Legal Translation and Terminology Chapter 4

Preview Terminology – definitions Characteristics of terms Legal terms: synonymy, polysemy, metaphor Legal concepts Legal families Modernisation of legal terminology Importance of legal translation Legal translation and comparative law Types and status of legal texts Goal of legal translation Legal translator’s competences Drafting rules

Terminology 1) the set of practices and methods used for the collection, description and presentation of terms 2) a theory required for explaining the relationship between concepts and terms 3) a vocabulary of a special subject-field

Terminology A) subject-area terminology B) vocabulary of scholarly research C) lexical units of general language

Terms Terms should be : Accurate Concise Easy to spell and pronounce Allow the formation of derivatives Linguistically correct

Terms Should be monosemous (having 1 meaning) and mononymous (consisting of one word), and a member of a term system

Legal terminology A) “pure” law terminology (estoppel) B) law terminology found in everyday speech (title ‘right’) C) everyday words assigned a special meaning in a given legal context

Everyday words assigned a special meaning in a given legal context: example Welfare of Pigs Act 1998 – definition of a pig for the purposes of that law: “pig means an animal of the porcine species of any age, kept for breeding or fattening” If a pig fails to fulfil either of the two qualifying conditions, iuts owner stays outside the scope of that law

English legal terms Multi-word expressions and phrases Polysemy synonymy

Legal concepts Law – a social phenomenon Legal rules differ in different legal orders Legal concepts also differ

Legal concepts “…Legal science differs from the natural sciences: the laws of nature are the same everywhere. The difference is evident in the relationship between language and its object. The language of a natural science cannot change reality: if a plant is described wrongly or inaccurately, it remains as it was none the less. But if the legislator, in a new law, describes a legal phenomenon otherwise than in an earlier law, then the legal reality changes: law only exists in human language” (Brækhus 1956)

Legal concepts Where the concepts of two legal systems differ, the semantic domains of legal terms do not correspond with one another Historical interaction between societies: legal concepts of Sweden and Finland _ very close, since Finland formed part of the Kingdom of Sweden for over 6 centuries; England and the US: English law was applied in the former colonies

Legal families and conceptual kinship Common law Civil law European law

Common law and civil law Civil-law system developed in medieval universities on the basis of Roman law; its divisions and concepts formulated first on the basis of substantive law founded on a number of abstract principles Common law: formed in the courts of England following the Norman Conquest; the conceptual apparatus – defined by the requirements of medieval judicial procedure

Common law and civil law Common law – placed on judicial procedure; English judges – higher status than their continental counterparts European law: continuingly unifying the legal orders of the Member States

The Legal System of the European Communities A legal system of its own, partly superimposed on those of Member States The founding states of the early Communities - part of the civil-law legal family, the legal system of the European Communities also based on civil-law foundations

The Legal System of the European Communities French law – considerably influenced the principles and basic concepts of Community law Methods of the Court of Justice - essentially based on those of the French Conseil d’Etat; the institution of commissaire du gouvernement served as a model for that of Advocate- General

The Legal System of the European Communities German law: principle of proportionality and that of reciprocal loyalty and trust (in performing contracts); The role of academic legal writing when the ECJ takes its decision – a feature of the German legal tradition

The Legal System of the European Communities English influence: doctrine of precedent (stare decisis) develops in harmony with common law traditions in ECJ; The style of judgments: in 1950’s and 1960’s, ECJ judgments - stylistic copies of French judgments, esp. in their construction and disposition (e.g. the signal words attendu que); over time, the style of the Court became more independent: construction of its judgments does not come directly from any legal order of Member States

The Legal System of the European Communities A hybrid, mixed law in which legal traditions of Europe increasingly intertwine Methods of interpretation of ECJ: a mix of different legal traditions Interaction between the Community institutions and national legal orders in a way not directly borrowed from any legal order

The Legal System of the European Communities An entirely new type of legal system, with its own characteristics, developing side by side with civil law and common law; applies to legal systematization and to doctrine relating to sources of law and to individual institutions and principles

The Legal System of the European Communities New elements - partly evident in the form of new terminology, partly hidden behind established terms coming chiefly from France; these old terms possess a new conceptual content in Community law

