By Peter M. Tiersma
Legal Language& explains the origins, virtues, uses, and means of improving the language of the law.
University of Chicago Press (1999)
Reviewed by: Eric Howard
Despite widespread ridicule, legalese endures, even prospers. Tiersma, professor of law at Loyola Law School, delves into the ancient origins of English legalese, explaining the forces that have shaped it and that perpetuate it.
One of the most powerful of the forces shaping legalese is simple conservatism. Is it not good practice to reuse a document that has already passed muster, rather than write one from scratch? Thus, Tiersma demonstrates, a pleading in the twentieth century can read almost exactly like its counterpart in the fourteenth. With engrossing scholarship, Tiersma offers fascinating examples of how the legacies of the Norman Conquest (1066) may be found in your lease, or how the preference of legalese for certain sentence structures can be traced and explained.
Legalese was not always as bad as it is today. It used to be worse. Tiersma includes a notable example from the seventeenth century:
[The prisoner] sudenment throwe ove grand violence un great stone al heade del...Seignior Rychardson quel per le mercy del Dieu did come close to his hatt et missed him…et le stone hitt the wanescott behind them and gave a great rebound, quel si ceo stone had hitt le dit Seignior Rychardson il voet have killed him.
The law, he notes, is all words, and it needs to have the accuracy, clarity, and complexity that are equal to human experience. In particular, for the law to be effective it needs to hold the meanings of key words and phrases stable over time and among different people. Such is no easy task, but legal language is a considered response to this all-important need.
Tiersma points out that legalese is not always obscure or vague, and that when it is, it is often because someone wants it that way. The intimidating fine print on your loan agreement is meant to be intimidating, and it is better, after all, for a defense attorney to allude to the incident in which "Mrs. Jones experienced her unfortunate accident" rather than the one in which "my client ran over Mrs. Jones with his Jeep." In other instances, however, nothing more than bad habits, such as redundancy and overuse of the passive, make for obscurity. At times, however, legalese can be magnificent. Legal language is also the spoken language of the courtroom, and such a redundant phrase as "the truth, the whole truth, and nothing but the truth, so help me God" is legalese. Rhyme, repetition, and alliteration, in fact, have been a staple of the phraseology of the English courtroom since before the Norman Conquest, as people working without written instruments recited memorable principles in arguing and deciding cases. One example, translated into modern English: "No matter who bulls my kine, the calf is mine." Johnnie Cochran's famous rhyme, therefore, is as traditional as can be, as is Gerry Spence's rhyming summation of strict liability ("If the lion got away, Kerr-Magee has to pa").
The law is part of the social contract, however, and it is an injustice to expect that those who cannot understand it must obey it. Therefore, Tiersma argues that, especially in the areas of contracts and consumer documents, plain English needs to become the norm. Offering excellent, well-researched principles and examples, he shows how plain English has already been applied. The book contains useful appendices, including a loan agreement before and after a plain-English editing.
Cynics say that legalese exists to protect the employment of lawyers, but Tiersma argues that those who toil in the fields of legalese may best preserve their jobs by trimming the overgrowth.
Eric Howard is associate editor of Los Angeles Lawyer.