The Problem of Legal Language: A Comparative Analysis of the Kenya Civil Procedure Rules 2010 and the 1998 England Rules of Procedure
Grant Gilmore of Yale has
been quoted describing Christopher Langdell, a professor at Harvard Law school
as essentially “a stupid man who early in his life hit on the casebook method,
an idea that was absurd, mischievous and deeply rooted in error” an opinion
that I strongly disagree with. However I do agree with the opinion of Joseph
Kimble, Plain Language Michigan Bar Journal, November 2006, where he states
that the case book method has had one harmful if unintended consequence for
helping perpetuate legalese.
Joseph Kimble states that
legalese should be distinguished from terms of art such as habeas corpus, indemnity and tortious interference
with a contract. He describes legalese as high faulting legal jargon such
as hereinbefore stated, in the instant case, pursuant to and said claims or
such claims. He further laments that use of legalese costs clients’ money,
impairs persuasiveness and detracts a writer’s reputation.
Bryan Garner[1],
in his article Learning to loathe Legalese, Plain Language Michigan Bar
Journal, expresses his worry that law students strive to learn legalese partly
because they do not entirely believe the warnings about it, partly because they
won’t fell like lawyers until they have mastered it, and partly because
Langdell has set up things so law students would always be reading old cases
with antiquated language. He states that the novice legal writer yearns to
acquire legalese but the expert yearns to eliminate it hence we should all
strive to be experts.
Theodore Oslon[2]
on the other hand defines Legalese as a jargon and states that all professions
have it and that all professions use it as a substitute for thinking and they
will use it in a way that makes them appear superior while they actually appear
to be buffoons for using it.
Most legal languages are
drafted in such a manner that a sentence will have comprehensive, complex and
unnecessary explanations that would have been easily and directly expressed in
simple terms. Legal languages are on most occasions poorly written - long, badly constructed sentences,
archaic words and phrases and strings of unnecessary words.
There are usually
unnecessary cross-references that are made to direct the reader to a previous
points or rules or even refer the reader to forthcoming points instead of just
dealing with an issue on a conclusive basis once and for all.
For example, in the Civil
Procedure Rules, 2010, ORDER 1, RULE 15, SUB-RULE 5 provides that where a person served with a notice by a third party
under sub-rule (4) makes such a claim as is mentioned in sub-rule
(1) against another person not already a party to the action, such
other person and any subsequent person made a party to the action shall comply mutatis
mutandis with the provisions of this rule.(Eph placed on bold and
italicized)
ORDER 1 RULE 16 provides that notwithstanding
anything in rule 15, leave to issue a third party notice for service on the
Government shall not be granted unless the Court is satisfied that the
Government is in possession of all such information as it reasonably… (Eph
placed on the bold and italicized). It would have been easier suppose they
simply said that the provisions of rule 15 shall not apply to notices to
government as a third party and goes ahead to provide a clear provision
touching on notices to government completely alienated from notices to third
and subsequent parties.
While ORDER 1, RULE 19 provides for judgment to be
entered against a third party in default, ORDER 1, RULE 20 provides that
default judgment entered under Rule 19 shall not be against Government without
leave of the Court. The two issues would have been dealt with comprehensively
under one Order and Rule. Why introduce Rule 20? Was there no way of
harmonizing the two concepts?
Order 1, Rule 25 provides that applications under rules
10 and 19 may be made orally in Court or by summons in chamber. (Eph
placed on the bold and italicized words). Why didn’t the drafters simply
include the procedure while drafting rule 10 and 19?
ORDER 2, RULE 10, SUB-RULE 5 provides that no order
for costs shall be made in favor of a party applying for an order who has not
first applied by notice in Form No. 2 of Appendix B which shall
be served in duplicate, while SUB-RULE 6 provides that particulars delivered
shall be in Form No. 3 of Appendix A which shall be filed by the party
delivering it together with the original notice and shall form part of the
pleadings. (Eph placed on bold and italicized words). Why not include the two
forms in same Appendix, say A! Why have the forms in Appendix A and B?
Order 2, Rule 17, provides that an application
under section 25 (2) of the Government
Proceedings Act (Cap 40) may be made at any time before trial or during the
trial. Could it not have been done better?
A Statute is notav document easily understood by an ordinary person
yet the ordinary citizen is expected to
understand the rights conferred and obligations imposed by such Statutes. It
may be that the law cannot be stated so plainly. It is often argued that
important nuances would be lost if the law were stated in plain English. In
addition legal language facilitates communication within the profession; it
might be very time consuming to explain the entire law in fully understandable
language.
However, there are certain
categories of legal documents, particularly those that affect the rights and
obligations of ordinary citizens, which should be stated as plainly as
possible. Citizens should be able to know the exact idea of the will of the
legislator.
The Civil Procedure Rules 2010 is an
example of Legislation that uses several legal terms. For example, the words ex-parte inter-parties and mutatis mutandis is used severally.