Characteristics of legal terminology: Legal Concepts and Legal Terms Concept: mental representation of an object Term: the technical designation of a concept Term – verbal expression of a concept belonging to the conceptual system of a LSP; may be a single word, compound or a phrase (e.g. “good faith”, “free movement of persons”)

Characteristics of legal terminology: Legal Concepts and Legal Terms Terms – usually nouns Referent – entity that exists physically or metaphysically and fulfils the conditions imposed by a concept (e.g. in France, 175 referents of the concept of “general court of first instance (juridiction de droit commun du premier degré de l’ordre judiciaire, expressed by the term “tribunal de grande instance”; by contrast, only 1 referent connected to the concept expressed by the term “Cour de cassation”)

Characteristics of legal terminology: Legal Concepts and Legal Terms not imaginable without a legal relationship; can be used in other contexts, but have a particular meaning in certain legal relationships; express legal facts in cases where the features “to which the Law attaches effects answer to the conditions that the Law imposes and thus to a legal notion that confers on them a meaning with regard to the Law (e.g. “error”)

Characteristics of legal terminology: Legal Concepts and Legal Terms Legal term can be a word or phrase that only appears in legal language (“abuse of process”, “criminal responsibility”), or a word or phrase that forms part of ordinary language but has a special meaning in legal language (“consideration”)

1 concept – 2 terms: examples Sole proprietor (US) – sole trader (UK) Articles of association (UK) – Articles of incorporation (US) Memorandum of association (UK) – by-lawy (US) Corporate law (US) – company law (UK) Tort (English) – delict (Scottish)

Relative existence of legal notions: discovery The existence of a legal notion depends upon the wish of the legislator When the comparative lawyer is dealing with the common law procedure of discovery in a case involving a court in a civil law country he will not simply introduce the notion of discovery into his systemic knowledge of this particular civil law but perceive it as part of the other, foreign law system

discovery He will not apply the procedures of discovery because they do not exist as long as they are not anchored in the legal system by the legislator This anchorage may be constituted by the decision to introduce discovery into this particular civil law system, or it may be a result of a provision related to the conflict of laws, or a result of legislation concerning recognition of foreign judgments

Relative existence of legal notions Existing legal notions can be modified, replaced by others or abolished Connections between term and concept – arbitrary

Implied terms and concepts What happens when a common law term e.g. punitive damages is translated as condamnation à dommages et intérêts punitifs or Strafschadensersatz – unknown in the French or German legal systems

Implied terms and concepts E.g. Verhältnissmässigkeitsgrundsatz introduced as principe de proportionnalité into French-language legal acts within the EU although it does not exist in the French terminology

Emergence of new legal-linguistic units A new tort termed intentional infliction of emotional distress – added to the list of common law torts Japanese law distinguishes between injury to honor and injury to reputation Understanding of legal terminology - based upon institutionlized creation and interpretation of legal concepts and terms, mainly by the legislator and by courts

Classification of terms Technical: promissory estoppel, renvoi, certiorari Meaning different from ordinary language: consideration, equity Preferences: warranty preferred in US, guarantee in UK; antitrust legislation (US), competition legislation (UK), corporation (US), company (UK)

Scientific terms introduced into law Terms from other sciences introduced into statutes Do they retain their meaning? In the materials accompaning preparatory work in the Parliament, interpretive guidelines, definitions and other information is contained which allows the interpretation of a concept when it becomes part of a statute The materials may introduce a specific meaning, broader or narrower than the scientific one

Scientific terms introduced into law Medical terms e.g. alchoholic or drug addict may be understood in law differently The scientific term becoming a legal term may acquire a different meaning

The legal ‘shall’ Any person bidding at the auction shall stand surety for his own debt until full payment is made for purchased merchandise Shall – the binding character Institutes the legal speech act and introduces the binding force of the utterance, i.e. it establishes its enforceability

The legal ‘may’ In certain circumstances a police officer may ask the driver to take a breath test If convicted, an accused person may appeal May = ‘have right to’

