For many years now, plain English – or plain language – has been the guiding philosophy in legal drafting, whether in the context of drafting contracts, legislation or prospectuses. One of the rules of plain English is that the excessive use of negatives (i.e. inserting too many words such as “not” or “without” in a sentence) should be avoided. The US Securities and Exchange Commission was one of the first regulators to include the avoidance of multiple negatives in its plain English rules. A similar recommendation – to prefer the positive to the negative – appears in the plain language rules of the Hong Kong Securities and Futures Commission.
The avoidance of double negatives makes sense as it increases the clarity of legal drafting and, consequently, the ease with which English text can be translated into other languages such as Chinese. In their frenetic daily life, lawyers often overlook the benefits that drafting in plain English brings in terms of creating translation-friendly texts.
As this column will explain, there are some circumstances in which we must learn to live with double negatives. As is the case with most issues, however, the task of the lawyer lies in using them wisely – and sparingly.
Broadly speaking, double negatives in English fall into three categories. The first category involves colloquial expressions such as “I ain’t done nothing wrong”, where the sentence is grammatically incorrect. We don’t need to dwell any further on this category as it is reasonable – if not always realistic – to expect that contracts and other legal documents will be drafted in a grammatically correct manner.
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew Godwin is currently on secondment to the ALRC as Special Counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com
