Bad writing can sometimes be bad-minded

The French and the Dutch voted down the EU constitution in 2005.

A prominent American judge, Mark P Painter, in an interesting article titled ‘Did Bad Writing Doom the EU Constitution?’, suggested that one reason for this rejection was that the voters had “actually tried to read” the constitution.

He quotes a typical paragraph:

“Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in that Protocol.”

He quotes, for comparison, the Tenth Amendment in the American Bill of Rights:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

He then cites William DuBay of Impact Information (a plain-language crusader), who drew attention to some stark differences between the US and the EU constitutions:

US Constitution

11 pages, 4,000 words, seven articles, all written at a “democratic 9th-grade level”.

EU Constitution

855 pages, 156,447 words, “written at the 16th-grade level”; “badly organized … The first and most important part is missing a title. Some of the 465 articles ended up in the wrong sections.”

His final comment: “Of course, we cannot lord it over the Europeans too much, because our lawyers usually write too many words. And most of our statutes are awful. But considering the drafters of the two constitutions, we had the better group.”

Unreadable

If ‘bad writing’ and unreadable legalese did contribute to the French and Dutch rejection, the EU, it seems, did not learn the lesson. After all, when the Lisbon Treaty was rejected initially by Irish voters, one of the reasons given was that it was “unreadable”.

However, it appears that this unreadability was not a matter of incompetence; that, in fact, the treaty was deliberately rendered unreadable.

The Lisbon Treaty was almost a carbon copy of the Constitutional Treaty voted down by France and the Netherlands. The author of the text, Valery Giscard d’Estaing, said the Lisbon Treaty was “purely a legal rewriting – incidentally unreadable – of the draft Constitutional Treaty”.

The treaty was not “incidentally” unreadable, though, according to Guliano Amato, the former vice-president of the convention that drafted the EU Constitution. He said that EU leaders had deliberately made the treaty unreadable so that the changes would be less noticeable.

We tend to assume that politicians, lawyers and the drafters of constitutions seek to communicate clearly. But it ain’t necessarily so.

Judge Painter is one of the seven judges on the United Nations Appeals Tribunal. His book The Legal Writer – 40 Rules for the Art of Legal Writing is available at http://store.cincybooks.com/
He is a powerful advocate for plain legal language. Unlike the drafters of the EU treaties, he believes that “The law affects everyone — we all should be able to understand it.”

Website: http://www.judgepainter.org/

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