Plain English and the Law: the 1987 Report Republished (html)

2. Legal language

Criticisms of legal language

General

14 The language of the law has long been a source of concern to the community. It has been the subject of continuous literary criticism and satire.^[16] Critics have highlighted its technical terms, its convolutions and its prolixity. These faults have been noted by judges and by practising and academic lawyers as well.^[17] Calls have regularly been made for the use of a more simple and straightforward style. Some improvements have been made in response to those calls. But legal language remains largely unintelligible to most members of the community. It even causes problems for members of the legal profession. In some cases, the obscurity may arise from the complexity of the law and of its subject matter. In other cases, however, it is due to the complexity of the language in which the law is expressed. Some lawyers do not take sufficient care to communicate clearly with their audience. Letters, private legal documents and legislation itself are still drafted in a style which poses unnecessary barriers to understanding.

Legislation

15 Legislation is a particular source of concern. It is the most important form of legal drafting, since it creates rights and duties. Moreover, the style in which it is written affects other legal writing in a variety of ways, both direct and indirect. Criticism of the style of legislation has intensified in recent years. One example is the comment by Mr Warren Pengilley, a Sydney solicitor, on the draft Franchise Agreements Bill 1986:

While one must give credit to the government for coming up with a policy which seems conceptually correct, one must marvel at the prolixity with which the Parliamentary Draftsperson attempts to achieve his objective … Are we inevitably locked into this tortuous language? Should we not just once consider drafting a simply worded statute with a clearly stated purpose and see if our judiciary, perhaps against all punting odds, cannot come up with a reasonable commercial interpretation of what is said?^[18]

Another example is the condemnation of the Social Security Act 1947 (Cth) by the Chairperson of the Victorian Division Social Security Appeals Tribunal, Mr Chris Loorham:

Other Parliaments in Australia seem to be able to pass or amend legislation in a manner that is at least intelligible to well educated persons. It is unfortunate that the Parliament of the Commonwealth of Australia allows legislation such as the Social Security Act 1947 to remain on the statute books which is almost totally unintelligible to anyone. The fact that this Act directly touches the lives of every person belonging to this country gives the Tribunal even greater cause for concern. The current state of this most important Act can only be described as a national disgrace.^[19]

Private legal documents

16 The problem is not restricted to legislation; it exists in private legal documents as well. These are addressed to a much more restricted audience than legislation. But their defects are occasionally noted in the course of litigation. In Guardian Assurance Co v Underwood Constructions,^[20] for example, Mr Justice Mason of the High Court (now the Chief Justice) referred to an insurance policy as being ‘made up of a jumble of ill assorted documents expressed in that distinctive style which insurance companies have made their own’. And Mr Justice Powell of the Supreme Court of New South Wales recently said of a partnership agreement that it:

can hardly be described as a shining example of the draftsman’s art—indeed, it is not going too far to describe it as exuding the glutinous aroma of paste pot and scissors.^[21]

Nature of the problem

A separate language

17 These criticisms indicate the nature of the problems which exist in relation to legal language.^[22] 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 use confusing tautologies such as ‘ordered, adjudged and decided’ and ‘let, allow and permit’. They retain archaic phrases such as ‘know all men by these presents’ and ‘this indenture witnesseth’. They use supposedly technical terms and foreign words and phrases, such as inter alia and res ipsa loquitur, even when English equivalents are readily available. They are unintelligible to the ordinary reader, and barely intelligible to many lawyers. Language which suffers from some or all of these defects is called ‘legalese’.^[23] Linguists regard it as an identifiably different dialect or class

of language.

