Analysis: While there are historical and practical reasons for legalese, its continued use raises questions about accessibility and fairness
By Chris Fitzgerald, Mary Immaculate College
If you have ever had to sift through a lengthy legal document such as a contract, you might have had to reach for your dictionary a few times. Legal language can feel unnecessarily impenetrable to those of us who have not gained any legal qualifications. Lawyers and legal professionals will often admit that the language they use, known as 'legalese’, can be overly archaic, convoluted and inaccessible to those who are not familiar with their jargon, Latin terminology and sentences that are overly lengthy.
So what exactly is it that makes it so difficult and why doesn't it change? There are reasons why lawyers and other professions have a particular type of discourse when they are speaking and writing that distinguishes them from the rest of us. Some of these reasons are understandable, while others are there for reasons that are harder to justify.
From BBC, what is legalese?
One of the reasons is that it is a technical language. Legal documents often refer to older legal documents which refer to older legal documents ad infinitum. Through this process, the language of the older documents is preserved and results in the new documents using old or archaic language. Another reason for convoluted language use is that legal documents have a potential to be scrutinised for loopholes. The extended sentences with multiple clauses and the use of precise terminology are often a result of attempts to ensure that such loopholes cannot be found.
Long sentences cause confusion and legal documents are notorious for long sentences. An analysis comparing legalese with plain language in an Australian mortgage documents a single sentence that contained 763 words. That's close to the length of this entire article. While this exhibits some skill in combining pieces of information into a single structure, it is not conducive to accessibility and comprehensibility.
It's not just convoluted sentences that make it hard to follow legal documents, but that they use words which are not natural to us
A 2022 study from MIT found that one feature that contributes to the incomprehensibility of legal documents is their use of 'centre-embedding', that is adding long definitions into the centre of sentences, extending their length and making them challenging to follow. The paper from MIT provided the following example of this: "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."
Of course, it’s not just these types of sentences that make it hard to follow legal documents, but that they use words that are not natural to us. The study found that words like ‘lessee’ and ‘lessor’ in a tenant’s contract could easily be replaced by ‘tenant’ and ‘landlord’ respectively, which would make the contract much easier to understand. The use of adverbs such as herein and therein are also prominent and add to the sense of legalese being stuck in the past.
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From RTÉ Brainstorm, will we see 'robot judges' in Irish courtrooms in the future?
Every profession has a way of communicating that distinguishes it from others and you might not expect to hear the same language used on a building site as you would in a boardroom. The style of communication that is associated with a certain group or community forms what is referred to as a discourse community. Members of a discourse community share a common form of expression that helps those members to feel like they belong to a group. This feeds into our professional identity i.e. by speaking like a lawyer, you might feel like a lawyer. While it is important to form discourse communities, they may feel inaccessible to some and so can be perceived as exclusive.
More than other areas, the legal world is fond of tradition and this plays a part in constructing legalese. While the wearing of wigs is not longer mandatory, the legal profession maintains a lot of its traditional practices. Courthouses are often some of the oldest buildings in our towns and cities and symbolise a deep history associated with the law. This sense of history and tradition is also reflected in the language that has not attempted to progress in the same way as other professions with less attachment to tradition and leads to an acceptance of usage of archaic language.
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From RTÉ Brainstorm, why are legal costs in Ireland so high?
While there are historical and practical reasons for the nature of legalese, its continued use raises important questions about accessibility and fairness. If the law exists to serve the public, then its language should not act as a barrier that alienates those it seeks to protect. A shift toward clearer, more transparent communication would not only make legal documents less intimidating, but also promote greater trust in the legal system.
For the record, I do hereby declare that the statements, views, and/or opinions herein expressed, whether explicitly, implicitly, or by reasonable inference, shall be deemed to constitute the sole intellectual property of the author, and shall not, except where otherwise stipulated by applicable law, regulation, or judicial interpretation, be construed as attributable to, representative of, or endorsed by any past, present, or future employer, affiliate, associate, or other third party, whether real, fictional, or implied.
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Dr Chris Fitzgerald is a postdoctoral Linguistics researcher at Mary Immaculate College.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
