Difficulties in law-text reading

The degree of explicitness and specificity with which the answers were stated in the text varied from one question to another. According to the hypothesis on law-text comprehension, the result on any par-ticular question should be dependent on the similarity between the posed question and the law-text. To test this hypothesis, therefore, I investigated the relation between the difficulty of the question, on the one hand, and the implicitness of the law-text in relation to the posed question and its specificity, on the other. I listed the questions in order of increasing difficulty, and then drew up one rank order for those who were given the original law-text and another for those who read the alternative text. For each text-variant, the implicitness of the relevant part of the law-text could thus be described. This analysis clearly supports the hypothesis that there is a correlation between the difficulty of the question and the implicitness and specificity of the law-text. The questions which were found easiest were the ones where the case as a whole was explicitly formulated and also specified in the law-text. The most difficult questions were the ones where the case was implicit, i.e. given as negative information in the law-text.

The same patterns are found for both the original law-text and the alternative text.

I also analysed the answers given with regard to the two main phases in the reading process described in the model, the search phase and the conclusion phase. I separately described the location in the law-text and the direct answers given to the questions, i.e. marked alternative and commentary. The answers can thus be divided into four categories:

1. Correct in search phase. Correct in conclusion phase.

2. Correct in search phase. Incorrect in conclusion phase.

3. Incorrect in search phase. Correct marking of alt. and commentary.

4. Incorrect in search phase. Incorrect marking of alt. and commentary.

Table 7.7 shows the distribution of the answers among these four cat-egories. The figures indicate the average percentage of given answers (non-responses excluded) for the fourteen questions. Percentages are given for all subjects tested and also divided into those who had the alternative text and those who had the original text.

Considering the total average percentages we find that the major-ity – i.e. 61 per cent (57 per cent plus 4 per cent) – of the given answers were correct in the search phase. We can also see that of those who had managed to locate the answer correctly in the law-text, only a minority drew an incorrect conclusion. Of the answers 4 per cent came under category and 2. 39 per cent of the given answers were incorrect in terms of locating the relevant section of the law-text (categories 3 and 4). In many cases – 24 per cent of the given answers –, however, the subjects managed, despite failing to locate the answer in the law-text, to mark the correct alternative and give an acceptable commentary.

These answers cannot, however, be regarded as correct in the conclu-sion phase as this must be related to correctly locating the relevant section of the law. If we then compare the figures for those who were given the original law-text and those who had the alternative text, we do indeed find a higher percentage of correct answers among the latter (category 1). As to their distribution among the four categories, how-ever, the figures for O and A show similar patterns. The conclusion that can be drawn from this analysis of the answers with regard to the Table 7.7 Answers in relation to the phases of the reading process. Average percentages for the fourteen questions. The figures indicate the percentage of all given answers (non-responses excluded). They are given for all subjects, taken together and divided into O-text and A-text readers (Table 10 in Gunnarsson, (1984: 97)

Note: Ph. – Phase, Concl. – Conclusion, Alt – Alternative, Com – Commentary,  C – Correct,  C – Incorrect

phases of the reading process is that the main difficulty the subjects experienced was locating the answer in the law-text.

In order to get a better picture of what makes law-text reading dif-ficult, I carried out a qualitative analysis of the incorrect answers.

This analysis showed that the main difficulty for the reader is to con-nect his or her mental representation of the point of departure and the reading purpose with the law-text. Readers tend, e.g., to give a more concrete answer than they should. They tend to locate the answer in an incorrect specific rule instead of in a correct general rule. The ana-lysis also shows that the difficulties experienced when reading a law-text lie not in the understanding of the words as such, but in realizing their relevance to the case in question. In all groups of subjects and for both texts the same types of difficulties were found, though the proportions differed.

7.8 Discussion

The investigation of law-text comprehensibility presented in this chap-ter is original both in chap-terms of its solid theoretical framework, which combines psycholinguistics, cognitive psychology and text linguis-tics, and its experimental approach, involving a systematic rewriting of 16 paragraphs of a law-text. The investigation further differs from most experiments in its testing methodology, i.e. that comprehensi-bility was tested by means of cases, which the subjects were asked to solve (cf. discussion in 7.1).

The experiments with the Joint Regulation Act presented in this chapter point to the importance of the pragmatic text levels – per-spective and function-orientation – for law-text comprehensibility. It is my conclusion, also, that these results can be generalized to other laws and also to other action-oriented texts. The changes I made to the Joint Regulation Act for the main experiment substantially increased its comprehensibility. The alternative text was still not easy, however.

