Where do we stand on legalese questions?

Question

Recently there have been a lot of questions about legalese. Here are a couple of examples:

• What’s the difference between “cite” and “cite to”?

• https://english.stackexchange.com/questions/185890/what-is-subrogation

These have been closed as off topic, with such comments as:

This question appears to be off-topic because it is about legal practice, rather than the English language

and

Analysis of the grammar used in legal documents is not a matter for language specialists, but rather of judges, and those who know how judges think, namely lawyers. Legal English does not follow normal English rules for definiteness, repetition, conjunction, reference and coreference, indirect discourse, adverbial placement, and many other syntactic phenomena. It also deploys archaic syntax, lexical items, and idioms that have not been spontaneously spoken by a native speaker in centuries. As I said, it's not within our writ here.

But, on the other hand, we also have a legal with 111 questions and the summary

Questions about the strange language of legalese.

And such comments as:

Where did this idea come from that questions about English-language legal phraseology are "off-topic" here? If the language is archaic, that only makes the case stronger for keeping it here, because that means it's a question about etymology and the evolution of the language, and nothing could be more on-topic than that.

In the on topic section of our help we do not list legalese as something we may not ask about.

So it seems to me there is a stand-off.

Do we allow legalese questions? What should our help section say about it?

Answer 1

One of my favorite jobs as a judicial law clerk was writing jury instructions. The legal jargon of the statutes and the case law was created by legislators (often lawyers) and judges (formerly lawyers). The purpose of the statutes and cases was to implement a public policy, something that is supposed to reflect the will of the governed, the average person.

Jury instructions attempt to reduce the rules and criteria embodied in that law and decisions into ordinary language, understandable to most jurors, normal people. Similarly, there is a move in government documents and in contracts to shift toward simpler language, less jargon. Far to go.

Much jargon is a form of shorthand. When we say mandamus, legally trained folk have a quick understanding of what is meant without having to recite the sentence that explains its meaning. Some other types of terms or phrases are an attempt at precision, locking in a criteria and leaving little room to err. Ironically some of these are called magic language by lawyers, a recitation that must be there for the document to have force or effect. For example, a trademark application must assert that the mark is or will be used in commerce. That has a very specific and set meaning to a trademark lawyer.

We deal with jargon in a wide variety of fields. Why not law? We deal with complex constructions and parse them out. Again, why not law?

Clearly we do not want to stray into legal interpretation. The reason there are lawyers, and not just fact finders and law enforcers, is that there is a wide range of legal interpretation that can be brought to both the law and documents that reflect or invoke the law. This is especially true in common law countries, such as the US and UK, and many other English speaking countries. But opinion is not our purview anyway.

There is a range of questions that deal with legal terms that do have correct answers without digging deeply into legal analysis. This is especially true of jargon and questions about construction. It also could cover etymology since so much legal phrasing comes from variants of Latin, French and early (or earlier) English.

Let's keep the field open and sort between the questions that are appropriate and those that stray too far into legal opinion. We seem to have little problem shutting down individual questions that depart from our bounds.

Answer 2

I see no reason to close questions about legal English as long as they are about the language, not about actual legal interpretation as done in court. Even the definition of a legal term is about English, and I would even allow it if it requires some knowledge of a law to answer; otherwise, we should also close questions about the meaning of anacoluthon, sports terms, slang, etc., which also all require some knowledge from certain fields that not everyone may possess.

Answer 3

This is a general site for english language grammar, meaning, and etymology questions. We wouldn't entertain questions about the meaning of the jargon of any of the hard sciences, because those require specialist knowledge and are specific to those professional communities. In the same way, we should not entertain questions about legal jargon, because again that requires the special skills and knowledge of lawyers to answer. Simply put: in all of those fields, we cannot reasonably expect to provide correct answers.

However, in respect of parsing the grammar and syntax of legal documents, we can and should assist with those requests. In US (possibly excluding Louisiana) and English law (and as far as I know in Canada, Australia, and New Zealand), the general rule is that the ordinary rules of grammar apply.

Update: I suppose there's nothing wrong with meta level questions about how lawyers use English to discuss law. For example, there's this: https://english.stackexchange.com/questions/186587/what-is-the-intransitive-meaning-of-control asking about jargon which lawyers use to discuss law, which does not in itself denote a legal rule.