How can we explain the obscurity of the legal texts? A recent study of MIT asked the question and affirms that it is far from being a coincidence. Complexity would serve to create an effect of authority and legitimation.
Why are laws and legal texts written in such complex language? Spontaneously, one would say that this is a characteristic of all scientific discourse or all technical language. It is also not easy, if you do not know anything about it, to read the instructions for a robot that you have never handled. But a recent study from MIT looked seriously at the question, taking the case of Anglo-American legal texts. She concludes that the obscurity of legal language has a precise goal: to produce, among citizens, a “feeling of authority” with regard to legal texts.
Unintelligibility would therefore not be the result of chance. What applies to legal language also applies to philosophical or scientific jargon. As it says Theodor Adornothe « jargon » can be used as a “instrument of power” (Authenticity jargon1965, trans. Fr. 1989). What accounts for this singular power of darkness?
Pierre Bourdieu, who wrote at length on language, perhaps provides the key with his concept of « distinction ». As the sociologist points out, we do not always use language to be understood. Certain uses of language are aimed precisely at not being understood – at being understood only by a few recognized peers, and at keeping ordinary mortals at a distance. Hermetic language discriminates. It serves as a criterion for defining, in a given sphere, the “legitimate speaker, authorized to speak and to speak with authority”. Anyone who knows how to use the language structuring this space can speak legitimately. “Saying the law, formally compliant, thereby claims, and with non-negligible chances of success, to say the right, that is to say the duty to be” (What it means to speak, 1982).
The human being lambda has no control over the space of the legal world, because it does not speak the language of law. He must rely on others, on scholars, initiates, to move in this other mysterious world. So there is no real debate possible. Of course, everyone can probably debate, even imperfectly, about concrete realities. You can't stop someone from discussing what's in front of them. Impossible to deny him the right to speak. But that's the whole difference: the “realities” about which we could debate, in the legal sphere, are not given straight away as evidence, they are constituted through and through by this language that must be mobilized. to discuss it. “Legal discourse is creative speech, which brings into existence what it states”specifies Bourdieu.
The feeling of exclusion is exacerbated by an ambivalence in legal language: he often speaks with the same words as “common sense”; but these words do not have the meaning they have in ordinary life. Used within the linguistic space of law, they are now part of another relational space of meaning and refer to different realities. “If legal language can allow itself to use a word to name things completely different from what it designates in ordinary usage, it is because the two uses are associated with linguistic postures which are also radically exclusive as perceptual consciousness and imaginary consciousness, Bourdieu writes again in his article “The Force of Law” (1986). This postural discordance is the structural basis of all the misunderstandings that can occur between users of a learned code (doctors, judges, etc.) and simple lay people. » Misunderstanding occurs when the common meaning of words is distorted “by learned usage” with the use of these “false friends”a bit as if the original language became a foreign language.
Everyone is nobody
We can further deepen, with Bourdieu, the specificities of the singular language which structures the legal field. Not all jargon is exclusionary in the same way. To establish the authority of law, legal language plays on a very particular register: it seeks to produce a “prioritization effect”according to the sociologist. What does this mean? For Bourdieu, legal language seeks to give the impression that it is the language of an impersonal speaker – an abstract speaker who has no particular interest. The sociologist emphasizes two joint aspects of this rhetorical strategy.
- First, the neutralization effect: “It is obtained by a set of syntactic features such as the predominance of passive constructions and impersonal turns, capable of marking the impersonality of normative renunciation and of constituting the enunciator as a universal subject, both impartial and objective. »
- Then, the universalization effect. “It is obtained by different convergent processes: the systematic use of the indicative to state standards; employment […] of verbs statements in the third person singular present or past tense expressing the accomplished aspect […] ; the use of indefinites (“all condemned”…) and the timeless present (or the legal future) suitable for expressing the generality and omnitemporality of the rule of law […] ; the use of concise formulas and fixed forms, leaving little room for individual variations. »
The speaker of legalese does everything to seem impersonal. He is, literally, no one: unlocalized, unsituated, unembodied, uninterested. It is this anonymity that makes it superior. The product of his speeches gains a certain aura of timelessness. To the extent that it is not the fruit of any contingency, it strips itself of all historicity. The law seems to move in the sky of ideas and reason. The creations of law are shrouded in a glow of eternity, or at least immemoriality.
