Plain Language and the Law

 Posted by on May 30, 2010  Add comments
May 302010
 

Legal language is hard.

Irish laws are written in complex, impenetrable language to make sure  there’s no possibility of misunderstanding them.  The purpose is to make sure they can only be read one way.

Right?

Well that would explain all those thousands of lawyers arguing about the laws,  wouldn’t it?

Right.

If you were studying a treatise on sending space shuttles to Mars, you wouldn’t expect it to be written partly in Latin.  You would not expect it to contain an appendix in Elizabethan English.  You would expect it to be laid out in a readable, accessible manner, and you would probably expect it to be hard work.  But at the same time, you’d expect the language to be as clear as could be, consistent with getting the meaning across.

Let’s make a distinction straight away between plain language and clear   language.  Some ideas are too complex to be expressed in a way that everyone will understand.  Sometimes, stuff is hard.  But that doesn’t mean we need to make it harder by writing in Latin, by using outdated terminology that hasn’t been heard outside a courtroom in three hundred years, by using page-long sentences, or by burying the meaning of the law under a hundred subordinate clauses.

There’s no difficulty with using technical terms.  All professions use jargon and most have been able to find English terms.  Most, that is, except for the Law which, for some reason, has been unable to move beyond Latin.  The law is hard enough to grasp without wrapping it up in needless archaisms and pomposities.

Whenever I suggest to legal friends that we should draft all our laws in clear  language, the response is always one of horror.  And yet, that’s exactly what they’re doing in the United States, Canada, Australia and Germany.

According to the Law Reform Commission of Victoria:

The plain English movement does not require that laws always be drafted in such a way as to make them intelligible to the average citizen. However, it does require that every effort be made to make them intelligible to the widest possible audience.

There’s a big difference between trying to make a law accessible to everyone and trying to remove unnecessary complexity.  It’s very easy to write something complex, bolting on whys and wherefores as you see fit, but an entirely different challenge to draft something tight and binding that can be read by a person of reasonable intelligence who has  a working knowledge of the subject.

Let me give you an example.

In 1993, the UK parliament passed the Clearer Timeshare Act, and here’s an extract from it:

Introduction
1 What this Act does; when and where it applies
1.1 The main purposes of this Act are to give a customer:
(a) the right to cancel a timeshare agreement or timeshare credit agreement;
and
(b) the right to receive information about the terms of the agreement.
The rest of this Act explains how and when these rights apply.
1.2 This Act applies to a timeshare agreement or timeshare credit agreement if, when the agreement is being entered into, the customer, seller or lender is in the United Kingdom or the agreement is to some extent governed by the law of the United Kingdom or a part of the United Kingdom.

1.3 No agreement or notice can prevent this Act from applying.
1.4 This Act comes into force on a day to be prescribed.
1.5 This Act extends to Northern Ireland.

Such clarity of drafting is almost inconceivable in Ireland where, in a classic example of post-colonial longing, we cling to the ancient terminology even more tenaciously than the people who gave it to us.  Our parliamentary draftsmen are capable of producing mind-bendingly complicated legislation, for absolutely no good reason other than their own laziness and the demands of a staggeringly self-important legal establishment.

There is no more cringe-inducing sight on the face of this planet than an Irish judge and a bunch of Irish lawyers bowing to each other in imitation of their colonial predecessors.  They’ve even gone a step further.  Not only have they evolved a separate dialect of English.  They’ve evolved a separate accent.

Aping their betters.

According to Fred Rodell, writing in 1936, There are two things wrong with almost all legal writing. One is its style. The other is its content.

What does that leave to discuss?  If an eminent Yale law professor could say this over seventy years ago, we in Ireland can hardly say we weren’t warned, and yet our parliamentary draftsmen continue to churn out endless turgid, unreadable  laws, and our courts continue to conduct their business in a dialect laughed at by Chaucer for its pomposity.

Why?

I think the reasons have to do with privilege, which has always been a defining characteristic of our independent republic.  In this supposedly egalitarian society of ours, we have installed arcane fraternities in law and medicine who find themselves answerable to no-one.  Both have evolved obscure dialects which are used not as a means of communication but as a means of exclusion and both receive disproportionate financial rewards at the higher levels.  Both, likewise, are drawn from a restricted number of families and social strata.

Both groups hold the country by the balls, have always done so and always will.

I find it ironic that our neighbours, a monarchy, have passed laws accessible to the reasonably well-informed citizen while we in this republic continue to exclude the ordinary person from our legislative process.

This is not an accident.  This is designed to ensure that power remains where it belongs: in the hands of a very small number of families.

To return to my original point.  There are many highly complex areas of study in this world, and many of them contain far more difficult concepts than the Law does.  And yet, practitioners in most disciplines manage somehow to convey their ideas to their peers without writing or speaking like a sixteenth-century scribe.

If the complexity of legal drafting in Ireland meant that our laws were clear beyond doubt, it might be worth the trouble, but the reality is that we remain one of the most litigious and disputations societies in the world.

This pompous language doesn’t work.  Our courts are clogged.

Therefore I have to  conclude that it has one purpose only: mystification.  It’s there to exclude you and me from the legal processes carried out in our name.

As with so much else in this little land, it’s time to let in the light.

  9 Responses to “Plain Language and the Law”

Comments (9)
  1.  

