Category: Words and Things

27th July 2022

This post follows yesterday’s very popular post which provided a close reading of the letter from Prime Minister Boris Johnson to the House of Commons liaison committee.

Indeed, the most popular posts on this blog are often close readings of some formal document or another.

It therefore seems a good idea to do a stand-alone post on how to read formal documents.

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In doing this, please note I am not trained in forensic linguistics – nor am I clever enough to understand deconstructionism or post-modern philosophy.

My perspective is that of a practical lawyer and legal commentator.

This means that with one hat (or wig) I create legal and other formal documents, and with the other I take them apart and seek to explain them to the public.

So treat this post like a poacher’s guide to gamekeeping, or as a gamekeeper’s guide to poaching.

It is also perhaps relevant that I have a history degree and that I am a former central government lawyer.

In other words: I am a documents geek.

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Let us begin with what we are looking at.

What is a formal document?

Literally, a formal document would be a document that has a certain, well, form.

And documents that have to be set out in a certain form are usually formal documents.

But the term has a wider meaning, and I take it to cover serious and considered documents generally.

In this way formal documents are distinct from, say, casual writing.

In essence: a formal document is a document which has been created with care to serve a function.

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So the first step is to understand the function of a formal document.

Why has this document been created?

An Act of Parliament or a deed is created so as to create or affect legal relationships.

A resignation letter is created so as to effect a resignation.

A letter in response to a request needs to be understood in the context of the request.

And so on.

Once you have ascertained the function of a document, that will inform you as to what one can expect to be in the document.

For example, here is the resignation letter of President Richard Nixon:

This letter fulfils its function.

Nothing more needed to be said, and so nothing more was said.

In contrast, this is the Article 50 notification letter of then Prime Minister Theresa May.

All that letter needed to say was that the United Kingdom is providing notification of its intention to depart the European Union.

But the letter went on (and on) for six pages.

There was no need for anything more than one substantive paragraph.

And so by understanding the function of a formal document you can understand which part of its content serves the function of that document – and what part needs other explanations.

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The next question to ask is whether the document is an instrument.

Some documents record things, and some documents do things in-and-of-themselves.

For example, an Act of Parliament does not (normally) record the law but is a source of the law.

Or a deed does not (usually) evidence a contract but can create legal relationships and obligations.

This is why lawyers can be prone to pompous language such as “hereby” and “hereinafter” as the idea is that the words on the page that are themselves (magically) creating things.

If a document is an instrument then for it to have the intended (magical) effect then certain words and phrases (spells) have to set out (incanted) in a certain way.

And if those words and phrases are not set (incanted) in a certain way then the instrument fails.

One error that can be made by those who are inexperienced with dealing with certain instruments is to take such formalities as saying something in particular.

For example, take the preamble for an Act of Parliament:

If you had never seen an Act of Parliament before you may wonder why all these lords (spiritual and temporal), and commoners, happened to be assembled in one place for enacting this bill.

But when you realise the document is an instrument – a document which, in-and-of-itself does a thing, you see which parts make it instrumental – and thereby which parts do not need another explanation

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The next question to ask is about what audiences the document will have.

For example, take a lawyer’s letter threatening legal action.

If the letter is “open” it is intended to be placed before the court to show that the suing party put its case to the defendant(s) before issuing a claim.

The letter thereby is written for the judge.

But the letter is also written for the other side to see – and to have a certain effect on the other side.

Another audience for the letter is the suing lawyer’s own client, who may have wanted a robust lawyer’s letter as a form of satisfaction – or perhaps therapy.

A wise lawyer in a high-profile case will also realise that a potential audience for such a letter can be the public and/or the media.

Another example are contracts.

A contract is there to tell the court what the parties have agreed, including as to what would happen in certain circumstances.

But a contract also needs to be comprehensible to the parties without going to court.

And the contract may need to be disclosed to regulators and tax authorities, or investors and business purchasers.

Parts of the contract may be written with one or more of these audiences in mind.

And in this internet age, resignation letters – of which there have recently been a large number in British politics – can be written not just for the respondent but also for the public to read on social media.

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And now we get to the author(s).

Many formal documents are not created by a single author.

Indeed, many formal documents can be regarded as negotiated documents – whether the negotiation is between different parties (like a contract) or between the nominal author and their advisors and employees.

A ministerial letter can be as much the product of civil servants and perhaps special advisers than of the mind of the minister themselves.

Some formal documents, such as Acts of Parliament, are the work of dozens – perhaps hundreds – of people.

Sometimes one can discern the subjective intention of an author – and how the creation of a document serves that author’s personal or partisan interests.

This is especially true if a particular person approves the final version of the document.

But sometimes that personal or partisan interest is not obvious and is difficult to disentangle from the function of the document and the purposes of its content.

