Special Issue on Legal Terminology: Approaches and Applications

Research

in

Language

vol. 9.1 2011

Special Issue on Legal Terminology:

Approaches and Applications

edited by STANISŁAW GOŹDŹ-ROSZKOWSKI and IWONA WITCZAK-PLISIECKA

Łódź Univers i ty Press Łódź 2011

RE VI E WE R S

Łukasz Grabowski (University of Opole), Krzysztof Kredens (Aston University)

COVER DESIGN

Barbara Grzejszczak

Printed directly from camera-ready materials provided to the Łódź University Press

© Copyright by Łódź University Press, Łódź 2011

• Research in Language, 2011, vol. 9.1 •

Contents

Stanisław Goźdź-Roszkowski and Iwona Witczak-Plisiecka – Legal Terminology:

Approaches and Applications (Editorial to RiL Special Issue) .......................................... 5

Anna Jopek-Bosiacka – Defining Law Terms: A Cross-Cultural Perspective ........................ 9 Marta Chromá – Synonymy and Polysemy in Legal Terminology and Their Applications

to Bilingual and Bijural Translation ................................................................................. 31 Colin Robertson – Multilingual Legislation in the European Union. EU and National

Legislative-Language Styles and Terminology ................................................................. 51

Iliana Genew-Puhalewa – European Union Terminology Unification – Directions for the Contrastive Study of Two Slavic and Two Non-Slavic languages (Bulgarian, Polish, Modern Greek and English) ............................................................................................ 69

Martina Bajcic – Conceptualization of Legal Terms in Different Fields of Law: The Need

for a Transparent Terminological Approach ..................................................................... 81 Mª Isabel del Pozo Triviño – Analysis Framework for Translation of Maritime Legal

Documents ..................................................................................................................... 95 Ewa Kościałkowska-Okońska – EU Terminology in Interpreter Training: Selected

Problem Areas Connected with EU-Related Texts ........................................................... 111 Snježana Husinec – The Importance of Content Knowledge for Successful Legal

Language Acquisition ..................................................................................................... 125

Elena Chiocchetti and Natascia Ralli – Legal Terminology and Lesser Used Languages: The Case of Mòcheno ..................................................................................................... 135

Olga Denti and Michela Giordano – Actors and Actions in Prenups and Capitulaciones

Matrimoniales: A Cross-Cultural Study ........................................................................... 147 Dennis Kurzon – Speed Traps and the Right of Silence ......................................................... 165

Weronika Szemińska – Translating Law into a Dictionary. A Terminographic Model ........... 177 Leszek Berezowski – Curious Legal Conditionals ................................................................ 187

• Research in Language, 2011, vol. 9.1 • DOI 10.2478/v10015-011-0015-z

LEGAL TERMINOLOGY: APPROACHES AND

APPLICATIONS EDITORIAL TO SPECIAL ISSUE ON LEGAL TERMINOLOGY

STANISŁAW GOŹDŹ-ROSZKOWSKI [email protected]

University of Lodz, Poland

IWONA WITCZAK-PLISIECKA [email protected]

University of Lodz, Poland

Although terminology understood as a discipline concerned with the study of specialised

vocabulary, i.e. terms, is by no means new, it is only relatively recently that it has begun

to emerge as a fully-fledged scientific endeavour complete with its principles, bases and

methodologies. As an inter- and trans-disciplinary field of knowledge, terminology is

characterised by a plurality of approaches to its theoretical foundations and practical

applications. Despite the diversity of terminological theories and approaches, there seem

to exist certain theoretical and methodological aspects shared by most, if not all of them,

such as recognition of the concept, the nature of the term and its functions in texts; non-

verbal representational forms, knowledge ordering and modelling, terminology and

cognition, lexical pragmatics, and corpus-based terminology (see Laurén and Picht 2006

for a recent comparative presentation of various approaches based on a regional

criterion). At the same time, we are witnessing a gradual but steady shift from the principles of the Vienna school towards socio-cognitive and corpus-based descriptions of

terminology (see Temmerman 2000, Pearson 1998).

