Illuminate Legal Terminology™
Law Explorers

Legal research, legal writing, and legal translation are the lights that illuminate the dark, unknown regions in the universe of law.

Research

Can we translate our customary methods and techniques when research transports us into another legal culture?

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Writing

Cultures and legal systems other than our own have made valuable contributions to the history of written law.

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Translation

Translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.

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LANGUAGE & LAW

There are a number of positive reasons to associate the mythical Egyptian deity Thoth with the language of the law.  Thoth was a god of “scribes and writing” as well as “wisdom and justice,” and “[t]he Greeks viewed him as the source of all wisdom and the creator of languages.”[1]

But Thoth’s association with the language of the law (or legal language)[2] also includes one negative legacy.  The adjective “hermetic”[3] derived from the name[4] “Hermes Trismegistus,”[5] which the Greeks gave Thoth based on “the belief that [he had] invented a magic seal to keep vessels airtight.”[6]

The union with language is indispensable to law:

  • Language expresses law and legal thoughts.[7]
  • Language influences the development of law and legal ideas.[8]
  • Language reveals “foreign influences.”[9]
  • Language performs a “central role . . . in achieving results through law.”[10]

Knowledge of legal language benefits both the individual[11] and the public,[12] but both legal language and legal terminology have been criticized as hermetic[13] and inaccessible.[14]  Too frequently, comprehension is no more than an illusion.[15]

Legal language is very, very different from ordinary language.  It is a language for special purposes[16] (LSP),[17] and it is a distinctive[18] language in which we encounter “common words with uncommon meanings.”[19]

The English language has its notorious legal jargon,[20] legalese,[21] and gobbledygook,[22] but the difficulties of legal language are not limited to English or the Common Law tradition:[23]

  • the Talmud of Judaism has its “Aramaic-Hebrew jargon”;[24]
  • Spanish has its “jerga molesta o insufrible”;[25] and
  • French has its “effet Thémis.”[26]

Communication in a global, multilingual, or multicultural forum requires us to upgrade our knowledge of legal language and the terminology of law.[27]  The movement for the use of “plain language”[28] in law has attracted attention around the world,[29] but the improvement of legal language is not a simple task — legal language is complex because law is complex.[30]

We promote communication when we explore the languages of not only our own legal system but also those of other legal systems.  Language and legal terminology continually change, so our adventure will never end!



[1] Denise M. Doxey, “Thoth,” in The Oxford Essential Guide to Egyptian Mythology, ed. Donald B. Redford (New York: Berkley Books, 2003), 354.

[2] Law Explorers® will use the expressions “the language of the law” and “legal language” as if they are interchangeable.  Although “legal language” is commonly used now, Professor David Mellinkoff opined that “[t]he ‘language of the law’ is a convenient label for a speech pattern with a separate identity,” specifically for “the customary language used by lawyers in those common law jurisdictions where English is the official language.”  David Mellinkoff, The Language of the Law (Eugene: Resource Publications, 2004), 3 (italics replaced by single quotation marks; reference omitted). 

Mellinkoff explained that he preferred “the language of the law” over “legal language” because “‘legal’ is so frequently and properly used to mean ‘lawful’ as to cause confusion at the outset.”  Mellinkoff, The Language of the Law, 3-4 (italics replaced by single quotation marks; reference omitted).  Which expression can we translate with more precision, “the language of the law” or “legal language”?

[3] The senses of the adjective “hermetic” include “impervious to air,” “impervious to external influence,” and “relating to or characterized by occultism, alchemy, magic, or whatever is obscure and mysterious.”  Webster’s Third New International Dictionary: Of the English Language Unabridged; with Seven Language Dictionary, s.v. “hermetic.”

[4] The Greek term ὄνομα signified name.  [Henry George Liddell and Robert Scott], A Lexicon: Abridged from Liddell and Scott’s Greek-English Lexicon (Oxford: Oxford at the Clarendon Press, 1996), s.v. “ὊΝΟΜΑ.”  We encounter that term in some of the terms that we use in the study of language and meaning, such as “antonym” and “homonym.”  Agustín Mateos Muñoz, Compendio de etimologías grecolatinas del español, 37th ed. (Naucalpan: Esfinge, 1998), 230.

