COMPONENT 1B - LEGAL POWER

One or two of you mentioned this as a potential gap in your knowledge so I've just done a bit of research to give you an overview. If you spend 5 minutes reading this, you should be prepared for a 'Legal' question. Hopefully I can cover the whole subject in ten bullet points.


1. What is 'Legalese'? Legalese is a branch of the English language which we see used primarily in contracts, small-print and the legal profession in general. It is a very complex form of English which often contains lots of latinate/low-frequency words, complex and confusing grammar, and lots of double negatives.


2. Why is it used? Two reasons: 1. To confuse people (so that they agree to things which the company or individual might want to hide, like hidden charges) 2. To ensure that the person writing or saying the legalese is safe from a legal standpoint (to ensure they have not left themselves open to legal attack).


3. What would your stimulus look like? Well, either A. an extract where someone is giving their opinion on legalese (in this case, write two paragraphs where you pick out key quotes and explain their views by focusing on the key words and terms they have used, or B. A piece of legalese (in which case you should write two paragraphs where you simply pick out confusing extracts from the piece, using terms to explain what is confusing about it and what problems/attitudes this might cause in the average person such as yourself). Whatever the source material is, picking out KEY WORDS, applying TERMS and explaining how this reflects peoples VIEWS (either the author or society) is absolutely essential.


OK...so you know what legalese is...you have dealt with the extract...now you just need some case studies! So here they are...


4. David Mellinkoff in The Language of the Law (1963), said,  “The law is a profession of words.” This shows a particularly negative attitude as it suggests that, to be able to utilise the law, you have to be an expert on the subtleties of language. Within this study, a number of examples of legalese were given, such as EXCESSIVE WORDINESS, eg. annul and set aside = annul, entirely and completely remove = remove. Linguistis would argue that these additional phrase and words such as the phrasal verb 'set aside' and the adverbs 'entirely/completely' do not change the meaning of the command, but simply confuse the reader/listener - making them more apprehensive about the contract or agreement they are entering into.






5. Additionally, borrowings from ancient languages and cultural niches can be seen in legalese:

• Old and Middle English (aforesaid, thenceforth, heretofore - all archaic adverbs)
• Latin (corpus delicti, quasi, vis major)
• French (demurrer, fee simple)
• Religion has a large influence on the language: "to have and to hold", "each and every", "null and void".

Give some examples of these. Obviously this would be problematic because most people would wish for the law to be equally accessible by everyone, whereas these borrowed terms suggest you have a better chance of understanding the law if you are a legal professional, if you have a high-class education or are religious. QUOTE - George Orwell expressed his desire for English to remain as clear as possible, saying he wished it to be an ‘instrument for expressing thought’. Clearly, the borrowings listed above limit understanding and thought for many rather than promoting it.

6. In 'Politics and the English Language' (1946) Orwell outline six rules which he believed would limit confusion in English Language. Write a paragraph about this, but remember to use TERMS and to offer your opinions or society's views on these ideas....(if you can't remember them all, just give a few of them as examples and then offer your thoughts.

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print. (Examples which Orwell gave included "ring the changes", "Achilles' heel", "swan song", and "hotbed". He described these as "dying metaphors", and argued that these phrases were used without knowing what was truly being said.
2. Never use a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
6. Make sure you break any of these rules sooner than say anything outright barbarous (insulting or offensive).

Orwell himself admitted that 'one could keep all of these rules and still write bad English'. A linguist, Geoffrey Pullum, despite being a fan of Orwell's, noted that he Orwell had used a higher than average rate of 'passive constructions' in writing his views - demonstrating how difficult it is to stick to such strict language laws.

7. Janet Randall (Northeastern University, Boston, USA) completed a study called 'Tackling “Legalese”: 
How Linguistics Can Simplify Legal Language and Increase Access to Justice'. She focussed on how juries are made up of 'lay-people' and how their accuracy in making judgements was being hampered by confusing language. She gave an example of an old legal instruction 'Failure of recollection is common. Innocent misrecollection is not uncommon.'and quotes another linguist call 'Tiersma' who says 'most people would find this challenging'. Whilst this sort of linguistic jargon was perfectly acceptable until recently in California, it has since been updated to, 'People often forget things or make mistakes in what they remember.' The lack of low-frequency abstract nouns, which are replaced with common verbs makes this much easier to understand.

Randall also stated how, 'In one study, for example, conducted with jurors who had served on a trial, more than a quarter could not define burden of proof (noun phrase), impeach (verb), admissible evidence (noun phrase), or inference (abstract noun); ' - obviously, this would hugely disadvantage anybody who was trying to promote justice.

There we go - did it in 7 bullet points!

Lesson is on as normal today - we can go over this in person.