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Some lexical features of English legal language





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Legal translation is understood as the translation of technical materials within the field of law. Correspondingly, legal language is a distinct language easy to some extent to those familiar with it, but to whom with which are unfamiliar is of certain difficulty. In other words, Legal language is characterised by a specific language and therefore a specific terminology. So, the would-be translator of this particular type of language must add to his or her knowledge some lexical features of English legal language and this will be the chief concern of this article.

-1- Terms of Latin and French origin:

 One of many noticeable features of English legal lexicon is the existence of Latinisms (Latin terms) in its terminology. Alcaraz & Brian (2002: 5)1 link the presence of such terms to certain reasons; we briefly consider them. In the first place, it was inevitable for English law to escape the influence of Latin which was supported by the power of the Roman church over Europe at that time, and also to its widespread use throughout this place of earth as a language of learning and literature. In addition to the incredible power of the Roman law which was a coherent written system, and had strength of an institution over a considerable area of Europe. Here are some Latin phrases and words in common use:

- Bona fide (good faith or in good faith)

-  Res judicata (an issue adjucated)

-  Bes nova ( a new thing; an undecided question of law)

-  Actus reus (guilty act)

-  Alibi (elsewhere; the fact or state of having been elsewhere when an offence was committed) (Garner, B. A, 2001)2 

Like Latinisms, the existence of legal French terms within English legal language is also apparent. After the Norman Conquest in 1066, the language of the invaders gained an undeniable position in the legal sphere of England, bringing with it a wealth of legal French terminology (Crystal & Davy 1986: 208) 3. As a case of illustration, the following terms are originally French:

- Contract, proposal, schedule, terms, conditions, policy, alias, quash and so on.

-2- Archaic diction of legal English:

Legal English lexicon is considerably made of archaic legal terms. However, this touch of Archaism is not in vain, it is done on purpose. There are reasons behind this tendency towards archaic words. Tiersma (1999)4 states that “legal language often strives toward great formality, it naturally gravitates towards archaic languagep. 95.

According to this quotation, archaisms give a flavor of formality to the language to which they belong. Some lawyers prefer to use antique terms instead of new ones. For example, they use ‘imbibe’ as an alternative of ‘drink’, ‘inquire’ rather than ‘ask’, ‘peruse’ instead of ‘read’, ‘forthwith’ as a substitution of ‘right away’ or ‘at once’ and so on. (Examples are used by Alcaraz & Brian, 2002)5. Another convenient example is the use of the verb ‘witnesseth’ with the preservation of an ‘eth’ ending for the third person singular of the present tense as an alternative of the current morpheme ‘es’ ‘witnesses’. 

There exist also some archaic adverbs, they are actually a mixture of deictic elements: ‘here’ ‘there’ and ‘where’ with certain prepositions: of, after, by, under etc (Alcaraz & Brian, 2002)6. By way of illustration, here are some examples along with their Arabic translations:

Source language

Target language

- The parties hereto agree as follow.

- Hereinafter referred to as wife.

- The total rent for the term hereof is the sum of________.

- تم اتفاق الطرفين بموجب هذا العقد على ما يلي.

- المشار إليه فيما بعد في هذا العقد باسم الزوجة.    - إجمالي السومة الكرائية عن هذه المدة تقدر بمبلغ______

Later, Tiersma (1999: 96)7 mentions another two reasons for legal language

Conservatism, which are safety and convenience. Accordingly, the more conservative legal terms are, the safer a legal document will be. In other words, this use of antiquated terminology is driven by the need to avoid troublesome changes as far as legal lexical meaning is concerned. The principle, according to crystal and Davy (1986) 8, is that what has been tested and found adequate is best not altered” p 213. Certain archaic words have actually acquired an authoritative interpretation over the years. So, altering them is an absolute risk. Also, this ongoing use of old-fashioned diction is, on the other hand, a matter of convenience. That is, what was workable before can be workable again.

Despite the so called usefulness of the archaic touch within legal language, its functionality is still debatable. It is quite apparent from the examples given previously that certain outdated terms and constructions are truly a handicap for better understanding, they make legal language inaccessible for public reader or more specifically to those who are mainly concerned with legal matters and noticeably such terms render comprehension difficult. So, their unique compensation is seeking advice from lawyers as translators.

-3- Archaic use of the modal “shall” in legal English:

The modal shall pose a level of difficulty in both interpretation of clauses containing it and in the translation of such clauses. Traditionally, the modal shall, in legal texts, carries an obligation or a duty as opposed its common function: expressing futurity (Tiersma: 105) 9. More importantly, Sabra (1995: 31) 10 claims that any legal verb preceded by ‘shall’ is normally translated into Arabic in the present form. For more clarification, we include the following examples along with their Arabic translations

Source language

Target language

- All such payments shall be made to Landlord at Landlord's address as set forth in the preamble to this Agreement on or before the due date and without demand.

