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Unit 2. Sources of difficulty in legal translation
¾ STARTING UP
1) Why is it difficult to understand legal documents?
2) What is the main source of difficulty in legal translation?
¾ Part 1. Linguistic sources of difficulty
A. Read the introduction to the text and check your answers to questions
in STARTING UP.
It is clear that people find legal documents difficult to comprehend as compared
with other professional expositions. There have been efforts in English speaking countries in the legal profession to simplify the language that law uses to
make law more accessible to the average person. Because of the nature and
function of law, the language of the law has developed particular linguistic features, lexical, syntactical and pragmatic, to fulfil the demands of the law and
accommodate the idiosyncrasies of law and its applications. Such linguistic
characteristics of legal language have profound implications for legal translation.
Lexicon
In terms of legal lexicon, a distinctive feature of legal language is the complex
and unique legal vocabulary. It is the most visible and striking linguistic feature
of legal language as a technical language.
It results from and reflects the law of the particular legal system concerned. In
translation, due to the differences in legal systems, many of the legal terms in
one language do not correspond to terms in another, the problem of nonequivalence, a major source of difficulty in translation.
Furthermore, within each legal lexicon, there are also peculiarities, and they do
not always correspond in different legal languages. For instance, studies have
identified specific linguistic characteristics of the English legal language. The
English legal lexicon is full of archaic words, formal and ritualistic usage, word
strings, common words with uncommon meanings and words of over-precision,
among others.
Syntax
A common feature of the syntax of legal language is the formal and impersonal
written style coupled with considerable complexity and length. Generally
speaking, sentences in legal texts are longer than in other text types, and they
51
may serve various purposes. In statutes, often long and complex sentences are
necessary due to the complexity of the subject matters and the prospective nature of legislative law. Extensive use of conditions, qualifications and exceptions are the additional linguistic features of legislative language. Apart from
long and complex sentence structures found in most legal languages, there are
also syntactical peculiarities. In legal English, complex structures, passive
voice, multiple negations, and prepositional phrases are extensively used.
Pragmatics
Law depends upon the performative nature of language. Legal utterances perform acts, creating facts, rights and institutions. Words in legal language differ
in meaning, import and effect depending on who utters them, where and when.
A prominent linguistic feature is the frequent use of performative markers. For
instance, in English legal documents, ‘may’ and ‘shall’ are extensively employed. Performative verbs such as ‘declare’, ‘announce’, ‘promise’, ‘undertake’, ‘enact’, ‘confer’ and ‘amend’ are also common. Another pragmatic consideration in legal texts is ambiguity, vagueness and other uncertainties found
in statutes and contracts, which are often points of legal contention.
Style
Legal style refers to the linguistic aspects of the written legal language and also
the way in which legal problems are approached, managed and solved.
Legal style results from legal traditions, thought and culture. Generally speaking, legal writing is characterised by an impersonal style, with the extensive use
of declarative sentences pronouncing rights and obligations.
B. Answer the questions:
1) What is source of difficulty in legal translation from the perspective of
lexicon?
2) What are typical syntactic peculiarities of legal texts?
3) What pragmatic difficulties do legal texts have?
4) What is legal style?
C. Are these sentences true or false?
1. Legal documents are easy to interpret and understand.
2. Language of law has developed particular lexical, syntactical, pragmatic and
stylistic features.
3. A distinctive feature of legal language is the complex and unique legal voca-
bulary.
4. The English legal lexicon does not have any archaic words.
5. Sentences in legal texts are longer than in other text types.
52
6. Passive voice is never used in legal language.
7. Performative markers in English legal documents are modal verbs ‘may’ and
‘shall’.
8. Legal writing is characterised by an impersonal style, with the extensive use
of declarative sentences.
D. Improve the machine translation of the text.
Syntax
A common feature of the syntax of legal language is the
formal and impersonal written
style coupled with considerable
complexity and length. Generally speaking, sentences in legal
texts are longer than in other
text types, and they may serve
various purposes. In statutes,
often long and complex sentences are necessary due to the
complexity of the subject matters and the prospective nature
of legislative law. Extensive
use of conditions, qualifications
and exceptions are the additional linguistic features of legislative language. Apart from
long and complex sentence
structures found in most legal
languages, there are also syntactical peculiarities. In legal
English, complex structures,
passive voice, multiple negations, and prepositional phrases
are extensively used.