Order 1 rule 15(4) Where a third party makes
as against any person not already a party to the action such a claim as is
mentioned in sub rule (1), the provisions of this Order regulating the rights
and procedure as between the defendant and the third party shall apply mutatis
mutandis as between the third party and such person, and the court may give
leave to such third party to issue a third party notice, and the preceding
rules of this Order shall apply mutatis mutandis, and the expressions
“third party notice” and “third party” shall respectively apply to and include
every notice so issued and every person served with such notice.
Order 1 rule 21(2) If the suit is
finally decided in the plaintiff’s favor, otherwise than by trial, the court
may, upon application ex parte supported by affidavit, order such
judgment as the nature of the case
may require to be entered for the
defendant giving the notice against the third party at any time after satisfaction
by the defendant of the decree obtained by the plaintiff against him.
This in comparison with The Civil
Procedure Rules 1998 of England which uses plain English is not easily
understood by the ordinary reader. Instead of using ex-parte and inter-parties The
Civil Procedure Rules 1998 of England uses the words “without notice” and “with
notice” respectively. For example, Rule 7.6(4) provides that an application for
an order extending the time for service must be supported by evidence and may
be made without notice.
A good legal writer must be able to
use short sentences as much as possible that are precise and to the point, in
order to engage the reader. Lengthy sentences tend to be boring and repetitive
and may lose the meaning that the writer intended. For instance, at average if
a sentence must be long, the average number should not go beyond 20 words.
Under the 2010 Civil Procedure Rules, very long sentences have been
consistently used in the various provisions, in particular Order 1 rule 22, which contains more than 20 words thus qualifies
as a lengthy sentence as illustrated
below:
“If
a third party enters an appearance pursuant to the third party notice, the
defendant giving the notice may apply to the court by summons in chambers for
directions, and the court upon the hearing of such application may, if
satisfied that there is a proper question to be tried as to the liability of
the third party, order the question of such liability as between the third
party and the defendant giving the notice, to be tried in such manner, at or
after the trial of the suit, as the court may direct; and, if not so satisfied,
may order such judgment as then nature of the case may require to be entered in
favor of the defendant giving the notice against the third party.”
The 1998 England Civil Procedure Rules on the other hand contains short
and precise sentences, as illustrated in the below Rule 27.10 of the 1998 Civil Procedure Rules.
Disposal
without a hearing
27.10 The court may, if all parties agree, deal
with the claim without a hearing.
Another common feature in the 1998 England Civil Procedure Rules is
that sentences have been subdivided into sections in order to avoid lengthy
sentences. For instance Rule 7.5 of the
1998 Civil Procedure Rules.
Service
of a claim form
7.5—(1)
after a claim form has been issued, it must be served on the defendant.
(2)
The general rule is that a claim form must be served within 4 months after the
date of issue.
(3)
The period for service is 6 months where the claim form is to be served out of
the jurisdiction.
Additionally use of conjoined phrases make understandinConjoined phrases consist of words like herein
above, I give, devise and bequeath the rest, residue and remainder... Even though they have been
used since Anglo-Saxon times, conjoining words is still extremely common in
legal language. One reason for such lists of words is to be as
comprehensive as possible. They also can add emphasis. But they can
lead to ambiguity because of the rule of interpretation that every word should
be given meaning and nothing treated as surplus. Thus, careful
communication requires that lawyers use such conjoined phrases with care as the
use of conjunctions often leads to unusual sentence structure.
Joining together words or phrases with the
conjunctions ‘and’ and ‘or’ is a typical feature of legal style
which contributes to wordiness. Civil Procedure Rules of Kenya 2010 have
excessive use of conjoined phrases which contribute to wordiness and ambiguity;
for example;
Order1
Rule 1; All persons may be joined in one suit as plaintiffs in whom any
right to relief in respect of or arising out of the same act or transaction or
series of acts or transactions is alleged to exist, whether jointly, severally
or in the alternative, where, if such persons brought separate suits, any
common question of law or fact would arise. And,
Order 3 Rule 7; No claim
by or against an executor or administrator, as such, shall be joined with
claims by or against him personally, unless the last-mentioned claims are
alleged to arise with reference to the estate in respect of which the plaintiff
or defendant sues or is sued as executor or administrator, or are such as he
was entitled to, or liable for, jointly with the deceased person whom he
represents.
It is not easy to spot conjoined
phrases in The Civil procedure rules of
England 1998, the rules are short and straight to the point making them
less wordy non ambiguous and easy to understand. Where conjoined phrases have
been used, they do not affect the sentence structure nor do they contribute to
wordiness for example:
Rule 6A (7); Where no grant of probate or administration has been made,
any judgment or order given or made in the proceedings shall bind the estate to
the same extent as it would have been bound if a grant had been made and a
personal representative of the deceased had been a party to the proceedings.
