Issue 1 |

Obfuscation and clarification: the history of Legal English and what Singapore is doing about it

by on November 14, 2014

Introduction

It is the day after Valentine’s Day. After hearing your spouse play ‘Call Me Maybe’ for the fiftieth time on repeat at full volume, you finally snap and decide to boil his bones. After the deed is done, panic sets in and you rush to Amanda Slaughter LLP to see your favourite lawyer, Ms Sue Yiu. You moan to Ms Yiu about being a simple person not versed in the law (you once tried to read a few law books before but gave up after a day) and ask her if this will help you in your case. She says to you darkly, “ignorantia juris non excusat”. You squint at her. She repeats herself, this time with an English translation, “ignorance of the law cannot amount to a defence”. You scream out in horror.

It is one of the bedrocks of legal philosophy that ignorance of the law, in most instances, does not allow a person to escape liability. As a general principle, every person is presumed to know what the law is; if not, he has to make reasonable efforts to find out and get himself up to date. This was the compromise that English law came up with in order to prevent persons from claiming that they did not know the law when the surrounding circumstances show that they should have known about it. As a case in point, imagine you see a fluffy tail poking out of your friend’s bag but you choose not to think about the Persian cat that your neighbour was looking for. (Those are grounds for execution in my book.)

However, the task of getting acquainted with the law has been made much more difficult because of the legal profession’s tendency to use archaic and obscure legal jargon, otherwise known as ‘Legalese’ or ‘Legal English’. Much has been said about the impenetrable nature of Legal English. There has consequently been a concerted effort around the world since the 1970s to revamp the language that lawyers use, in order to make it more accessible to the common man on the street. In this regard, I will briefly explore how crafty lawyers conjured up their own mumbo jumbo long ago, and highlight efforts to bring legal language down to earth, with a focus on Singapore.

Brief history of the development of Legal English

The history of Legal English in England follows the development of Middle English (the form of English used from 1066 to 1500s) after the Norman invasion brought with it enormous changes in the English way of life and communication. The influx of Norman French words into the Anglo-Saxon vernacular meant that more often than not, there existed two different words (one Germanic, the other Latinate in origin) for the same or similar concept, both of which were used to prevent confusion in legal situations.

The starkest examples of this were in the form of legal doublets, where both the Germanic and Romance terms were put together. ‘Breaking and entering’, ‘aid and abet’ and ‘will and testament’ are just some of the expressions that lawyers used. Legal drafters initially did this to ensure that the concept could be understood by persons of both Anglo-Saxon and Norman origins. Nowadays however, these expressions have acquired specialised meanings and cannot be broken down into their constituent parts. These redundancies in legal language have remained to the present day and are used by lawyers without a second thought.

Another consequence of the Norman invasion was the use of Latin as the language of the courts and for the drafting of statutes (written law). Because Latin was so important to the making of legal arguments which were to be presented to the courts, Latin expressions started to make their way into the English language. For example, in criminal law, the physical element of the crime is termed the actus reus (guilty act) while the mental element is called the mens rea (guilty mind). Similarly, when judges had to decide a case on the basis of doing justice to both parties instead of strict legal rules, they would do it ex aequo et bono (out of equity and good). While English translations of these Latin expressions certainly exist, the conservative nature of the legal profession ensured that these expressions remained in use. This was to preserve the meaning that they had come to embody after hundreds of years of legal jurisprudence under English law, even after English became the sole language of the courts in 1730.

It is also useful to mention at this juncture the context of the development of Legal English in England. Lawyers used Legal English in order to differentiate themselves from the lower classes who used vernacular English and who were uneducated in the fine art of the law. Latin was at the top of the language hierarchy in medieval England, followed by Norman French, and lastly English. After Latin was gradually phased out, lawyers sought to preserve the formality of court proceedings (and maybe the prestige of their profession) by retaining the antiquated remnants of Latin which had a more uppity air to them. In a way, this was similar to how religious rituals such as those in the Catholic Church preserved hymns or prayers in Latin, even after the liturgical language had been changed.

Legal English in context: Singapore’s story

There have been attempts to make Legal English less legal and more English the world over. In 1977, the state of New York in the United States even passed a law making it compulsory to use plain English in consumer contracts. Singapore in particular serves as a good example of what plain English could achieve.

