Legal Language and Its History: Quo Imus? Qua Imus?


Legal Language and Its History


Ronald R. Butters

Peter Tiersma’s writings on the history of legal language, excerpted in this volume, together offer a succinct, comprehensive survey of significant aspects of the development of the Western traditions of legal speech and writing from the earliest code of Hammurabi to present-day online publication of laws and judicial opinions. Tiersma embeds his understanding of his subject—as an anthropologist rightly would—in a consideration of the history and culture of the law-producing peoples that are his focus, deducing as best anyone could the oral legal traditions in preliterate societies (e.g., Germanic law before the influence of Rome, delineated in medieval Icelandic literature), and in Western societies that had not yet set their laws into written form or, like ancient Sparta, seem to have deliberately eschewed written codes. Legal language has evolved into a number of quite different, only-sometimes-intersecting categories, but it surely began as (1) communally understood practical and ethical precepts, often of a religious nature, and (2) ritualized ways of their enforcement.

Today in the United States, for example, these two precepts are still at the heart of legal language. However, both written and spoken language break down into a number of legal categories, and the rules governing legal utterances are so extremely complex that learning these rules must surely be one of the important functions of legal education.

Spoken legal language includes the language of courtroom proceedings, where matters of spoken decorum and ritual vary with the type of court. Traffic court and small claims courts are marked by less formal language than are civil and criminal courts; appellate courts often restrict speech only to judges and pleading attorneys. Depositions involve a quite different kind of linguistic behavior. Trademark Board trials seem to have no spoken form at all, though they originate in deposition-like proceedings and the judges read the transcripts. Jurors can say only prescribed kinds of things at certain times. Judges are only allowed to say certain kinds of things to jurors. In all but the least serious of cases, a written record is made of the court proceedings, raising inevitable questions of whether the transcript adequately captures the meaning of the spoken words.