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The Romance of Legal English

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The Romance of Legal English

history of legal english development

Hello and Happy New Year!

Christmas holidays are supposed to be a festive time when families and friends come together to enjoy food, drinks and each other’s company. I’m leaving Baby Jesus out of it not to be disrespectful but because I’m having a bit of a hard time squeezing him into the point I’d like to make. ?

At this time of the year, we hear an abundance of pleasant words such as jingle, merry, gifts and lamb which immediately set the mood right. However, this year the Christmas glossary somehow also included words like bug, headache and snot – so much for the mood, then. Everyone, including myself, came down with something and it was rather difficult to feel festive coughing my head off surrounded by snotty handkerchiefs.

Anyway, I was determined to enjoy the season and start the New Year on a positive note so I devote this post to what I find beautiful about Legal English.

Teaching Legal English may sound like (and often is) a drag. It’s hard to turn a lesson on real estate law into a vivid and fun group discussion no matter how passionate the students feel about the subject. There are times, though, when the subject offers an exciting peek into the past and sparks a rare debate on the history of the English language and its development.

I’m talking about the archaic and peculiar nature of legal vocabulary and grammatical structures, of course. Believe it or not, I’ve spoken about William Shakespeare and Beowulf more often in my Legal English classes than the General English ones!

The history of Legal English is long and eventful. To keep it simple, let’s just say its historical milestones are closely linked to the conquests of Britain and the linguistic influences brought about by the conquerors. Therefore, reading a legal text today often feels like time travel where bits and bobs of languages otherwise long gone or transformed into something entirely different are still present, alive and well.

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The Romans and Latin

The Roman invasion (from AD 43) brought about prominence of Latin as the language of elites, politics and, of course, law. Modern Legal English still uses many Latin expressions and words of Latin origin with meanings usually expressed by other words in General English.

 

e.g. inter alia, bona fide, ad hoc, ex parte etc.

 

In the US, a subpoena (from Medieval Latin sub pena – under penalty) compelling a witness to appear in court often ends with the dramatic archaic threat:

 

“Fail not, at your own peril.”

 

If you’re not familiar with the meaning of peril (from Latin periculum – attempt, trial, experiment; risk, danger) or the old-fashioned structure of “fail not”, you may not be particularly shaken but translate it into plain English and the chills are there immediately:

You can be arrested if you do not show up at the court.

You would go, wouldn’t you? ?

 

THE ANGLO-SAXONS AND OLD ENGLISH

The Germanic invaders (the Angles, Saxons and Jutes, circa 410) discussed their legal matters in Germanic vernacular, which later developed into Old English.

The first Germanic language law code, The Law of Æthelberht (dating to the early 7th century) is thought to be the first document written in Old English and the earliest law code of any kind written in any Germanic language.

I’m not going to quote Old English here because 1) I can’t and 2) my computer doesn’t have an Old English keyboard. Anyway, the Anglo-Saxon influence is present all over Modern English.

For example, if you ever find yourself in need to say the following:

“All right, you liar! Cut it out or I will kick your arse!”,

you might feel bolder knowing that all the words in this sentence are either directly inherited from Old English or formed from Anglo-Saxon roots. (This is where I mention Beowulf in class.)

 

Enter William the Conqueror!

The year of 1066 marked the Norman invasion and the next 300 years of Anglo-Norman French which later developed into Law French and became the official language of legal proceedings. Law French suffered a lethal blow in 1362 when the Parliament finally had it and enacted the Statute of Pleading (or the Pleading in English Act 1362) which complains that because the common people of England did not speak Norman French, they were left in the dark regarding the legal matters they were involved in. The Act stipulated that:

 

“All Pleas which shall be pleaded in [any] Courts whatsoever, before any of his Justices whatsoever, or in his other Places, or before any of His other Ministers whatsoever, or in the Courts and Places of any other Lords whatsoever within the Realm, shall be pleaded, shewed, defended, answered, debated, and judged in the English language, and that they be entered and inrolled in Latin”.

 

OK, clear enough. Stop with the French, speak in English, write in Latin. But this is where it gets interesting!

Apart from the old form of show (‘shewed’) and the archaic spelling of enrolled (‘inrolled’), you could easily slip this sentence into a modern contract, complete with the shall’s, the whatsoever’s and the passives. I’m quite sure my students wouldn’t even blink if they came across it. 1362!

