THE HISTORY OF LEGAL WRITING – by Piet Kotzé
Introduction to legal writing
Legal writing can refer to at least two things. Firstly, to any writing related to law and secondly, to the skill and principles underlying writing in a legal context. Both will be discussed.
South African Legal History
In order to get an idea of legal writing in the South African context it is necessary to give a short history of the development of South African law.
Overview
The law as it is today is the result of a natural process of “hand-me-downs” and the comparative law approach. From Roman law through its development over the centuries through its reception into and development as Roman-Dutch law to its application in South Africa. English law, itself influenced by Roman law, also had a major impact on our law.
Examples
Here are a few examples of early legal writing. The first recorded law was the command given by God to Adam which forbade him from eating of the tree of the knowledge of good and evil. If the Biblical records are correct then Adam and Eve were also the first two people on earth. This means, unless Adam created some law which applied only to himself . . . the above-mentioned law was also the very first.
Biblical
In the second book of the Bible, Exodus, the story of the Ten Commandments is told. The law was written on two stone tablets by God Himself. These laws were to govern the conduct of all people. In Jeremiah 32, we also read the story of the sale of a field with the corresponding documents. This occurred at the time of King Nebuchadnezzar II when he laid siege to Jerusalem. Scholars date the events to about 587 BC.
The code of Hammurabi and Mosaic law
The code of Hammurabi is a law code from ancient Babylon named after the king. It set out, among other things, building regulations. It dates to 1780 BC. Although it is regarded as the most important “legal compendium of the ancient Near East” it is predated by two Sumerian sources, one by Ur-Namma, King of Ur in 2100 BC and the other by Lipit-Ishtar of Isin in 1930 BC.*
* Jacques Loubscher “Tracing the origins of the Southern African building regulations, with specific reference to the period between 1650 and circa 1740: review article” available at http://reference.sabinet.co.za/document/EJC110061.
The code’s view on slavery is in sharp contrast to the Mosaic law. The code mandates the death penalty to the master of a house in which a runaway slave is harboured. The Mosaic law forbids the return of such a slave who fled from his master because of oppression or cruelty. See Deuteronomy 23:15.
The code’s view on the treatment of slaves is more similar to the prevailing European laws of recent centuries than to the Mosaic law. In that respect the last-mentioned law was unique in the ancient near east and, generally speaking, even compares well with modern moral standards.
European law
Until codification occurred one could speak of European legal scholarship. With this change, law was studied more confined to nationality and developed a distinct local flavour.
*The Common History of European Legal Scholarship “Erasmus University Rotterdam: law Review” http://www.erasmuslawreview.nl/files/The_Common_History_of_European_Legal_Scholarship.
Legal Writing as an Academic Exercise
The first United States legal writing course to be offered at university level started in the late 1950s in the form of a class. It was offered by third year students and managed by one faculty member, usually the law librarian. It grew in the early sixties to be offered by, then, recent graduates and later by practitioners with one or two years’ experience. The turnover was high and people doing the work stayed in the positions for no more than two years each. The doctoral staff were also under the impression that because of the workload no one would want to continue this work indefinitely and so placed caps on potential development in these positions. This worsened the situation.
In South Africa legal writing training is still in its infancy. Stellenbosch University has made great strides by the introduction of the current programme. It is an ongoing process and will be fine-tuned to better equip the students for the challenges they may face in future. The father of this project is Geo Quinot, Departmental Chair and Professor in Public Law.*
* http://blogs.sun.ac.za/law/staff/publiekreg-public-law/prof-geo-quinot/
What to expect of legal writing in future
When you do PLT you will notice that the guides specifically mention that certain words and phrases have become obsolete and should be substituted with shorter, clearer ones. When studying for your admission examinations take note that some of the older questions may be repeated in new papers, but that the answers have changed. They now only use plain language. This is a great improvement and much easier to remember.
Skill and principles
“[L]anguage is the central tool of our trade . . . we depend heavily on the lawyers. Our chance to get a case right improve to the extent the lawyers do a better job . . . You don’t have a lot of confidence in the substance if the writing is bad. . .”
To the question, “[w]hat would you identify as the periods in your life when you underwent growth spurts as a writer?” he answered, “you develop a lot as a writer the more you read and so whenever I was having a lot of time to read I think I would have improved a lot as a writer . . . the interesting thing is . . . people lose a lot of writing ability when they get to law school because [they] tend to read a lot of [things] that aren’t that well written and . . . stop reading other [things] that are well written . . . perhaps law students should make sure they have enough time to read [things] apart from law throughout law school” – Justice Roberts (United States Supreme Court).
South Africa is not completely isolated and the national LLB curriculum has recently come under fire for the poor writing performance of graduates. For more on this topic, read the article “The need for a legal-writing course in the South African LLB curriculum” available at http://reference.sabinet.co.za/document/EJC125384.
