Legal discourse is a highly specialized use of language requiring a special set of habits. Obviously, translating legal texts requires painstaking attention to detail and sensitivity to the consequences of subtle contextual changes. This kind of writing is such a departure from our everyday use of language that it is worthwhile to consider some of the specific characteristics of legal language which the translator should keep in mind. Understanding why legal language is the way it is can help the translator to develop a kind of textual model, a sense of how language functions in legal discourse.
As you consider the selections presented for comparison, you will note how sensitive legal terms are to changes in contex--the specific "setting" in which they are used. For this reason, dictionaries and lexicons are of limited usefulness in translating legal terms. A good translation requires both a through understanding of the subject under discussion and familiarity with similar models in the target language, i.e., the same kind of documents or instruments.
Here are a few general characteristics of legal language to keep in mind when faced with these types of documents:
1. Legal language is conscious of precedent; conservative; slow to change; formulaic.
Underlying legal discourse is the idea that the law is a unified system developing organically from generation to generation. We believe that there is continuity in the law, that it has continued to grow and develop in a consistent way throughout a very long tradition. Legal language reflects these conceptions; a keen consciousness of precedent affects every choice of word, every turn of phrase in legal discourse. For this reason, legal language tends to be quite conservative. It is slow to change and tends to retain phrases and formulas that have fallen into disuse in everyday language. Legal language relies heavily on standard formulas of expression because the meaning of these phrases has been sanctified through long use. Our need for legal language to be as reliable and as consistent as possible from generation to generation is of very high priority.
2. Legal language is definite, precise and technical.
"The lawmaker sends his message over wide reaches of space, and he hands it down through indefinite stretches of time. These facts require that the lawmaker, above all speakers, transmit his message in a form which cannot miscarry or be lost to view" (Burke Shartel, Our Legal System and How it Works, p.288).
The message must be transmitted in language that is extraordinarily definite and precise. Words must be used in strict accordance with definitions understood by all concerned. Members of the legal profession make careful distinctions between words that seem nearly interchangeable to the layman: the difference between residence and domicile, dictum and decision, privilege and right, may be of little consequence in everyday language, but in a legal context these distinctions are critical. Inevitably a large number of technical words must be used; popular language simply lacks the necessary consistency and precision. "The degree of definiteness (needed for legal discourse) can usually be obtained only by employing technical legal words whose meaning has been brought out and fixed by long experience and use," Burke Shartel explains (p.295). Technical words once we understand their meaning, are not only precise but economical.
3. Legal language tends to spell things out with painstaking attention to minute detail.
In everyday language, we ordinarily try to leave the obvious unsaid; we take it for granted that people know what we are thinking and understand what we mean. In legal discourse, nothing can be taken for granted: every significant detail must be stated explicitly. We often feel that legal language is unnecessarily wordy, even redundant, and we often feel tempted, while translating, to try to reduce the number of words. This can have dangerous consequences, because the apparent redundancy usually is serving and important function
4. Legal language is characterized in all its aspects by formality.
Formality in legal language is the expression of the formality of the legal process itself. Berman and Greiner define formality as follows:
"If . . . a legal solution is sought to ...problems, then time must be taken for deliberate action, for articulate definition of the issue, for a decision which is subject to public scrutiny and which is objective in the sense that It reflects an explicitly personal judgment. These qualities of legal activity may be summed up in the word formality; formality in this sense inheres in all kinds of legal activity, whether it be the making of laws (legislation), the issuing of regulations under the law (administration), the applying of laws to disputes (adjudications), or the making of private arrangements Intended to be legally binding (negotiation of a contract, drawing of a will, etc.)" (The Nature and' Function of the Law, p.26)
5. The complexity of certain legal concepts demands a corresponding complexity in sentence structure.
A great many qualifying phrases and dependent clauses may be required in order to express a concept with the necessary precision.
6. Many foreign expressions are found in the legal language, especially Latin.
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