Just as in any LSP subject fields (science, medicine, economics, etc.) terms are

crucial to the transfer of knowledge and overall communication in legal settings. Yet, the

complexity of legal terminology, particularly in the context of Europe’s extreme degree

of linguistic and legal pluralism (Kjær 2007) calls for an independent research field to

deal with both translational and terminological problems. Answering this need, the 1st

International Workshop on Legal Terminology organized by the Department of English

Language and Applied Linguistics at the University of Łódź in 2010 aimed to provide an

opportunity for scholars and practitioners (e.g. legal translators, EAP teachers) to share

their ideas and experience of adopting different methodological and theoretical perspectives on studying legal terminology. It also provided a forum for discussion

focused on the problems of lexical meaning in the legal context, both in a lawyer’s

perspective which naturally focuses on drafting and interpretation and layperson’s

6 Stanisław Goźdź-Roszkowski & Iwona Witczak-Plisiecka

understanding of legal texts. Selected contributions included in this volume resulted

from the meeting.

The articles gathered in the present volume are focused on lexical meaning in legal

contexts. They are linked by a controlling idea that words are often defined, understood

and technically interpreted in specific ways when they are constrained by their legal

environment. As mentioned above, this recognition of legal terminology as a cinsisten

field of research invites both theoretical investigations and studies of practical

applications. The volume opens with two contributions in which the authors deal with

perennial issues central to terminology at large and to legal terminology in particular.

Anna Jopek-Bosiacka in “Defining law terms: A cross-cultural perspective” sets out to

explore the main principles and conventions of formulating definitions from a cross-cultural perspective focusing in particular on such factors as: the type of legal genre,

position in the instrument, type of legal definition, legal system, and branch of law. Her

paper carefully examines the extent to which these factors affect the interpretation and

translation of legal terms. In “Synonymy and polysemy in legal terminology and their

applications to bilingual and bijural translation” Marta Chroma, a lexicography expert,

deftly delves into the realms of legal semantics to discuss at length the phenomena of

synonymy and polysemy in legal terminology. She emphasizes the specificity of bijural

translation and its place in the wider category of intersemiotic translation. The context of

source law and target language is viewed as a decisive factor in determining the meaning

of a legal term. Consequently, translator’s bijural literacy is essential for a competent use

of legal synonyms and correct identification of polysemous terms. Building a common European legal framework has resulted in considerable attention

paid to translation discrepancies caused by culturally-specific terminology (see, for

example Gotti 2007). The issue of EU-related terminology features in four articles

presented in the present volume. Colin Roberston in “Multilingual legislation in the

European Union. EU and national legislative-language styles and terminology” explores

the nature of legal terminology of the European Union and its relationship to national

legal terminology. In his discussion he takes a comparative look at several languages and

legal cultures. This theme is continued by Iliana Genew-Puhalewa, who in her paper

“European Union terminology unification – directions for the contrastive study of two

Slavic and two non-Slavic languages: Bulgarian, Polish, Modern Greek and English”

puts forward the hypothesis that terminology used in EU legislative texts is becoming increasingly uniform in different languages and legal cultures. EU terminology is also

considered in the context of interpreter training. The relationship between the EU legal

concepts and the terms used in national legal discourse is also the focus of Martina

Bajcic’s contribution “Conceptualization of legal terms in different fields of law: the

need for a transparent terminological approach”. Bajcic focuses on the process of

integrating concepts of EU law into national legal discourse by using national

terminology belonging to a different field of law. Aware of the considerable risk

involved in using terms of national legal discourse to express notions of EU law, the

author starts by examining the vexed question of identifying terms from a particular

legal domain. Closely related to this is the age-old problem faced by terminologists when

classifying terms found in different albeit overlapping domains. Bajcic examines

practical difficulties involved in classifying terms from the Croatian law by considering three terms: subsidiarity, proportionality and primacy. Bajcic calls for a transparent

Legal Terminology: Approaches and Applications (Editorial) 7

terminological approach in order to transfer concepts from one subject field into another.

