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-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Tuesday, July 26, 2011

Parlez-vous Law?

When you get to law school everything is different; even the pads of paper are different. As Professor Kingsfield famously said in The Paper Chase, “You come in here with a skull full of mush and you leave thinking like a lawyer.” No one ever tells you that you are also going to “speak like a lawyer,” which you will. To many non-lawyers, the law is written and spoken in a different language, archaic and impenetrable, a jargon designed to keep the layman confused and off balance, maybe even susceptible to being swindled. In some respects all of this is true. A great many words uttered and written by lawyers are not of the English language at all. The language that lawyers work in, the language that makes them lawyers and separates the lawyers from the non-lawyers, is a foreign language, and the name of that language is Law French.

Newer law students may now be saying to themselves, “we have to learn law and French? If I wanted to learn a foreign language I would have gone to business school.” Not to worry, there will be no French lessons. A history lesson, however, is worthwhile. To learn the history of law French is to understand why lawyers speak the way they do, and why the profession keeps trying to learn to speak English. The premier source for the history of legal language is David Mellinkoff’s book The Language of the Law (K94 .M45). Mellinkoff takes what on its face sounds like a dry subject and infuses it with both well written wit and extensive research and quotations from original sources. Opening up this book to any page is a treat.

In 1066, William the Conqueror earned his name by crossing the English Channel from France and conquering England. One of the things William brought with him was the French language (although regrettably, he did not bring French cooking). Now the people then living in England obviously already had their own language, which today we call Middle English. The conquerors, however, all spoke French. Although English did not die out -- it was still the language of the lower classes -- the upper classes spoke French. And since it was the upper classes who made primary use of the courts (a result of their owning all of the land), and all the lawyers were from upper class families, law French flourished in the English courts.

This blending of tongues, English and French, had a secondary effect on the legal profession-- it made it more exclusive. The law was a profession of the upper class who knew French. Over time, anyone who wanted to become a lawyer would have to learn French (or the bastardized version spoken in the English courts). Thus, the profession of law became the last refuge of a declining French language, which served to insulate the profession. As Mellinkoff puts it,

What better way of preserving a professional monopoly than by locking up your trade secrets in the safe of an unknown tongue? Celtic lawyers had done it before in the British Isles. Comparatively few knew French in mid-thirteenth century England. It was never the language of the people. And as time passed it would become incomprehensible to any but the initiate. Here indeed was a language for the law. Not that it was deliberately planned that way. Most likely inertia took the place of design, which would explain the absence of any record of a law French conspiracy. And the coincidence of self-interest simply reinforced the normal inclination to leave things as French as they were.” Mellinkoff p. 101

And thus began the incomprehensible language (to the layman) of the law. Complaints against the complexity and opaqueness of legal language are as old as legal language itself. Mellinkoff also points out that complaints against legal language were also based on the fact that the language was French. (p. 111).

Throughout this period French was the lawyer’s language. The study of law in the Inns of Court was in French. Practicality ruled the day in the courts. “The suggestion of the statute (and it was little more than a suggestion) that English be used in pleading had to be weighed by the practitioner against the absence of legal learning in English and the ubiquity of French.” Mellinkoff p. 113.

As is clear from the practice of law today, English eventually won out over French. According to Mellinkoff, the reason for this was the change from written to oral pleadings. This change over gave us, in Mellinkoff’s words, “the English stockpile of the formalized piety and lament that has distinguished the language of the law ever since.” Mellinkoff p.116.

While English ultimately prevailed, the victory was not complete. Many of the everyday legal words we take for granted are French in origin. “The earliest recorded uses in England of the French appeal, demand, heir, and indictment were legal uses. They were a part of the law French of their day. They are now sufficiently common in everyday English to render a law French tag superfluous.” (p. 106). The very French sounding voir dire no longer has a French meaning; it is strictly a legal expression. Some other legal words with French origins include slander, obligation, robbery, and plaintiff. Looking at this list of words, it is surprising how much French the average lawyers still speaks today.

The existence of such words is not the only affect the French language has had on the language of the law. Given the multiplicity of languages used in the English courts of the day (Middle English, French, Latin, and perhaps some Celtic), it is not surprising that words would be joined together into strings of synonyms. This doubling of words may have started out as a form of translation, added clarity, or just emphasized a point, but it evolved over time into a style of speaking and writing current practitioners are still trying to overcome. This word doubling is embodied in such familiar phrases as “new and novel”, “cease and desist”, “give, devise, and bequest”, and “aid and comfort”. While it gives off a strong scent of “law,” the word doubling of often redundant synonyms, is often cumbersome and always confusing, thus the “plain language movement” which in one form or another has been with us for as long as some lawyers spoke French and everyone else spoke English.

Studying law is often akin to learning a foreign language. It is a relief to know that learning the law sometimes really is learning a foreign language, a language that has evolved over time, passing through the pens and mouths of numerous of our attorney (French word origin) predecessors.

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