Legal
writing employs many old words and phrases that were formerly quotidian
language, but today exist mostly or only in law, dating from the 16th
century. This is done in vain, it
is done on purpose. Lawyers
prefer to use antique terms instead of new ones. English examples are herein, hereto, hereby,
heretofore, herewith, whereby, and wherefore. Despite the so called usefulness of
the archaic touch within legal language, its functionality is still debatable.
It is quite apparent from the examples given previously that certain outdated
terms and constructions are truly a handicap for better understanding, they
make legal language inaccessible for the public reader or more specifically to
those who are mainly concerned with legal matters and noticeably such terms
render comprehension difficult. Those who argue against the use of the same
archaic terms argue that plain language should be used. It is also logically organized, concise and
unambiguous. It uses normal or standard grammar, punctuation and
capitalization. Plain language is recognition that people are entitled to
understand the documents that bind them or state their rights.
The Civil Procedure Rules of 1998 of
England dealt with this issue. It
eliminated the use of such archaic terms, phrases and references in
English. It was now easier to the reader
to interpret and understand everything that is in the Rules. The Kenyan Civil Procedure Rules of 2010
still retained the archaic terms.
The 2010 Civil Procedure Rules (Laws
of Kenya) is complex, in that it’s difficult to understand or analyze.
Similarly there is a presence of many interrelated parts. This is brought about by the usage of many
explanations to refer to a particular fact or usage of advanced text to
establish or define a particular fact. Using a simple words or sentences to
explain something lessens the possibility of using advanced text which brings
about large sentences or paragraphs, which in turn, turns a simple text to a
complicated phrase.
For
example; the Civil Procedure Rules
(1998) of England, describes parties to a suit as claimant (a person who
makes a claim) and a defendant (a person against whom a claim is made). On the
other hand, the Civil Procedure Rules
(2010) Laws of Kenya lengthily describes parties to a suit as;
All persons may be
joined in one suit as plaintiffs in whom any right to relief in respect of or
arising out of the same act or transaction or series of acts or transactions is
alleged to exist, whether jointly, severally or in the alternative, where, if
such persons brought separate suits, any common question of law or fact would
arise.
All persons may be
joined as defendants against whom any right to relief in respect of or arising
out of the same act or transaction or series of acts or transactions is alleged
to exist, whether jointly, severally or in the alternative, where, if separate
suits were brought against such persons any common question of law or fact
would arise.
Rule
16.3 of the Civil Procedure Rules (1998)
of England provides for the contents of a claim for which contents are a
concise statement of the nature of the claim; the remedy which the claimant
seeks; where the claimant is making a claim for money, contain a statement of
value in accordance with rule 16.3; and contain such other matters as may be
set out in a practice direction.
On the other hand Order 3, rule 3 and 4 of the
Civil Procedure Rules (2010) Laws of Kenya,
which contains a similar provision, uses complex terms. For instance the
Order is titled ‘Choice of Track’; the rules then go ahead to describe “small
claims”, “fast track” or “multi-track”. The Rules also prescribe that in order
to choose the case track one needs to consider other facts such as; complexity
of the issues of fact, law or evidence; the financial value of the claim; the
likely expense to the parties; the importance of issues of law or fact to the
public; the nature of the remedy sought the number of parties or prospective
parties; and the time required for pre-trial disclosures and for preparation
for trial or hearing;
The
usage of advanced text and inclusion of interrelated words or phrases as seen
above therefore brings about the complicated nature of the Civil Procedure Rules (2010) Laws of Kenya, as compared to the Civil Procedure Rules (1998) of England
The Way
Forward
Laws should be made easy to understand. If laws are
hard to understand, they lead to administrative and legal costs, contempt of
the law and criticism of our Office. It’s hard to take pride in a work if many
people can’t understand it.
v Under 1998 Rules, Rule 2.1, provides that subject to paragraph (2), these Rules apply to all
proceedings in—county courts; the High Court; and the Civil Division of the
Court of Appeal. (2) These Rules do not apply to proceedings of the kinds
specified in the first column of the following and sub-rule 2 provides that
subject to paragraph (3), words in these Rules which are included in the
glossary are followed-the 1998 Rules tries to reduce cross-reference to other
rules in other parts.
v At the beginning of every Part of the England and
Wales Civil Rules of 1998, there is a table of content to simplify issues and
give direction of what is expected under that Part. For example there is a
table of content of Part 3 on Court’s case management power. Under the Kenyan
context, sections are listed in one part, so in case you forget a section you
will be forced to run through the whole sections as provided in order to get
the one you want.
v Part 4 of the 1998 Rules deal with forms and the
forms as set out in the practice section shall apply. There are no various and
many Appendixes as indicated in the Kenyan Civil Rules.
v There are no cross-references to other rules and if
there are, then the references are made to same Part that deal with specific
issue. For example references are made only regarding issues touching on a
particular part but do not cross over to another part.
v The overriding objective of
the England and Wales Civil Procedure Rules of 1998 are simplified as compared
to the objectives of the Kenyan Civil Procedure Act as provided under Section
1A
Comments
Post a Comment