Excursions into the Nature of Legal Language

In this article, I explore some of the truths on each side of the issue of whether the language of the law is a technical language and whether lawyers speak in a technical language when they speak with each other about the law. In Part I of this article, I examine the due process limitations on the thesis that the law is in a technical language and I draw distinctions between speaking carefully and speaking technically. In Part II, I set out the technical language views of H.L.A. Hart and Charles Caton. By taking back-bearings on the views of Hart and Caton, I then develop a third view of technical terms.

With that view in hand, I investigate the language of the law in Part III. I conclude that although Hart's and Caton's views will allow us to say the language of the law is technical, its technicality is not interesting or illuminating under these views and is in danger of being an "experts only" language. Under my view we may not say the language of the law is technical, although some of the most interesting terms are ones surrounded by theory and although lawyers may speak technically by making technical uses of ordinary English.