Science™ 'Splains 'Convoluted “Legalese”'

An MIT paper sheds light into the functions and forms of legal lingo, and you're welcome for that reference (esp. if you're a legal professional)

Let’s do something a tad lighter today, shall we?

I happened across a recent paper by a bunch of MIT’ers and learned ‘why laws are written in an incomprehensible style’. That is, according to this little MIT News item written by Anne Trafton from 19 August 2024.

The convoluted “legalese” used in legal documents conveys a special sense of authority, and even non-lawyers have learned to wield it.

And as soon as I read that sub-header, I had to think of Arthur C. Clarke who once quipped (in his essay ‘Hazards of Prophecy’, first published in 1962) that

any sufficiently advanced technology is indistinguishable from magic.

Now, for the below text, please substitute ‘legalese’ for ‘technology’—and there you go: we’re ready to move on (back to Ms. Trafton’s article):

MIT cognitive scientists believe they have uncovered the answer to that question. Just as “magic spells” use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority, they conclude.

And with the stage thus properly set, please follow me down this rabbit hole (with emphases and [snark] added).

‘Even laypeople use legalese’

That would be the title of the paper by Eric Martínez, Francis Mollina, and Edward Gibson, which appeared in the PNAS, 121 (35) in August 2024 (https://doi.org/10.1073/pnas.240556412). Here’s the paper’s abstract:

Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n = 59) million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English. Next, two preregistered text generation experiments (n = 286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws wrote in a more convoluted manner than when tasked with writing unofficial legal texts of equivalent conceptual complexity. Contrary to the copy-and-edit hypothesis, we did not find evidence that people editing a legal document wrote in a more convoluted manner than when writing the same document from scratch. From a cognitive perspective, these results suggest law to be a rare exception to the general tendency in human language toward communicative efficiency. In particular, these findings indicate law’s complexity to be derived from its performativity [hello, cultural turn > Foucault], whereby low-frequency structures may be inserted to signal law’s authoritative, world-state-altering nature, at the cost of increased processing demands on readers. From a law and policy perspective, these results suggest that the tension between the ubiquity and impenetrability of the law is not an inherent one, and that laws can be simplified without a loss or distortion of communicative content.

See—it’s all unnecessarily convoluted and complex by design is what the authors are saying. Since the paper is available online, I’m delimiting myself to a few choice quotes:

Legal content must be drafted in a way such that people can ultimately understand and comply with it…

A core tenet of modern legal doctrine…mandates that laws provide proper warning of prohibited conduct “in language that the common world will understand”…

Principles of communicative efficiency likewise suggest that laws should be understandable

So far the theory—here’s reality:

Legal documents have long been observed to be notoriously difficult to understand…including both private contracts and federal legislation [wanna see some EU legalese?] Same shit, but longer and in more languages], to be laden with center-embedded clauses at a rate twice as high as other genres of texts…

It remains an open question how complex features such as center-embedded syntax make their way into legal documents in the first place…

Findings suggest that lawyers and lawmakers write in a complex manner in order to confer legal documents a ritualistic, spell-like element, presenting broad-ranging implications for law, policy, and cognitive science.

Leaving aside the (in this author’s) asinine ‘result’ (‘This paper has empirically investigated the long-puzzling question of why laws are written in a complex manner’)—nope, you asked are laws written in a complex manner, not why that may be. Hence we read (in the ‘Discussion’ section):

There is a burgeoning psycholinguistics literature documenting the various domains in which communicative efficiency shapes human language…law stands as an attested exception to this observed efficiency.

And these few lines reveal the mumbo-jumbo: the authors asked why legal texts so convoluted and found—that they are. That’s quite a mis-match between hypothesis and results. Speaking of the latter:

Results suggest law to be a type of performative utterance, meant not just to communicate states of the world but to explicitly alter the state of the world. In such instances, distinctive low-frequency structures may be inserted in order to effectively signal the performative nature of the utterance, which in turn might increase processing demands on readers…

Legal documents can be simplified without a loss or distortion of legal content.

Somehow, the authors never enquire into those factors (money, lobbying) influencing laws and regulations to become so convoluted, hence we’ll have a field day reading the MIT News piece.

