1. Introduction
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 ‘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 ‘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 ‘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 zástava(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.
Normative
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.
Performative
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.
Technical
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?
The chief differences may be discussed in relation to the following aspects:
2.2 Speakers
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 - vyÅ¡Å¡í soudní úÅ™edníci)
- 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 zákon) 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).
2.3 Style
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 ‘style'. One of them was made by Vilém Mathesius. He defines style as “individual, unifying character found to be present in any work resulting from intentional activity” (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.
2.3.2 Lexis
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:
In his later writing, Knapp (1995, 122) describes legal lexis as follows:
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.
3.1 Style
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.
3.1.2 Syntax
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 ‘-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.
3.1.3 Lexis
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 “unmarked” 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.