Polysemy Term – a verbal expression of a concept Legal terms – often characterized by polysemy: depending on context, a single term can express several concepts Polysemy - “allows the vocabulary of the language to transmit the infinitely varied ideas that arise in social life” (Vlasenko 1997)

Polysemy Rule rather than exception Legal orders are continually changing over time Example: ius civile

Ius civile Ancient Rome : referred to classical Roman law as opposed to ius honorarium on the one hand, and, on the other, to the law applied to Roman citizens (as opposed to ius gentium) In Byzantium, in medieval Europe and at the beginning of modern times – referred to Roman law and to temporal State law, as opposed to the divine law (ius divinum) or natural law (ius naturale)

Ius civile In medieval Europe, legal science focused on the study of those parts of the Corpus iuris civilis dealing with legal relationships between private individuals; a branch of law relative to relations between private individuals

Ius civile In English: Roman law Continental law Private law

Ius civile In Germany: Zivilrecht synonymous with Privatrecht In France, commercial law is not included in civil law

Orderly and disorderly polysemy Orderly (consistent) polysemy: a legal term has two or three closely connected meanings; often: the concepts expressed by a term are hierarchical or partly overlapping Example: common law: 3 meanings in English; misleading from the international standpoint

Common law English common law – different from the pan-European ius commune English common law – developed by English courts Ius commune – law developed in European universities in the Middle Ages and early modern times

Disorderly (inconsistent) polysemy Meanings of the term diverge to such extent that they no longer have anything in common French “prescription” and “disposition” Prescription: 1) different modes of acquisition or extinction, 2) judicial order or a legal rule Disposition: 1) action to dispose of a good; 2) legal rule, a contract clause, or a head in the operative part of a judgment

Consequences of Polysemy When p. occurs, interpreters of the text should be able to assign to a term the meaning appropriate to the context Often – easy to distinguish between different meanings; sometimes – impossible to tell what is the correct interpretation of the text: ambiguity

Synonymy Opposite to polysemy: two or several terms express the same concept E.g., where magistrates arrange an inspection on the scene, legal French uses: “visite des lieux”, “transport sur les lieus”, “descente sur les lieux”, or “vue des lieux” Synonymy – a common feature of legal terms

Synonymy In legal languages with several layers of language, such as English, this is especially frequent Legal English often expresses the same concept by an Anglo- Saxon term, a French term, and a Latin term

Synonymy Partial synonyms – misleading; mistakes and misunderstandings are possible where the semantic fields of two terms stand side by side E.g. judge and magistrat in legal French Partial s. – can be useful in legal language

Quasi-synonymy It is possible to draft a legal provision or a clause in a contract without leaving gaps: listing a number of quasi-synonyms leads to a blanket coverage of the semantic field intended: contract practice in common law countries E.g. Russian enables reference to a contractual relationship through several terms which are wholly or partly synonyms: dogovor, kontrakt, soglashenie, pakt, konventsia, konsensus, angazhement

Towards modernized legal terminology Modernization – replacing outmoded lexical units by contemporary ones, creation of neologisms and semantic change, the modernisation of legal language through plain language rules based on readability or understandability

Towards modernized legal terminology Replacement of the term writ of certiorari by certification does not increase the understanding although it modernizes the language His conviction and sentence were affirmed on direct appeal and certification was denied - understandable to laypersons only if the procedure is explained

Updating legal terminology Lord Woolf’s reforms (1999) Writ – claim form Pleading – statement of case Plaintiff – claimant Minor/infant – child In camera – in private Ex parte – without notice Guardian ad litem – litigation friend Mareva injunction – freezing injunction Anton Pillar order – search order

Dissolution of terms or concepts? Legal terminology usually followed the conceptual framework of the Roman law Legal maximes: Lex retro non agit (recent origin) New tendency: the term does not rigidly correspond to a concept any more Different terms in different linguistic forms reflect the content of a concept

Dissolution of terms or concepts? Examples Example: piercing the corporate veil (US); lifting the corporate veil (UK); levantamiento de velo (Sp); Durchgriffshaftung A rule permitting veil-piercing in undercapitalized firms can be seen as a penalty default that creates an incentive for firms with low net capital to disclose that fact when contracting with potential creditors, so that the creditors will be estopped from piercing

