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A lawyer does not sell a house. They convey, transfer, assign and set over all that messuage or tenement, together with the appurtenances thereto belonging. Nobody talks like that. So why do lawyers write like that? The answer is a history lesson, and it explains a great deal about the documents Bangladeshi lawyers still draft today.

Three Languages in One Courtroom

For centuries after the Norman Conquest of 1066, English law was conducted in three languages at once. Latin was the language of written records and the Church. French, in the form known as Law French, was the language of the royal courts and the profession. English was what ordinary people spoke, including the litigants who could not understand what was being said about them.

The results are everywhere. From Latin we have habeas corpus, affidavit, subpoena and the whole vocabulary described in our post on legal Latin. From Law French we have plaintiff, defendant, attorney, jury, verdict, bail, parole, tort, estoppel and the curious word order of court martial and attorney general, where the adjective follows the noun as it does in French. Even the cry of “oyez” with which some courts still open, meaning “hear ye”, is Norman French.

Why Lawyers Say Everything Twice

The most famous feature of legal English is the doublet: two words where one would do. Null and void. Cease and desist. Aid and abet. Fit and proper. Goods and chattels. Last will and testament. Free and clear. Terms and conditions.

The explanation is the three languages. When a drafter was unsure whether a French word or an English one would be understood, or which would be given legal effect, the safe course was to use both. “Will” is Old English; “testament” is Latin. “Goods” is English; “chattels” is French. “Null” is French; “void” came through French from Latin. Over time the pairs became fixed phrases, and drafters reproduced them long after everyone spoke English. Some doublets acquired distinct legal meanings; most did not. Lawyers keep using them because they always have.

The Hereinafter Problem

Legal English also has a family of words that exist nowhere else: hereinafter, hereunder, thereof, whereas, aforesaid, witnesseth. Most are compounds from the fourteenth and fifteenth centuries, when drafters were trying to refer precisely to parts of a document without repeating them. They were useful in the age of parchment. In the age of numbered paragraphs and cross-references, they are mostly decoration.

Then there is the sentence. Traditional legal drafting avoided punctuation, on the theory that a comma could be added or removed by a forger, and it packed every condition and exception into a single sentence so that nothing could be read out of context. The result is the 200-word sentence that every law student has struggled through in a nineteenth-century statute. The Penal Code and the Contract Act, drafted in the 1860s and 1870s, are actually models of clarity by the standards of their day, which tells you what the standards were.

The Plain English Movement

From the 1970s onwards, a movement grew in Britain, the United States and Australia to write law that ordinary people could read. Its arguments were simple: citizens are bound by laws they cannot understand, clients pay for documents they cannot read, and much legal language is habit rather than precision. The movement has had real effects. Consumer contracts, tax forms and many modern statutes are now written in shorter sentences with ordinary words. The Woolf reforms in England replaced “plaintiff” with “claimant” and “writ” with “claim form” in 1999.

The counter-argument is that legal terms of art carry settled meanings that plain synonyms lack, and that a word litigated for two hundred years is safer than a new one. Both sides are right, which is why the debate continues.

The View from Dhaka

Bangladesh inherited legal English at its most elaborate, and added its own layer. Court documents are still drafted in a style that mixes Victorian statutory English, Persian and Urdu terms surviving from Mughal and colonial administration, such as vakalatnama, and Bengali. A deed of sale may run to pages of formulae whose function no one remembers. The Constitution’s provision that the Bengali text prevails, and the increasing use of Bengali in the subordinate courts, add a further question: how much of this inherited English style should be carried into Bengali drafting?

A Modest Proposal

Next time you draft a document, try this. Delete every doublet unless you can explain why the two words mean different things. Replace every “hereinafter” with a defined term. Break every sentence over forty words in two. The document will be shorter, clearer and, almost always, just as legally effective. Your client will be able to read it. Your opponent will not be able to hide in it. And you will have done something lawyers have been promising to do since the fourteenth century.

Sources

1. British Library, Magna Carta 1215 (Cotton MS Augustus II.106): https://www.bl.uk/collection-items/magna-carta-1215
2. Wikipedia, Legal doublet: https://en.wikipedia.org/wiki/Legal_doublet
3. Wikipedia, Law French: https://en.wikipedia.org/wiki/Law_French
4. Civil Procedure Rules 1998 (Woolf reforms), legislation.gov.uk: https://www.legislation.gov.uk/uksi/1998/3132/contents