On the Relationship Between Legal and Ordinary Language


On the Relationship Between Legal and Ordinary Language

Frederick Schauer

In Parchment, Paper, Pixels, Peter Tiersma (2010: 120) raises the important question of what he calls “Conflicting Conventions of Literacy.” His immediate target is the parol evidence rule, the substantive rule of contract law (and not really a rule of evidence at all) according to which a final contract “supersedes” and “integrates” all prior writings and discussions, such that evidence about such writings and discussions cannot be used to add to, subtract from, or otherwise modify the terms of the contract. And for Tiersma, what is most interesting and jarring about the parol evidence rule is that it “runs counter to ordinary conventions of literacy.”

Tiersma’s observations about the parol evidence rule are important and valuable, but they are based on his identification of an issue that is more important and valuable still. That is, legal language generally is in important ways different from ordinary language. In some respects this is obvious. Ordinary people simply do not talk about “assumpsit,” “res judicata,” “interpleader,” or “covenants running with the land.” And so we can start by observing that law not only contains some of its own technical language, but that the definitions of such words and terms are created by the law itself. If you want to know what “interpleader” means, you need to know about the law of interpleader, just as the definition of “covenants running with the land” comes from centuries of common law legal history and legal doctrine and not from either the dictionary or the ordinary language of the ordinary person.

Things get more complicated, however, once we realize that everything we can say about the law-dependent meanings of terms like “interpleader,” “res judicata,” and “covenants running with the land” can also be said about “contract,” “trust,” “complaint,” and “assault.” The student who on a law school examination relies on the dictionary to define and apply such terms will fail, and justifiably so. And this is so despite the fact that the terms in the latter group, unlike the terms in the former group, are ones that can be found in ordinary non-legal dictionaries, and are terms that ordinary people use in their ordinary non-technical and non-legal conversations. But once we understand that such terms have ordinary non-legal as well as legal technical meanings, we find ourselves faced with the important and under-analyzed problem of legal technical language, and of the relationship between legal technical language and the law’s own frequent use of ordinary language.

The nature of the problem was hinted at by Oliver Wendell Holmes, Jr. (1897: 464), who observed that it is a common “fallacy” to take words with moral content and import, such as “rights,” “duties,” “malice,” “intent,” and “negligence,” and assume that they have the same moral content and import when they are used in law, or used to describe the law. Somewhat more specifically, and about half a century later, the contracts, insurance, and jurisprudence scholar Edwin Patterson suggested that it might be preferable to use entirely made-up words in place of much of legal language—like the word “contract,” for example, that simultaneously and confusingly looked outward to the larger linguistic world and inward to the linguistic world of the law and its inhabitants.1 And perhaps most prominently, Lon Fuller (1967: 20–23), in writing about legal fictions, saw legal fictions as the remedy for the impossibility of a legal regime in which all language used in law was understood as technical language. Indeed, in his famous debate with H. L. A. Hart, Fuller (1958

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