Syntactical Structure Of The Language Of Law
Legal language. Once an almost magical language of words of stipulation and oaths that should have impressed its subjects and submit them in awe to its absolute obedience. Now, it may be said that the awe has disappeared, but the magic of the language of the law somehow persists, mainly due to its so called vices – unintelligibility or wordiness. Everyday situations and relationships are governed by law whether people like it or not. Legal positivism argues that all our actions are covered by law (i.e. legislation, legal principles derived from judicial decisions in Common Law, or contracts) based on the principle that what is not prohibited by the law is permitted (see for example Weinberger 1995). Making pirouettes on the roof of my house every day at five o’clock in the morning would be considered â€˜legal’ because there is no law prohibiting such an activity. But let me present a less absurd example. Even by getting on the bus, though not in writing, individuals conclude a contract with the transportation agency. In every tram or bus a list of business terms can be found – an official-looking piece of paper divided in articles, sections or paragraphs, full of rights and obligations of the transporter as well as the customer. The society is inter-bound by an enormous number of agreements, arrangements and contracts, stating or implying rights and duties of its parties. To give them the mark of formality, to regulate them and to enforce them, there is the Law with its provisions. As the main functions of the law are the performative and normative (Cao 2007, 13-15), it is necessary for law to be able to communicate its norms to their addresses. This happens through language. In everyday situations, the Law and the language of its norms, regulations and law’s priests – lawyers – are still somewhere near.
Internationalisation of society has brought closer contacts among foreign countries in various aspects. Legal relationships are one of them. The European Union as well as the states themselves produce a large amount of legislation with which the companies and individuals have to deal. Still, an important part of legal relationships is carried out by means of â€˜private’ regulations set by bi- or multi-lateral contracts by the individuals themselves (within a given legal context). Therefore, translating these contracts becomes a big issue and the main activity of numerous translation agencies.
Nowadays, English is the Latin of today. It is the main language of international trade and commerce. It is not only the language of contracts when one of their parties comes from an English-speaking environment but even when no native English-speaking party is involved. Although in certain cases English serves as the â€˜neutral’ language of legal agreements, the general understanding of English is not at such a level that they would not need to be translated to people’s mother tongues. Apart from that, legal English and ordinary English are not identical languages (Gubby 2007, 9) and the mastery of ordinary English does not mean a mastery of legal English.
This thesis deals with the characteristics of legal Czech and legal English within their legal environments and problems of translation between them. The first part (Chapters 2, 3 and 4) introduces the legal language in general and analyzes the specifics of legal Czech and legal English. Chapter 5 deals with the translation of legal texts and sources of difficulties in legal translation. The second part of this thesis focuses on contracts – a sub-genre of legal texts. Chapter 6 defines the place of contracts among other legal texts and deals with the stylistic specifics of contracts in general. Chapter 7 introduces and analyzes the experiment. The experiment is based on an analysis of translations of contracts by translation agencies who advertise their competence in legal translation. It seeks to find out what the general quality of their translation is and what the main problematic points are: whether it is the understanding of the text in general, finding suitable translational solution of the concepts or the style or understandability of the TL text.
I expect the translation agencies to have problems with finding accurate translation solutions for some of the system-bound concepts, but I expect the translations to be accurate regarding the translation of the actual rights and obligations. Concrete hypotheses follow in Chapter 7.
2. Legal Language
Legal language is not a language of everyday use by a population (unless, with a degree of understatement we want to call lawyers a population of a kind). It is a specialized language of legal norms and related discourse. Its distinctiveness may be seen in a number of characteristics that differentiate it from the language of ordinary use. But, there is no universal language of law that would be comprehensible to all languages.
Law is a system that is bound to a particular state or organization. Language of law, its words, syntactic structure and concepts are closely related to the legal system in question. The relationship between the language and the law is mutual: the legal system influences the nature of the legal language and the legal language – the language of the legal discourse – influences the system. The speech of lawyers is conditioned not by the law alone, but also by the prevailing language of their environment (Mellinkoff 1963, 4). Language of law is a system- and culture-bound language for special purposes. This does not mean that the language of law is completely detached from the ordinary language. Most of its words are taken from the ordinary language. On the other hand, legal language influences everyday speech and many of its originally technical terms are now accepted as common. Mellinkoff (1963, 9) gives the examples of plaintiff or defendant in English; the same holds for the Czech smlouva – (contract) or zÃ¡stava(pawn).
In making generalizations about the language of law for the purpose of this thesis, the characteristics will be drawn from those of legal Czech and legal English. The legal systems in which these technical languages originated belong to different legal system families: English law (i.e. the law of England) is a part of the common law family whereas the Czech law is a member of the civil law family.
2.1 The Nature of Legal Language
Cao (2007, 13-20) classifies legal language with respect to the nature of its use that can be described as normative, performative and technical.
The Language of law is used to impose rights and obligations; it is largely prescriptive. Law’s basic function is to regulate human behaviour and human relations. Law exists as a set of prescriptions having the form of imperatives defining and enforcing the arrangements, relationships, procedures and patterns of behaviour that are to be followed in a society (Cao 2007, 12, quoting Jenkins 1980, 98). Legal language serves to communicate the legal norms to their addressees.
The speech act theory developed by J. L. Austin and J. R. Searle makes language responsible for effects in reality. Speech is not only words but also actions. By uttering certain words, we the facts may be changed. Legal effects and legal consequences are commonly obtained by merely uttering certain words (Cao 2007, 14), for example in a court’s judgement or in front of a clerk or a priest during the marriage ceremony.
