Legal language (complexity, features and language of the courts) by Johnson Yesaya.

 

SCENARIO

If language does'nt have a word for something or some concept then that 'something' will not be seen nor that 'concept' thought. All language is however, responsive to what linguistics call the 'felt needs' of its speakers. Indeed, it is more likely not only are thoughts expressed in words but that thought are shaped by the language. Discuss

INTRODUCTION

Language is an important tool to a lawyer in exercising his/her legal activities, a good command of language is necessary to any legal practitioner on conveying clear and understand-able content to court or in other legal activities. English and Latin seems to occupy practice of law, to be a good legal practitioner one must be fluent in English and Latin. English language in laws is not the same to the common English used by common speakers. Legal practitioners always use legal language[1].

Legal language means a language which is used by people connected to legal profession, this language is only understand-able to people connected to legal profession because it contains special vocabularies that can only be understood by lawyers, vocabularies like “damage” and “damages”, “plaintiff” and “defendants”, “petitioner” and “co-respondent”, cannot be understood by normal English speakers because English language in laws contains very different terminologies compare to common English. Not only English, all languages can be changed to form legal language, legal language is very complicated and tough to understand[2].

Some scholars argued that, legal language is an art which express thoughts and ideas by creating images into audience’s heads, so, that they can picture an idea or thoughts on their own[3]. Justice Samata in EastherMponda V. BakariNahoda[4], some few lines of his judgment as visible here below, stated that;

“The door to the temple of justice is not shut against those who behave that they are entitled to redress of any injury caused to them"

It was an artistic words which create pictures to the audience by using words like “doors to the temple of justice” to mean parties are allowed to bring complaints before court of law in case they feel injured and they need relief[5].

COMPLEXITY OF LEGALISE

Legal language is archaic[6]. It contains old words used in king’s and queen’s courts during the reign of kings. Most of the old legal old words were adopted in English legal system and inherited to the legal systems of various states which were colonized by British. Those archaic words exist even today to our legal system.

Legal language is wordy and redundant[7].Provisions of the law always contain a lot of words and alternative words in a sentence which most of the words are synonym. The use of too many word of the same meaning may conflict understanding of readers of legal documents, words like I hereby, “make”, “publish” and “declares” may bring an ambiguity to provisions.

Legal language is full of latin and French words[8]. Existence of too many French and latin words in legal language, complicate language. Words like “habeas corpus”, “certiorari”, “mandamus”, “ratio-decidendi” all complicate language because one have to trace its meaning from another language.

Negation involves the use of negative statements in explaining positive statements, a person may say in court, “you shot him, because killing is not an offence”. To mean, “you killed intentionally by using gun”. Sometimes negations become too difficult to understand.

LANGUAGE OF THE COURT AND LANGUAGE OF THE LAW

In United Republic of Tanzania, there is a huge discrepancy between language of the law and language of the court. In our courts, both English and Kiswahili are acceptable languages. But the records of courts must be in English except for primary court.

The Appellate Jurisdiction Act[9], The Court of Appeal Rules[10]  as amended by the Tanzania Court of Appeal (amendment Rule 3A) Rules[11], provides that, “The language of the court is either Kiswahili or English but the judgment must be in English”.

Magistrates Courts Act[12], section 13(2) provides that, “The Language of the District and Resident Magistrates courts is either English or Kiswahili but the record is to be in English”.

Section 13(1) of same Act, direct the language of primary court to be Kiswahili both in proceedings and records.

So, language of the court is that one which is used in conducting a case and language of the law is the one in records.

LANGUAGE OF LEGAL DOCUMENTS

Language of legal document is the one which need to be accurate and directly convey a total message intended to be conveyed. Legal documents are made up of precise statements which clealy dis-close the intention of the document, thoughts must be arranged in logical flow and the concepts used in that communication must at all times avoid contradictions.

When owner want to pass a title of his property to someone else, a sale agreement will include words which show intention of seller to transfer ownership to another person. The following are sample words in document,

“I, SELLER OF A SAID PROPERTY, DO HEREBY, TRANSFER ALL INTERESTS, RIGHTS, TITLE, CLAIM AND ADVANTAGES OF A CONTRACT PROPERTY FOR A CONSIDERATION SAID, AND I WILL NO LONGER OWN ANY PART/WHOLE PROPERTY”

This is inevitable in legal document because of need of clarity and actual intention being presented on a piece of paper.

CONCLUSION

Legal language can be used at courts, or between lawyers and other members of legal profession. But it advised not to use legalese toward public because it is difficult for them to understand legal language. Lawyers are advised to use plain language when explaining various legal concepts to people who do not belong to legal cadre.

REFERENCE

BOOKS

Shivji, I.G. “From the analysis of forms to the exposition of substances: the task of a lawyer intellectual”, in Vol.5 Nos. 1&2 EALR [1972]

Mukoyogo,M.C. Teaching Legal Method: A Personal note on challenges and problems in Effecting the Aim of legal Education in Tanzania” 1983(unpublished mimeo).

Mellinkof, D; language of the law, Little brown & Co. Boston & Toronto 1963

G. Williams, Learning the law, 11th Edn. London 1982

W. Twining/D. Miers, How to Do Things With Rules, 3rd Edn. London 1992 App. IV.

ONLINE SOURCES

https://definitions.uslegal.com/m/mischief-rule/

http://e-lawresources.co.uk/Smith-v-Hughes

http://euacademic.org/UploadArticle/24.pdf

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[1]https://www.law.du.edu/index.php/law-school-learning-aids/legal-language

[2]https://en.wikipedia.org/wiki/Legal_English

[3]

[4][1982]TLR 202 at 203.

[5]Mukoyogo,M.C. Teaching Legal Method: A Personal note on challenges and problems in Effecting the Aim of legal Education in Tanzania” 1983(unpublished mimeo).

[6]http://euacademic.org/UploadArticle/24.pdf.

[7] Ibid

[8] Ibid

[9]1979, Act No. 15 of 1979:

[10]1979

[11]GN. No. 102 of 1979, GN No. 451 of 1983

[12]1984 (Act No.2 of 1984)