We have "legalese" for the same reason we have programming languages. Terms have specific, sometimes slightly different or more narrow meanings to promote better understanding of intent in languages meant to specify a set of rules.
Specifying laws in "plain English" makes about as much sense to me as programming in English. You'll quickly find that for all but the most trivial of things the ambiguity of the language works against you.
The intended purpose of "legalease" is to eliminate ambiguity and to clearly outline terms and conditions, however it's often used to introduce ambiguity and obfuscate the actual intent of terms and conditions or to redefine existing known and understood laws.
"Legalese" is a programming language that allows unsafe pointers. It's compiler not only permits but encourages the use of preprocessor directives to redefine variables and operators. Everything is globally scoped. Nothing is protected. Everything can be overridden. Multiple inheritance is expected.
Pretty much everything we advocate against in a programming language is permitted and encouraged in "legalese".
Brief plain English would be about as bad. English with similar verbosity would be much worse. Obfuscating meaning in colloquial English is so trivial it happens on accident when communicating through text on a regular basis.
I'm not arguing that legalese is good, I'm just arguing that it's better than English, specifically because terms have been carved out over time to mean very specific things when used in a legal contract, and that provides for less ambiguity. It does require foreknowledge, but so does every sufficiently complex topic.
> "Legalese" is a programming language that allows unsafe pointers.
With regard to clarity, if legalese is C, English is dictating pseudocode to someone else who is translating to assembly on-the-fly.
> Pretty much everything we advocate against in a programming language is permitted and encouraged in "legalese".
So let's make it better! But coming up with a more specific legal language will require even more training to understand than is currently required, and that's the opposite of making it easily understood by the average person.
My own comparison would be that Legalese is like Perl. It is familiar enough that most laypeople can look at it and get a good idea of what's going on, but it's definitely easy to write in a way that is nigh incomprehensible, either by accident on on purpose. In addition, the familiar appearance of the language hides some advanced conceptual differences that bite the unaware (context in Perl, specific meanings of common terms in legalese).
A new version of legalese might be more akin to Rust or Haskell. Very specific, very exact, but it requires much more up-front learning to understand exactly how everything works and what it means.
In other words, the learning curve would be steeper but the dividends paid for learning it would be greater.
Unfortunately some of those comments are never made, or are separate READMEs and not systematically tracked alongside the code itself.
The difference is that one is expected to consent and be beholden to something they could not reasonably understand without paying a large amount of money to a specialist.
That I write my code in brainfuck is of no consequence to someone, unless that brainfuck is potentially going to incarcerate them.
If you write software to control medical equipment in Brainfuck, it's potentially of consequence to a great many people. Same for autonomous driving routines.
Trying to make things clearer is a good cause. Expecting that everything can be made clear enough for the average person is a fool's errand.
Do we expect the circuit layouts of CPUs to be understandable by everyone? Because we are surely affected by those, in very many aspects of our lives.
Do we expect the full engineering and aeronautics behind an airplane to be understood by everyone? Everyone who flies puts their lives on the line based on those principles and the engineers getting it right.
Do we all expect to understand the numerous ways in which our bodies can get hurt, or interact with chemicals, or develop diseases? We trust doctors to figure out the complications there.
In each case, we've trusted domain experts to sort through the very complex topic and distill the knowledge into a useful form for us. In each case, we also generally know a core amount of the topic to help us navigate the everyday portions. CPUs work by providing a very low level core set of instructions that can be followed. Airplanes work through thrust, airflow and lift. Our bodies deteriorate over time, and if we put bad stuff in, they don't do as well, and some common diseases are known (cold, flu, etc).
The law is no different. There's a core set of things people are aware of. As things become more specific, or a problem happens, we call in domain experts to help.
Expecting everyone to be able to read all of the legal code will never happen, nor should it happen. It's expecting too much out of the average person, and would also require the law be dumbed down in ways that were detrimental to it's interpretation.
Using Brainfuck is an extreme example but you're taking it to its logical conclusion - off a cliff.
The difference is, the law affects and is applied to everyone. Contracts can and do affect the average person. However, only a domain expert has do deal in code.
We do not expect or require a normal person to read a 5,000 LOC piece of software, or risk giving up rights to participate in everyday society.
> Expecting everyone to be able to read all of the legal code will never happen, nor should it happen. It's expecting too much out of the average person, and would also require the law be dumbed down in ways that were detrimental to it's interpretation.
I'm certain we can put together a reasonable "tl;dr" requirement for contracts targeted at the layman, e.g.