The question of technicality of legal language is not perceived consistently. One position argues that there is no legal language as such and it is a part of the ordinary language. The other holds that legal language is a technical language. If the latter view is accepted, what makes the language of law different from other types of language use?Â
The chief differences may be discussed in relation to the following aspects:
- stylistic differences
- specific vocabulary – terminology issues
- syntactic structures
The language of law is a language of legal norms and related discourse. The language of legal norms is that of legislation, judicial decisions or contracts. It is said that it is the language created and used specifically by lawyers. Although the lawyers form the core of the language-of-law-speaking community, legislation, for example, is influenced by people with no legal educational background, yet who adopt the legal terminology and expressions to a certain extent. Drawing on the situation in the civil law system, the circle of the legal language users may be described as follows:
– The legislators (the drafters who actually write the laws; members of the parliament, whose knowledge of all the terminology and concepts is not complete and sufficient but who try to sound as if it was), i.e. all those who create the laws in the written form and who have real influence on definitions of legal terms
– The judiciary (judges and people who influence the written judgements – assistants to the judges or court clerks – vyÃ…Â¡Ã…Â¡Ã soudnÃ ÃºÃ…â„¢ednÃci)
– The lawyers (when negotiating, giving speeches in court, drafting documents etc.; and when talking to one another)
The circle of the law language speakers in common law systems is generally the same. The major difference is that the origins of certain terms and the evolution of the language are somewhat different due to the different sources of law (the main body of legal rules is to be found in judicial decisions not in legislation).
The type of speaker influences the particular style of the legal language: there is a difference between the language of an Act of Parliament (or zÃ¡kon) and the language used by lawyers when talking to one another about legal matters.
Nevertheless, at times the language the lawyers use does not seem to resemble the language of legislation at all. Lawyers seem to have developed some linguistic quirks that have little communicative function, and serve mainly to mark them as members of the legal fraternity (Tiersma 1999, 51).Â
Language of law is said to be purposive and pragmatic (Knapp 1995, 122). Its style is therefore governed by these characters.
There have been numerous attempts on defining â€˜style’. One of them was made by VilÃ©m Mathesius. He defines style as â€œindividual, unifying character found to be present in any work resulting from intentional activityâ€ (Vachek 1974, 114). Legal style refers to the linguistic aspects of the written legal language and also to the way in which legal problems are approached, managed and solved (Cao 2007, 22, quoting Smith 1995, 190). The style of the language of law is one of the functional styles. It is said to be marked and sometimes described as being a sub-style and the most typical specimen of the officialese style, the style of official documents (Vachek 1974, 187). On the other hand, in the last decades there have been authors who believed the style of the language of law to be a separate functional style alongside other functional styles, the officialese, or administrative, being one of them. The style of the language of law can be described mainly with regard to its syntactical structure and specific vocabulary.
2.3.1 Syntactical Structure of the Language of Law
Vachek (1974, 188) describes the sentences in English legal texts to be long and complex, yet clearly built up, using various typographical devices of distributing phrases, division of the text into parallel paragraphs and capitalizing certain crucial points of the document. When describing the typical features of legal English, Tiersma (1999, 51-71) gives the following list of typical features which overlap with Vachek’s description at some points: lengthy and complex sentences, unusual sentence structure, wordiness and redundancy, conjoined phrases, frequent use of negation and impersonal constructions. Cao (2007, 22) gives two general characteristics of the legal language: impersonal constructions and extensive use of declarative sentences pronouncing rights and obligations. Mellinkoff (1963, 285) argues that the language of law should not be different from the ordinary language without reason. For such differences, the following rationales are usually given: legal language is more precise, shorter, more intelligible and more durable. Of these arguments, precision seems to be the leading feature of the language of law that should give reason to all the other features which are sometimes said to be its vices.
These syntactical features are further discussed in relation to legal English and legal Czech respectively.
The most important difference that sets off legal language from ordinary language is its lexicon. Legal language makes use of numerous words and terms that are not common in ordinary language or carry an additional meaning different from their ordinary meaning. Legal language utilizes vocabulary from standard language both in their ordinary meanings (the majority of legal language vocabulary) and specialized meanings. This second class of words may create confusion because in legal texts they may appear in both their meanings – ordinary and specialized. Knapp (1978, 17-20) distinguishes the following groups of words:
- legal terms
- words with specific legal meaning and specific meaning in another specialized language
- words with both specific legal meaning and ordinary meaning
- words having specific legal meaning, specific meaning in another specialized language as well as ordinary meaning
- words with neutral meaning
In his later writing, Knapp (1995, 122) describes legal lexis as follows:
- words with ordinary meaning
- words with both specific legal meaning and ordinary meaning
- specific legal vocabulary
- legal language does not use some of the words with ordinary meaning (e.g. beauty, darkness)
To complete the enumeration of characteristics of legal language, Mellinkoff (1963, 11) gives the following characteristics of legal English terms: frequent use of common words with uncommon meanings; legal archaisms (words from Old and Middle English, Old French and Anglo-Norman); terms of art; argot; formal words; use of expressions with flexible meanings.
3. Legal English
Because of the nature of law, the language of law has developed particular linguistic features – lexical, syntactic and pragmatic – to meet the demands of law and to accommodate the idiosyncrasies of law and its applications (Cao 2007, 20). Legal English style and lexicon originate in various languages: Anglo-Saxon, Latin and/or French. Legal language was originally oral; any writings served only as a report of the oral ceremony (Tiersma 1999, 36). It took quite a long time to accept the written texts as authoritative. Formbooks were written and their main effect was conservation of legal language, its terminology and phraseology. Although the ritualistic and the magical has disappeared from law, it has not disappeared from the language of law.
The main vices of legal English are said to be its wordiness and excessive use of archaic words and constructions. In the last 50 years legal English underwent significant changes, mainly due to the Plain English Movement, but certain specifics persist.