Синтаксис
Общей чертой синтаксиса юридического языка является формальный и
безличный письменный стиль в сочетании со значительной сложностью и
длиной. Вообще говоря, предложения
в юридических текстах длиннее, чем в
других типах текста, и они могут служить различным целям. В уставах часто требуются длинные и сложные
предложения из-за слож
метных вопросов и перспективного
характера законодательного законодательства. Обширное использование
условий, квалификаций и исключений – дополнительные языковые особенности законодательного языка. Наряду с длинными и сложными структурами предложений, встречающимися на большинстве правовых языков,
существуют также синтаксические
особенности. На легальном английском языке широко используются
сложные стру
множественные отрицания и фразы с
предлогами.
ктуры, пассивный голос,
ности пред-
53
¾ GLOSSARY
A. Study the English words and phrases and their Russian equivalents:
professional expositions профессиональные сферы
to simplify упростить
make law more accessible сделать право более доступным
fulfil the demands of the law выполнять требования закона
accommodate the idiosyncrasies of law
profound implications серьёзные последствия
complex and unique legal
vocabulary
the problem of nonequivalence
peculiarities особенности
ritualistic usage ритуальное использование
word strings цепочки слов
words of over-precision слова чрезмерной точности
formal and impersonal written style
serve various purposes служить различным целям
prospective nature of legislative law
apart from помимо
legal utterances юридические высказывания
speech acts речевые акты
performative markers перформативные маркеры
ambiguity неоднозначность
points of legal contention пункты правового спора
declarative sentences повествовательные предложения
rights and obligations права и обязанности
B. Complete the sentences with the following phrases: legal vocabulary,
simplify, written style, serve various purposes, profound implications
1. typically involves longer and more complex sentences.
2. The purpose of enhancing your is to realize the legal
applicability of certain concepts.
3. A meeting within a company may , such exchange of in-
formation or making a decision.
учитывать особенности права
сложная и уникальная юридическая лексика
проблема неэквивалентности
официально-деловой стиль письменной
речи
предполагаемый характер законодательства
54
4. This election has _________________ for the future of U.S. democracy.
5. Japan agreed to ___________, standardize and relax qualifications for bid-
ding.
C. Word partners. Match the words on the left with the words on the right
to make collocations.
declarative strings
speech contention
word implications
legal sentences
legal utterances
profound acts
¾ TRANSLATION PRACTICE
A Translate the text from English into Russian.
The technical nature of legal language
Legal language is a technical language and legal translation is technical translation involving special language texts.
There are two main positions regarding the nature of legal language. One view
holds that legal language is a technical language while the opposite view is that
there is no legal language, and, even if it exists, it is part of the ordinary language.
The legal system is critical to understanding. The words make sense only within the context of the legal system itself. Understanding an item of the legal lexicon requires knowing the legal system. This is an important reminder for the
legal translator.
Language and language use, including legal language, consist of more than just
the lexicon. Therefore, we can benefit the study of legal language and its nature
by looking at legal language as a register.
Register is a language variety according to use. Register is ‘what you are speaking at the time, depending on what you are doing and the nature of the activity
in which the language is functioning’ and it ‘reflects the social order, the types
of social activity’ (Halliday and Hasan 1985: 41). Register is a functional language variation, a contextual category correlating groups of linguistic features
with recurrent situational features (see Halliday et al. 1964). It is a variety of
language use. Register comprises an open-ended set of varieties of language
55
typical of occupational fields such as the language of religion, legal language
and medical language. Furthermore, registers are differentiated from one another in their meaning, and therefore they differ in the vocabularies that express
that meaning and in grammatical structure. Thus, register markers are firstly
lexical, e.g. technical terms, and secondarily, structural, e.g. particular use of
grammatical features (Halliday and Hasan 1985: 41).
