2.2 Thinking about legal writing
The study of law requires effective written communication. When writing, authors, whether legal academics or legal professionals, consider their audience. The style adopted and level of detail provided will vary depending on the context. There is no one ‘correct’ style that should be adopted. Each person needs to develop their own style and write in their own words. However, the style does need to be appropriate.
As you have seen, legal writing, particularly in legislation and judgments, is relatively formal and uses language in an accurate and precise way. However, when writing in other contexts it is important to resist the temptation to be too formal. It is not necessary to copy the rather archaic language in the older law reports; words such as ‘aforesaid’, ‘pursuant to’, and ‘hereafter’ should be avoided. Writers should avoid being pompous or pretentious as this style may obscure their meaning or alienate their audience.
There is a move towards the plain use of English in law: it is important not to complicate language unnecessarily for effect when a simple word or explanation will do. One tip often given is to read what you have written aloud and if it sounds formal but still natural you have probably got the style about right. If it sounds convoluted or pretentious and is difficult to read aloud, then it probably needs to be altered.
Box 2 Things to avoid when writing
- the use of slang and colloquialisms, such as ‘he was nicked by the old bill’, or ‘when she was off her head she set fire to the house’
- ‘text speak’ – the language and symbols of text messages
- lists and bullet points.
Common abbreviations should be avoided, such as those in Activity 4. Use the complete expressions instead.
There are certain abbreviations of legal terms which are acceptable and used commonly, for instance ECHR. It is a good idea to take your cue for what can be abbreviated from the course and it is important to set out the full name once, followed by the abbreviation that you are going to use in brackets or parentheses.
In order to write effectively for law you need to explain principles and arguments in a detached and objective way. Personal opinions should be avoided unless they are specifically asked for.
An essential part of writing in a detached and objective way is to avoid writing in the first and/or second person. When a person writes as ‘I’ they are writing in the first person. This is not generally appropriate in academic writing. Nor is ‘we’ (first person plural). The use of the first person situates the writer as the authority on the issue and expresses the writer’s opinion. The use of ‘you’ (second person) and ‘one’ (third person neutral) are not appropriate either.
Academic writing requires objectivity and the maintenance of some distance from the subject matter that is being written about.
There has been a move away from the use of Latin words and phrases within the legal profession. However, certain Latin phrases are still regularly used. For instance, you have come across the terms ratio decidendi and obiter dictum. Italics are often used for Latin phrases so that they are distinguishable from the main text.
There are certain legal phrases which are ‘terms of art’ in that they have specific meanings and cannot be replaced by alternative words. Some of the words may also have an everyday meaning and so it is important to think about the context in which you are using the word to ensure that you give the word its precise and appropriate meaning.
It is now widely accepted that academic writing should use gender-neutral language and so the use of ‘he’ or ‘she’ should be avoided wherever possible.
Box 3 Use of gender-neutral language
The expression ‘each judge will decide which rule, if any, he will use’ is not gender-neutral as it assumes that judges are male.
There are two ways of avoiding the assumption that all judges are male:
- ‘Each judge will decide which rule, if any, he or she will use’. However, this is rather long-winded.
- ‘Each judge will decide which rule, if any, they will use’. This version has the advantage of simplicity and is the solution that is commonly adopted. However it is grammatically incorrect as ‘they’ is plural and ‘judge’ is singular.
Avoid phrases such as ‘some judges argued’ or ‘it is argued’: try wherever possible to identify the person concerned and where they said it. For instance, you may say: ‘Lord Bingham argued in his book The Rule of Law’.
Keep your sentences as short and as simple as possible, only state what needs to be said. Think carefully about your use of words.
- avoid using several words where one will do
- avoid unnecessary and irrelevant details
- avoid using flowery adjectives that do not add anything to what you are saying.
Box 4 Using language accurately
Using language in an accurate way is often very important. Suppose you were told that ‘recently an organisation produced a report that said most new houses built this century are of a bad quality’.
You might well think then that what was wrong with the houses included things like defective woodwork, broken tiles, windows that do not shut properly, and sloping floors. If it turned out that what the report was really identifying as bad were features like lack of front gardens (as double driveways were used instead) and lack of visible similarity with older properties in the same district, then you might well say: ‘That’s not bad quality. If anything, it is bad design. It is the design of the houses that the report seems to be attacking, not the quality of the workmanship. Such a misunderstanding stems from the fact that, initially, I said to you that the report claimed houses were of bad quality.
This sort of misunderstanding that comes from using language in a careless way happens all the time. In any area where rules operate, it is essential for people to be careful about the way they use language.
Activity 4 Writing concisely
Read the following extract and consider how you could make it more concise but not lose any of its meaning. Write your concise passage in the text box provided.
The European Convention on Human Rights was born out of the terrible human rights atrocities that occurred during the continuance of the Second World War 1939–1945, in which millions of people of Jewish origin and extraction were murdered across Europe by the infamous Nazi German regime under the command of their leader, Adolf Hitler. After the Second World War there was an ardent desire on behalf of the members of the newly formed Council of Europe to work towards ensuring that such inhuman and degrading treatment of innocent civilians could never occur again on the continent of Europe. Accordingly, the states concerned worked together in cooperation to devise for future generations an international agreement to protect human rights in the guise of the European Convention on Human Rights.
When undertaking this activity you needed to read the passage carefully, think about the meaning of each word and phrase, and consider whether it was required and what it adds. For instance, ‘the terrible human rights atrocities that occurred during the continuance of the Second World War’ could be more concisely explained by saying ‘the human rights breaches that occurred during the Second World War’. This uses fewer words and it is also more neutral and less emotive in tone. It is not possible to detect the writer’s opinion from the words used and this is a more appropriate objective style for writing for law.
A similar approach can be taken to ‘After the Second World War there was an ardent desire on behalf of the members of the newly formed Council of Europe to work towards ensuring that such inhuman and degrading treatment of innocent civilians could never occur again on the continent of Europe’. This could be more concisely phrased as ‘After the Second World War the newly formed Council of Europe was determined to prevent the re-occurrence of human rights abuses in Europe’.
Writing concisely means that you will use as few words as possible to communicate all the required information. You should also check what you have written carefully. Does it comply with the rules of grammar and is it spell checked? Think about phraseology and the sense of what you have written.
Box 5 Avoid the use of flowery adjectives
An often-quoted example of a long-winded explanation is taken from a biology student but it is relevant to all disciplines:
Although solitary under normal prevailing circumstances, racoons may congregate simultaneously in certain situations of artificially enhanced nutrient resource availability.
In other words – although racoons are normally solitary they do feed together if food is left out for them.