- Tenant shall make no alterations to the buildings or improvements on the Premises or construct any building or make any other improvements on the Premises without the prior written consent of Landlord.

- Husband shall pay to Wife spousal support in the sum of ______.

- Tenant shall comply with any and all laws, ordinances, rules and orders of any and all governmental or quasi-governmental authorities affecting the cleanliness, use, occupancy and preservation of the Premises.

- تدفع كل هذه الأقساط إلى المكري في عنوانه الموضح في ديباجة هذا العقد بتاريخ الاستحقاق أو قبله دون الأمر بالأداء.

- يمنع على المكتري إجراء أي تغييرات بالمبنى أو تحسينات بالعقار أو إنشاء أي مبنى أو القيام بتحسينات على العقار دون موافقة خطية مسبقة من المكري.

 

 

- يدفع الزوج للزوجة نفقة تقدر بقيمة  

- يمتثل المكتري لكافة القوانين والتشريعات واللوائح والأوامر الصادرة عن السلطات الحكومية أو الشبه الحكومية فيما يتصل بنظافة واستخدام وشغل وصيانة العقار.

 

As already stated the modal shall is used basically to demonstrate that the legal subject of a given sentence has a duty not to do something. However, certain sentences in which the modal shall carries a meaning different than that pretended in legal writing can be found. Shall is sometimes used in a way that is truly confusing and causes a dilemma for the translator to assume definitively whether the modal shall is being used for an obligation, futurity or a false imperative. Consider the following examples:

Source language

Target language

- Wife shall have the right to retain her married name or shall also have the right to return to her maiden or former name: _____________.

- Husband shall have the following rights of title and ownership in the family residence: _____________.

- يحق للزوجة الإبقاء على اسم زاوجها، ويحق لها أيضا العودة إلى اسمها السابق قبل الزواج:_____  .

- يتوفر الزوج في  مسكن العائلة على حقوق الملكية و التملك من قبيل:_______________.

 

The use of shall, in the two sentences above, bears no consequences on behalf of the legal subject neither wife nor husband. Obviously, The use of shall in legal texts is widely frequent; and therefore may pose certain difficulty for the translator.

-4 - Lexical repetition or redundancy:

In legal writing, draftsmen avoid the use of anaphoric devices or referential pronouns. Such as: the personal pronouns (he, she, it etc) or the demonstrative ones (this, that, etc), in addition to the verb ‘to do’ that may substitute a whole clause as in the following example, He rents a car and so does his brother (Sabra: 1995) 11. Actually, legal language is highly concerned with the exactness of reference; hence its tendency toward lexical repetition, and therefore to functional redundancy. By way of illustration, consider these examples along with their Arabic translations used by Sabra himself:

- The Lessee shall pay to the Lessor at the office of the Lessor. - يد فع المستأجر إلى المؤجر في مكتب المؤجر...

Here, if we opt for the possessive pronoun ‘his’ instead of the word ‘Lessor’ in the phrase ‘at the office of the Lessor’ would certainly create confusion and ambiguity. For example:

- The Lessee shall pay to the Lessor at his office. - يد فع المستأجرالى المؤجر في مكتبه.

In this case, it would be confusing whether the intended office is the one of Lessee or that of the Lessor. Consequently, such substitutes may, in many cases, refer to a lexical item other than that intended by the writer. At least this feature of legal writing facilitates the task of the translator to know the exact meaning intended by the legal drafter. However, using anaphoric devises or referential pronouns would definitely increase ambiguity and confusion. Therefore, it will be difficult for the translator to decide precisely which word the pronoun is referring to.

When translating legal texts, it is commonly advocated to keep the same redundancy of the original text since it is a redundancy that is functional. So, the translator should ensure that the version proposed is without ambiguity as its original counterpart.

-5- Unusual use of the words ‘the same’, ‘such’ and ‘said’:

 Using such words in legal language is quite different from using them in ordinary one. The word ‘the same’ usually implies comparison to a similar object or person, but in legal use it refers to sameness of reference. (Tiersma: 88) 12 For example:  

 - The tenant shall pay all the taxes regularly levied and assessed against Premises and keep the same in repair. 

In this example, ‘the same’ refers to the word ‘Premises’. Correspondingly, Tiersma suggests that the pronoun ‘it’ can conveniently substitute the phrase ‘the same’ (p. 91) 13. Also, word like ‘such’ means normally ‘that sort’ or ‘this sort’. Now, observe its use in a legal context:

 - We conclude that the trial court’s order constituted an abuse of discretion in the procedural posture of this case which compels us to set aside such order.

Apparently, the phrase ‘such order’ signifies ‘this order’. So, here, Such acts in the same way as the demonstrative pronoun ‘this’.

Concerning the function of the word said in legal drafting, it is used as an article or a demonstrative pronoun (Sabra: 43)14. To illustrate this, we include the following example:

-         Lessee promises to pay a deposit. Said deposit shall accrue interest at a rate of five percent per annum. 