Meet the Study Authors

“People seem to understand that there’s an implicit rule that this is how laws should sound, and they write them that way,” says Edward Gibson, an MIT professor of brain and cognitive sciences and the senior author of the study.

It would be interesting to learn if Professor Gibson ever read a book on legal history.

I think it’s a fair question as the three authors are no strangers to the topic:

In a 2022 study, Gibson, Martinez, and Mollica [here’s the accompanying MIT News piece, if you’re interested]…revealed that legal documents frequently have long definitions inserted in the middle of sentences — a feature known as “center-embedding.” Linguists have previously found that this kind of structure can make text much more difficult to understand.

“Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages,” Gibson says.

At that point, I must re-iterate my above question about legal history. Having just published such a book (using Austria around 1800 as an example), I’ll relate an anecdote from last week’s trip to Montenegro:

Me (a historian) and a bunch of jurists (doing legal history) had a great time, but the differences in approach and purview were immediately apparent:

• while legal scholars are interested in any kind of legal document up until the point when the law is announced

• historians tend to look at what happens thereafter, i.e., a focus on implementation

For a grandiose example of how law is made (up), I recommend Bruno Latour’s The Making of Law (2009), which the author considers an ‘ethnography’ of law-making.

Back to the paper—it is fascinating™ to read the MIT News item:

Early American laws were based on British law, so the researchers plan to analyze British laws to see if they feature the same kind of grammatical construction. And going back much farther, they plan to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC [should be about 5 minutes of work, that is, if you’re using translations; if you must learn cuneiform, it’ll take longer].

“There may be just a stylistic way of writing from back then, and if it was seen as successful, people would use that style in other languages,” Gibson says. “I would guess that it’s an accidental property of how the laws were written the first time, but we don’t know that yet.”

Oh, my, just look at the elegantly written US constitution and you’ll quickly learn that laws weren’t that convoluted back then. They are now, and while I personally find this a good research question, it’s main function appears to be the perpetuation of grift (grant money) and the like.

Hence, I’ll offer my two cents in the next section, quoting a bit from my book.

Why is ‘Legalese’ so Hard to Read?

My personal take after spending about a decade on my book looking into the application of new laws in Habsburg Lower Austria from the 1750s to the 1820s boils down to these core aspects:

• central gov’t wishes to change deeply entrenched legal and social ways and means (the Old Regime, or ‘feudalism’, and its manifestation beyond the imperial court, patrimonial domination)

• after having studied the issue, a select few councillors (experts™ in today’s lingo) offers a series of reforms to the ruler who then decides, adding/changing stuff on the go (which isn’t to say the ruler was uneducated or stupid but that we can trace some of these changes)

• a revised set of new rules, laws, decrees, or whatever is published and gets implemented, however un-evenly applied the clauses are in the beginning; spreading the news takes time, but eventually, these new rules are used for a variety of reasons (orders are given, sometimes it gets easier to make law, etc.)

Yet, what is typically overlooked by legal scholars are two additional aspects:

First, the more any given institution relies on experts™ to draft these new sets of rules, questions rise to the top concerning the background of those who do the writing of these new rules, laws, or decrees. Using my own study as an example, I suspect it comes as no surprise to you to learn that the people who write these new texts all come from a comparatively small subset of the general population and share certain distinctions (as Bourdieu would have it), including university training, often a common social background, and a keen appreciation of the precariousness of one’s position within any given system.

The latter aspect might be the key here: if everyman (Mr. Smith) is able to read any new law, he might also be able to write it, hence reducing, if not eliminating the need for a dedicated, higher-paid subaltern class of specialists in the first place.

The absurdity—and, I’d argue, also veracity—of this insight (lol, it’s totally obvious) powerfully comes to the fore once one considers the realities of the Old Regime: rulers aren’t rulers because they are special, gifted, or the best at what they do; rulers are rulers because of their parents. There’s literally nothing special about them.

By contrast, members of the subaltern class of specialists don’t have anything comparable to offer in terms of their descent; they can point to their own expertise and distinction, which is human-made.

Hence, reducing the complexity of ‘legalese’—or any other scientific and/or scholarly enquiry—is tantamount to the abolishment of any kind of special privileges afforded to the practitioners of said trade or craft. In plain language: if everyman (Mr. Smith) can do it, there’s no need for a thinking class with higher salaries, plum positions in academia, at think-tanks (sic), or on expert councils, to say nothing about special advisors to this or that politician.

