Time to give a burial to legalese in favour of plain English

As a style of writing, the legal literature or legalese, is wordy, complex, abstract and replete with archaic expressions. Contrary to popular belief, particularly ingrained among legal professionals, you don’t need to pepper a contract -- for instance -- with a lot of ‘heretofores,’ ‘notwithstanding the foregoing’ and ‘in witness thereof’ gibberish to make it enforceable in law.

 
It’s not just the use outdated language that is galling: liberal use of Latin expressions is equally irksome.  Why, one might ask, should one say inter alia when you could say ‘among other things’ and convey the same meaning.  The same goes for mala fide (in good faith) bona fide (in bad faith), and Sui generis (unique) as well. Another Latin phrase that lawyers are fond of using while drafting contract is Mutatis mutanadis. 

Granted it has a nice ring to it but what does it really mean? Both ‘mutatis’ and ‘mutandis’ come from the Latin verb ‘muto’ meaning ‘to change.’ In plain English Mutatis mutnadis means ‘with the necessary modifications,’ which is what we should be using. Legal professionals also love to use two words when one would do. Like cease and desist, null and void, free and clear, name and appoint, promise and covenant, rest and residue, save and except, terms and conditions…the list goes on.

Weight of tradition

Why don’t legal professionals realise that unnecessarily complex language, redundant words, and language which fails to communicate, not only confuses, but imposes an enormous financial burden on every level and citizen of society?   

There are several reasons. Tradition, for one. Indian laws are by and large based on the British. In pre-Norman England, Latin was the language of court writs and the principal language of statutes. English was dubbed dismissively as the language of peasants. After the French speaking Normans conquered England in 1066 AD, the language of the courts became a curious combination of Latin and English, and Norman French --  the language of the rulers -- was considered more sophisticated.

Many French words, including several multisyllabic words, became part of the English language including the language of law. And although French was prohibited from further use in 1731, French words continued to be used by legal writers who thought English inadequate to express what they wanted to say. As for the influence of Latin, Latin grammar is responsible for some of the cognateness and unusual word order of legal documents, and for the excessive use of ‘shall’ constructions in legal documents.
 
Clumsy Victorian English

Legal practitioners by and large continue to use legal words and phrases drawn from Latin, Law French (an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French), and Old English. In India, too, the language of the courts is of the kind used in England during Victorian times. Well-known crusader for plain language, the late Jyoti Sanyal once scathily remarked that, “clumsy Victorian English hangs like a dead albatross around each educated Indian’s neck.”

And that includes the English used by legal professionals. According to Anish Dayal, a Supreme Court advocate, lawyers in India learn their English in courts where use of outdated phrases is common. “These are perpetuated perhaps in the belief that using heavy verbiage adds to the importance and gravity of what one is stating. I can’t but totally disagree.”  

Apart from tradition, the overuse of legal jargon and convoluted sentences is because of precedent. Law is based on precedent, or what has been said before. The love for ‘precedent’ prompts lawyers and students of law to pore over judgments of a bygone era.  In the process, they also assimilate the language in which they were written.

Asked to draft a contract, a lawyer is more likely to than not, re-use -- with limited changes -- a similar contract that he has done before. What makes his job even easier is the pervasive use of computers: it is possible today to create templates (for various situations) on a PC and retrieve – and modify them – to suit the required purpose with a few key strokes. Legal professionals perhaps take this route also because drafting in plain language takes effort and ability. Yet another reason is ‘peer acceptance’: a majority of people in the legal profession believe they will not be ‘accepted’ by their fraternity unless they use legalese. They also believe that use of legalese adds an ‘ouch of ‘gravitas’ to a legal document.  

Most people, of course, do not understand ‘legalese’, nor do they have the time to wade through complex legal documents. Not surprisingly, the crusade to make legal language less convoluted and more accessible to average citizens is picking up steam worldwide. The Plain English movement, which began in the UK in the 1940s, gained momentum in the ‘70s. In the United States, federal regulations are now mandated to be written in plainer prose.

The US 2010 Plain Writing Act makes it mandatory that ‘regulations are accessible, consistent, written in plain language, and easy to understand.’ In the UK, some time-honoured legal terms are giving way to modern equivalents: a subpoena is now a witness summons, an in camera hearing is now a private hearing, and a writ is now a claim form.  Even the much used term plaintiff has been replaced by claimant.
With the plain language movement picking up elsewhere, too, the message is clear:  legal professionals in India, too, can no longer afford to ignore the trend toward language that is free of jargon and excessive legalese.