The law actually plays a lot on the use of archaic terms (ester, publication of banns, etc.) or on the archaic or etymological use of certain common words (originality, to say “what is original” and not “what is out of the ordinary”). Here he draws on perhaps the most effective source of authority: ancestrality. The obscurity of the language reverberates the opacity of an origin and the unassignable character of the author. It is therefore necessary to revise the well-established conception of the three legitimacies exposed by Max Weber In Economy and Society : legitimacy “legal rational” (that specific to formal, impersonal procedures) is almost always hybridized with legitimacy “traditional” and with the third, legitimacy “charismatic”to the extent that it always passes through a language “magical” in the effects that this jargon produces.
No one is supposed to understand the law?
The observation is clear for Bourdieu: « The constitution of a strictly legal competence, technical mastery of scholarly knowledge often contradictory to the simple recommendations of common sense, leads to the disqualification of the sense of fairness of non-specialists and the revocation of their spontaneous construction of the facts, of their “ vision of the business”. The gap between the vulgar vision of the person who will become a litigant, that is to say a client, and the scholarly vision of the expert, judge, lawyer, legal advisor, etc., is not accidental. ; it is constitutive of a power relationship, which establishes two different systems of presuppositions, of expressive intentions, in a word, two visions of the world. »
“No one is supposed to ignore the law,” says the adage. But knowing the law without understanding it is of little use. It will be argued that it is not necessary to understand all the legal formulas in detail in order to perceive the concrete demands that these laws impose on individuals. It is enough to observe the facts: the law is generally respected, including by millions of people who would have difficulty understanding its texts. But the problem is broader. It is, in particular, political: not mastering legal language contributes to the expropriation of the sovereignty of citizens, to the extent that it is always within the horizon of a translation into legal language that the collective debate takes place. . The most democratic component of power in a regime like France is, precisely, power legislative.
It is for this reason that different actors are mobilizing, at several levels, for a “clear legal language”. This is the case, among others, of Marie Potel–Savillepresident and founder of the agency legal design Amurabi. In the article “To put an end to preconceptions about clear legal language” (2024), it lists various advances in this area. Since 1999, the Constitutional Council has established, for example « l’objective of constitutional value d’accessibility and’intelligibility of the law ». “Equality before the law […] and guarantee of rights […] might not be effective if citizens did not have access to’sufficient knowledge of the standards that apply to them […] Knowledge [de la loi] is necessary for’exercise of rights and freedoms. »
Similar recommendations are given by the Council of State and the Court of Cassationas well as by the European Court of Human Rights (“It is necessary to’firstly that the “law” is sufficiently accessible: the citizen must be able to have sufficient information, in the circumstances of the case, on the legal standards applicable to a given case”). Dispersed, the movement for clear legal language remains relatively confidential for the moment. But things could change…
The power of darkness
For the record, Bourdieu finally makes this observation about the opacity of legal language in the case of philosophy: darkness gives a thought an aura of seriousness, complexity, solemnity. We know the anecdote of John Searle : “Later, while I was giving lectures at the Collège de France, […] I spoke with Pierre Bourdieu. J’I discussed with him my conversation with Foucaultand he’is quickly animated on the subject. Pierre m’said in substance: so that’a book is taken seriously in France, this’is not ten percent of incomprehensible passages that’you have to plan, but at least double, twenty percent! »
That philosophy lends itself to this little game of the incomprehensible – the thing is perhaps not very serious. Otherwise problematic is a right which, even though it constitutes the backdrop to our collective existence and our political life, is formulated in a language which renders it profoundly unintelligible to the ordinary human being.
France
Related News :