Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY,
LUCKNOW

SEMESTER IX

PROFESSIONAL ETHICS

The Pillars of Nero: Professionally Imposed Barriers to Legal

Awareness and Solutions to Them

SUBMITTED BY: Bharat Khaira

Enrollment No: 190101124
5th Year B.A. LL.B. (Hons.)

SUBMITTED TO: Dr. Manoj Kumar

Assistant Professor (Law)

1
 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Dr. Manoj Kumar who gave
me the golden opportunity to do this wonderful project on the topic “The Pillars of Nero:
Professionally Imposed Barriers to Legal Awareness and Solutions to Them”, he has been
constantly supporting me, guiding me and helping me with all my queries and difficulties
regarding this project since its fledging stage. Without his help this project would have been a
Herculean task.

Through this topic I get the opportunity to do lots of research, this result in so much new
knowledge which would help me further for new projects.
I would also like to thank my friends and seniors who helped me a lot in finalizing this project
within the limited time frame and make this project even better.
I would like to thank the librarians of Dr. Madhu Limaye library for helping me find the correct
resources for my research and for helping me enrich my knowledge.
I know that despite my sincerest efforts some discrepancies might have crept in, I hope and
believe that I would be pardoned for the same.
Thank You,

Samyak Yadav

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TABLE OF CONTENTS
A. The Law, its Princes, and its Subjects 4
1. Legal Awareness in India 6
2. Possible Barriers and Attitudes to Them 7
B. The Rules and the Rule of Law 9
1. The Plea for Legalese 9
2. Why the Plea Must Stand Dismissed 10
C. Ways of Putting It 11
1. Social Status in and of the Profession 11
2. Learning and Acculturation in the Law 12
D. Ways Out 13
1. Short-Term Amelioratives 14
2. Possibilities for Structural Change 15
E. Summing Up 17
References 18

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 THE PILLARS OF NERO: PROFESSIONALLY IMPOSED BARRIERS TO LEGAL
AWARENESS AND SOLUTIONS TO THEM

Legal writing is, to say the least, widely disliked. No less a jurist than Jeremy Bentham charged
lawyers with “poisoning language in order to fleece their clients”, a view that has now become
wholly commonplace.1 This does not, even so, seem to have significantly improved the average
quality of legal texts. However, in the context of countries such as India, where even basic legal
awareness is at depressing lows, obfuscatory legal communication becomes not merely a stylistic
concern, but an urgent threat to the integrity of the legal order.

In this article, we shall present the scenario of legal awareness in India, and argue that the
continued usage of certain kinds of legal communication constitutes a major professionally
imposed barrier to legal awareness. We shall then present and defend against objections the
claim that such legal writing is unjustifiable and may, in some cases, cause or enable violations
of the rule of law. Finally, we shall survey the sociological explanations for this phenomenon,
and thereafter offer ways to overcome it.

A. THE LAW, ITS PRINCES, AND ITS SUBJECTS

As the vigour of jurisprudential debate demonstrates, ‘the law’ is very difficult to define. It
clearly consists of the whole body of legal texts, but the understanding and scope of these texts
remains contested even within the legal profession -- meaning here legislative drafters,
bureaucratic officials, lawyers, legal academics, and judges. Still, a few important conclusions
may be drawn.

In the first place, the original meanings of the prior legal texts all taken together neither do nor
can always determine the likely or ‘correct’ judgment in any given case. Secondly,
conventionally accepted methods of extra-textual reasoning play a significant role in determining
the behaviour of the law. Thirdly, the perceived content of the law is therefore at least partly
dependent on the status and perspective of the perceiver. Fourthly, this effectively implies that,

1
Robert W Benson, 'The End of Legalese: The Game is Over' (1984) 13 NYU Rev L &Soc Change 519.

4
as Ronald Dworkin put it, “The courts are the capitals of law's empire, and judges are its
princes.”2