[5] Robert K. Barnhart and Sol Steinmetz, eds., Chambers Dictionary of Etymology (Edinburgh: Chambers, 2008), s.v. “hermetic.”  An alternative spelling is “Hermes Trismegistos.”  Webster’s Third New International Dictionary, s.v. “hermetic.”  According to one explanation, “[b]ecause Thoth was the divine messenger, the Greeks associated him with Hermes, calling him Hermes Trismegistos (‘thrice great Hermes’).”  Doxey, “Thoth,” 353 (double quotation marks changed to single).  

[6] Webster’s Third New International Dictionary, s.v. “hermetic.”

[7] Although “legal regulation can be expressed by non-linguistic means, such as traffic signs,” language is the dominant vehicle for expression in law:

Generally, law is expressed through language and the language is a medium of legal thoughts.  Communication among all actors in public or private legal relations can only be pursued through the language common to all participants in the respective legal act.  The first step towards understanding law is to understand the language through which the law is expressed.

Marta Chromá, Legal Translation and the Dictionary, Lexicographica: Series Maior (Tübingen: Max Niemeyer Verlag, 2004), 13; ibid., n. 18.

[8] After she examined the effects that language has had on the English Common Law, the Islamic, and the Chinese legal traditions, author Sharron Gu concluded that her “general review of legal history illustrates that a particular language at a particular point in its history shaped the law and the legal ideas of a given society.”  Sharron Gu, The Boundaries of Meaning and the Formation of Law: Legal Concepts and Reasoning in the English, Arabic, and Chinese Traditions (Montreal: McGill-Queen’s University Press, 2006), 190.

[9] What can linguistics reveal about law and legal language?

[Legal linguistics] uses statistical methods that complete the picture of legal language — and of the law itself — obtained through other sources of information.  Regularities that can be observed in usage of legal language are of great interest from the standpoint of theory and sociology of law.  By the same token, foreign influences on national legal science can be brought into the open.

Heikki E.S. Mattila, Comparative Legal Linguistics, trans. Christopher Goddard (Farnham: Ashgate, 2009), 15.

[10] “At the heart of both linguistic and legal study of legal processes is the recognition of the central role of language in achieving results through law — whether formally (winning cases, composing legislation, writing appellate decisions) or informally (mediation, lawyer-client conversations).”  Elizabeth Mertz and Susan U. Philips, “Institutional Linguistics:  Law and Language,” in International Encyclopedia of Linguistics, ed. William J. Frawley, 2nd ed. (New York: Oxford University Press, 2003), 2:287.

[11] Professor B.M. Gandhi noted that, under the Constitution of India, “[l]egal language and its knowledge is necessary to know one’s fundamental rights.  It helps to defend others who are unaware of it.”  B.M. Gandhi, Legal Language, Legal Writing & General English (Lucknow: Eastern Book Company, 2009), 10; ibid., n. 27.

[12] One of the important functions of legal writing is to promote security by spreading knowledge of law:

The legal use of writing can be seen in the tabulated Codes of Law, fragments of a number of which still survive. . . . There will be no need to stress the importance of such published Codes in the establishment of a stable form of society.  So long as knowledge of the laws of a community remains inaccessible to most of its members, they will feel themselves insecure, at the mercy of what will appear (whether rightly or not) as the arbitrary dictates of a select minority.  When the laws are made a matter of public knowledge, this uncertainty is removed.

Alfred C. Moorhouse, The Triumph of the Alphabet: A History of Writing (New York: Henry Schuman, 1953), 185-86.

[13] The hermetic nature of legal language and terminology is, at least in part, a by-product of the nature of the legal profession:

The fact that lawyers have long formed a separate profession has generally contributed to ossification of legal language. . . . In England, the legal profession, formed by judges and advocates, has been especially hermetic, as remains evident in the archaic terminology of legal English.

Mattila, Comparative Legal Linguistics, 58.

[14] Some have complained that the language in many Spanish legal texts is inaccessible to ordinary people:

[S]e puede afirmar que, en líneas generales, muchos textos del español jurídico se han «oscurecido» innecesariamente, para dar la impresión de contener conceptos misteriosos y complejos que, por no poderse expresar de otra forma, son inaccesibles al común de los mortales.