This text seems, as was suggested earlier, to have compensated the reader more for a lack of trade union experience than for a low level of education or a lack of law-text knowledge. This might be explained by the fact that the alternative text – though closer to a citizen perspec-tive – is still quite similar to the original law-text. The text structure has been changed within the rules, but not between them. The focus on aspects differs in the alternative text, but the choice of rules and facts has not been changed in any radical way. The main conventions for law-texts cannot be said to have been broken, and a more correct description of the perspective achieved in the alternative text would therefore be a law-conventional citizen perspective.

In order to further improve law-text comprehensibility, the neces-sary next step must be to further adapt the text to a natural citizen perspective. As we saw, the explicitly stated and the concrete and spe-cified all facilitate mental connections between the reader’s point of departure and the law-text. The choice of rules, facts and words must therefore be further analysed from the viewpoint of the citizen’s use of the text. The test results also point to the difficulty readers have in finding the relevant sections of a law-text. The next step towards a more comprehensible law-text must therefore entail a more radical restructuring of the text, including a restructuring of the main ele-ments of the law, the sections and the rules. Such a restructuring must be based on closer analysis of the reading situations and reading pur-poses of different addressee groups.

7.9 Conclusions

To conclude, I wish to stress that the theory proposed in this chap-ter relates to a wide range of texts. A similar pragmatic analysis of text function and the situated reading and comprehension is relevant for most action-oriented texts. In order to understand why texts are comprehensible for some readers, and incomprehensible for others, we need to acknowledge both the text’s function-orientation and the per-spective of its various reader groups.

Notes

1. The study is presented in full in a monograph in Swedish (Gunnarsson, 1982). It is also presented in English in an article in TEXT (Gunnarsson, 1984).

2. Lag om medbestämmande i arbetslivet (1976: 580), the so-called Medbestämmande-lagen, has also been translated into English as ‘The Co-Determination in the Workplace Act’.

3. In an appendix to the article in TEXT (Gunnarsson, 1984), three examples of the application of the schema to the Joint Regulation of Working Life are given.

4. This is an extract from a translation into English of the alternative version of sixteen paragraphs of the Swedish act Medbestämmandelagen (Gunnarsson, 1984:

87–88).

5. This is an extract from a translation into English of the sixteen paragraphs of Medbestämmandelagen which were included in the comprehensibility experiment (Gunnarsson, 1984: 89).

8

In this chapter I will explore the drafting of legislative texts from a combined cognitive-rhetorical and sociolinguistic perspective.

Problems of law-text comprehensibility discussed in the previ-ous chapter will here be related to the legislative writing process.

In order to investigate this process, I observed the drafting of three pieces of Swedish consumer legislation at different stages. Using an ethnographic methodology, I followed as an observer the discussions at the various committee meetings held over a period of four years.

On the basis of this study I will discuss legislative drafting in rela-tion to the stages of the writing process, the professional composirela-tion of the committees involved, the various contextual frameworks, and the targeted readers.¹

Focusing on the relationship between the writing process and text comprehension, I will make the following claims: (1) I will claim that the social and societal conditions under which texts are produced result in less or more readable texts, (2) I will claim that an analysis of a sustained collective writing process, such as law-drafting, needs to consider both cognitive-rhetorical and sociolin-guistic parameters, (3) I will claim that a critical sociolinsociolin-guistic perspective on law-drafting should include an analysis of the tar-geted readers.

In the first part of the chapter, I develop my three claims. In the second part, I elaborate on the societal constraints on legal writing, dis-tinguishing between general constraints, e.g. legal, political, linguis-tic, cultural, and specific constraints. Parts 3–5 present and discuss the investigation of the legislative writing process. In part 3, I sum-marize my results in relation to the societal constraints on Swedish lawmaking. In part 4, I analyse the drafting process and summarize my observations in relation to cognitive and sociolinguistic theories on writing. In part 5, I relate the process to the end-product, i.e. the text. I analyse some paragraphs of the law-texts, the drafting of which I had observed. In the concluding part (6), I discuss the consequences for comprehensibility of a sustained, collective writing process, as law-drafting is.

8.1 Introduction

There is no doubt about the fact that every text reflects the situation in which it is produced. The question is, however, what environmental factors are the most influential and in what ways these are revealed in the final text. In this chapter I propose that conditions related to the writing process as such exert a great influence on texts. In the psy-cholinguistic laboratory we can quite easily isolate linguistic factors.

