Fourth European Symposium on the Comprehensibility of Legal Provisions - BMJV
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Fourth European Symposium
on the Comprehensibility of Legal Provisions
– Conference Report –
From 15 to 16 November 2018, the Fourth European Symposium on the Comprehensibility
of Legal Provisions took place at the Federal Ministry of Justice and Consumer Protection
in Berlin, Germany.
This year’s Symposium, the continuation of a successful series of conferences previously
held in 2012, 2014 and 2016, once again served to stimulate interdisciplinary debate
between experts whose work is focused on the comprehensibility of legal provisions. The
events held in this series are not designed as academic conferences in the classical sense.
Rather, they bring together practitioners involved either in the legislative process itself or in
other aspects of drafting methodology and comprehensibility in lawmaking, e.g. in the field
of linguistics.
This year, the Federal Ministry of Justice and Consumer Protection hosted representatives
from ten Member States of the European Union, Norway, Iceland and Switzerland, as well
as EU institutions (European Commission, Parliament and Central Bank), the parliaments
and administrations of Germany’s federal states (Länder), academic and research
institutions, and organisations training legal drafters. On behalf of the organisers, Elke
Schade, Head of the Division for Scrutiny of Legal Provisions, Advice on Linguistic Matters
and General Administrative Law at the Federal Ministry of Justice and Consumer
Protection, welcomed an audience of approximately 120 experts.
The two-day event was split into five thematic panels, focusing on projects for improving
the quality of legislation and comprehensibility of the law, and presenting the results of
academic studies in these areas. Topics also included how to communicate information
about the law both to the general public and legal practitioners, as well as the
comprehensibility challenges faced when enacting legal provisions in multilingual settings,
e.g. in the European Union with its 24 official languages. Each day’s speakers remained on
the panel alongside the symposium’s moderators. After each presentation and at the end of
each panel, speakers, moderators and members of the audience had the opportunity to
discuss what they had heard. The event was moderated by Dr. Sebastian Jeckel, Head of
Division for Coordination of Cooperation in the EU for the Federal Ministry of Justice and
Consumer Protection, and Stephanie Thieme, Head of the Unit for Legal Drafting Support
at the Federal Ministry of Justice and Consumer Protection.
1Day 1 of the Symposium, 15 November 2018
Prof. Dr. Wolfgang Klein The symposium commenced with a lecture on the overarching theme of the series, the
Comprehensibility comprehensibility of legal provisions, by Wolfgang Klein, member of the Berlin-
Brandenburg Academy of Sciences and former scientific director of the Language
Acquisition Department at the Max Planck Institute for Psycholinguistics in Nijmegen
(Netherlands). Klein’s position: laws must be comprehensible to the general public, since all
people are subject to the law. Switzerland’s Civil Code, he argued, is one example of how
precision and user-friendly language are not mutually exclusive in lawmaking.
However, he argued, a person’s ability to understand a legal act will depend less on the
simplicity of the language used, than on his/her prior knowledge of the subject matter,
contextual knowledge of the language used, and other contextual factors unrelated to the
text itself. This, he explained, had been confirmed by studies following the “think-aloud”
protocol. Furthermore, he continued, it must be considered that each and every legal act is
embedded in its own interpretation history, and in the legal system as a whole. Following
this logic, he concluded, legal provisions should be drafted in user-friendly language and
(individually) tailored to the prior knowledge of the target readership. More empirical
research is required, however, in order to ascertain how this might succeed.
In the discussion that followed, it was emphasised that a better understanding of legal
contexts would require legal knowledge to be taught in schools, with legal knowledge
transformed into common knowledge. Additionally, laws could be made more
comprehensible to target audiences by providing supplementary reading materials in
“everyday language” – akin to the patient information leaflets supplied with medication –
or through a combination of regulatory texts and visual representations.
Panel 1: Projects to improve the quality and comprehensibility of legal provisions and
access to justice
Panel 1 of the symposium focused on the drive towards linguistic clarity in legal provisions
and regulatory streamlining as an approach to slimming down the statute books. It also
examined the cognitive groundwork required for drafting laws in clear and comprehensible
language.
o. Univ.-Prof. Dr. Peter Bydlinski Peter Bydlinski, who teaches at the Institute of Civil Law, Foreign and International Private
Improving the language of a law Law, University of Graz (Austria), presented his project to make the Austrian General Civil
drafted over 200 years ago:
the case of the
Code more comprehensible. Forty-five percent of provisions in the General Civil Code
Austrian General Civil Code (ABGB), which remains the centrepiece of Austrian private law, have undergone little or no
amendment since 1811. This, Bydlinski argued, makes understanding the Code difficult not
only for law students, but for those who go on to practice the law – as well as for the
general public. The difficulties found in this legislation, he explained, include a lack of
homogeneity among the Code’s individual components (“technical/formal/non-
descriptive” language vs. “flowery exemplifications”/“imprecise” terms), as well as obsolete
language and substantive contradictions between old and new provisions. The latter
include derogations introduced in lex specialis provisions without amendment of the
corresponding general-law provisions of the Code. Bydlinski also presented some of his
2own key propositions for improving the Code. For example, provisions covering general
points and principles should, he argued, come before any exceptions; sections should be
more rigidly structured, and old-fashioned phrases replaced with contemporary terms.
