Saturday, February 04, 2006

Linguistic Fossils in Law

(Note: Blogger has been hiccuping today and deleting posts. I'm reposting this, actually written by Betsy. JGM)

I love the idea of tracking history through language. English is a wonderful example of the footprints that history leaves in language. Originally, we don't know who lived on that island, but the Celts moved in from the Continent. Then, the Angles and other Germanic tribes came over, with their strong contributions. So strong is the footprint of those peoples, that the name of the language comes from one of the tribes: English (Anglish, from the Angles). Then came the Norman French, who became the ruling class. So we have a series of double words: food meats like beef (like the French boeuf, paired with the older English, Germanic animal in the field, cow. The French nobility only knew about it when it was cooked and served; the defeated Anglo-Saxon/Celtic natives took care of the animal in the field.

The same footprints persist in legal language. There were centuries when young lawyers had to learn Latin and Law French in order to pass the bar. From 1362 until the 1760's, long after French ceased to be a living language of any group in the British Isles, the legal profession continued to have to learn it, plead in it and hold it in special regard. And it was frozen in place. While the living language across the Channel continued to change (despite all efforts of the Academie Francais), the Law French of the English Barristers continued to refer to a long-vanished way of life with vocabulary out of centuries long past. It is both beautiful and comic, glorious and sad at the same time.

Now, noodling around on the Web, I run across a website noting a report from World Wide Words (the link above). The Lord Chancellor of England has been working to streamline the civil justice process and improve access to courts. As part of that process they have decided to abandon the ancient words, and substitute modern "plain English" words. This means that words that we in the U.S. use every day in the legal world, such as "plaintiff" (from Norman French, as my dictionary shows) will be replaced with "claimant." It turns out that "claim" also has Norman French roots, so I guess it is just as ancient, just not as traditional in courts of law.

"Writ" becomes "claim form." Which to my ear sounds a lot like taking the King James Bible and turning it into bad insurance form prose. Many Latin phrases disappear, such as guardian ad litem, which becomes "litigation friend." Mr. Rogers could not have said it better! Perhaps it will all be for the better. Perhaps it demystifies processes that should be transparent to even the least-educated participant. But forgive me, I also think there is a real place in the process for majesty and awe. I am not sure the participants understand the process any better for re-naming things with rather prosaic, dull words. They want their day in court, damn it, and they want it to mean something!

Ahoy! OOTJ bloggers! Blogger seems to be having some problem where every new post wipes out the previous post. I am so sorry -- I seem to have wiped out Marie Newman's excellent post on Wikipedia! Then I wiped out a not-very-important piece I did about the Cassini probe of the Saturn system. So, if you post a new item before has this worked out, it will wipe out the last post.

--Betsy McKenzie

No comments: