What is Plain Legal Language?

Some Definitions

Professor David Kelly, Chair of the Victorian Law Reform Commission:

We attempted to demonstrate the difference between plain English... and the drafting style which prevails in Australia by rewriting the Takeovers Code, one of our most complex pieces of legislation, in plain English. Our aim was not to make it intelligible to the average citizen. That would be impossible. The average citizen has insufficient grasp of the commercial context. Our aim was simply to make it as intelligible as possible to those who were familiar with the relevant context. Lawyers, regulators and others in the takeovers industry have responded enthusiastically to our redraft. It is less than 60% the length of the original and vastly more clear. In the course of our work, we indentified a number of recurrent defects which contribute to the confusion of the original.

The CLIC Plain Language Centre diffferentiated between plain language and clarified legal language. Gail Dykstra wrote:

"Plain language" is "language simplified to make it readily understandable by the average person. It is language stripped of unnecessary complexity, but not stripped of style. It is perhaps language at the lowest common denominator. It is reader-focused language. "Clarified or simplified language" on the other hand is "language that has been worked on to improve its understandability, but retains technical terms (terms of art), if necessary. It can rely on the assumption of commonly held knowledge of how the legal system or government operates in order to understand the language.

Garth Thornton, Legislative Counsel of New Zealand, at the 9th Commonwealth Law Conference, 1990:

Does plain language solve communication problems? The prophets of plain English aim high. For example - "Plain language marries content and format to create documents that can be understood by anybody." (Gayle Dykstra) How realistice are statements of that kind, particularly as they apply to statute law? The successful communication of the content of a statute depends on two variable factors in every case. The first is the comprehensions skills of the individual receiver fo the message...The second variable factor is the intrinsic complexity and other characteristics of the subject matter of the message. Communication depends on an overlap of the linguisitic experience of the sender and receiver of the message. There must be a shared context of both linguistic expereience and social experience if ambiguities and other comprehension problems are to be avoided or resolved. A major factor inhibiting easy understanding of the effect of a statute is that no law stands alone. A statute is a strand in a complex web. Every statute reaches out and interacts with other statutes and also the common law. A comprehensive understanding will depend on Interpretation legislation, criminal practice, the law of evidence, concepts such as natural justice and remedies such as certiorari.

Report of the Law Reform Commission of Victoria, Page 45, Para. 71:

The plain English movement does not require that laws always be drafted in such a way as to make them intelligible to the average citizen. However, it does require that every effort be made to make them intelligible to the widest possible audience. There is no justification for the defects in language and structure which were noted in Chapter 2 and which sharply reduce the range of people who are capable of comprehending a document. Many legal documents are written in such a way that not only the people to whom they are directed but also judges and skilled lawyers have extreme difficulty in comprehending them. In such a case, it is not unfamiliarity with the subject matter or a lack of technical knowledge which causes the problem; it is the language and structure of the document itself. These should be improved, not in the hope of making the document intelligible to the average citizen, but in order to make it intelligible - and immediately intelligible - to as many of those as possible who are concerned with the relevant activities.