A legislative example

18 A legislative example of this ‘different dialect’ is subsection 11 (3) of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). One of the aims of that Act is to protect an Australian defendant against the consequences of being sued in foreign antitrust proceedings. Section 11 is designed to enable a defendant to recover reasonable costs and expenses (‘recoverable costs and expenses’) incurred in the foreign proceedings. Subsection (3) states:

Proceedings in respect of a cause of action arising under this section (in this sub-section referred to as ‘cost proceedings’) in relation to proceedings instituted in or before a foreign court (in this sub-section referred to as the ‘foreign proceedings’) may be instituted, notwithstanding that the foreign proceedings are still pending, in respect of recoverable costs and expenses that have been incurred by a defendant in the foreign proceedings at any time before he institutes the cost proceedings (other than recoverable costs and expenses in respect of which cost proceedings have previously been instituted as provided by this sub-section), and the institution of cost proceedings under this section in relation to foreign proceedings that are still pending does not prevent the defendant from instituting cost proceedings, after judgment has been given in the foreign proceedings or the foreign proceedings have been discontinued or otherwise terminated, in respect of recoverable costs and expenses (other than recoverable costs and expenses in respect of which cost proceedings have previously been instituted as provided by this sub-section).

When unravelled, this provision of approximately 175 words has only this to say:

Proceedings may be commenced at any time for recoverable costs and expenses incurred in the foreign proceedings and at later times for recoverable costs and expenses subsequently incurred.

A non-legislative example

19 A somewhat similar style of drafting is evident in the following introduction to a guarantee agreement:

NOW THIS AGREEMENT WITNESSES that in consideration of the Lessor at the request of the Guarantors (which request is evidenced by their execution of this Agreement) continuing at its discretion and during its pleasure the provision of a forbearing to sue for the repayment of leasing accommodation already granted to the Debtor or presently or at any time or from time to time hereafter at its discretion and during its pleasure granting further leasing accommodation advances a financial accommodation to the Debtor the Guarantors jointly and severally HEREBY GUARANTEE to the Lessor the due and punctual payment to the Lessor of all moneys now or hereafter to become owing or payable to the Lessor by the Debtor (including but not limited to interest or any sum or sums so owing and payable calculated at any specified increased rate due to the default of the Debtor) either alone or jointly with any other person on any account whatsoever including all moneys which the Lessor pays or becomes actually or contingently liable to pay to for or on behalf of or for the accommodation of the Debtor either alone or jointly with any other person whether or not such payment is made or liability arises by way of loans, advances or other accommodation of whatever nature by reason of the Lessor having already or hereafter become a party to any negotiable or other instrument or entered into any bond, indemnity or guarantee or, without restriction, under or by reason of any transaction or event whatsoever whereby the Lessor is or becomes or may become a creditor of the Debtor (all of which moneys and liabilities as aforesaid are intended to be secured by this Guarantee and are hereinafter referred to as ‘the Moneys Hereby Secured’).

This extract is a single sentence of approximately 180 words. Its main effect is that:

• the guarantor guarantees the performance by a lessee of his or her obligations to pay money under a lease;

and on that basis:

• the lessor promises not to sue the lessee for repayment of money which is already owing or which becomes owing by the lessee.

Causes of the problem

20 Numerous factors have led to the development and retention of such drafting styles. They include the:

• early use of Latin and French in legal documents

• supremacy of Parliament in law-making

• calculation of legal fees according to the length of a document

• common law tradition of determining what the law is by reference to judgments in earlier cases

• development of standard pleadings

• professional pressure to conform with the practices of other lawyers.

A mixture of languages

21 Latin was the language of learning in Europe for many centuries. English, like other vernacular languages, was thought not fit for scholarship. In England, Latin was the principal written language for important documents and books.^[24] It was the language used in statutes until the fourteenth century, and in writs and court records until its use was forbidden by statute in 1731. However, Latin was not the sole legal language used after the Norman Conquest. In the fourteenth and fifteenth centuries, a form of Anglo-French came to be widely used, particularly as the language spoken in the courts. The use of ‘Law-French’, as the lawyers’ mixed version of French and English came to be known, was also forbidden by statute in 1731. But, by then, both Latin and French terms were an integral part of the language of the law.^[25]

22 Until English became the dominant legal language, there was neither need nor opportunity for it to develop a full range of technical terms and phrases. As it gradually became the official language, it borrowed terms and phrases from French, in particular, to cover deficiencies in its own word stock. As a result, English law could not be expressed in pure English. Pollock and Maitland summarised the position in the following way:

