. After all I ‘will’ this article into existence (an intention), but it is also a ‘testament’ to (evidence of) my literary skill, hopefully. The person executing the Will is called a Testator, not a Willer. Given that English people might say ‘it is my will’, while the law would have recognised this ‘will’ as a ‘testament’, the safest and indeed most comprehensible course would be to use both words. By 1837 Parliament in Westminster was able to pass the ‘Wills Act’ (not the Wills and Testaments Act). Nonetheless (I checked my own) wills are still one’s last will and testament, notwithstanding the move towards the use of plain legal English. After all, the document thereby acquires gravity, not just legal consequences. It is my Will that my ‘estate’, my ‘chattels’ and my ‘effects’ (why not just ‘property’? OK I think I’ve answered that) should be ‘bequeathed’ (rather than being mundanely ‘passed on’) to my ‘Beneficiaries’ (rather than my family or friends). In law I still cannot actually see any difference between a Will and a Testament. But be aware that if you change it, you will likely need a Codicil (no, please don’t ask).

Herein lies a problem. Legal usage is not the same as common usage. Are you aware that if you assault someone during a pub brawl you are not hitting him (that’s a battery in law) but merely threatening to hit him? For this reason generations of brawlers have been surprised to be charged with both assault and battery (they thought they had done one thing wrong, not two), unless of course the brawler hit his victim from behind when he was not looking, in which case there was a battery but no assault. Similarly, most people consider that a contract is a written document creating an agreement, for example, for the sale and purchase of some item. In fact, as any first year law student will tell you, a contract does not have to be in writing, except that in some systems it has to be in writing if it relates to a disposition (there I go – I mean a sale or lease or gift or bequest) of land, or real property. People assume that when you buy a bottle of milk from the local general store you have not entered into a contract. In fact you have entered into one by your and the shop assistant’s behaviour even if not a word was said (which sadly these days is often the case); indeed the contract has been both formed and duly executed. Originally no doubt contracts even as commonly understood could be unwritten, but over time we have become somehow psychologically legalised even though writing is not strictly a requirement. Writing signed by both parties is of course clear proof of the existence and terms of the contract, which is why we tend to express them in writing if anything important is at stake.

So legal language overlaps with, but is not the same as, ordinary language. This is why we need a legal dictionary for most legal terms. An ordinary dictionary might be fine if the word (say a term in a statute, such as ‘park’, or ‘residence’) is not peculiarly legal; but if it is ‘appurtenances’, ‘demurrer’, or ‘estoppel’, you had better use a law dictionary or an edition of the OED that caters for legal meaning.

Yes, you guessed it. The law mainly uses Norman-French words, because the Normans developed the English common law system out of the prominent features of Old English customary law, which differed as between Yorkshire, Suffolk, and Cornwall, for example. Customs provided content, but Norman-French provided the words to describe it abstractly. Nonetheless, as I have said, Old English words are used to avoid what one might call cultural doubt. For this reason we have ‘residue and remainder’, ‘null and void’ (but let’s not get into the meaning of void and voidable), ‘matter or cause’, and ‘breaking and entering’. In each case one word is Old English and the other Norman-French. Looking at this positively, one might say the law was being culturally inclusive and speaking, albeit at too great length and no doubt also at too high an expense, to all those subjected to it.

The Norman-French ‘termes de la ley’ as the Normans called them (legal words to us) were nonetheless superimposed over an underlay of Old English. Gradually this underlay itself became somewhat antiquated, and for this reason survived as legal jargon. Consider these words which sound as if they were taken from a speech by 1990s British Prime Minister John Major: heretofore, wheresoever, aforesaid, hereinafter, thenceforth, forthwith, wherewithal. Although Major appeared sane enough (he was indeed accused of being too sane and in fact rather grey), I suggest that nobody in their right minds would use those words today, but they appear in legal documents all the time. Does anybody now know what a ‘glebe’ is (it’s land attached to a church)? Even ordinary Old English words took on subtle meanings. A document ‘under my hand’ is not actually concealed by my fingers, like a surprise candy, but has my signature on it.

Naturally many people, including lawyers, would like more ‘plain English’, whatever that might be, in the law and in administration. In 1979 British government forms were ritually burned in Parliament Square in London. Prime Minister Thatcher went on to reduce their number considerably – by 15,700 to be exact. President Jimmy Carter made an Executive Order (yes, these do predate Trump) in 1978 requiring regulations to be written in plain English; however, defining what constituted plain English created even more legal complications. Ironically, the EO itself was revoked by President Reagan in 1981. Presumably his lawyers used some very plain English to do so. Subjecting language to this kind of attempted-accurate legal regulation seems a peculiarly self-contradictory objective.

Nonetheless, as a practicable scheme it is not without merit or practicality. Consider these two contractual provisions.

1.       The contractor shall have a general lien upon all goods in his possession for all monies due to him from the customer or for liabilities incurred by him … etc

2.       We have a right to hold some or all of the goods until you have paid all our charges and other payments due under this contract.

There is no doubt that 2 is preferable. Does anything turn on using ‘right to hold goods’ rather than ‘general lien’? I doubt that a court would decide so. If they did, then you should definitely appeal! Customers, you can now breathe freely, you really don’t need a lawyer for this kind of thing.

Another issue is punctuation. I recall my English teacher in school pointing out that legal documents have no punctuation because otherwise legal doubt would occur as to their meaning. I found this puzzling and I was right to find it so. When I came to practise law, it seemed to me this is simply not the case. In fact (some will disagree) lack of punctuation is to my mind much more likely to create ambiguity; subordinate clauses qualify and explain main clauses (as he also taught us). As an editor I am forever inserting punctuation for the sake of clarity, but hardly ever removing it. Rather, the lack of punctuation is simply a cultural matter amongst lawyers. (OK, Steve, how many lines of an intelligible conveyance can you write without using any punctuation? Bet you a pint you can’t reach 14 without getting garbled).

Of course this trend often goes too far. As an articled pupil I wondered why every conveyance had a plan attached which was referred to somewhat as follows: ‘ … known as 53 Acacia Avenue which property is for the purpose of identification only more particularly delineated on Plan A attached hereto’. I pointed out with some temerity that ‘for the purpose of identification only’ was actually at odds with ‘more particularly delineated’. Which prevailed, the detailed description in the body of the document, or the attached plan? In practice the plan prevailed where there was doubt, but that was not what the conveyance actually appeared to say. I was told not to worry, as it was quite the normal expression! I hope somebody litigated this point and proved me technically right. But my real point is that culture trumps law even in the law itself. I was not of course thanked for raising a perfectly good, practical, point. It disturbed the furniture.

Interestingly enough in a recent case in India an appeal succeeded in the Supreme Court against a High Court order on the grounds that the language of the judgment was incomprehensible. You can judge this for yourself:

‘(The) … tenant in the demised premises stands aggrieved by the pronouncement made by the learned Executing Court upon his objections constituted therebefore … wherewithin the apposite unfoldments qua his resistance to the execution of the decree stood discountenanced by the learned Executing Court.’

Personally I have never seen so many Majorisms in one sentence. I heartily agree with their Lordships’ decision overturning the judgment, whatever that was.

So – let culture and let ordinary language prevail!  You may see something like the following, even in the new full-punctuation age:

‘.. which against him I have had, now have, or which my heirs, executors, or administrators, hereafter can, shall, or may have, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents ..’

If so, don’t be intimidated; my advice is to protest, and, above all, not to pay a cent for this kind of garbage! You first heard it here.