The language of the law
Magistrate - journal of the Magistrates Association
John Lister of the Plain English Campaign applauds tentative steps towards clarity in legal writing and argues that the only people who will resist are those who think the law is there to serve their narrow interests.
The law is there to serve the public and make sure justice is done. It is simply a fringe benefit that many people make a living from the law. Unfortunately, when it comes to the language of legal matters, many people still forget that.
In 1936, Fred Rodell, a professor of law at Yale University, declared "there are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground."
Fortunately the language of the law has changed greatly over the past few years. The most important development was the 1999 Woolf report; the ensuing reforms saw phrases such as in camera and ex parte replaced with every day terms such as 'in private' and 'without notice'.
The rejection of Latin terms caused uproar among some traditionalists. Former barrister John Gray claimed: "To attempt suppression of Latin in a civilised country is, in the scale of cultural atrocities, on a par with burning books". Peter Neyroud, Chief Constable of Thames Valley Police, countered by arguing: "The use of Latin seems to be the best possible system for excluding the involvement or understanding of the general public."
Many people in the legal profession believe the Plain English Campaign has a simple anti-Latin stance. But we are not concerned with the linguistic roots of words and phrases, rather whether people can understand them. For example, the Latin alibi is by far the best-understood term for the concept it describes. But the English term 'Anton Pillar' was simply an esoteric reference that only legal experts would recognise; it is now known simply as a `search order'.
In practice, the Woolf reforms have not involved drastic changes to the language of the law. But replacing a handful of phrases has been a major symbolic change. In the last four years, lawyers have found that the system can survive with everyday terms after all.
Outside of the court system, people are most likely to encounter legal writing when they deal with solicitors. Too often we hear of solicitors who simply use the concept of 'precedence' as an excuse to rehash old documents, stick their client's name at the bottom, and then charge their client by the hour if they want a clear explanation of what they are signing. This is simply not acceptable.
By far the worst situation is legalese. Too many lawyers write wills that the person signing has no chance of understanding.
Parliamentary draftsmen also often come in for criticism. In the past, the argument ran that courts used a `literal' system of interpreting laws.
But in the list century there is more emphasis on 'purposive' interpretation. A draftsman can now write comprehensible legislation safe in the knowledge that judges can interpret any ambiguity by taking into account the general intention of a law.
To be fair, the majority of people in the legal profession understand the need for clear communication and do their best to avoid needless legal jargon. But those who do use legal language to exclude 'outsiders' bring shame on the entire profession. Plain English is not about linguistic niceties; it is about the effect language has on people's lives. The law affects everybody. Everybody has the right to understand the law without battling through legalese.
One of my most satisfying moments as a campaigner came when my housemate, then a trainee barrister, got his first course book from the Bar Council. The very first subject covered was plain English. It may take a few generations for legalese to fall from favour, but a crystal-clear legal system is now a genuine possibility.