This is well illustrated, for instance, by the example of Justice (Retd.) K.S. Puttaswamy v. Union
of India3 (2017). One of the strongest arguments raised by the government against a finding of
the constitutional right to privacy pointed out that the Constituent Assembly had expressly
rejected a proposed clause protecting the secrecy of correspondence, and against unreasonable
searches and seizures. Whatever the merits of this argument, the response of the Court warrants
close attention. Dismissing the argument, Justice Chandrachud writes, “The Constitution has
evolved over time, as judicial interpretation, led to the recognition of specific interests and
entitlements ... The interpretation of the Constitution cannot be frozen by its original
understanding.” [Emphases added] In fact, Article 21 alone has been interpreted to include over
twenty-six different rights, under the doctrine of the ‘living constitution’, the contours of which
remain deliberately undefined.

More prosaically, this means that the legal profession is an ‘interpretive community’: a group of
readers and writers structured around certain texts, such that the traditions of writing and reading
developed in the group determine the possible meanings of the underlying texts. This is because
the existing law, for most cases that reach the Supreme Court, is usually rationally indeterminate,
and justifies no unique outcome. In these cases, it is the moral and political inclinations of the
judge that determine the outcome -- but crucially constrained within the boundaries set by
methods of reasoning accepted within the legal community, to which the judge is held
accountable.

However, this presents us with a dilemma: given that the law is supposed to be followed by all
citizens, the fact that its content, explicated in the traditionally legal ‘style’, is properly
accessible only to a much smaller group, would imply that the average citizen is largely unaware
of the rules that govern their lives. This is precisely what we find.

Before we proceed further, it is important to precisely define what we mean by the legal style of
communication. It refers here to the features that distinguish legal discourse on a given matter,

2
Ibid.

3
Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

5
written and oral, from its counterpart as conducted by lay interlocutors. Some observed features
of ‘legalese’, as it is often called, are “long words; rare Old and Middle English words; Latin
phrases; common words with uncommon meanings; French expressions; “terms of arts”; argot;
fossilized formulas”.4 Legal language also suffers from maladies such as verbal reduplication,
unusual prepositional phrases; long and complex sentences; unending word lists; excessive use
of nominalizations and passives; multiple negatives; illogical order of ideas, omission of
referential pronouns in favour of repetition; and stylistic peculiarities such as pomposity,
verbosity, and dullness.

1. Legal Awareness in India

Despite the fact that State-sponsored general surveys of legal awareness remain woefully few
and far between, the data on the topic that has been collected paints a bleak picture.

One instance which highlights how the lack of awareness, of the law and rights arising thereof,
harms the people is in the area of consumer rights. Rural consumers in India have been subject to
exploitation due to poor knowledge about their rights and available remedies in case of
infringement of such rights.5 This lack of awareness has made them endure sub-standard
products and services, adulterated food, short weights and measures, spurious and hazardous
drugs, profiteering, and a plethora of other unfair trade practices. With large populations in India
still suffering from poverty, unemployment, and poor literacy levels, consumer rights and, by
extension, general law awareness continues to remain low in India, particularly among the rural
consumers.

Another instance which highlights the state of legal awareness in India is the situation of the
tribal communities living near reserved forests and other remote places. A study found that more
than 80% of locals residing near reserved forests had no knowledge of the Forests Rights Act
which governs such protected areas and also provides them certain rights.6 All activities in

4
M I Sastri, 'Legalese Revisited' (1988) 80 Law Libr J 193, 198.
5
Dhiraj Kumar Mishra, ‘Awareness of Consumer Rights and Responsibilities in India: Prospects and Challenges’,
(2018) 9 Indian J. L. & Just. 39, 57
6
Macura, B., F. Zorondo-Rodríguez, M. Grau-Satorras, K. Demps, M. Laval, C. A. Garcia, and V. Reyes-García,
‘Local community attitudes toward forests outside protected areas in India. Impact of legal awareness, trust, and
participation’ (2011) 16(3) Ecology and Society <[Link] Accessed
13 August 2020.

