Tuesday, May 31, 2005

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."

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Blogger W said...

Perhaps the Ohian legislature like the wide scope that 'of ill fame' gives them.

2:07 AM

Blogger W said...

How about

To "bet" is to 'risk something of commercial value on the outcome of some event the outcome of which is not yet known. Legitimate business endeavors are not bets.'

I think that the original could be read to allow betting on the outcome of legitimate business endeavors. E.g. 'I bet you $100 that that new shop [a legitimate business endeavor] closes in less than 3 months'.

2:13 AM

Blogger Thr Language Guy said...

You seem,w, to be reading the law as it is meant to be interpreted not on what the language says. Legitimate business involve the risking of money (start up funds, continuing expenses until profitability, etc.) on an outcome (making an acceptable profit). In fact, we say, "That's a risky kind of business to get into" when we think that the outcome will not be what is wanted. A politician that risks his own money to get nominated and then win an election is making a bet as well, given the language of the law. But not for how it is to be interpreted. However, using the "framer's intent," in interpreting the law is itself a risky business. This latter use of "risky business" does not involve a bet because it would not be clear what outcome is wanted.

8:41 AM


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