FADING CHARM OF LEGALESE IN PLEADING AND DRAFTING: PUTTING AN END TO THE COLONIAL ERA
Author: Sarabjit Kaur, III year of B.A.,LL.B. from Lloyd Law College, Greater Noida.
“The Language of the Law must not be foreign to the ears of those who are to obey it”
- Billings Learned Hand
Human beings are an integral part of society as remarked by Aristotle that “Man is a social animal”. In such a scenario, human beings that are thriving in society are bound to express themselves. Communication is the essence of society, and language is the soul of the law. The art of articulating thoughts and expressions is often regarded as the road to “thinking like a lawyer”. It cannot be denied that eventually “it is in the loom of language that all law is spun.”[i]
The use of legal language in India can be traced back to the establishment of courts in Presidency towns by the East India Company. The common laws from England were being followed in the Indian Courts paving way for the recognition of “English” as the legal language in the Courts throughout India. Post-independence, the English language was used as the official language in Courts for a period of ten years which is still in practice today. Article 348 (1) of the Constitution of India provides that all proceedings in the Supreme Court and in every High court shall be in the English Language until Parliament by law otherwise provides.
Lawyers do not use plain English. The English used in legal language is considerably different from plain English. Redundancy replaces precision, verbosity replaces caution, arcane phrases replace common-sense ideas, and eight words replace what could be said in two.[ii] Legal English includes “distinctive words, meanings, phrases, and modes of expression”[iii]. It is based on an altogether different syntax, semantics as well as vocabulary which have been extensively drawn from old English, Latin and Norman French.
The difference is plain and legal English can be understood with the help of an example. For instance, in plain English, the word ‘consideration’ is meant to consider something or to take it into account or to acknowledge but with the blending of the law in between, it means “When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise” as prescribed in Section 2 (d) of the Indian Contract Act, 1872.
Similarly, consent in plain English refers to an agreement to something but in legal English, the definition of consent varies depending on the nature of legislation. Section 13 of the Indian Contract act, 1872 defines consent as “when two parties entered into the contract there should agree upon the same thing in the same manner”. However, Explanation 2 to section 375 Indian Penal Code defines consent as “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.”
Legal Language has evolved due to historical, political, jurisprudential and sociological causes but it cannot be simplified for the understanding of a layman as most lawyers state that the problem is not with the complexity of legal language but the problem lies with the conceptual complexity of the law.[iv]
Peter Tiersma in ‘Legal Language’ has explained that a layman is unable to comprehend the legal language because it is full of unusually lengthy sentence structures, complex vocabulary and redundancy. The difficulty in comprehending the legal language is associated with archaism, use of doublets and triplets, loan words and jargons. Since ‘you cannot ask for Rights when you don’t know about them,’ ignorant people are denied basic rights. This often ends up creating barriers to justice as most of the illiterate, poor, underprivileged clients are unable to understand their rights. ‘The limits of language are the limits of knowledge for, it is the language which makes you think, think a little better, a little clearer.’
It is imperative to impart proper language skills to the law students to avoid poor drafting during practice wherein the client becomes the biggest victim. In Jai Pal Shishodia v. Poonam Rathore and Ors[v], the High Court overturned the lower Court’s decision as poor drafting of pleadings led the trial court to incorrectly inferring a fact and finding against the party. In the study of law, language has great importance; cases turn on the meaning that judges ascribe to words, and lawyers must use the right words to effectuate the wishes of their clients.[vi]
It is essential to rewire young minds during their journey through law school. However, legal language as a subject is taught only in the first year of law school throughout the country. Where after, the use of proper legal language can make or break a case, it is the need of the hour to call for peremptory reforms of uniformly distributing the subject through the entire course of study.
It is equally important to provide assistance and ancillary vocational training to the students who are not proficient in English. Employment of Content-Based Education (CBE) i.e. ‘the concurrent study of language and subject matter’ can help in achieving competitive competence in a more efficient manner. Finally, as David Mellinkoff beautifully observed that “Law is a profession of words” and mastering the art of using the right words in the right context is the golden gateway to becoming an exemplary lawyer!
[i] C.G. Weeramantry, The Law in Crisis 133 (1975).
[ii] Richard Wydick, Plain English for Lawyers, (5th ed, Carolina Academic Press, 2005).
[iii] David Mellinkoff, The Language of the Law, 1963.
[iv] Crandall Joann & Charrow Veda, Linguistic Aspects of Legal Language (1990).
[v] Jai Pal Shishodia v. Poonam Rathore and Ors, 191 (2012) DLT 487.
[vi] Prof. Sheila Hyatt, ‘Legal Language’ (Law.du.edu, 2018)<https://www.law.du.edu/index.php/law-school-learning-aids/legal-language> accessed on May 5, 2020.