To sum up, we may say that legal language as a register is a variety of language
use of the technical nature. It shares the common core of general language but
is not identical to ordinary language. There are lexical, syntactical, textual and
pragmatic features that are singular to legal language as a technical language.
B. Answer the questions:
1) Why is legal translation complex and difficult?
2) What is the normative nature of legal language?
3) What is the performative nature of legal language?
4) What is the technical nature of legal language?
5) What is a register? How are registers differentiated?
¾ PA RT 2
A. Skim the text and complete the table.
Common Law countries Civil Law countries Mixed jurisdictions
B. Read the text and answer the questions:
1) What are the main sources of legal translation difficulty?
2) What are the major classifications of legal systems of the world?
3) Can the elements of the source legal system be transposed into the target
legal system?
Differences in Law as Sources of Difficulty in Legal Translation
The nature of law and legal language contributes to the complexity and difficulty in legal translation. Specifically, the sources of legal translation difficulty
include the systemic differences in law, linguistic differences and cultural differences.
56
Different legal systems and laws
Legal language is a technical language. Furthermore and importantly, legal language is not a universal technical language but one that is tied to a national
legal system, very different from the language used in pure science, say mathematics or physics. Law and legal language are system-bound
reflect the history, evolution and culture of a specific legal system.
Law as an abstract concept is universal as it is reflected in written laws and
customary norms of conduct in different countries. However, legal systems are
peculiar
different cultural, social and linguistic structures. Legal concepts, legal norms
and application of laws differ in each individual society reflecting the differences in that society. Legal translation involves translation from one legal system into another.
Law is culturally and jurisdictionally specific
world are classified into various categories.
The two most influential legal families in the world are the Common Law and
the Civil Law (Romano-Germanic) families. About 80% of the countries in the
world belong to these two systems. Here are some examples of the two groupings. For the Common Law jurisdictions, there are England and Wales, the
United States of America, Australia, New Zealand, Canada, some of the former
colonies of England in Africa and Asia such as Nigeria, Kenya, Singapore, Malaysia and Hong Kong. Civil Law countries include France, Germany, Italy,
Switzerland, Austria, Latin American countries, Turkey, some Arab states,
North African countries, Japan and South Korea.
There are also the mixed systems of law that derive from
family. They are hybrids and examples of such mixed jurisdictions
influence from the Common Law and the Civil Law include Israel, South Africa, the Province of Quebec in Canada, Louisiana in the US, Scotland, the Philippines and Greece. The law of the EU is also such a mixed jurisdiction. China
may be considered another hybrid with influence from traditional Chinese law,
the Civil Law and Socialist Law.
Due to the differences in historical and cultural development, the elements of
the source legal system cannot be simply transposed into the target legal system. Thus, the main challenge to the legal translator is the incongruency
gal systems in the SL and TL.
to the societies in which they have been formulated. Each society has
. The major legal systems of the
1) There are the Romano-Germanic Law (Continental Civil Law), the
Common Law, Socialist Law, Hindu Law, Islamic Law, African Law
and Far East Law.
2) There are eight major groups: Romanistic, Germanic, Nordic, Com-
mon Law, Socialist, Far Eastern law, Islamic and Hindu laws.
, that is, they
more than one legal
with the
of le-
57
¾ PA RT 3
A. Discuss the questions:
1) What are the major differences between legal systems?
2) What is the Common Law predominantly based on?
3) Where did Civil Law originate?
4) Are the function and style of legal doctrine different in the Common Law
and Civil Law?
B. Read the text and check your answers to questions.
What are the distinguishing features of the major legal systems and what are the
major differences between them?
One set of criteria for the classification of legal systems or families includes:
(1) the historical development of a legal system;
(2) the distinctive mode of legal thinking
(3) the distinctive legal institutions;
(4) the sources of law and their treatment
(5) the ideology.
(1) Historical development
The Common Law is the legal tradition that evolved in England from the 11th
century onwards. Its legal principles appear for the most part in reported judgments in relation to specific fact situations arising in disputes that courts have
to adjudicate
case law or judicial precedent
case-based system of law that functions through analogical reasoning and a
hierarchical doctrine of precedent.