Legal style results from cultural and legal traditions. Its chief characteristics are impersonality, extensive use of declarative sentences, negative and passive constructions. Mellinkoff (1963, 24) says the language of law has a strong tendency towards certain mannerisms such as being wordy, unclear, pompous and dull. Legal texts tend to use number of words instead of one (e.g. annul and set aside instead of annul;or totally null and void instead of void). Sometimes, they seem to contain a great part of text that seems to be devoid of meaning (as Mellinkoff puts it) such as using metaphors. Pomposity in the language of law may take many shapes especially by using words evoking respect (e.g. solemn, supreme, wisely). Pomposity and wordiness, together with long complex sentences and a lack of clarity of expression contribute to the dullness of the legal language.
It has been already mentioned that the nature of legal language is among others performative. As Cao (2007, 21) writes, legal utterances perform acts, creating facts, rights and/or institutions: they are speech acts. Their performative nature may be marked by special words such as hereby and various performative verbs such as declare, undertake, promise etc.
Legal language is highly formal and impersonal. This is achieved by passive constructions, complex and long sentences, multiple negations and prepositional phrases (e.g. in what follows, by virtue of which). Legal English is full of archaisms and this tendency may be seen in the syntax as well. The old-fashioned syntax still makes the legal text dense, though mainly thanks to the Plain English Movement there can no longer be found grammatical archaisms like the old â€˜-th’ endings (Alcaraz and Hughes 2002, 7) in legal texts. Slightly archaic tone is achieved by the use of certain prepositional phrases such as pursuant to (very often used in contracts) or subject to. A certain degree of sexism can also be found: e.g. judges calling judges of the same rank brethren.
Although it is typical of legal language to consist of unusually long sentences, there is a specific area of it that is rather plain and surprisingly comprehensible. The first group is the syntax of statutes, contracts or pleadings; the second group is that of judicial summaries of particular facts of cases. Complexity of legal English documents may be seen in their layout, multiple subordination and postponement of the main verb until very late in the sentence (Alcaraz and Hughes 2002, 19). In legal texts such as statutes, contracts or handbooks containing procedural rules, many possible situations, factual scenarios and exceptions must be provided for (Alcaraz and Hughes 2002, 20) therefore the sentences are often conditional and contain hypothetical formulations. The illegibility of legal texts derives from the fact that originally legal texts were written from the far left side to the other side of the page to avoid the possibility of adding anything to the text. From this fact the custom of avoiding punctuation is also derived: full stops, commas and semicolons may alter the meaning of the sentence. As Mellinkoff writes (1963, 367), lawyers are still reluctant to end a sentence, even though the old reasons for skimping punctuation are gone.
To deal with legal lexis it may be useful to systematize it. Alcaraz and Hughes (2002, 16-18) classify it as follows:
1. Functional items – grammatical words and phrases that have no direct referents either in reality or conceptual;
2. Symbolic (or representational) items – all the terms that refer to things or ideas in the world of reality. This group can be further divided into: purely technical terms, semi-technical terms and shared, common or â€œunmarkedâ€ vocabulary
a) Purely technical terms: terms found exclusively in the legal sphere that have no application outside. They can be one-word terms (barrister) or whole phrases (bring an action). Some of the theorists argue that these terms are so closely related to the legal system that they cannot be translated, but only adapted. Therefore, a number of terms is often left untranslated (e.g. estoppel, trust) (Alcaraz and Hughes 2002, 17).
b) Semi-technical or mixed terms: words or phrases that have acquired additional meaning in addition to their common meanings (issue, consideration). Their number is constantly growing to meet the developing needs of the society.
c) Everyday vocabulary found in legal texts (paragraph, subject-matter).
Legal English lexis – especially the purely technical terms and semi-technical terms – comes from various origins. Because legal English is a product of its history, various influences can be traced in contemporary legal language. The eldest part of the legal lexis is Anglo-Saxon such as bequeath, manslaughter, oath or writ.
Despite the native origins of some of the most characteristic legal terms, legal English draws on numerous Latin or Latinized terms. There are dozens of phrases that still have their place in everyday legal discourse and because of their Roman Law origin they are often common to the Civil Law system as well (lex fori, bona fide, res iudicata, restitutio in integrum). Some of these phrases have their calque version that may be used alongside the Latin one (bona fide or good faith, mors civilis or civil death).
Although numerous words of Latin, Anglo-Saxon or Viking origin may be found in legal English, it may be argued that the main influence for the development of legal language is to be attributed to Norman and later to French. French used to be once the language of the royal courts. Despite several attempts to return to legal English (for example the 1362 Statute of Pleading which although itself written in French forbade using French in lawsuits), French remained in use until 1731, when it was together with Latin banned from being used in legal proceedings. A vast amount of the most basic legal vocabulary is of French origin (appeal, complaint, evidence, judge, tort or verdict, and real law French words such as estoppel or alien in the sense of transfer). French influence may be also seen in some legal phrases following the French way of putting an adjective after the noun (attorney general, fee simple) or in creating neologisms by adding an -ee ending (lessee, condemnee) to a verb.
From what has been just said might follow that legal English is not â€œEnglishâ€ at all, especially when considering that the word law itself is derived from the Norse word for â€œlayâ€ and means â€œthat which is laid downâ€.
Although legal language seems to be very old-fashioned at first sight, lawyers can be quite creative when it suits their purposes (as Tiersma writes
A special feature of legal English of Anglo-Saxon origin is the conjoined phrases or multinominal expressions. Some of them are alliterated as for example the rest, residue and remainder, some of them are not, such as last will and testament. These phrasesconsist of synonyms or near-synonyms. It has been argued that one of the justifications of such language behaviour is the never-ending quest for absolute precision. But as Mellinkoff says, this may not be the case: the phrase last will and testament is not as precise as plain will and when one of these words is used, the other is superfluous (Mellinkoff 1963, 331-332). Perhaps a more sound justification for the wordiness of legal English is derived from its adversarial nature. Tiersma says that
â€œ…virtually any legal document is liable, at some point in its existence, to be picked apart by an opponent eager to exploit a loophole or ambiguity in hopes of wiggling out of an agreement or contesting a will.
