Unmasking the shroud of Legalese

(Unpublished, 2010)

For the past two summers I have taught law in Oxford to Americans of High School age. The students’ enthusiasm and dedication in allowing their summer months to be spent in academic study is impressive and also indicative of the competitiveness of the application process for prestigious American universities.

What is most interesting from a teaching perspective is the degree of prior knowledge that students display. Most seem to have taken classes in what they call ‘government’ which develops a relatively sophisticated knowledge of their Constitution and Bill of Rights. In fact, knowledge of the basics of their law is something that I have encountered among most educated Americans.

Likewise, in France law is generally seen as part of a general education; Rene David wrote of this awareness of law as being an ‘element presque normal de la culture generale’. It has been said that the original French civil code owes its clarity to the fact that its draftsman always had to ask himself whether his words would withstand the criticisms of a highly intelligent layman like Napoleon, unfamiliar with the legal jargon.

Alas, the general body of citizens do not display the same legal erudition in this republic. The law and legal judgments are invariably rendered to the public in distilled form by journalist interpreters. Most students of history will be able to say that a Constitution was promulgated in 1937 and was informed by Catholic values, but the type of government that it creates and the rights that it enshrines are shrouded in what has come to be known as ‘legalese’; the obscure language of the legal professional.

Why is this the case? Why should legal jargon be inaccessible to the general public? In part, this is down to deficiencies in our secondary education system. Recently Civil, Social and Political Education (C.S.P.E.) was introduced as a mandatory subject for Junior Certificate students, but the syllabus merely piously enjoins students to understand that ‘laws and rules serve important services in any community or society, including the peaceful resolution of conflicts, the protection of life and property etc.’ There is no serious attempt to demystify the sources of law in this country. C.S.P.E. then ceases to be available to Leaving Certificate students. Unlike knowledge of religion, which is taught weekly to most students, a cursory knowledge of law is, seemingly, not considered an important aspect of a citizen’s education.

Arguably much of the difficulty lies in the Constitution itself. Article 50.1 states ‘subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.’ In plain language, this meant that judges would continue to apply the common law that had applied since the Act of Union. Behind the veneer of legal independence there was no clean slate.

Therefore, this state continued as a common law jurisdiction. So, for example, notwithstanding Article 40.6.1 which guarantees ‘the right of the citizens to freely express their convictions and opinions’, the courts continued to apply the common law rules of defamation with its obscure distinction between libel and slander.

Max Weber, the renowned German sociologist, provided a compelling critique of the verbal gymnastics emanating from common law lawyers: ‘The extensive participation in the process of juridically experienced and trained experts, who to an ever increasing degree devoted themselves “professionally” to the task of “counsel” or judge, has placed the stamp of “lawyers’ law” upon the type of law thus created’. This creates a situation where ‘reasoning is tied to the word, the word which is turned around and around, interpreted, and stretched in order to adapt it to varying needs, and, to an extent that one has to go beyond, recourse is had to “analogies” or technical fictions’.

While statute law ameliorates this situation to an extent, the technique of lawyers honed in the professional schools of our common law system often descends into over-complication and even casuistry, and much of our law, particularly on the civil side, is still governed by judge made common law.

This “lawyers’ law” is impenetrable to ordinary citizens. A letter from a solicitor creates consternation as the ordinary citizen feels ill-equipped to understand the obscure workings of laws that might as well be written in another language. This situation serves the law firms and barristers very well. In fact, textual obscurity is for some (particularly those engaged in the law of real property) a defence mechanism against professional obsolescence. In a post Catholic society the interpretation of the divine by the priesthood has been replaced by the legal oracle.

Of course a society needs experts in law, but the present system promotes legal mumbo jumbo, and too often opinions are addressed to a narrow professional audience. The deeper the pocket, the further the lengths that can be gone to stymie the ascertainment of truth and the determination of justice. One has only to observe the legal subterfuge used to undermine the workings of tribunals.

What can be done to bring about reform of a system that leaves the general population confused? Firstly, it is necessary that law as a subject be brought into the mainstream; that it should be a part of a secondary education, and at third level that it be taught alongside other humanities subjects as an abstract discipline that includes a comparative dimensions rather than solely as part of a vocational education. Second, it is necessary that judgments and legislation be drafted in a style comprehensible to an educated lay audience. A general understanding of the law among the citizenry is necessary in this republic otherwise we remain a subject people and the lawyers will keep coining it.

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