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Language and The Law

The document discusses the importance of language in legal education and practice, particularly in Tanzania, highlighting the challenges faced by students due to language comprehension issues. It emphasizes that language is a fundamental tool for understanding legal concepts and effective legal writing, which should prioritize clarity, brevity, and accuracy. Additionally, it outlines the evolution of legal language in Tanzanian courts and the various forms of legal writing and precedents.

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Chris John
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31 views7 pages

Language and The Law

The document discusses the importance of language in legal education and practice, particularly in Tanzania, highlighting the challenges faced by students due to language comprehension issues. It emphasizes that language is a fundamental tool for understanding legal concepts and effective legal writing, which should prioritize clarity, brevity, and accuracy. Additionally, it outlines the evolution of legal language in Tanzanian courts and the various forms of legal writing and precedents.

Uploaded by

Chris John
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOC, PDF, TXT or read online on Scribd
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LAW 120 March 2004/Prof Mukoyogo

[MU]
MZUMBE UNIVERSITY

Language

Language and the Law

Law and Language

Language of the Law and Courts in Tanzania

Legal Writing

Content of Legal Writing

Forms and Precedents

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LAW 120 March 2004/Prof Mukoyogo

1.

language is a factor in legal education


Countries of Africa and Asia:
English or French
Critical problem: Comprehension on the part of students at
University level
Learning process considerably slowed down
Class discussion difficult to conduct

 Language: a basic tool of the law proper understanding of concepts


appreciation of richness of linguistic nuances: a foundation to legal
training.

Poor command of language of instruction excessive reliance on


memory and learning
does little to stimulate critical faculties.
 Understanding the language of the legal system equips the lawyer
with tools to operate the legal system.

cf. Legal Education in a Changing World, International Legal


Center, N.Y. Uppsala 1975 pp 84-85

2.

1. Mellinkoff
(a)the Lawyer’s Language consists of common
words with uncommon meanings:
 Use of old English;
 Frequent use of Latin Words and maxims (actus reus; mens
rea, Eusdem generis etc).
 Use of French words (i.e. coup d’etat, de facto, de jure etc);

(b) Lawyer’s language is too formal or solemn in nature


 Your Lordship
 As it pleases your honour etc.

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LAW 120 March 2004/Prof Mukoyogo

(c) Language a working instrument for lawyers or the law


(d) Through language law is enacted
(e) Mellinkoff & Stromholm maintain language is uncertain; no
law will be applied without interpretation.
(g) Legal rules help judges to determine circumstances for a
decision.
(h) Law a system of social engineering and influencing.
(i) Law depends on values
(j) Legal sentences not addressed to specific facts but the entire
social, economic and political conditions generally.
(k) A lawyer deals with problems social circumstances.

3.

- Jules Coleman and Scottshapiro


Jurisprudence and Philosophy of Law OUP 2002 Ch. 22. (eds)
 Words are tools of lawyers
- advocates, judges, legislators
 Complex features of English language rooted in legal history,
culture and not the nature of law
 Understanding the nature of language
 Law uses language, law is made by means of language.
 Understanding how language works → Nature of Law

 Law is like language –


 Law and Language most common sophisticated systems
of social rules; two common and sophisticated co-
ordination schemes for humans.
 Legal theorists use language
- Understanding and communicating terms of the subject
matter of law.
- Role of language in adjudication and legal reasoning.

 Language used in context


Context of an utterance gives a word meaning i.e. livestock in
subsidiary legislation must refer to the local condition.

 The Principle of Diversity

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LAW 120 March 2004/Prof Mukoyogo

o Functions of words as diverse as functions of objects to


which they refer (Tool – box: a hummer, pliers, a screw-
driver, a rule, a glue-pot, glue, nails and screws).
o Relationship between context and diversity
Context in which a word is used may maker it clear
which considerations are relevant to its application in a
particular context i.e. parent in a school prospectus –
anyone in care and control of a child not necessary
biological.

o Vagueness:
A word is vague if no cases in which it is clear – (if we
know how old a person is, it may not be clear whether it
is true to say he/she is a child).
The word game is vague whether it means what we play
or animals.

o Performance Language
o Utterances are per formatives i.e. apologise
o Per formatives in law – conveyances, wills – legal
instruments

4. Language of the Law in Tanzania


- Kiswahili
- English

Colonial period – English


Rules of Court made under Tanganyika Order in Council 1920
(22.7.20) by the Governor through General Notice No 160 of 1920 “
Criminal Proceedings in the High Court:

“ 3. In all Criminal Cases before the High Court the substance of the
evidence of each witness shall be taken down in writing in English by
the judge or in his presence and hearing under his personal direction
and superintendence.”
Judgements, orders and decrees were also kept in English –
English
After Independence

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LAW 120 March 2004/Prof Mukoyogo

Kiswahili

The Chief Justice is empowered by the Appellate Jurisdiction Act


1979 to make rules: The Tanzania Court of Appeal (Amendment
of Rule 3A) Rules, 1985 to be read together with the Tanzania Court
of Appeal Rules, 1979:
“3A The Language of the Court shall either by English or Kiswahili as
the chief of Justice, or as the case may be the presiding judge holding
such court shall direct, but the judgement, order or decision of the
Court shall be in English.
S. 13 (1) of the Magistrates Courts Act, 1984: the language of primary
courts shall be Kiswahili.

S. 13 (2) of the Magistrates Courts Act, 1984:


The Language of Courts of a Resident Magistrate and District
Magistrates Courts shall be either English or Kiswahili, or as the
Magistrate holding such court may direct, save that in the exercise of
appellate, revisional or conformatory jurisdiction shall be English or
Kiswahili, the record and judgement of the Court shall be in English.

5. Legal Writing
(1) The Art of Legal Writing (style)
(a) Language as a Professional tool
(b) The art forms of Legal Writing (style)

 Clarity
Accuracy a key stone of good legal writing.
 Identify a legal problem in any given case.
 profer necessary solutions to the problem (identify issues
and how each can be solved)
 actual writing (use short sentences, simple words, short
paragraphs)

Guiding tests in legal writing


 Do you as a writer, understand it?
 Will the reader understand it?

 Brevity
Be brief

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LAW 120 March 2004/Prof Mukoyogo

Avoid Verbosity
Examples: Oliver W. Holmes.
 Accuracy
o A cornerstone of good legal writing.
o Draw an accurate exposition of legal issues on any
given legal subject.
Order/Uniformity
Sketch an outline on a given problem before embarking on
writing.
Skeleton (to the body)
Outline gives shape to a piece of writing.

6. Content of Legal Writing


(a) Purpose of a memorandum of law.
 Statement of facts (maternal facts)
 Questions presented (issues)
 Discussion of authority
- Cases (Precedents)
- Statutes
- Books, journals, other materials

(b) Various Formats of Legal Memos:


 Office memoranda
 Motion memoranda
 Appellate Briefs.
 Case note or Briefing a case
 Written submissions.

(c) Forms and Precedents:


 Plaint and written statement of defence.
 Charge sheet or summons
 Affidavits
 Deed Polls
 Judgement or ruling, order/decree

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LAW 120 March 2004/Prof Mukoyogo

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