Why is Legal Language Impenetrable?

One of the reasons that people view the legal profession negatively, I believe, is that many if not most believe that many if not most members of the legal profession deliberately engage in the obfuscation of facts and meanings. So, many of us believe that lawyers get guilty people off by spinning a web of deceptions that obscure the facts and that lawyers routinely obfuscate meaning in their use of language.

Ordinary folks normally encounter language written by lawyers in contracts, guarantees, ballot initiatives, jury instructions, and, should they ever be bold enough to read them, our laws, among other things. Everyone, I think, must disdain "the fine print" that often seems to renege on whatever is promised in the large print (and sometimes does). Lawyers are usually guilty of writing this "fine" print.

Many students, I think, believe that we academics engage in the deliberate obfuscation of meaning. I have had students come to me and say "Why don't you use language we can understand?" meaning by that that I should not use technical terms (or use familiar words in unfamiliar ways -- think of Newton's use of "mass" as a example) or use complex locutions in explanations. The fact is that conveying new knowledge whether to students or in journal articles routinely entails creation of technical language and the use of complex locutions. This isn't to say though that none of the complexity we find in scientific writing is avoidable. However, since scientists do not expect ordinary people to read what they write, they feel little obligation to avoid avoidable complexity of expression.

The legal profession, on the other hand, is in the unusual position that ordinary people are often obliged to read legal writings. We are expected, for instance, to obey the law but the fact is that we Ohioans are not handed personal copies of the Ohio Revised Code and most of us would struggle to understand it if we tracked down copies. Could the defense of obtuse legal be that the legal profession is in the difficult if not impossible position of having to write precisely worded documents that do not allow for multiple interpretations while using English rather than some formal mathematical language such as scientists do?

There may be something to this. Writing a contract with no loopholes must be difficult. However, I seriously doubt that obtuse language must be the result (lawyers are invited to accept this challenge.)

Just for fun and to test a quasi-randomly selected bit of law, I decided to consult the Ohio Revised Code to find out if on line poker playing is legal. I found nothing specific on that topic and so turned to gambling laws in general. I decided first to look at the definitions section, wherein I found

"Bet" means the hazarding of anything of value upon the result of an event, undertaking, or contingency, but does not include a bona fide business risk.

The first thing that occurred to me after reading this was: why are they defining the word "bet?" Everyone knows what the word "bet" means. But, having decided to define it, I think they could have come up with something stylistically less barabaric. I believe that if you asked an ordinary person what "to bet" means, one of the last words to come out of his or her mouth would be "hazard.' I find it difficult to believe, for instance, that anyone -- even a lawyer -- would seriously say, "I hazarded fifty dollars on the Ohio State, Michigan football game."

At Dictionary.com, I looked up "bet" and found further evidence dictionaries basically define words in terms of themselves by using synonyms which, if tracked down, circuitously return to the word originally being defined. (See my blog, Language in the Law.) However, I also found this interesting statement in regard to synonyms for "bet": "bet, ante, pot, stake, wager ... denote something valuable risked on an uncertain outcome." We could, I think, improve the legal definition of "bet" (assuming we felt the need to define this word inb the law) using the guidance of Dictionary.com as follows:

To "bet" is to 'risk something of commercial value on the outcome of some event the outcome of which is not yet known, not including legitimate business endeavors.'

Somewhat by accident, I happened upon this:

Any municipal corporation may:
(A) Suppress and restrain disorderly houses and houses of ill fame;

Now, "house of ill fame" is a phrase that wants a definition. Unfortunately, the Ohio Revised Code neither defines it nor gives examples. Yet our legislature felt the need to define "bet."

Yes, but...

(This is a reposting. The original was massively spammed. Deleting the original seems to be the only way to deal with the problem. I have added nonspam comments at the end.)