Academically, we can see the writing process as a pure text-formation and discuss its end result – the text – as a mainly linguistic product.

In reality, however, the linguistic factor is very much intermingled with other factors. Writing, or rather text production, is constrained by so many social and societal factors that the linguistic factor seems to be a minor one.

As mentioned above, my first claim in this chapter is that the social and societal conditions under which texts are produced result in less or more readable and comprehensible texts. Problems of text compre-hensibility are thus related not only to the writing process as such, but also to the composition of the working group and the various context-ual frameworks in which the text is constructed. The social and pro-fessional affiliation of those directly involved in the writing process is thus important, as are the social stratification and ideologies within the local linguistic and cultural community. This means that it ought to be worthwhile for scholars interested in comprehensibility issues to look into the writing process and analyse it in its total context. To some extent at least, I believe that the limited results achieved by lan-guage reform efforts in many cases are due to the fact that these efforts have focused mainly on end-products. The writing process has less often been connected directly with text comprehensibility.

My second claim is that an analysis of a sustained collective writing process, such as law-drafting, needs to consider both cognitive- rhetorical and sociolinguistic parameters. An assumption guiding this study has been that law writing has similarities to other types of text writing, implying that it is just one particular case of writing. Just as there are a great variety of situational factors surrounding writing – why, when, to whom and in what form people write – the writing process varies.

Writing law-texts is indeed a far cry from many briefer types of text writing. It does, however, have similarities with other sustained writing of more formal prose. If different types of text writing were modelled on a continuum from formal and elaborate writing at one end to casual and brief writing at the other, law writing would indeed be placed close to the formal, elaborate end. There are, however, many other types of text writing that would be assigned similar positions.

My starting point was therefore that law writing could be described by models similar to those describing ‘normal’ text writing, i.e. using cognitive-rhetorical models. Though more formal and elaborate, the writing components involved in writing a law-text were assumed to be the same as those involved in writing a poem, an article, a letter, or whatever. The ideas must be generated, organized, and translated into texts. The text must be evaluated and revised.

As this in-depth study of legislative writing has revealed, however, a sustained collective writing process, such as law-drafting, cannot be understood without an analysis of the social and societal contexts.

Social variables at group level determine the writing process, e.g. the professional and social background of the members of the drafting committee and the formal and informal social order within the group.

The writing process and its end result are also constrained by the vari-ous contextual frameworks within which the drafting process takes place.

The study discussed in the previous chapter (Chapter 7) showed the importance for text comprehensibility of perspective and function orientation and of explicitness and concretion. With these results as a background, the hypothesis I put forward in this chapter is that the court perspective, function orientation, implicitness and abstractness of law-texts can to a certain extent be explained by the particular con-ditions under which these texts are produced.

My third claim is that a critical sociolinguistic perspective on law-drafting includes an analysis of the targeted readers. As was revealed in Chapter 7, the main difficulty for a reader when trying to apply a legal text to a situation experienced is not caused by the text sur-face – i.e., by the syntax, the morphology, or the functional words – but by deeper text levels. An action-oriented text comprehension is thus primarily correlated to the function orientation and perspective of the text and not to the syntax and vocabulary. If we want to make legal texts radically more comprehensible, we must therefore tackle the problem caused by their abstractness and implicitness. The great problem for the lay reader has always been and still is that so little is actually said in the text and that what is said is presented in a way that suits the needs of the courts, not other groups of readers. The lack of specified content in legal texts makes them incomprehensible, and this I think is not only a legal problem but also a linguistic and socio-cultural one. As I see it, this problem is therefore to a large extent cultural, i.e. related to attitudes among professionals and experts to comprehensibility issues and to their readership. A critical sociolin-guistic analysis of law-drafting thus needs to consider who the writers actually view as their targeted readers.

Tackling the problem of the abstractness and implicitness of legal texts is thus very difficult, which is probably one of the reasons so little – actually, nothing – has been done about it. It is no doubt important to analyse and discuss these traits; however, it is impossible to discuss them in isolation. The total situation in which legal texts are produced must be taken into consideration. This leads us to the very heart of the language reform problem, which advocates of clear language all over the world have to face. Language reform is determined by the will to reform and the resources spent on it. There are, however, many other factors as well. The language issue can definitely not be dealt with in a vacuum. On the contrary, it is inextricably bound up with a lot of other issues. Work on language reform is constrained by a multitude of fac-tors. Let us call them societal factors, or societal constraints.