This article is written by Reema William Mascarenhas from University of Mumbai.
Table of Contents
Introduction
….It’s Gravity And Significance In The International As Well As In The Indian Legal Sphere….
“HUMAN LANGUAGE IS A RESULT OF DIVINE GIFT.” – this saying is very beautifully and amazingly put up by the most famous ancient Greek Philosopher Plato. ‘WORDS’ and ‘PHRASES’ used in the most frequent individual life is important and should be used in a correct and also in an acceptable manner. But, when it comes to the study of Law and also the use of words in the courtroom, the words used is a crucial weapon because, as we know the decisions taken the court is subjected to the authentication of the proof’s submitted along with the words, terms, expressions, idioms, as well as the turn of phrases raised by the legal practitioners. ‘LEGALESE’ is the language a lawyer may use in the court and also for the drafting of the legal documents.
Importance
In the study of the statutes, vocabulary has a great gravity. Cases are turned by the legal practitioner by choosing the accurate words by the facts submitted by their patron. The language that has to be learned in this period to become the top competent lawyer is tricky and at the same time very complex in nature.
It is the new territory and altogether a new area that has been chosen by many inquisitive souls, they ought to bump themselves into many lawful idioms that they did not master or learn before entering this noble profession. For instance, words and phrases like; Caveat, Magna Carta, Droit, Prima Facie, Wobbler, Res-Judicata, Estoppel and many more compel the freshers to receive some new terminology or vocabulary. Getting trained and studying these words and its definitions is required to understand and explain the decree or any order or any judgment passed by the Judge of the said case or matter.
There is some legal terminology that has an enlarged or a very wide meaning to it or, shrinks or replaces depending on the circumstances it’s been applied in. Marriage for example; there is a 30 days Residency Specification, which means that either the bride or the groom has to live in India for at least 30 days prior to applying to the local registry office to get married. Divorce for example; a person may have to file a divorce application as a resident of India if he/she has lived there for a term of 6 months to 1 years.
In law, there are some familiar words that have clearly contrasting meanings when used legally. For example; in non-legal settings ‘STAY’ is generally a synonym of ‘REMAIN’ but in the courtroom vocabulary the word ‘STAY’ is frequently referred to the ‘POSTPONEMENT OR SUSPENSION OF A JUDICIAL PROCEEDING’. Likewise ‘CONSIDERATION’ in legal terms means ‘A PRICE THAT THE PROMISEE AGREES TO PAY TO THE PROMISOR’ but the non-legal meaning of the term ‘CONSIDERATION’ is ‘THOUGHTFULNESS’.
It is quite important for every legal practitioner to know legalese (legal language) not only to interpret the matter and his patron’s side to the court but also to read and interpret it for the non-experts or common man who does not have knowledge of the vocabulary used in the decrees of the order’s passed by the court.
Complexity of Legal Language
The vocabulary that has been borrowed for the French and the latin language such as Ab Initio, Actus Reus, Hearsay, In Loco Parentis, Mens Rea, Pro Bono, Stare Decisis and many more, these words in any legal written documents do not make such decree heavy to comprehend. The syntax of these writings are very complicated. There is no certainty to the clauses put for a single sentence and as years go by the interpretation increases and the numbers of the clauses of these sentences increases at the same time.
Nonetheless, the continual length of these legal sentences is not only because of the structure used in these sentences. There are many efforts made to reduce this complexity and one such effort was the use of punctuation marks. The language used in these legal written documents is so unvaried and expansive that a common man has to consult a legal practitioner for understanding its meaning. Every legal expert once was a student, a student who had taken a lot of efforts to learn, understand and also respect these vocabulary. Every student has to have a great fondness for this linguistic accuracy.
It is very crucial to know the exact meaning and the definition of the words used because it is one of the most important and significant factors needed to become a competent and the most skilful legal practitioner. It is not just that the vocabulary, idioms, syntax, phrases that are important but along with this the legal practitioner who is drafting such legal documents is required to know the rightful use of the words as well as the punctuation marks which will make their patron’s legal document clear without any sort of ignorance and disorientation.
Criticism of Legal Language
These words and phrases which might be foreign to some or completely alien for the rest who come in the category of the common man. Taking this factor in mind it is clear that this vocabulary is quite ordinary for all the legal practitioners and the judges. Every legal practitioner must be particularly clear with the meaning and the definition of these words and phrases.
