I've noticed large corporations use language in their legal documents that sounds very different than how a normal person would speak. Is there a point to using legalese or is old fashioned plain English sufficient? For example "Thou shall not kill" vs "Killing is illegal".
The purpose of a legal document is to set out the rights and responsibilities so that:
- they can understand them,
- a third party (e.g. a judge) can rule on them in the event of a dispute.
These two requirements are often in tension.
We have about 1,000 years of legal precedent where certain words and phrases (sometimes in Latin rather than English) have developed very clear and precise meanings. This serves very well for the 2nd point but it can be confusing to lay people especially where:
- the word as used in everyday speech has a broader meaning than the way it is used in the law (e.g. shall),
- the word is no longer used in everyday speech (e.g. thou), or
- the damn thing is in Latin (e.g. certiorari).
For example: "Thou shall not kill" is a legal prohibition - killing by you must not happen. However, "Killing is illegal" is merely an observation.
There is no reason why an agreement cannot be expressed in plain English. However, when put in front of a judge, that plain English must be interpreted; maybe it is better to use words that have clear and unambiguous legal definitions?
An anecdote, probably untrue
In the spirit of never letting the truth get in the way of a good story.
The legal fraternity's love of opaque language supposedly dates from the 1600s. In those days a lawyer was paid by the folio - a large piece of paper. As a consequence lawyers used very big handwriting. Parliament, justifiably, thought that this was a rort and legislated that lawyers must be paid by the word. So now we have "in the event that" instead of "if" because 400 years ago it was worth four times as much. Parliaments do this kind of thing a lot.
Legalese is unnecessary. My first mortgage was from a bank that prided itself on not using it - the closing documents were about twenty pages, and the seller's attorney was amazed at how plainly written my bank's stuff was.
My favorite was the letter of confirmation they sent when we went into contract. It was one line that essentially said, "if the seller goes through with selling the house, we'll give the buyer a mortgage."
I'm sure their lawyers billed large sums of money to rewrite all of their documentation in a manner that was both understandable and legally ironclad. But it can be done, if someone cares to pay their attorney to do it.
I like this quote related by Peter Flom:
In ordinary communication, you expect that the people you are communicating with will attempt to understand what you are saying. But in the legal context, you have to expect that they will try to misunderstand what you are saying.
I'm not a lawyer, but I'm going to say 'no'. This is based two reasons: 1) A number of conversations with lawyers that have ended with the lawyer asking me "well, how do you think a judge or jury would interpret that?" at which point my answer was "the obvious way, obviously." 2) While lawyers use stock phrases that are widely used and known among lawyers, they usually don't go especially out of the way to make one up, if one is not available. This suggests that the use of legalese is for convenience sake. For example, I've recently seen a contract in which a corporation is given the right to "inspect John's computer" if it believes that John is leaking some proprietary information. Despite parts of the contract being written in painfully precise legalese (about for example, what proprietary information is) the contract is gapingly not precise in other parts. For example, the contract doesn't even bother to specify what "a computer" is (i.e, an iphone, a calculator, a router, a watch, the security system, the Xbox) or which computer is "John's computer" (John's wife's computer, his employer's computer, the computer at the library he uses). So my guess is that the lawyers throw this language in there when they have it available - but if they don't have it available, they don't bother.
Again, I've only seen a very small sample, but that's my observation.
The necessity of legalese cannot be judged in an absolute sense. We can, however, try to state the putative benefits of legalese, and weigh them against the cost. First, we need to say what "legalese" is, at least in the context of contracts (since corporations don't draft statutes or regulations). Legalese is the habit of using specialized linguistic structures to express a particular proposition, where ordinary people will not easily figure out what that proposition is, without some education in interpreting legal language or in interpreting abnormally complex sentence structure. Since the goal of a contract is to reach a meeting of the minds, the utility of legalese has to be determined on the basis of how well it satisfies that desideratum.
What matters most is whether a party has a powerful legal team. In the context of a contract involving corporate negotiators and their legal teams, legalese might be good. The corporate negotiators are carefully advised by an impeccably skilled team of contract specialists, so it is clear to all parties what the contract requires, and there has been a perfect meeting of the minds. We do have to assume a nearly-infallible legal team, and unfortunately legal professionals have been known to screw up on drafting and reading contracts. [Sidebar: my experience has been that the drafter does not entirely understand the fine-grained details of the business goal, so may insert the wrong formula. Some attorneys lack the infinite time resources required to think through the implications of wording, to the last detail.]
In contracts of adhesion between corporations and individuals, it is evil (thus not necessary, indeed "necessarily not"). There is a mild mitigating factor regarding ambiguity being construed against the maker in such contracts. Since legalese cannot usually be interpreted correctly by Average Joe, Joe does not understand what he is agreeing to, and this is a fundamental corruption of the concept of a contract. A further consequence of such lack of understanding is that it encourages disrespect of adhering to agreements. Just to cover all bases, when two individuals write a contract, it is absolutely not necessary that the parties write it using language that neither party actually understands. I presume that point is obvious.
Now returning to the case of interactions between legal professionals, it is not necessary that contracts be written legalese in that case either, even though they could be so written without significant loss of functionality (unless you had a less-than-infallible legal team, hard to imagine). The reason is that it is always possible to write a contract in plain English, and most practicing attorneys are bilingual in Legalese and Plain English. In other words, there is no context where it is functionally necessary to write in legalese rather than plain English, and many where the converse is the case, so legalese is never necessary. And this is the point of the Plain English movement. What is necessary is clear and unambiguous drafting, which comes from learning how to read and write clearly and literally, and not from memorizing linguistic formulae that have been handed down for nearly a millennium.