6
reserved forests, under the Indian Forest Act enacted in 1927, are prohibited unless permitted.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
which was enacted in 2007, provides traditional forest communities with rights over forest
resources and forest lands, besides providing substantial power to the local government. This
legislation was meant to mitigate increasing conflicts between multiple actions over forest use
rights. However, ignorance about the laws governing such areas among the locals gives rise to a
situation where they may act in violation of the law without ever being aware of any such
violation. Another substantial outcome of this unawareness is that it makes them vulnerable to
exploitation by corporations and private entities intending to encroach upon such regions, along
with the bureaucracy that facilitates such unjust encroachment.

The extent to which people are unaware about the laws and statutes of the country can be gauged
by the fact that even professionals possess inadequate knowledge about the law applicable to
their professions. A study revealed that the knowledge on laws and various legal provisions
thereof, as was applicable to nursing, across all categories of nurses under review, was
inadequate to say the least.7

While the existing empirical data on the matter is far from sufficient, it does show that legal
awareness in the country is in a pitiful condition. Therefore, it becomes imperative to explore the
possible causes of such paucity of legal awareness.

2. Possible Barriers and Attitudes to Them

It would be invidious and inaccurate to pin all or most of the blame for this state of affairs on the
legal community. Larger systemic barriers, such as high levels of socioeconomic and especially
educational marginalization, are almost certainly the main contributors to overall low awareness
of the law. Nevertheless, for three reasons, special attention must be paid to the role of the
discursive practices of the legal profession in raising barriers to wider awareness.

The first of these is the lack of comprehension of the law among non-legal professionals such as
medical staff, who do not, at least to the usual extent, face the same systemic barriers as the

7
Hemant Kumar, Gokhale, Kalpana Jain, D.R. Mathur, ‘Legal Awareness and Responsibilities of Nursing Staff in
Administration of Patient Care in a Trust Hospital’ (2013) 7 Journal of Clinical and Diagnostic Research 2814
<[Link]/back_issues.asp?issn=0973-
709x&year=2013&month=December&volume=7&issue=12&page=2814-2817&id=3886> Accessed 13 August
2020

7
general public. Some part of this problem might be accounted for by a lack of interest in the law
among such professionals, but this is largely inadequate, given that they stand, at least in theory,
to face extensive reputational, monetary, and even criminal penalties in the event of an
inadvertent breach of the rules. Therefore, systemic barriers cannot account entirely for low legal
awareness.

Secondly, it is in the nature of systemic barriers in areas as complex as education and poverty
alleviation that they require massive investment of resources, coordinated social and political
action involving cooperation between various loosely connected factions, and a significant
amount of time to overcome. In comparison, changing certain pernicious habits of the legal
community requires relatively inexpensive action on the part of a group of persons who are held
together by formal and informal structures of authority. As a pragmatic matter, therefore, it is
prudent to begin with the ‘low-hanging fruit’.

Thirdly, there are several instances that show a lack of consciousness of the dangers of unclear
communication. In recent years, the Indian legal profession has witnessed nationally anticipated
judgments that routinely run up to hundreds of pages 8; judgments of public importance that
contain a litany of arguments seemingly unconnected to the legal issue 9; and, in one case, a High
Court judgment that was overturned by the Supreme Court due to obscure writing.10

As a result, it has been suggested by learned experts that the proliferation of verbose judicial
writing in India has led to “the conflation of the length of a judgment with its profundity”. Others
point out that it discourages efforts to translate judgments into commonly understood regional
languages. It also makes it possible for lawyers to “pick and choose from large reams of text to
build entirely different and contradictory arguments” in future cases. Finally, it has been argued
that obscure writing permits judgments “designed to confuse and befuddle” readers, making
critical engagement with the judiciary difficult. Whether or not some or all of these charges are

8
The Print Team, ‘Supreme Court’s nearly 500-page order on Sec 377: Are India’s judges most erudite or too
verbose?’ (The Print, 7 September 2018) <[Link]
sec-377-are-indias-judges-most-erudite-or-too-verbose/113607/> accessed 20 August 2020.

