Legal Writing in Plain Language (with the Help of Plato and Orwell)

5. rishabh-varshney-138805.jpg

Photo by Rishabh Varshney via Unsplash

In “Politics and the English Language,” George Orwell laid the groundwork for the philosophical theory he would brilliantly put forward two years later in his great dystopian masterpiece 1984. I doubt any of my readers are unfamiliar with the novel, so I won’t go into details. However, I will remind readers what Winston (the main character in 1984) did for a living. If you will recall, Winston worked in the Records Department of the Ministry of Truth, where he was responsible for fabricating the past by altering old articles of ‘The Times’. In Orwell’s words:

For example, it appeared from ‘The Times’ of the seventeenth of March that Big Brother, in his speech of the previous day, had predicted that the South Indian front would remain quiet but that a Eurasian offensive would shortly be launched in North Africa. As it happened, the Eurasian Higher Command had launched its offensive in South India and left North Africa alone. It was therefore necessary to rewrite a paragraph of Big Brother’s speech, in such a way as to make him predict the thing that had actually happened.
[…]
As soon as Winston had dealt with each of the messages, he clipped his speakwritten corrections to the appropriate copy of ‘The Times’ and pushed them into the pneumatic tube. Then, with a movement which was as nearly as possible unconscious, he crumpled up the original message and any notes that he himself had made, and dropped them into the memory hole to be devoured by the flames.

Winston’s role at the Ministry of Truth poses the first philosophical question in 1984: If a fact only exists in your memory, what proof is there that it really happened at all? This question evolves throughout the novel and ultimately ends in a terrifying reflection about totalitarianism and the manipulation of truth as effectuated by Big Brother. Orwell ultimately seems to argue that there where truth is crushed, totalitarianism conquers.

Against Orwell’s thesis, one could counter-argue that, regardless of whether or not you can prove facts or truth, you can always push totalitarianism back by resorting to logic or abstract thinking for gaining the necessary general support for freedom to prevail. But what if Big Brother also restricted your capacity for logical and rational thought by simplifying your language to the point to which you could no longer articulate complex logical arguments or thoughts at all? In other words, what if Big Brother restricted your ability to think and question him by controlling your capacity to use the words with which you think and question in the first place?

Enter Newspeak.

Imagine an abstract concept such as that of fairness. If your language were restricted to the point of neither having a word for fairness nor having a sufficiently broad set of convergent words with which to explain the notion of fairness (for example, in contrast to its antonyms or similarity with synonyms), how could you possibly know if someone were being unfair to you or if you were being unfair to someone else?

This of course builds on Plato’s theory of Ideas put forward in The Sophist dialogue (Plato n.d.). While we have no reason to think Orwell specifically had Plato in mind when writing 1984, it’s not unreasonable to think he might have been influenced by the thinkers of his time. As many of my readers may know, a solid answer to Plato’s meta-linguistic question about the meaning of words had been put forward in Orwell’s time by Ogden & Richards (Richards 1938). Ogden & Richards used a triangle to explain that every word used to refer to a thought or reference (in their terminology), contains a symbol and a referent. The symbol, be it verbal or written, is conventional. Thus, when attempting to express a thought or reference, we will have as many words for it as we do languages. But the meaning or concept (that which according to Aristotle pierces the soul) remains the same, regardless of the language. This is so because the referent is also the same.

Imagine for example the concept of house. If, like me, you speak Spanish, both the English word house and the Spanish word casa will evoke the same or a sufficiently similar picture in your mind. Of course, you and I may not imagine the same kind of house. Yours might be made of wood and mine of bricks. Yours might have two stories and mine only one. Yet, because the concept expressed by the symbol house (or casa or whatever you call a house in any other language) is the same in our minds, we can understand each other when we say house or casa. But what if we lived in a parallel universe where all else were the same except that humans didn’t live in houses or casas and instead dwelled in trees? If the reality upon which we based the concept in our minds were significantly altered or altogether ceased to exist, could we still conceive of the notion of house?

One could argue that we could. Humans can imagine things and build them. But what about abstract things we can’t build? Like the Ideas Plato had in mind: justice, peace, love, friendship. If you not only lacked the concept itself but also lacked sufficiently related concepts with which to begin to verbalize it in your mind, could you still eventually conceive of the idea? Or, more importantly, could you still bring the idea down to the real world and actually do something with it? That is, after all, why Plato was so concerned with ideas in the first place. What good is having a notion of fairness or justice if you live in a society incapable of imparting either?

That also seems to be what Orwell had in mind in 1984. Newspeak was designed by Big Brother not only to kill the platonic concept or Idea, but to also hinder our ability to work around the lack of a single precise word by making it impossible to combine other words in a way that could give rise to the concept in the first place. You can’t imagine justice if you don’t have a word for fairness or equity, or anything else upon which to begin to build the idea of justice in your mind. In other words, without that Idea that pierces our soul and inspires us to create the physical and philosophical world around us ̶ and with it, to shape our reality in the most Rortyan sense (Rorty 1998) ̶ , we end up living in an unjust society.

In “Politics and the English Language,” Orwell explained his theory succinctly yet much more explicitly by taking five “faulty” and “ugly” passages and arguing that what makes them so is their “staleness in imagery” and “lack of precision.” According to Orwell, these passages suffer from common and spreading linguistic illnesses: dying metaphors, operators or verbal soft limbs, pretentious diction, and meaningless words.

