The process and its product

If we now look at the product of this collective writing process, we find a very abstract and implicit text. The content of the text constructed after viewing each matter from different sides and arguing for differ-ent perspectives becomes very wide. The texts are not made longer:

instead, the text content is hollowed out. For each rule the borderlines are described, but the essence is left unspecified.

As an illustration of these statements about the end-product, two sec-tions of the Consumer Services Act are reproduced below: Section 4, which deals with performance and materials, and Section 20, which deals with the remedying of defects.

Task environment

The comprehensibility problem

Collective writing process

Combining and interpreting by secretary Reviewing Editing

Construction of a text world Participants’

long-term memories Scripts Concepts

Goals

Checking antecedent, related and similar laws

Figure 8.2 Model of the law-writing process (Figure 3 in Gunnarsson, 1989: 101)

The Consumer Services Act

Section 4

The entrepreneur shall perform the service in a professional man-ner. Furthermore, he shall safeguard the consumer’s interests with due care and consult the consumer to the extent that this is necessary and feasible.

Unless it may be considered as otherwise agreed, the entrepre-neur shall supply requisite materials as part of the service.

Section 20

The consumer is entitled to demand that the entrepreneur rem-edy the defect if this does not entail inconvenience or expense for the entrepreneur that are unreasonably great in proportion to the importance of the defect to the consumer.

Even if the consumer does not demand it, the entrepreneur may remedy the defect if, immediately after a claim has reached him, he offers to do this and the consumer does not have special grounds for rejecting the offer.

The defect shall be remedied within a reasonable time after the consumer has given the entrepreneur opportunity to do so.

The defect shall be remedied without cost to the consumer. This does not, however, apply to expenses that would have arisen even if the service had been performed without defect or, if the defect is due to an accident or other comparable event, expenses for the replacement of material which the consumer, in accordance with the contract concerning the service, has furnished and paid for.

This act, passed in 1985, is supposed to regulate its area of application in detail. If, however, we look closely at its sections we find that it is very difficult to grasp what is actually laid down in the law. The text is filled with abstract nouns and expressions containing indefinite pronouns, adverbs and adjectives. In Section 4 we find the abstract noun ‘interests’ and the abstract expressions ‘be agreed otherwise’,

‘in a professional manner’, ‘with due care’, ‘to the extent that this is necessary and feasible’, and ‘requisite material’. In Section 20 we also find many abstract nouns and expressions, such as the nouns ‘incon-venience’ and ‘importance’, and the expressions ‘unreasonably great’,

‘special grounds’, and ‘reasonable time’. Though these sections are easy to understand as far as the words used are concerned – i.e., the words are part of the vocabulary of the average adult – it is quite diffi-cult to know how to apply them in concrete situations.

The content is also hollowed out by the way each matter is viewed from different sides. The text of Section 20, e.g., goes back and forth between the consumer side (C) and the entrepreneur side (E). If we

look at its first paragraph, we can summarize the content as follows:

C is entitled to a, if a does not mean b for E. Even if a means b for E, C is entitled to a if b corresponds to x for C. The background of a text like this is a drafting process involving a constituent step that can be described as a multifaceted exploration of reality and a collective visualization of what might take place in the future (see Figure 8.1).

If we look further at the products of the lawmaking process, we find that the perspective of the text, the functional orientation, the vocabulary and the syntax are shaped to fit in with other laws, with antecedent and related laws. The Consumer Services Act was the first of its kind; Sweden had no act concerning consumer services before 1985 when the act was passed. It is, however, written in the same way as earlier civil laws, such as the Sale of Goods Act of 1905, the Consumer Sales Act of 1973, the Marketing Practices Act of 1975 and the Consumer Credit Act of 1977. Other civil laws will in turn fol-low the patterns laid down in the Consumer Services Act. The text proposed in the report of the drafting commission responsible for the House Sales Act (submitted in 1986) resembles to a large extent that of the Consumer Services Act. The two sections above, e.g., were used almost word for word. The principle accepted without debate among the members of the House Sales Act commission was that legal trad-ition should be followed in such matters. This is a general principle followed by Swedish drafting commissions: no interest is shown in structural or language reforms.

In the model in Figure 8.2 we can observe that the comprehensibil-ity box is very small and is placed above the reviewing phase. This is in accordance with my observations of Swedish lawmaking. Language issues, reader issues, text-functional issues and comprehensibility issues are hardly ever discussed by drafting commissions. They are not considered part of the construction of the text. Different interpreta-tions and different formulainterpreta-tions are not related to future reader categor-ies and functions. Different reading situations are not considered. No language experts are attached to drafting commissions. No language experts are consulted during the construction and editing phases.

