By Steve Capps, Director, SCAO Friend of the Court Bureau
“Pourquoi me parlez-vous en français?” is French for “Why are you speaking to me in French?” Many commonly used terms in the child support program are actually derived from French words. Why is this? How did we get here?
The answer dates back to the year 1066. Many readers might only be familiar with
pieces of this history from watching the History Channel series, “Vikings.” In 1066 the Duke of Normandy, William I
(later known as William the Conqueror), was battling other claimants over who
would be the heir to the English throne.
The same year at the Battle of Hastings, the Normans defeated the English
army led by Anglo-Saxon King Harold II, which is considered the Norman conquest
of England. The Norman leader William the Conqueror was crowned King on
Christmas Day in 1066.
Normandy itself had an interesting history. This area in northwest France had earlier been
legally granted by treaty to the leader of the Vikings who had invaded
and conquered the territory. The Vikings
were called “Norsemen,” meaning “Northmen” in English or “Norman” in
French. These Vikings adopted the local
language. Thus, the Norman army that
invaded England spoke French.
William installed his own officers within the English justice
system which was based on the old Roman justice system. Although the English spoke English, the
courts issued writs in Latin. The
Normans who installed judges spoke French.
So the judicial system became a mash-up of three languages: English;
Latin; and French.
Following the Norman conquest, lawyers in England had to be
trilingual. Lawyers often used pairs of
words (known as doublets) from different languages to bridge the gap between a
foreign term, “legalese,” and common parlance.
[1] Even when there was little or no ambiguity,
the pairs became stylistic. Examples of
doublets include: "breaking and entering" (English/French); "fit
and proper" (English/French); and "will and testament"
(English/Latin). An example of an
English-only doublet is "have and hold." Occasionally we even run across
triplets: “ordered, adjudged, and
decreed” or “give, devise, and bequeath.”
In 1362 – finally tired of the multilingual legal practice – Parliament
passed the Statute of Pleading. It required all law
to be conducted in English. Ironically,
it was passed in French. As is often the
case with a group as cautious as lawyers, they continued to use doublets
because they had worked in the past.
As late as 1779 lawyers still used a book titled: A Dictionary of the Norman or Old French Language. It translates words into English, including: abate; abeyance; arraign; arrears; enforce; record; and recoup. Today, these are still common terms in Michigan’s child support program. In a very real sense, we are speaking to people in French.
It is not necessarily a bad thing to use terms that derive
from another language when those terms are commonly and easily understood. Many English words come from French, Latin,
and other influences. But when terms become
jargon – meaning they aren’t commonly used and are difficult for people outside
of child support or the legal profession to understand - and we continue using
them simply because they are what we have always used, we fail to effectively
communicate to the people who use our services.
Is it easier to understand “stop” or “abate?” Better to say “unpaid support” or “arrears?”
Further, while brevity is usually preferred, it does little
good to hold a support order in “abeyance” until something happens if the
people affected by the order do not understand it. Better to state “the friend of the court shall not charge the support” until something happens.
Today searching the internet for the term “pro confesso” or “pro con” turns
up at least one Michigan court and several lawyers’ websites explaining that it
is the last step in the divorce process.
Pro con, which is commonly used in the
courts, is jargon referring to a decree pro confesso. The origins of decree pro confesso
are Latin and French, and it roughly translates into “judgment as
confessed.” Not only would a person who
is unfamiliar with the law have difficulty understanding what that means as
translated, a non-lawyer (and lawyers as well) would have difficulty knowing
how to obtain one because that term last appeared in any of the Michigan procedural
rules on December 31, 1962.
“Procedural
justice” refers to how people feel about the process leading to a result. Studies show that people will accept and
comply with decisions - even if they disagree with them – if they feel the
underlying process is fair. In order to
accept a process as fair, the process must do four things: 1) people must feel
they have a voice in the process; 2) they must understand the rules; 3) they must
be treated with respect – meaning they and their problems are treated as
important; and 4) they feel the decision maker is neutral.
When we use hard-to-understand language, we defeat our goal because
it undermines people’s sense that the process is procedurally just. We should ask ourselves if people can really
feel they have a voice if they do not speak the same language court employees
use? Can they feel they understand the
rules when the terms we use are specialized terms that have plain English
counterparts? If we talk to people using
terms they do not understand, can they feel they are treated with respect, or
are we unconsciously communicating that what we want to accomplish is more important
than what they are experiencing? And can
they trust or believe we are acting neutrally if they don’t even understand
what we are saying?
It is possible that the most useful tool we have for
encouraging people to comply with orders is not enforcement, but rather, clear,
consistent communication.