One indelible mark [the Norman Conquest] has stamped for ever on the whole body of our law. It would be hardly too much to say that at the present day almost all our words that have a definite legal import are in a certain sense French words. The German jurist is able to expound the doctrines of Roman law in genuinely German words. On many a theme an English man of letters may, by way of exploit, write a paragraph or a page and use no word that is not in every sense a genuinely English word; but an English or American lawyer who attempted this puritanical feat would find himself doomed to silence.^[26]

23 Many of the terms borrowed from French have now been absorbed into the English language. Words such as ‘contract’, ‘agreement’, ‘crime’, ‘damage’, ‘robbery’, ‘judge’, ‘court’, ‘juror’, ‘infant’, ‘action’, ‘conviction’ and ‘pardon’ offer no present impediment to understanding the law and legal documents. There are other foreign terms with technical meanings which do cause difficulty, but which may have to be retained. These include habeas corpus, mandamus, certiorari and chose in action. But not all the borrowings were, or remain, necessary. There are a number of Latin and French terms and phrases which occur in legal documents and for whose retention there is no overriding need. These include ab initio, corpus delicti, in re, ex contractu, in custodia legis, ‘demise’ and ‘hereditament’. These might readily be replaced with more common words and phrases.

Latin and French are no longer widely taught in Australia. Latin is no longer a prerequisite for admission to faculties of law. More and more lawyers are unfamiliar with Latin and French terms and phrases. Certainly, their use is a hindrance to communicating with the public.

24 The mixed linguistic history of legal language also lies behind another characteristic of legalese—the doubling and even trebling of synonyms, as in:

• acknowledge and confess

• give, devise and bequeath

• act and deed

• null and void

• goods and chattels

• cease and desist

• fit and proper

• rest, residue and remainder

• keep and maintain.

Originally there may have been good reasons for the practice. As lawyers translated documents into English, they may have felt the need to preserve some of the technical French or Latin terms. To assist comprehension, they added an English word to the foreign one. Consequently the English word ‘acknowledge’ was added to the French ‘confess’ and the English ‘goods’ was added to the French ‘chattels’. Unfortunately the practice of adding such extra words persisted even when the borrowed terms became known and no longer needed explanation. The result is that legal texts are cluttered with tautologies. This confuses many readers. They strain to find a difference in the meaning of the terms assuming that two or three words would not have been used if one would have sufficed. Lawyers themselves are sometimes misled. They are afraid to omit one of a set of synonyms for fear of an unintended gap.^[27]

The supremacy of Parliament in law-making

25 The constitutional changes which took place in the seventeenth century and which established the supremacy of Parliament were also of great significance in the development of legal language, particularly in its legislative form. Before Parliament became the supreme law-maker, the judges themselves commonly drafted statutes. They wrote them in terms of general principle. ‘No great precision of language prevailed and the words were very loose and general’.^[28] The judges interpreted the statutes liberally and without excessive regard to fine points.^[29] This ‘equitable’ construction of legislation lost popularity as the judges’ role in drafting legislation diminished. Its death-knell was sounded by the constitutional settlement at the end of the seventeenth century. The significance of that settlement for legislative drafting was, indeed, profound:

The constitutional theory after 1688 bore upon interpretation of statutes in several ways. It affected the form of legislation by tending to make its provisions particular rather than general, an enumeration of instances rather than a broad statement of principle. Prior to the revolution, the details of administration had been largely settled by the executive under the prerogative. With prerogative cut to the bone, and the command of the king no longer a justification for governmental action, anything of moment that was done in the name of government had to be authorized by a statute passed by Parliament. However, to have given an authority in general terms would have created a statutory prerogative. Hence the tendency to specify in detail the exact powers given. This spread to all branches of legislation and was accelerated by the judicial policy of strict construction. When the judges cut down the operation of general expression, Parliament had to attempt to achieve its object by specific enumeration of all that the general expression was meant to include. A vicious circle was established, and prolixity became a pronounced vice of eighteenth century statutes.^[30]