Bydlinski has been running the project to improve the language of the Austrian General
Civil Code since 2015. So far, his small team has developed proposals to reword 587 of the
Code’s 1333 articles. One of the aims is to submit these proposals to lawmakers.
In the discussion that followed Bydlinski’s presentation, concerns were raised over whether
excessively simplified legal provisions could ever do justice to the complex legal materials
that these govern. Furthermore, it was argued, many of the traditional contextual
connections within the legal system could be blurred by rewording applicable law –
especially if alterations are made to legal terms.
Torunn Reksten Torunn Reksten, Senior Advisor at Språkrådet, the Language Council of Norway, reported
Clear Legal Language: on efforts in her country towards greater linguistic clarity in legal provisions. Norway’s
Towards greater
Clear Legal Language project has existed since 2011, and is a collaborative effort involving
linguistic clarity in
Norwegian legal the Ministry of Justice and Public Security, the Ministry of Local Government and
provisions Modernisation, the Agency for Public Management and eGovernment (Difi) and the
Språkrådet. The project includes interdisciplinary drafting workshops, where lawyers,
linguists and experts in the field to be regulated join forces to draft legislation. Initially,
efforts focused on the revision of four legal acts potentially affecting all citizens. These
included the Education Act and the Inheritance Act. The aim was to make the acts easier to
read and to comprehend, for example by making improvements to structure. For this
purpose, drafts were analysed in terms of their design and readability. Finally, drafts were
tested for usability and user-friendliness. The results were compelling!
The long term goal of the Clear Legal Language project is to institutionalise work on the
comprehensibility of legal provisions across the lawmaking process at all ministries,
especially laws that are aimed primarily at the broader general public. The conditions for
this seem particularly favourable in Norway: Reksten explained that there is widespread
cultural awareness among government authorities and the general public in Norway of the
need for clear communication and user-friendliness in the provision of public services. At
the same time, clear language is well appreciated by members of the government and other
politicians as conducive to a user-friendly, open and efficient public sector. One product of
this collaborative drive for clarity has been the creation of a seat for clear legal language at
the law faculty of the University of Oslo, which will receive funding over the next ten years
from the Norwegian Ministry of Local Government and Modernisation.
In the discussion that followed, it was clearly argued that improving the language of legal
provisions takes time. However, some added, the digital revolution could signal the advent
of new tools to accelerate the drafting process, especially when it comes to work on the
language of these specialised texts.
A conference to be held in September 2019 in Oslo by the Plain Language Association
International will provide a forum for further discussion of these topics. Torunn Reksten
extended a warm invitation to all those at the symposium who might be interested in the
event.
3Dr. Günther Schefbeck Regulatory streamlining and deregulation, taking Austrian federal law as an example, was
Regulatory streamlining the next topic of discussion, and was presented by Günther Schefbeck, Head of the
and deregulation
Parliamentary Research Unit of the Austrian Parliamentary Administration. While
deregulation aims to repeal legal provisions that are no longer considered necessary,
regulatory streamlining has the aim, aside from slimming down the statute books, of
systematising the applicable law.
Regulatory streamlining began in Austria with the Act of 1 May 1945 to repeal the
provisions of Nazi law (“Rechts-Überleitungsgesetz”), but was not pursued any further in
the second half of the 20th century. It was not until the First Federal Regulatory
Streamlining Act of 1999 that all federal legal provisions promulgated prior to 1 January
1946 (except on the level of constitutional law) were repealed, unless listed in an annex to
that act (“positive list”). The First Regulatory Streamlining Act for Federal Constitutional
Law of 2008 listed all federal constitutional provisions deemed no longer applicable
(“negative list”). The policy pursued by the current government is one of further
harmonisation of provisions and legal terms: A new Federal Regulatory Streamlining Act is
designed to repeal, as of 31 December 2018, all federal legislation promulgated as principal
acts or ordinances prior to 1 January 2000. Provisions not to be repealed with this Act are
listed in an annex. The Federal Regulatory Streamlining Act signals the repeal of around
600 of 1,600 federal laws (approx. 40%) and approx. 1,800 of 3,400 ordinances
(approx. 55%).
