Pragmatism vs. functionality: The Secret to Clear Legal English

Paula Klammer
Oct 13, 2024
5 min read

Updated: Feb 3

“I want to speak fluently and write clearly,” says every legal English learner, always. Every single time I ask a potential new student my famous magic wand question during our discovery call, I get some variation of that answer, albeit sometimes with many more words.

But upon further inspection, I often discover that legal English learners have certain preset misconceptions about language in general and legal language in particular. And it's these preconceptions that often make it harder to truly master legal English.

That's why in our first biweekly webinar, we started from square one. We looked at what those preconceptions are and took a more informed look at how language actually functions, so that we can optimize our language learning process.

Essentially, we busted two myths and uncovered a truth about legal English that not only reshapes how we think about language, but also empowers us to use legal English more intentionally and effectively.

Here's the run-down:

I. Myth 1: Legal Language is Inherently Precise and Clear

If you're a Civi Law-trained lawyer or professional legal translator, you have very likely been trained within the framework of the Functional Theory of Legal Language (more info in this week's handout and webinar). This theory, which many adhere to whether they realize it or not, tells us that, because legal language is a specialized language for a specific purpose, it is inherently precise and clear.

The main tenet of the Functional Theory is that legal terms of art, when used correctly, leave little or no room for misunderstanding and interpretation. By using the "right words," we can control language and ensure clarity and precision every single time.

The problem? That's not only inconsistent with everything we know about how language works, but it's also plainly untrue. Look at the following example from our webinar:

I'm not at liberty to share too many details about the original. But what I can tell you is that it was written by a speaker of English as a foreign language and reviewed by someone else. The changes you see in tracked changes seem to be intended to "correct" the terminology, with a clear focus on terms of art and idiomatic expressions... you know, the stuff that clarity is supposedly made of under the functional theory. 😉

But even with those revisions, the text is still unfit and unclear. It takes several read-throughs to figure out what the author is trying to convey. This is because:

❌ Using terms of art does not necessarily ensure clarity if the text has broader cohesion issues.

❌ Using terms of art does not necessarily ensure clarity if the broader context of the text is unclear or the reader is left to infer too much information without the author's help.

The problem with this text is not that the author's native language is not English, it's that the author and reviewer are both parting from the idea that clarity is not up to them, but simply inherent in the language itself.

II. Myth 2: Legalese Renders Our Communication More Authoritative and Formal

This myth fails on many levels and we'll learn more about it progressively over the next few weeks. But, for now, suffice it to say that formality and legalese are like peanut butter and jelly. Sure, they can go together in a PB&J sandwich, but why eat a PB&J sandwich when you can have a gourmet meal instead?

Just like a clear, concise message can accomplish much more than overly complex language, choosing plain, direct communication can be far more satisfying and effective. We'll dive into the nuances later, but for now, think of legalese as the unnecessary filler—whereas simplicity is the key ingredient that makes everything easier to digest.

III. The Actual Truth About Legal Language

The truth about legal language is that clarity is not only not inherent in it, but it's also not where we're typically trained to look. So I propose we set the Functional Theory aside and embrace a Pragmatic view of legal language instead. (For my readers who are also linguists, yes, I totally am proposing we revive Pierce.)

Pragmatism applied to legal language shifts our focus to two simple aspects of language, and the better we understand them, the clearer our language usage becomes:

👉 The speech act itself:

Lawyers love to geek out about how the law shapes and creates things that cannot be seen or touched, but still shape reality. The example par excellence is company formation. Someone somewhere writes "Acme, Inc. is hereby incorporated..." and BOOM! Acme exists! You can't see it. You can't touch. But suddenly Acme is a legal person with rights and duties under the law. That's a speech act of the kind Pragmatism says, "watch your words."

👉 Context:

But Pragmatism also says, "hey, it's not just what words mean that matter, it's also how you use them in context." So under a Pragmatic view of language, the dictionary is helpful, but it's not the end-all-be all of all questions meaning. Pragmatism pushes us out of the comfort of prescription and into the broader world of context.

What does that this mean for legal English learners?

✅ Clarity is your responsibility: Legal English is not inherently clear or precise. Achieving clarity requires attention to how your words are structured and how they fit within the broader context. Don’t rely solely on legal terms of art; instead, focus on making your message cohesive and easy to understand. In our next webinar, we'll discuss sentence structure and how to write clearer sentences in English.

✅ Simplify without sacrificing authority: Legalese doesn't make your communication more authoritative. In fact, overly complex language can obscure your message. Embrace plain, direct language to communicate more effectively while still maintaining professionalism and authority.

✅ Context is key: Words alone don’t create meaning; context does. Always consider the broader circumstances surrounding your communication—whether it’s the legal environment, the audience, or the specific situation—to ensure your message is interpreted as intended. If you missed the first webinar, watch the recording. The second half of our webinar specifically showed how context can shape the meaning of modal auxiliary verbs like can, may, might, could, and would, and explained how viewing these words from a Pragmatic perspective can help you make better language choices.