LAWYERS AND THE LITOTES

Would an argument that is not without merit be winning and persuasive? Not quite. What about a practice that’s not unheard of? It’s probably unusual. But precisely how unusual is more difficult to pin down.

Let me introduce you to the litotes, the ‘acceptable’ double negative that divides opinion in legal writing.

“A paradoxical ability to turn up the volume by turning it down.”
Jay Heinrich

Generally speaking, the double negative is frowned on as a grammatical construction. Although Shakespeare made liberal use of double (and even triple) negatives in his time, grammar prescriptivists decreed in the 18th century that the cumulative use of negatives creates an affirmative – and that has been the ‘rule’ ever since.

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But for …
… the litotes¹. The litotes, in the form of understatement or negation, is crafted to reaffirm a positive or for rhetorical effect. One way is to use not together with un-, in-, dis- etc.. Another is to reverse a word and add a negative – easy thus becomes not difficult, happy becomes not sad.

This device can soften an otherwise harsh observation. An understatement like it is not wrong to say creates distance and is more non-committal than the more forthright it is right that. And it was no accident is a lot less confrontational than it was deliberate.

The litotes isn’t just commonplace in everyday speech; it is also favoured by lawyers. Not + un- can add nuance because the two negatives don’t quite make a positive. To describe a campaign as not ineffective is neither a ringing endorsement nor an outright criticism; not unhelpful could mean anything from a barely lifting a finger to really quite helpful. It is that middle ground that causes the reader to pause and interpret.

A word of warning: interpretation of the litotes in international communication may be affected by cultural context. Especially in written communication, without the effect of intonation or verbal emphasis.

Jay Heinrich describes the litotes as “a paradoxical ability to turn up the volume by turning it down”². Small wonder that it is popular in law. Not unbounded, not unlikely and not unjustified can be found in a single ECHR judgment³. Litotes appearing in other English-language judgments include not unjustified or disproportionate⁴, not infrequent⁵, not inconsiderable, not inconceivable, not implausible, not unbounded, not unacceptable AND not non-negotiable!

It’s also popular in Dutch law. It’s not hard(!) to find judgments containing litotes such as niet onterecht, niet onaannemeljk, niet ondenkbaar and niet onaangenaam.

Not unlike can mean almost anything; although the listener may cancel the negatives to obtain “like”, the author may want to convey some difference between like and not unlike.
Judge Frank H Easterbrook

But…
The litotes divides opinion.

Whilst some argue that it makes the speaker sound reasonable, others claim that it sows confusion. The Economist Style Guide even includes the point that it is usually easier to write a double negative than it is to interpret it. Fowler⁶ regards their use as “a faded or jaded elegance” and although condemning unnecessary use, recognises that the litotes is “congenial to the English temperament” and that it may be used in certain contexts: “The right principle is to acknowledge that the idiom is allowable and then to avoid it except when it is more than allowable”.

George Orwell made his dislike of the construction clear, saying that the not + un- formation gives banal statements an appearance of profundity AND that it should be possible to laugh the not + un- formation out of existence.

On the use of litotes in legal writing, Bryan A Garner uses another George Orwell quote to discourage their use: “Beware the unappealing trick of not un ___, a kind of litotes that convolutes lawyers’ language. Swear off using it by saying to yourself, ‘A not unblack dog was chasing a not unsmall rabbit across a not ungreen field.’”⁷ .

That recommendation was endorsed by Judge Frank H Easterbrook, when he observed⁸:

“Not unlike” can mean almost anything; although the listener may cancel the negatives to obtain “like,” the author may want to convey some difference between “like” and “not unlike”.

And there’s the rub.

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If you are drafting for translation:
Tip 1: Context is important. The not + un- can be translated directly from Dutch to English – as can forms like ‘niet slecht’ and ‘niet zonder +’. Of course, the translation then retains any ambiguity, intended or otherwise.
Tip 2: Remember that cultural context or background can affect how the litotes is interpreted.
Tip 3: If it isn’t obvious what the drafter intends not bad to mean (e.g. quite good, rather than to take the sting out of a blunter alternative like awful), some behind-the-scenes clarification might be needed.