The discussion that followed also highlighted efforts undertaken in the area of regulatory
streamlining in Germany. Although these had been rather painstaking, it was argued that
this work paid off – and was indeed necessary to ensure a regular clear-out of superfluous
norms, particularly given the digital dissemination and application of legal provisions (“first
deregulate then digitise”).
Matthias Schmid The first panel concluded with a presentation by Matthias Schmid, Head of Division for
“Thinking tools” Copyright and Publishing Law at the Federal Ministry of Justice and Consumer Protection.
for legal drafters
At the “fuzzy frontend” of the drafting process, Schmid argued, drafters tend to lack a
conclusive overview of the complexity of the material to be governed – but do have a
maximum of flexibility in shaping and designing the piece of legislation to come. In this
context, Schmid pleaded for a greater focus on the early stage of lawmaking. After all, he
argued, this is the point at which errors must be avoided in order for them not to become a
permanent fixture of the draft, which – in the worst case scenario – might persist all the
way up until promulgation. “The initial draft is decisive!” Schmid concluded. As Schmid
sees it, drafters require simple “thinking tools” which enable a process of methodical
systematisation (e.g. visualisation) and can help them, for example: to maintain an overview
of who the stakeholders are in field to be regulated, to ensure that terminology is used
consistently, and to represent processes and procedures in a detailed and comprehensible
manner. With these tools, implicit knowledge would become explicit, and draft bills would
be easier to communicate and explain. Moving forward, Schmid argued that a range of
thinking tools of this sort should be developed and drafters given methodical training in
their use, e.g. at an “academy for legal drafters”.
The discussion that followed centred around the issue of whether and to what extent visual
depictions can and should feature in legal provisions and what impact the increasing use of
4digital technologies might have on how legal provisions are developed and ultimately
promulgated.
Panel 2: How to use legislative drafting techniques to create well-structured legal
provisions
The focus of this panel was on the structure of provisions, the impact of abstraction and
exactness in the wording of the law, and the use of glossaries for managing terminology.
Dr. Dr. Hanjo Hamann Hanjo Hamann, Senior Research Fellow at the Max Planck Institute for Research on
Act two, with subtitles: Collective Goods in Bonn, started by presenting his computer-based empirical study: He
Structural subdivisions in
legislation and legal
examined approx. 5,300 German federal laws with the aim of establishing whether these
informatics met formal legal requirements set out in the Manual for Drafting Legislation1 published by
the Federal Ministry of Justice and Consumer Protection, in particular as regards the use of
structural subdivisions and their headings. Despite some examples of poor practice in the
form of excessively lengthy titles or non-compliant structures, Hamann concluded that, for
the most part, German laws displayed high levels of structural uniformity. Nevertheless,
since uniformity of structure facilitates the compiling of provisions in databases and is a
fundamental requirement for computer-based text processing and analysis, he called for
even greater compliance with formal legal requirements.
Following Hamann’s presentation, discussions centred around the idea of reviewing
legislation to ascertain the degree of structural overlap and determine whether any
improvements might be made. It was argued that digital rendering would open up new
possibilities, for example, to contextualise material rather than following linear structures.
This might allow drafters to render the same text in different forms, e.g. for different target
readerships and individual situations.
Prof. Dr. Kaspar Frey Kaspar Frey, Chair of Civil, Commercial and Economic Law at European University Viadrina,
Headings for legal Frankfurt/Oder, spoke about the role of titles and headings as a way of improving structure
provisions
in legislative texts. Citing eight “soft” criteria, he started by presenting his ideas of what a
good heading might look like: Headings should be linguistically correct, meaningful in
conveying the contents of the provision they represent, and free from commentary. They
should also be comprehensible, succinct, uniform in structure and substance, geared
towards the legal consequences of the provision and limited to one subject. Frey then
proposed a number of wordings based on these criteria for the heading of section 56 of the
German Civil Code.
Frey’s presentation was also discussed in the context of growing digitisation and use of
digital technologies. In terms of criteria, it was argued that titles and headings should
include searchable “key words” and avoid overly long compounds (especially where
German-language versions are concerned). Participants also discussed whether it might
1Bundesministerium der Justiz (ed.): Manual for Drafting Legislation. Recommendations for
drafting laws and statutory instruments, 3rd revised edition, 2008, Bundesanzeiger Verlag,
Cologne.
5improve structure and comprehensibility to include headings for the individual subsections
of a provision in addition to the traditional section headings.