The question arising when dealing with these conjoined phrases is whether they really present a redundant overflow of words or whether they constitute a special kind of term. But an answer to this question would be outside the scope of this thesis.
4. Legal Czech
Legal language is a specialized language of legal texts (TomÃ¡Ã…Â¡ek 2003, 25). It is the main means of communication within law as a legal system. Communication between the legislator and the addressees of legal norms is carried out solely by language. It is mostly a natural language (the exceptions being for example road signs) and a standard language. Knapp (1988, 95) argues that there are non-standard languages of law as well, such as the spoken language of judges, or legal slangs, such as the law students’ speak). Legal Czech can be distinguished from the ordinary Czech especially with respect to its style. Knapp (1995, 120) distinguishes between three varieties of legal Czech:
- Language of laws (language of legislation)
- Language of courts (decision making)
- Language of lawyers (language of legal representation)
It is typical of legal Czech that it originates from the language of legal norms – the language of legislation. Legal norms regulate social relationships: they state what should be done (prescriptive function) as well as what is (descriptive function). The language of judicial decisions and the language of lawyers are basically derived from the language of legal texts.
Knapp (1988, 96) argues that there may not be a unified legal style because there are recognizable stylistic differences between the language of legal texts, lawyers’ speak or the language of theoretical legal texts. Basic stylistic requirements of legal texts may be listed as follows:
Some of the points of this list of basic requirements quoted by TomÃ¡Ã…Â¡ek (2003, 28) are developed later.
a) Precision and Definiteness
Precision seems to be the most important legal language requirement, not only with respect to legal Czech but other legal languages as well. To ensure legal certainty and the principle of equality in law, law must state all the rights and obligations of its subjects exactly and without doubt. This does not mean that all the legal expressions must be absolutely exact and precise: legal Czech is full of vague words, words with flexible meanings. This vagueness may not be a flaw in precise legal language. Expressions such as mÃra pÃ…â„¢imÃ„â€ºÃ…â„¢enÃ¡ pomÃ„â€ºrÃ…Â¯m (degree adequate to the circumstances), znaÃ„ÂnÃ¡ Ã…Â¡koda (substantial loss), vÃ„â€ºk blÃzkÃ½ vÃ„â€ºku mladistvÃ½m (an age close to the age of minors/juveniles), may be interpreted according to particular circumstances of the case. Relatively frequent use of these expressions in Czech legal texts may be explained by the nature of continental-system legal norms. Czech legal norms (and continental legal norms in general) tend to be more general, often using vague expressions to leave their interpretation on courts. Common-law-system norms tend to be more casuistic and such vagueness of expression would be perceived as inadequate.Â Â Â
Unless used in legal theory and scientific legal writings, use of synonyms is forbidden. Although we may find such synonyms in the bulk of legal expressions, legislation usually chooses only one of them and keeps using it to avoid any misinterpretation. Here are some examples of such synonyms in legal Czech: zletilost – plnoletost (legal age – majority; only zletilost is a truly legal expression), zpÃ…Â¯sobilost k prÃ¡vnÃm ÃºkonÃ…Â¯m – svÃ©prÃ¡vnost (legal capacity; only the first expression is known to the legal texts)
Contrary to the use of synonyms, the use of polysemes and homonyms is not that easily avoided. When such use is inevitable, the meaning of such expressions must be interpreted by context: nÃ¡lez (finding) may refer to nÃ¡lez ÃšstavnÃho soudu (Constitutional Court’s ruling) or to nÃ¡lez vÃ„â€ºci opuÃ…Â¡tÃ„â€ºnÃ© (finding of a derelict), zapoÃ„ÂtenÃ (inclusion) may refer to zpÃ…Â¯sob zÃ¡niku zÃ¡vazku (a way of termination of an obligation), kompenzace (compensation) etc.
To regulate social relationships and to ensure legal certainty, legal terminology and style should be relatively stable. This does not mean that the meaning of the terms does not change from time to time. Stability means that one and the same term used in a legal text should denote one and the same thing (Knapp 1995, 125). It is typical of legal Czech to â€œnormalizeâ€ certain words and phrases, to set firmly their meanings and way of usage (see for example Knapp 1978, 47-48).
This requirement is closely connected to that of purposiveness and precision. Legal text should communicate its content clearly and without doubt to its addressees. The ideal of understandability is to make the addressee of the legal norm understand it in the same way as its creator (Knapp 1995, 126). In another work Knapp (1988, 99) argues that even people with no legal education are able to understand the text of a legal norm. The language of law is sometimes demonized but to understand the language of law in reality is not very difficult. The demand for popularization of legal language would suggest that people read legal texts on a daily basis: but this is not so. Whether we like it or not, law seems to be a complex system that has developed its terminology and to understand the law and its language needs a specialized education in the same way as medicine does. To simplify the language of law – yes; to vulgarize it – no. What people may not understand when reading a law or a contract should be issues connected to law, not to language.
Legal Czech makes use of all classes of words except interjections. Words of various language origins are included: traditionally Latin, less often French and recently English. Legal Czech makes use of various Latin phrases which are even taught at law schools and are used relatively frequently in legal texts and in lawyers’ talk. These include phrases such as inter vivos (among the living), mortis causa (in case of death) or even whole sentences describing legal principles such as Ignorantia iuris neminem excusat (The ignorance of law does not excuse). With the growth of European Union legislation and numerous international contracts, English terms slowly find their way into legal Czech. Typically, these are words for which there is no Czech equivalent (due to the systemic differences, Chapter 5) and to avoid confusion, the original English term is accepted (estoppel or common law).
