Comment: Illiteracy and the law

The UK Supreme Court has sought to resolve a potential contradiction in previous rulings about the wording of contracts. In one ruling (Arnold vs Britton) it was determined that commercial interpretations should not override literal (called ‘natural’ by the court) interpretations. However, in another case (Rainy Sky vs K Bank), common sense business interpretations were preferred. Now, in Wood vs Capita Insurance Services, the court has concluded that either path may be taken, depending on the context of the clause. The court stated that there was a duty to consider the quality of drafting, the sophistication of the parties, the inability of one party to foresee consequences not in their interests, and also that drafting may have been a reflection of a compromise where neither party could find more precise words.

This case illustrates very clearly how legal training fails to impart linguistic skills. Much about what a lawyer is required to do involves the precise use of language, but little of their professional training involves syntax, punctuation and grammar – let alone usage of the language they have to operate within. Their historical origins as a scribe meant that language skills were once critical to their role, but as public literacy grew they altered their role so that they were the gatekeepers to the justice system. Rather than be the interpreters of language, their jargon was invented to make laws opaque to the uninitiated. Today their lack of linguistic skills is coming back to bite them and leading to arbitrary, and sometimes contrary, conclusions. English is a particularly subtle and sophisticated language, with numerous apparent synonyms and antonyms and grammatical pitfalls for the unwary. There is, outside poetry, only ever one principal interpretation for any phrase or sentence. It does depend on context and tone. But primarily it depends on punctuation, choice of words, tense and modern grammatical usage. Things well outside the natural skill set of a lawyer – if only they knew it.

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