Associate Professor In a further presentation from Norway, Jon C. F. Nordrum, Associate Professor of
Jon C. F. Nordrum
Legislative Studies and Legislative Language at the University of Oslo, examined the extent
Using vague language in laws
and regulations to facilitate
to which an abstract drafting style can influence the comprehension of legal provisions. In
interaction with professional Norway, he argued – as in many other European countries – the wording of legal norms is
judgement
less exact, with provisions formulated in more general and abstract terms. He supported
this theory with a study from 2003 which examined how specific the wording of legal
provisions was in a number of European countries. Legal provisions were worded in
abstract terms above all in Nordic countries, followed by France and Germany. Norway, it
emerged, proved to be the country with the least concretely formulated laws. The United
Kingdom, on the other hand, with its legal system based primarily on case law rather than
abstract statutes, enacted legal provisions worded in the most exact terms.
Other studies, Nordrum reported, have shown that US law is up to 15 times more concrete
in its wording than Norwegian law.
However, while abstract legal language has its advantages, including flexible application of
the law by way of adaptation to different circumstances (“principle of abstraction”),
Nordrum concluded that abstract approaches to lawmaking make it difficult for
readers/target audiences to find an exact solution to their legal problems. Where doubts
exist, readers are reliant on legal counsel since they lack the background knowledge
needed to apply abstractly worded norms. Nordrum concluded that abstract legal language
can constitute good legal language only if all potential target audiences possess the same
background knowledge on the provision, or if readers/target audiences are aware of the
extent to which abstract wordings provide scope for discretionary leeway. For use to be
made of this discretionary scope, however, professional legal counsel is required.
In the discussion that followed, further advantages and disadvantages of abstractly worded
provisions were considered. For example: abstract norms, it was argued, serve as a bulwark
against the type of “overregulation” perceived, for example, in lawmaking at the European
level. On the other hand, it was held, societies display a certain “hunger for norms”. Even if
the wordings used in the statute books were more abstract, it was added, these are
transposed into very exactly worded provisions at the administrative level. The advantages
of the case-law approach in Anglo-American law were also cited: the more concrete a
provision, the smaller the margin of discretion and the scope for discussion in enforcement.
Concrete provisions, it was argued, are also easier to handle than abstract norms when it
comes to systematising legal norms in the digital age.
Eeva Attila The fourth presentation took the audience to Finland. Eeva Attila, Senior Ministerial
An example of Advisor at the Finnish Ministry of Economic Affairs and Employment, explained why basic
terminology work
terminology work is helpful for producing comprehensible laws. In 2017, the ministry
in Finland:
Glossary of compiled a glossary as part of work on a legislative package to reform Finland’s healthcare
growth services and social welfare systems, providing definitions of 55 terms from the related legal acts and
using diagrams to illustrate how the concepts behind these terms were interrelated. The
project aims to ensure that these terms are used consistently by legal practitioners across
the board. Attila added that terminology must be harmonised if it is to be used in a digital
6environment and made available for processing using artificial intelligence (semantic
interoperability). One challenge in compiling a glossary of this sort is that there may be
numerous ways of defining certain terms (e.g. “pay”). Problems might arise, Attila pointed
out, when the same terms are used with different meanings in different provisions. It is all
the more important, therefore, that terms are sufficiently well defined.
The glossary was published in autumn 2018 and is continuously updated. The aim, Attila
explained, was for terminology work to become a regular feature of lawmaking in the long
term.
Concluding discussion, Panel 2
The discussion that followed initially returned to the topic of Hanjo Hamann’s
presentation, and focused on the potential in Germany for introducing a fully harmonised
structure for use in all laws and ordinances (Bydlinski). Any such hopes, however, were
dashed by the Manual for Drafting Legislation, one participant argued, which is worded as a
set of recommendations applicable only to legal provisions enacted at the federal level,
with some of Germany’s Länder adopting their own rules on formal legal requirements
when drafting legislation. Furthermore, it was added, drafters would need to be fully
convinced of the advantages such harmonisation would bring. After all, the benefits of
applying harmonised structures have not yet been analysed – neither for legal provisions as
a whole, nor for the comprehensibility of individual norms. Accordingly, any project to
harmonise the structure of existing legal provisions would be seen critically (Schade) from a
cost-benefit perspective, and especially given previous experiences with regulatory
streamlining in Germany.
Hamann’s proposal that all digitised provisions could be harmonised “at the push of a
button” was countered with the argument that form and structure cannot be seen and
treated as separate from a provision’s substance, and that mere “polishing” (Attila) would
therefore not be productive. While it goes without saying that digital formats will replace
hard copies in lawmaking, and that jurists will be compelled to abandon traditional notions
by incorporating a stronger focus on methodical training in digital processes (such as the
semantic interoperability of legal texts), traditional teachings and legal substance should
not fall by the wayside, since subject matters are increasingly complex and require high
standards of training among legal practitioners (Bydlinski).