    Bock you do not understand. If one can not baffle the lower orders with bullshit how could one justify a fee of say €5,000 per day ( including weekends). Or there again perhaps you do understand. The thought of replacing Latin and early English is heresy. Where would our “learned friends“ be without their legalese wigs ,silken gowns, tipstaff?. Truly a “dreadful vista”.

  2.  

    I wouldn’t worry about the aul’ Latin, sure can’t anyone who underwent a Jesuit training be able to decypher that.

    I whole heartedly agree with (what I understand to be) your synopsis; Laws are written by lawyers, for lawyers and are not designed to be read, or understood, without the payed assistance of those within the profession, no more than in older times when the Guilds guarded their secrets hidden in symbolism and allegory.

    I also think there’s a certain amount of pomp that goes with the Latin that satisfies the ego of the type of person who enjoys wearing a wig and a gown to work.

    If you want a good laugh re: obscure legal language and latin terms, look up the three definitions of Capitus Deminutio in Black’s Law Dictionary. If Black’s dictionary is correct (and there are many who think it was Black’s private hoax on the legal profession) it still applies in law in North America. Mad stuff.

  3.  

    Vincent Browne made the exact same point last week in the Irish Times. And you are both right. Its bad enough that these guys make a fortune from keeping the legal system inaccessible, but whats worse is that we have a completely dysfunctional justice system largely as a result of this, and when you get down to it, a huge amount of whats wrong with this country is because of our crappy justice system. Unless you go even further, to the real root of most of our problems, which is that we are too apathetic and cowardly to take on the vested interests that run our country, which of course includes lawyers, priests and all the other fuckos we spend our time ranting about on this forum.

  4.  

    I totally agree about the obfustication of the language in Irish laws. I had the misfortune a few years ago to have a major disagreement with Michael McDowell, minister of justice at the time.

    There was an EU directive published related to the freedom of movement of people within the EU, and this applied to the non-EU spouces of EU nationals. The EU law was clear and easily read. And most importantly, there was no room for interpretation.

    The Irish law which implemented the EU directive was so twisted and so open to interpretation that it was impossible for me to win on the basis of the Irish law.

    This is the same law which resulted in a number of people being deported from Ireland although they were married to either Irish people who got married to non-EU spouces abroad, or EU nationals (not Irish) married to non-EU nationals.

    In the end, I complained to the European Commission, as well as some hundreds of other people, which resulted in the Irish govt having to back down on their intrepretation of their law.

    Saying that however, the British implementation of the EU directive was just as unclear as the Irish one, but at least they didn’t start deporting people for no reason other than incompetance.
    In the end, I ma

  5.  

    Hmmm, the end of my previous post disappeared.

    What I wrote was:
    In the end, I made a complaint to the European Commission about Ireland’s implementation of the directive, along with some hundreds of others, and in the end, eventually, the Irish govt “re-intrepreted” their law. That said, the original gobbledeegook text still stands.

  6.  

    Simplification of the Irish Judicial system. That was the heading of a paper i had to do in uni nearly 10 years ago when the law society was thinking about it. Its already been said, its a classicist thing. Keep the profession tight knit! It ensures their perpetual use. Difficult language ensures that only those trained in it specifically can interpret it, therefore allowing for the scandalous charging of fees.

    A divorce can be obtained (non conflict) for approx €300 at the very most, for stamping court documents and getting them sworn, so why then does it cost circa €5,000 to get solicitors to represent your interests, and at least €10,000 if it is contentious? And thats in Co. Clare, and that’s for applicant AND respondent, making a tidy €20,000 for two solicitors in the county!

    The legal profession in this country is a load of bollix, and thankfully, i have spent enough time in a private office to ensure that i never present myself as an officer of the court. I have seen exactly why this country is fucked, and why the lay person has to pick up the pieces. Because not even the nob heads in Government can read it. Brian Cowen being a great example of same. This asshole put forward a legal document affecting the sovereignty of this country without even attempting to read it, why, cause he knows it would take a legal team of 50 a bloody week to get through it, and the translation comes down to “we’ve got your balls in a vice”

    Just an example of a doctrine i could never get my head around was that of “necessaries in contract”, the famous waistcoat case. Here, a minor contracted for opulent waistcoats. He couldn’t pay for them, but because they weren’t “necessary”, it meant he didn’t have to uphold his side of the bargain. However, had the young lad stolen a loaf of bread, this is deemed a necessary, and the full rigour of the law imposed. Now can someone explain that?

  7.  

    I’ve been saying to people, who’ll listen to me, for a long time that the legal system is the next pillar of society to fall. A few years ago people would have laughed at you if you suggested that institutions such as the church, banks, political systems would collapse but they have.
    The legal system is next. This system has been living off petty crime, corporate crime, property for years.
    Example of a typical day; The Gardai arrest someone from a poor part of Limerick, he goes before a Judge with 20 or so previous convictions, judge gives him a suspended sentence he goes off to commit more crime, Judge and solicitors get paid. Same again next day.
    Now middle class people are being brought to court because they could not adhere to court orders for them to pay back monies owed to credit unions etc. They then go to jail. As this happen more and more peole will slowly start to vent their anger and the system will totter.

  8.  

    Res ipsa loquitor.

  9.  

    Meanwhile, in the US, they have have a law.gov workshop: “It is a series of workshops across the country that started in January at Stanford Law School and has continued on to major law schools, examining the implications of making the law more broadly available.” http://www.americanprogress.org/events/2010/06/lawgov.html

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