The next text entitled “Analysis framework for translation of maritime legal documents”

by Mª Isabel del Pozo Triviño presents maritime legal texts as a consistent legal genre

with regard to English-Spanish translation.

Pedagogic issues in legal terminology and translation are raised in three different

articles. First, drawing on her teaching experience in interpreter training, Ewa

Kościałkowska-Okońska in her paper “EU terminology in interpreter training: selected

problem areas connected with EU-related texts” discusses problems unique to both the

enormous demands of interpreting and the specificity of language used in the EU

documents. The difficulty in translating this type of legal texts is compounded by the

fact that the language used in documents is specialist and, at the same time, specific, due to the terminology used. The author argues that problems that translators and interpreters

may encounter focus, to a large extent, on (un)translatability of certain terms, ambiguity

of EU-speak or textual coherence, or the absence of it, which results from unclear, vague

or ambiguous style of the original.

Teaching highly specific legal terminology is one of the most difficult tasks in the

instruction of legal language according to Snježana Husinec, who in her paper “The

importance of content knowledge for successful legal language acquisition” examines

implications arising from the interconnection between language and law and the extent

to which they affect the process of legal language instruction and acquisition. In doing

so, the author analyses the results of a survey conducted among law students attending

legal language courses at the Faculty of Law in Zagreb and combines it with theoretical research and her teaching experience.

The next paper “Legal terminology and lesser used languages: the case of Mòcheno”,

written jointly by Elena Chiocchetti and Natascia Ralli, aims at outlining the specific

problems connected with the elaboration of legal and administrative terminology in a

minority, lesser used language for the purpose of designing short ad hoc education

courses addressed to a language minority. It signals unique problems encountered by

terminologists when they do not deal with two fully-fledged legal systems but with one

legal system that needs to be expressed in two languages, one of which lacks the

specialised terminology that must still be developed.

The next paper by Olga Denti and Michela Giordano is a fine example of a

bilingual and bijural analysis of American and Spanish prenuptial agreements Actors and actions in prenups and capitulaciones matrimoniales: a cross-cultural study. Written

from a genre perspective, the study focuses on a clearly delineated set of terms

connected with the participants of this specific contractual relation. The consistency of a

comparative framework is ensured by aligning the agreements’ respective semantic-

pragmatic units in which these terms are found.

An even broader semantic-pragmatic perspective can be found in “Speed traps and

the right of silence” by Dennis Kurzon. In this paper the author presents considerations

of the right of silence with regard to written texts and in particular two English cases

which reached the European Court of Human Rights. In the discussion, the author

investigates the two cases in terms of icons and indices, claiming that a legal text may be

first be presented as indexical of a basic human right to further develop into an icon of

that right, a “regulatory regime”.

8 Stanisław Goźdź-Roszkowski & Iwona Witczak-Plisiecka

The next text, “Translating law into a dictionary: a terminographic model” by Weronika

Szemińska, offers suggestions concerning actual terminographic practice. Drawing upon

the combined specialist knowledge of three disciplines, i.e. terminography, translation

studies and law, the author introduces the concept of the translation dictionary as a

separate type of terminological dictionary in order to prepare the ground for proposing

her model of a dictionary which could serve as a tool for professional translators of legal

texts.

Much has been said about the use of shall in legal language. But if an outside

observer might wonder what is left to investigate, then the paper written by Leszek

Berezowski on “Curious legal conditionals” could be a real eye-opener. It examines the

use of the modal verb shall in the if-clauses of conditionals found in legal English and somewhat contentiously argues that shall is not inherently deontic in legal English but it

tends to be used as an explicit marker of the authority vested in the author or authors of

spoken and written texts.