ET Edit, ‘A judgment too far from Uttarakhand’ (The Economic Times, 14

9
August 2018)
<[Link] accessed 20
August 2020.
10
Sri Pawan Kumar v. Sarla Sood & Anr, 2017 SCC 1673.

8
true, they echo the perception of many observers, which bodes ill for the acceptance and
authority of law in India.

Empirical studies, although conducted outside India, indicate that people, irrespective of their
educational background and understanding of the legal system, prefer clarity and emphasize
upon the importance of understanding legal communication. 11 Interestingly, one study asked
appellate judges and their research attorneys to assess passages from briefs written in traditional
legal prose or “legalese” while asking other judges and research attorneys in the same court to
assess the same passages rewritten in “plain English”.12 By statistically significant margins, the
respondents rated the passages in legalese to be substantively weaker and less persuasive than the
plain English versions.

B. THE RULES AND THE RULE OF LAW

It has been argued that the length of important legal documents, opaque reasoning, and the
difficulty or alienness of the language used constitute professionally entrenched barriers to
proper public awareness, comprehension, scrutiny, and acceptance of the legal and judicial
process. However, it still remains to be decided whether all of some of them are therefore all
things considered dispensable. The latter proposal has sometimes been answered in at least a
qualified negative. It is thus necessary to review and respond to the arguments for the usage of
legalese.

1. The Plea for Legalese

The plea for retaining the current mode of legal communication proceeds along essentially four
lines: what may be called respectively the argument from innocence; the argument from
precision; the argument from specialization; and the argument from authority.

The argument from innocence denies that legalese is responsible for any significant adverse
outcomes, holding that it is either the poor reasoning or the lack of grammatical and stylistic
proficiency of legal professionals that is actually responsible for the adverse outcomes attributed

11
Christopher R Trudeau, 'The Public Speaks: An Empirical Study of Legal Communication' (2011-2012) 14 Scribes
J Leg Writing 121,137

Robert W Benson and Joan B Kessler, 'Legalese v. Plain English: An Empirical Study of Persuasion and
12

Credibility in Appellate Brief Writing' (1987) 20 Loy L A L Rev 301, 301

9
to legal writing in general. In a more extreme form, this may even extend to denying that there
exists a distinctively legal style of writing at all.

The argument from the perspective of precision accepts that legal language and provisions, while
indeed unusually full of archaic phrases or technical terms, is of such a characteristic only to
ensure that it conveys a precise meaning understood by all who are familiar with the law: “a
degree of precision which a person reading in good faith can understand; but … a degree of
precision which a person reading in bad faith cannot misunderstand”.13

The argument from specialization carries this line of justification further and accepts also that the
nature of legal writing delineates the legal profession as a distinct ‘policy subcommunity’ whose
members understand and influence the law much more than the average citizen. However, it
insists that this is a net positive, because legal reasoning takes “preexisting goals like efficiency
and equity and focuses on the best means for achieving them.”

Finally, the argument from authority even concedes that legalese enables legal professionals to
invest claims of questionable legal validity with seeming legal authority, so as to subvert external
scrutiny. However, it claims that this is justified at least in some cases on the grounds of the
positive results produced, such as the strengthening of international institutions through
international legal vocabulary; or in fulfilment of the advocate’s duty to their client even when
the legal case is weak; or in the legitimation of controversial but arguably desirable decisions
like Kesavananda Bharti.

2. Why the Plea Must Stand Dismissed

The first argument is trivially true, if it is construed to mean simply that the usage of legalese is
not the metaphysical efficient cause of more substantive problems in legal argumentation.
However, it is empirically false on the non-trivial reading, insofar as legalese does deprive
laypersons of the full understanding of judgments and other legal documents, including widely
used consumer contracts, consent-to surgery forms, and statutes.14

13
Matt Keating, 'On the Cult of Precision Underpinning Legalese: A Reflection on the Goals of Legal Drafting'
(2018-2019) 18 Scribes J Leg Writing 91, 91.

