Government documents make for turgid reading. No one bothers to simplify the language, even when communication to the ordinary citizen is intended. My favourite example is “inter alia”. Pick up any government document and the probability is 100 per cent that this expression will be used. Inter alia means “among other things”. It does not mean “among other persons”. If we wish to allow for the possibility of individuals being included, we should say inter alios. Better still, why not avoid the expression altogether and say “among others”'
Latin usage is no doubt useful. Sometimes. However, there is clearly an unnecessary attempt to use Latin and this is not just true of law. Economists are equally guilty. For instance, the expression most used by economists must be ceteris paribus. If we can say “other things being equal”, why use the Latin' Or for that matter, the opposite of ceteris paribus — mutatis mutandis, which simply means that changes have been taken into account. Unnecessary use of Latin is no doubt motivated by desire to impress people with one’s learning. If you simply say ½, people are unlikely to be impressed. It is so much better to say 41/82.
While on economics and jumping from Latin to French, I also think laissez faire is over-used. What does this mean specifically' Critics of market-based reforms probably equate it with laissez aller and industry probably interprets it as laissez passer. Why use the expression at all, if no additional precision is obtained' A Plain English movement has swept across the globe and has especially affected drafting of statutes, rules, orders and regulations. But not in India. Here, we continue to swear by what was the norm one hundred years ago and even recent legislation continues to be unnecessarily bombastic.
In one such recent statute, the word “abate” figures and I had an argument with a lawyer. In the context of the statute, abate means to stop, end or terminate and is used in the sense of suits abating. But ask any ordinary person what the word “abate” means and he/she is likely to say reduction or diminishing. Not termination. Etymologically, both termination and reduction are acceptable meanings. My suggestion was that this recent statute should have used the word stop or terminate, since that was what was meant. And my lawyer friend disagreed. Because the word “abate” has a hoary legal lineage. It is a separate matter that nowhere else in the world is “abate” any longer used in the sense of legal actions or suits coming to an end or being nullified. When used in law, “abate” now means reduction (such as of a debt) or removal (such as of a nuisance). Not termination of suits.
But we must preserve the hoary tradition and simple words like “stop” won’t do. If “null and void” has been used for hundreds of years, we must continue to use it, even though the expression is sheer nonsense. Think about it. A contract can be “null”, meaning it didn’t exist in the first place. Or it can be “void”, meaning it existed, but has been declared to be invalid. So a contract can be null or void, it can’t ever be null and void.
But thanks to the law, we have accepted null and void in ordinary language, just as we have accepted “over and above”. And we have accepted “part and parcel”, even though we should be clear whether we mean part or parcel. In similar vein, I defy any lawyer to explain to me what the terms “peace and quiet” and “law and order” precisely mean. Or even that quaint expression “hue and cry”, which continues to figure in public hue and cry notices. When as a citizen, you gave chase to a criminal or a felon, “hue” stood for inarticulate sounds you made, like blowing horns or beating drums. “Cry” stood for words that you uttered in summoning help. Why must we continue to use this expression'
Let me now give you a quote from a famous case, going all the way back to 1842. This is the Davies versus Mann case, important for the evolution of tort law and involving a collision between a donkey and a wagon. “The declaration stated, that the plaintiff theretofore, and at the time of committing of the grievance thereinafter mentioned, to wit, on, etc., was lawfully possessed of a certain donkey, which said donkey of the plaintiff was then lawfully in a certain highway, and the defendant was then possessed of a certain waggon and certain horses drawing the same, which said waggon and horses of the defendant were then under the care, government, and direction of a certain then servant of the defendant, in and along the said highway; nevertheless the defendant, by his said servant, so carelessly, negligently, unskillfully, and improperly governed and directed his said waggon and horses, that by and through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, by his said servant, the said waggon and horses of the defendant then ran and struck with great violence against the said donkey of the plaintiff, and thereby then wounded, crushed, and killed the same, etc.” The tragedy is not that we wrote like this in 1842. But that we continue to write like this in 2004.
One more quote. This time from Thomas Jefferson. About statutes, he had the following to say, “which, from their verbosity, their endless tautologies, their involutions of case within case, and parenthesis within parenthesis, and their multiplied efforts at certainty, by saids and aforesaids, by ors and ands, to make them more plain, are really rendered more perplexed and incomprehensible, not only to common readers, but to the lawyers themselves”. I wonder why we have never produced a Lord Denning.
And yet, writing simple English isn’t difficult, as everyone who works or writes for the popular press knows. The rules are pretty simple. No sentences longer than 15 words. Active voice. Short words instead of long ones. No Latin or French. Journalists use these principles all the time. Why, in this era of reforms, don’t we have more citizen-friendly legal draftsmanship and why has there not been a Plain English movement in India' After all, much of law has to be translated into the vernacular, and complicated English makes for complicated translations.
Here is a sample from a very recent statute. “Every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.”
That sentence has 130 words. I refuse to believe that this sentence can’t be simplified or broken up into several short sentences. Or that in the process of simplification, some profound legal import will be distorted or lost. The problem probably is that the need for simplification doesn’t yet figure in the public discourse.