References

Kjær, A. (2007) “Legal translation in the European Union: a research field in need of a

new approach. In: Kredens, K. & Goźdź-Roszkowski S. Language and the Law:

International Outlooks

Laurén, Ch. and H. Picht (2006) “Approaches to Terminological Theories: A Comparative Study of the State-of-the-Art”. In: Heribert Picht (ed.)Modern

Approaches to Terminological Theories and Applications, Bern: Peter Lang

Pearson, Jennifer (1998) Terms in Context, John Benjamins Publishing Company.

Temmerman, Rita (2000) Towards New Ways of Terminology Description: the

Sociocognitive Approach. Amsterdam: John Benjamins

• Research in Language, 2011, vol. 9.1 • DOI 10.2478/v10015-011-0008-y

DEFINING LAW TERMS: A CROSS-CULTURAL PERSPECTIVE

ANNA JOPEK-BOSIACKA [email protected] Institute of Applied Linguistics, University of Warsaw, Poland

Abstract Legal definitions are vital for effective legal communication. This paper outlines main conventions of formulating definitions in statutes and contracts. Legal definitions are analyzed here from cross-cultural perspective against (legislative) drafting guidelines and theory of law. Their formulation may depend, inter alia, on legal system, branch of law, legal genre, position within the document, and type of legal definition.

An attempt is then made to examine how formal aspects of formulating legal definitions may affect the interpretation and thus translation of law terms. This interdisciplinary cross-cultural examination provides a theoretical basis for sketching main approaches to English-Polish (Polish-English) translation of the definition section in ratified international instruments published in Polish Journal of Laws.

The translation practice trends towards legal definitions seem to be more and more informed by the globalization and 'Europeanisation' processes now constituting a still broader context of legal communication rather than confined to the text of a legal instrument itself. Key words: legal definition, law term, cross-cultural communication, legal translation

1. Introduction Legal definitions are vital to the operation of legal instruments. The majority of legal definitions, aimed at unambiguous and consistent interpretation of legal texts, are set forth in such legal genres as statutes and contracts.

The focus of this paper is to explore the main principles and conventions of formulating definitions from cross-cultural perspective. In particular, their formulation may be determined by such factors as:

- type of legal genre (statutes vs. contracts); - position in the instrument (preliminary provisions vs. principal provisions); - type of legal definition (e.g. intensional definitions vs. extensional definitions); - legal system (civil law vs. common law jurisdictions); - branch of law (e.g. civil law vs. criminal law).

Following systematized introduction into formal aspects of formulating legal definitions, the interpretation and translation facets will be explored. This paper will particularly involve an attempt to examine the extent to which the discussed aspects inform the interpretation and thus translation of law terms.

10 Anna Jopek-Bosiacka

2. Law terms

Every term in specialized language (LSP - language for special purposes) signals a concept and “condenses the semantic value contributed by the defining process which generated it” (Gotti 2003: 33).

Legal definitions refer to words signifying the concepts in law as the language of law – belonging to the group of specialized languages – consists of technical or legal terms, as well as non-technical terms from ordinary language (see Gémar 1995-II: 96; also Cornu 1990: 61-65). Numerous terms used in legal discourse derive their general meaning from ordinary language (e.g. thing, property, theft, rent) but are assigned a special legal meaning by each legal system (so-called ‘common words with uncommon meaning’ – Danet 1980). In fact, words from ordinary language without change in meaning cannot be treated as law terms, even if their meaning is reconstructed in a legal definition (Malinowski 2006: 154). The development of legal terminology in common law system has been influenced to a great extent by jurisprudence. In the common law, terms, phrases, even whole chunks of discourse, mean what courts have decided they mean.