"""
- You may use this application (See: Section A)
- You will pay X per month (See: Section B)
- Late fees may apply (See: Section B, Sub-Section 2)
- We may collect user data (See: Section C)
- We may sell user data (See: Section D)
- We reserve the right to update the terms of the service (See: Section E, Sub-Section 1)
- We reserve the right to cancel service for any reason (See: Section E, Sub-Section 2)
"""
Make the tl;dr non-binding so long as a reasonable person, a typical legal standard, would understand the legalese to have the outcome.
One need not write a "literate contact," nor abandon all of our legal history, terms of art, etc. to improve things to make them more approachable for a normal user.
I've found that this is generally less true than I imagine it to be. A lot of law is not actually so difficult to understand. Legalese is still English, and Google is great for figuring out the odd meanings of certain terms of art.
Most of the exceptions I've come across (e.g., buying a house) are IMO actually intrinsically complex transactions. I could undestand, but it'd take so long. And the time taken would happen even if we only had the laws we needed and all those laws were written in plain english. In software terms, lots of essential complexity.
Going back to the article, the problem with Facebook's terms and conditions is definitely not understandability -- see https://www.facebook.com/policy.php. The average high schooler could understand. The problem is people caring enough to 1) find, 2) read, and 3) inconviencance themselves if they don't like the policies.
> Waving a 2-inch-thick printed version of the social network’s user agreement, Senator Lindsey Graham quoted a line from the first page, then intoned: “I’m a lawyer, and I have no idea what that means.”
1) Two inch thick I've read some pretty long books in my time but that takes the cake. Most people these days don't even have enough attention span to read a complete internet article. How do you expect them to plough through hundreds of pages of legalese?
2) “I’m a lawyer, and I have no idea what that means.” Do I even need to say any more?
* FB is doing their absolute best to make sure no "user" understands what they have agreed to
* writing the law in "plain english" is the stupidest thing I've ever heard of in my life. See the multi million dollar lawsuit this year about whether a missing Oxford comma changed wage rules for a class of truck drivers. Any attempt to write law in plain english introduces giant ambiguities [1].
[1] https://www.nytimes.com/2018/02/09/us/oxford-comma-maine.htm...
But before making this argument, one should go read FB's ToS and data policy. Here they are:
Right here, clear as day: "We collect information from or about the computers, phones, or other devices where you install or access our Services, depending on the permissions you’ve granted"
Also notice that if they have that data, you explicitly gave permission to access phone/SMS data in the app install process; i.e., you granted those permissions.
> ...steal...
Again, that's the problem! Facebook didn't STEAL that data. They took it with your permission. And they were actually very clear in their policies about the fact that they could take pretty much anything you gave them device premissions to access.
This is NOT a "users can't understand legalese" issue. It's very clear from the above sentence in the data policy that Facebook has the right to record arbitrary shit off of your phone/computer.
This IS a "users don't care and don't have any data clawback rights" issue. Or perhaps a "users are too trusting" issue. But any high schooler could interpret the above sentence as meaning that Facebook does, technically, have the right to collect any information from your phone if you give device permissions.
The distinction is important because it determines appropriate solutions. The solution is NOT making ToS easier to read. The solution is stronger consumer data rights (aka a mechanism to clawback data after the fact) and better consumer education (aka be paranoid)
If you think that merely making ToS easier to read and understand will substantially change consumer behavior, you're in for lots of disappointment.
> and wasn't clear to virtually anyone who agreed to it
Virtually everyone who agreed to it never bothered to even try to read the policy in the first place. So, really, what difference does that make?
Again, the fundamental point is that chasing ToS clarity/readability/length is a losing battle. The majority of consumers don't care enough to read, no matter how simple you make things. Improving this metric won't make a difference. This issue is a red herring. Focus efforts elsewhere: consumer education and consumer rights.
Facebook data policy: https://www.facebook.com/policy.php
I agree Lindsay Graham is a skilled orator and politician. But if he blew up the font size until those pages required two inches of 8x11 paper, he must have just terrible eyesight ;-)
Also, neither of those documents is terribly difficult to understand. Like... where, specifically, is Graham getting horribly confused?! Point to the concrete line in one of those two links that requires something beyond a high school education!
Now, I'm sure there's nuance I don't pick up on. But I definitely feel I can understand the ToS and privacy policy without consulting a lawyer.
I don't think some of the terms are fair. But that's a consumer rights issue, not a "legalese" issue.
More generally, on two occasions I've had to get in front of a real judge in a "real" courtroom and make an argument based upon some written piece of law I had to look up and interpret myself. In both cases, I was able to successfully convince a judge that I was on the right side of the law without the help of a lawyer. I'm certainly not saying that's always possible, but I do believe there is a lot of "learned helplessness" when it comes to digging through legeal code or contracts and reading legalese. It's a PITA sometimes, but in many many cases it doesn't require years of training.
