I once threw a book across the room in annoyance and disgust. I might have done it more often, I suppose, were it not for my dubious but stubborn position that meaning can be had from almost all prose. But at that moment Derrida defeated me, I recall. It’s no secret, and presumably no shame, that I prefer the analytical school to the post structuralists, when it comes to philosophers. Clear writing seems … better writing.
(I pass over the argument that it’s hard — perhaps impossible — to tell us something new in “clear writing.” That “clarity” is bred of familiarity, in essence. This might be something for another day. Maybe not a Friday.)
Which brings me smartly round to the perennial subject of plain language and the law. Derrida would laugh at me, the book thrower, for having joined a profession notorious for obscurantism. Part of our problem, of course, is that we’re conservative: that’s one whole point of law: the past is the guide to the future, allowing for fairness, planning etc. This means that we get stuck on heretofores and hereditaments, because we know (or think we know) that when we incant our proven phrases, they inevitably cause judges to move just so.1 (Would it be right to say if not with then “near” Arthur C. Clarke that “Any sufficiently advanced legal system is indistinguishable from magic”?)
Another and more obvious part of our problem is that our legal thoughts are difficult thoughts sometimes, and it’s not always easy to say them “plainly.” I want to have some fun with that notion today. I’m inspired by Randall Munroe’s work. He’s the creator of the great comic, xkcd. He’s also had some fun of his own trying to explain complicated ideas simply, so simply, in fact, that his explanations use only the 1000 most common words in English.2
There’s no special magic to the 1000 word limit; although, it seems that if you’ve mastered the list, you can comprehend the majority of what most of us say to each other most of the time. What’s more difficult is to pick the right measure of popularity. I’ve chosen to stick with Munroe’s choice of contemporary fiction as the source of word frequency. The list is available on Wikipedia. I’ve done this in part because Theo Sanderson has gone to the trouble of creating a text editor based on that list, ensuring handily that your words are found within it.
So, inspired by Munroe, I’m going to try to translate some legal prose into popular prose. And I thought it might be an interesting challenge to tackle the Canadian Charter of Rights and Freedoms, or, at least, one or two bits of it. After all, this is a foundation document that we would want everyone to understand.
What follows is what I’ve managed for the title, the preamble and sections 1 and 2. Let me note at the start that there are 59 different words in this selection of text, of which 293 lie outside the top 1000 list, at least in their native form. Since these outlaws include “Canada”, “law”, and “rule”, we’re in for some difficulty. (The excerpt from the Charter can be made to pop up here for purposes of comparison.)
FOR PEOPLE WHO LIVE IN THE HOME LAND WITH THE SECOND BIGGEST AREA IN THE WORLD:
A VERY VERY IMPORTANT SMALL BOOK OF RIGHTS AND THINGS YOU ARE FREE TO DO
We believe that our home land is a good home land for people who believe that a great power made all things and who also believe that important writing made by people in the important state house is the only thing that can force us to do what we should do and stop us from doing what we should not do.
Our Very Very Important Small Book of Rights and Things You Are Free to Do makes a serious promise from the state to you that you do have the rights you can read about in this Book and that you are free to do the things that are set out in this Book. This is true even if a piece of important writing made by people in the important state house says it takes away some of these rights and things you should be free to do. But if there is a really good reason for taking away your rights and making you not free to do some of the things set out in this Book, and if that reason is the sort of reason that good and free people might say okay to, then that piece of important writing made by people in the important state house can carefully take away some of your rights and the things you should be free to do. This taking away must not be easy to do.
Everyone is free to:
(a) decide what is good and right for themselves and to deal with god in their own way;
(b) believe what they want to believe, think what they want to think, and say what they want to say, and say it out loud, in writing, or in any other way that we tell each other things;
(c) meet together with others in groups if the groups keep good order and don’t look like they are going to hurt others; and
(d) get together with any people they want.
Obviously this fudges a whole lot of things. “State” in the list probably doesn’t mean quite what I want it to mean. And I haven’t found the best way to connote law, having to resort to a rough and ready legal positivism instead. And then there’s the god thing in the preamble, which I edited to allow in atheists and agnostics. When it came to the s.1 limits, I clearly thrashed around.
Give it a go yourself. I’d love to see Slaw readers draft a constitution within such a tight frame.
Even our periodic brush-clearing ventures are clingy. So the “Short Forms of XYZ Act” always points to the equivalence between its prose and a bunch of bundled up long and winding forms of yore. ↩︎
assembly, association, belief, Canada, Canadian, charter, communication, conscience, democratic, demonstrably, freedom, fundamental, guarantees, including, justified, law, limits, media, opinion, peaceful, prescribed, principles, reasonable, religion, rule, society, subject, supremacy, whereas ↩︎