Can the Law Speak Directly to its Subjects?

Even the first part of the title of this new article caught my eye:

Rebeea Assy, Can the Law Speak Directly to its Subjects? The Limitati0n of Plain Language, 38 J. L. & Soc'y 376 (2011)

I haven't read it yet, but the abstract looks promising:

Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.

Note that non-subscribers (me, for example) can only access the article on-line by paying for it.

As a transactional lawyer, I emphasize the importance of planning, and contracting, in reducing potential disputes.  The problems with contracts are the problems with all language:  completeness and interpretation. Like mathematical systems, no non-trivial contract can be complete.

The problem of interpretation--what did you say when you said what you meant?--is doubled, if not squared, when you are talking about communication between two persons:  how did the other person understand what you said? Is that black-and-white spotted dog mainly black, with white spots, mainly white, with black spots, or somewhere in between.  There is a particular color that I always see/describe as clearly gray, though a blue-ish gray, and my wife always sees/describes as clearly blue, with a touch of gray.  I now think of it as "that color," and try to remember that my wife sees/describes it differently--course of dealing, I suppose you'd call that.

Comments

[Unworthy Conversant]

I think the PEM glances upon a fundamental, discomforting truth: That the necessity of a legal profession is inversely related to the literacy, sophistication, and education of a citizenry. By and large, nothing we do can't be learned on one's own through the careful study of publicly-accessible legal libraries. Unlike medicine, law is not replete with procedures requiring many hours of specialized practice in order to perform safely; and unlike mathematics, law does not require a particular type of mental ability in order to obtain competence. Like so many jobs, we are able to do what we can merely because we've read the right things, and paid attention in the reading of them.

Of course, this uncomfortable truth leads to a yet more disturbing question, one quite off-topic from Professor Rosin's original post: In filling the void created by the laziness and disinterest of our citizenry in the laws that govern them, do we in fact exacerbate conflicts rather than ameliorate them?

[andy]

This article would be much better if it were written in plain, clear English and if it avoided acronyms like "PEM."