Or, to put emphasis on the important things:
"we may (read: WILL) collect ANY device information you give permissions to access to do [reasonable thing A], [reasonable thing B], or for ANY other business purposes. Examples of device information include: [insert list of benign things you should totally ignore]"
But here's the problem with the "AI tell us all" approach. If you use ML to mine examples from existing policy texts, you'll end up showing the user all of the benign stuff that the companies put in to reassure users, because that's what the corpus contains. Therefore, your AI will emphasize exactly the wrong types of examples.
Also, notice that this isn't even a legalese thing. There are no legal terms of art or long-winding difficult grammatical constructions. It's just plain old good rhetoric. And it's hard/impossible to legislate away persuasion.
Even if a reset is unsustainably simple, it's time for one.
For instance, you won't be guilty of violating a law if you are coerced to do so, and the court still needs to evaluate what level of coercion you underwent, and that fundamentally requires human empathy.
The law is not meant to be employed mechanically. It's there to make society more efficient when handling the easy cases.
If using your product requires the detailed understanding of a standard EULA, my judgement is that I would not like to use your product without training. Think of all the details in those paragraphs that I might mess up!
But using these products does not require the detailed understanding of a standard EULA. It only requires you to click 'I Agree'. The EULA is not there to inform the user, it is there to ensure that your exploitation of them will not be punished when they find out.
The ideal, a specific language everyone is proficient in, is best, but it isn't possible.
In Plain English you can, for example, say "Clear the screen" or "Erase the screen" or other similar phrases and still get the same result. So we could type our thoughts the way we happened to be thinking them at the moment, and didn't have to remember (or look up) the exact syntax of the routines we wanted to call.
The instruction manual is here:
www.osmosian.com/instructions.pdf
And the whole shebang (less than a megabyte!) is here:
www.osmosian.com/cal-4700.zip
Just download and unzip. No installation necessary. Exactly the same on any version of Windows from XP to 10.
Please address questions and comments directly to me:
Always do X, never do Y rules are rarely helpful.
Does the comment here really help with your understanding of the code? If you're just now being exposed to programming then it's not enough detail, if you've been programming for 20 years it's far too much noise.
// Assigns the value of the expression 4 + 5 to x
// where 4 and 5 are integer literals
// and + represents the mathematical process known as addition.
// This allows us to later refer to x by name, where it will be replaced by the value defined here.
x = 4 + 5;Code comments are typically written for whoever they're written for. I understand that"Plain English" might be a 2 sentence summary, a line by line review of each step, or a 3 letter reference to a common phrase, but it doesn't change that you have a tool available to you to provide summary context for potentially confusing or complicated pieces of logic.
I was also making the joke that if you're writing extremely complex pieces of code and not providing some kind of comment to accompany it in a setting in which that code, you're probably doing it wrong.
Some people should do some things some of the time, and other things never, but not always. Things can include writing comments for code. fixt
Why does that not make sense? The law must cover everything from "dont kill certain species" to "don't commit this very specific type of fraud". Society is so advanced we need more laws. Of course Hamurabi's code was short because it didn't need to stop investment bankers committing fraud or voting laws to prevent racial bias or workers rights etc etc. Certainly there are improvements but you will never fit it all into one short book that a layperson could read.
As an easy example, the commerce clause in the US constitution has come to mean something that no layman would ascribe to it.
Another easy example in the opposite direction is how case law has substantially diluted the meaning of words like "infringe", "unreasonable" and "excessive" in amendments 2^1, 2^2 and 2^3.
Any support for that statement?
[0] https://en.wikipedia.org/wiki/Dormant_Commerce_Clause [1] https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 - "... principally its power to regulate interstate commerce"
Whether or not you agree with that interpretation, it would take some willful ignorance to say that the plain text reading of regulating interstate commerce means you can regulate all commerce because you might have bought something from someone otherwise
See Wickard v. Filburn.
At least that's the logic of the court.
This is stretching the law beyond any reasonable interpretation, done so by the same government who gains a lot of power by doing so.
If a started a business that picks peoples noses among multiple states, would Congress be able to regulate nose-picking by individuals on their own private property?
There will always be exceptions and details argue over and ultimately you need a critical mass of society to agree to abide by them to a great enough degree.
Expecting any reasonably non-homogeneous society to be able to agree on where to draw lines what constitutes bad behavior in anything other than the obvious cases ( murder, theft, etc) is naive. Expecting laws to cover the vast majority of bad behavior is naive. Expecting to be able to enforce that theoretical set of laws is naive. Expecting to enforce those theoretical laws without creating something akin to 1984 is just insane.
However, the law could still certainly be shortened and simplified. The GDPR is written in plain English.