If you’re interested what Anglo-Saxon (Old English) and Middle English may have sounded like, click here. 🙂

ENGLISH ONLY, PLEASE! SERIOUSLY.

Latin, however, continued to be used in written legal documents until 18th century when it was replaced by English in the Proceedings in Courts of Justice Act 1730. Because only highly educated people were fluent in Latin, it was never actually spoken in court proceedings. However, you might still catch it in courtrooms today. The words objection, litigation and judge are all of Latin origin.

obiection (Lat.) – a throwing or putting before

litigare (Lat.) – to dispute, carry on a suit

iudex (Lat.) – one who declares the law

 

WHAT ABOUT WILLIAM SHAKESPEARE?

We have skipped the turn of 16th-17th century, missing one of the greatest influencers (to use a trendy word) of the English language. William Shakespeare (1564 – 1616) was, without question, a master of eloquence. He invented many words and phrases that we commonly use today. That’s a well-known fact and a lot has been written on the subject. What’s perhaps less known is that he was a master of legal terminology, as well. It’s actually one of the main features of his style. Examples can be found in many of his dialogues.

 

As Professor Crystal points out:

“He seems to know them inside out. [ ]Words like ‘accusation’, ‘sentence’ and ‘execution’ belong to criminal law. Words like ‘statute’, ‘franchise’ and ‘counsellor’ belong to civil law. Words like ‘surety’, ‘indenture’ and ‘audit’ belong to commercial law. Just think of all the terms to do with the hearing of a case: ’cause’, ‘party’, ‘petition’, ‘suit’, ‘hearing’, ‘warrant’, ‘redress’, ‘oath’, ‘resolution’, ‘action’, ‘witness’. They all turn up in Shakespeare, and some of them very frequently. ‘Suit’ and ‘witness’ turn up over 100 times each, for example. [ ] All kinds of characters, from highest to lowest, sprinkle their speech with legalisms.

from Speak, in the Name of Law (D. Crystal, Entertainment Law Journal, Volume 1, No. 2, p. 110-111, Frank Cass, London)

Even the skull in Hamlet belongs to Yorick, the court jester! (OK, not a court of justice jester, more like a royal court jester but I just couldn’t help the joke!  :-))

Isn’t that fascinating?

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Summary

Knowing all this, you can’t help but read legal texts with a new perspective. Suddenly, the dry wording of contracts gains a new, more romantic quality, evoking images of medieval battles, kings and queens and starched collars. I think it would be a great shame not to include this in a Legal English course. I often slip snippets of the English language history into my classes, usually accompanied by my typical:  “Isn’t that fascinating?” The students usually laugh or throw in a slightly sarcastic “amazing!” but they never seem bored or overwhelmed. Why should they? They’re bright. They can take it. ?

Negation in Legal English – no vs. not

Negation in Legal English – no vs. not

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Negation in Legal English – no vs not

Hello again!

Today we’ll be looking at a language point which is fairly straightforward but which can be rather tricky and prone to mistakes – the use of no and not.

Negation in Legal English – no vs. not

General English

In General English, there are various different ways of forming negatives. Of course, the most common way is to negate the verb, but we can also use adverbs, quantifiers and prefixes to make a meaning of a sentence or a word negative.

A few examples to illustrate:

1. the use of not

  • with verbs and quantifiers

He’s outside. – He‘s not outside. (the verb ‘to be’ with not)

They finished early. – The didn’t finish early. (full verb “finish” with an auxiliary verb carrying the negative)

Not many people want to be referees – it’s a lot of hassle and not much money. (not with quantifiers much/many)

“Is it always so cold here?” “No, not always.” (not with an adverb)

  • We can also use not with adjectives:

Howard found the exam not (too) difficult.

 

! Adding not with an adjective weakens the adjective but does not carry the same meaning as the opposite adjective.

Compare:

The exam was easy. / The exam was not too difficult.

(The speaker is more confident of passing the exam in the first example.)

2. the use of no

  • We use nowith nouns 

You’ll get no answers from them. / You won’t get any answers from them.

