4 ms·

Spelling out the implied, creating long lists, and adding wordiness are common features of legalese. I'm fairly sure it has something to do with making the tex

by YokoZar 14y ago

Spelling out the implied, creating long lists, and adding wordiness are common features of legalese. I'm fairly sure it has something to do with making the text more appealing to clients -- if they hire you to write a contract and then give them a "normal" document they feel they could have written themselves (whether or not that's true), they'll be upset.

rayiner 14y ago
You spell out the implied to reduce surprises about what parties think are implied. You create lists to create concrete boundaries for sets of things, and to leverage accepted rules for how to interpret lists in legal documents. E.g. say you are covering an insurance client against "disasters." What does that mean? The English word "disaster" can encompass everything from Fukushima to cancer to your kid failing out of school. Instead, you might write: "we will cover floods, hurricanes, forest fires, and other disasters." This is technically redundant, because the enumerated items are subset of "disasters." However, under the accepted rules of legal interpretation, the enumerated items will cabin the more general concept of "disaster." You have a fighting chance in court of defending not covering someone's getting cancer by relying on the argument: "is cancer like a flood, hurricane, or forest fire?" Additional wordiness is often the result of the need to be precise (or copy & pasting from precedent, or being in a hurry). Try describing the operation of some C code in English in very precise terms. You'll find that ordinary English leaves implicit a lot of "who, what, where, when" type details, and that making them explicit creates a lot of wordiness.
- YokoZar 14y ago
  Law is only meaningful in so much as it can be understood by those obeying, enforcing, and judging it -- otherwise you may as well have simple arbitrariness. Source code is a rather off analogy to use here for that reason: judges can read and understand plain english but compilers can't understand comments. There's probably a lot to be gained by having the dual model approach that (eg) Creative Commons uses, where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. There's no reason OSHA, banks, and Congress couldn't do that too.
  - derleth 14y ago
    > where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. OK, let's say someone relies on the human-understandable summary and does something the legal writing forbids. Their understanding of the human-readable part is defensible, at least, but it obviously is not what the person who wrote it intended that part to mean; the legal writing, on the other hand, is constructed in a way that the courts have had a lot of experience interpreting, so it is, at least to a lawyer or a judge, perfectly clear and well-written. Obviously, if the plain language part and the legal language part are deliberately at odds, that's likely fraudulent and the court should construe the contract to the detriment of whoever wrote it. (This actually happens in real life to some extent.) But in this case, the difference in meaning is arguable at best and certainly not intentional. Which part did the person agree to? Which part should be enforced? Can't you just feel the judge's blood pressure rising? So, yes, there is a reason OSHA, banks, and Congress can't do that.
    - YokoZar 14y ago
      But if something isn't expressible in plain language, how could anyone claim to have a valid contract about it? that sounds like the very definition of "unconscionable".
      - derleth 14y ago
        > But if something isn't expressible in plain language It is expressible in plain language. The scenario I brought up states that the person responsible for expressing it in plain language did so in a way that might have left a loophole or otherwise failed to capture all of the subtleties the legal language version expresses.

by YokoZar 14y ago

rayiner 14y ago

You spell out the implied to reduce surprises about what parties think are implied. You create lists to create concrete boundaries for sets of things, and to leverage accepted rules for how to interpret lists in legal documents. E.g. say you are covering an insurance client against "disasters." What does that mean? The English word "disaster" can encompass everything from Fukushima to cancer to your kid failing out of school. Instead, you might write: "we will cover floods, hurricanes, forest fires, and other disasters." This is technically redundant, because the enumerated items are subset of "disasters." However, under the accepted rules of legal interpretation, the enumerated items will cabin the more general concept of "disaster." You have a fighting chance in court of defending not covering someone's getting cancer by relying on the argument: "is cancer like a flood, hurricane, or forest fire?" Additional wordiness is often the result of the need to be precise (or copy & pasting from precedent, or being in a hurry). Try describing the operation of some C code in English in very precise terms. You'll find that ordinary English leaves implicit a lot of "who, what, where, when" type details, and that making them explicit creates a lot of wordiness.

YokoZar 14y ago
Law is only meaningful in so much as it can be understood by those obeying, enforcing, and judging it -- otherwise you may as well have simple arbitrariness. Source code is a rather off analogy to use here for that reason: judges can read and understand plain english but compilers can't understand comments. There's probably a lot to be gained by having the dual model approach that (eg) Creative Commons uses, where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. There's no reason OSHA, banks, and Congress couldn't do that too.
- derleth 14y ago
  > where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. OK, let's say someone relies on the human-understandable summary and does something the legal writing forbids. Their understanding of the human-readable part is defensible, at least, but it obviously is not what the person who wrote it intended that part to mean; the legal writing, on the other hand, is constructed in a way that the courts have had a lot of experience interpreting, so it is, at least to a lawyer or a judge, perfectly clear and well-written. Obviously, if the plain language part and the legal language part are deliberately at odds, that's likely fraudulent and the court should construe the contract to the detriment of whoever wrote it. (This actually happens in real life to some extent.) But in this case, the difference in meaning is arguable at best and certainly not intentional. Which part did the person agree to? Which part should be enforced? Can't you just feel the judge's blood pressure rising? So, yes, there is a reason OSHA, banks, and Congress can't do that.
  - YokoZar 14y ago
    But if something isn't expressible in plain language, how could anyone claim to have a valid contract about it? that sounds like the very definition of "unconscionable".
    - derleth 14y ago
      > But if something isn't expressible in plain language It is expressible in plain language. The scenario I brought up states that the person responsible for expressing it in plain language did so in a way that might have left a loophole or otherwise failed to capture all of the subtleties the legal language version expresses.