II

A Digression on Legal English

Even when the counsel in chambers is merely ‘advising on a case,’ or drawing up a conveyance of property, he is really thinking of what view the court and its judges will take of his advice or his draftsmanship if any dispute arises upon them … The supreme test in every case is: ‘Will this stand the scrutiny of the court?’

Stephen’s Commentaries on the Laws of
England, 17th edition (1922)

The obtrusive gracelessness of legal English arises from the necessity of being unambiguous, and that is by no means the same as being readily intelligible. On the contrary, the nearer you get to the one the further you are likely to get from the other.

The reason why certainty of meaning must be the paramount aim in legal drafting is clear enough. Legal documents impose obligations and confer rights, and neither the parties to them nor those who draft the documents have the last word in deciding exactly what those rights and obligations are. That can only be settled in a Court of Law on the words of the document; but words, with their penumbra of meaning, are an imperfect instrument for expressing complicated concepts with certainty. It is the duty of all who draft these authoritative texts to try to imagine every possible combination of circumstances to which their words might apply and every conceivable misinterpretation that might be put upon them, and to take precautions accordingly. When drafting, they must limit by definition words with a penumbra dangerously large, and amplify with a string of near-synonyms words with a penumbra dangerously small. They must eschew all pronouns when their antecedents might possibly be open to dispute, and circumvent every potential grammatical ambiguity. They must avoid all graces, and not be afraid of repetitions, while all the time keeping an eye on the rules of legal interpretation, and on the case law that concerns the meaning of particular words. No one can expect pretty writing from anyone thus burdened.

The peculiarities of legal English are often used as a stick to beat the official with. An example of this is the following, by an evening-paper gossip-writer, about a Bill just introduced in Parliament:

It is written in that abominable civil service jargon, which is as stiff, heavy, lumbering and ungraceful as a wheelbarrow being pushed through sodden clay … It would be a Herculean task to teach the Civil Service to write its own language creditably.

That the style of Bills, Statutory Orders and other such documents has peculiarities cannot be denied, but if it is jargon*—an arguable question—its species is the legal not the official. It is written by lawyers, not by civil servants (in the sense in which the critics use the term), and its peculiarities arise from causes exactly opposite to those of the peculiarities alleged against ordinary officials. Those of the one come from a desire to convey a precise meaning; those of the other—so it is said—come too often from a reluctance to convey any meaning at all.

I do not mean to imply that there is no room for improvement in the drafting of statutory documents; but such writing is prudently left to a specialised branch of the Civil Service, and therefore falls outside the scope of this book. It is more a science than an art; it lies in the province of mathematics rather than of literature, and its practice needs long apprenticeship.*

The only concern of ordinary officials is to learn to understand legal English, to be able to act as interpreters of legal English to ordinary people, and to be careful not to let it taint their own style of writing, a subject to which we will return.