Study explains why laws are written in an incomprehensible style
phys.org
phys.org
So they’ve discovered literary form and genre. Remarkable.
To be less snarky, my wife is a lawyer, while I am an Anglican priest (cue the jokes). Both of us are in fields where certain traditional literary forms—be it statutes, contracts, biblical texts, or liturgical prayers—play important roles. These forms tend to be inherently conservative because there is the sense among practitioners of both the law and the liturgy that things can go awry if one departs too far from established conventions, so it’s better to rely upon boilerplate conventions, which can actually be more efficient in spite of their syntactical convolutions. Indeed, C.S. Lewis makes the point w/r/t liturgical vs. extemporaneous prayer that formal, customary prayer frees one up actually to pray because one isn’t having to decide with every utterance whether or not one agrees. The extemporaneous prayer may be more “straightforward,” but it imposes its own set of cognitive burdens.
I would guess that legal writing operates similarly: boilerplate constructions have generally standard and agreed-upon meanings around which many of the substantive interpretive issues have already been resolved, which makes them on the whole more efficient. What law seeks to accomplish as a genre of writing depends upon striking a difficult balance among interpretive stability, capaciousness, and definitiveness, which necessitates certain concessions to what we might consider stylistic infelicity. (Plus, those concessions keep food on my table, so I’m rather grateful for them, lol.)
It shouldn’t be surprising or noteworthy that people who are asked to compose a bit of text in a particular genre respond by writing in a way that conforms to what they understand of its generic conventions. Similarly, if I asked people to write something that could be a passage from the Gospels, most people would probably produce a text with thees, thous, and verilys and that would also likely include something about sheep and being good to other people. They would do this because in their minds that is what “the Bible” ought to sound like. Likewise, if I asked you to compose thirty seconds of ad copy for a new car, you probably aren’t going to write it in the form of an epic prologue (“Ford and the man I sing…”).
We all have baseline understandings and expectations of what conventional forms look like and sound like, which are often tied to what the particular form is trying to convey or accomplish. So, perhaps legalese is a form of “incantation” trying to conjure up its own authority, but arguably so is every other literary form. That’s just how form works: if it doesn’t establish some implicit authority (even in the most rudimentary sense of “you should pay attention to this”), it’s effectively meaningless.
Further affiant sayeth naught.
More cynically, you could see this as professionals protecting preserving their position in society as practitioners of a magic that would be commonplace if translated into the vernacular of the laity.
This same study could have been conducted on medical writing and probably arrived at the same conclusions, except medical writing is probably even more jargon-laden than legalese, so I’m not sure a group of layfolk could produce a convincing parody of it.
In any event, I have the feeling this study could have been avoided by a trip across the quad to talk to someone in the English dept.
How does one draw the conclusion that the chosen prose is “magic incantations” from something like this. If I ask you to write a story about a chair, you’re going to have a much more comprehensible description of the individual chair envisioned compared to if I ask you to legally define what is and isn’t a chair.
A story about something doesn’t need to capture edge cases or define hard boundaries on otherwise open ended terms
If you ask me to write a spec describing a piece of software, it’s going to come out very differently than a story about someone using that piece of software.
A story is narrative. A contract is must be definitive and withstand scrutiny over time.
A story takes you on a journey about a subject, and what you take away from that story is often subjective. A contract cannot be subjective or it’s likely unenforceable.
I’m not saying legal documents can’t be made more understandable, but at the same time, it seems pretty obvious that a legal document is necessarily structured quite differently than a story for reasons that have nothing to do with magic.
I do think there’s a certain formality that is more about stylistically separating legal documents from other kinds of writing, and it could be argued that this degree of formality isn’t necessary. But at the same time, it feels appropriate that the legal system and the language in it endures, even as society evolves rapidly around it. It seems like one of the only ways to maintain sanity in a legal system in a highly dynamic environment.
https://lexfridman.com/edward-gibson-transcript#chapter9_cen...
It's objectively less comprehensible, and there is no benefit to it other than sounding legalese.
1) No benefit is not in evidence. The article links to another article describing a prior study and gives the following example of a "center-embedded" clause and a replacement [1].
The center-embedded version:
"In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the "Total Payments'), would be subject to excise tax, then the cash severance payments shall be reduced."
Their improved version:
"In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All payments and benefits by the Company shall hereinafter be referred to as the "Total Payments." This includes the payments and benefits under Section 3(a) hereof."
The immediate problem that comes to me in reading the "improved" version is the ambiguity about the word "This" in the 3rd sentence. Is "This" referring to the "Total Payments", or is "This" referring to the payments that will be reduced? Both are interpretations one could read into the paragraph. If Section 3(a) describes non-cash benefits, the intent of the paragraph might be to note that those specific payments will also be reduced, even though they aren't cash payments.
Regardless of the overall comprehensibility of the center-embedded version, it is crystal clear that the payments in Section 3(a) are included in the term "Total Payments".
And while this might seem like needless nit-picking, it's worth remembering that court cases around things like the death penalty have hinged on whether "cruel and unusual punishment" requires that a punishment be both "cruel" and "unusual" before it violates the constitution. Words matter in law, and being very specific with your words to convey your intent also matters.
2) One can not conclude that the reason for including center-embedded definitions is because of "magic incantation" thinking from the proposed study. People often use parenthetical statements (even in spoken word), and they often do so when they're wanting to clarify or further define a possibly ambiguous turn of phrase. But parenthetical statements are less common in narrative prose. To ask people to write definitional text, and compare that to narrative text they've written and conclude that the parenthetical statements in the definitional text were chosen for "magic incantation reasons" instead of say, "because as I wrote that, I realized I should be clear what I was talking about" seems like a huge leap of logic unsupported by the established facts.
It's common in recipes to tell someone to "do X until Y" (e.g. "fry until golden brown", and not "fry while not golden brown"), yet very few programming languages have such a control structure. "while" loops, "do...while" and "for" loops are all common, but "do...until" is something I can recall encountering once, and don't even recall the language. But from this we certainly can't conclude that people writing recipes think that "do...until" gives magic incantation powers and weight to their recipes. It just means in separate contexts, different language structures are more or less useful in different types of prose and given their surrounding context.
[1]: https://phys.org/news/2022-03-ways-lawyers-written-documents...
Pronouns, particularly those with ambiguous antecedents, are the devil's tools; and the portal through which demons are goven entrance to the world.
Wow... so it is just a trick, right? Not something made for the people.
Otoh, laws are often referred to as "code" and like computer code require a specificity that is quite different from idiomatic expression. Both hypothesi of "center embeddeding" and "magic spell" seem to follow what is often found in repos.
This is definitely the case. I've modified NDAs (from our lawyers or other parties') and have written plenty of business contracts and I find some people are uncomfortable with them unless you wrap them in a "whereas" preamble and put some pointless nonsense like "The parties agree that time is of the essence in this agreement". What a pointless waste of time.
I was filing some old leases and realized they were headered with "WITNESSETH" (in all caps because you cannot properly invoke its power otherwise), and thought "huh, is that a real word or Ye Olde Faux Englishe?" and it was a real word, but a different part of speech. It's not a command, it's a third-person singular verb floating around as a remnant of something like "this document witnesseth that...".
I’m concerned but not surprised that you are drafting legal documents.
The computer has an operating system.
Both systems really, really hate undefined behavior.
I'd always assumed the legalese was about minimizing the ambiguity that leads to undefined behavior.