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The Letter of the Law: Language and Legal Literacy

The United States of America is known around the world as “the land of the free

and the home of the brave.” However, despite this emphasis on personal freedoms and

liberty for all, our country has a more significant government presence than almost any

other in the world. Almost every aspect of daily life in the United States is impacted by

legislation at some level: the contents of our breakfast cereals are evaluated by the FDA,

the gasoline that fuels our cars is taxed by the national government, and, as per federal

mandate, a portion of our salaries is reserved for Social Security. Law is all around us,

and yet, the average American would have an easier time reciting the Spanish alphabet

than explaining a run-of-the-mill contract or even the terms of service they agreed to in

order to use Facebook.

One of the many ways writing can be defined is as a form of communication, a

way to transmit ideas from one brain to another. But what happens when language is

made purposefully or incidentally confusing to its audience by those in power, deviating

entirely from its intended purpose? How can we as a society govern ourselves by laws

that we cannot read and do not understand? What are the consequences of defining the

legality of our actions in a mess of Latin, French, and archaic formalities? Some

confusion between writer and reader is fairly typical, but legal language presents a case

where the obfuscation is typically intended and patently unavoidable. How did we come

to this point, and is there any way to change this standard?

Colloquially referred to as legalese, legal English has a well-known and long-

standing reputation for being dense, confusing and nearly impossible to read. However,

despite its current status, legal language has not always been so far removed from
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common language. According to O.V. Mykhailova, legal documents were written in plain

English in Great Britain before the Norman invasion. Following the Norman invasion in

1066, French was adopted as the language of the people and was incorporated into the

laws of Great Britain. As a result, many of the legal terms we still use today are of French

origin, such as property, estate, and chattel. In 1356, the Statute of Pleading mandated

that legal proceedings take place in English but be recorded in Latin, resulting in the use

of a mix of English, Latin, and French in legal proceedings through medieval times

(Mykhailova).

Although American legal proceedings today take place in English, they are still

marked by their French and Latin roots (think ad litem, de facto, and caveat emptor). This

jumble of language alone would be enough to stump many average readers, but legal

English has several other hallmarks that make it particularly tricky to decipher. For

example, legal English is known for featuring labyrinthine sentence structures; sentences

in legal documents are incredibly long and are often redundant and circular in nature,

making it difficult for audiences to construe meaning from them.

This complicated structure is compounded by the frequent use of passive voice,

allowing attorneys to construct a sense of objectivity in legal rhetoric by avoiding the use

of pronouns (Tiersma). However, the passive constructions and avoidance of pronouns

can leave audiences with little to no sense of who the subject of a legal document is or

how laws and proceedings affect them.

Finally, legal language uses a mix of archaic vocabulary- including words like

“aforesaid,” “herewith,” and “thereunder”- and common words given meanings different

from what a layperson might expect (Tiersma). For example, the average American might
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define “assault” as an attack or confrontation, while a lawyer would define it as threat or

attempt to harm another person, with the actual confrontation being known as “battery.”

Effectively, a common reader likely would not recognize half of the words in a legal

document, and the half that they did recognize would have a meaning that ran contrary to

their expectations. This makes it nearly impossible for anyone without years of legal

training to decipher the legal English that comprises many of the documents that control

our lives.

But does the average American need to understand legal language? That’s what

lawyers are for, right? While it is true many Americans do hire lawyers to mediate

divorces, help write wills, and settle property disputes, how many people hire a lawyer to

purchase health insurance? The use of legalese became closely tied to health insurance

when President Obama signed the Affordable Care Act into law in 2010, ensuring that all

Americans would have access to health insurance and entwining our healthcare with the

law.

One might think that a piece of legislation like the Affordable Care Act, one that

would profoundly impact all American citizens, would be carefully explained by the

government to ensure complete understanding. However, a poll conducted by the

Washington Post in 2013 (three years after Obamacare was signed into law) revealed that

more than six out of every ten Americans did “not have the information necessary to

understand the changes the law [would] bring” (Somashekar and Craighill). The

confusion surrounding this law created a widespread sense of division regarding the

Affordable Care Act that persists until today. More importantly, more than 29 million
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Americans who could have benefitted from the law remain uninsured due to perceived

prohibitive costs and misinformation about exactly who legally qualifies (Cooper).

The dangerous consequences of unclear legal language are further illustrated

through the story of Aaron Schwartz. Schwartz was a 26-year-old social activist who

hung himself in 2013 rather than face a felony lawsuit filed against him for violating the

article database JSTOR’s terms of service by downloading multiple articles with the

intention of disseminating them to people in the developing world (Lessig). Schwartz

buckled under the pressure of a federal lawsuit that treated his actions as a breach of

contract, a fact that would have been obfuscated by a densely rhetorical terms of service

page, which Schwartz would have accepted before utilizing JSTOR (Lessig).

