Over the centuries, much has been written about the language of the law. The language of lawyers is archaic and conservative. It is full of Latin and French. It is wordy and redundant, pompous and dull, and either highly precise or maddeningly indeterminate. Perhaps the most interesting suggestion is that legal language is itself a myth, in that it is really just ordinary language with a great deal of technical terminology. Some of these assertions have more than a kernel of truth, others are complete myths, and yet others should be relegated to that status as quickly as possible.
Language and law interact in a number of ways, the most obvious of which is that laws are expressed in language. Lawyers often look at language to determine the meaning of specific statutes. In such a relatively artificial context, words are chosen and interpreted with unusual care. But elsewhere, the law must interpret utterances of a more spontaneous sort, where the actual meaning of a word or phrase is not always found in a standard dictionary and a grammar text. This especially holds true when the law must give legal effect to the utterances of private individuals. The interpretation of private utterances is an important part of contract law, particularly in the area of offer and acceptance. Courts attempt to discover whether the parties have assented to an agreement by examining their words and deeds. There is no standard verbal formula or prescribed conduct which invariably signifies assent. On the contrary, the case law suggests a great variety of ways to reach agreement. This Comment will elaborate a theory concerning the elusive relationship between words and their legal effect. It will explain why use of the word "offer" does not necessarily denote a legally binding offer. Conversely, it may explain why an offer need not contain the word "offer" or a similar expression. The analysis will be based on speech act theory, a widely used approach to the philosophy of language. Philosophers of language are interested in many of the same types of problems as confront lawyers. Despite their varying points of departure, the two disciplines have reached surprisingly similar conclusions. This Comment makes two main points. The first is that offer and acceptance are not matters of expression or manifestation of intent. Rather, they are acts that commit the speaker to a particular course of conduct. The second major point is that although the intent of the speaker does not create the obligation, it is nonetheless necessary that the act be accompanied by a certain state of mind. Loosely stated, the speaker must intend to create in the hearer the perception that in saying the words, the speaker is committing himself to a particular proposal. The first Part of this Comment will review the general nature of the problem of offer and acceptance. Part II sets out the basic framework of speech act theory. All utterances have a particular force. Some, for example, assert that a particular state of affairs is true. Offer and acceptance belong to a class of speech acts that have the force of committing 1. B. VERMA, MUSLIM MARRIAGE AND DISSOLTrION 159-61 (1971); see also K. HODKINSON, MUSLIM FAMILY LAW 220 (1984). Shia law further allows a formula in question format: the husband must answer "yes" to a ritualistic question regarding whether he has divorced his wife. B. VERMA, supra at 161. 2. B. VERMA, supra note 1, at 159, 161. The same generally holds for marriage, which, to be effective, requires only a declaration and an acceptance. Shia law again prescribes formulas. Most other sects allow greater latitude in choice of words...
One of the great paradoxes about the legal profession is that lawyers are, on the one hand, among the most eloquent users of the English language while, on the other, they are perhaps its most notorious abusers. Why is it that lawyers, who may excel in communicating with a jury, seem incapable of writing an ordinary, comprehensible English sentence in a contract, deed, or will? And what can we do about it? Consider, first, the eloquence of the legal profession. Daniel Webster was famed for his oratory skills. Called upon to assist the prosecution in a murder case, Webster addressed any hesitations the jurors might have harbored about their power to punish the guilty. In doing so, he provided a memorable defense of the theory of deterrence: The criminal law is not founded in a principle of vengeance. It does not punish that it may inflict suffering. The humanity of the law feels and regrets every pain that it causes, every hour of restraint it imposes, and more deeply still, every life it forfeits. But it uses evil, as the means of preventing greater evil. It seeks to deter from crime, by the example of punishment. This is its true, and only true main object. It restrains the liberty of the few offenders, that the many who do not offend, may enjoy their own liberty. It forfeits the life of the murderer, that other murders may not be committed. A very different picture of the deterrent effect of punishment was painted by Clarence Darrow, another great legal orator. Darrow sought to persuade a judge to spare the lives of his two young clients, who had pled guilty to a sensational murder: What about this matter of crime and punishment, anyhow? ... Mr. Savage tells this court that if these boys are hanged, there will be no more murder. Mr. Savage is an optimist. He says that if the defendants are hanged there will be no more boys like these. I could give him a sketch of punishment, punishment beginning with the brute which killed something because something hurt it; the punishment of the savage; if a person is injured in the tribe, they must injure someone in the other tribe; it makes no difference who it is, but somebody. If one is killed his friends or family must kill in return. You can trace it all down through the history of man. You can trace the burnings, the boilings, the drawings and quarterings, the hanging of people in England at the crossroads, carving them up and hanging them as examples for all to see. At the end of his long argument, Darrow had the judge in tears. Despite angry mobs lusting after a hanging, the judge sentenced the young men to life in prison. Yet as mentioned, lawyers are also among the worst abusers of language. Contemplate the convoluted and redundant nature of the typical modern will, a document so important that it is effective only if signed in the presence of witnesses. The first problem is the title: Last Will and Testament. There is no difference between a will and a testament, so either term would suffice. And to label this the last will is absolutely ludicrous. Virtually every...
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