7Day 2 of the Symposium, 16 November 2018
Welcome address Day 2 of the symposium commenced with a welcome address by Katarina Barley, Federal
by Dr. Katarina Barley, Ministry of Justice and Consumer Protection. Barley began by acknowledging the
Federal Minister of Justice
and Consumer Protection dedication and efforts made by everybody attending the conference to improve the
comprehensibility of legal language, and emphasised that good laws were more important
today than ever before: In times when the rule of law is in jeopardy, comprehensible legal
provisions, she explained, are vital in upholding legal and constitutional principles and
maintaining public support for the regulatory work of government. For this reason, Minister
Barley concluded, statutes must be as clear as possible and comprehensible to all – at least
in conveying their basic message. Furthermore, the work of government should be better
explained to the people.
Day 2 of the symposium focused on the linguistic factors potentially responsible for poor
comprehensibility in legislation, including where a number of official languages are
involved. It also examined how target audiences handle legal texts and overcome barriers
to comprehension, as well as the different concepts that exist for communicating the
substance of legal provisions to a variety of target audiences.
Julio Fuentes Gómez/ Julio Fuentes Gómez, Deputy Director for Maritime Legislation and International
Associate Professor Dr. Cooperation at the Spanish Ministry of Development, and Cristina Carretero González,
Cristina Carretero González
Stages in the process of
Associate Professor of Procedural Law at the Comillas Pontifical University, Madrid, started
legislative and regulatory by providing an overview of how laws are made in Spain and about the better-lawmaking
development in Spain and principles applicable in that country. In their presentation, they highlighted a number of
recommendations to produce
well-structured and accessible issues with the potential to frustrate the lawmaking process. These include the possibility
legal provisions of issuing royal decrees rather than following regular legislative procedures, thus avoiding
an obligatory public hearing (in Spain, royal decrees only require the approval of the
Council of Ministers). Furthermore, it was reported, there is little compliance with
guidelines for better lawmaking and no network for clear legal language – unlike in other
countries such as Norway (cf. presentation by Torunn Reksten).
In part 2 of their presentation, Fuentes Gómez and Carretero González focused on some of
the most common linguistic barriers to comprehension in legal texts, based on the
conclusions of a study on Spanish legal language carried out by a group of experts at the
Commission for the Modernisation of Legal Language. The Commission’s main criticism was
that the language used in laws was generally too complicated, and was far removed from
that used by the “average citizen”. This was particularly evident, the Commission found,
from the unnecessarily long sentences, overly complicated paragraphs and specialised
terminology found in legislation, as well as the use of cross references.
Panel 3: Legal provisions in the context of multilingualism
Aino Piehl Aino Piehl, EU language adviser at the Institute for the Languages of Finland, Helsinki,
Have 20 years changed focused her presentation on how the legal language of the European Union had influenced
perceptions about usage
Finnish legal and administrative language over the past two decades. In 1998, 2006 and
of Finnish in the EU?
2018, the Institute for the Languages of Finland conducted surveys of Finnish civil servants
on how they rated the comprehensibility of Finnish translations of EU legal texts compared
8to legal texts originally drafted in Finnish. The results: In all three surveys, more than 80%
of respondents (1998: 82%; 2006: 83%; 2018: 82%) found the Finnish language versions of
EU texts harder to understand. The majority blamed longer and more complex sentence
structures for this. Unfamiliar terminology also featured among the reasons cited as
barriers to comprehension.
This resulted in almost all respondents preferring to use English-language versions over the
Finnish text in their work, with Finnish versions used less frequently. Piehl concluded that
this was due to English being the dominant language of interactions at EU institutions.
Furthermore, she added, the English language version was often perceived as the “real”
version. Reasons cited for this included allegedly inaccurate translations of the English
original into the national language.
Prof. Dr. Isolde Burr-Haase/ Key requirements for drafting secondary legislation in different languages at the EU level
Nadine Schreiber were outlined by Isolde Burr-Haase, Professor of European Legal Linguistics at the
Comprehensibility in the University of Cologne, and her doctoral student Nadine Schreiber. For example, all 24
context of authentic
multilingualism at EU level: official language versions must be comprehensible as standalone texts. At the same time,
Aspects and challenges the principle of authentic multilingualism prevails, i.e. all language versions are considered
using the example of the
EU Directive on combating equally binding. The lawyer linguists and translators who draw up versions of the same text
terrorism in different languages must constantly strike a balance between use of parallel wordings on
the one hand (i.e. “same meaning and the same form”) and equivalent wordings (i.e.
“equivalent meaning in different form”) on the other: Fundamentally, it was argued,
equivalent content should be conveyed with parallel wordings in all language versions;
where this is not possible, the pursuit of parallel wordings must take a back seat in relation
to equivalence of content and meaning. The two speakers explained this using the example
of how different terms (armi da fuoco – armas de fuego – weapons – armes) were used to
designate the same types of weapon in the EU Counter-Terrorism Directive (2017/541).