Bottom Lines: A Banquet of Consequences

I’ll leave you with two thoughts that I put into my book. At this point, we must ask about the point of academic credentials—and, no, not for any individual (incl. myself, a history professor) but for society at-large.

Luckily, there’s no need to re-invent the wheel, courtesy of 18th-century thinkers having pondered that very question, too. Here’s one of my favourite quotes by Joseph von Sonnenfels (1732-1817; Wikipedia) who argued for more quality over quantity in his 1771 treatise ‘On the Disadvantages of More Universities’ (orig. Ueber den Nachtheil der vermehrten Universitäten). Explicitly referring to excess graduates who would, naturally, gravitate towards state employment, Sonnenfels’ words were prescient back then (and they ring eerily relevant in the early twenty-first century):

Instead of the schools providing the offices with the required number of useful candidates, new magistrates [orig. Ämter] were created to absorb the sheer masses of students and provide them with something…Offices were multiplied to get rid of the impetus of the fathers and their families who treat their official title as necessary accoutrement [orig. Verzierung] without which one may not appear in public. One must be something, sayeth those who, irrespective of their official title, will never be someone.

Shall we talk about the futility of, say, DOGE’s efforts to reduce the bloated bureaucracy absent meaningful reforms to the entire education system from pre-K to post-tertiary education? Anyone who still peddles the notion of our 21st-century society being an ‘information and/or knowledge society’ who doesn’t advocate for some restraint on the education/training side is not a very serious person.

For a case in point, I shall cite one more bit from the conclusion of my book, which also offers a better (I would argue) answer to the MIT researchers’ question. For the below quote (p. 193), I’ve added squared parentheses to indicate the parallels to the present:

As regards the history of the Habsburg Empire from the accession of Maria Theresa until its demise in 1918, second, my findings underscore the need to overcome the equally entrenched views about institution-building and governance. Across both early modern and modern Central Europe [as well as in the 21st-century], change typically came about by central government(s) whose activities, albeit in a haphazard and often unplanned way, increasingly encroached on the prerogatives of traditional patrimonial domination [or any other already-existing system of order]; the way this came about, however, was by monarchical fat (iure regio) [today, we use executive orders (decrees) or regulations derived from what is arguably little more than enabling legislation, i.e., there’s a problem, here’s some money, sayeth Congress, tasking either a cabinet-level gov’t minister or a new gov’t agency to ‘fix it’]…these considerations are hardly found in the pertinent literature on state-building à l’autrichienne [or, literally, anywhere else], in particular once one considers that meta changes emanating from Vienna [insert any capital/gov’t you’d like]—proposed by a narrow coterie of imperial councillors [experts™]—would be implemented in comparably parochial settings by patrimonial officials [state-level or municipal officials].

There you go: I’ve now explained, I’d argue, why ‘legalese’ is so convoluted.

Sure, there’s always ‘more’ to add, esp. that academic training requirements also ensure that whatever one’s background is before becoming an expert™ is modified during one’s education™ in more than just manners, outlook, class biases, etc.—for there’s also the way (legal) textbooks are written, which is said to be way to do it, and hence virtually all papers produced by law students imitate this particular style.

We may also discuss the history of university reforms during the 19th and 20th centuries, i.e., all the things (and then some) that underwrite and inform the present.

I’ll leave you with the concluding lines of my book (pp. 194-5) that drive home the main connection between history ‘as a vocation’ (Max Weber, 1919) and less-than-useful grifting:

Scholarship of state transformation and governance would be well advised to draw on the vast domain of earlier instances of change, widely understood, and—much like EU-led ‘institution-building missions’—draw on all interested and competent parties, be they patrimonial and territorial ofcialdom, landowners, regional governors, state officials, and imperial councillors, as well as the local population (and, perhaps, also transient elements, such as vagrants and wanted criminals [my book is based in part on hundreds of hand-written wanted notes or APBs from rural Lower Austria]). It is their inclusion that will allow historians and social scientists [and legal scholars as well as linguists, apparently] to leave worn-out interpretive paths behind and, given the Habsburg Empire’s oft-cited role as a ‘laboratory for modernity’, doing so might also hold one or the other lesson for policy-makers and institution-builders in the twenty-first century.