For example, most people would recognize the dictionary definition of the term „heir”, as

a person who will legally receive money, property or a title from another person, esp. an older member of the same family, when that other person dies (Cambridge International Dictionary of English, 1997, Cambridge: Cambridge University Press, p. 660).

However, the strict legal definition of „heir” differs in important ways from the common dictionary definition. According to Black’s Law Dictionary, an “heir” is a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property, esp. real property (1999: 727; meaning 1).

Laymen–and sometimes first-year law students taking exams–wrongly assume that one who receives real property by will is an heir. Technically, the word “heir” is reserved for one who receives real property by action of the laws of intestacy […] (T. F. Bergin & P. G. Haskell, Preface to Estates in Land and Future Interests, 14 no. 32, 2d ed. 1984, quoted in Black’s Law Dictionary, 1999: 727).

Similarly, under the Polish law: the Act on Inland Fishery (ustawa o rybactwie śródlądowym) of 18 April 1985 (uniform text, Dz.U. No. 66/1985, item 750, as amended) governs the principles and conditions of fish breeding, farming and fishery in surface inland waters pursuant to art. 1.1. However, art. 2.1. thereof provides that the Act’s provisions shall apply respectively to the conditions of breeding, farming, and fishing of crayfish and lampreys. Thus, under the Polish Act on Inland Fishery a crayfish is fish.

Other examples of terms with a strict legal definition built on precedent are “assault” and “battery”. In the middle ages, these terms were given technical meanings which they have retained ever since. It became settled that, contrary to ordinary usage, an assault does not require physical contact, an intention in one person which produces a fear in

Defining Law Terms: A Cross-Cultural Perspective 11

another is sufficient. Also, a “battery” does not require an actual beating, the use of any degree of force against the body would suffice, for example, spitting on a person, or kissing without consent (A. H. Loewy, 1987, Criminal Law in a Nutshell, 2d ed., quoted in Black’s Law Dictionary, 1999: 109; see also Charrow et al. 1982: 185). V. R. Charrow, J. A. Crandall, R. P. Charrow mention more examples of terms whose meanings have been established through the legal process, with little regard to the everyday meaning of the term, such as “purchase”, “domicile” or “adultery” (Charrow et al. 1982: 185).

Table 1. Ordinary vs. legal meaning

ordinary meaning legal meaning

assault

A sudden violent attack on (someone), esp. a sexual one (Cambridge International Dictionary of English, 1997 – CIDE)

1. (criminal & tort law) the threat or use of force on another that causes that person to have a reasonable apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery (Black’s Law Dictionary 1999 - BLD)

battery

to batter – to hit and behave violently towards (a person, esp. a woman or child) repeatedly over a long period of time (CIDE)

1. (criminal law) the application of force to another, resulting in harmful or offensive contact 2. (torts) an intentional and offensive touching of another without lawful justification (BLD)

purchase

1. thing(s) you have bought 2. an/the act of buying (CIDE)

1. the act or an instance of buying 2. the acquisition of real property by one’s own or another’s act(as by will or gift) rather that by descent or inheritance (BLD)

domicile

the place where a person lives (CIDE)

1. the place at which a person is physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere 2. the residence of a person or corporation for legal purposes (BLD)


ordinary meaning legal meaning

adultery

sex between a married man or woman and someone who is not their wife or husband (CIDE)

voluntary sexual intercourse between a married person and a person other than the offender’s spouse (BLD) cf. different definitions in different American states (also fornication)

