From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 83-84.

LEGAL LANGUAGE by Peter M. Tiersma. Chicago: University of Chicago Press, 1999. 298 pp. Cloth $ 26.00. ISBN 0-226-80302-3.

Reviewed by David Schultz, Department of Political Science, University of Wisconsin, River Falls. Email: David.Schultz@uwrf.edu.

 

Habeas corpus, hocus pocus, corpus delicti, and in flagrante delicto. Why do lawyers talk and write so funny and speak a language only they can understand? That question is the subject of this masterful, highly readable, and enjoyable book by Loyola of Los Angeles law professor Peter Tiersma.

The language of law and lawyering is described by some as peculiar, obtuse, or even archaic when compared to more standard English. Explaining why legal language has evolved the way it has, the first three chapters trace its origins to the Anglo-Saxons, the court French growing out of the Norman invasion of England, and the Latin of Christian Medieval Europe. Today's legal language, for the author, is an adaptation and adoption of these different linguistic traditions, stylized by particular unusual pronunciations that have become reinforced by a freezing of this language many years ago when English jurists and barristers were arguing the law.

Yet that language persists even today in various legal documents and venues, including the OJ Simpson trial, our mortgages, and in the many contracts, forms, and activities that envelop our lives. Despite the passage of years, this language remains so insulated even today despite efforts such as the plain English movement to reform and simplify it.

Tiersma contends that several factors account for the continued insulation of Legal language. Most importantly, the uniqueness of communicating like a lawyer serves as marker of group cohesion or a signal to other lawyers that they are part of the legal establishment. Their rules of communication, such as unusual sentence constructions, pronunciation and usage of words, false precision, impersonal language, passive voice, complex and wordy sentences, and the use of phrases from three languages all serve as ways to define the "boys club of law" and distinguish lawyers from others. In addition, using language as a tool of inclusion serves also to exclude others and, thus, law talk serves as a way to enhance the monopoly of legal power by confusing outsiders and making it difficult for them to comprehend. The result is that a profession built on precision in communication fails to communicate and be precise.

The remainder of Tiersma's book uses specific examples to chart the way lawyers use the law to communicate or hide meanings in the courtroom and in legal documents. Here, specific references to cases and documents regarding debates on plain meaning and interpretation are chronicled, with special and candid statements by judges that even they cannot understand the boilerplate language found in insurance binders and consumer contracts. The book concludes by asking how plain English can be reintroduced into legal language and whether the competing professional and political goals of the legal profession will ever permit clarity to enter this language.

LEGAL LANGUAGE is truly a fun book to read. What it does well is to uncover or expose the special tools of language and communication that lawyers use and which is socialized into legal practitioners from the time they enter law school. In reading the book many will recall their experiences of attending law, taking legal writing, and learning a new way to communicate so that they could talk and act like a real lawyer. The point here is that legal education is as much learning a communicative style as it is training the mind, and Tiersma does a great job in describing this process.

Additionally, the book does a great job in showing how the language of law that fascinates the public on COURT TV and on all the JUDGE JUDY or JUDGE MILLS LANE shows creates problems that only lawyers could have. For example, only legal minds could debate over what it means to "have sex" or what "sexual relations" are, and only lawyers could render the plain meaning of the U.S. Constitution to allow for Senate conviction but not removal of the President from office, despite what Article II, section 4 states in language that no average person would misunderstand. Finally, on page 178, Tiersma offers a humorous discussion of testimony and perjury that demonstrates that President Clinton and his lawyers were not the first to offer or interpret simple questions in ways that would produce false yet non-perjurous answers.

If there is any shortcoming to LEGAL LANGUAGE is that more attention is devoted to descriptive analysis of the language of law and less to the anthropological, sociological, and political forces that account for its persistence. Had Tiersma done that, be it through techniques used by Derrida, Foucault, or another lenses of analysis, then the book could have been a major contribution to the study of law and language. As such, LEGAL LANGUAGE is an important mirror to hold up to the way the legal profession talks and obscures it functions. It prompts one to want to hold a similar mirror up to those of us who work in law and political science similarly to see how our language also aims to do the same and confer upon us the aura that we in fact have special insights and skills into the world of judicial behavior and law.


Copyright 1995