Tyrannosaurus Lex

Law  | 29 October 2010  | print

Legalese, a tyrannical dinosaur, should be forced into extinction; we need plain language in law.

In 2006–2007, Bryan Garner, the paladin of plain language in the law, video-interviewed eight justices of the US Supreme Court on their views on legal writing and advocacy. American lawyers studied these videos closely to see what each judge liked and didn’t, and began tailoring their writing and arguments to fit.

 Garner is the Editor-in-Chief of Black’s Law Dictionary, a standard legal lexicon, and the author of several books and articles in which he pushes his cause: simplyifying legalese. In 2008, Garner and Justice Antonin Scalia co-authored “Making Your Case: The Art of Persuading Judges”, a book on advocacy. In the section on writing style, Garner and Scalia emphasize three points above all: clarity, precision, concision.

The “plain language” movement has received considerable support in England and Australia, where commonplace legal documents have been systematically simplified—powers of attorney, building society and housing cooperative documents and others have been reworked for greater clarity and accessibility. Anyone can read and understand them.

A few days ago, a friend sent me a copy of “Elegant Expressions: Reflections on the Nature of Great Legal Writing”, a marvellous paper by Mark Osbeck of the University of Michigan Law School. In his paper Obseck cites several examples of exceptionally fine writing by American judges, and argues that in legal writing—an essential skill for lawyers—the good is distinguished from the ordinary by four essential qualities: the three that Garner and Scalia mention and a fourth, elegance. The first three are widely accepted, though seldom followed. It is the fourth that is always the most challenging.

In India, we have quite cheerfully ignored all four, as also the compelling rationale for plain language in the law. Some lawyers believe that unless a document is long, repetitive and utterly opaque it is not legally effective. Others simply follow the archaic precedents, especially in property transactions, that were once used in British times. That these are no longer used aboard the mother ship seems not to matter. A conveyance in Bombay (the language in the districts is marginally simpler), for example, typically contains a single unending sentence sprawling over nine pages or more, and includes words like doth, hereditaments, messuages, stables and more. Punctuation, if it exists, is entirely arbitrary. The result has something like this:

“AND that free and clear and freely and clearly and absolutely acquitted exonerated released and forever discharged or otherwise by the Vendor well and sufficiently saved defended kept harmless and indemnified from against all former and other estates titles charges and encumbrances whatsoever …”

Whatever that means. Till fairly recently, there were even horses, with or without carriages, prancing through this. For some unfathomable reason, simplicity is inappropriate:

“XYZ (hereinafter, for the sake of brevity, referred to as “the said XYZ” which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include his heirs, executors, administrators and assigns”).

So much for “the sake of brevity”.

Then there is always that favourite of lawyers everywhere, the definition ex majore cautela, by way of abundant caution. The formal EU document imposing sanctions on Iraq has this delectable phrase:

“In these Regulations, unless otherwise indicated, a reference to a Regulation is a reference to a Regulation in these Regulations”.

Right, got that.

In litigation, this lazy-fare approach to drafting yields nuggets of pure joy. Many divorce petitions—wife suing husband, say—start like this:

“On or about 18th October 2007, the Petitioner, then a spinster, was married to the Respondent, then a bachelor, at Mumbai under the provisions of the Special Marriage Act. There are two issues born out of the said wedlock.”

On or about? Is there any doubt about the wedding date? Who, in his right mind, would use a word like “spinster” to describe a 22-year-old unmarried lady and yet live to tell the tale? And there of those children, of course, those sad and presumably illegitimate tykes born “out of” the “said” marriage.

In other types of litigation, a person who died is almost always described as “the said deceased”. Why is this necessary? That person, now dead, may have been unloved, unsung and even unmourned, but there’s no doubt about his or her identity. So why does he continue to be “said” long after he has shuffled off this mortal coil? Sometimes it’s sheer laziness: for instance, the use of that horrid phrase, “and/or”, one that particularly infuriates Garner. Is it and, or it is or? It must be one, it cannot be both, and it is utterly meaningless for “and/or” only translates to “and or or”.

Of course, being technical, some phrases in legal writing are unavoidable, just as they are in medicine, engineering, accountancy, investment banking and pornography. At any gathering of professionals, a hapless spouse is left to his “and/or” her own devices, while the others natter on about “myocardial infarcts”, “T-bills”, “G-secs”, “mark-to-market” happenings or that griffin called res judicata.

But there is another reason for legalese. Lawyers everywhere like to view themselves as the priests of the professional classes. They dress differently, in attire that is, anywhere outside a Batman movie, completely bizarre and without regard to health or climatic conditions. They are the only professionals who refer to their place of work as a “temple”, the “temple of justice” (as opposed, say, to a “cathedral of catheters”). Like their professional brethren, lawyers also speak a different, esoteric language, one that is deliberately calculated to keep the ordinary man at bay. It is like saying, “if you want to speak to the she-god of justice, you will jolly well have to come to us.” Legalese is part of a raft of self-justifying tactics designed to keep the layman out, and it is one that should be abandoned as soon as possible.