If you previously had some private data in your core databases that you used for all kinds of things, finding an exception that allows you to store this data for security purposes doesn't allow you to continue business as usual - it won't permit you to use it for marketing purposes, for example, just as an exception that allows you to require and store some data that's needed to execute the service won't permit you to sell that data to third parties as was common practice earlier - for that you'll need to (try to, likely unsuccessfully) obtain the user's consent.
Of course, there's plenty to discuss and argue about in all of the above, but your comparison makes it seem like a done deal.
While laws being written in common language sounds like a good idea, common language is open to lots of ambiguity and loopholes. Shouldn't our laws, in general, be written to be as precise and narrowly defined as possible?
Overall, if done correctly there should be no issue with expressing the parties' intentions in plain English rather than using dense legalese. It's something I strive to do every day in my job for sure.
Of course I agree with your general point about laws being drafted to be precise and narrow, it's just that using legalese doesn't always secure this objective. Sometimes it's just clear that the draftsperson was having a bad day.
But they aren't that either.
There will always be more diversity in real life than on paper. You can't predict everything that will ever happen.
The real problem is structural.
We have a set of laws and if they're overly broad and prohibit lots of things they shouldn't, nobody really notices because prosecutorial discretion is a thing. As long as prosecutors mostly don't charge honest people with the overly broad laws, nobody gets up in arms to fix them even though everyone is in violation.
On the other hand, if someone does something unpopular and there is no law against it -- or there is a law against it but there isn't a law specifically against it and Something Must Be Done -- then we get a new overly broad law.
Laws get added but never removed, and each one prohibits more than it should. Over a hundred years of this and you get Three Felonies A Day, the only reason everyone isn't in prison is prosecutorial discretion, and lawyering is an exercise in figuring out which parts of which laws you actually have to follow to avoid being prosecuted without ever admitting that that's what's happening.
I don’t think that means they should be more narrowly defined than they are now. That would mean a permanent weapons race between those finding and exploiting loopholes and the government, with those having access to the smartest lawyers (= the richest) staying ahead of the law.
For example, if “income” would be restricted to money received in exchange for services, companies would start paying in goods, for example by providing “free” housing, cars, etc. if the government includes such things in the law, companies could start paying out in gold, rather than money. When that gets included, companies could sell special (extremely cheap, no voting rights, must sell when leaving the company) shares to personnel, and pay most of the salary in dividends. That list is endless. Companies could start operating under the flag of Liberia, claim that they don’t pay you for work done, but that they charge you for the use of their machines, and that you sell them the stuff you made with them, etc.
But in practice, it's the opposite. Law is full of ambiguities and loopholes. That's why we hire lawyers-- to find ones that work in our favor.
This is a terrible idea. Stability and gradual, generally understandable, evolution in response to real world conditions are positive attributes of the current precedent-based system that has grown out of the common law.
Plenty of laws are relevant only to a specific point in time, but they rarely, if ever, get repealed.
Take the US Chicken Tax. It was put in place in the 60s to deal with economic concerns with France and West Germany at the time (which no longer exists as such!). Why shouldn't it have been given an expiration date? Instead, it remains in perpetuity, with its provisions twisted every few years to suit the interests of auto industry lobbyists. This is perverse.
But not all laws should expire. Having, say, the crime of murder expire would be quite unhelpful.
I'm pretty sure that laws like that one would be renewed before expiration anyway -- and the current context would allow re-evaluation of penalty as well, which might be something useful to reconsider every couple of decades.
It's no surprise reading the comments here and elsewhere these days. The media helps build a furor amongst people, and people believe there is no other choice but to use the heavy hand of the government to solve their issues. Many times it's done without alternatives attempted first with the proponents criticizing those against a law as against its intentions. We see it with the Patriot Act, GDPR, etc.
And as global internet laws are written more and more by governments of citizens who implicitly trust them a lot (often just guessing at what can solve the problem instead of empirical evidence based on timid baby steps), their tentacles spread to the point where only those with resources can abide. Things happen in waves and I can only hope we'll come around to not adding laws and regulations all the time.
Government overreach is bad, and the government is frequently a bad actor itself, but at least if they are trying to cancel out corporations power we end up with both groups hobbling themselves a bit
One of the reasons that the body of law has grown as large as it has is because of said edge cases.
Hammurabi's code of laws, was written in common language, and was brief enough every subject could understand them.
It makes no sense that we should be subject to a volume of law that we could never even read, let alone understand.
Musk is correct in insisting that laws should expire, and it should be easier to remove a law than add one. Minimum Viable Law.
Long ago lay people had no idea what the bible said because they could not read Latin. Well lawyers are the new priests, legalese is the new Latin.