Authorial intention is important – sometimes crucial – but it is not the only thing.

The best starting points with a formal document are function and purpose – and it is then, by relief, that you can sometimes see how an author’s personal or partisan interests are being promoted or protected.

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Now we come to the important bit.

The first of two ingredients of close reading.

Read what the document (actually) says.

Read every word and every phrase and think about those words and phrases.

You should presume every word and every phrase of a formal document is there for a purpose.

Your job is to work out that purpose.

Some lawyers call this “the rule against surplusage”.

The document itself should have a function – but in serving that function every word and every phrase in that function can be presumed to have a purpose.

Of course, you can have redundant words and phrases – just as you can have redundant code in a computer program.

But until you are satisfied that the words and phrases are redundant, the safe presumption is that they are purposeful.

For what is written with care should be read with care.

So you should ask: what is that word or phrase doing?

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And now we come to the difficult bit.

The second ingredient of close reading.

This is working out what is not said – or what could have been said differently, but was not.

For it is one thing to read carefully what is written, but it is another to work out what is not there.

Here we are not only concerned with complete, glaring omissions.

It is more about the words and phrases that could have been used – but were not.

It is about the text in the context of its function and of the relationship between the author(s) and its audiences.

Here context is important.

Some judges like to say “context is everything”.

This is true – but this does not mean context is anything.

The context of a text needs to relate to that text – and, in particular, the function of the text, the purpose(s) of its content, the audiences of the text, and the position (and subjective personal and partisan interests) of its author(s).

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Now let’s look again at Johnson’s letter to the liaison committee.

That letter, in response to a direct and plain query, could have said (and ideally should have said):

1. Alexander Lebedev’s name and his position as a former KGB spy;

2. That the then Foreign Secretary meeting Alexander Lebedev at the party was unexpected;

3. But in any case, that no official business was discussed between Alexander Lebedev and the then Foreign Secretary; and

4. That the meeting was, of course, reported to officials.

Had the Prime Minister been able to give this (ideal) response then he would have done so.

But he did not.

And he did not because he could not.

(And, although Johnson is a habitual and fluent liar, he could not say something in this exchange and in this formal document which may emerge as untrue.)

He did not want to say plainly: “As Foreign Secretary, I was not surprised to meet Alexander Lebedev, a former KGB spy, at a party where government business may have been discussed, and I did not subsequently report this meeting to officials”.

One can understand why.

So, applying the above approach, we can work out the following.

The function of his letter was to reply to the committee’s query.

The purpose of the content of the letter was to give the impression that he was answering the question posed.

Care and effort went into the words and phrases used.

As a ministerial letter, it would have been authored by Johnson in negotiation with his advisers, but he would have had final approval.

The audience for the letter is the committee and the public – and, crucially, individuals who may have evidence that government business was discussed.

We know what he could (and should) have said in an ideal world in response to the query – that he had not met a former KGB spy and he had not discussed government business without officials present.

We also know what he could have said, if he were writing plainly – that he had met a former KGB spy and may have discussed government business without officials present, and he did not report this meeting.

By comparing what he could (and should) have been able to say with what he did say we can see a gap.

Johnson went out of his way not to mention Alexander Lebedev by name, let alone his position as a former KGB spy.

Johnson went out of his way not to say that the meeting was unexpected – saying only that it was not “pre-arranged”.

Johnson went out of his way not to say plainly that official business was not discussed, but instead used a formulation “[a]s far as I am aware” that makes no sense as he would presumably have complete knowledge of any conversation to which he was a party.

And Johnson goes out of his way to give the impression that things were properly reported when he did not report the conversation to officials subsequently.

All this can be worked out not by just reading what the letter says but by comparing what the letter said with what it should have said in response to the query.

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A close reading of any formal document is a combination of reading carefully what is said and considering carefully what could have been said but was not.

The danger of this approach, of course, is that one can speculate or project things.

This is why understanding the function of the document and the purpose(s) of its content are important.

Regard to function and purpose provides the guide to measure what is said against what is not said – and it also provides the discipline against speculation and projection.

Nixon’s resignation letter requires little or no gloss.

May’s Article 50 notification letter indicates that five pages of verbiage requires some explanation by something other than the notification itself.

Johnson’s letter to the liaison committee contained twelve paragraphs in response to a simple query, seeking to mask and misdirect from the true situation – that he had, as Foreign Secretary, met a former KGB spy and was not able to say definitively no official business was discussed, and that this meeting was not subsequently reported to officials.

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In essence: a formal document is one where the document has been created with thought and care to serve a function, and with words and phrases chosen (and not chosen) by its author(s) so as to serve particular purposes before certain audiences.

And a close reading of that formal document is where you have regard to the thought and care that went into that document, and its context, working out why certain words and phrases were chosen and what things were not said instead.

Welcome to being a documents geek.

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