Burr-Haase and Schreiber pointed to legal definitions and recitals as two further options
for ensuring comprehensibility in secondary EU legislation – especially when it comes to
ensuring that the legal concepts underlying a term are understood.
Concluding discussion, Panel 3
The discussion that followed the presentations of the Panel 3 centred around the impact of
contrasting legal systems as a challenge to comprehensibility in the context of EU
multilingualism. EU law, it was argued, is shaped both by the Anglo-Saxon case-law system
and by the more abstract system of continental law (cf. presentation by Jon C. F. Nordrum
and subsequent discussion). This affects the legal traditions and legal concepts of the
Member States, which are obliged to implement EU legislation in their own law. The
European Commission, Fuentes Gómez and Carretero González argued, should provide
Member States with more support in implementing EU law.
Aino Piehl argued that legal and linguistic accuracy, comprehensibility and equivalence
could be achieved for legal provisions in all 24 official languages of the European Union if
civil servants, who possess the necessary field knowledge and legal expertise, were to forge
a closer working relationship with the translators of the European Commission, who are
experts in optimising the transposition of substance into language. This cooperation should
9commence at the earliest possible stage, i.e. significantly in advance of drafts being fully
agreed. Piehl noted that a network of this sort for the translation of EU provisions has been
in place in Finland since 2009.
In discussion with members of the audience it also became clear that interdisciplinary
cooperation often fails due to a lack of time. Eight weeks are available for the translation
and legal scrutiny of EU norms. While lawyer linguists and translators do their best to
produce uniform, well worded texts in each of the EU’s official languages and to avoid
excessive EU jargon, cuts in human resources have resulted in a smaller translation service
and increased outsourcing of translation work to freelancers.
Panel 4: Texts that make legal provisions comprehensible
Panel 4 of the symposium looked at approaches to making the law more accessible to
citizens and legal practitioners in a way that goes beyond the wording of legal provisions
themselves.
Dr. Peter Bischoff-Everding Peter Bischoff-Everding, Deputy Head of the Unit for Consumer and Marketing Law at the
Consumer information European Commission’s Directorate-General for Justice and Consumers, spoke about a
number of initiatives to improve awareness of consumer rights. In 2016 and 2017, with its
Consumer Fitness Check and as part of its evaluation of the Consumer Rights Directive, the
European Commission put consumer knowledge to the test in areas including unfair
business practices and unclear terms in consumer contracts. The outcome of the surveys:
consumers were more aware of their rights than the Commission had expected. However,
the surveys still revealed considerable room for improvement.
In his presentation, Bischoff-Everding referred to “pay now” buttons (indicating when an
online purchase is about to be made) as a positive example of companies providing
transparent information to consumers. He noted that consumers tend to turn first of all to
the companies they are purchasing from, i.e. their contractual partners, when seeking
information about their rights. For this reason, companies are offered the possibility of
attending European Commission training programmes and to pursue voluntary
commitments to providing consumer information such as general terms and conditions in a
clear and user-friendly format.
Bischoff-Everding also described some of the measures taken by the European Commission
to educate consumers directly. Guidance materials, he explained, were a tried and tested
way of facilitating people’s understanding of the law. When drafting guidance materials –
also in all 24 official languages of the EU – attention was paid to identifying the core
consumer rights set out in EU law and working with consumer rights experts and language
editors to translate these provisions into comprehensible consumer information. Various
campaigns such as EUandMe and the website europa.eu/youreurope2 have been launched
to inform consumers of their rights.
2More information on consumer rights can be found under:
https://europa.eu/youreurope/citizens/consumers/index_de.htm
10Frank Spangenberg Frank Spangenberg, from the Division for Better Regulation, Screening of Legislation and
Federal Information Federal Information Management at the German Federal Ministry of the Interior, Building
Management (FIM)
and Community spoke about Federal Information Management (FIM), a project by the
federal government to standardise the translation of legalese into user-friendly language.
The aim of this project is to ensure that legally accurate and comprehensible information is
available to citizens, companies and government agencies on all relevant government
services (e.g. high-demand services such as registering a business). This specially tailored
information is to be made available on the websites of federal government authorities and
those of all German states (Länder) that have joined the future “portal network”.
Furthermore, it will be provided to staff at “115”, the customer service hotline of the public
administration. Staff at the hotline will be able to use these texts to respond quickly and
effectively to citizens’ enquiries. In addition, it is hoped that the use of this standardised
information on services will help prevent erroneous and potentially costly inconsistencies
in how federal legislation is implemented by government authorities in the Länder.
FIM procedure, Spangenberg explained, requires that for every government service
provided on the basis of newly enacted provisions (federal act of parliament, federal
executive action pursuant to enabling legislation) steps must be taken to define the
processes required for the provision of that service, which are then visualised using a
process description language. Subsequently, these processes are used to identify obligatory
data fields, for example, for an application form (core data). Citizen-friendly texts (core
texts) are then drafted on the basis of the process description and the data fields identified.