These all were quite important until now and would be important till many more years to come. These legal words and phrases or rather the entire legal language is very much important but now again like the question arises is; at what respect does the language get different from the language used commonly? Or; what makes the legal language tough and burdensome? The answer to this question and to such related and similar questions points towards the linguistic details which are in the legal writings. Vocabulary, syntax and semantics makes the legal language all the more burdensome to the layman. The layman finds these legal writings difficult because these vocabulary are borrowed from the French and the Latin language. If you need any legal writing or grammar assistant, please choose an acceptable essay service or company for this purpose.
David Mellinkoff who is a well-known and successful lawyer, a graduate of Stanford and Harvard law school, a Professor of Law at the University of California at Los Angeles. He is the one who made significant progress in the battle against verbose legal language. He has entitled law as a profession of the words he has defined legal language as ‘the customary language used by lawyers in those common law jurisdictions where English is the official language. It includes distinctive words, meaning, phrases and modes of expression as it is already stated above. As per him, legal language is a ‘label for a speech pattern with a separate identity’.
Issues with Legal Language – Case Laws
On 15th October, 2020, a Delhi based eminent lawyer in India that is Advocate Subhash Vijayran has recently filed the most unusual Public Interest Litigation which is most commonly known as PIL in the highest court of honour that is the Supreme Court of India under the name of SUBHASH VIJAYRAN V/S UNION OF INDIA. He wanted the courts to scrutinise within the judicial system. He wants the legislature and the executive of India to use more understandable English while drafting the laws, the bar council to also introduce plain English in law which is used in curricular and notices also to the Supreme Court to only allow crisp and accurate pleadings. He also begins the synopsis to the writ petition in the following way.
According to him ‘The writing of most lawyers is (1) Wordy (2) Unclear (3) Pompous and (4) Dull. We use eight words to say what can be easily said in two words. We use arcane words and phrases to express common ideas.’ In reply to the plea, the Supreme Court of India has asked the Ministry of Law and Justice and Bar Council of India to give a rejoinder or rather in a simple term to give a response to the plea.
In another judgement of the Supreme Court of India that is in the matter of SUBRAMANIAN SWAMY V/S UNION OF INDIA. It was clearly said that ‘this batch of writ petitions preferred under the Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right to freedom of speech and expression of an individual, exploring manifold and multi-layered, limitless, unbounded and unfettered spectrums and the control, restrictions and constrictions under the assumed power of reasonableness ingrained in the statutory provisions relating to criminal law to receive and uphold one’s reputation.’
In the year 2017, the Vidhi Centre for Legal Policy has produced a manual on plain-language drafting. One of the most famous Novelist George Orwell was perceptive of why the judgements are so verbose? And according to him ‘when you are composing in a hurry — when you are dictating to a stenographer, for instance, or making a public speech it is natural to fall into a pretentious, latinised style.’ Usually, the judges don’t write the judgements but they are the one who recites or rather read it out loud in the courtroom to the stenographers.
Need for Simple Language
Now the next question arises: what is the problem with legal language and why should we use plain English in the courtroom? It is really important to communicate simply and clearly. This helps facilitate the works to achieve justice and also makes the business of a lawyer and a judge simple. Which will eventually lead to fast court proceedings and settlements.
As per an excerpt from the Report of The Law Reform Commission of Victoria, “The language of the law has long been a source of concern to the community. It has been the subject of continuous literary criticism and satire. Critics have highlighted its technical terms, its convolution and its prolixity. These faults have been noted by judges and by practicing and academic lawyers as well. Calls have regularly been made for the use of a more simple and straightforward style. Some improvements have been made in response to those calls. But legal language remains largely unintelligible to most members of the community. It even causes problems for members of the legal profession. In some cases, the obscurity may arise from the complexity of the law and of its subject matter. In other cases, however, it is due to the complexity of the language in which the law is expressed. Some lawyers do not take sufficient care to communicate clearly with their audience. Letters, private legal documents and legislation itself are still drafted in a style which poses unnecessary barriers to understanding.”
“Many legal documents are unnecessarily lengthy, overwritten, self-conscious and repetitious. They consist of lengthy sentences and involved sentence construction. They are poorly structured and poorly designed. They suffer from elaborate and often unnecessary cross-referencing. They use confusing tautologies..They retain archaic phrases…They use supposedly technical terms and foreign words and phrases. They are unintelligible to the ordinary reader and barely intelligible to many lawyers.”
Conclusion
Until the time there are some decisions taken by the courts for the legal language and the difficulty with the use of it for everybody in general, such language is surely a necessity. But as of now, the question still unanswered is whether the Supreme Court of India will simplify language or will complex language be used even more in the coming future?
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