Legal Language and Linguistics

Before you raise a hue and cry over an accused who has blackmailed you and ask for third-degree to be applied to him, it would be in order to know the origins and stories behind these common legal expressions. While most of our legal language is built upon foundations laid by the West, it is time to examine and see if it can be made more Indian. JITHENDRA PALEPU looks into the world of law and language.

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The expression "caught red-handed" has its origins in 15th century Scottish laws where it was mandatory to find a person with blood on his hands in order to ascertain if he had killed another person's livestock. Several centuries later, this phrase is still relevant, though it is not necessarily about catching people with blood-soaked hands.

Law is a part of our daily lives and words having significance in the legal world have pervaded everyday speech in the English language. We often use them without always knowing their origins, legal significance or the linguistic and cultural history they embody. Here are a few such words, their origins and histories.

The word attorney general has its roots in the Anglo-Norman system of government. England was taken over by the Normans in the 11th century and Anglo-Norman French was the popular language spoken among the rich and powerful. This is how the French term for "King's Attorney" or attornus regis was modified as attorney general. "General" here is a postpositive adjective, a style of writing which is also borrowed from French.

Blackmail is the act of forcing a person to do something for not making known something discreditable about them. However, this word's origins can be traced to the chieftains in the border region between England and Scotland in the 16th-17th century. These chieftains would order landholders to pay them hefty amounts in order to avoid getting pillaged by them. The "mail" part of the word meant "rent", which has its origins in the Scandinavian word "mal" which means "agreement". "Black" here is seen as the opposite to "white money", which was the term used for the silver coins traditionally used by farmers and the like to make payments.

The phrase hue and cry has a rather interesting origin in an early English practice of chasing down a criminal with sounds, alarms and loud cries. In those times, it was the duty of a person to raise a hue and cry in order to alert people in the vicinity, who were then bound to help him chase the offender. If the offender was caught and bore obvious evidence of guilt, he would then be beaten to death on the spot.

The word indenture, at first glance, seems more aligned to dentures (teeth) than law and that is correct to an extent. It means a legal contract between two parties, particularly for the term of an apprenticeship or even land transactions. The term originates from medieval English, with the first-ever evidence dating back to 1000 AD. "Indenture of retainer" is a legal contract written in duplicate on the same sheet, with the copies separated by cutting along a jagged (toothed, hence the term indenture) line, so that the teeth of the two parts could later be refitted to confirm authenticity. This is also known as a chirograph.

Boilerplate text is that which is quite standard and can be reused without needing too many changes. It also refers to unoriginal writing. This term dates back to the early 1900s. Towards the end of the 19th century, the printing plates of text that were going to be printed repeatedly such as advertisements started being stamped on steel instead of the softer lead, which was also much less durable. These plates came to be known as boilerplates and up until the 1950s several thousands of American newspapers received these kinds of boilerplates from the country's largest supplier, the Western Newspaper Union.

Third-degree is an intense way of questioning suspects of crime and the term is also commonly used as a euphemism for torture. It was found that the classification of the qualities of objects by degree was common in medieval times. "Rue is hoate and dry in the third degree," said Anglican poet Henry Lyte in 1578. Shakespeare in Twelfth Night (1602) applied the third-degree classification to drinking; "For he's in the third degree of drinke: hee's drown'd: go looke after him."

"We the jury, find that the accused was alibi," was the verdict in 18th-century criminal trials. This meant that the accused was "elsewhere" when the crime was committed and was, therefore, deemed innocent. Over the centuries, this word has been used so often in courts that it has now become synonymous with an accused criminal's story and an often spurious excuse.

Byelaw over the centuries has been thought of as being a secondary or additional law, given the prefix "by", although the word had no connection with it. The origin of the word is most probably the Old Norse word "bylog", which referred to a town or a place where people dwell. Therefore, this was an old English Viking town law which applied only to a particular local community rather than the whole country.

Death Tax simply means that after the death of a person, a tax must be paid to the government by the person who inherits the deceased person's money and property. There are two kinds of death taxes–estate tax and inheritance tax. In India, however, there is neither, although there are several who think it's a wise move on the part of the government to increase its revenue in this manner. The death tax has endured for many centuries because it has always proven to be an effective way of adding to the revenue of the government. Egyptians were probably the first to make sense of this concept because a papyrus roll was discovered depicting a man getting fined because he failed to pay the succession tax for his inheritance from his father. Another papyrus depicted a father giving his possessions to his children during his lifetime so that a comparatively smaller tax is paid.

*Moot courts are an important part of every law student's education. These are sessions where they undergo training for their profession by arguing fake cases, making "moot" points, which is a term commonly used to describe an unimportant point, argument or opinion. In medieval England, however, moot or meet was an assembly or council meant for debating and discussing matters of the government.

Finding out the stories behind the origin of some common legal expressions makes one wonder why there were no similar stories from Asia or the Indian sub-continent pegged to them. It is a fact that most of our legal language is built upon foundations laid by the West. Many would say that this is not surprising; after all, we had two centuries of colonial rule, much like other Asian and African countries. Perhaps it is time to examine the Indian legal system and its language and see if we can make it more Indian in nature.

After all, Make in India can also percolate to the legal field.

(Jithendra Palepu is a final year LL.B student at Symbiosis Law School Pune. He is passionate about constitution, jurisprudence, Privacy laws and International Law. He is an intern at The Leaflet.)