To talk about the importance of clarity in legal writing, nothing could be more appropriate than to start with this quote from Stendhal:
WHEN LAW IS A LITERARY PROFESSION OR WHEN WITHOUT CLARITY IN WRITING THERE IS NO LAW.
Stendhal wrote that sentence above, despite what we might believe today, without any ironic intention, because in those years everyone recognized the excellence of good code writing. It was a maxim that legal documents had to be well written, and so it is understandable that Alfonso X “the Wise” praised men of law. Writing a novel in an attempt to make it resemble a code might be more or less appealing, and of course, when it comes to style, everyone had and has their own taste, but it was indisputable that appealing to the code meant appealing to rigorous writing without decorative flourishes that add nothing to the story. Stendhal himself, in a letter to Balzac, said that every day he read at least two pages of the Civil Code “to fix my style.” The experiment was undoubtedly very successful, as today no one doubts that the author of The Charterhouse of Parma and The Red and the Black is among the greatest writers in world literature. Hemingway wanted to do the same, but it was not easy for him. Lampedusa, the author of The Leopard, held him in high esteem, and Leonardo Sciascia (both Sicilians, incidentally) felt a true adoration for the writer, to whom he dedicated a book with a title that left no room for doubt. Jean d’Ormesson, who was not given to praise, except for himself, considered that there were only two works that had contributed to the class struggle in his time: Stendhal’s The Red and the Black and Karl Marx’s Capital. For his part, Stefan Zweig passionately dedicated one of his well-known biographies to him. Fortunately, none of them, nor many other great writers who “adored” Stendhal, thought of reading the codes of their time to establish their style, let alone any other legal writing. Those were different times, and what was a virtue in Stendhal would not be so at all for anyone who wanted to do so today. This is undoubtedly something that lawyers, judges, and legislators alike should reflect on deeply.
Not long ago, in a well-known interview, the recently deceased U.S. Supreme Court Justice Ruth Bader Ginsburg said that the legal profession should be a literary profession and that the best lawyers have always seen their profession as an art as well as a craft. She did not say it, obviously, but I have no doubt that by the word “art” she was referring above all to writing, and it is not surprising since, according to her own account, among the teachers who influenced her in high school was none other than a not yet well-known professor named Vladimir Nabokov. It must have been quite a luxury!
Today, more than ever, writing well, which translates into being clear, assertive, making the arguments understandable, ensuring that the conclusions are conclusions derived from the reasonableness of our argumentation and not from the course plotted beforehand, understanding the arguments of others, because although one can be right, one can never be “completely right” and get ahead of them, and all this, in an intelligible way, without artifice and, if possible, with a little humor and a pinch of “self irony”. It sounds like an easy recipe, but it is not, which does not mean that we eliminate it from our menu.
Clarity in legal and all other writings, simplicity in expression, conciseness, effectiveness, subtlety, fluency that, not to leave the world of cooking offers the cooking of pasta “al dente” and the ability to, in the words of Husserl, “go straight to the object” and in other more popular words “get to the point”, become essential when drafting any legal document, be it a legal opinion, a contract, a doctrinal thesis or any procedural document, let alone a judgment!
It is clear that it is not a matter of expressing a wish, but rather of vindicating the need for good writing that allows, as Ginsburg says in the aforementioned interview, “that no one has to read them [my sentences] twice to understand their meaning”. More than an expression of good will, clarity in legal writing is a lawyer’s obligation to his or her client or to anyone who might read his or her writing. To the extent that this is not the case, he is not fulfilling his professional duty; to the extent that graduates leave the university without the ability to write correctly, the universities are not fulfilling their obligation, and to the extent that the professional associations do not sanction or supervise the writings of their members, they are not fulfilling their deontological obligation either.
Beyond any claim about clarity in legal writings (there are many other more appropriate places for this), it is about recording the obligation that every lawyer has to be implacable with the result of his writings and in each case ask ourselves if we have been able to express correctly what is the object of our writing, to which legal question we are answering both to support it and to refute it; How has the same or a similar case been solved in other occasions and why in our case it should be applied in the same sense or in the opposite and, if not, the writing does not comply with what it is intended for, that is, in Schiller’s words, it does not comply with that “the richness of the content lies more in the subject than in the object“.
Writing well is not a whim of a few academics, it is an obligation and one of the most important in our profession. And of course, it is not a question of imposing a way of writing well, one thing is good and another is correct, that is to say that it fulfills its purpose as a text. It is not at all a question of style, far from it, I have already said that, as the truth, to each his own, this goes with the taste and when it is one’s own and not a simple copy, it has to do with what each one is; It is something that goes further, it is the renunciation of baroque phrases where they do not correspond, the search for meaning in the things that are said, the renunciation of the torrent of ideas to see if one is “the good one”, the flight from misplaced rhetoric, from double meanings, from the ambiguity that often sneaks in, so many times inadvertently, in too many writings. Above all, it is, above all, the full awareness that one writes with the client in mind, paying full attention to the reader, the other party or the judges who must not only read, but understand and, hopefully, also share.
Every time we write to impress, we move away from right.Every time we write thinking of ourselves and not of those who have to understand us, we are mocking the spirit of law; every time we play at ambiguity, we make law a game and not our profession; every time we inflate our writings with hot air that as soon as we put the point will have already cooled down, we are betraying ourselves as lawyers and jurists; every time we obscure what should be clear, we show our weakness as men (and women, for that matter) of law; and every time we force another to read us more than once to understand what we mean, we are not demanding of language what Leibniz demanded of it, that it be “the most suitable instrument for the communication of thought“; every time we are equivocal, it is we who are getting it wrong and what is worse, we are not living up to what is expected of us as lawyers. The issue of clarity in legal writing seems to be no small matter.
There is no doubt, we have the obligation not to forget it: the legal profession is a literary profession or, in other words, without good writing there is no Law, in capital letters.