Robert W Benson and Joan B Kessler, 'Legalese v. Plain English: An Empirical Study of Persuasion and
14

Credibility in Appellate Brief Writing' (1987) 20 Loy L A L Rev 301, 302

10
The arguments from the perspective of precision and specialization hold good but within a
limited scope. Specifically, to the extent that they do not collapse into the argument from
authority, they can justify only texts of private contract law, interpreted to the limited number of
laypersons by specialists. They do not, however, justify the usage of legalese either in public,
tort, and criminal law, or arguably even in standard form contracts, where unaided laypersons are
disabled from fully understanding and scrutinizing obligations that accrue to them.

This leaves the argument from authority, which justifies legalese as legalese, arguing for it
despite or because of the loss of general public comprehension and scrutiny of the law. This sort
of argument must be taken on in two steps.

Firstly, we must interrogate who exactly such an argument could be addressed to. By definition,
it could not be addressed to the public at large, considering its obviously iniquitous implications.
However, empirical studies show that it could likely not be successfully justified to professionals
either, who in fact tend to assess plain language legal documents, and the lawyers who write
them more favourably.

If, however, it is not addressed to any determinate group of persons, but is a more general
normative justification for legalese, then it may be sufficient to point out the trade-offs, also
previously mentioned in the context of verbose judgments. Namely, it requires undermining to a
significant degree the principles of legal generality, publicity, and predictability of the content
and behaviour of the law, which form cumulatively the bedrock of the rule of law. 15 Such a trade-
off presupposes a low degree of confidence in or respect for the rational faculties of the ordinary
subjects of a given legal regime. Even if it may be the case that this is justified in certain
extraordinary circumstances, the regular stylistic obfuscation that is characteristic of legalese as
an institutional habit cannot be defended thus.

C. WAYS OF PUTTING IT

If it is accepted that the usage of legalese is not justified, and therefore that, all things remaining
equal, it ought to be reduced to the extent feasible, its appeal still remains to be explained.
Explanation in the realm of human affairs is admittedly a contentious notion, but here it is meant
only to denote an explication of the social and other factors that encourage the usage of legalese,

15
Lon Fuller, The Morality of Law: Revised Edition (Yale University Press 1965) 33-41.

11
so that they may be effectively dealt with. Two broad lines of explanation have been offered: one
that attributes ill intent to the legal profession taken institutionally, and one that does not.

1. Social Status in and of the Profession

A rather crude sort of condemnation of the legal style projects the legal profession as a group of
scheming persons who consciously and maliciously use their language as a smokescreen, a way
of preserving the mystery of the profession in order to justify high fees. This is the familiar
charge ‘that through obfuscation and jargon, lawyers delude the public into believing that
lawyers are wise, and therefore valuable economically’.16 Needless to say, it is rather unlikely
that most professionals think in this caricaturesque way.

A more viable critique explains legalese as an institutionally entrenched mechanism that, on a

subconscious level, enables legal professionals to feel “in no way inferior” to other
professionals.17 Not only status but power also flows from language as surely it does from might
or money. The power of legal language is extraordinarily strong as it is backed by the legitimacy
and sanctions of the state. The “frequently obscured persuasive, argumentative and coercive
levels inherent in the writing of legal texts,” also serve to legitimize the powerful by intimidating
the powerless.

This takes on a greater urgency in the Indian context, where it frequently provides a garb of
legality to strongmen and others with socioeconomic power. They are often able to manipulate
and repress the common populace into obedience through the assistance of those well versed
with the intricacies of the legal system and the law of the country. The inability of the common
populace of the country to manoeuvre the legal system and seek remedies for wrongdoings
further exacerbates the situation. It is thus suggested that the institutional preference for legalese,
especially in the Indian context, arises from its role in placing the legal profession at the centre of
an alternate network of authority, composed of powerful political and financial actors who can
subvert the rule of law from within the legal structure.

2. Learning and Acculturation in the Law

Michael Stephenson, 'Harry Potter Language: The Plain Language Movement and the Case against Abandoning
16

Legalese' (2017) 68 N Ir Legal Q 85, 87.

