Legal Language: Features, Problems, and Plain Language Reform

Linguists have catalogued the recurring features that distinguish legal prose from ordinary written English. None of them is unique to law, but they cluster in legal documents at a concentration rarely found elsewhere, and their interaction compounds the cognitive load on non-specialist readers.

• Nominalisation: 'Effect a termination' for 'terminate', 'give consideration to' for 'consider'. Nominalisation buries the action inside a noun phrase, which then requires a light verb to carry the sentence. This makes the agent harder to identify and the sentence longer than it needs to be.
• Passive voice: 'The notice must be served' hides who must serve it. Deliberate use of the passive is a drafting strategy that redistributes obligation or blame. Habitual use is simply a stylistic inheritance from earlier models.
• Archaisms and Latin: 'Herein', 'aforesaid', 'said [noun]' as a determiner, 'inter alia', 'mutatis mutandis'. These persist because precedent documents are copied, because changing them risks new litigation over what the change means, and because they function as a professional tribal marker.
• Multiply embedded clauses: A single sentence that opens a condition, inserts an exception, restates the condition for the exception, and closes. Each layer adds a cognitive-load cost that accumulates for a non-specialist reader even when each clause is individually straightforward.
• Binomial and multinomial synonyms: 'Null and void', 'cease and desist', 'terms and conditions'. This doubling originally bridged Anglo-Norman French and Old English synonym pairs when both languages were in use in English courts. The pairs survive long after the linguistic need has gone.
• Sentence-final exceptions: Piling the conditions and exceptions at the end of a long sentence means the reader has already processed a main clause before learning that it applies only in specific circumstances. Placing conditions up front reduces misreading.

The modern form of legal English accumulated over roughly a thousand years of shifting political control, competing languages, economic incentives, and institutional inertia. Each layer added something, and almost nothing was ever fully removed.

1. Anglo-Norman layering (1066 onward)
   After the Norman Conquest, English royal courts operated primarily in Law French, while Latin was the language of clerical records and Old English persisted in local custom. Documents written for multiple audiences borrowed synonyms from all three languages, producing paired binomials like 'will and testament' (Old English + Latin) and 'breaking and entering' (Old English + Old French) that survive today.
2. Scriveners and payment by the word (15th–18th centuries)
   Professional document-preparers were paid by the length of what they produced. Padding documents with synonyms, repetitive recitals, and extended nominal phrases was straightforwardly profitable. Redundancies became conventions; conventions became templates; templates became precedents that no one dared to shorten for fear of inadvertently changing the legal meaning.
3. Precision and the fear of interpretive gaps
   Every ambiguous word in a contract or statute is a potential lawsuit. Drafters learned to close every gap by repetition, exhaustive enumeration, and hedging clauses. The result is text that is verbose precisely because brevity is risky: a short formulation may fail to cover a factual scenario that a judge will one day confront.
4. Professional gatekeeping
   Complexity creates dependence. A legal system that laypeople cannot navigate without help sustains the profession that navigates it for them. This is not a conspiracy theory; it is a structural incentive that has been acknowledged by legal reformers from Jeremy Bentham onward. The opacity of legal language and the status of the legal profession are not unrelated.

None of these historical pressures was malicious in isolation, and some produced genuinely functional results. The binomial 'goods and chattels' distinguishes real and personal property in a way a single word might not. But the aggregate effect is a writing system that serves lawyers better than the people it governs, and that gap is the engine of the reform movement.

Not all the opaque language in statutes is a failure of drafting. A significant proportion of legal vagueness is intentional. Courts need flexibility to apply fixed statutory language to facts that could not have been anticipated when the law was written. Words like 'reasonable', 'material', 'substantial', and 'undue' are vague by design. They are placeholders for the judgment of a fact-finder, not failures to say something precise.

The linguist's job in these disputes is to establish what the term meant to ordinary speakers at the time of drafting, using corpus evidence of actual usage. That is different from arguing for a particular legal outcome. A corpus search that shows 'reasonable' almost always modifies human conduct in the relevant register tells the court something about drafting intent without trespassing into advocacy.

The plain-language movement began in the United States in the 1970s, driven by consumer advocates and government officials objecting to incomprehensible insurance policies, mortgage disclosures, and government notices. The core argument was that a document the intended reader cannot understand fails its primary purpose, whatever else it achieves.

The US Securities and Exchange Commission issued its plain-English handbook for prospectus writers in 1998, requiring that the cover pages, risk factors, and summary sections of securities filings use short sentences, active voice, tabular presentation where possible, and no legal jargon that a retail investor would not encounter outside a legal context. The requirement was enforceable: submissions that violated the guidelines were returned for revision.

In the United Kingdom, the Law Commission has repeatedly identified unintelligible legislation as a justice problem and recommended simplification. The UK government's own drafting office updated its drafting conventions to prefer shorter sentences and active constructions, though UK parliamentary drafting remains among the most complex in the English-speaking world. In New Zealand, the Plain Language Act 2022 requires government agencies to write in plain language for public-facing communications and assigns oversight responsibilities to the existing Public Service Commissioner, making New Zealand the first country to legislate the obligation directly.

Critics of plain-language reform argue that simplifying statutory or contractual language sacrifices precision, and that what laypeople understand more easily is less accurate. Controlled studies consistently find the opposite: plain rewrites produce better comprehension scores with no significant increase in misapplication by legally trained readers.

Tiersma (1999) and Wydick's classic manual 'Plain English for Lawyers' (1978, repeatedly updated) demonstrate through before-and-after comparisons that the features most associated with incomprehension, nominalisation, passive constructions, and archaic vocabulary, can almost always be removed without changing legal meaning. The precision argument defends features that do not deliver precision so much as signal it to other lawyers, while failing the intended audience.

• Comprehension gain: Studies of jury instructions rewritten in plain language show correct application rates improving by 10 to 40 percentage points depending on topic and original complexity.
• Precision retention: Expert legal reviewers comparing original and plain versions find no significant increase in ambiguity or gap coverage, though they do sometimes flag that plain rewrites require more careful definition sections.
• Trust and compliance: Studies of consumer contracts and government notices find that people who can understand the document are more likely to comply with its requirements voluntarily, reducing enforcement costs.

Forensic linguists appear in legal language disputes in two main roles: as corpus-linguistic expert witnesses in statutory interpretation cases, documenting the ordinary meaning of a disputed term as it was used at the time of drafting; and as consultants on plain-language rewrites, advising courts, legislatures, or agencies on whether a proposed revision achieves comprehension without sacrificing legal effect.

The corpus linguistics approach to statutory interpretation gained traction in US courts from roughly 2010 onward, associated particularly with BYU adjunct professor Stephen Mouritsen and Utah Supreme Court Associate Chief Justice Thomas R. Lee, who also holds a distinguished lectureship at BYU Law. The idea is that instead of relying on a judge's intuition about ordinary meaning, the court should look at how many times the disputed word or phrase was used in a particular sense in a large contemporary corpus of written American English. The approach has been adopted in several state supreme courts and in a line of federal circuit court opinions, though the US Supreme Court has remained cautious about formalising it into doctrine.

The corpus approach does not answer legal questions. It answers the empirical question of how a word was actually used, which is one input into the legal question of what the legislature meant.

The honest limits of linguistic expertise here are important. A corpus search can document frequency and typical context of use. It cannot prove legislative intent, capture semantic change that happened after enactment, or resolve cases where the legislature knowingly used a word in a technical sense that diverged from common usage. The expert's job is to supply the empirical data, not to substitute linguistic judgment for legal judgment.