HOW LEGAL LANGUAGE EVOLVED
Speech notes
David C. Elliott
Edmonton, Alberta
25 March 1991
11
Contents
Have an orange
The Normans
Two languages combined
Scriveners
Attempts to change the language of the law
International trends
What is plain language?
Canadian plain language activities
Why the interest and activity
That's the problem, what's the solution?
Mellinkoff's suggestions
Complex subjects will remain complex
Updating your word bank
Bibliography
Writing courses
11
HOW LEGAL LANGUAGE EVOLVED
Have an orange
If a lawyer is asked to write up a contract for the sale of an orange it might read like this:
"I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck and otherwise eat the same, or give the same away, with or without its rind, skin, juice, pulp and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of whatever nature or kind whatsoever, to the contrary in any wise notwithstanding."
Typical 20th century legal gobbledygook?
No, that was an example given by Arthur Symonds in his book Mechanics of Law Making in 1835. An example of typical conveyancers’ English.
But the problems of legal English did not start in the last century. We have to go back to time immemorial - back to 1066 and before. A time when the Crown ruled by statute, ordinance and proclamation, doom and writ. When the English of those times would be virtually unrecognisable to us today.
To a time when the language of the law, the courts and decision-makers was predominantly Latin, written by priests, judges, and counsellors to the Sovereign.
The Normans
King Harold has a lot to answer for. Not only did he look up and get an arrow in the eye at Hastings in 1066, he lost the war and the language of the law was never the same again.
With the Norman Conquest of England came Norman French and the desire of the conquerors that their subjects learn a new language. It was tough going for the locals. Although Norman French and Latin became the language of the law and Government, it seems that the Norman nobles had a preference for English wives. And those wives continued to teach their children English.
The result, over time, is that English and Norman French were used together with many Norman words being adopted as part of the English language.
While all this was going on the scribes of the day had a problem. They wanted to be sure that transactions were effective - but how could they achieve that with a language in transition and a population that clung to English? The answer was simple - use two or three words instead of one. Use the Norman word, the English word, and if necessary the Latin as well.
Two languages combined
And so were born the couplets and triplets we know so well:
the old English / . . . and . . . / Frenchacknowledge
act
breaking
final
free
goods / and confess
and deed
and entering
and conclusive
and clear
and chattels
the French / . . . and . . . / the Latin
peace
save / and quiet
and except
the English / . . . and . . . / the Latin
will / and testament
Scriveners
Obscurity, longwindedness and convoluted language were helped along by legal scriveners who were paid by the word. It was they who padded their pay by using said, aforesaid, herein, hereof, hereinafter, hereunder, hereinbefore, aforesaid, wherein, whereon, whereas, therein, thereon, therefore and the like, ad nauseam. Even now there seems to be a concern that if a document, an agreement or a decision is not long enough, clients or the parties will feel they didn’t get their moneys worth.
Attempts to change the language of the law
The Parliament of the United Kingdom tried 3 times to change the language of the law by legislation.
The first attempt was the Statute of Pleading in 1362. It decried the use of French (although was written in French). It required the language of the courts to be English (but documents to be recorded in Latin).
The second attempt was a statute promoted by Cromwell's Parliament, in 1650, "for turning the Books of the Law, . . . into English". It was principally aimed at court proceedings but it included a requirement that "statutes . . . shall be in the English tongue". It was not happily accepted by the legal profession and in 1660, after the Restoration, was repealed.
The third attempt to change the language of the law to English was legislation passed in 1731 requiring that all court proceedings and statutes
"shall be in the English tongue and language only, and not in Latin or French . . . and (court proceedings) shall be written in such a common and legible hand and character, as the acts of parliament are usually engrossed in . . ."
All 3 statutes were aimed at making the law more understandable and accessible to the public. In one sense those early statutes can be seen as the forerunners of the more recent "Plain English" statutes in the United States.
It took 700 years of passing Acts before the Parliament of the United Kingdom broke up its Acts into sections and put in some headings. Before that it was margin to margin solid blocks of text. Like most legal documents and too many judgments and decisions today. As Jeremy Bentham put it early in the 1800's century
Number it has none - division it has none; A lot of surplusage, and mostly to the same effect.
Bentham said that when the first suggestions were made about splitting up the text of Acts into sections it was suggested that it was a Jacobean plot to undermine the English language. The critics conveniently ignored the fact that even the bible had numbered verses.
And so it went on with only occasional bright spots in the way the law was written in judgements, contracts, and legislation.
It is difficult to pin point when the tide started to turn.
International trends
Throughout the world attempts are now being made to make legal, business and government communication more accessible and understandable to those who must read them.
The label "plain language" is a convenient one to provide a focus to concerns about improving official writing.
What is plain language?
Professor Robert Eagleson has described plain language as language that is clear, direct and straightforward. It is language which allows readers to concentrate on the message conveyed not on the difficulty of the language used.
Plain language uses the right word for the right occasion and does not use unnecessary words.
Communicating in plain language includes careful presentation of text. Good text presentation will incorporate the latest techniques to help understanding and avoid things which hinder comprehension. The result then is a text that is well organized with a typestyle, layout, page colour, line length and indentations all designed to communicate the message of the text in the clearest possible way.
One of the first Parliamentary Counsel in the United Kingdom (the lawyers in the UK who draft legislation) was concerned that "layfolk" be kept in mind when drafting legislation. In the United States, Professor David Mellinkoff wrote a classic, The Language of the Law, in 1963 which dispelled many myths about legal language. In the United Kingdom a plain English campaign within Government led by former Prime Minister Margaret Thatcher revolutionized government forms and government communication. It is an ongoing program. In Australia, the work of the Victorian Law Reform Commission on Plain English dominated the latter part of the 1980's.
