Legal documents, as most people would view them, can be a complex mess of jargon.
Words such as ‘hitherto’ and ‘hereby’ can instantly turn ordinary people away from trying to understand their legal rights and duties. Subsections, precedents, Latin, and endless paragraphs all help to cement this image of the law being a science accessible only by those mythical creatures known as ‘lawyers’.
This article addresses why this is the case and whether there is any justification for it.
What is the purpose of law?
There have been textbooks the size of small children devoted to this question. Scholars have argued for centuries about the meaning of law and why laws exist.
Despite this, most legal theorists agree that for laws to work they must be ‘socially effective’. That is, they must be understood and obeyed by the people.
Common sense and reasonableness
In every legal field of law there is a large emphasis on common sense.
Courts will more often than not find in favour of the side that is perceived to be the most ‘reasonable’.
A person on trial is guilty of an offence only if it is proven beyond ‘reasonable doubt’. A person is allowed to use ‘reasonable force’ in defending himself, others, or his property. Spouses are allowed to divorce one and other if the other party has behaved ‘unreasonably’. A landlord should expect 'reasonable' fair, wear and tear.
Therefore, there is always this element of the law reflecting the views of the average person.
So it is particularly surprising that legal documents can make every attempt to distance themselves from the ordinary man or woman by wrapping themselves up in confusing language.
It is certainly arguable that legal documents should be written in a way that reflects the bonds between the law and the everyday man or woman.
As law is largely centred on the judgment of ordinary individuals, it makes sense to create the widest possible understanding of legal documents amongst those people. This is something that using plain English would help to do.
How should disputes be resolved?
In most English speaking countries, we have tended to resolve disputes with a significant degree of confrontation. We have a system that places parties against each other in a courtroom where they both argue before a neutral judge, who will eventually make a decision that one party has won and the other has lost.
It is clear, however, that this model of dispute resolution is fast becoming obsolete. Reductions in legal aid will force people to seek new, more informal ways of settling their cases. This is principally going to mean making use of Alternative Dispute Resolution or ADR.
Plain language in resolving disputes
ADR can include methods like arbitration, where arguments in a public forum still take place but the parties make the rules, and mediation, where the parties try to come to a consensual agreement with the aid of a third party. In both of these methods, there is an obvious need for plain English.
It would be highly unlikely for two small businesses, for example, to deliberately choose to hold an arbitration with strict adherence to English contract law, with all of its anachronisms and doctrines. More likely, they would want to hold it according to principles of reasonableness, business norms, and with a view to further trade.
All of these things require ordinary, non-technical language.
Furthermore, a landlord and tenant sitting down to mediation are unlikely to borrow phrases from the Law of Property Act 1925 or make distinctions between their rights in equity or at common law. They are much more likely to talk about their relationship since their agreement began, the issues to address and where they can come to some mutual ground.
In order to facilitate these new forms of dispute resolution, it is essential that documents are drafted in clear, plain English. People cannot be expected to discuss difficult and potentially emotional cases if they are bogged down in peculiar, hard to follow terminology.
What effects could plain English have on the economy and society?
Framing the law in inaccessible language inevitably has the effect of excluding people.
Consumers and small businesses are particularly disadvantaged by the use of specialist, technical terms in areas of life that matter to them.
Consumers are less likely to enter into contracts if they do not some understand key terms or provisions. They will be more sceptical, critical, and resistant towards trying new things. Indeed, their views of businesses and enterprise may change, becoming less open and more reluctant in their dealings. As a result, using legalese could have damaging effects on economic growth that could be avoided.
That is why law such as the Consumer Contracts Regulations strongly encourages that businesses use plain English in such contracts.
Small businesses may be less inclined to take on new staff by the complex ways in which employment laws are written.
Well-intended anti-discrimination law may have the effect of turning employers away from investing in the labour market simply because difficult language is used.
A small business will not have the resources of a large corporation to use in human resources or legal departments, who can analyse tricky language all day. What they require is clear, easy to understand rules.
Confidence to do business
Using plain English could help reduce the burdens on consumers and small businesses. If sales contracts were concise and readable, consumers would have more confidence to invest and spend money.
If documents concerning employment law were simple and clear, employers would have the time to consider hiring new staff. All of this would benefit the economy in large measure.
Could plain English create inaccuracy?
One of the objections to using plain English in legal documents is the idea that it may lead to inaccuracy.
The reason why we have technical language, it is argued, is to ensure that every word has the correct legal meaning.
Reducing law to ordinary English could distort this exact meaning and lead to the wrong results.
As an example:
It is easy to illustrate this argument with an example. In contract law, only an ‘offer’ is capable of leading to a binding contract if it is accepted. An ‘invitation to treat’, by contrast, will not create a contract if it is accepted. The difference between these two concepts is not huge. Many ordinary people would consider things such as advertisements in shop windows to be ‘offers’ in standard English. However, they are clearly not ‘offers’ in the legal sense.
This example demonstrates the potential problems of relying on ordinary English in legal documents. There are ways in which this problem could be avoided, however. One way is to make contracts binding only if written and signed by both parties, rather than simply on the verbal acceptance of an oral statement, as possible in the status quo. This would have the effect of making each party clear about their positions, without having to make tough legal distinctions.
Loss of accuracy worth the price for increased accessibility
Furthermore, whenever things are opened up to more people, there is the potential for a loss of accuracy or precision. The number of road accidents, for example, would obviously decrease if we only awarded driving licenses to those with advanced driving qualifications. Yet this would surely be a bad thing for society in terms of reducing opportunities and free movement. In short, a partial loss of accuracy may be a price worth paying for accessibility.
Could plain English create more litigation?
Another possible objection to using plain English is that more people would be prepared to take cases to court. It is possible that if legal documents were easier to understand then more individuals would have the confidence to ‘try their luck’ in the courts by arguing various points.
This is in contrast to the current position where legalese may prevent people from overestimating their chances in litigation.
Need to reduce conflict
At a time when policy makers need to consider stimulating economic growth, creating more litigation would certainly be an unwelcome consequence of drafting documents in plain English.
Every attempt should be made to try and reduce legal conflicts and producing a claimant’s charter could certainly have negative effects.
Businesses would be disappointed to find consumers taking them to court because they now have a better understanding of what they signed up to, having been put off in the past by phrases like ‘repudiatory breach’ and ‘force majeure clauses’.
On closer examination, however, it does not follow that making documents easier to understand would necessarily free up parties to sue at will. If anything, using plain English would reduce the confusion and misunderstanding that is responsible for a large number of cases filed in court every year. Parties would be clearer about their own obligations and less paranoid about what the other might be hiding with technical language.
In addition, the movement towards new forms of dispute resolution highlighted earlier will serve to reduce the incentive of litigation. In the near future parties will find it more convenient to resolve issues through discussion and co-operation rather than by heading straight for the court doors. As said before, plain English has major advantages in helping parties to make use of these new methods.
Using plain English is sensible given the reliance on the judgment of reasonable, ordinary people within the law. Moreover, technical legalese is unsuitable for the new forms of dispute resolution and that using plain English could have significant benefits for the economy as a whole.
In terms of the potential drawbacks, there are possibilities for inaccuracy and increased litigation. In both cases, however, it can be argued that plain English offers a price worth paying by making it easier for ordinary people to understand the law.
Ultimately, legal documents exist to make it possible for ordinary people to exercise their rights and live up to their responsibilities. By confusing people and turning them away from the law, the consequences of failing to use plain English in documents could be highly damaging for society as a whole.