Enrique Alcaraz Varó and Brian Hughes, El español jurídico, rev. Adelina Gómez, 2nd ed. (Barcelona: Ariel Derecho, 2009), 135 (internal reference omitted).

Others have expressed similar concerns about the legislative and judicial language of France, where there has been general interest in favor of clearer, simpler, and more accessible legal language:

La modernisation du langage judiciaire et la simplification du langage législatif sont aussi en France des thèmes mobilisateurs qui préoccupent les pouvoirs publics.  De ce côté ou de l’autre de l’Atlantique, l’intérêt en faveur d’un langage juridique plus clair, plus simple, plus accessible est général. . . . Clarté, accessibilité, lisibilité, simplification, on admettra que, sous leurs nuances, ces formules répondent à des aspirations équivalentes (on dira accessible ou lisible, un langage facile à comprendre, aisément intelligible), équivalentes en ce que des conséquences pratiques ne se déduisent pas sans peine de ces intentions louables.

Gérard Cornu, Linguistique juridique, 3rd ed., Domat droit privé (Paris: Montchrestien, 2005), 9 (references omitted).

[15] “[I]n legal language the words of ordinary language often have a technical meaning hidden behind an apparently clear expression.  This gives rise to the problem of illusory comprehension: the reader imagines having understood the text, although the reality is that this understanding amounts to misunderstanding.  Illusory understanding is often far more dangerous than the situation where the reader notices at once that he does not understand the text.”  Mattila, Comparative Legal Linguistics, 100.

[16] “There is no limit to the number of special purposes to which language can be put.  As society develops new facets, so language is devised to express them. . . . [S]pecial styles have developed associated with religion, law, politics, commerce, the press, medicine, science, and the Internet.”  David Crystal, The Cambridge Encyclopedia of Language, 3rd ed. (Cambridge: Cambridge University Press, 2010), 398.

[17] In this context, the abbreviation “LSP stands for Language for Special [Purposes] or [Language] for Specific Purposes.”  Giuseppe Palumbo, Key Terms in Translation Studies (London: Continuum, 2009), s.v. “specialist translation.”

[18] What distinguishes legal language from other varieties of language?  One reason is that “[t]here is no other variety where the users place such store on the nuances of meaning conveyed by language, where unstated intentions are so disregarded, and where the history of previous usage counts for so much.”  Crystal, The Cambridge Encyclopedia of Language, 406.  Another reason is that “[legal language] presupposes the existence of a legal system and presupposes particular rules of law, against the background of which legal language obtains its meaningfulness and particular meaning, and because of the distinctive features of rules of law as rules.”  Deborah Cao, Chinese Law: A Language Perspective (Aldershot: Ashgate, 2005), 173 (references omitted).  A third reason is “the complex and unique legal vocabulary”:

It is commonly acknowledged that one distinctive feature of legal language is the complex and unique legal vocabulary.  Legal terminology is the most visible and striking linguistic feature of legal language as a technical language, and it is also one of the major sources of difficulty in translating legal documents.  This common feature of the language of law is found in most languages, but there are unique features in each language.

Deborah Cao, Translating Law, Topics in Translation 33 (Clevedon: Multilingual Matters, 2007), 53.

[19] Mellinkoff included the “[f]requent use of common words with uncommon meanings” among what he considered to be “[t]he chief characteristics of the language of the law.”  Mellinkoff, The Language of the Law, 11.  According to Mellinkoff, “Nothing serves better to mark the gulf between the language of the law and the common speech than a listing of common words that mean one thing to the eye or ear of the non-lawyer, and may mean something completely different to the lawyer.”  Mellinkoff, The Language of the Law, 11.

[20] Here is a relevant definition of the word “jargon”:

Technical terms and expressions used by a group of specialists, which are not known or understood by the speech community as a whole.  Every subject has its jargon, which can contribute to economy of communication and precision of thought among those who belong to the group.  Objections arise when practitioners use jargon unthinkingly or excessively, in contexts where outsiders feel they have a right to comprehension, such as in relation to medicine, law, and the civil service.

David Crystal, A Dictionary of Language, 2nd ed. (Chicago: University of Chicago Press, 2001), s.v. “jargon.”