In the blog, "I don't mean to be rude, but," we dealt with one instance in which one can mitigate the force of an insult simply by saying -- quite falsely in many cases -- that one does not intend to be doing what one is doing. This is just one of the very many ways in which we try to mitigate "face threats." Brown and Levinson argue that politeness turns on mitigating threats to our "negative face" desire not to have our freedom of action limited by others and paying respect to our "positive face" desire to be valued and to have what we value be valued. In the "I don't mean to be rude, but" case we have an instance in which one mitigates or attempts to mitigate the threat to the addressee's positive face by saying that there is no desire to give offense. It's as if we are saying, "Don't take this as an insult" even though what is said is, on its face, an insult.

One of my favorite instances of our use of verbal formulas to mitigate threats against positive face, is the use of the "Yes, but" construction, as when one person makes some assertion and another follows that with "Yes, but ...". In a conversation between Stephen LaBerge and Paul Tholey, on research on dreams, we find it being used by each of the main two participants, including in successive utterances.

LaBerge: That’s exactly my point. These examples do not prove consciousness! The fact that the mental arithmetic abilities of dream figures are limited suggests to me that other characters don’t have that global space in which we can hold a result while we continue the automatic processes of the computation.

Tholey: Yes, but the figures did complicated rhymes!6

LaBerge: Yes, but this also could be automatic. Rhymes spring to mind; we don’t know how to do it. It just happens!

It's pretty obvious what's going on with the use of "yes, but" in cases like this. Saying "yes" is important to maintaining civility. The principle at work seems to be that if one employs conventionalized politeness measures in regard to another, the latter is obliged to accept them. However, use of "Yes, but" surely doesn't fool anyone. The disagreement is there.

The importance of the notion of paying respect to another's positive face is demonstrated by the rapid rise to popularity of the verb "diss" as in "He disrespected/dissrespected me." I don't think this verb would have gotten off the ground if it didn't have considerable value, especially given that to the ears of those raised on Standard English, the form grates the nerves, at least initially (if I am any example). The fact is that it is a very valuable form.

"Yes, but" has gone big time. I found a European web site espousing a "Yes, but" Campaign in regard to the proposed EU Constitution -- "Yes (to the Constitution), But(with Democracy on top.) In an entertaining blog, PooterGeek has some fun with this construction while poking a stick in Bush's eye. In The Marketing Playbook blog you can read of the "Yes, but" construction being used as a marketing ploy (though not in a simple way). And, there is a book titled, "Yes, but." In my favorite internet use of "Yes, but" was one woman's writing to the SFGate.

Dog crap is biodegradable, yes, but pick it up and throw it in the garbage anyway.

Phil said...

I'd be interested in your analysis of the "disrespect" phenomenon. I am struck by its juxtaposition of formality (the sorta retro desire for "respect" in what seems to be a pre-Aretha sense) with the mercurial street-slang "dis" locution.

Discuss!
9:51 PM
Language Guy said...

I have no knowledge of the history of either the full or short forms of this verb. My memory tells me I heard "dis" first. Given the contexts in which I heard it, I presumed that it had to be a clipping off of some action verb "disrespect," which I had also not heard by then.

The puzzling thing is that there doesn't seem to be a postive action verb "to respect," meaning, "to pay respect to" for "disrespect" to have been formed off of. That is, I don't say, and don't think I have ever heard anyone else say anything like, "He respected her yesterday," meaning "He payed respect to her yesterday." We can use it as a verb, as when we say things like "He respected her then," meaning "he had respect for her then," but in a sentence like this one, "respect" is not being used as an action verb.

It is not unprecedented to have a negative form without having the corresponding postive form. "Uncouth" is a perfect example.

I bet that "disrespect" was created first as a speech error that the speaker and hearer liked and they started using it deliberately. Certainly, "He dissed me" is shorter and pithier than "He showed a lack of respect for me" and that is not nothing.

