Can the Law Speak Directly to its Subjects? The Limitation of Plain Language
| Published date | 01 September 2011 |
| Author | Rabeea Assy |
| Date | 01 September 2011 |
| DOI | http://doi.org/10.1111/j.1467-6478.2011.00549.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 38, NUMBER 3, SEPTEMBER 2011
ISSN: 0263-323X, pp. 376±404
Can the Law Speak Directly to its Subjects? The Limitation
of Plain Language
Rabeea Assy*
Can we dispense with lawyers as intermediaries between the law and its
subjects? Can laypeople have direct access to the law? The Plain
English Movement (PEM) has long promoted the use of plain language
in legal writing as the way to demystify the law, and many governments
and private corporations have expended significant resources on
drafting legislation and legal documents in plain language. This article
argues that the PEM has exaggerated the capacity of plain language to
render the law intelligible to the non-lawyer, obscuring the deeper
question of legal complexity by focusing solely on language and style.
Using the law effectively requires expertise that goes far beyond
understanding the meaning of the words used to communicate it: certain
complex aspects of the law cannot be eliminated by mere simplification
of language and this article demonstrates that other specialized skills
are required over and above the ability to penetrate technical language.
The paradigmatic illustration of the need for such skills is litigation.
INTRODUCTION
Complaints about the excessive complexity of the law are as old as the law
itself.
1
When the law is too complex for the public to understand, access to
376
ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*University of Oxford, University College, Oxford OX1 4BH, England
rabeea.assy@law.ox.ac.uk
I am greatly indebted to Adrian Zuckerman, Oscar Chase, Arie Rosen, Han-Ru Zhou,
Conrado Hu
Èbner Mendes, Iain Chadwick, and the anonymous referees for their useful
comments on earlier drafts. The beloved Sarah Moehr and Tanya Lawrence spared neither
time nor effort in helping me revise the final draft. Previous versions of this article were
presented at NYU in December 2009 and at Tilburg University in November 2009. I would
like to acknowledge the generous financial support of the Oxford University Clarendon
Fund and the Modern Law Review Scholarships Scheme. The usual caveats apply.
1 Although it is customary to focus on the last four centuries, such complaints were
chronicled long before the seventeenth century. See, in general, B. Shapiro, `Law
Reform in Seventeenth Century England' (1975) 19 Am. J. of Legal History 280, at
the law becomes largely dependent on access to lawyers. However, many
believe that much of the law's inscrutability is avoidable. A growing body of
literature suggests that legal complexity can be addressed by simplifying the
language and style of the law. Indeed, the language employed by legislators,
judges, and lawyers has been criticized for centuries. `Sham science', `spun
of cobwebs', `a mass of rubbish', `a language of nonsense and solemn hocus
pocus', `a dark jungle, full of surprises and mysteries', are but a few
examples of the pejorative vocabulary that has been used to describe law
language.
2
Thinkers as divergent as Jeremy Bentham and Karl Marx have
nonetheless concurred that the language of the law is deliberately obfuscated
so as to mystify its content and its institutions and conceal their
deficiencies.
3
During the second half of the twentieth century, criticism of law language
was seized on by flourishing consumer movements and produced the Plain
English Movement (PEM).
4
The PEM concentrated initially on the intel-
ligibility of governmental forms and consumer documents, but its agenda
soon extended to the intelligibility of legislation. The fundamental idea
promoted by the PEM is that since the law is addressed primarily to ordinary
citizens, rather than lawyers and judges, it should be drafted so as to be fully
intelligible to those affected by it. This is to be achieved, the PEM suggests,
by drafting the law in plain language, stripping it of its dense, technical, and
convoluted style.
The idea of making the law speak directly to its subjects has proved so
seductive that little critical thought has been devoted to what plain language
can or cannot achieve.
5
Due largely to extensive campaigns promoting plain
377
281; B. Shapiro, `Codification of the Laws in Seventeenth Century England' [1974]
Wisconsin Law Rev. 428, at 431±8.
2 J. Bentham, The Rationale of Judicial Evidence, Vol. 4, Book 8 (1842) ch. 17, 290,
294±5; E. Tanner, `The Comprehensibility of Legal Language: Is Plain English the
Solution?' (2000) 9 Griffith Law Rev. 52, at 52±3; D. Mellinkoff, The Language of
the Law (1963) 4, 265.
3 See, on this point, H.L.A. Hart, Essays on Bentham: Study in Jurisprudence and
Political Theory (1982) 21.
4 A review of the emergence of the PEM can be found at P. Butt and R. Castle, Modern
Legal Drafting: A Guide to Using Clearer Language (2007) ch. 3. It is fair to say that
it was David Mellinkoff who fired the first shot in 1963 when he published The
Language of the Law (op. cit., n. 2), an incisive study that has inspired a large amount
of literature which, along with the growing popularity of consumer movements,
would translate into the PEM. See J. Kimble, `Plain English: A Charter for Clear
Writing' (1992) 9 Thomas M. Cooley Law Rev. 1, at 8 (`Although the critics of legal
writing are legion . . . Mellinkoff can fairly be called the intellectual founder of the
Plain English Movement'). See, also, L.M. Friedman, `Law and its Language' (1964)
33 George Washington Law Rev. 563, at 563.
5 As we will see, the most serious criticism of the PEM can be found in an article by
Robyn Penman and implicitly in some of Peter Tiersma's work. Critical albeit brief
views have also been expressed by Francis Bennion in short commentaries in
newspapers and elsewhere.
ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School
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