have considered legal writing from the perspective of rhetoric,
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language,
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linguistics,
727
semantics,
728
style
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and literature.
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In answer to these perceived problems with legal writing, this text proposes a
model for writing law. This model is based on an analysis of the process of
communication. In fact, much of the work falls on the writer. Essentially the
writer creates a text that conveys information to the reader. A writer must
identify the likely readers so that the text can be addressed to their level and
understanding, and the writer must understand the function, structure and
characteristics of a text so that they know how to construct it.
While all of these requirements are important, by far the most important is
structure, particularly the need to have a clear overall structure. For much legal
writing, especially creating primary sources of law (drafting legislation and
deciding cases) and writing secondary sources of law, the major part of the
structure is in fact derived from the various models for working with law such
as the model for forming law and the model for using law.
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Once the text is written, the reader reads it. The better written the text is, the
easier it is to read. As the adage has it, hard writing makes easy reading.
So, the fundamental point is that communication encapsulates both writing and
reading. Communication involves a sender transmitting some message to a
receiver. They send the message down the line as it were. Writing obviously
creates the message in the text while reading receives it.
Writing is
communication viewed from the start of the line while reading is
communication viewed from the end of the line.
This chapter introduces discussion of techniques for writing and reading law.
For the most part it does not seek to deal with the general skills of reading and
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Wald (1995), Saunders (1994)
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Chaim (1983), Danet (1980), Mellinkoff 1963, Shuy, (1986)
727
Goodrich (1984)
728
Moore (1981)
729
Posner (1995)
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Nussbaum (1995). One related idea is to look at literature from a legal
perspective –
see Turner (1987-89). Another is to use literature to teach law – see
Turner (1985).
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Reading, it is worth noting, is communication viewed from the other end.
To read law it is first necessary to understand how to write law. Reading and
writing are complementary activities. What is written is meant to be read. In
writing the task is to create a structure, in reading, therefore, the task is to identify
this structure.
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