Unfortunately, terms of service agreements have become a frequent punch line in

modern humor due to their universal ambiguousness. The average reader is both unable

and unwilling to pore over pages and pages of legal English that they have no hope of

understanding to use an online service, so the terms of service page on any website is

typically skipped over and happily forgotten as the user embarks on the task they need to

accomplish. Even those who do read the terms of service come away with little to no

understanding of what they have read. While Schwartz’s actions were not necessarily

correct, he was being punished for breaching a contract that he could not even

understand, for breaking terms that he might not even have known he agreed to. Is that

fair?

Citizens like Schwartz deserve to have an understanding of the laws to which they

are being held accountable. As quoted by CBC Radio, the director of the Canadian

Research Institute for Law and the Family John-Paul Boyd boldly states:
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We live in a system of justice where the courts are open to all. If we live in

a system that's governed by the rule of law, there's no reason why you

should have to hire a lawyer. But when we have legislation written in

incomprehensible language... you do wind up having to hire a lawyer, and

it seems to me that it's unfair. (Brown)

Although Boyd is referring to Canadian law, both the American and Canadian legal

systems utilize the same unjust and obfuscating language. Boyd and other activists like

him have called for a translation of modern laws into plain language in order to make

them more understandable to the citizens that are expected to follow them (Brown).

This may sound like a simple enough solution, but many are unwilling to adopt it.

In the article “A Curious Criticism of Plain Language,” plain language advocate Joseph

Kimble outlines (and disproves) some of the arguments lawyers, specifically Soha

Turfler, have used as an attempt to discourage the adoption of a plain, or common,

language approach to legal documents. Namely, Turfler and others affirm that using

plain language disregards the “heterogeneity” of audiences by attempting to create laws

that are clear to all readers (Kimble 185). They argue that no two readers are alike, so it

would be impossible to write in a style that was accessible to all citizens. Additionally,

Turfler states that to boil down legalese into a language understandable to the average

person would take away from the “art” of legal discourse and serve to discredit the hard

work done by thousands of legal professionals across the country (Kimble 186).

Like Kimble, however, I agree that the benefits of plain legal language outweigh

any negative outcomes identified by Turfler and her compatriots. If we as a nation are

ever going to fully enjoy the freedom we pride ourselves on, we will need to foster an
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understanding of our civic and legal discourse among all of the people of this great

country. Knowledge is power, and right now thousands upon thousands of Americans

are left powerless by their lack of understanding of the laws that govern our actions and

the discourse that fuels our government. It is unethical to hold people to legal standards

they cannot hope to understand without an advanced law degree or the assistance of a

pricey lawyer. With the current upheaval in our political system, it more important now

than ever that citizens have an understanding of their rights as well as the rights of the

federal government. Plain language law would make our legal system accessible to all

Americans, creating an atmosphere where citizens feel safe to exist and coexist and

finally allowing every American to be free from the oppressive boundaries of ignorance.

Works Cited

Brown, Jim. “Is the law too complicated? A call to write laws in plain English.” CBC

Radio, 10 January 2016, http://www.cbc.ca/radio/the180/unheard-muslim-voices-


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banning-dangerous-dogs-and-a-plea-for-plain-language-1.3393360/is-the-law-

too-complicated-a-call-to-write-laws-in-plain-english-1.3393377

Cooper, Lara. “Even With Obamacare, 29 Million People are Uninsured: Here’s Why.”

The Fiscal Times, 10 May 2016,

http://www.thefiscaltimes.com/2016/05/10/Even-Obamacare-29-Million-People-

Are-Uninsured-Here-s-Why

Kimble, Joseph. "A Curious Criticism of Plain Language." Legal Communication &

Rhetoric: JALWD, vol. 13, Fall2016, pp. 181-191. EBSCOhost, proxy-

millersville.klnpa.org/login?url=http://search.ebscohost.com/login.aspx?direct=tru

e&db=a9h&AN=119038108&site=ehost-live&scope=site.

Lessig, Lawrence. “Aaron’s Law: Violating a Site’s Terms of Service Should Not Land

You in Jail.” The Atlantic, 16 January 2013,

https://www.theatlantic.com/technology/archive/2013/01/aarons-law-violating-a-

sites-terms-of-service-should-not-land-you-in-jail/267247/

Mykhailova, O.V. “Legal English.” V.N. Karazin Kharkiv National University, 2012,

http://dspace.univer.kharkov.ua/bitstream/123456789/7033/2/law_lecture.pdf

Tiersma, Peter. “Legal Language: Summary.” University of Chicago Press, 1999,

http://www.languageandlaw.org/LEGALLANG/LEGALLANG.HTM

Somashekar, Sandhya and Peyton M. Craighill. “Many Americans confused about health-

care law, poll finds.” The Washington Post, 20 September 2013,

https://www.washingtonpost.com/national/health-science/many-americans-

confused-about-health-care-law-poll-finds/2013/09/19/e986346c-2139-11e3-

a358-1144dee636dd_story.html?utm_term=.e5360af1d237
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