As an academic discipline, the subject of Law has its own unique attributes. The legal process does not operate like the scientific process, and the body of legal literature does not develop in the same manner as the literature of other disciplines. Accordingly, law courses present significant linguistic issues and challenges for students and instructors alike.
As with most disciplines, the legal literature has its own jargon. An understanding of certain historical events is necessary in order to adequately appreciate the legal jargon. Many phrases used in the legal discipline are in Latin, a relic of the two centuries of occupation of the British Isles by the Roman armies, and also, later, the subsequent role of the Catholic Church in the legal system.
The law has its own unique genres of literature. Like most academic disciplines, it has its textbooks, treatises, and scholarly articles. Unlike most academic disciplines, the legal textbooks, treatises, and scholarly articles are not considered to be primary sources; that role is fulfilled by constitutions, statutes, regulations, and judicial opinions. Indeed, because the Anglo-American legal system depends on precedents established in prior judicial opinions, the limited availability of judicial opinions in America during the Colonial period had a profound impact upon the development of the law in America.
The law addresses problems from all aspects of society, and therefore must be applied to emerging trends and technologies. Accordingly, the legal jargon associated with real property ownership contains terms such as fee simple, reverter, quitclaim and many other archaic English words and phrases in common use when real property laws evolved centuries ago, while much jargon associated with legal issues of computers and the Internet includes modern phraseology unknown a generation ago.
Faculty needs to explain the historical background behind many legal terms. For example, the term Statute of Frauds refers to a provision requiring certain agreements to be set in writing in order to be enforceable. The term frauds is not necessarily related to any wrongdoing by any of the parties but derives from the Statute for the Prevention of Frauds and Perjuries, enacted by the British Parliament in 1677, a time when, unlike 21st Century America, most of the population was illiterate and when parties to a contract were not permitted to testify regarding the contract. Accordingly, a legal proceeding involving a contract would often deteriorate into a contest of whose witness could tell a better lie to the court about who said what to whom. This promoted dishonesty before the tribunals, which had a corruptive effect upon the integrity of the courts. Parliament addressed the problem by requiring that certain agreements be reduced to writing in order to be enforceable.
Many legal terms, such as antitrust, can likewise be confusing without a historical context. Why would “trust” be something Congress would seek to oppose? The term antitrust arose with the Sherman Act of 1890, whereby the United States Congress sought to control abuses by the monopolists in the large industries such as steel, mining, transportation, and petroleum. The monopolists controlled the giant corporations, not through direct ownership of stock but by controlling trusts which were the legal owners of the corporate stock shares. Trustees of any trust have a duty to proactively assert the interests of the trust beneficiaries. The Sherman Act put to rest the monopolists’ argument that the trustees had no choice but to restrain trade, lest they be disloyal to the trust beneficiaries.
The law, then, must be studied—and taught—with regard for its unique language and literature.