Dissolution of terms or concepts? Examples Reasonable man – a standard in common law to determine the appropriate interpretation of party intent in the contract law or the appropriate action in tort law Clinical negligence: reasonable doctor Reasonable bystander – synonymous with the reasonable third party (contract formation) Reasonable person

Dissolution of terms or concepts? Examples The terms piercing the corporate veil and reasonable man are dynamic; their linguistic status varies and depends upon the structural (textual) circumstances of use. They rather adapt to requirements of ordinary syntax than force the syntax to follow the rules of legal language

The future? Future legal language – more descriptive than conceptual and closer to ordinary language More guidelines with reference to the linguistic aspects of creation and application of law

Problems Modernized legal terminology – tendency to refer to ordinary language US state securities laws referred to as blue sky laws; derive from a court decision which described the purpose of securities legislation as aiming to prevent “speculative schemes which have no more basis than so many feet of blue sky”

Problems Lemon laws (US) provide for procedures for consumers who are confronted with mechanical problems concerning their vehicles; applied in cases where a car dealer does not correct a recurring defect in a vehicle within a specified period of time; the purchaser can rescind the sale contract and recover a full refund of the purchase price

Problems Some efforts directed towards the modernization of legal terms may not lead to an increase in their understandability Legal vocabulary – rarely used and understood in an isolated form Attempts to increase understandability should focus on the structure of legal texts The impact of modernization of legal vocabulary should not be overestimated

Legal Thesaurus Electronic data processing allows for broad lexical corpus to be included into a lexicon Legal thesaurus – includes not only lexical material but also samples of context, example of use, phraseological units, texts and doctrinal commentaries

Legal Thesaurus Traditional lexicographical approaches – based on terms Approaches based on concepts (mental abstractions) Lexicographic works based on legal concepts may map the whole conceptual field which includes the typical terms used in it Legal translators need dictionaries

Legal pragmatics Depicts how the legal concepts are used as a structural background for the legal argumentation Legal language – more than terminology; becomes operative in speech acts

Legal translation (S. Šarčević) Legal translators – in high demand today due to globalization, regionalism and increased translation at national level

High demand for legal translators Globalization – increased mobility of people, goods, services and capital International law and international organizations International trade law International dispute resolution

High demand for legal translators Regionalism – development of regional markets and harmonization of national laws EU law National level - translation in bilingual and multilingual states Right to use one’s langage before the courts

Specialized translation Transfer of specialist knowledge from a source text into a target text by a translator who ideally has “the knowledge, the competence and the recognized status of an expert”

Legal translation More than the “transfer of specialist knowledge” Most legal texts produce legal effects The success of legal translations – measured by their interpretation and application in practice, esp. by the courts A translation – successful only if it accurately conveys the specialist knowledge in the source text and produces the intended legal effects in practice

Legal translation Unlike texts of natural sciences, legal texts are not based on a universal system of knowledge but derive their meaning from a particular national legal system – the source legal system The product of a different history, cultural and lagal tradition, every legal system has its own sources of law, classification, institutions and conceptual system and thus its own language and knowledge structure Due to incongruity of legal systems, legal translation is often said to be “approximation”

Legal translation and comparative law Legal translation consists of both legal and interlingual transfer Translator – concerned not only with interlingual transfer from a source language into a target language but also with legal transfer between legal systems The target legal system – the system to which the target receivers belong and is determined by the language of the target text

The role of comparative law The success of a legal translation depends on the degree of similarity of the source and target legal systems, and On the affinity of the source and target languages

Types of legal texts Prescriptive Descriptive/prescriptive descriptive Legislation, delegated legislation Codifications Treaties and conventions Contracts Judgments Wills Documents used for judicial proceedings (appeals, requests) Academic textbooks Commentaries Scholarly articles Legal opinions

Legal translation as communication Factors that have an impact on translation strategy: Type of text Communicative function or purpose (skopos) Legal factors: source legal system, legal receivers and target legal systems, how many legal systems are involved, drafting techniques, rules of interpretation