17
Robert W Benson, 'The End of Legalese: The Game is Over' (1984) 13 NYU Rev L &Soc Change 519, 570.

12
The previous explanation for the prevalence of legalese depends either on legal professionals
exhibiting a clearly malicious or at least selfish attitude, or on legalese being an institutional
habit, fostered in individuals without any deliberate plan or purpose. Granting that the first
possibility is realized in some cases, the latter case is likely much more common. However, the
explanation in the latter case must work at a closer level to illuminate useful solutions.
Specifically, it is important to pay close attention to the role played by the channels of
acculturation in the legal profession.

It has been observed that the lack of care by institutes of legal education to sufficiently or at all
teach the art of legal writing leads to students adopting the most ostentatiously distinctive legal
jargon in order to be perceived as experienced legal writers. This ends up further increasing the
density in legal prose of elements that alienate ordinary readers, while at the same time
decreasing the clarity, concision, and precision that characterizes good legal writing.

Secondly, Justice Scalia has contended that legal education often uncritically emphasises
judgments in ‘hard cases’ where legal reasoning is at its most tenuous and rhetoric plays the
greatest role. This inadvertently teaches students that legal reasoning is about “playing king —
devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind” by
using “fictions, subterfuges, and indirection”.18

Thirdly, it has been pointed out that the general public often judges the quality of legal work by
its verbosity, complexity, and other irrelevant traits. It has also been observed that there is low
public awareness of and tolerance for the ambiguities and normative dimensions inherent in the
very nature of legal argumentation. This may lead to legal professionals as a group having to
necessarily resort to using legalese in order to vest their arguments with public legitimacy.

Finally, others pin the persistence of legalese on mundane factors pertaining to the complexities
to altering entrenched behaviours, such as inertia, perceived necessity, and insecurity. Inertia
refers to the uncritical adoption of the established style usually employed by lawyers, which is
often inculcated in law schools. Perceived necessity often motivates lawyers to resort to legalese
because they fear that departing from traditional language and style may lead to defective
drafting and the spectre of professional negligence. Lastly, insecurity may play a part in the

Antonin Scalia et al, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., Princeton
18

University Press 1997) 3-21.

13
continuance of legalese because the pace of modern legal practice reduces the time available to
research new ways of expressing old ideas and many consider it safer to stick to older ideas.

D. WAYS OUT

Supposing that the above explanations taken together are adequate for guiding at least basic
reform so as to remove professionally entrenched barriers to legal awareness, we may group the
strategies available into roughly two sorts: short term ameliorative strategies that may be adopted
by dedicated individuals or groups within the profession, and structural reforms that require
cooperative and even formalized action on the part of the profession and the public.

1. Short-Term Amelioratives

A number of useful recommendations come from scholars attached to the ‘Plain Language
Movement’, which has had some success in the United States. One may easily employ
techniques such as avoiding complicated terms, Latin words, multiword prepositions like
pursuant to and prior to, and using active voice so as to rectify the worst aspects of legalese,
without any sacrifice on accuracy, certainty, or precision. Almost all of the suggested rules and
procedures for plain language legal writing are applicable to writing of any kind but it is
instructive to see how often they are neglected in legal texts. Stock “plain language” tips such as
writing shorter sentences, with fewer double negatives, passive constructions, nominalisations,
and embedded clauses suffice at least to treat the most obvious symptoms of the problem.19

Individualized linguistic reform has its limitations as well as detractors. For instance, it has been
argued that simplification of the language of an insurance policy or contract may sometimes have
unexpected and undesirable effects. In particular, Professor Uriel Proccacia has advised against
linguist reform on the ground that linguistic obscurity may benefit disadvantaged litigants. 20 He
claims that in certain countries, such as the United States, judges tend to rule in favour of
individuals and against corporations when the obscurity of contractual language is at issue
because of a rule of law known as contra proferentem rule, which states that an ambiguous
provision in a written document will be construed more strongly against the person who selected

Brady Coleman, ‘Are Clarity and Precision Compatible aims in Legal Drafting’, (1998) Singapore Journal of
19

Legal Studies 376 (Dec), 380

20
Brenda Danet, ‘Language in the Legal Process’ (1980) 14(3) Law and Society Review 445, 482.

14
the language, and warns that linguistic reform will probably lead judges to hold individuals more
strictly to contractual language.