(no difference in meaning although the first example sounds a bit more emphatic)

! Sometimes, there is a change of meaning from a statement of fact to an expression of opinion)

Compare:

She’s not a dancer. (fact) / She’s no dancer. (opinion)

  • andwith some phrases commonly used in informal English:

“The computer’s not working again” “No wonder, it’s not plugged in!”

“Thanks for the lift!” “No problem.”

  • we also use nowith good, different and comparatives

Low impact aerobics is basically no different from the normal type but it’s kinder on the legs and feet. (=very similar to)

Next-day courier is no faster than first-class post. (= isn’t any faster than)

This café is no more expensive than the one down the road.

Shoes are no good if they let in water.

! Make sure the dependent preposition (than, from) is correct.

Of course, there are many other ways to express negative meanings but I only wanted to focus on the use of no and not because of how they are used in Legal English, particularly in contracts. For more detail or exceptions with no and not, other no/not expressions, double negative and negative transfer, please, refer to the sources below.

Legal English (language of contracts)

In contracts, the use of negatives is rather straightforward and more-or-less restricted to a few examples. Their function is to express unambiguous negation as well as limitation of numbers and volumes along with geographical and temporal limitations. It is therefore important to get them right and use them consistently.

To illustrate, I’ll be using extracts from a loan agreement provided courtesy of my lovely students – corporate lawyers at a bank. For Slovak speakers, I also include translations to provide comparison of equivalent wording in Slovak and English. (I find comparative analysis quite useful in class, for special purposes only, of course! More on this in one of the upcoming posts. 🙂 )

 

  • notwith verbs (to express simple negation)

The Bank shall not issue the Guarantee, if an Event of Default occurred.

(Banka nevystaví Záruku, ak nastal Prípad porušenia.)

The Bank shall have a right, but not a duty, to monitor or verify compliance with the purpose of Drawdown.

(Banka má právo, ale nie povinnosť, monitorovať alebo si overovať dodržanie účelu Čerpania.)

 

!In this example, technically, not does not connect with a noun but is rather a part of what we call a clause constituent. The full coordinated clause  “but it shall not have a duty” would be too wordy and repetitive and can therefore be clipped as follows:

 

The Bank shall have a right, but it shallnothavea duty, to monitor or verify compliance with the purpose of Drawdown.

The same applies to this example:

There are no Third-Party Rights, which werenot accepted by the Bank.

(Neexistuje Právo tretej osoby, ktoré Banka neakceptovala.)

 

  • and no with comparatives (to express limitations of numbers and volumes  as well as geographical and temporal limitations)

The Interest Period shall expire on the day preceding the final maturity date for the Term Loan, no later than on the day preceding the final maturity date of the Term Loan Facility.

(Úrokové obdobie začína dňom Čerpania Eskontného úveru u každej jednotlivej zmenky a končí dňom jej splatnosti.)

The Bank is entitled to issue an amendment for the Guarantee which will prolong the validity of the Guarantee, but no more than up to the Maximum validity period of the Guarantee.

(Banka je oprávnená vystaviť dodatok k Záruke, ktorým bude platnosť Záruky predĺžená, vždy však najviac na Maximálnu dobu platnosti Záruky.)

Summary

I said at the beginning that the use of no and not is rather straightforward and yet I’m exposing you to terms such as clause constituent and coordinated clause and referring you to Advanced Grammar books. Alas, as I mentioned in my first post, this is daily business for my Legal English students and as such, it has to be mine, as well. 🙂

To keep it simple (as much as possible), here’s what you should remember in order to deal with simple negation in contracts:

  • not with verbs (to express simple negation): shall not, must not, may not, etc.
  • and no with comparatives (to express limitations): no later than, no more than, no further than, no longer than, etc.
  • Fixed phrases: whether or not, including but limited to, etc.

For further practice, feel free to download the photocopiable worksheet provided, complete with a key.

 

Download worksheet

EXTRA CHALLENGE:

If you feel inclined to take on an extra challenge, here you are:

Can you explain the use of “no” and “not” on these traffic sings?

