Characteristics of Legal Discourse Thread poster: BelkisDV
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BelkisDV 
United States
Local time: 19:37
Spanish to English
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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 th... See more 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.
Regards,
Belkis ▲ Collapse
| | | | | Legalese is a myth | Jun 26, 2004 |
"In 1936, Fred Rodell, a professor of law at Yale University, argued that there 'are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.'
The law is about our rights and responsibilities. If we cannot understand the law, we have no rights and we cannot take responsibility.
Plain English in the law is possible. It does not mean sacrificing accuracy for clarity - inaccurate writing is not plai... See more "In 1936, Fred Rodell, a professor of law at Yale University, argued that there 'are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.'
The law is about our rights and responsibilities. If we cannot understand the law, we have no rights and we cannot take responsibility.
Plain English in the law is possible. It does not mean sacrificing accuracy for clarity - inaccurate writing is not plain English. But the excuse that legal writing has to be complex to avoid misinterpretations does not stand up. Lawyers have always argued over the interpretation of legal documents, and the least we can do is to give them something clear to work with."
http://www.plainenglish.co.uk/law.html
I think legal language has often been used to confuse us - and to keep lawyers in business!
I do agree that legal language has to be precise, and uses its own jargon - terms that have a specific meaning. But apart from that there is no reason to make sentences that take up a whole paragraph or to use meaningless formulas.
"A contract in plain-English is just as binding
Most contracts are often written with complete disregard for the potential emotional impact of the wording. These are the things we've fixed in AgreementBuilder—everything is smooth, understandable, and appealing to the emotions of the people involved with your deal. We've surgically removed most the legal gibberish so that you and your customers, suppliers, reps, employees and others can easily understand the agreement. No more hereof, whereas, hereinafter, set forth, pursuant to, thereof, and our favorite, notwithstanding the foregoing (it means 'no matter what'). "
http://www.jian.com/a/239/agreement_builder.html
Of course, when you are just the poor translator, you may have to adapt your language to the language used in the original contract - but just up to a point. I must admit I sometimes get carried away, but then reminders of 'Plain English' (and other languages) campaigns remind me of how important it is to keep trying! ▲ Collapse
| | | | BelkisDV
United States
Local time: 19:37
Spanish to English
+ ...
TOPIC STARTER
Simply because the same can be said of any technical or specialized field. We can simplify everything; however, that does not mean that a legal document written to be read by attorneys themselves should sound like something translated for a 5 year old or someone who is not cognizant of legalese. Ultimately it is the prime reader who determines the level of difficulty of a translation.
Belkis
[Edited at 2004-06-29 16:02]
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