26 Today’s statutes are not as defective in this regard as their eighteenth century counterparts. The relationship between the legislative and executive branches of Government has changed in a number of ways since then. Remarkable legislative powers are delegated to ministers. In some cases, they include even the power to extend or restrict the class of persons or circumstances to which the Act itself applies.^[31] But the legacy of the constitutional changes in the seventeenth century remains. As recently as 1985, Lord Hailsham said in an address to the Statute Law Society in England that ‘the victory of the literalists [strict constructionists] has led to increased pressure for detail on the part of Departments’.^[32] In several Australian jurisdictions, legislation requires the adoption of a purposive approach to interpretation.^[33] Even so, some parliamentary counsel still fear that a judge may be only too willing to read down the clear language of an Act.^[34] Consequently, nothing must be left to chance. The striving of parliamentary counsel to prevent judges from interpreting legislation restrictively leads to repetition, to a maze of cross-references and to the inclusion of too much detail.

Calculation of fees

27 For a long time, legal fees were calculated on the number of sheets or folios which the lawyers or court clerks produced. Malpractices, such as the leaving of wide margins and the inclusion of blank spaces, soon developed. Recitals and preambles were used by unscrupulous lawyers because these preliminary sections gave scope for repeating material contained in the body of the text. Efforts were made to curb these malpractices by specifying the number of words each folio was to contain. These efforts backfired badly. The supposed remedy did nothing but encourage prolixity. So outrageous did the problem become that judges were moved to act.

28 In 1556, one of the plaintiff’s pleadings had been stretched from 16 to 120 pages. The Chancellor punished not the drafter, but his client. A fine of 10 pounds and imprisonment was not enough:

It is therefore ordered that the Warden of the Fleet shall take the said Richard Mylward … into his custody, and shall bring him unto Westminster Hall on Saturday next … and there and then shall cut a hole in the myddest of the same engrossed replication … and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the courts are sitting, and shall shew him at the bar of every of the three courts within the Hall.^[35]

The blame was more properly allocated when Chief Justice Hale later wrote:

There are certain unreasonable impertinences used … which doth not only exceedingly prejudice the people, but … serves for no other use but to swell the attorney’s bill, and at present helps fill their prothonotaries’ pocket, and to reimburse with advantage the purchase of his place.^[36]

The system of payment by the page has now all but disappeared.^[37] But its legacy of repetition and of the use of lengthy recitals and preambles has yet to be finally discarded.

The common law

29 The common law tradition of determining the law by reference to judgments in earlier cases has also contributed to the development of legalese, especially in relation to documents other than legislation. The fact that earlier decisions, even ones that are hundreds of years old, may be relevant in determining what the common law is, requires lawyers to become familiar with writing styles which have long since passed from common use. Not only do they adopt a similar form of expression by a type of literary osmosis, they also use standard documents, especially pleadings, which had proved successful in earlier cases. In the past, these pleadings were collected and followed, however poorly they were drafted and however obscure the language in which they were written.^[38] Books of forms and precedents were published. Some are still in use. Long after the importance of pleadings has diminished and the law has become more concerned with substance than form, lawyers continue to collect and follow tried and proven precedents, often without scrutiny or independent assessment. This approach has been extended to other legal documents, including wills, deeds and contracts. Writing in 1973, a leading commentator observed that:

Documents can only be judged by reference to the needs of the clients in their desire to regulate transactions against a background of conditions. The needs of clients differ; so do the conditions. Nevertheless the majority of members of the branches of the profession are addicted to the use of precedent books, office forms, and printed forms. The thinking seems to be that the needs of a client must be satisfied by some cure prescribed years ago. The pipe dream that the precedent books would always be legally viable was rudely shattered in Dunn v Blackdown Properties Ltd., and the foundations of the castle were further undermined in Tophams Ltd. v Sefton where the House of Lords had the effrontery to hold that a clause taken out of an office file of a lease (effective in the lease) was valueless in a conveyance … That is not to say that precedents in general do not have their uses. They serve a purpose even if it is only to sow ideas in the minds of the draftsman. But he must sift those ideas and select those that individually or together give effect to what the parties need. He must judge each clause by reference not only to the facts but also to the law. If it does not fit exactly then he must alter it.^[39]