You can write your answer in the comments section, or contact me directly. I’ll provide the correct answer in my next post. 🙂

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Thank you for reading and, as always, if you have any comments or feedback to give, I’ll be grateful. 🙂

 

References:

  1. Advanced Learners’ Grammar (M.Foley,D.Hall, Longman, 2003)
  2.  Advanced Grammar in Use (M.Hewings, Cambridge,2005)
  3. A Student’s Grammar of the English Languafe (S. Greenbaum, R. Quirk, Longman, 1990)

 

Correct answer:

Q: Can you explain the use of “no” and “not” on these traffic sings?

A: Sign 1 – No swimming

Swimming is a gerund , an -ing form of a verb that can be used to replace a noun, e.g. I like music/reading. or Music/Reading is my hobby.

So, the rule no + nouns applies here.

Sign 2 – Warning! Not a fire exit.

Not a fire exit is a clipped sentence, as in This is not a fire exit.

So, the rule not with verbs applies here.

If you got it right, well done! This was not an easy task. (or no easy task? Just joking… 🙂 )

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Why is teaching Legal English such a challenge?

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Why is teaching Legal English such a challenge?

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Why? Because nothing about a Legal English class is standard and textbook.

Years ago, when I started teaching Legal English, I went about it the way I would with any other class. I made a lesson plan, set my objectives, chose the learning material, timed the activities and went in. I had anticipated that my biggest challenge would be the subject matter – Legal English – and the fact that I was teaching something that I practically knew very little about. I had done some research on the subject, looked up new vocabulary and made sure I knew the meaning in Slovak. I expected I would have to translate new words and explain what’s what. To my surprise, the students hardly ever asked any vocabulary questions and if they did and I provided a definition or a translation, they would frown and say: ‘Yeah, but that’s not how we use it in our law.’ or, worse still, they would ask about very small details that I hadn’t thought of, such as: “What’s the difference between subscribe and underwrite?” Luckily enough, they rarely relied on me for the answer as there was usually someone in the group who knew it and sparked a lively debate on the minute semantic differences and their practical legal consequences.

That, of course, would leave me feeling inadequate, out of my depth and, frankly, quite useless. And yet they turned to me with some very basic grammar questions and asked for more (!) Legal English lessons. So, like many teachers before me and many teachers since, I realized that my role in the Legal English class was not to teach the law (of course) or legal terminology in English. They didn’t need me to enlighten them on the structure of the UK court system, the principles of  common law or specifics of EU regulations – the topics discussed in the course books. They found most of the course book chapters too general or even irrelevant. On the other hand, they would bring in a draft of a contract they were working on and asked me to correct the mistakes or check particular wording here and there. (And we’re back at inadequate and useless!)

So after many long moments of silent panic and several lesson plans thrown out of the window I decided to map my terrain and do a proper analysis of what I’m dealing with in my Legal English classes.

Here’s are my findings (the light-hearted version):

The students

Much as I hate to generalize, for our purposes and a suspicious lack of exceptions, I dare say my Legal English students are:

  • all qualified legal professionals, mostly working as corporate lawyers or attorneys-at-law, often in their own law firms
  • highly intelligent, sharp and quick (no exceptions here)
  • well-spoken and well-read
  • with well-developed reading skills
  • detail-oriented, bordering on nitpicking
  • disciplined (OK, some exceptions here )

The class

The students in my Legal English classes often share the qualities above. What they don’t often share, though, is a language level.

Since both in corporations and in law firms, there is a limited number of lawyers, you rarely have a free hand in dividing the students into groups by level. Instead, you have, let’s say, 7 lawyers in a department, including 2 managers and a budget for 2 groups max. As a result, you typically end up with a mixed-level group of 5 and the 2 managers together in a separate group (also mixed-level, of course!)

In a General English class, these students would never study together but, alas, you have no choice.

Another thing they will have in common is their job description and the way the use English at work:

  • all of them read contracts regularly and submit their comments and amendments
  • all of them read laws and latest legal regulations
  • most of them need to communicate with fellow lawyers
  • most of them need to communicate legal positions to non-lawyers, e.g. colleagues from other departments or clients
  • very few of them use English regularly outside the legal context and if they do, then passively (reading books, watching films and TV series etc.)
  • all of them do all of the above REGARDLESS of their actual language level!