Unnamed Sources

Newsweek is taking a beating over its now retracted story on abuses of the Quran in the presence of Muslim prisoners being held in Guantanamo Bay. Such actions as flushing a copy down a toilet were said to have been done in an effort to get prisoners to talk. The story was based on an "unnamed source" and by way of doing penance for its monumental blunder, one that led indirectly to the death of some unhappy Afghans, Newsweek has assigned two editors to check out refereces to sources who are not named and will stop using the phrase, "unnamed source"

In my book, The Langauge of Politics, I remarked on another story by Newsweek (11/09/81, p. 32f) that used an astonishing number of references to unnamed sources in a story titled, "Who Makes U. S. Foreign Policy?" which was highly critical of the decision-making process in the Reagan administration. This was before President Reagan developed his coat of Teflon.

In this case, the story claimed that "the major players," Secretary of State, Alexander Haig, Defense Secretary, Casper Weinberger, and National Security Council head, Richard Allen, were at odds with each other in "public disagreement" and "private infighting." It went on to say that "few insiders would be surprised to see a shift in responsibilities -- and the departure of Allen within six months." In fact, Allen was gone in a month and Haig was gone within seven months.

In this article, Newsweek employed 17 different uses of indefinite descriptions of sources in a mere 50 word story, which included "officials throughout the administration," "several of Reagon's closest advisors," "one top-ranking U.S. official," "one senior aide,""another [senior aide]," and "another confidant." It is impossible to tell how many different sources were being cited in these references. It might have been 17. It could have been 5 or 6. That is not a good thing. Moreover, the question arises as to how it is that such pseudo-descriptors as these and others are actually better than use of "unnamed source." An unnamed source by any other name smells as bad.

One of the more notorious recent uses of unnamed sources involved the outing CIA agent Valerie Plame by Robert Novak and other journalists in a story concerning the Bush Administration's false claim that Iraq purchased uranium from Niger. Novak claimed that

[retired diplomat Joseph C.] Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report.

Outing of an undercover CIA agent is illegal.

Maybe use of unnamed sources should be too. I say this in jest, well, partly in jest, since many of the true things we come to know are told to reporters by sources that would not have talked without assurances that they won't be named. The Watergate story comes immediately to mind -- we still don't know who Deep Throat is.

There are also problems when reporters actually name their sources but that is best reserved for another day.

Language in the Law

After studying the philosophy of language at Rice in the late '50's and early 60's, my advisor suggested that I try to persuade an English professor whose name I am embarrassed not to remember (Jack C..., I believe) about doing a year long private reading course in linguistics. The first thing he had me read was the classic George Bernard Shaw play "Pygmalion," which was later turned into the musical, "My Fair Lady." The latter has surely caused every linguist to be asked if he/she can tell where someone comes from from listening to them talk. I was able to do that just once. On meeting a very pretty young woman at a reception held during the Linguistic Institute, a summer school of the Linguistic Society of America, I ventured to say "You're from Houston," to her. To my surprise, I was right. We had a summer romance that not long after turned into a marriage. This did not follow the plot of "My Fair Lady" exactly but it was close enough.The second thing Jack C had me read was a section of "The Diversions of Purley" by John Horne Tooke. This misleadingly titled book was the first ever philosophical grammar of English (possibly the first such grammar of any language) and it makes for some fascinating skimming (actually reading it would wear one out).

Tooke was something of a revolutionary supporting among other causes, various freedoms for the people of the American Colony. Of him it has been written in Explore's Dictionary for Philosophers

For his conduct in signing the advertisement soliciting subscriptions for the relief of the relatives of the Americans "murdered by the king's troops at Lexington and Concord," he was tried at the Guildhall on July 4, 1777, before Lord Mansfield, found guilty, and committed to the King's Bench prison in St George's Fields, from which he only emerged after a year's durance, and after a loss in fines and costs amounting to £1200.

In the chapter titled "An Advertisement" from Volume I, Tooke noted that much of his writings on language had been gathering dust over the years and might never have been published if he "had not been made the miserable victim of -- Two Prepositions and a Conjunction." I found this fact to be quite remarkable -- a two volume book on the English language gets published because someone got done in by bad linguistic analyses by jurists. The fact that the analysis of language can matter so much was one of the influences that later led me to become a linguist.