30 Despite this advice, precedent books are often used unwisely. Individual clauses are sometimes put together from different sources. As another commentator observed recently:

One very expensive piece of litigation in equity, In Re Gulbenkian’s Settlements [1968] 3 WLR 1127, [1968] 3 All ER 785, went to the House of Lords because the draftsperson had carelessly telescoped two separate clauses, resulting in uncertainty. Lord Reid commented that he ‘was surprised to learn that this botched clause has somehow found its way into a standard book of precedents’.^[40]

It is hardly surprising that different writing styles, all of them difficult, sometimes appear in a single document. The development of word processing, with its facility for producing standard documents with required variations, has further institutionalised the problems.^[41]

Professional pressures

31 Another factor which has been important in maintaining a peculiarly legal language is the pressure on lawyers to conform with the conventions of other lawyers. A person who wishes to become part of a group, particularly a respected member of that group, is under considerable pressure to conform with the language conventions of that group. Experimental evidence has confirmed this in the case of scientists.^[42] A project was based on a report of a medical experiment which was written in the style generally followed by scientists. The report was rewritten in plainer language and both versions were shown to a panel of scientists. The only difference between the two versions was linguistic. The scientists were asked to respond to a number of questions. Their answers indicated that the scientists found the plain English version easier to read, more dynamic, more indicative of a competent scientist and more stimulating. But they still preferred to write in the style of the original version. They apparently believed that the more difficult style was expected of them. That style has no particular merit as communication. It is a matter of appearances. It has nothing to do with professional ability.

16. For example, Jonathan Swift, Gulliver’s Travels, New York Modern Library, 1958, 104; Charles Dickens, Bleak House, Chapman & Hall, London, 1893, 8; James Joyce, Ulysses, Penguin, London, 1977, 321; Groucho Marx, Animal Crackers, 1928, quoted by R Goldfarb, and
    
    J Raymond, Clear Understandings: a Guide to Legal Writing, Random House, New York, 1982, 133. For other recent examples, see R Benson, ‘The End of Legalese: The Game is Over’, (1985) 13 Review of Law and Social Change 519 at 527–528.

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17. For example, J Bentham, ‘Rationale of Judicial Evidence’, John Bowring (ed), Works of Jeremy Bentham Vol 11, William Tait, Edinburgh, 1838, 281; Renton Committee, The Preparation of Legislation, Sweet & Maxwell, London, 1975, Cmnd 6053, 6-7; Current Topics, ‘Unintelligible Acts’, (1930) 4 Australian Law Journal 105 at 106; Bismag Ltd. v Amblins (Chemists) Ltd (1940) 1 Ch 667, 687 (Mackinnon LJ); Davy v Leeds Corporation (1964) 3 AllER 390, 394 (Harman LJ); City of Marion v Becker (1973) 6 SASR 13, 29 (Bray CJ); BT Australia Ltd v The Bell Bros Ltd (1981) 6 Aust Company Law Reports 138, 149 (Wells J).

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18. In a paper entitled: State and Territory Credit Legislation-—How Intelligible? How Effective? How Necessary?, 11 April 1986, 11–12. See also Current Topics, ‘The problem of drafting styles’, (1986) 60 Australian Law Journal 369; Current Topics, ‘Legalese and Courtspeak’, (1985) 59 Australian Law Journal 189; Sydney Morning Herald, I January 1985, 8; Lord Campbell, ‘Law in Plain Language’, 80 The Law Society Gazette, 9 March 1983, 621.

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19. Margaret McGregor, Social Security Appeals Tribunal hearing, 19 November 1986; see also criticism of Commonwealth tax legislation by Mark Liebler, a Melbourne solicitor, Australian Financial Review, 28 April 1987, 5.

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20. (1974) 48 ALJR 307, 308. See also National Bank of Australasia v Mason (1975) 133 CLR 191, 203 (Stephen J).

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21. Vander Waal v Goodenough [1983) NSW Conv R 55–115 at 56, 850.

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22. For detailed analysis, see F Rodell, Woe unto You, Lawyers!, Pageant-Poseidon, New York, 1939; D Mellinkoff, The Language of the Law, Little Brown & Co, Boston, 1963.

