Every logophile has probably wondered ‘Why do Lawyers Talk That Way?
‘Cease and desist’
‘Accord and satisfaction’
‘Null and void’
‘Give, devise and bequeath’
‘Grant, bargain and sell’
Don’t they all mean the same thing? Why do you have to say it three times? Is it a magic spell?
Legal language is famous for being dense, abstruse and sometime impenetrable. Common English words seem to have a different meaning when you go through the doors of the courtroom. Many of these words and phrases are used without conscious thought by the attorney; they are regurgitated reflexively simply because that’s the way they talked in law school and that’s the way everyone has talked since then. We use the same words and format we used the last time this issue came up, just like we were taught 40 years ago. It seems sometimes that lawyers cling to these archaic forms as a means of self-preservation: if we spoke clearly, concisely and logically, everyone would be able to figure out what we’re doing and they wouldn’t need to hire us. The conclusion one draws from most legal writing is that the author is using his or her copy of ‘The Elements of Style’ only as a paperweight.
Current legal language is the result of a thousand or so years of accretion and development. In western Europe, laws were generally written in Latin – the language of the Roman Empire. As the empire crumbled, other languages came to be used. The use of Latin in England was a result of the Roman occupation. Beginning in about 450 AD, significant numbers of Germanic speaking tribes settled in England, resulting in the creation of a language which we know as Old English. Then in 1066 the Normans (French) arrived and the language was further complicated. From about 1300 on, almost all laws passed by Parliament were written in French, the language of William the Conqueror. This form of ‘Law French’ was used until about 1730, after which English became the dominant tongue for legal matters.
So, for about 1000 years, the ‘audience’ for any legal proceeding or document might be speaking several different languages. This is why the law has repetitive words for the same concept. ‘Cease and desist’: cease is Latin, desist is French. ‘Give, devise and bequeath’ are English, French and Latin. ‘Will and testament’: will is Old English, testament is French; ‘peace and quiet’: peace is Latin, quiet is French. Much formal legal language is simply an artifact of a time when a lawyer did not necessarily know what language the audience would understand, so had to use them all.
Add that to the concept of precedent (stare decisis), which basically says you should do today what you have done in the past, and you have a situation where archaic language endures for no particularly good reason. In addition, there is a legal maxim that if you use different words to describe something, you intend for those words to have different meanings. So if you say ‘will’ when the standard form is ‘will and testament’, the judge could decide you must mean something other than ‘will and testament.’ No lawyer wants to have to explain to the client that the will was found to be invalid just because the lawyer was trying to simplify the language.
So, a lot of the definitional and transactional words we use in the law are simply accidents of linguistic history. I try to make my legal writing and clear as possible, but sometimes you just have to use that 6th century term to get your point across.