A recent investigation into ‘legalese’ shows that this complex language serves to instill a sense of authority in legal documents. Researchers have also discovered that even individuals without legal training resort to legalese when asked to draft laws.
Legal documents are well-known for being hard to understand, even for those in the legal profession. This leads to the inquiry: Why are these documents crafted in such a confusing manner?
Scientists from MIT believe they have found the answer to this question. Much like “magic spells,” which use unique rhymes and old-fashioned terms to showcase their power, the tricky language of legalese serves to represent a sense of authority, according to their findings.
A study soon to be published in the Proceedings of the National Academy of Sciences has revealed that even those without legal expertise default to this kind of language when tasked with writing laws.
“It seems that people instinctively understand that there is an unspoken rule dictating how laws ought to sound, and they conform to that expectation,” explains Edward Gibson, a professor of brain and cognitive sciences at MIT and the study’s senior author.
The lead author of the study is Eric Martinez, PhD ’24, with Francis Mollica from the University of Melbourne also contributing to the research.
Creating a legal spell
Gibson’s research team has been examining the distinct traits of legalese since 2020, when Martinez joined MIT after earning a law degree from Harvard Law School. In a study conducted in 2022, Gibson, Martinez, and Mollica evaluated about 3.5 million words of legal contracts, comparing these with various other forms of writing such as movie scripts, news articles, and scholarly papers.
Their analysis indicated that legal documents often include long definitions within sentences — a structure referred to as “center-embedding.” Linguists have previously noted that this type of formatting can significantly hinder comprehension.
“Legalese seems to have developed this peculiar tendency to embed structures within other structures, a feature not typical in human languages,” states Gibson.
In a follow-up study published in 2023, the research team found that legalese complicates understanding even for lawyers. Attorneys showed a preference for plain English versions of documents and rated those as equally enforceable as traditional legal texts.
“Legalese is seen as cumbersome and complex by lawyers,” Gibson remarks. “Neither legal professionals nor laypeople favor it, which raises the question of why documents continue to be crafted in this manner.”
The researchers proposed a couple of theories to explain the prevalence of legalese. One theory, the “copy and edit hypothesis,” suggests that legal documents start with a simple base, then additional details and definitions are inserted, leading to complicated, center-embedded clauses.
“We speculated that the process begins with a straightforward draft, and then various conditions are added later. The idea is that once you start with that base, it’s simpler to integrate newly thought-out details into the existing framework,” explains Martinez, who is now a fellow and instructor at the University of Chicago Law School.
However, the results leaned towards a different theory known as the “magic spell hypothesis.” Just as magic spells are scripted in a distinctive form that sets them apart from everyday language, the intricate style of legal language seems to communicate a unique authority, according to the researchers.
“In English culture, if someone intends to write a magic spell, they know to include old-fashioned rhymes. We believe that center-embedding might serve a similar purpose in legalese,” Gibson explains.
For this study, the researchers asked around 200 non-lawyers (native English speakers from the U.S., recruited through a crowdsourcing platform called Prolific) to compose two types of documents. In the first task, participants were instructed to write laws against crimes such as drunk driving, burglary, arson, and drug trafficking. In the second task, they crafted narratives about those crimes.
To test the copy and edit hypothesis, half of the participants were prompted to add information after drafting their initial law or narrative. The findings showed that all participants used center-embedded clauses when writing laws, whether they drafted them in one go or were instructed to refine an earlier version. However, when crafting stories about the same crimes, they opted for much simpler English, regardless of whether they added details later.
“In law writing, participants consistently incorporated center-embedding, regardless of whether they were editing or starting anew. In the narrative texts, they avoided center-embedding in both instances,” Martinez noted.
In another phase of the experiments, around 80 participants were asked to draft laws as well as explanations intended for visitors from other countries. Again, they employed center-embedding for the laws but refrained from using it in the explanations.
The origins of legalese
Gibson’s team is currently probing the roots of center-embedding in legal writing. Since early American laws were derived from British legislation, they intend to analyze British laws to see if they exhibit similar grammatical constructions. They also plan to investigate whether center-embedding appears in the Hammurabi Code, one of the oldest sets of laws dating back to around 1750 BC.
“There may be a particular stylistic approach to writing from that era, and if it proved successful, that style could have persisted in other languages,” Gibson speculates. “I assume it might be an accidental characteristic of how the original laws were penned, though we don’t have definitive answers yet.”
The researchers are hopeful that their findings, which highlight specific features of legal language that complicate understanding, will encourage lawmakers to work toward clearer legislation. Efforts to simplify legal documents have been ongoing since at least the 1970s, when President Richard Nixon called for federal regulations to be drafted in “layman’s terms.” Despite these initiatives, legal language has seen little change over the years.
“We have only recently begun to uncover what makes legal language so complex, which makes me optimistic about the potential for change,” concludes Gibson.