But why does this matter? Is “faultiness” and “ugliness” enough to condemn certain uses of language? Orwell argues that it is. According to Orwell, there is a “special connection between politics and the debasement of language.” The more inflated the language, i.e. the more mindless ready-made phrases, tired euphemisms, and jargon, the more insincere our message. And, as he puts it, “[t]he great enemy of clear language is insincerity.”

Needless to say, Orwell was thinking of the political realm when he ultimately concluded in his essay that: “if thought corrupts language, language can also corrupt thought.” However, as a lawyer-linguist and practicing attorney, I can’t help but see a special Orwellian connection between legal writing and the debasement of language. What purpose does all our legal jargon and unjustifiably complex (and often imprecise) language serve if not to render the law even more confusing and unintelligible to laymen?

Of course, I am not advocating for the absolute abandonment of terms of art that endow our legal writing with the necessary precision and clarity that prevents the courts from somewhat arbitrarily breathing meaning into our texts. What I do have in mind, however, are laymen-facing documents (such as consumer contracts, for example) that are so riddled with unnecessarily legal jargon that consumers have no idea what they are getting themselves into.

Orwell proposed a simple solution for writers in general. When writing, he argued, we should always ask ourselves the following four questions:

  1. What am I trying to say?
  2. What words will express it?
  3. What image or idiom will make it clearer?
  4. Is this image fresh enough to have an effect?

As legal practitioners and translators, we could all benefit from Orwell’s advice. Yet I would add one more question to the list:

  1. Who is going to read this?

If the answer is a layman, then we can’t write the same way we would if our reader were another lawyer or trained legal practitioner of any kind. Our layman reader should be able to easily understand our writing, and that means legalese and terms of art should be cut down to a bare minimum. Our writing should be as plain, clear, and to the point as possible. As lawyers, we need to stop writing as if everything we drafted were going to be read by other lawyers who are just as familiar and comfortable around legal jargon and ready-made legal phrases as we are. Otherwise, our “faulty” and “ugly” drafting in Orwellian terms may end up doing society in general, and our clients in particular, a tremendous disservice.

Works Cited

Plato. n.d. Platón I. Madrid: Eidtorial Gredos.
Richards, C.K. Ogden & I.A. 1938. The Meaning of Meaning. London: P. Trench, Tubner and Co.
Rorty, Richard. 1998. Truth and Progress, Volume 3. Cambridge University Press.

  2 comments for “Legal Writing in Plain Language (with the Help of Plato and Orwell)

  1. October 16, 2017 at 9:56 am

    I believe that it is the very notion of Plato’s Ideas that would save the people from Orwell’s totalitarianism. I believe that the Ideas are somewhere buried in our collective conscience. No matter if we are fully aware of the concept like justice, through education and real life experiences, or if we are completely ignorant, led by the ugliest of dictatorships, it is still emblazoned in our minds.

    What the Newspeak introduced in 1984, as well as muddled and addled writing can do, is muddle and addle the minds of the populace — who were sheep in the first place. What would really have to happen is some sort of chemical or surgical intervention to quash any dissenters. They would all have to be given lobotomies or forced to take some kind of powerful drug. That, combined with a radical change in language — a veritable lexical lobotomy — would have to be effected to attain such a goal.

    Another thing I wanted to throw out there was something that struck me as improbable that happened in Gabriel Garcia Marquez’s One Hundred Years of Solitude: for some reason, all objects didn’t have a name, and people went around naming them anyway.

    As to the issue of a memory in a single person’s mind being real or erasable, I think that Winston, and also O’Brien, proved it so. The very fact that Winston was doubtful of the 1984 regime and the memory hole meant that his memory really did exist as it was contrasted against this mass erasure of the past to reflect a triumphant and all-encompassing government. In turn, the fact that O’Brien was following Winston and luring him into the trap awaiting him in the antique shop, meant that Winston’s memory was irrefutably real, true, and perilously cogent. Otherwise, why would someone like O’Brien bother pursuing Winston, seeking to exterminate him?

    If we look at real life scenarios, dictatorships around the world, what we see are hordes of Winstons, questioning, lurking, fighting. And when they are persecuted beyond resistance, they flee the country and set up camp in sympathetic countries, biding their time, pining for their own ideal republic. They never forget what their ideals and ideas are, no matter what their persecutors have done with the language, have done with the culture, have done with the concept of freedom.

    Then, as all good/bad things come to an end (well I guess that it is subjective whether bad things come to an end), the boldest opposers return to their native land and set up shop in the house of government. They restore the nation to democracy, or at least a different brand of government than their oppressors’, and they change the language back to reflect their ideals.

    Like

    • October 16, 2017 at 10:27 am

      Thank you for your beautifully articulated comment, Reed! I really enjoyed reading it and I think you made several excellent points.

      I really wish I shared your positive outlook, mainly on two points: 1) that radical change in language would need extreme measures like chemical or surgical interventions before it could severely hinder our capacity to push back totalitarianism, living in South America, I’ve found that structural poverty and hunger (sadly) suffice; 2) that “the boldest opposers return to their native land and set up shop in the house of government.” At least in South America, the reinstatement of democracy in the 1980s was followed by corruption, populism, and poverty that is just a different form of totalitarianism. “El mismo cura con distinta sotana.” I think language plays an important role in these trends, as does insufficient access to education, healthcare, housing, jobs, etc. Of course, these issues are very complex and merit further consideration. All I can do with my blog is raise questions and hope for excellent comments such as yours. 🙂

      On the question of plain language in legal writing, I do think we have an ethical duty to make sure that layman-facing documents (like consumer contracts) are understandable so that people can make informed decisions before binding themselves legally to anything.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s