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.
Well that would explain all those thousands of lawyers arguing about the laws, wouldn’t it?
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 But that doesn’t mean we need to make it harder by writing in Latin, by using outdated terminology that hasn’t been heard outside a courtroom in three hundred years, by using page-long sentences, or by burying the meaning of the law under a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:
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;
(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.
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.