blunt essays with sharp points
Sep 4, 2009 6:04 PM–Anonymous writes:
Laws (in the US) are written in English. The existence of legalese is a fiction perpetrated by lawyers in an attempt to both enhance their monopoly and to obscure the facts. The sentence as quoted is ambiguous. Unless it is further constrained by surrounding language it does in fact give entities the option to choose not to enforce the law.
Thank you for responding. I love knowing someone is actually reading my stuff. My answer turned out to be too long to relegate to a comment, so I wrote this followup article.
I won’t argue that lawyers never obscure facts. But
legalese is not a conspiracy to make understanding the law impossible, and the sentence is not ambiguous.
Specialists invent technical terms so that they can communicate clearly and efficiently with their peers. It’s human nature. Any discipline will develop jargon.
Specialists frequently reuse ordinary words as technical terms. Consider the meanings of these words:
charmas used by physicists
imaginaryas used by mathematicians
predicateas used by computer professionals
inferioras used by economists
Jargon greatly improves the chances that specialists will understand one another. At the same time, it greatly increases the risk that laypeople will misunderstand specialists, because of the reuse of ordinary words as technical terms.
So there is no conspiracy to confuse laypersons. It just so happens.
It is true that specialists can and do write in lay language. There is a big market for books and articles that popularize technical subjects. A long enough book can explain almost anything.
But specialists writing for their peers do not write in lay language. They save a great deal of time and confusion by using jargon when writing for peers.
A law needs to be efficiently written and have a unambiguous meaning. Jargon has developed among lawyers which makes that possible.
Like any jargon, its precision comes at the cost of confusing and misleading laypeople. So it is popularly ridiculed as
legalese, just as I did in the original post. But that does not make it a deliberate attempt by lawyers to obscure, any more than
computerese is a deliberate attempt by computer professionals to obscure.
A standard English dictionary or English grammar can be unhelpful in understanding jargon. Jargon follows its own rules.
The rules for understanding legal jargon are very well developed and well documented.
A municipality, county, or other political subdivision that enforces this section shall post a sign at the entrance to each school crossing zone in the municipality, county, or other political subdivision
The qualifying phrase
that enforces this section unquestionably applies only to
other political subdivision by the rule of last antecedent, one of the basic rules of legal jargon. This means the supposedly ambiguous qualification does not refer to a municipality or to a county, at least. They are unambiguously obligated to post signs.
Then, unless the context indicates that an
other political subdivision that enforces this section is obligated differently by the law than a municipality or a county (which it does not), the remaining supposed ambiguity is eliminated also. Several different rules might apply, and they all come to the same conclusion.
The rule of ejusdem generis restricts the general descriptor
other political subdivision that enforces this section to the same class as the other items in the list. The other items simply identify political entities which are known to have the enforcement duty, rather than assigning that duty to them. Therefore
other political subdivision that enforces this section is also simply identifying an entity, rather than having the more general effect of assigning a duty.
The rule of noscitur a sociis determines the meaning of
other political subdivision that enforces this section by association with the other words in the phrase, from which follows the same conclusion by the same reasoning as above.
The presumption against absurdity rejects the alternate interpretation, that political entities other than municipalities and counties would have discretion in the matter, considering that the law was passed specifically to establish a uniform statewide rule, and also
preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state.
Labels: ambiguous, computerese, conspiracy, construction, dictionary, discipline, English, fact, grammar, human nature, jargon, law, lawyer, lay, layperson, legalese, monopoly, political, specialist, technical
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