Researchers explore why legal documents use convoluted language

(CN) — Massachusetts Institute of Technology cognitive scientists believe they have uncovered the long sought answer to why legal documents are written in a style that makes them notoriously difficult to understand, even for lawyers and educated readers.

Researchers in study published Monday in Proceedings of the National Academy of Sciences say, in one hypothesis, that 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.

“These 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 maybe inserted in order to effectively signal the performative nature of the utterance, which in turn might increase processing demands on readers,” researchers write in their study.

Researchers found that even non-lawyers use this type of language when asked to write laws. Participants wrote laws in a more convoluted manner than when tasked with writing unofficial legal texts of equivalent conceptual complexity.

According to the researchers, lawyers and lawmakers write in a complex manner to lend legal documents a ritualistic, spell-like element to signal a legal document’s authoritative nature by establishing, eliminating and/or modifying legally binding social rules.

The other tested theory, which researchers called the copy-and-edit hypothesis, speculates that convoluted legal language may result from an iterative drafting process, in which conditions and specifications are often thought of only after the creation of an initial draft and are more easily embedded into the center of existing sentences as opposed to being written-out into separate sentences.

Contrary to that hypothesis, researchers did not find evidence that people editing a legal document wrote in a more convoluted manner than when writing the same document from scratch.

“We thought it was plausible that what happens is you start with an initial draft that’s simple, and then later you think of all these other conditions that you want to include. And the idea is that once you’ve started, it’s much easier to center-embed that into the existing provision,” fellow and instructor at the University of Chicago Law School and lead author of the study, Eric Martinez said in an email interview.

Participants in the study all wrote laws with center-embedded clauses, a feature where long definitions are inserted in the middle of sentences that the researchers found to be highly prevalent in legal documents. This is particularly due to the observed reliance of lawyers and lawmakers on templates and “boilerplate provisions” in the drafting process of legal documents.

“Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages,” MIT professor of brain and cognitive sciences and the senior author of the study, Edward Gibson, said.

Moreover, linguists have previously found that legal documents containing these features can make the text much more difficult to understand, even for lawyers and experienced lay readers.

While these results suggest law to be a rare exception to the general tendency in human language towards communicating efficiently, they also show that laws can be effectively simplified without a loss or distortion of their message, researchers said.

“These results add to an emerging body of literature demonstrating that the language of legal documents can be simplified without a loss or distortion of legal content, which might provide a source of optimism to efforts to simplify legal documents (which have been advocated for for decades, to no avail,” researchers write.

Gibson said they plan to analyze British laws, from which early American laws were based on, to see if they feature the same kind of grammatical construction. And going back much farther, they intend to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC.

“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 said. “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.”

Gibson’s research group has been studying the unique characteristics of legalese since 2020 by analyzing text from numerous legal contracts, comparing them with other types of writing, including movie scripts, newspaper articles, and academic papers.

The researchers hope that their work will motivate lawmakers to try to make laws more comprehensible.

Efforts to write legal documents in the U.S. in plainer language date back to at least the 1970s, when President Richard Nixon declared that federal regulations should be written in “layman’s terms.” However, legal language has changed very over time.

“We have learned only very recently what it is that makes legal language so complicated, and therefore I am optimistic about being able to change it,” Gibson said.

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