Now for the old essay…
Colloquial Grammar vs Legal Usage
Colloquial: an adjective, used to indicate ordinary or familiar conversation, not formal or literary.
To that I would also add: “not legal usage either.”
There’s a reason it’s called legalese even when you are dealing with common law standards of legal practice rather than so-called administrative law standards of legal practice (the difference between these two concepts of laws and legal theory may be summed up in how they are deemed to be founded … 'nuff said about that since the foundation of laws is beyond the scope of a short piece about legal usage of language that is also limited in its scope).
If you have ever read the United States Constitution or the text of many different ordinary laws you may have noticed odd times, for example, when words are capitalized OUTSIDE of the regular rules of grammar. The capitalization is not intended to be haphazard in such cases and it actually has meaning related to the specific context.
Generally, such instances may serve a structural purpose or they may occur to indicate something in particular as a matter of usage — either indicating some particular ‘kind’ or ‘class’ of subject if not a specific subject proper.
For an example of how usage like this can serve a structural purpose in a law, Article 1:Section 8 of the United States Constitution is actually a single sentence of legalese that begins with the words: “The Congress shall have Power To,”. Each time the word “To” is repeated in this article it structurally ties the clause being presented back to those first five words. So you could represent each clause of the article as follows in colloquial speech:
“The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
… or …
“The Congress shall have Power to provide and maintain a Navy.”
And so forth.
So the construction of A1:S8 is such that each clause in the “sentence” is separated and highlighted by a “To” (and not a “to”) at its beginning and a “;” at its end.
This was just one example of how colloquial grammar gets thrown out the window at times when using legalese.
Another that I’ve indicated is that the language of a law may include such usage so that the thing capitalized represents a specific thing or a specific class of related objects. In such instances you can say that when a term is capitalized it is “specific usage” while the same term in a similar context that IS NOT capitalized is “general usage” (i.e. not meaning anything In Particular).
Several examples, contrast between specific usage and general usage, of this are found in the US Constitution.
In Article 4:Section 2 we learn that the several States are accountable to respect the “Privileges and Immunities” of the “Citizens in the several States.” Here “Privileges and Immunities” refers to what might be commonly thought of as Rights under Anglo-American Common Law — i.e. a specific body of well understood laws which accord a number of also well understood (at the time) “Privileges and Immunities” on “Citizens”. So in this instance we see that the specific usage indicates which body of laws AND which kind of Rights, accepted in all of the several States, that the several States were required to allow for.
In contrast, the language in the 14th Amendment intended to enumerate the Power to Congress to respect civil rights (as opposed to “inalienable rights”) that the several States may not disparage is focused on the words “privileges or immunities”. Here the usage HAD TO BE general because, prior to Congress actually acting to pass some particular civil rights bill, there would be NO WAY of knowing what sort of “privilege or immunity” Congress might respect. They may require the states to allow for some “privilege” or they may grant Americans some legal “immunity” but what those would be is completely unknown beforehand.
Another example of specific v. general usage of a term is found with the word establishment — which occurs exactly twice in the whole of the Constitution: in Article 7 (“Establishment”) and in the 1st Amendment (“establishment”). In both cases the context is similar: something authoritative is being respected which (once it is respected) has administrative authority to compel the People to live under it. In the case of Article 7 what is being respected, the Constitution of the United States of America, would factually drive the People and the several States from remaining under the Articles of Confederation any longer. In the case of the 1st Amendment it could not be known in advance WHAT SORT OF “respecting an establishment of religion” might be attempted or might transpire at all — so not only is “establishment” general usage but so is “religion”.
In both cases the term establishment means exactly the same thing (they just relate to different subjects that may be respected) and even the contextual considerations are similar. It is just that in the former case something specific is being respected while in the latter case nothing specific (literally, as in “nothing Specific”) is being forbidden.
There is, of course, potentially much more to this kind of a discussion; however, this may be enough to get you nice people thinking…
Or, at least that would be my desire.
