The Language of the Law

Source: Gibbons (1946). An introduction to Language in the Justice System: Forensics

Linguistics

The Pursuit of Precision

- any attempt to be precise and accurate requires modification of common speech

both as regards vocabulary and as regards syntax. Russel (1975)
- [legal language] diverges in many ways from ordinary speech, far more than the
technical language of most other professions. Tiersma (1999)

Introduction

Technicality

- a specialized language to express understanding. For instance in the legal system

‘justice’ does not have the same meaning as the everyday common sense
concept.
- If the specialist terms did not exist, there would be a need for long and clumsy
explanations each time reference was made to the technical process or notion,
so technical jargon is sometimes referred to as a form of ‘short-hand’.

Drafting and interpretation

The production of operative documents is normally referred to as legal drafting.

The comprehension process for such texts is referred to as interpretation.
● Operative documents:
1. Legislation - codifies a society’s beliefs, values and moral standards
2. Regulation - can exert considerable control and exact severe penalties
3. Contracts - pervade modern life (e.i. Work is defined by a contract; in
transport, tickets for a train or a parking station are contracts)
For example, given the wording of legislation concerning homicide, a decision may need
to be made as to whether a particular killing falls into the category murder or
manslaughter.
- This combination of decontextualization and the attempt to communicate no
more and no less than the intended meaning requires that legal texts seek to be
completely internally explicit and unambiguous.

WORDS

Words - technicality is strongly marked; it is necessary to distinguish between

genuine technical terms or ‘terms of art’ (as they are known in legal jargon), which
are more accurate or more efficient when referring to legal concepts, and in-group
language, utilized for interpersonal motives.

Legal technicality filters down to police and prison staff, and police and prison staff
have also developed professional jargons of their own.

Lawyers
Technical vocabulary used by lawyers exists to express specialist concepts, which is
why a substantial proportion of this vocabulary consists of words or expressions that
are not in everyday conventional use.

Solan (1993b: 131-2) makes a convincing case for the value of the word scienter
(roughly meaning ‘intent to deceive’) in fraud cases.

Specialist terms
clerk of the peace
committal
a counsel
deforcement
deponent (US)
felon
interrogatory
intestate
plaintiff
remand

Other legal terms which have entered everyday language:

Example: homicide and assault (which in legal language need not involve
physical contact)

Some of the terms used in legal language are archaisms and as such have become
limited to legal contexts, even though their meaning may not be specialized. For
instance rather than an adjournment being ‘requested’, it may be ‘prayed for’, rather
than a previous judgement being ‘consulted’ it may be ‘hearkened to’.
- use of archaic diectics enable clearer and less ambiguous reference

Archaic deictics
forthwith
hereafter, herein, hereof, heretofore, herewith
said, aforesaid
thence, thenceforth
thereabout, thereafter, thereat, thereby, therein, thereon, thereto,
theretofore, thereupon, therewith
whereas, whereby

Spanish legal language similarly uses low-frequency deictics such as the following from
a Chilean contract: en adelante (hereafter), presente (present), el mismo (the same),
correspondiente (aforesaid).

Latin
decree nisi
order of mittimus
order of certiori
affidavit
ex parte
caveat
habeas corpus
mala fide
obiter dicta
bona gestura
in camera
noli presequi

Norman French
breve
estoppel
judge
laches
lien
quash
void
voir dire

Some legal terminology is derived directly from Latin or French, but in form has been
modified to fit into English, for example codicil (L) and petty (F).
The degree to which such terminology is known only to lawyers varies considerably-
estoppel is exotic, yet judge has become part of everyday English and its French origins
are no longer apparent.
Some of this Latin and French technical vocabulary has maintained its foreign
credentials, while becoming part of educated everyday language in some English
speaking countries, for instance alias, de facto, bona fides (L), in lieu of, parole, venue
(F).

Terms from different languages which originally referred to the same concept, such as
child (OE), infant (F) and minor (L) permit the functional specialization of the term- in
this case they may refer to different spreads of age for different legal purposes.

Doublets and triplets

Mellinkoff (1963: 121-2) indicates that many of these legal terms appear in company -
they are routinely used in sequences of two or three (doublets are also known as
‘binomial expressions’ and ‘binomials’).
Gustaffon (1984: 123) writes ‘In Legal English, binomials are 4-5 times more common
than in other prose texts, and they are definitely a style marker in law language.
- Many doublets and triplets combine words of Old English/Germanic (OE), Latin
and Norman French origins.
Examples of doublets
of sound mind (OE) and memory (L)
give (OE) devise (F) and bequeath (OE)
will (OE) and testament (F/L)
goods (OE) and chattels (F)
final (F) and conclusive (L)
fit (OE) and proper (F)
new (OE) and novel (F)
save (F) and except (L)
peace (F) and quiet (L)

Interestingly this phenomenon is not limited to English. Duarte i Montserrat and

Martinez (1995: 115) document the following for Spanish:
Spanish doublets
Visto y examinado (seen and examined)
Segun mi leal saber y entender (according to my faithful knowledge and
understanding)
Debo condenar y condeno (I must condemn and I condemn)

Complex function expressions

Swales and Bhatia (1983) claim that the simple forms are more ambiguous and less
clear - that the legal expressions are part of the pursuit precision.