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23. For further analysis of the characteristics of legalese, D Crystal & D Davy, Investigating English Style, Longman Harlow, 1969, at 193–217; V Charrow & R Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions ( 1979) 79 Columbia Law Review, 1306; E Finegan, R DiPietro (eds) Form and Function in Testamentary Language in Linguistics and the Professions, 1982, 113;
    
    D Mellinkoff, Legal Writing: Sense and Nonsense, West Publishing, St Paul, Minn, 1982.

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24. For example, Glanvil’s De Legibus (c. 1187) and Bracton’s De Legibus et Consuetudinibus Angliae (c. 1256).

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25. See E Campbell, Legal Research: Materials and Methods, Law Book Company, Sydney, 1979, 174–175; C Weeramantry, The Law in Crisis, Capemoss, Loodon, 1975, 141–3.

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26. F Pollock & F W Maitland, The History of English Law Before the Time of Edward I, The University Press, Cambridge [Eng] 1923, I, 80.

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27. In some cases, the emphasis created by the tautology may have led to a particular interpretation by the courts of the composite phrase which would not be given to its constituents. In such a case, it may be necessary to retain the tautology.

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28. Wilson v Knubly (1806) 7 East 128, 136 (Ellenborough CJ).

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29. Eyston v Studd 2 Plowd 467; E Driedger, A Manual of Instructions for Legislative and Legal Writing, Vol 6, Department of Justice, Canada, 1982, 541; D St. L Kelly, ‘The Osmond Case: Common Law & Statute Law’, (1986) 60 Australian Law Journal, 513.

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30. E Driedger, Manual of Instructions for Legislative Legal Writing, Vol 6, Department of Justice, Canada, 1982, 544, quoting Corry
    
    (‘The Interpretation of Statutes’, Appendix 1 to Cons. St).

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31. See, for example, Credit Act 1984 (Vic), s19.

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32. ‘Addressing the Statute Law’, [1985), Statute Law Review 4, 5.

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33. Acts Interpretation Act 1901 (Cth), s15AA (inserted in 1981); Interpretation of Legislation Act 1984 (Vic), s35. In the case of the Uniform Companies and Securities legislation, a similar provision applies in all states; see, for example, Companies and Securities (Interpretation
    and Miscellaneous Provisions) (Victoria) Code s5A corresponds with s15AA of the Acts Interpretation Act 1901 (Cth).

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34. The hypothetical perverse judge was named ‘Judge Fiendish’ by Rudolf Flesch: How to Write Plain English, Harper & Row, New York, 1979, 36. Flesch’s reaction was: ‘Let’s forget about Judge Fiendish. Let’s write so that no reasonable man will misinterpret what we’re trying to say.’

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35. Mylward v Welden (1565) Toth 101; 21 ER 136; cited in W Holdsworth, A History of English Law, Vol 5, 1924, 233.

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36. M Hale, ‘Considerations Touching the Amendment or Alteration of Lawes’, in I Hargrave (ed), A Collection of Tracts (1787), 287.

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37. S Robinson, Drafting, Butterworths, Sydney, 1973, 13.

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38. D Mellinkoff, The Language of the Law, Little Brown & Co, Boston, 1963, 139f.

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39. S Robinson, ‘Drafting—Its Substance and Teaching’, (1973) 25 Journal of Legal Education 514, 515.

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40. (1987) Legal Service Bulletin 73.

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41. Some documents are so far removed from plain language and so difficult to disentangle that grammatical and syntactic blunders due to printing or proofreading errors are sometimes overlooked even by the lawyers who use them. Below, Appendix 5.

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42. E Bardell, ‘Does Style Influence Credibility and Esteem?’ (1978)35 Communicator of Scientific and Technical Information 4–7; C R Turk,
    
    ‘Do you Write Impressively?’ (1978), 9 Bulletin of the British Ecological Society, 5–10. The study was later duplicated in the United States with similar results: see Wales, L H, Technical Writing Style: Attitudes Towards Societies and their Writing (University of Vermont Agricultural Experiment Station) 1979.

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