Tenses and legal dominance

In an Easter-flavoured post on Language Log, Geoff Pullum summarised the argument that the English language has no future tense.

The claim I’m making is not that reference to future time cannot be made in English; of course it can. And the claim is not that will cannot be thus used: probably over 80 percent of its occurrences involve some kind of future time reference. My claim — Huddleston’s claim — is simply that the varied ways we have of referring to future time in English are not part of the tense system; they involve a significant-sized array of idioms and periphrastic work-arounds — and the modal verb will has no particularly privileged place in that array.

Geoff’s article prompted an tangential thought: Is this linguistic anomaly — the extensive use of the verb ‘will’ to denote future time and its potential for confusion with ‘will’ as an expression of volition — one of the factors that has contributed to the dominance of Anglo-American law in commercial law?

Let’s get the dominance question out of the way first. Bruce MacEwen, in his analysis of last year’s Global 100 list of law firms, points out “the continuing domination of the lists by firms headquartered in the former British Empire.” His explanation?

I believe it’s fairly obvious:  Anglo-Saxon common law has a particular genius for innovation.  Imagine trying to structure a complex multi-jurisdictional project financing vehicle under French Civil Law.  I’m no expert, but I don’t think it could be done.  Not only does the common law presume that the wishes of voluntarily transacting private parties should be honored, every time such a transaction is challenged and either enforced or overturned, we have future guidance for our behavior.

(I agree with Bruce that imperial hegemony is not enough to justify this dominance. Britain’s historical geo-political power is long-gone and was not several orders of magnitude greater than the French, Spanish or Dutch empires: each of these modern nations can claim one firm in the Global 100 list. The USA’s current commercial power is fickle and does not necessarily support the global spread of its law firms.)

But where does the genius for innovation come from? Bruce’s example of structuring a complex transaction suggests the ingenuity of the Anglo-American draftsman. I wonder if the ingenuity originally rests with litigators. The common law tradition depends heavily on oral argumentation. In a language where there is an inherent confusion in the statements people make (when I say that I will do something, can you be certain that I am making a promise rather than a prediction?), the resolution of disputes is almost certain to involve the most imaginative propositions. Those propositions are then reflected in an immense juristic corpus (the common law itself) which is at the heart of the most imaginative contractual drafting, even if only implicitly.

Arguments about alleged promises are at the heart of all legal systems. There are undoubtedly many other elements that contribute to the current Anglo-American dominance in the law, but the special privilege of English-speaking lawyers that their language captures that argument in its grammar surely plays a part.