However, such an analysis is not very relevant for two reasons. Firstly, it applies even at absolute
face value only to a very limited set of cases, and likely does not at all hold true for the many
other areas of the law where unaided laypersons are bound by legal rules they do not understand.
Secondly, even in the areas of contract law where such analysis purports to apply, it neglects to
account for the many ways in which complexity of legal language discourages most lay readers
from reading, understanding, and where necessary contesting contracts in the first place.

The more substantive critique of linguistic reform contends that legalese makes use of certain
legal concepts whose own history of usage gives them their respective peculiar meanings, and
which therefore cannot be translated into ‘Plain Language’. What this also misses is that not all
the intricate historical details of a concept in any given legal text need to be translated into ‘Plain
Language’ at all, but only such implications of the concept that the text is making use of. This
may be accomplished in several ways, but effectively not by individuals or specific groups.

Furthermore, once linguistic reforms are introduced, its functioning would be enough to counter
the perceived necessity of legalese for the integrity of the legal system and contractual
obligations. This is because the supposed “lacunae” that might be created due to the
simplification of laws and contracts can be easily filled by the interpretation of judges who look
at the parties’ objective intentions or “the meaning which the document would convey to a
reasonable person” in cases of contracts and the drafter’s intention in cases of legislations. 21
However, factors such as insecurity and inertia that contribute to the perpetuation of legalese can
only be tackled with structural changes.

2. Possibilities for Structural Change

It has been argued at length, here as well as elsewhere, that legal language is not any longer a
contingent characteristic of an essentially distinct legal practice, but currently exists in a
mutually constitutive relationship with the legal profession. Given this, it is reasonable to expect
that the most enduring reforms would require concerted institutional action to execute.

Matt Keating, 'On the Cult of Precision Underpinning Legalese: A Reflection on the Goals of Legal Drafting'
21

(2018-2019) 18 Scribes J Leg Writing 91.

15
At the simplest level, some real change may result from efforts such as the teaching of clear and
precise writing in institutes of legal education. As noted above, legal language is not necessarily
characterized only by its unappealing aspects, but may, if taught and deployed well, serve as a
model for aesthetic and functional finesse in writing.

Secondly, initiatives for improvement in legal writing ought not and cannot be confined to
academia, but, in order to be successful, must be adopted at the beginning of the legal pipeline.
An excellent path to ensuring this may be through the ‘Drafting of Law in Plain Language Bill’,
introduced in Parliament in 2018, which mandates that “all Government Bills and Acts be
drafted using plain, clear and concise language in order to maximize readability, eliminate
ambiguity and ensure compliance through easy interpretation.” 22 Much guidance on how this is to
be accomplished is provided within the Bill, while more may be taken from the advice provided
by experts from the Plain Language Movement.

Third, it must be acknowledged that the major part of the law is developed not in the statute itself
but in subsequent judgments. It is therefore necessary for any successful reform that judges,
including and especially in courts of record, take care to use plain language in their opinions
wherever possible. This must involve not only clear writing, in ways specified above, but also
reducing verbosity and proliferation of wholly concurring opinions. It would also be advisable to
add a headnote summarizing the facts, judicial reasoning, and decision in at least judgments
dealing with issues of public and criminal law. Finally, judgments must be translated as quickly
as possible into regional languages, a process that has already begun.23

Fourth, because laypersons are regularly rendered vulnerable due to the complexity of legal
language in their capacity as consumers of products and services offered by legally well-advised
corporations, it has been suggested that a plain language law based on subjective standards and
limited to injunctive relief for enforcement would satisfy all parties. This would provide
corporations and other commercial entities with the opportunity to come up with their own ways
of simplifying their transactions to make it more accessible for consumers while providing

22
The Drafting of Law in Plain Language Lok Sabha Bill (2018-19) [236].

Bar and Bench, ‘Supreme Court judgments to be made available in Regional Languages’ (Bar and Bench, July 3
23

2019) <[Link] accessed 22 September

2020.