Legal expression Everyday word Legal expression Everyday word

at slow speed slowly during the time that during

in pursuance of under until such time as until

subsequent to after in order to to

prior to before for the purpose of for

and additionally or and/or by virtue of by

alternatively
Short forms
Sometimes professionals wish to abbreviate longer technical terms and expressions, as
a means of achieving the ‘efficient communication’. One way of doing this is to use the
first letter of each word, creating acronyms such as TRO (Temporary Restraining Order)
and UCC (Uniform Commercial Code).
Sometime short forms are also a type of lawyer slang, for instance a writ of fi fa (fieri
facias). In the UK, the use of a particular schedule to have someone classified as
mentally ill, became abbreviated to ‘having someone scheduled’. A related phenomenon
is the practice of referring to a statue simply by its number.

Proper names
the name of a person to a particular legal concept associated with that person

The courts without juries which were established in Northern Ireland are referred to as
Diplock Courts after the man whose report led to their creation.

Ordinary words used with specialist meanings

use of terms which are common in everyday language but with a specialized meaning.

O’Toole (1994) argues that it may not be so much the formality and power of the
language of the law, but its technicality and use of ordinary with specialist meanings
that causes conflict and misunderstanding between lawyers and non-lawyers.

Ordinary word Technical meaning Ordinary word Technical meaning

action lawsuit issue children

aggravating makes an offence mention a brief hearing

more serious preparing for the
full hearing

article part of a document party one side in a court

case

brief briefing document pleading outline of a case

consideration recompense or real material (as in ‘real

(particularly in payment estate’)
consideration of’)

costs Court costs service giving a legal

document

diligence a warrant to stay a delay

produce
a witness or
evidence

Lawyers Slang
Slang Meaning

a contest a trial where the accused pleads ‘not

guilty’

a silk (BR) King’s/Queen’s Counsel (take silk =

become a QC)

a verbal (AU) a dishonest police statement

Definitions
Words may take on a special meaning in a specific legal document by a process of
defining.

Definitions may be given in the introduction to a legal document or, particularly in

legislation, they may be given in an appendix at the end.

Deeming and legal functions

In operative documents it is common to see an apple redefined as a pear for the
purpose document, even when the referent for the word pear does not include apples
in any normal use of language.

The term deem is often used, as in ‘an apple, for the purpose of this section, is
deemed to be a pear’, which is why this practice is sometimes referred to as deeming.

Maley (1994: 24-6) gives the following example:

 (1) A person who attempts or incites another to commit, or becomes an accessory
after the fact to an offence (in this subsection called the ‘the principal offence’)
commits -

(a) if the principal offence is an indictable offence, the indictable offence, or

(b) if the principal offence is a simple offence, the simple offence, but is liable on
conviction -
(c) to a fine not exceeding half of the fine, and additionally or alternatively,
(d) to imprisonment for a term not exceeding half of the term.
(Section 33, Drugs Act, Western Australia 1981)

Tiersma (1999:116-19) discusses deeming under the name of declaratory definition,

and provides the following example:

A person (is) . . . an individual, partnership, corporation, limited liability company,

association, or other group, however organized
(Consumer Legal Remedies Act, California)

Drafting and interpretation

There are a number of drafting and interpretation principles which attempt to delimit
the meaning of words and grammatical constructions, that are sometimes known as
legal ‘canons of construction’.

1. Same meaning same form principle, by which a word or expression is taken

to have the same referent throughout a text, and perhaps more importantl, a
synonym is expected to have a different referent.
Example: shadow and shade - when used in an operative document, they would
be
expercted to refer to different phenomena, rather than being stylistic
variants.
2. Ejusdem Generis - when terms are used in a series or list, their meaning is
limited or extended to things that form part of the category.
Example: ‘all files, reports, statement, letters, diaries, notebooks, memoranda,
drafts, documents and writings’ the word files did not refer to abrasive metal
tools, so no such tool needed to be produced
 3. The use of lists, as Solan (1995) remarks, can cause problems, because there is
another principle which says that if something is not included in a list, it is
thereby excluded - a principle known as expressio unius est exclusio
alterius.
4. Noscitur sociis - the interaction between the meaning of a text and the
meaning of individual words
- which says that words should be interpreted according to the linguistic ans textual
context in which they occur

Police

Slang

There are words that are more ‘slangy’ in nature, and can be both a means of referring
to police life, and a marker of membership of police culture since many have everyday
alternatives.

