Legal Brief for August, 2024

The Three Languages Of Law

I am often asked by clients to interpret the "legalese" that is found in the documents that I have prepared for them or that they are asking me to advise them on.  These requests often are conveyed in a tone of exasperation that alludes to the thought "why can't you lawyers just use plain English like the rest of us?"  A quick response to this question is to reply that every profession develops its own specialized language and vocabulary and there is no reason why "the law" should be any different.  Whether we are dealing with doctors, accountants, engineers, architects and the like, we all encounter their use of phrases and jargon that are meaningless to us.  There are unique factors that have influenced the development of "legal English" that account for some of what the layperson derides as annoying.

The legal terms in use in Canada are direct descendants from the English legal system which we inherited with the colonial development of this country.  After the Norman conquest in 1066 the English courts functioned with three languages in daily use - Latin, French and the still developing English.  Latin was used from the earliest days of the English system partly as an outgrowth of the Roman occupation of England during the first centuries of the common era and also because of the fact that Latin was a very precise language, which reduced the possibility of differing interpretations of words.  French became commonly used in England after 1066 because of the fact that William the Conqueror and his successors spoke French and wanted the courts to function in a language that they understood.  And of course English was also used because it was the language of the "common man" but due to so many regional variations it was often unsuitable for official use.

These three languages flowed along together like currents of the same river for hundreds of years after 1066.  Lawyers during those times had to become fluent in each of them in order to be able to properly provide their services.  Formal Court judgments were recorded in Latin until as late as the mid-1700's.  French was considered the language of the "learned classes" and as the Roman impact on France was greater, there had also developed a large body of case law which was in French that related to Roman legal concepts embodied in Latin.

This mixture of the three languages is also the reason why in many legal documents terms are expressed in doublets or triplets.  Phrases such as "armed and dangerous", "cease and desist", "goods and chattels", "null and void", "give, devise and bequeath" and "transfer, deliver and convey" are direct examples of how lawyers in the Middle Ages in England struggled to find the right words from each of the three legal languages to express what was being dealt with.  As noted by one legal commentator:

"As lawyers and contract writers tend to be cautious, they felt that using every possible word in their legal documents would make their documents watertight.”

It may be archaic to many why these phrases continue to be used in modern legal documents, but any lawyer who has sat through many tedious hours of law school lectures on contract and property law, and has read volumes of case reports will definitely attest to the fact that there are subtle differences in these terms that still make them useful and important in legal documents many centuries after they developed in the legal halls and courts of England.