These texts include information on eligibility, the documents required for the application
and the relevant processing deadlines. Core data and core text are then submitted to the
Länder to be tailored to local circumstances. The procedure is led by the Federal Editorial
Team (Bundesredaktion). This consists of a central coordination office at the Federal
Ministry of the Interior and points of contact at the different federal ministries responsible
for individual legal provisions/administrative services.
Spangenberg explained that the drive for standardisation would provide greater legal
certainty for authorities, citizens and companies, and would make the law more
transparent.
Panel 5: Research relating to the comprehensibility of legal provisions
In Germany, academic studies on the comprehensibility of legal provisions are few and far
between. Panel 5 was all the more interesting, therefore, in that it featured two studies
dedicated to that very subject. After all, research in this field can only underpin practical
efforts to achieve more comprehensible legislation.
Prof. Dr. Felix Uhlmann Felix Uhlmann, Chair of Constitutional Law, Administrative Law and Legislative Studies at
An exercise in re-wording the University of Zurich, began by presenting the results of a study he conducted on the
complex legal provisions: (in)comprehensibility of a legal provision from Switzerland’s Act on Secondary Residences
tackling the “monster
paragraph” in the Swiss (Article 8 para. 3, christened Switzerland’s “monster paragraph” by a Zurich-based
Act on Secondary newspaper). This complicated provision gained much notoriety in Switzerland when it was
Residences
revealed that even parliamentarians who had passed the provision were evidently unable to
understand it. Uhlmann and his students took the opportunity to assess the
11comprehensibility of the provision as it stood, and compare this with outcomes for two
proposed re-wordings. The comprehensibility of each wording was assessed in three
different stages: after an initial reading (“prima vista comprehensibility”), upon application
of the provision to a specific case (“comprehensibility in practice”), and following both
initial reading and application (“comprehensibility a posteriori”). When evaluating outcomes
at the prima vista stage, Uhlmann had been surprised to note that students rated the
original wording of the “monster paragraph” as being the easiest to understand. He was
also astounded that, at the practical stage, neither the original nor the two alternative
wordings were guaranteed to result in correct implementation of the law (one of the
alternative wordings produced the best results – albeit with a success rate of only 20%). In
assessing comprehensibility a posteriori, it emerged that students no longer considered the
original wording of the “monster paragraph” to be the most comprehensible; rather, the
majority voted in favour of one of the two alternatives.
Based on the outcomes of the study, Uhlmann concluded that it was not just the text of a
provision itself which facilitates comprehensibility in a norm. Rather, comprehension is
additionally impacted by a norm’s predictability, applicability and acceptance. In the case of
Switzerland’s “monster paragraph”, it would have helped for lawmakers to provide
additional explanation, Uhlmann found. It might also have made sense to represent
complex calculations not (only) as text, but with the use of formulae.
This conclusion was upheld in the discussion that followed: even if text was the traditional
medium of lawmaking, convincing examples existed of how text could be rendered in
formulae or illustrations in order to improve comprehension among the target readership.
Dr. Christian Jarchow A further study was presented by Christian Jarchow from the Division for Effective
Making the law Governance at the German Federal Chancellery. Jarchow outlined an interdisciplinary
comprehensible:
project carried out together with the Federal Ministry of Justice and Consumer Protection,
Research on the
comprehensibility entitled “Making the Law Comprehensible”. The project seeks to identify which information
of legal texts sources are used by legal practitioners and the general public to find answers to legal
questions. It also seeks to establish whether these groups consult legislation as part of their
research, how they rate the comprehensibility of legislative texts and whether they
recognise the need for comprehensible legal provisions, and which areas of law they most
frequently research. The starting point for the study was a representative survey carried out
by the Federal Statistical Office in 2015 and 2017. As part of this survey, enterprises and the
general public were asked to indicate their level of satisfaction with government services
(“life events survey”). Comprehensibility of the law turned out to be the worst rated of all
areas surveyed.
The study also revealed that even those without a legal background consult the law in
order to solve their legal problems, and that both (legal) practitioners and the general
public experience difficulties in understanding legal texts. Furthermore, even legal
professionals overwhelmingly believed that legal provisions should be comprehensible to
non-lawyers, especially those laws that affect people directly. Landlord and tenant law is
the legal area that people research the most. It was interesting to note, Jarchow added,
that only a small percentage of respondents had taken the initiative to consult government
brochures on landlord and tenant law themselves. However, they did rate such material as
12very helpful when it was provided to them explicitly as a way of solving their legal
problems.