[21] “Legalese is more than merely the ‘language of lawyers’.  Rather, it is the language that lawyers would not use in ordinary communication but for the fact that they are lawyers.”  Peter Butt and Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language, 2nd ed. (Port Melbourne: Cambridge University Press, 2007), 144 (reference omitted).

[22] The term “gobbledygook” was created by an American lawyer, Maury Maverick, who used it in the New York Times Magazine of May 21, 1944.  Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v. “gobbledygook.”  To Maverick, the term signified “not only big foolish words but also wasted words.”  Maury Maverick, “The Case Against ‘Gobbledygook,’” reprinted in Rudolf Flesch, The Art of Plain Talk (New York: Harper & Brothers, 1946), 127.  Maverick offered this explanation of gobbledygook:

First, the word:  it is long, sounds foreign, has four stories.  You walk up without benefit of elevator.  Second, its definition:  talk or writing which is long, pompous, vague, involved, usually with Latinized words.  It is also talk or writing which is merely long, even though the words are fairly simple, with repetition over and over again, all of which could have been said in a few words.

Maverick, “The Case Against ‘Gobbledygook,’” 123-24.

[23] Professor Peter Tiersma noted “that complex legal language bedevils many countries that do not share the common law tradition”; he cited Sweden and Japan as examples. Peter M. Tiersma, Legal Language (Chicago: University of Chicago Press, 2000), 214.

[24] Rabbi Adin Steinsaltz commented on the problems that jargon presented following the distribution of the Babylonian Talmud:

Copies of the Talmud or of isolated tractates reached all the Jewish communities, including the remotest settlements in Asia, Africa, and Europe.  But from the first it was a difficult subject of study even for the most gifted of scholars. . . . The language also created problems; the Aramaic-Hebrew jargon in which the Talmud was written remained the dialect of Babylonian Jewry for many generations, but in other countries the Jews spoke indigenous dialects.  Even in Babylonia, Aramaic eventually yielded to Arabic, brought in by the Moslem conquerors in the mid-seventh century.

Adin Steinsaltz, The Essential Talmud, trans. Chaya Galai (London: Weidenfeld and Nicolson, 1976), 64-65.

[25] Alcaraz Varó and Hughes, El español jurídico, 22.  The Spanish noun jerga and its probable English equivalent “jargon” share a common origin (Old French) and a common meaning (the specialized language or terminology of a profession or group).  Guido Gόmez de Silva, Breve diccionario etimológico de la lengua española, 2nd ed. (México: Fondo de Cultura Económica, 2009), s.v. “jerga”; Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v. “jargon.”  The noun “argot” is a synonym of jerga in Spanish and of “jargon” in English and French.  Joaquín Dacosta Esteban, ed., Diccionario de sinónimos y antónimos, with the assistance of Ana María Sánchez Mora, Laura Zorrilla Ortiz de Urbina, Patricia Villamor García, Lyliana Colotto Navarece, Marina Conde Morala, Alicia Martínez Yuste, and Juan Fernández Fernández (Madrid: Gredos, 2009), s.v. “jerga”; William C. Burton, Burton’s Legal Thesaurus, ed. Brian Burton, 4th ed. (New York: McGraw-Hill, 2007), s.v. “jargon (Technical language)”; Dominique Le Fur, ed., Dictionnaire des synonymes, nuances et contraires, Collection Les Usuels (Paris: Le Robert, 2005), s.v. “jargon.”

[26] Professors Jean-Louis Sourioux and Pierre Lerat described what they called “l’effet Thémis” in the sociolinguistics of law:

La socio-linguistique se propose d’analyser la variabilité de l’expression en fonction des différents paramètres de la communication, c’est-à-dire de rechercher who speaks what language to whom and when et d’interpréter les variations.  Il y a donc lieu de considérer comme constituant le domaine d’une socio-linguistique juridique d’une part la communication dans le droit et d’autre part la façon dont le langage juridique est reçu par le public, ce qu’on pourrait appeler « l’effet Thémis ».

Jean-Louis Sourioux and Pierre Lerat, Le langage du droit, Le juriste 6 ([Paris]: Presses Universitaires de France, 1975), 63 (emphasis modified; reference omitted).