TomÃ¡Ã…Â¡ek (2003, 48) classifies Czech legal vocabulary as follows:
- legal terms (e.g. zÃ¡kon – statute, vÃ„â€ºcnÃ© bÃ…â„¢emeno – legal servitude)
- word groups (e.g. vynÃ©st rozsudek- deliver a judgement)
- phrases (Czech: jazykovÃ© Ã…Â¡ablony, language stereotypes; e.g. tento zÃ¡kon nabÃ½vÃ¡ ÃºÃ„Âinnosti dnem vyhlÃ¡Ã…Â¡enÃ -this statute comes into effect on the day of its publication)
Legal terms must fulfil the abovementioned requirements of legal text. Most of all they should be precise and definite. They may be composed of one or more words. Multiword terms (sub 1) may not be easily recognizable from word groups (sub 2). According to TomÃ¡Ã…Â¡ek (2003, 51), word groups only describe legal reality; they have a fixed structure but they cannot be defined, whereas the legal terms can. On the borderline between legal terms and word groups may be binomial phrases, or conjoined phrases as Tiersma (1999, 61) calls them, such as spoleÃ„ÂnÃ„â€º a nerozdÃlnÃ„â€º (approx: jointly and severally). These phrases consisting of two almost synonymous words are used traditionally and most likely arose from the rhetorical nature of the language of law. TomÃ¡Ã…Â¡ek (2003, 25) defines the phrases or language stereotypes as multi-word or sentence constructions that form a kind of formula. They originate as language customs and as any other social custom they are stable in their formulation and they are used in specific circumstances. Here are some of the examples of these stereotypes: …pod trestem penÃ„â€ºÃ…Â¾itÃ© pokuty (under the punishment of monetary penalty), OdnÃ„â€ºtÃm svobody bude potrestÃ¡n… (The punishment of imprisonment shall be imposed on…), Parlament Ã„Å’eskÃ© republiky se usnesl na tomto zÃ¡konÃ„â€º (The Parliament of the Czech Republic has agreed on thefollowing statute), v souladu s ustanovenÃm (pursuant to…).
Ideally, sentences in legal texts should be constructed to be comprehensible. This may be achieved by reasonable sentence length, understandable complex constructions or the overall layout of the text.
The layout and composition of legal texts have their special features. Typically, a law or regulation is divided into sections and subsections (called hlava, oddÃl or dÃl), paragraphs (designated by the sign before the number of the paragraph; or Articles – typical of constitutional and international documents) and subparagraphs (numbered 1), 2) etc. or designated by lower case letters a), b) etc.). Apart from this division (generally stated by Governmental Legislative Rules – LegislativnÃ pravidla vlÃ¡dy) any legal text should have some kind of introduction (e.g. the introductory sentence to each law passed by Parliament; or identification of the parties at the beginning of each contract) and an ending. These are mainly customary.
Legal texts are lexically dense, mainly due to frequent nominalizations. (For example: smlouva o smlouvÃ„â€º budoucÃ – agreement to agree,
Legal texts are mainly normative; therefore they must aim at objectivity. This is usually achieved by frequent use of passive constructions. The normativity, or regulative nature, of legal texts may be illustrated by stating rights and imposing obligations. This may take place via imperatives, often by modals or indicatives. Most often these norms appear as general declarations (e.g. â€œVlastnictvÃ vÃ„â€ºci lze nabÃ½t kupnÃ, darovacÃ nebo jinou smlouvou, dÃ„â€ºdÃ„â€ºnÃm, rozhodnutÃm stÃ¡tnÃho orgÃ¡nu nebo na zÃ¡kladÃ„â€º jinÃ½ch skuteÃ„ÂnostÃ stanovenÃ½ch zÃ¡konem.â€ – The proprietorship may be acquired by a contract of purchase, contract of gift or any other contract, by way of heritage, by way of an administrative body’s decision or by another legal fact pursuant to the provisions of statutes.) but they are authoritative and cogent: anything contrary to such provisions is either illegal or void. Apart from frequently used sentence constructions there are certain unacceptable sentence constructions, e.g. the relative sentences (or not actual relative sentences; HladiÃ…Â¡ 1999, 53)
Punctuation seems to play a significant role as well: legal texts use semicolons and parentheses that may have a direct impact on the meaning and interpretation legal texts.
The usage of long and complex sentences in legal Czech does not arise from such a strong tradition as in legal English. I would argue that it is a lawyers’ quirk, maybe an attempt to sound smart. Long and barely understandable sentences in legislation are usually a result of additions to the professional drafts – made by the non-lawyer Representatives of the lower House of Parliament; or of adaptation of foreign (most often EU) texts into national legislation. The latter are the translations, often made without respect to already used idiom and introducing new terms for concepts that already have their Czech terms.
5. Translation of Legal Texts
Legal translation is a special type of LSP translation involving cross-linguistic communication in the legal context. In contrast to other types of LSP translation, legal translation tends to involve more culture specific components (Biel 2008, 22). The main problem when dealing with the translation of legal texts is the fact that legal texts are not just typical special-purpose text, such as medicine or biology. Legal texts are usually produced to bear some real-life consequences such as granting rights or imposing obligations. As has been already discussed, the main functions of legal language are normative and performative: legal texts usually contain legal norms and consequently carry an obligation to follow this legal norm, otherwise a punishment might follow. Therefore, it is greatly important to make sure what the actual purpose of the translation of an individual legal text is.
This thesis focuses on the translation of English and Czech legal texts – legal texts originating in two major legal systems: the Common Law and the Civil Law. This fact draws these legal texts even more apart and numerous problems of conceptual (non)equivalence arise. Every translator of legal texts must face and finally try to solve the tension between the need of legal certainty and the fact of linguistic indeterminacy. Knowing the concepts behind the terms is more important in legal translation than in other translational areas. Translation of legal texts seems to stand at the crossroads of legal theory, language theory and translation theory as Cao writes (2007, 7).
5.1 Purpose of Translation
Although it is sometimes claimed that legal texts have minimal communication value (mainly because of their style), they are written for various communicative purposes. The translation itself may have different purposes as well. To provide an accurate translation, the translator must bear in mind both of these groups of purposes.