Here, the word ‘said’ could be substituted by the article ‘the’ or the demonstrative pronoun ‘this’ with no loss of meaning. By the way the examples mentioned in this section are originally used by (Tiersma, 1999),

-6- Frequent use of doublets

Actually, there is a common use of such collocations in which synonyms or near- synonyms are combined in pair “doublets” Alcaraz & Brian (2002: 9)15. Such words can be either nouns, verbs, adjectives or even prepositions. For example:

Source language

 Target language

Made and enter

By and between

Lying and situated

Terms and conditions

Covenants and obligations

Null and void

In good order and repair

Represents and warrants

Any and all

 

 

حرر

بين كل من

الكائن

شروط

التعهدات والالتزامات

  لاغيا وباطلا

في حالة جيدة

يتعهد ويقر

كل

 

An important remark is required here, legal drafters, nowadays, do not normally use such pairing of words as a distinction from simple style of expressions, but it is merely a tradition adopted when drafting legal documents (Sabra: 36)16.

-7- Legal English as a technical language:

We have seen so far that a considerable part of legal English vocabulary is a mixture of archaic terms and terms of Latin and French origin. Another noticeable feature of legal English is its technical terminology. According to Tiersma (1999)17if a word or a phrase is used exclusively by a particular trade or profession or if that profession uses it in a way that differs from its normal meaning and the term has a relatively well-defined sense, it should be considered a technical term” p. 108.

This reveals that a technical term is an unshared term used exclusively by a specific trade or profession. In other words, specialists in the legal sphere are actually equipped by a distinct language peculiar to ordinary people and highly characterized by a vocabulary of technical nature. Accordingly, Alcaraz & Brian (2002: 17) present a classification of technical vocabulary: purely technical terms and semi-technical terms.

-7-1- Purely technical terms: are those that are only applicable in the legal sphere but nowhere else. For example,

source language

Target language

Decree (n)

Mortgage (n)

Sub-letting

Deem (v)

Permises

Tenant

Lease (n)

Hereinafter

landlord

 

حكم/مرسوم

رهن

كراء من الباطن

يعتبرأويعد

العقار

المكتري

إيجار/كراء

فيما بعد

المالك/المكري

 

Actually, the understanding of such kind of terms is of great importance in grasping any given legal text in which they occur.

-7-2-Semi-technical terms: words and phrases of this group belong to everyday lexicon which has gained extra-meanings in the legal context. So, terms of this type are polysemic, tougher to recognize their precise meaning without resorting to the context in which they occur. The following examples are terms of this type:

General meaning:

Source language

Target language

Assignment

Maintenance

Consideration

Title

 مهمة، واجب

صيانة، محافظة على، إبقاء على

تفكير، بحث، اعتبار، الخ

اسم، عنوان، لقب

Legal meaning:

Source language

Target language

Assignment

Maintenance

Consideration

Title

  تفويت العقد للغير

نفقة

مقابل

حق تملك أو سند تملك

Actually, purely technical terms are monosemic; that is, having one legal meaning and so having no difficulty for the translator. The latter can simply consult a bilingual dictionary, of course, not a standard dictionary but a specialized legal one. However, semi-technical vocabulary is a more complex type of terms; they have one meaning or more than one in everyday language and another in the field of law. So, it is recommended for translators to get accustomed to consult specialized dictionaries whenever something in the context alerts them to a usage distinct from standard or everyday usage. Being unaware of this problem, one can take for granted that terms of this type have just a general meaning. 

The main conclusion of this article is that legal English lexicon differs to a great extent from ordinary one. No doubt that such vocabulary does not render legal language clearer, but unfortunately tougher, hard to understand without a considerable familiarity with the legal sphere. 

Bibliography: 

1 Alcaraz, E. & Hughes. B. (2002). Legal Translation Explained. Manchester: St. Jerome Publishing, p.5

2 Garner, B. A. (2001). Black’s Law Dictionary. St. Paul, Minn. West Group. Second pocket Edition.

3 Crystal, D. & Davy. D. (1986). Investigating English Style. New York: Longman.

4 Tiersma, P. (1999). Legal Language. London: The University of Chicago Press.

5 Alcaraz, E. & Hughes. B, op. cit., (2002), p. 8

6 Ibid, p. 9

7  Tiersma, op. cit., (1999), p. 96

8 Crystal, D. & Davy. D. op. cit., (1986), p. 213

9 Tiersma, op. cit., (1999), p. 105

10 Sabra, A. M. M. (1995). Translation of Contracts. The American university of Cairo, p. 31

11 Ibid, 29

12 Tiersma, op. cit., (1999), p.88

13 Ibid, 91

14 Sabra, op. cit., (1995), p. 43

15 Alcaraz, E. & Hughes. B, op. cit., (2002), p. 9

16 Sabra, op. cit., (1995), p.36

17 Tiersma, op. cit., (1999), p. 108

18 Alcaraz, E. & Hughes. B, op. cit., (2002), p. 17

 






Published - November 2008












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