[lmkg]

Examining the use of language by modeling them with Game Theory may provide some interesting insights to what makes legal writing so unique.

Natural language, in a normal context, is (usually) co-operative, to the extent that the speaker and the listener both have the common goal that the listener understands what the speaker is saying. This is what gives natural language a higher tolerance for ambiguity, as the listener will be using generally amenable heuristics to discover meaning.

A programming language involves a human communicating with a generally imbecilic partner. This is like a game against a deterministic opponent, or even a single-player game, trying to optimize expression under the constraints of the language. This is what gives programming its literalness. Language designers try to solve the dual problem by designing the constraints. Arguably, the goal of a well-designed language is for the expression-under-contraints to approach the cooperative communication of natural language.

Legal writing is best modeled as a game against an adversarial opponent, which is actually not far from the truth. In a sense, it's also dual to language design, in that the goal is to design constraints that limit the expressive ability of an adversary.

While this is not explicitly mentioned in the OP, it's worth pointing out that bureaucratic writing is slightly different than legal writing, although it has a similar eliminate) the need for the judgement or ad-hoc decision-making of the individual contributors to the system, by spelling out the results of all possible decisions beforehand. This system may best be modeled as imagining an imbecilic adversarial opponent, rather than a powerful one, making it share the worst qualities of both legal contracts and FORTRAN.

[idoh]

Your theory cannot be true, because legal writing is equally dry and opaque in non-adversarial settings:

- litigation, where the aim is to persuade a judge

- court opinions, where the aim is to persuade the parties and other judges

- I'd add law journals as well, which are written for peers

I'd say that the reason legal writing gets singled out is that people are expected to read and understand it, while people are not expected to read and understand equally difficult writings from different fields, such as something from a medical journal.

[lmkg]

Keep in mind that an adversarial opponent is a game-theoretic abstraction. The useful thought-experiment of an adversary is often used even when there is not a literal 'opponent,' eg in natural-disaster-proof design. In essence, imagining an adversary is a useful thought experiment for reasoning about worst-case situations. In the situation of a natural disaster, an adversarial opponent is not the literal truth, but you won't go far wrong by designing against one.

I would say that any form of persuasion benefits from imagining an adversarial opponent (in face, they're usually called a Devil's Advocate!). In this case, your judge you are persuading can be modeled as an adversarial opponent, characterized as being Maximally Skeptical of your position, within the constraints of still being Perfectly Rational.

You may also be confusing "adversarial" with "confrontational." An adversary can still be very dry. In fact, in game theory, they probably are very dry because they're assumed to be perfectly rational. Adversarialism defines the other participant's goals, not their approach.

[hristov]

Litigation is very much adversarial. True your arguments are aimed at a judge, but another party is free to attack them and misinterpret them. Thus, there is still an intentional desire to misinterpret your arguments.

Court opinions are not technically adversarial, but the same issues apply. It is virtually guaranteed that other parties down the line will try to misinterpret court opinions to get a judgement they are not entitled to.

It is true that journals are probably not subject to active intentional misinterpretation, but people that write legal journals are already lawyers and thus are already trained in that particular adversarial style of writing.

[hristov]

As an attorney, I have to say this is very true. It is especially true and infuriating for patents.

When you write a patent you have to explain a complex system in such a way that a non-technical judge or juror will understand it while someone else is actively trying to confuse said judge or juror by intentionally misinterpreting the explanation. It is not an easy task.

[Vivtek]

As a technical translator who does some patent and patent litigation work, I marvel every time I see this process in action. Sometimes the outright misconstrual is so blatant I have to jump up and tell somebody - I get why it's done, because you just throw anything at the claim that the panel might allow to stick, but it's jaw-dropping at times.

Fun stuff!