Word Meaning

bag man police officer who collects and bags

evidence at a crime scene

bang up (UK) arrest/imprison

lock up (AU)

blade (US,CA) knife

brassed (AU) robbed by another criminal

dick (US,CA not UK, AU) plain clothes officer

fence someone who buys and sells stolen

property

(fizz) gig (AU) informant

heater, piece (US,CA) handgun

plod (BR) uniformed officer

sniffer (CA) solvent abuser

Short forms
A number of abbreviations are prevalent, frequently to make communication more
efficient.
Short form Meaning

CAD (CA) Computer Aided Despatch

GBH (BR) Grievous Bodily Harm

GOA Gone on Arrival

MVA Motor Vehicle Accident

SWAT (US, CA) Special Weapons And Tactics (team)

Numbers
The police use the section numbers of acts to refer to types of person or crime.

Word Meaning

Code 4 (US) I am OK

Code 8 or 10 (US) emergency call

18-1 (CA) a mentally unstable person, referring to a

section in the Mental Health Act

Cooper 1997; Chabun 1997

Prison
Prison jargon often refers to sex, violence, drugs and crime, and there is offensive
language.

Multiplicity of terms for major concerns of prison life - prisoner themselves, prison
guards, the personal file kept on each prisoner, periods of imprisonment, drugs, and
moving in and out of cells.
Salient in prison language are terms to refer to solitary confinement - terms for solitary
confinement itself, and for solitary cells and units.

Officialist specialist terms

Since prisons are bureaucratic (‘filing cabinets for people) there is a need for official
technical terms for various aspects of prison life.

Word Meaning

Adjustment Center (US) solitary confinement

Segregation Unit

Administrative or Disciplinary Segregation being placed in solitary confinement

correctional officer (US) prison staff (guard)

correctional service officer (AU)
Warden
prison officer (BR)

Facility Licence (BR) temporary release to work in the

community

Recess (BR) area of a living unit containing

toilets/showers

Short forms
Short forms, particularly acronyms - used mainly to refer to official matters but some
are also slang.

Short form Meaning

AC (US) Adjustment Center

ad seg Administrative Segregation

ARD (BR) Automatic Release Date

chi mo child monster

con (BR) convicted prisoner

C & R (BR) Control and Restraint

CUS (US) Custody Unit Supervisor

DCR (BR) Discretionary Conditional Release

D seg Disciplinary Segregation

ECR (BR) Emergency Control Room

EPRD (US) Earliest Possible Release Date

IK Inmate Kitchen

LWOP (US) Life without possibility of parole

seg unit (BR) Segregation Unit

SHU (US) Security Housing Unit ie. Segregation Unit

UA Urine analysis (aka piss test)

Numbers
Their sources may be the offence code, a section of legislation, a particular form or of a
section of prison regulations.

Word Meaning

Code 20 (Texas) a masturbation (TDC offense code 20)

115 (California) a rules violation report (CDC Form 20)

5150 (California) mentally unstable (the number of a

section of the California Welfare and
Institutions Code)

F1150 F2050 (BR) prisoner’s life

F2052SH (BR) a form reporting that a prisoner is in

 danger of harming him/himself - hence a
suicidal prisoner

Type 3 (BR) 24-hour medical facilities with a nurse

Note: DC means Department of Correction

Slang
It is evident that use of this type of slang indicates membership of the prisoners’ sub-
culture, distinguishing an ‘old lag’ from a newcomer- acts as a ‘secret language’ to some
degree.

Word Meaning

beast (BR); rock spider (AU) child monster

bing; the hole solitary confinement

bird (BR) time in prison

block (BR) solitary confinement unit

gate money (US) money given to prisoner on release

jacket (US) file on individual prisoner- by extension

‘reputation’

mule (US) person who smuggles drugs into prison

on the leg (US) obsequious to guards

pad mate (BR) parole panel

shank ; shiv prison weapon- usually bladed

Derogatory words for prison guards that merit a short listing of their own: badge, cop,
hack, hog, pig, screw, snout.

Some of the words reflect similar realities to English prisoner and criminal slang.
Word Meaning

achaque bringing drugs into prison

botón, yuta police officer

carambisamba old lag

collera violent attack

fierro any weapon

forever hardened criminal

porotera woman who has spent her childhood in

institutions (reference to the ‘porotos’ or
beans that form a large part of the diet -
compare ‘porridge’ (BR) - time in prison)