Cao (2007, 10-12) proposes following communicative purposes of the legal texts (and subsequent purposes of translation of the legal texts):
- normative purpose – prescriptive laws granting rights and imposing obligations
- informative purpose – mostly descriptive; scholarly works and legal commentaries, correspondence between lawyers
The communicative purpose of the SL text and TL text may not be the same. Cao further classifies legal translation into three categories according to the purpose of the TL text:
- Translation for normative purpose – translation of the law. The TL text will be regarded as authoritative and have the same or similar effects as the SL text. This situation is typical of bilingual jurisdictions or the European Union legislation. These texts may be statutes, directives and regulations or even private documents if they are legally binding. In this category, the communicative purpose of the SL and TL texts are identical.
- Translation for informative purpose – only to provide information to the TL readers: the SL text is enforceable, the TL text is not. This category includes court decisions, or even foreign statutes. The original texts and its translation may have different communicative purposes.
- Translation for general legal or judicial purpose – primarily informative and mostly descriptive. This group includes translation of various records and certificates, witness statements or expert reports used as evidence in court proceedings. Such documents may have legal consequences (e.g. only a translated and legalized university diploma – apart from other requirements – admits a foreign-educated lawyer into practice in the Czech Republic). Moreover, this category may include texts that are not written by legal professionals.Â
When clearly determining the purpose of the TL text and translation, a translator may happily dive into the text itself and start to deal with the individual difficulties arising. To provide a general overview of the sources of difficulties in legal translation, let me draw from the classification provided by Cao (2007, 23-32).
1. Systemic Differences
Law and legal language are system-bound, as has been already mentioned several times in this thesis. They both reflect the history and traditions of the said country. Each country has a specific legal system (in the sense of Czech â€œprÃ¡vnÃ Ã…â„¢Ã¡dâ€ – the legal order) with specific concepts. Although law in general is a universal concept, the same cannot be said for the particular legal concepts within legal systems. The procedures, application of laws and institutions differ form one another, reflecting the differences between societies. Legal translation involves translation from one legal system into another (Cao 2007, 24).
Various textbooks on comparative law offer more or less the same distinction of legal system families: the main and most important and influential being the Common Law and the Civil Law legal systems. The Common Law has its origins in Britain and with a degree of simplification it can be said that it is based mainly on the judge-made law. The term â€œcommon lawâ€ may refer to other facts than just to a legal system. This name indicates that one of its meanings derived from the fact that this law was thought to be common to all England (KÃ¼hn, Bobek and PolÃ„ÂÃ¡k 2006, 12). In its prevalent meaning today – and in this thesis – it refers to the legal family derived from the law of England and comprises all former Commonwealth jurisdictions.
The term Civil Law (apart from its meaning denoting the law dealing with civil matters) is widely used to label the group of continental legal systems originating in Roman Law (its main concepts and institutions) and Napoleonic Code Civil from 1804 (the prevalent idea that law should be created by a central institution, written and most favourably comprised in one thick book – a code).
One of the main differences that set the Common Law and the Civil Law apart is the perception of the sources of law. Whereas the basic source of law in Common Law is the precedent (a judge-formulated legal rule), the Civil Law systems are based on statutes and the case-law has only a marginal and supplemental role.Â
From the perspective of legal thinking and translational importance, Civil Law tends to use more abstract norms (to allow the judges to fit them to the concrete disputes) whereas the Common Law norms are more casuistic (based on the casuistic nature of the notion of precedent itself).
The difference between these two legal families may be seen in a number of institutions specific for only one of these groups: the Common Law concepts of trust, estoppel or misrepresentation are not known to the Civil Law with is own specific concepts (for example actio de in rem verso, Czech: bezdÃ…Â¯vodnÃ© obohacenÃ).
Cao (2007, 28) claims that
â€œ…despite these differences, the Common Law and the Civil Law families are not incompatible. We should not exaggerate the differences or believe that the translation between the two is somehow not possible. After all, both belong to the Western legal traditions and political cultures.â€
The Czech Law belongs to the Civil Law family (although some of the older publications classify it as a Socialist Law – because of the nature of the Czech Law before 1989 – see for example David and Brierley 1985) although in some of its concepts and rhetoric it still bears resemblance to the Socialist legal systems.
2. Linguistic Differences
As specified above, legal language as any other language has its own specific users: they may be judges, lawyers, legal professors or even laypersons, such as politicians. Linguistic sources of difficulties arising in translation of legal texts are generally speaking of two kinds: the style – in a very wide sense which for the purpose of this moment includes also â€œthe unstated conventions by which language operatesâ€ (Cao 2007, 28 quoting White 1982, 423); and the terminology. Legal language has developed to meet the demands of the particular legal system. The basic difficulty arising when translating legal texts is that of terminology and equivalence of individual concepts.
3. Cultural Differences
Law is closely related to culture; in a way it may be said that law is an expression of the culture (e.g. its ideas on what is right or wrong) and it is expressed through legal language.
There are major stylistic differences between the Common Law and Civil Law that can be discussed in relation to each type of the legal text. Stylistic characteristics of legal English and legal Czech have been discussed in the preceding chapters. In this chapter, let me just ask a question: is it necessary to change the style of a text to approximate it to the TL style? Individual translators may have individual views on this matter. I would argue that it depends on the purpose of the translation and of the purpose of the TL text. The statute that is supposed to be legally binding even in its TL version must be able to communicate its content comprehensibly. A contract should look like a contract to both contracting parties. But this claim may have its limits.
Often, people in business do not even realize that the style of legal documents in different countries might be different. Let me mention an episode from real life. I was working on a translation of a Czech contract into English. I wanted it to sound formal but I tried to avoid all the herefroms and heretos. I tried to be as precise as possible without adopting the wordy and flamboyant style of legal English. The English party agreed to all the proposed conditions but added a note from which it followed that apparently our lawyers seem to not conduct business very often, meaning that the terminology and the core of that typical Czech contract was fine but the form of it and the style did not comply with their everyday standards. I will discuss the stylistic differences of contracts in Chapter 6.
