For a long, long time, there’s been a movement within law to eliminate legalese — the traditional jargon of lawyers. To a great degree, it has been successful: No longer do we see contracts that refer to the party of the first part and the party of the second part. (Parties are given their names throughout.) We don’t even see mortgages referring to Mortgagor and Mortgagee. Banks now tend to use pronouns: you (the borrower) and we (the lender).

Quick: Are you a mortgagee? Yes or no. Answer now, but let’s come back to your answer.

The traditional rationale for keeping legalese is that it’s an extremely precise, highly nuanced lawyerly argot that immediately conveys specific, clear-cut meanings to those with legal training. It is sometimes characterized as a type of language with an almost mathematical precision. Use a Latinism like quantum meruit or ratio decidendi, defenders say, and every lawyer knows precisely what you mean.

Sorry, but that’s quite false. If lawyers believe in this illusory “precision,” they’re ill informed. The real experts — a dangerous reference in an era when people widely mistrust those with expertise — have long known that these phrases are ambiguous in legal texts.

Allow me to get technical for a moment. The American Law Institute, which issues scholarly restatements of American law, has said that judges often get confused about what they’re referring to with quantum meruit. It can refer to either (1) a claim for the market value of a party’s performance under a contract that doesn’t specify a price, or (2) a claim for the value of benefits provided when no contract exists, as when the plaintiff brings a claim for restitution and that value provides the measure of recovery. Black’s Law Dictionary lists three other quite distinct meanings.

What about ratio decidendi? That’s a fancy Latinism for “the reason for [a court’s] deciding.” The distinguished Cambridge legal theorist Glanville Williams noted that it’s ambiguous: “It may mean either (1) the rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later court concedes him to have had the power to lay down.” In other words, according to sense 2, the deciding court never gets to authoritatively say what its ratio decidendi really is: Only successor courts can do that. Another distinguished jurist, Arthur L. Goodhart, wrote of the phrase: “With the possible exception of the legal term ‘malice,’ it is the most misleading expression in English law.”

So much for Latinisms. Show me any fairly common legal Latinism, and I’ll show you a similar ambiguity.

Wait a second: Did you notice Goodhart’s assertion that malice is ambiguous? That’s one of the most common terms in criminal and civil law. Lawyers don’t have a definite meaning for malice? No, they don’t.

In law, malice technically means wrongful intention. It includes any intent deemed wrongful by the law and therefore serving as a basis for liability. Whatever is done with such an intent is termed malicious. But it has other meanings. In ordinary speech, whether of lawyers or of others, malice is thought to denote ill will or malevolence. This is why the “actual malice” standard in defamation cases — as set forth in New York Times v. Sullivan — is so confusing to people. It really has nothing to do with trying to hurt someone in a hateful way. Actual malice simply means that an alleged defamer knew a statement to be false or was reckless in disregarding whether it was true. Here, malice doesn’t mean intent. Whole treatises have been written on the nuanced meanings of malice.

Ambiguities are everywhere in law, and good lawyers are keen on spotting them. Good judges are keen on ferreting them out. Only then will litigants’ rights be secured.

But wait. Right seems hopelessly ambiguous. Roscoe Pound, the revered 20th-century dean of Harvard Law School, asserted that “there is no more ambiguous word in legal and juristic literature.” (Contrary to Goodhart, Pound thought it surpassed in unclarity both malice and ratio decidendi.) He enumerated five senses: (1) a reasonable expectation involved in life in civilized society; (2) a property interest; (3) a recognized claim to have other people act or forbear from acting; (4) the capacity to alter people’s duties in sense 3; and (5) a legally enforceable condition of noninterference with one’s free exercise of natural faculties.

The ambiguities we’ve just seen infect the substantive words of the law. What about mere function words, such as herein? Again, we’re mired in a notorious ambiguity of which most lawyers — I can say this having polled thousands of them at legal-drafting seminars — are blithely unaware. If a contract refers, at the end of a long sub-paragraph, to “all rights created herein,” what does that mean? As it happens, courts can’t agree. It could be within the sub-paragraph, within the paragraph, within the section of the contract, or within the contract as a whole. Various courts have found all those meanings, using various rationes decidendi. Herein isn’t just stilted diction (bad enough); it’s hopelessly imprecise (inexcusable).

That’s why competent drafters write something like “in this contract” or “in this paragraph,” not “herein.” Yet most law schools don’t teach this stuff. Although it’s widely written about in books on legal drafting and legal language, those books are widely neglected.

Think about that the next time you execute a contract. Oh, wait! That’s another pervasive ambiguity in law. What does it mean to execute a contract? Today almost everybody uses it as a fancy synonym for sign. Yet the traditional sense of executing a contract is performing the obligations specified within it. A fully executed contract is one with no obligations yet to be performed — no promises yet to be carried out because they’ve all been fully honored.

Alas, there has been litigation about an agreement to do something “upon the execution of this contract.” One party thought it meant upon signing, the other upon the full performance of all duties specified within it.

Is clarity even possible in law? Yes. Mainly by lawyers and judges with an acute sense of possible ambiguities and a strong devotion to avoiding needless legalisms.

Like mortgagee. Are you a mortgagee? If you’re a homeowner, you may well think so. But the homeowner is the mortgagor. The bank is the mortgagee. So if you’ll check your mortgage, you may be grateful to discover that the first paragraph calls the mortgagor “you” and the bank/mortgagee “we.” Then the rest of the document says “you” and “we” throughout. What a relief for you, the party of the first part.