Myths About the Complexity of Legal Language

The Social Science Research Network has published a forthcoming article on Some Myths about Legal Language by Professor Peter Tiersma of the Loyola Law School in Los Angeles.

To make a long story short, the article argues that "legal language is a myth, in that it is really just ordinary language with a great deal of technical terminology".

Excerpts from the final section of the full-text:

"In sum, it would be a gross mischaracterization to suggest that lawyers have a language of their own. But it would also be inaccurate to say that legal language is nothing more than formal written language with some additional technical vocabulary. Elsewhere I have suggested that it is a sublanguage of English. Whatever the label, it is somewhere between a separate language and ordinary English, and it is much closer to ordinary English than many people seem to think."

"We have seen that one thing that makes the language of lawyers distinct is its large
technical vocabulary. Such terms would obviously have to be converted into plain English. I have no doubt that this can be done, but is it a good idea? ...Many technical terms are useful, and it is senseless to try to eliminate them entirely."

"Efforts to write law in plain English would also have to deal with the textual conventions of the legal profession, which allow the meaning of a word or phrase to be explained or sometimes modified by judicial decision. Either we would have to abolish the ability of courts to do so, which would radically change our legal system, or we would have to require judges construing legislation to literally rewrite the language, or insert definitions, in ordinary English, so that the language of the statute remains transparent. Obviously, drafting the law in plain language would be pointless if readers have to consult judicial opinions in order to know what a statute really means."

"Thus, the main obstacle to writing the law in plain English is that, unless the law itself is vastly simplified, it will require the use of so many words that there will be nothing plain about it. Most advocates of plain English recognize this problem. Although they continue to agitate for plainer language in legal documents, including statutes, they realize that many parts of the law are too complex to allow them to be fully and comprehensibly explained to ordinary citizens. They therefore advocate that those legal areas in which citizens have particular interest, like criminal law, be officially summarized and explained."

Related Library Boy posts that deal with plain language include:

• Plain Language Resources for Law, Business, Government, and Life (August 9, 2005): "Clear language or plain language refers to jargon-free, understandable language. For the past 20 years or more, an international movement has been working to make the language used in law, health information, financial services, commerce and business more accessible. Plain language does NOT mean dumbed down or simplistic vocabulary."
• Move Toward Plain Language in Canadian Court Decisions (November 7, 2005): "Saturday's Globe and Mail contains an article by Richard Blackwell entitled 'Doing the write thing: Judges used to put out decisions that were incomprehensible. Now they are sometimes even eloquent. The writing lessons didn't hurt'... As the article explains, the Supreme Court has been removing Latin words from its rulings and altering the format to make them easier to follow for people reading electronic versions on a website. The clear language push is also being promoted in Canada by such organizations as the National Judicial Institute and the Montreal-based Canadian Institute for the Administration of Justice, where new judges have their writing critiqued by English professors."
• Fifth International Plain Language Conference (November 25, 2005): "I have had the pleasure of working as a volunteer with Sally McBeth, Manager of the consultancy business Clear Language and Design, and organizer of the 2002 Plain Language Association International (PLAIN) conference in Toronto. She just got back from the latest PLAIN conference in Washington, D.C. and reports in her newsletter that 'the people who came were even more diverse than they were in Toronto – in terms of professional background as well as country of origin. At the Toronto conference, representatives of eight countries attended. This time, 14 countries were represented'."
• Plain Language Legal Writing (January 22, 2006): "The Canadian Bar Association's PracticeLink has just published its third in a series of articles on plain language in legal writing: Mastering Modern Legal Correspondence."