In contrast, the Civil Law originated in ancient Roman law as codified in the
Corpus Juris Civilis of Justinian (AD 528 – 534). It was later developed through
the Middle Ages by medieval
Western world. Originally, Civil Law was one common legal system in much of
Europe, but with the development of nationalism in the 17th century Nordic
countries and around the time of the French Revolution, it became fractured
into separate national systems. This change was brought about by the development of separate national codes. The French Napoleonic Code and the German
and Swiss Codes were the most influential ones. The Civil Law was developed
in Continental Europe and subsequently around the world, e.g. Latin America
. Thus, the Common Law is predominantly founded on a system of
. The key features of the Common Law include a
legal scholars. It is the oldest legal tradition in the
;
;
58
and Asia. Because of the rising power of Germany in the late 19th century,
many Asian nations translated and introduced the Civil Law. For instance, the
German Civil Code was the basis for the law of Japan and South Korea. In
China, the German Civil Code was introduced in the late 1800s and early 1900s
and formed the basis of the law of the Republic of China, which remains in
force in Taiwan today.
(2) Mode of legal thinking
The Civil Law family is marked by a tendency to use abstract legal norms
have well-articulated system containing well-defined areas of law
up and to think in juristic constructions
. The function and style of legal doctrine
, and to think
are different in the Common Law and Civil Law. The Common Law jurists
focus on fact patterns. They analyse cases presenting similar but not identical
facts, distinguishing cases and extracting specific rules, and then, through deduction, determine the narrow scope of each rule
, and sometimes propose new
rules to cover facts that have not yet presented themselves. In contrast, the Civil
Law jurists focus on legal principles. They trace their history, identify their
function, determine their domain of application
, and explain their effects in
terms of rights and obligations.
(3) Legal institutions
Typical legal institutions of the Common Law include trust, tort law, estoppel
and agency, and these are unique to the Common Law. The Common Law also
has categories of law such as contract and tort as separate branches of law and
two main bodies of law: common law and equity. In contrast to the Common
Law, the Civil Law has such unique legal institutions as abuse of right, the direct action, the oblique action, the extent of strict liability in tort and
These are foreign to the Common Law. In the Germanic family, there are also
the calusulae generales
, the theory of the abstract real contract, the concept of
the legal act and liability, the doctrine of the collapse of the foundations of a
transaction, the unjustified enrichment, and the land register.
C. True or false?
1. Classification of legal systems is based their historical development.
2. The key feature of the Civil Law is a case-based system of law that functions
through analogical reasoning.
3. Asian nations translated and introduced the Civil Law back in the 18
th
century.
4. Legal institutions of the Common Law are similar to the legal institutions of
the Civil Law.
, to
others.
59
¾ GLOSSARY
A. Study the English words and phrases and their Russian equivalents:
legal thinking правовое мышления
sources of law and their treatment источники права и их толкование
reported judgments судебный решения
adjudicate выносить приговор
case law or judicial precedent прецедентное право или судебный
прецедент
a hierarchical doctrine of precedent иерархическая доктрина прецедента
medieval средневековый
abstract legal norms абстрактные правовые нормы
well-defined areas of law чётко определённые области права
juristic constructions юридические толкования
narrow scope of each rule узкая сфера применения каждого
правила
domain of application область применения
calusulae generales общие положения
concept of the legal act and liability понятие правового акта и ответст-
венности
the collapse of the foundations of a
transaction
unjustified enrichment необоснованное обогащение
land register земельный кадастр
embodied in codes and statutes воплощённые в кодексах и уставах
B. Match the legal terms to their definitions.
1 judicial
precedent
A any act that binds a person in some way or one which
creates a legally recognized obligation
2 juristic B an official organization that records information on who
owns particular land
3 unjustified
enrichment
4 land
register
C the process whereby judges follow previously decided
cases where the facts are of sufficient similarity
D a mandatory rule of social behavior established by the
state.
5 legal act E when one person is enriched at the expense of another in
circumstances that the law sees as unjust
6 legal norm F relating to a jurist or jurisprudence
крах оснований сделки
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