The plain language movement emerged in the mid-1970's. It is said to have developed in response to the needs of consumers for documents they could understand and the recognition by Government and business that plain language brings efficiency and economic benefits.
During the past two decades research has uncovered obstacles to understanding the written word. That research has contributed to a multi-disciplinary interest in the way in which texts can best be written and designed to make them easier to understand.
Canadian plain language activities
In the past 5 years there has been an avalanche of interest and activity in the way the law is expressed in all its forms, including decision writing. For example
· the Canadian Law Information Council established the Plain Language Centre in Toronto which has a substantial collection of articles, books and other material on ways to improve writing and why it makes sense to write plainly
· a Plain Language Institute funded with some $3 million has just started in British Columbia; a direct response to the call for improved access to the justice system by improving the language used in it
· the Saskatchewan Government has started a Government wide program, in part modelled on the highly successful United Kingdom public service program, to improve communication between the Government and the public
· Alberta's Consumer and Corporate Affairs have recently suggested plain language initiatives in consumer contracts
· the Canadian Institute for the Administration of Justice is in its second year of seminars for decision writers - suggesting ways in which decisions can be better written (the Institute is also sponsoring Canada wide seminars on writing municipal bylaws. Some of the language and form of bylaws can be traced directly to practices used in England in the middle ages).
· Alberta Law Reform Institute plain language initiative.
Why the interest and activity
People have had enough of the garbage of gobbledygook. The Law Reform Commission of Victoria in Australia in their major Report on Plain English and Law put it this way:
Many legal documents are unnecessarily lengthy, overwritten, self conscious and repetitious. They consist of lengthy sentences and involved sentence construction. They are poorly structured and poorly designed. They suffer from elaborate and often unnecessary cross referencing. They retain archaic phrases. They use technical terms and foreign words and phrases even when English equivalents are readily available. they are unintelligible to the ordinary reader and barely intelligible to many lawyers.
An American put it more bluntly:
There are only 2 things wrong with legal language
· its form
· its content.
That's the problem, what's the solution?
(1) Write with the reader in mind
Don't stop writing and reorganising when you think you have what you want to say right - go on to ask - will my readers understand?
And keep asking that question.
(2) Ruthlessly purge unnecessary words
Get rid of the "said" "hereafter" and "hereunder".
And when you can, use one word instead of two or three.
(3) Write in the present tense
So much legal writing uses the false imperative "shall" when it is totally unnecessary and sometimes wrong to do so.
(4) Take a writing course, and do some reading about writing
As part of your job you owe it to yourself, and more particularly you owe it to your readers. As Gene Fowler said:
writing is easy; all you do is sit staring at a blank sheet of paper until the drops of blood start to form on your forehead
A writing course might help the blood flow more easily.
Mellinkoff's suggestions
Much has been written about legal writing. David Mellinkoff believes legal writing has four outstanding characteristics. It is "(1) wordy, (2) unclear, (3) pompous, and (4) dull."
As a cure he offers the following seven rules which I find valuable. If you want them explained, read his book, Legal Writing: Sense and Nonsense.
RULE 1. Peculiar / THE LANGUAGE OF THE LAW IS MORE PECULIAR THAN PRECISE.DON’T CONFUSE PECULIARITY WITH PRECISION.
Precision is sometimes peculiarly expressed, but don’t be taken in by the peculiar expression of nonsense.
RULE 2. Precise / DON’T IGNORE EVEN THE LIMITED POSSIBILITIES OF PRECISION.
THE PRICE OF SLOPPY WRITING IS MISUNDERSTANDING AND CREATIVE MISINTERPRETATION.
Some day someone will read what you have written, trying to find something wrong with it. This is the special burden of legal writing, and the special incentive to be as precise as you can.
RULE 3. English / FOLLOW THE RULES OF ENGLISH COMPOSITION
If it’s bad writing by the standards of ordinary English, it is bad legal writing.
If it’s good writing by the standards of ordinary English, it is more likely to be good legal writing.
RULE 4.
Clear / USUALLY YOU HAVE A CHOICE OF HOW TO SAY IT.
CHOOSE CLARITY.
Lack of clarity is a common but not necessary feature of legal writing. It is not an inevitable by-product of precision. Clarity depends more on how you say it than on what you have to say. As you write, keep asking, "Clear to whom?"
RULE 5.
Law / WRITE LAW SIMPLY.
DO NOT PUFF, MANGLE, OR HIDE.
The only thing about legal writing that is both unique and necessary is law. To simplify legal writing, first get the law right. You can’t simplify by omitting what the law requires or including what the law forbids. The better you know the law the easier to decide what law ought to go in, and what is overkill or window dressing.
RULE 6.
Plan / BEFORE YOU WRITE, PLAN.
In the quiet time before you become excited with your own words-on-paper, plan. Talk over the goals with those who know more facts than you do, and maybe even more law. Mull, jot, fret, read, outline. Then write. If you start from a plan, the writing will help your thinking and writing. Unplanned, the flow of words becomes a distraction.
RULE 7.
Cut! / CUT IT IN HALF!
Repeat the operation until you run out of time or material. Don’t say the same thing twice inadvertently. Rewrite. Rewrite. Rewrite.
Complex subjects will remain complex