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A short history of legal drafting (Part 1)

Mar 1, 2016 8:54:21 AM

A Short History of Legal Drafting: How modern legal language evolved to what it is today

You can read Part 2 of this series here: http://blog.contractroom.com/a-short-history-of-legal-drafting-part-2 .

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Lawyers are renowned for their convoluted writing!  

Consider the following example of a definition of a person’s bottom by a county in Florida:

“the area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top of such lines being one-half inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom line being one-half inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the gluteal fold), and between two imaginary lines, one on each side of the body …” *

This was in a legal notice aimed at reducing indecent exposure in public places.

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There are a number of theories and reasons given for why lawyers began to draft in this verbose way.  Many of the theories consider that lawyers did so because it suited their own interests e.g. that because no one could understand legal documents (as they were drafted in such language), they had to rely on lawyers for interpretation and this ensured a steady stream of work.  It also ensured that they were paid well as they charged per word.  Another theory is that the length is an attempt to ensure there is no misinterpretation of what the text is intended to convey.

Below is another example of legal drafting from a modern will.  You will see it lists many words that are synonyms (i.e. there is an element of repetitiveness) and contains words that are foreign to mainstream english today (such as bequeath which is derived from Old-English and devise which has roots in Latin, Old French and Middle English).

“I give, devise and bequeath all of rest, residue and remainder of my property which I may own at the time of my death, real, personal and mixed, of whatsoever kind and nature and wheresoever situate, including all property which I may acquire or to which I may become entitled after the execution of this will, in equal shares, absolutely and forever, to ARCHIE HOOVER, LUCY HOOVER, his wife, and ARCHIBALD HOOVER, per capita, to any of them living ninety (90) days after my death.” **

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Mixture of languages from migration waves

At the time when the common law as we know it was in its infant stages migrants were coming to Britain from several places such as anglo-saxon mercenaries, latin-speaking missionaries, Scandinavian raiders and Norman invaders.  The languages spoken by all of these migrants were similar and the result of their cohabitation in Britain was the creation of what is known today as Old English and this was used in early legal drafting.  Latin and French were also used heavily in the legal drafting context as Latin was considered to be the language of the educated, and French (Norman French) for a long time was the language of the ruling class (after William the Duke of Normandy conquered England and claimed the English throne in 1066).  It was not until 1731 that Britain’s parliament finally ended the use of Latin and French in legal proceedings.  Words remain in legal writing today that are derived from these archaic languages.

Alliteration as a stylistic point and to assist the illiterate

Alliteration was also used a lot in legal language from this era and it is thought this was done to assist illiterate persons in understanding and remembering their legal obligations.   One example of a phrase containing alliteration that remains today is “to have and to hold”.  Many phrases have now disappeared but some think that this tradition explains why so many lawyers like to write long lists of words in their legal drafting (when perhaps one or two would suffice).  As common law uses a system of precedent many of the terms from or derived from these languages (which in today’s world seem obscure) and manner of drafting from the past, remain in legal language today.

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Final thoughts

Now we’ve considered some of the reasons why lawyers today write the way they do. The next article in this three part series will look at the Plain English Movement that began in the 1960s and 70s.

ContractRoom, www.contractroom.com, is the home of #PredictiveAgreement - to learn more about how you too can “negotiate less, agree more” schedule a live, free demo by clicking here: Request Demo

Ideas and information in the above article were found in the two articles noted below and more specifically: 

* This example was found in this New York Times article - http://www.nytimes.com/2000/04/02/weekinreview/the-nation-the-law-is-a-what.html

** This example was found in this article about the nature of legal language - http://www.languageandlaw.org/NATURE.HTM

Katie Cook

Written by Katie Cook

Katie Cook is the Director of Marketing, Communications and Legal Standards at ContractRoom. Originally from the east coast of Australia, she has a background as an Attorney having practiced in both public and private practice in Brisbane and Melbourne. While working as an Attorney Katie completed studies in journalism and is now combining her legal and writing skill sets in her role at ContractRoom.

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