5.3 Terminology – Problems of Equivalence
It follows from the systemic differences between Czech and English law that often there is no equivalence between individual legal concepts. To find suitable translational solutions for legal terms is said to take up to 75 per cent of translational time (Biel 2008, 22). Even when there seems to be an obvious solution at hand, the terms hardly ever have the same semantic potential in the SL and TL (Biel 2008, 24). Cao (2007, 54) gives an excellent example of such an obvious concept as that of a theft, which I will try to extend to Czech as well. In English law, theft is the â€œdishonest appropriation of property belonging to someone else with the intention of keeping it permanentlyâ€. In the Czech Republic the concept of theft is defined in a very different way.
The Czech Criminal Code offers different kinds of theft which have in common only the first part of the definition: â€œWhoever appropriates a thing belonging to someone else by taking possession of it…â€. The Czech definition does not explicitly require dishonesty or an intention to keep the stolen thing permanently. Even though theft is routinely translated as krÃ¡deÃ…Â¾ and vice versa and everyone would agree that it means basically the same, the legal concepts behind these terms are not equivalent. Cao (2007, 33, quoting Toury 1986, 1123) proposes that because translating legal texts is a rather relative affair, â€œequivalence is a combination of, or compromise between, the two basic types of constraints that draw from the incompatible poles of the target system and the source text and systemâ€. It seems to be futile to search for absolute equivalence when translating legal texts.
Legal language is dependent on law and law is in turn dependent on the society. As Alcaraz and Hughes write (2002, 25):
â€œ…in legal texts, terms are continually being redefined, as social developments overtake past practice and thus force legislation to change, simply in order to keep abreast of new standards of acceptable and unacceptable behaviour.â€
Cao (2007, 55) proposes that a legal concept is three dimensional: it has a linguistic, referential and conceptual dimension. Real equivalents have to be equivalent or at least similar in these three dimensions. In reality, the words are rarely equivalent in all the three dimensions: there may be only a partial equivalent or there may be no equivalent at all. In these cases, translation methods can vary from an introduction of a new word (with an explanation of the concept), most often either by keeping the word in the TL (for example the English term and concept of estoppel is slowly finding its place in legal Czech) or by formal equivalence, that is a word-for-word translation (as with the rule of law, Czech: vlÃ¡da prÃ¡va; or Rechtstaat – prÃ¡vnÃ stÃ¡t), functional equivalence (law is translated as prÃ¡vo although the Czech word means right as well) to descriptive equivalence (tort – mimosmluvnÃ civilnÃ delikt).
5.3.1 Faux Amis
A related issue in translation between European languages is the problem of â€˜false friends’ – terms that look similar in both the SL and the TL. This issue is more topical in translation between English and French for example, but there are certain faux amis in Czech and English as well. One of them is magistrate. The word almost wants to be translated as magistrÃ¡t. However, there is a difference: the magistrate is a person appointed to judge minor cases and dispose of â€˜summary offences’ at the magistrate’s court (within British legal context), not a municipal authority’s office.
As was already mentioned in the preceding chapters, a large part of legal English and Czech vocabulary consists of words that carry both specific legal meanings and ordinary use meanings. For a translator, it is necessary to discern the meaning correct in the circumstances. To translate polysemous words correctly, the â€˜context of utterance’ – the immediate physical, temporal and verbal environment in which the communication takes place – becomes crucial (Alcaraz and Hughes 2002, 37).
Another type of ambiguity may arise from the syntax. To solve it is not in the scope of a translator’s competence. Alcaraz and Hughes (2002, 45) write that
â€œ[s]ince the ambiguity is inherent in the syntactic structure of the sentence, any translation that reproduces this is bound to be correct, in the sense that it will be equally ambiguous, and for the same reason. And that is what translators must do in cases of this kind, since it is no part of their business to decide between alternatives (…)â€
5.4 Legal Translator
Translation is a special type of communicative language use that requires language competence in two languages, the SL and TL. In addition to the language competence, legal translation requires a certain degree of understanding of law. There have been many opinions on what the ideal legal translator should be like. Sarcevic (1997, quoted by Cao 2007, 37) believes that the legal translator’s competence presupposes in-depth knowledge of legal terminology, thorough understanding of legal reasoning and the ability to solve legal problems, to analyze legal texts, to foresee how a text will be interpreted and applied by the court. Weisflog (1987, quoted by Cao 2007, 37) wants the legal translator to have a thorough acquaintance of law as the subject matter, including laws and legal systems of the SL and TL countries. One can start wondering whether such ideal translators exist. Both these â€˜definitions’ mention one very important element, though. A translator of medical science writings can translate them without any deep understanding of the subject, knowing only the relevant terminology. A translator of legal texts is lost without an insight into the legal systems of both, the SL and TL. I agree that a competent legal translator must have three prerequisites proposed by Smith (1995, 181 as quoted by Cao 2007, 37): basic knowledge of the legal systems, knowledge of the relevant terminology and competence in the TL specific legal writing style.
One may then ask whether it is even possible for a translator without legal education to translate legal texts. The problem is that having Czech legal education does not mean understanding English law and vice versa.Â
Although it is not the translator’s job to have a sophisticated insight into all the legal problems, I believe that he/she should be able to understand the legal text in a way to be sure about the rights and obligations it imposes, various concepts used and the main problematic points. Czech and English legal practitioners know a translation when they see it. Unless the translator is active in given legal environment, it is almost impossible to give the SL text a truly idiomatic sound. I have to admit that it is very difficult for a Czech translator to translate into English legal language. But I am convinced that such a translator should be fully competent in Czech legal writing.