16
sufficient protection to corporations from a deluge of lawsuits demanding exorbitant damages for
breach. It could protect consumers from plain language violations in standardized contracts and
from gross violations in individual contracts, while shielding creditors and corporations from
excessive liability. While being a relatively mild measure, it might be more feasible than other
extreme proposals because language usage can only be changed over many years, not
instantaneously.

Finally, any successful programme for reform aimed at increasing legal comprehension must
help individuals through their perhaps most frequent and intimidating encounter with the law:
dealing with governmental bodies. Particularly instructive in this regard is the success of the
Plain Writing Act, 2010 in the United States. 24 Passed as a result of several years of activism, this
Act requires all federal agencies to adhere to specified Plain Language Guidelines in their public
documents and websites; train their staff in using plain language; and designate a senior official
to oversee the implementation of this process. Agencies are also required to prepare and publish
annual reports detailing measures undertaken to comply with the Act. This Act may serve as a
model for similar Central and State legislation in India, in order to demystify legal processes
whose complexity all too often discourages necessary civic engagement.

E. SUMMING UP

As argued, the two traditional understandings of legalese are both inaccurate, at least with
respect to the Indian situation. The complex and seemingly obfuscatory nature of many legal
documents is very certainly not a wily ploy by lawyers, judges, and bureaucrats, to maintain a
hegemonic status, as some vehement critics seem to think. Nor, however, can it be dismissed
merely as an unfortunate but unavoidable and relatively unimportant vice manifested in some
legal documents. The truth of the matter, as things stand in India, is that the style and the
substance of legal discourse are closely intertwined to create the authoritative legal community.

However, the legal profession would be not weakened but strengthened if it were to transition to
a more accessible style of communication. This would be because the increase in transparency
would likely enhance its public legitimacy, enable it to readily detect and correct instances of
faulty reasoning, as well as save the force of law from being misused by powerful external actors

24
Plain Writing Act, 2010 (United States).

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with the help of a very few unscrupulous internal ones. All of this is apart from the simple rise in
professional satisfaction likely to result from easier and shorter documents to read and write.

What this requires is concerted action at both the individual and institutional levels. The
legislature, the executive, the judiciary, and legal academia would have to change certain
longstanding behaviours. A crucial advantage in the Indian situation is that we already possess it
from the case of other countries, especially the United States, both guides to making, and
evidence for the effectiveness of, such reform. The corresponding hindrance is the vast diversity,
amounting to stratification, of the legal profession in India, which ensures that the job is both
complex and seemingly confounding. However, if it is achieved, the Indian legal profession will
no longer be susceptible to the charge of acting like the Emperor Nero, who was used to “posting
edicts high up on the pillars, so that they could not easily be read.”

REFERENCES

1. Dhiraj Kumar Mishra, ‘Awareness of Consumer Rights and Responsibilities in India:

Prospects and Challenges’, (2018) 9 Indian J. L. & Just. 39.
2. Brenda Danet, ‘Language in the Legal Process’ (1980) 14(3) Law and Society Review
445, 482.
3. Robert W Benson, 'The End of Legalese: The Game is Over' (1984) 13 NYU Rev L
&Soc Change 519.
4. M I Sastri, 'Legalese Revisited' (1988) 80 Law Libr J 193.
5. The Print Team, ‘Supreme Court’s nearly 500-page order on Sec 377: Are India’s judges
most erudite or too verbose?’ (The Print, 7 September 2018) <[Link]
point/supreme-courts-nearly-500-page-order-on-sec-377-are-indias-judges-most-erudite-
or-too-verbose/113607/> accessed 20 August 2020.

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