Judges are the greatest legal wordsmiths. They have to be; it’s the nature of their work. But few can inject humour into their writing. Lord Denning could, and did, and, about a wire-tapping case, apparently wrote with some glee about the “buggee” and the “bugger”.

Sensitivity is an even more rare commodity in judgements. A startling exception is Justice Bharucha’s decision in the Bandit Queen case,¹ a cri-de-coeur that is simple, direct and heartfelt:

(24). “Bandit Queen” is the story of a village child exposed from an early age to the brutality and lust of man. Married off to a man old enough to be her father she is beaten and raped. The village boys make advances which she repulses; but the village panchayat finds her guilty of the enticement of a village boy because he is of high caste and she has to leave the village. She is arrested and, in the police station, filthily abused. Those who stand bail for her do so to satisfy their lust. She is kidnapped and raped. During an act of brutality the rapist is shot dead and she finds an ally in her rescuer. With his assistance she beats up her husband, violently. Her rescuer is shot dead by one whose advances she has spurned. She is gang-raped by the rescuer’s assailant and his accomplices and they humiliate her in the sight of the village: a hundred men stand in a circle around the village well and watch the humiliation, her being stripped naked and walked around the circle and then made to draw water. And not one of the villagers helps her. She burns with anger, shame and the urge for vengeance. She gets it, and kills many Thakurs too.

(25). It is not a pretty story. There are no syrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning [a phrase from Shakespeare’s Henry VI, Part III, circa 1592]: a village-born female child becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels an accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge.

In the M.F. Hussain case,² Justice Sanjay Kishan Kaul of the Delhi High Court wrote a similarly forthright—if somewhat more florid—judgement in defense of free speech, tolerance and creativity. Justice Kaul’s judgment opens with a quote from Picasso, and the first two or three paragraphs, on the nature of art and creativity, and sexual historicity in Indian art, are worth reading: not for any great literary flourishes, but for their clarity. The judgment ends with this:

A liberal tolerance of a different point of view causes no damage. It means only a greater self restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate. A debate should never be shut out. ‘I am right’ does not necessarily imply ‘You are wrong’. Our culture breeds tolerance, both in thought and in actions. I have penned this judgment with this fervent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home painting his canvas.

But there are times when a judge’s quest for the uncommon bon mot results in linguistic mayhem. Consider the opening paragraph from Phul Singh v State of Haryana,³ by Justice Krishna Iyer, a judge whose decisions routinely had lawyers scrambling for dictionaries and who could, on any given day, out-Spivak Derrida:

A philanderer of 22, appellant Phul Singh, overpowered by sex stress in excess, hoisted himself into his cousin’s house next door, and in broad daylight, overpowered the temptingly lonely prosecutrix of twenty-four, Pushpa, raped her in hurried heat and made an urgent exit having fulfilled his erotic sortie.

What is one to make of this? “Sex stress”; “temptingly lonely”; and a “sortie” that is supposedly “erotic”? This is a rape case. There is nothing remotely “erotic” about the crime, nor is it in any sense a “sortie”—a military term involving the despatch of troops; and, to describe the unfortunate 24-year-old victim whose life was effectively over as “temptingly lonely” is simply unacceptable from any perspective, and beyond egregious. And this is from Justice Krishna Iyer, widely acknowledged for his championing of citizens’ rights.

Even in that noble cause, the Phul Singh judgment is entirely excessive:

It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life, what with libidinous ‘brahmacharis’, womanising public men, lascivious dating and mating by unwed students, sex explosion in celluloid and book stalls and corrupt morals reaching a new ‘high’ in high places. The unconvicted deviants in society are demoralisingly large and the State has, as yet, no convincing national policy on female flesh and sex sanity. We hope, at this belated hour, the Central Government will defend Indian Womanhood by stamping out voluptuous meat markets by merciless criminal action.

One can overlook the proneness to porno, all those priapic brahmacharis, the dating-and-mating nubile students and even the suggestively apostrophed ‘high’. But “meat markets” (voluptuous ones at that)? To say nothing of the recommendation for a national policy, to be framed, one supposes, by a National Commission on Female Flesh.

But the story does have a happy ending. Thanks to his ‘sex stress’ and otherwise unblemished character, Phul Singh’s sentence was reduced to two years and he lived happily ever after.

Indira Jaising, a redoubtable senior lawyer originally from the Bombay High Court, who has worked tirelessly for women’s rights and public causes, is understandably offended by the Supreme Court’s choice of words in a recent domestic violence case. It’s bad enough that that decision is based on an entry in Wikipedia, something never cited in any formal document.⁴ It’s much worse that the Supreme Court chooses to use colloquialisms like “keep” and “one-night stand” to describe the woman in a certain kind of relationship, and the relationship itself. These words are not just unfortunate (and the word “concubine”, with its historical connotations is as bad; as is any synonym, even helot or odalisque). They denigrate women everywhere and reduce them to sexual playthings and items of ownership—chattel, in legalese—and they denigrate the relationship, too, though it may be of long standing and as good, if not better, than any papered-over marriage. These are not the words of the law. They are the words of the street, and they are not sanctified for being used by a court. It is legal language that should be plain; not the thought it expresses.