6.1 Contracts and Law
Not all agreements are contracts. As Gubby clearly writes (2007, 170), contracts are specific types of agreement between two or more parties that is binding in law. Contracts are only such agreements that are legally enforceable. The core of every contract is a consensus on its content and on establishing a legally binding relationship. Contracts create the â€œlaw between the partiesâ€ – lex contractus – and generally no-one can be entitled or bound by the terms of a contract if he/she is not a party to it.Â
To create a truly legally binding contract, several principles must be adhered to: The contract must be in an appropriate form (written, oral or by inferring from the conduct depending on the concrete requirements of the law), the parties must clearly intend it to be binding in law (the legal act must be made seriously, not as a joke), the parties must enter the contract voluntarily (no party can be forced to conclude a contract by physical or mental force) and its content must not be impossible to carry out (forbidden by law or physically impossible).When any of these principles are not fulfilled, the contract may be invalid.When all the requirements of the law (including all these principles) are fulfilled the agreement generates rights and obligations that may be enforced in the courts.
Contracts are the legal documents ordinary people are likely to be most familiar with. As already mentioned in the Introduction to this thesis, people are concluding contracts all the time by buying food, renting a flat or just by getting on a bus.
The core of the contract – the consensus – is expressed in the notions of offer and acceptance. Within English legal context, a special feature must be present in a contract to set it apart from other agreements: the presence of (valuable) consideration. Consideration in connection with contracts means the bargain, that is the exchange of promises; one party must show that he/she has bought the other party’s promise either by doing some act in return for it or by offering a counter-promise (Gubby 2007, 175). A one-sided promise is not a binding contract.
There should be an offer and an acceptance present in Czech contracts as well. The slight difference from the English contracts is the question of consideration. Czech legal thinking knows a similar concept – Ãºplatnost/bezÃºplatnost – by which is meant the mutuality of exchange. Czech contracts do not need to contain valuable consideration (do not have to be ÃºplatnÃ©) whereas for the English contract to be legally enforceable the consideration has to be valuable. Czech law knows the gift contract (English law knows the deed of gift – a deed being only a written document, signed by the parties and witnessed) as a legally binding contract where one party stipulates to give something of value to the other party and the other party expressly accepts it. Gubby (2007, 175) claims that to make a promise enforceable, the promise should either be exchanged for nominal consideration (such as Â£1), or be made in the form of a deed. A deed of gift might be therefore enforceable but no-one would consider it to be a contract.
Another difference worth mentioning may be referred to as the parol evidence rule. When disputed, the contracts will be interpreted by courts and the courts will not seek the real intentions of the parties but look only on what is written in the contract: the law will enforce only what has actually been agreed and it will not ascertain the mental state of the parties (Gubby 2007, 169). Czech courts on the other hand will always try to find out what was the real intention of the parties. Generally speaking the contract concluded by mistake (Czech omyl; see Czech laws on concrete explanation and interpretation e.g. 49a Czech Civil Code) cannot be enforced whereas for the English contracts the rule caveat emptor (let the buyer beware) is crucial. However, when the mistake is operative and fundamental, even the English contract will be considered void (Gubby 2007, 187), as it would be in the Czech law. The parol evidence rule is the reason why common law contracts tend to be so lengthy – the drafters are trying to anticipate all possible eventualities.
5.2 Language of Contracts
I believe contracts can be considered a sub-genre of legal texts. They are drafted for a special purpose; they seem to have a distinctive style from that of legislation or wills. In English there are even terms special for contracts.
The actual wording of a contract only becomes important when a dispute arises and litigation is at hand.
When comparing an average English or U.S. contract to a continental one, the first striking difference is their length. What a civil-law contract says on four pages, the common-law contract takes twenty. There seems to be great deal of explanation, qualification and limitation in the common-law contracts and even the legalese differs from contract to contract. By contrast, civil-law contracts seem to be much shorter with less legalese that is almost identical from contract to contract, and even many provisions are quite similar in various contracts (see for example Hill and King 2004, 894-895).
What makes the civil-law contracts to be so much shorter than the common-law ones? Hill and King (2004) compare U.S. contracts to German ones. As the Czech law and German law have common background and develop side by side, almost all their findings regarding German contracts and law characteristics may be easily related to the Czech contracts and law. Czech law is predominantly statutory and statutes are the main source of law. When concluding a contract, parties should always bear in mind the imperative provisions of the statutes which should be adhered to. Czech law has many more statutory rules for filling contractual gaps than the English or U.S. law. Czech law clearly states what a contract should contain to be valid (in case of the so called types of contracts provided for in Civil and Commercial Codes) and when the parties fulfil this obligation they are not forced to put into their contract terms containing anything else and in case the parties do not want to settle their affairs differently from the statutory provisions, their relationship is governed by the statutory provisions. There is also no need to define certain terms (such as number of days to be counted in a month) because there are statutory provisions explaining them. The Czech law also allows just a reference to another document – or even a customary rule (such as the â€œgeneral business termsâ€) – to include it into the contract.Â
The layout of Czech and English contracts does not generally differ – the only visible difference being the English custom of giving titles to individual sections. The basic sections of a contract are:
- title – descriptive phrase identifying the type of undertaking;
- an introduction identifying the parties to the transaction;
- recitals – historical and economic reasons for concluding the contract, sometimes closely defining the nature of the parties’ businesses. In English, this section is sometimes introduced by the word Whereas;
- definitions of terms used in the contract – an English feature slowly finding its way into other legal languages;
- operative provisions containing rights and obligations, usually introduced by a performative verb;
- various provisions (on applicable law, expressing the consideration, giving guaranties);
- testing clause – sentence introducing the signatures, sometimes containing the date and place;
- signature lines;
- schedules (annexes) – in case the contract refers to them;
Generally speaking this layout may serve for both the Czech and English contracts. Particular provisions are structured to sections and subsections (or in Czech articles and paragraphs – Ã„ÂlÃ¡nky and odstavce). When translating a contract it is generally understood that the TL text layout should follow the original layout.