Laws are intricate. English is complex. Or should I should I say complicated?
Is there any other profession that is so prone to the use of jargon words and formal language as arises in the legal profession?
In part, the laws are complex due to the use of often convoluted words and phrases as a result of the historical source of our rules of law. In Australia, our common law system has heritage link with the United Kingdom. On the colonisation of Australia, back in the late 1700s it was English law to which we turned for governance, and English law has its roots going back to the period after the Norman Conquest in 1066, so naturally some of its expressions now seem quaint and old-fashioned.
Some words too have changed their meaning over time with continuous mis-use, or have gone out of favour. Words are also prone to mis-use such as continual (happening with breaks) or continuous (happening without breaks). English can be torturous (inflicting torment) and torturous (convoluted) too. New words pop up, such as nomophobia, the Cambridge Dictionary’s word of the year for 2018, and it describes a condition many of us are familiar with – even if we never knew there was a term for it – it is “a fear of being without your mobile phone or unable to use it.”
Another source of the convoluted nature of law – which has formed the punchline of many jokes – is the result of legal documents requiring coverage of wide range of topics. Contracts, for example, can be drafted around a small number of core points, yet then surrounded by multiple sub-points.
It’s times like those where the very purpose of the written document (to be a record in writing of what was agreed between 2 people) can be lost or ironically leads not to clarify but to even greater ambiguity, depending on the craftsmanship of the author of the document.
From about 15 years ago this potentially tongue-tying nature of language in legal documents was combatted through the adoption of an intentional strategy called the use of Plain English. This may seem like common sense, yet it took several years for the concept to be widely-recognised to the extent that it is now a feature of formal study in law at our Universities.
Challenges still arise, even with the best intentions. How much more challenging then is the communication in a legal case involving someone who does not understand English or where English is a second language?
Place yourself, for a moment, in the situation where you needed legal advice from lawyer in a non-English speaking country. For example, if you needed legal support when you were visiting Brazil, China or Japan.