Singapore became a colony of the British Empire in 1819 after Sir Stamford Raffles founded a trading port at the mouth of the Singapore River. English law thereafter began to be applied in Singapore with the enactment of the Second Charter of Justice in 1826. From 1826 all the way up to independence, the judges that were adjudicating cases in Singapore were British, as were most of the lawyers who argued before those judges. Because England basically transplanted its legal system wholesale into the colony, the use of Legal English also became prevalent in Singapore.

This continued to be so even after Singapore’s independence in 1965, because most of the legal professionals had been educated in the United Kingdom, even if they were Singaporean. They had brought with them the English mentality in using legal language, and this, coupled with the generally low English-language proficiency in the population at that time, made sure that the laws and regulations of the government were incredibly opaque to the average Singaporean.

By the 1990s, many important figures in Singapore’s government and judiciary had recognised the need to make the law clearer and more understandable to the man on the street. This was thought to be a prerequisite before Singapore could progress and remake itself as the global centre for trade and business that it envisioned itself to be. This was indeed highlighted by the then Minister for Law, Mr S Jayakumar in 1993 when he said:

“Many (laws) are also inaccessible and unavailable to the general public and even to lawyers(!). Moreover, the language of these ancient statutes is archaic and very difficult to understand.”

The previously slow and inefficient judicial system was completely revamped by the Chief Justice and by other relevant authorities such as the Ministry of Law in order to streamline proceedings and ensure that what was unnecessary was thrown out. Along with the abolition of the requirement to wear scratchy wigs in court, the use of simpler English words was also actively promoted so that no time was wasted trying to interpret language that should have been clear to everyone in the first place. In addition, the Singapore Academy of Law started organising seminars and workshops in order to train lawyers and other law practitioners to write in clear and concise language that still captured the essence of what needed to be argued in any legal suit. This was also imported into the legal curriculum for law students, who were tasked with drafting mock pleadings and letters that were not overly verbose and adhered to strict word limits. This comprehensive approach continues to this day, and the current legal environment is very much geared towards eradicating Legal English in favour of plain English.

Why Plain English is a good thing

Singapore’s efforts to simplify the use of legal language have far-reaching consequences not only in terms of the law but also the development of the country as a whole. First and foremost, from the abstract point of view of legal theory, the Plain English movement has helped to ensure that as many lay persons would be acquainted with the law as is reasonably possible. This should theoretically improve the citizenry’s awareness of its legal rights and obligations. Such awareness also ensures that the citizens of Singapore are law abiding not only because they fear punishment if they breach the law, but also because they are active participants in the state-building process, making a conscious decision to be good citizens because it is the right thing to do.

Furthermore, using Plain English in the legal arena ensures that unnecessary legal costs are minimised. Laypeople no longer need to resort to expensive lawyers in order to resolve disputes because the meaning of the law would be clear enough for them to understand what their legal position is. This would free the courts to concentrate on more important cases where complex legal principles are involved. Legal proceedings could also be shortened because the pleadings and summonses would be less voluminous, which would, in turn, also keep burgeoning legal costs to a minimum.

The use of plain English also ensures that Singapore’s position as a world centre for trade and finance is consolidated. The problem of the general local populace not knowing English may have fallen away, but presently, the issue of English knowledge implicates people from other countries who may not be as proficient in English but would like to make use of our legal and business infrastructure. With plain English, such people now have the confidence that their contracts are well drafted and parties would not be trigger-happy in suing and going to court.

Down with the money-grubbing lawyers!

The use of even plainer English in Singapore’s courts would bring numerous advantages to many sectors of the population. Legal English was born in a time when lawyers and other legal professionals held an antiquated view of how the law should be, an abstract idea up in the air which could only be brought down to the masses by the grace and benevolence of the legal profession. Such a view clearly holds no water in the present time when information is transmitted and shared at a dizzying pace by more and more people. Ignorance of the law is not a choice that people can, or would, make. Plain English bridges the gap between the legal profession and the common person on the street, and Singapore’s efforts to promote it are commendable. The legal system serves to lay down boundaries and guidelines for people to live by; only with plain English can this be done in a holistic and comprehensive manner.

Having read this article, you find yourself in court before the honourable Justice Joseph D. Redd. As the lawyers are arguing in Legal English, you suddenly stand up and list out why the lawyers should be using plain English instead. Sufficiently chastised, the lawyers sulkily slink back into the shadows. You then make an impassioned defence as to why you cannot be held guilty for boiling your man’s bones, because you finally understand what the law actually is. Justice Redd benevolently looks down upon you and says, “nice try”. You get carted off to prison. The end.

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