Status of legal translations The communicative purpose – determined by its status, i.e. whether it is authentic or non-authentic Authenticated translations – legally binding (e.g. EU legislation, UN conventions) Non-authentic translations – for information purposes

Target receivers in legal translation Indirect receivers – all persons affected by the particular instrument, including the general public Direct receivers – specialists empowered to interpret and apply the insturment: public officers in government and administrative agencies, the judiciary

The goal of legal translation To produce a target text which conveys the content of the source text as accurately as possible and leads to the same legal effects (legal equivalence) The success of authenticated translations – measured by their interpretation and application in practice The goal of multilingual legal communication – to achieve equality before the law in all language versions; to produce a target text that will be interpreted and applied by the courts in the same way ( uniform interpretation and application of all texts)

Legal translator Must be able “to understand not only what the words mean and what a sentence means, but also what legal effect it is supposed to have” and possess the drefting skills “to achieve that legal effect in the other language” Considerable language and legal competence

Legal translator Must produce a target text that is legally reliable and of high language quality

Consistency requirements Use of official titles Citations from prior translations Consistency of terminology Use of official translation equivalents

Standard forms Clauses and entire provisions expressing repetitive actions – standardized for use in translations and published in drafting manuals

Commercial contracts: common clauses Names and addresses of the parties Rights, obligations and liabilities of the parties Force majeure clause Termination Dispute resolution Warranty and exclusion Entire agreement clause Governing law Signature, date and execution

Commercial contracts The source legal system is the law governing the contract regardless of the language of the contract; many contracts – drafted in English but governed by a different law Target receivers – contracting parties identified in the first clause and ultimately the courts specified in the forum clause in the part on dispute resolution

Commercial contracts Civil law lawyers should not use model forms of commom law contracts because they contain technical common law terms which appear to be easily translatable but the literal translations often mean sth very different to civil law lawyers International commercial contracts should be drafted in neutral terms that are easily translatable and will be understood by both parties and the competent courts

Drafting legal rules in legislative texts Legal rules specify the subject matter and scope of application, set forth definitions and prescribe the rights, obligations and liabilities Translation competence presupposes that translators are able to understand legal rules in the source text and “draft” them correctly in the target language. They should not be translated literally because drafting techniques differ from jurisdiction to jurisdiction

Main elements of legal rules The fact-situation expressing the conditions that must be fulfilled in order for the rule to operate The statement of law which prescribes the legal action to be performed when the rule becomes operative

Implications for translators Translators – generally permitted to select the syntax and word order that expresses a legal rule most clearly in the target language, provided the content remains unchanged

Using language to achieve the desired legal effects in legal rules The statement of law contains the normative content of legal rules expressing the legal action prescribing how the addressee: Shall act (commands), Refrain from acting (prohibitions) May act (permissions) or Is authorized to act (authorizations)

Formulating legal commands Legal commands express obligations Shall – in legal English used to express the legal imperative; it imposes obligations

Formulating requirements Requirements express the existence of an obligation that is usually procedural. Such provisions often require that certain conditions be satisfied and the subject is not a human being. They are formulated in English with must Securities must fulfill the following essential requirements

The use of “should” in legal English Should does not express a binding obligation and is therefore not used in the substantive provisions of legislation and treaties, including the enacting terms of EU regulations, directives and decisions (binding) Should means “it is recommended” it is used in the preamble of treaties and legislation, in the recitals of binding EU legislation and in EU recommendations and opinions (non- binding)

Formulating prohibitions in English Prohibitions are provisions forbidding persons and authorities to perform certain acts and whose performance is punishable by sanction. As negative commands, they are expressed with: SHALL NOT By negating the subject or With the expression IT IS PROHIBITED Weaker prohibitions with MAY NOT express the cancellation of a permission or exception to a general permission. The expressions IS NOT PERMITTED and IS NOT ALLOWED are not used to exress prohibitions in English

Formulating permissions Exspressed with MAY; NEVER use CAN Do not use the expressions “it is permitted” and “it is allowed” IT IS ADMISSIBLE is used in procedural provisions

Formulating authorizations Authorizations confer power upon some person or authority to perform an act Expressed with MAY, IS AUTHORIZED TO or IS EMPOWERED TO