The name “Themis” may sound unfamiliar, but many of us are familiar with her legacy to the semiotics of law.  Themis was a personage of Greek mythology who “was considered as the first of the gods who established the laws of religion, of sacrifices, of divination, and whatever tends to the harmony and peace of society. . . . Among the moderns she is represented as holding a sword in one hand, and a pair of scales in the other.”  John Lemprière, Lemprière’s Classical Dictionary, rev. ed. (London: Bracken Books, 1994), s.v. “Themis.”  Her symbol was the scales of justice, which "represent balance; equality; justice; harmony; economy" in addition to “law, order and truth.”  J.C. Cooper, An Illustrated Encyclopaedia of Traditional Symbols (New York: Thames and Hudson, 1979), s.v. “scales.”

Professor Bernard S. Jackson noted that Ferdinand de Saussure used the scales of justice as an example of a symbol.  Bernard S. Jackson, Semiotics and Legal Theory, Legal Semiotics Monographs ([Liverpool]: Deborah Charles Publications, 1997), 17.  According to de Saussure, “our symbol of justice, the scales, could hardly be replaced by a chariot.”  Ferdinand de Saussure, Course in General Linguistics, eds. Charles Bally and Albert Sechehaye, with the collaboration of Albert Riedlinger, trans. Roy Harris (Chicago: Open Court, 2009), 68.

[27] Dedication to the study of language will help us develop the capacity to comprehend and use our own language as well as foreign languages:

Only a purposive study of the characteristics of legal language will clearly reveal the shortcomings of that language.  Such studies enable improvements in the quality of legal language.  When this language provides the focus of explicit attention, lawyers are better placed to see the related problems. . . .

Today, it is often not enough for lawyers to be familiar only with their own language.  They need to cooperate with foreign colleagues. . . . Lawyers with an overall picture of the history, structure, and basic vocabulary of a foreign legal language are better placed to learn more easily and rapidly the particular terminology and style of this language in the field of their specialism.

Mattila, Comparative Legal Linguistics, 20.

[28] Lexicographer Bryan Garner has defined “plain language” as “the idiomatic and grammatical use of language that most effectively presents ideas to the reader.”  Bryan A. Garner, The Elements of Legal Style, 2nd ed. (New York: Oxford University Press, 2002), 5.  According to Garner, “The fundamental principle is that anything translatable into simpler words in the same language is bad style.”  Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. (New York: Oxford University Press, 2011), s.v. “Plain Language . . . B. Definitions.”  Garner concedes, however, that “[c]omplicated language occasionally proves unavoidable.”  Garner, The Elements of Legal Style, 5.

[29] In addition to the Plain English Movement in the United States and its counterparts in the United Kingdom, Canada, and Australia, “[s]uch diverse countries as Ghana, India, New Zealand, Papua New Guinea, Singapore, and South Africa have shown interest” in the movement for the use of plain language in law.  Tiersma, Legal Language, 220-22.

[30] As Professor Gérard Cornu noted, “Ce n’est pas seulement ni même principalement le langage du droit qui est compliqué.  C’est le droit.”  Gérard Cornu, Linguistique juridique, 3rd ed., Domat droit privé (Paris: Montchrestien, 2005), 9.  That characteristic is reflected in legal translation, in which “[t]he nature of law and legal language contributes to the complexity and difficulty.”  Cao, Translating Law, 23.

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Data
Title of page Language & Law
Address of page http://lawexplorers.com/language-law.html
Languages English; Hebrew; Spanish; French; Greek
Terms and phrases language of the law; legal language; hermetic; legal terminology; inaccessible; ordinary language; legal jargon; legalese; gobbledygook; jerga; effet Themis; communication; global; multilingual; multicultural; plain language; terminology; legal system
Symbols, icons, designs, and works of art scales of justice
Events Talmud
Publications Legal Translation and the Dictionary; International Encyclopedia of Linguistics; The Triumph of the Alphabet; El espanol juridical; The Essential Talmud; Le langage du droit
Authors David Mellinkoff; Sharron Gu; Heikki Mattila; B.M. Gandhi; Gerard Cornu; David Crystal; Deborah Cao; Peter Butt; Richard Castle; Maury Maverick; Peter Tiersma; Bernard Jackson; Ferdinand de Saussure; Bryan Garner
Deities and other sources of divine inspiration, authority, or action Thoth; Hermes Trismegistus; Themis