The limits of plain legal language: understanding the comprehensible style in law

Abstract

The comprehensible style of legal texts seems to be a predominantly linguistic problem. This is how the plain-legal-language movements present it. But, while plain-language statutes have been on the agenda for decades in every civilised country, laws still become more and more complicated. The paper attempts to explain this controversy. First, it argues that comprehensibility has more aspects beyond the linguistic or stylistic one. Sometimes it is the linguistically simplest texts that raise the most serious comprehensibility problems. The paper refers to two pieces of corpus linguistic research that provide evidence that vocabulary and grammar in themselves do not explain the incomprehensibility of the legal texts. Second, for a more subtle handling of the comprehensibility problem, the paper offers a framework of three typical pragmatic situations – the processual, the problem-solving and the compliance settings – where comprehensibility problems arise in different ways. The conclusion of the paper is that, contrary to the usual explanation that the main reason for incomprehensibility is that, in law, clarity and accuracy can be only employed at each other's expense, it is rather the systemic and interpretive character of law and the growing importance of technical rules that hinder the understanding of legal texts.

The Journey to Comprehensibility: Court Forms as the First Barrier to Accessing Justice

“…The examples analysed here (especially the noun phrases in the examples) encompass legal content and procedural information, which means that they essentially function in the context of two broad types of legal discourses: legislation and civil/family procedure rules. Both are extremely complex from the linguistic perspective and from the point of view of complexity of systemic links within law, legislation, legal doctrines, legal processes and court procedures [ 2 , 56 ]. Yet it is important to recognise that the main users of court forms are lay people and irrespective of whether they are represented, the forms need to help them present their case to the judiciary and reflect the narrative which would then be developed in court [ 50 ].…”

“…Court forms are a typical example of the problem-solving type of legal setting because they relate to a specific legal problem the lay user is facing [ 56 ]. Court users thus have to engage with the court process in the reactive manner (where the opportunity for planning is minimal as they need to submit an application after the problem occurred) and the court form creates a starting point for identifying relevant legal texts within the context of the problem.…”

“…Assy [ 2 ] argues that understanding legal discourse involves the awareness and understanding of the legal concepts, rules, doctrines and principles as well as the ability to categorise these accordingly, apply them to a given situation and create coherent legal arguments; this requires comprehensive legal training and cannot be achieved just by reading a plain version text. Ződi [ 56 : 246] highlights that it is not the language or syntactic characteristics of legal documents, but “the systemic and interpretative character of law and the growing importance of technical rules that hinder the understanding of legal texts”. The complex and interwoven character of the legal system and the fact that many pertinent links are often not explicitly expressed in legal texts make it more difficult to distinguish between legal and procedural information.…”

“…Include material facts on which you rely, identifying any rule or statutory provision.’ The absence of any form of identification of specific rules or statutory provisions to follow leaves lay court users without specific information on relevant guidance. As mentioned above, it is the technical nature of legal rules and the systematicity within law that hinders comprehensibility of legal texts or legal proceedings more generally [ 56 ]. Although the gap-fill sentence in the FP2 form looks as a simple sentence, the guidance provided creates a cognitive barrier due to the increased information density (for gap 4) and lack of information (for gap 5).…”

“…Convoluted constructions and verbose text in this instance are unnecessarily complex and make the phrase less comprehensible for court users who are not familiar with relevant procedures. Despite the widely accepted notion that it is legal terminology that makes it difficult for lay people to engage with the justice system [ 32 ], procedural understanding plays an equally important role [ 52 , 56 ]. Ensuring procedures are coherently presented, for instance, by dividing them into cognitively logical steps presented chronologically (e.g.…”