If you’ve ever looked up a state law or skimmed a click-to-consent contract and thought the dense text was as difficult to parse as a foreign language, you’re not entirely wrong, according to researchers at the Massachusetts Institute of Technology.
A study published last week in the journal Proceedings of the National Academy of Sciences concludes that the legalese found in everything from acts of Congress to city and municipal ordinances is intentionally twisted – not necessarily to cause confusion, but to convey authority and seriousness.
“People seem to understand that there is an implicit rule that laws should sound this way and that way, and they write them that way,” says Edward Gibson, a professor of brain and cognitive sciences at MIT and lead author of the study.
A press release from MIT even compares the process of drafting laws to the creation of authentic-sounding incantations for wizards in fantasy literature: “Just as ‘spells’ use special rhymes and archaic terms to express their power, the convoluted language of legal jargon serves to convey a sense of authority.”
Legal documents often contain long definitions in the middle of a sentence, a technique linguists call “center embedding” that makes the text difficult to understand.
“In English culture, if you want to write something magical, people know you have to put in a lot of old-fashioned rhymes,” Gibson said. “We think that maybe putting it in the middle signals legalese in the same way.”
Recognizing the human tendency to write laws in cumbersome (and unnecessary) ways is the first step toward reducing the bloated legal codes that currently characterize our federal and state statute books. As this editorial occasionally points out, no conscientious citizen has any chance of knowing the 300,000-plus federal crimes he or she could be charged with, and this uncertainty limits liberty and enables selective prosecution.
Supreme Court Justice Neil Gorsuch is the latest legal scholar to reach this conclusion. His book, “Over Ruled: The Human Toll of Too Much Law,” co-authored with Janie Nitze, was published August 6 by the Harper imprint of HarperCollins.
“I’ve seen so many cases in my courtroom where ordinary Americans – decent, hard-working people trying to do the best they can – have just … been unexpectedly thrown off course by the law,” Gorsuch told an audience at the Ronald Reagan Presidential Library in California.
Here in North Carolina, we must remember the 2018 wake-up call from UNC School of Government professor Jessica Smith, who called for a re-codification, or clean-up, of the state’s criminal law.
“There is no central database to track criminal ordinances,” Smith told the Carolina Journal of the John Locke Foundation think tank. “It’s impossible to say how many things we have made crimes in North Carolina.”
Professor Smith proposed rewriting North Carolina’s criminal code from scratch, which would inevitably greatly reduce the number of individual laws and benefit both the state’s justice system and its citizens.
“The complexity of the law is costly to the state and leads to wrongful convictions and acquittals, inconsistent application and a lack of information for citizens,” the Carolina Journal concluded.
No legal scholar, let alone an ordinary citizen, could memorize the thicket of our state’s criminal laws. If people do not know the law, they can never be sure that their behavior is legal. Confusion and fear take the place of trust and freedom.
Lawmakers have a golden opportunity. Instead of passing new laws that will add further burden to the already paltry statute books, they should focus their efforts on consolidating the laws already in place. How about a 2024 campaign promise: For every page you add, subtract two pages from the NC General Statutes?