The language

I think it’s beyond discussion that Legal English is simply hard. I’m a native speaker of Slovak and struggle with Slovak Legalese when reading a loan agreement or the service agreement of my mobile operator. (Hands up who has ever read through all of it!  ) But then again, I may be a native speaker but I’m not a lawyer. With Legal English students, it’s the opposite. They know the content, all the theory behind it as well as all the consequences and repercussions related to it but they are not proficient in the language itself. They are students of English as a Foreign Language and struggle with the same things a General English student would. However, the language they deal with in practice in no way reflects their level of English. Quite the opposite, an Intermediate student/lawyer commonly deals with grammar points and syntactical structures that a General English student hardly ever encounters, let alone has to process and produce.

On top of that, mind you, the legal texts my students commonly use in their practice are rarely written by English native speakers. For example, my students who work as corporate lawyers in banks, usually deal with contracts written by their Slovak or Austrian colleagues and translated into English from Slovak and German. And amended, amended, amended…

So it’s no surprise if they look like this:

The mortgage herein constituted is intended by the parties hereto to be security for the payment of all amounts (whether principal, interest, fees, indemnities or other amounts) that are now or hereafter outstanding or payable to the Bank under the Tranches B and C Loan Agreement. It shall not be construed as limiting or in any way precluding the exercise by the Bank of any or all of its rights for the full payment of such amounts under the Tranches B and C Loan Agreement.

Now, we can tell at a glance that what we’re dealing here is:

  • highly specific lexis: terms of art, obscure words, words with a different meaning in General English, foreign words, Latin words and phrases (commonly, although not in this extract),  reference words, collocations etc.
  • complex morphology: prefixes, suffixes, compounds, pronouns, participles, articles with specific use, determiners with specific use etc.
  • really complex syntax: complex formal phrases, prepositional phrases, participle clauses, modal verbs and modal expressions, infinitive clauses, cross-reference markers etc.
  • long, long, loooong sentences

I was joking about the brief glance, of course. It takes more of a thorough linguistic analysis to isolate the language the students deal with, identify their potential problems and set learning goals. Now back to my moments of silent panic in class, you see what I mean, I’m sure.

The teacher

The ideal Legal English teacher would be both a lawyer by profession with legal practice and a qualified EFL teacher with at least a DELTA or a Master’s Degree in English as a Foreign Language in order to be able to deal with all the aspects of teaching Legal English, from the linguistic issues to teaching methodology. If such a creature exists, I have never beheld one and seriously doubt I ever will. (If you are one, please, get in touch!)

So we are left with 2 common types of Legal English teachers:

Type 1: The teaching lawyer

  • holds a legal qualification of some sort and some legal experience. Whether that matches his/her students’ practice, specialization and jurisdiction is another matter.
  • holds a teaching qualification of some sort and some teaching experience…or not. But let’s say yes. Whether that is sufficient to manage all of the above is another matter still.

Type 2: The lawyering teacher

  • not a qualified lawyer with legal experience limited to reading and signing (their own) loan agreements, lease agreements and mobile data service agreements
  • a qualified teacher of English as a Foreign Language. In Slovakia, to gain a teaching trade license, you need a Master’s Degree in Teaching English as a Foreign Language. To keep it general, let’s say most practising Legal English teachers in Slovakia are university graduates either teaching freelance or for language schools.

As you may have guessed, I’m Type 2, except I rarely read the whole of my loan agreements. Mobile data service agreements – never.

As a Type 2 teacher standing in front of a group of lawyers/students, breathing through a panic attack, I have tried and transformed the panic into a checklist of questions that help me navigate my teaching practice and my own further teacher development, or, in short:

MY PANIC CHECKLIST:

  1. What is my role in this class? What do my students expect from my classes?
  2. What are the students’ learning goals and what do they need in order to meet them?
  3. What do I actually need to teach them?
  4. What do I need to learn myself in order to be able to teach them?
  5. What research, resources and materials will help me get my students where they need to be?

 

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Summary

As you can see, it’s not rocket science but answering these questions is difficult because, as I said at the beginning, nothing about a Legal English class is standard and textbook.

However, I firmly believe answering them or at least considering them when in class or preparing for a class is crucial and very helpful to both the teacher and the students.

I will be using the means of this blog to do so and sincerely hope you will join me and share some of your panic list items. 

 

Thank you for reading and I’ll be back soon with more. 🙂