Communicating and Constituting the Law: Rhetoric and the Plain Language Movement in Australia

Abstract

In the 1980s and early 1990s, senior figures within the Australian judiciary, academia and legislative drafting advocated that legal writers use a ‘plain language’ style for judicial opinion, legal documents, and legislation. This meant writing in ‘plain, straightforward English’ rather than legalese. This article argues that the plain English movement drew on ancient rhetorical traditions as well as modern prescriptions about good writing. It uses legal scholar James Boyd White’s theory of ‘constitutive rhetoric’ to suggest that the movement sought to constitute the law as accessible, egalitarian, and public- oriented. However, although the movement’s tenets were adopted by the executive and incorporated in legislative drafting guidelines, it had little impact within the judiciary. Further, its heyday was coterminous with increasing complexity of legislation and growing restriction in access to legal services, counter to the movement’s democratic ideals. This episode in legal history therefore illustrates tensions between the intentions and views of the various branches of government and participants in our nation’s legal life. Show more