Language of the law seems designed to promote ignorance

I recall a scene in the movie of Daniel Defoe’s novel “Moll Flanders” in which a magistrate pronounced, “Ignorance of the law is no excuse.” Being too young, dumb and liberal to grasp the ramifications behind that precept, I was angered by its unfairness.

Yet, “Ignorantia legis neminem excusat,” Latin for “ignorance of the law does not excuse,” is a legal principle taken from ancient Roman law. Although seemingly unjust, there’s good reason for it.

That reason became apparent to me in the military when I confronted personnel who’d violated regulations. More often than not, they’d feign ignorance in expectation of leniency. Even when watching today’s reality TV crime shows, one can see perpetrators, caught red-handed, claiming they weren’t aware they’d done anything wrong.

That’s a microcosm of what would happen were ignorance of the law accepted as an excuse. It would make a mockery of justice.

However, the language of the law may indeed support ignorance claims. Recent congressional health care legislation has enlightened concerned people to the incomprehensibility of legal language. It’s as though verbiage is purposely made confusing so only the ruling elite can understand it.

Observe the convoluted way in which the following random extract from HR3200 is written, and try to quickly understand it: “LIMITATION ON COST-SHARING FOR DUAL ELIGIBLES AND QUALIFIED MEDICARE BENEFICIARIES – In the case of a individual who is a full benefit dual eligible individual (as defined in section 21 1935(c)(6)) or a qualified medicare beneficiary (as defined in section 1905(p)(1)) who is enrolled in a Medicare Advantage plan, the plan may not impose cost-sharing that exceeds the amount of cost-sharing that would be permitted with respect to the individual under this title and title XIX if the individual were not enrolled with such plan.”

Takes more than a few seconds, eh? In the original text, each line is unnecessarily numbered for reference at the expense of clarity. The numbering sequence is broken and restarted by page breaks. End-of-sentence words are truncated, disrupting the reader’s train of thought. Compound modifiers aren’t hyphenated, creating confusion. Grammatical errors hinder readability. Parenthetical references divide text, further interrupting the train of thought.

All this could be fixed simply by following the Government Printing Office Style Guide. What follows is the same text edited using GPO style-guide rules: “(7) Limitation On Cost-Sharing for Dual-Eligible and Qualified Medicare Beneficiaries – In the case of a full-benefit, dual-eligible individual, or a qualified Medicare beneficiary enrolled in a Medicare Advantage plan, the plan may not impose cost-sharing on the individual exceeding that which would be permitted under this title and title XIX, if the individual were not enrolled with such plan.”

Text is made more readable by footnotes instead of parenthetical references. Compound modifiers are hyphenated for clarity.

However, the final clause, which made no sense to begin with, and whose tense conflicts with the rest of the sentence, still doesn’t have any meaning that’s immediately understandable. It looks to have been tacked on as an afterthought. It should be deleted or rewritten with proper grammar and a clear purpose.

Obviously, congressional staff have their own writing conventions; that appears to be the problem. When politicians who develop laws cannot understand their own creations, such conventions should be changed. How can government contend ignorance of the law is no excuse when its own members are ignorant of what is actually written? Many don’t deny their ignorance.

Rep. John Conyers (D-Mich.) is an example. He said, “What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?” That Conyers could say this without embarrassment shows how low moral and intellectual standards have gotten for elected representatives. Jefferson and Madison must be gagging in their graves.

Bills are conceptualized by legislators, written by assistants and then translated by staff into legalese. Legislators then have to hope nothing is added or lost in translation. That’s why a law requiring common-language legislation is needed.

Common-language laws aren’t anything revolutionary. New Hampshire laws demonstrate that point. In fact, the state has laws that are just a single sentence. Some in Congress have tried to do likewise.

In the 110th Congress, H.R. 3548, the Plain Language in Government Communications Act of 2008, was passed by the House, but never made it into law.

That isn’t surprising. Plain language acts have been proposed since the 1970s. Failure to enact one suggests vested interests in the status quo don’t want this to happen.

Yet, with lawyer-speak disguising content, how can anything but ignorance of the law prevail if the population does not know precisely what its laws say and mean? It forces citizens to trust the ruling elite to translate them accurately. That bodes ill. For, while ignorance of the law is no excuse, knowledge of the law is power.