The prepositions Tooke speaks of were "concerning" and "of," which he mysteriously claims had hitherto been held "to have NO meaning," and the conjunction was "that." Imagine being unjustly skewered legally due to duplicitous and incompetent linguistic analysis by the "Priests" (Tooke's word) of our courts.

The unfortunate fact is that Tooke was not the last, and probably was not the first, to be done in by linguistic incompetence by jurists. I give you the case of Sandra Day O'Connor.

In Smith v. United States (113 S. Ct. 2050 (1993) Justices O'Connor and Scalia engaged in substantial linguistic argumentation concerning the appeal by Mr. John Angus Smith over a provision of our drug laws according to which

Whoever, during and in relation to any crime of violence or drug trafficking crime...uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...."

The relevant fact that got Mr. Smith five extra years incarceration was that he bartered his automatic MAC-10 and silencer for two ounces of cocaine. According to O'Connor, who wrote for the majority that upheld the conviction, this constituted "using a firearm." O'Connor says that according to the "natural" or "ordinary" meaning of "use" Mr. Smith's action constituted using a firearm. This is true in a mindlessly literal way. But it is not how we normally interpret "use" in a sentence like "He used a firearm to scare off the burglars." She appeals to several dictionaries to support her position, noting that "Webster's defines 'to use' as '[t]o convert to one's service' or 'to employ'." She goes on to say that Black's Law Dictionary defines it as "[t]o make use of; to convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of." This use of dictionaries belies a profound misunderstanding of what a dictionary does. Dictionaries to not define words -- they give synonyms for words as well as guides to usage. We might ask Justice O'Connor how it advances our understanding to say that "to use" means "to make use of"? That is to define a word (verb) in terms of itself (the noun form of the verb), which is question begging of the worst sort. Apparently O'Connor never played the parlor game of seeing how many steps are required to go from the "definition" of a word back to that word by looking up the "definitions" of the words used to define that word. Using Dictionary.com, I looked up "utilize" and found "to put to use" as the first entry. In short, in one step, I got from "use" (the verb form) to back to "use" (the noun form) via "utilize," one of the "definitions" in Black's law dictionary. It takes only one step in the case of "to employ," as well. On the other hand, it takes no steps to go from "use" to "use" in the case of the citation "to make use of" in Black's law dictionary.

As Scalia notes,

To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, "Do you use a cane?" he is not inquiring whether you have your grandfather's silver-handled walking-stick on display in the hall, he wants to know whether you walk with a cane."

If I were Scalia, I would have argued that in the context of violent crimes and drug selling crimes, using a gun would have to involve brandishing it at a bare minimum, that is, using it in a potentially threatening manner.

I wrote a paper, "The Meaning of Meaning in the Law" on the Smith case which was published in the "Washington University Law Quarterly" (V. 73, N. 3, 1995). In the same issue a linguist (Charles Fillmore) and lawyer (Clark Cunningham) wrote a joint paper on two similar cases that had been joined in a single appeal. In one case, a gun was found locked in a trunk in the defendant's bedroom closet, with no bullets for the gun being found anywhere in the woman's domicile. In the other, a man driving a car was stopped because he had no front license plate. He was observed hiding something and police found drugs and a round of ammunition in the passenger compartment. In the trunk of the car, they found a loaded weapon and several thousand dollars. Both were convicted of "using a firearm" in the commission of a drug crime. Both my paper and that by Cunningham and Fillmore were submitted to the Supreme Court in the appeal of the joined cases. Justice O'Connor got it right this time, voiding the convictions for "using a firearm" but reaffirmed the correctness of the earlier decision in Smith v. United States. In short, rather than admitting her prior mistake, O'Connor preferred to let Mr. Smith stay an extra five extra years in prison. I wonder if Mr. Smith will make common cause with Mr. Tooke and go into the study of grammar too.

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