Comprehensibility issues are regarded instead as something to be con-sidered at the very last stage of the process, during the final review in the ministry. Just before the text is printed, language consultants and other lawyers are asked to scrutinize it, i.e. the text surface. At this late stage only minor and superficial changes can be made – one or two sentences can be shortened, one or two functional words can be changed. There is, however, no scope for making the text more concrete and explicit.

From my point of view, the comprehensibility of legal texts is largely a matter of the amount of information in the text and the function

orientation of the information presented. These matters cannot be tack-led at the last minute: they must instead be considered from the very beginning. The text must be written for different reader groups, not only for the top members of the public sphere. Laws are not only read and used by highly placed lawyers, politicians, and heads of different public organizations, but also by trade union officials and local gov-ernment officers with varying levels of education and by laypersons.

In order to investigate the actual use of laws by legally untrained people, I initiated a study on the application of laws at local govern-ment offices.⁵ The aim of this investigation was to explore the use of laws by staff at different offices in five Swedish local authorities of different sizes. Altogether 208 local government officers answered a questionnaire concerning the width of their law application and the depth of their interpretation. Among these officers, of whom most had no legal training, 81 per cent declared that they used law at work. Half of these law users applied between 1 and 3 laws, and half between 4 and 16. 11 per cent applied more than 10 laws at work. We also asked them what types of law material they most frequently used at work:

law-texts, bills, precedents, commentaries, journals and other litera-ture. Of the officers 48 per cent reported that they ‘always’ use the law-text, 27 per cent ‘often’ and 13 per cent ‘sometimes’. I will not dwell any longer on this study, although, I can add, it presented new and very interesting results to the Swedish lawyers. What I wish to stress here, however, is that the law-text is read and used daily by many pro-fessional groups who lack legal training. These officials did not have any influence on the lawmaking, although they applied laws in their daily work.

Returning to the drafting process, my view is that if the compre-hensibility of legal texts is to improve, comprecompre-hensibility issues must be part of the construction of the text. Among the members of the drafting commissions there should be representatives of more distant, non-expert readers as well as the present representatives of the public sphere. (For example, language experts could represent the non-expert reader groups.) Comprehensibility problems could and must be given a larger and more basic role in the lawmaking process. The ideal would be a process more in accordance with the model in Figure 8.3.

In the model of the ideal law-writing process depicted in Figure 8.3, comprehensibility problems relating to reader, function and compre-hension play a much more important role than they do now. They come in at every stage of the lawmaking process, in the construction of the text, in editing and in reviewing. They are considered as parts of text content as well as of text surface. The comprehensibility prob-lems play a more prominent role in the writing process, and the reader

is brought more sharply into focus. Such an acknowledgment of the fact that comprehensibility issues are a part of text content is the next step that ought to be taken in the work of reforming legal texts.

8.6 Conclusions

The present study has shown how the problems of law-text compre-hensibility are related to the legal writing process. The social and societal conditions under which texts are produced result in more or less readable texts. In order to improve comprehensibility radically, it is therefore necessary to change the process.

This study has also pointed to certain similarities and differences between legislative writing and ‘normal’ text writing. In principle, a model of normal writing can be used to describe law writing. The main phases – text construction (planning), editing (translating), and reviewing – are the same. The differences are due to the collective writing of legal texts and the extremely sustained process involved.

In comparison with normal writing, the law-writing process entails a more marked and more conscious adaptation to the legal working group and also, indirectly, to the norms and traditions established

Task environment

Combining and interpreting by secretary Reviewing Editing

Construction of a text world Participants’

long-term memories Scripts Concepts

Goals

Checking antecedent, related and similar laws

Collective writing process The comprehensibility problem

- Reader - Function - Comprehension

Figure 8.3 Model of the ideal law-writing process (Figure 4 in Gunnarsson, 1989: 105)

within the public sphere of the communicative community. In the law-texts analysed this is shown by the legal perspective and the text’s function orientation. The collective, sustained process further means that the text is constructed as a result of negotiations between the members of the working group so that each question is viewed from different angles during the drafting of the text. This is reflected in the abstractness and implicitness of the text.

Notes

1. This chapter is based on an article published in Written Communication (Gunnarsson, 1989).

2. Fredrickson (1995) discusses the intertextuality of legal texts.

3. Cf. Habermas (1971).

4. See, for instance, van Dijk (1993), Fairclough and Wodak (1997) and Wodak and Meyer (2001).

5. A detailed presentation of this investigation is found in Gunnarsson and Edling (1985).