In the discussion that followed the presentation, it was noted that, for legal texts,
subjective experiences of comprehensibility will naturally differ between lawyers and the
general public. It would therefore be interesting to extend the project to include studies
examining whether subjective impressions of poor comprehensibility can be confirmed
objectively (e.g. by asking groups of respondents with different professional backgrounds
to solve concrete case examples). The discussion also looked at which conclusions can be
drawn from the study in practice: on the one hand, legal provisions could be improved from
a comprehensibility perspective; on the other hand, it was argued, auxiliary materials on
specific legal issues should be made more easily available for potential target audiences on
the internet.
Concluding discussion, Panel 5
The key message of the presentations and discussions of panel 5 was that the drive for
comprehensible legal provisions was far from over. The goal should be to achieve
maximum comprehensibility, especially in those areas of law that affect the general public
directly. With this, the debate returned “full circle” to the message of Wolfgang Klein’s
keynote speech at the start of the conference – that in a democracy, citizens must be able
to understand the laws they are obliged to follow. “A state governed by the people may not
be governed by laws which the people do not understand.”
Conclusion
The key findings of the Fourth European Symposium on the Comprehensibility of Legal
Provisions can be summarised in seven hypotheses as follows:
1. The studies presented show that the very same factors constitute linguistic barriers to
comprehension for laws and regulations drafted in a number of languages – whether in
Finnish (Piehl), Spanish (Fuentes Gómez/Carretero González) or German legalese
(Jarchow; also Bydlinski): long and unstructured sections and paragraphs; long,
complicated sentences; unfamiliar, partly archaic language, and technical jargon.
2. Terminology work is particularly important in settings where different legal concepts
and traditions – i.e. not just official languages – exist and require harmonisation, such as
the European Union (28 Member States, 24 official languages). The strive for authentic
multilingualism requires those drafting the individual language versions of EU
secondary law to find solutions in situations where the same or similar terms have
different meanings in different Member States, where certain legal concepts are non-
existent in a Member State or where a precise, legally watertight definition must be
found for everyday terms (Burr-Haase/Schreiber). Glossaries and terminology databanks
(Attila) may help drafters of different language versions and those applying the law to
find these solutions.
3. Efforts to improve the comprehensibility of legal provisions/to achieve clear and precise
legal language take time (Piehl, Reksten). It is the job of policymakers to ensure that
13sufficient time and other resources are available. Ultimately, this is a question of
attitude (Fuentes Gómez/Carretero González) and socio-political culture (Reksten).
4. The abstract nature of provisions, particularly those emanating from the continental
legal system, makes it hard for the general public to understand the law in full without
assistance. In this context, case-by-case judicial subsumption becomes a necessity
(Nordrum). This also shows that universal comprehensibility of the law cannot be
achieved simply by surface linguistic work at the drafting stage. Any prior knowledge
held by the individual reader (Klein) and a willingness to delve into the legal material
will play a decisive role.
5. Visualisations (Schmid) and formulae (Uhlmann) are tools that can be used to provide a
clear illustration of material that is ambiguous or difficult to express in writing. And: in
addition to helping target audiences understand a norm, visualisation can assist the
authors of legislation in structuring their thoughts at the drafting stage and serve as a
basis for translating these ideas into text (Schmid).
6. Work to introduce clear language should not be limited to legislation: in explaining the
work of government (Barley), imparting legal knowledge and explaining rights and
duties, it is vital that the general public be provided with clear, user-friendly information
materials that explain the underlying legislation (Bischoff-Everding, Spangenberg).
7. Digital transformation is omnipresent, and brings both opportunities and challenges – in
lawmaking and efforts to improve the comprehensibility of legal provisions, in the
application and interpretation of the law, and even in the training of legal professionals
(Hamann, Nordrum, Schmid, Spangenberg). The digital revolution makes the
development of innovative tools and standardisation of processes (and texts?) possible if
not inevitable, and paves the way for previously unexplored avenues of research.
However, with digital technologies becoming more and more of a driving force, we
should also anticipate a shift in requirements vis-à-vis lawmaking processes themselves
and the very texts that make up our legislation. Some of the aspects of this discussed
during this year’s symposium included machine readability of structures in legislation
(Hamann, Frey), regulatory technique (given that more definitive wordings fit better into
a digital environment than general/abstract provisions) and the harmonisation of legal
terminology (Attila, Schefbeck). To meet these requirements in the future, drafters will
need to be trained in the application of digital processes in general, as well as in the use
of specific digital tools.
Zsuzsa Parádi and Konstantin Tacke
(Legal editors at the Unit for Legal Drafting Support
at the Federal Ministry of Justice and Consumer Protection)
Translated by:
Christopher Yianni and Ilka Russy
(Language Services, Federal Ministry of Justice
and Consumer Protection)
14You can also read
