Legal Language, Prof. Sheila Hyatt
Words are the essential tools of the law. In the study of law, language has great importance; cases turn on the meaning that judges ascribe to words, and lawyers must use the right words to effectuate the wishes of their clients. It has been said that you will be learning a new language when you study law, but it’s actually a bit more complicated. There are at least four ways in which you encounter the vocabulary of law.
First, and most obvious, you will be learning new words that you probably have not encountered before. These words and phrases have meaning only as legal terms. Words or phrases such as res judicata, impleader, executory interest, demurrer and mens rea,oblige students to acquire some new vocabulary. Learning the meaning of these words is essential to understand any case or discussion which uses them.
Second, and a bit more difficult, some recognizable words take on different or new meanings when used in the law. Malice, for example, when used in the law of defamation, does not mean hatred or meanness; it means “with reckless disregard for the truth.” Similarly, “consideration” in contract law, has nothing to do with thoughtfulness; it means something of value given by a party to an agreement. When a party is “prejudiced” in the law it usually means that the party was put at some disadvantage, not that the party is bigoted. “Fixtures” in property law are much more than bathroom and kitchen equipment. There are many words like this in the law, and students must shake loose their ordinary understanding of a word to absorb its legal meaning. Words that have distinct or specialized meanings in the law are sometimes called “terms of art.”
Third, there are words whose meaning expands, contracts or changes, depending on the context or the place in which it is used. In one context (divorce, for example), a person may be considered a “resident” of a state if she has lived there for 6 months. In another context (getting a driver’s license) a person may be considered a “resident” after just a few days. In one state, a person may be said to “possess” a firearm if it is within his/her reach in an auto. In another state, that person might have to be in control of the firearm to be considered in possession of it. Thus, the same word can have a different meaning depending on what question is being asked, and where it is being asked.
Fourth, there are words that have come to signify large bodies of law or legal doctrine, and act as shorthand terms for complex concepts. The terms “unfair competition,” “due process of law,” “foreseeable,” and “cruel and unusual punishment” are a few examples. These terms have been subject to interpretation by judges in many cases over long periods of time, and there is little hope of finding a clear and concise definition that can serve in all contexts.
Finally, students need to develop a heightened respect for linguistic precision. Because the meaning of words is so crucial to the craft of lawyering, students will be expected to use words carefully and precisely. You will learn, for example, that there are legally significant differences between “Sally lives in the United States,” “Sally resides in the United States,” “Sally is domiciled in the United States,” and “Sally is a citizen of the United States.” Even grammar and punctuation can be crucial: a person who leaves $50,000 “to each of my children who took care of me,” has a different intention than a person who leaves $50,000 “to each of my children, who took care of me.” The lawyer drafting the will needs to know how to wield that comma, or better yet, how to avoid any confusion in the first place.
Once you have learned the legal meanings of words, you are expected to use them with precision. Substituting one for another can result in serious errors and misunderstandings. The legal meanings of words constitute the common language of lawyers and judges, who rely on this language to communicate efficiently and effectively.