Friday November 30, 2007
Lamentable Legalese
By TOM HAYTON
I RECENTLY moved house and was presented with a tenancy agreement. It was written in English of some description but even as a native speaker, experienced language teacher and graduate of a literature-based degree, I struggled to understand it.
Apparently, I was “desirous of tenanting said premises” – or something like that. There were lots of “hereto’s”, “forthwith’s” and incredibly long sentences.
To all intents and purposes, it was gobbledegook, even to an educated reader. It was Legalese.
This kind of complaint is nothing new. Contracts are supposed to be hard to read, right? Wrong. The majority of legal writing may be unfathomable to non-lawyers, but it doesn’t have to be this way.
As an advocate of clarity, all I can do is keep chipping away at ancient attitudes and hope that things will continue to change for the better.
But just how ancient is Legalese? Pretty ancient.
When William of Normandy invaded England in 1066, he didn’t just bring an army of marauding invaders – he brought language.
Over the next several hundred years, England’s laws were written in French and Latin. The English language was the language of the peasants. As a result, the law was written down in a language that only the elite could understand. The masses were excluded.
Things began to change a little in the Statute of Pleading of 1362, a law that stated that future laws should be written down in English. And by 1422, England had a king, Henry VI, whose mother tongue was English.
However, the predominant attitude among scholars of the time was that Latin was a more perfect language than English, and that speaking French was a mark of distinction, so lawyers continued to pepper their texts with Latinate vocabulary and complex sentence structures.
By the 18th Century, things had got hardly better, with the social philosopher and founder of University College London, Jeremy Bentham, describing lawyer’s language as “literary garbage” and advocating a review of the way laws were written down.
And so we find ourselves in 2007 still getting tangled up in horrible sentences like this:
If there is material destruction of the Unit without fault of the Purchaser, this Contract shall be deemed cancelled in accordance with 16.3, unless Purchaser elects by Notice to Seller to complete the purchase with an abatement of the Purchase Price. ... Destruction shall be deemed “material” under ..., if the reasonably estimated cost to restore the Unit shall exceed 5% of the Purchase Price.
(from The Legalese Hall of Shame at www.partyofthefirstpart.com/hallOfShame.html)
Which means:
If there is serious damage to the unit, and: 1) The purchaser did not cause the damage; and 2) It costs more than 5% of the purchase price to repair the damage, then the buyer can cancel the contract, or demand a reduction in price.
(Legalese Hall of Shame)
The law exists to protect the interests of a state and its citizens. So if legal writing isn’t accessible to the majority of the people who it supposedly serves, then the writers are doing a poor job.
Not only that; they are preserving elitist attitudes that are almost a thousand years out of date!
The lessons to be learned from this, and countless other examples, are:
Many of the best lawyers are advocates of clarity, too. In an increasingly complex world, they are the ones who should be getting the business.
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