Elaborating on the last example in Table 1, the comparison of legal definitions of the term “adultery” in various legal systems and jurisdictions and cultures shows interesting differences. In the Anglo-Saxon common law system, ‘adultery’ is regulated by the written statutory law. In England “adultery” referred to sex by a married person with someone other than the spouse belongs to the branch of criminal law, but is recognized as an offence only in the ecclesiastical court (Black’s Law Dictionary 1999: 52). In the United States, the differences in interpretation depend on the state. In some states, sexual intercourse between two married persons, who are not married to each other, constitutes adultery on the part of both. Sexual intercourse between a married person and an unmarried person likewise constitutes adultery on the part of both. In other states, adultery can be committed only by a married person. Thus, sexual intercourse between two married persons who are not married to each other constitutes adultery on the part of both. But if only one party to the sexual intercourse is married, the intercourse constitutes adultery on the part of the married person and “fornication” on the part of the unmarried person. “Fornication” i.e. a voluntary sex intercourse between two unmarried persons is not a common-law crime but was made punishable by statute in a few states as a misdemeanour. However, in some states such as Virginia it is recognized as a crime (Black’s Law Dictionary 1999: 664). There are also some gender differences. In some states, adultery is committed only where the woman is the married party. Thus, sexual intercourse between a married woman and a married man other than her spouse or sexual intercourse between a married woman and an unmarried man constitutes adultery on the part of both, but if the woman is unmarried, neither party is guilty of adultery even if the man is married (Black’s Law Dictionary 1999: 52).

In the Polish law as an instance of the continental civil system, adultery is not subject to legal regulations. According to legal doctrine (Ignatowicz 1987: 138), it only constitutes a ground for divorce in the circumstances of absolute and irretrievable breakdown of marriage pursuant to art. 56 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy) of 1964 as amended and referred to as the conjugal infidelity (zdrada małżeńska) but not in the statutory text itself. 2.1. Nature and formation The process of formation of legal terms, especially those not belonging to common speech, may take place in a number of ways.

Most legal terms are short-cuts – adaptations of English to serve the functional needs of practising lawyers, i.e. to label new doctrines, problems and institutions (Friedman


1964: 565). Some are adaptations of common words to specialized meanings, conceptually related to the core meaning of the word in common speech, such as “offer” and “acceptance” in contract law. Some are coined by lawyers and draftsmen specifically to cover a new concept, especially in developing branches of law as in case of the tax or banking law. An example would be “prudential supervision” in the EU law, the Polish equivalent is equally awkward – “nadzór ostrożnościowy”. Others are handy and catchy metaphors, such as “piercing the corporate veil” (i.e. “the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts” – Black’s Law Dictionary 1999: 1168). Many of these terms are used by lawyers for the sake of brevity and efficiency, even though the layman understands and is familiar with the underlying concept. Lawyers use such term as a kind of shorthand, e.g. the “blue law”, which used to be a statute regulating or prohibiting commercial activity on Sundays (Black’s Law Dictionary 1999: 165).

Other terms are “technical” in a stricter sense; they pertain to definite concepts and institutions which do not exist outside the law. Examples of these are endless: easement, negligence, legal capacity, joint stock company, etc. (cf. Lampe 1970: 28). Their use is as natural and unavoidable to the profession as the use of “calcium fluoride” or “semi-conductor” in other fields.

There exist two views as to the nature of legal terms: polysemic, i.e. context-dependent represented mostly by linguists (Cornu 1990; Gémar 1995; Joseph 1995; Roszkowski 1999), and deterministic view held by lawyers (Kelsen 1967; Hart 1961; MacCormick 1974; Sarkowicz 1995). According to linguists, terms of the exact sciences are monosemous, i.e. each term refers to only one object, whereas legal terms are characterized by polysemy (see Cornu 1990: 89-117; Gémar 1995-II: 130). The phenomenon of polysemy requires, on the one hand, the necessity to determine the intended meaning from the context. On the other hand, the fact that most legal terms derive their meaning from a particular legal system makes legal terminology inherently congruent (cf. Šarčević 1997: 231).

The multitude of legal systems existing in the world leads to the frequent situation that a concept in one legal language does not have a corresponding equivalent in another or a concept exists in both legal concepts but it denotes different legal realities. In short, the inadequacy of equivalents or their lack along with polysemy can be considered the major obstacle on the way to achieving the precision of legal language particularly in the context of translating texts or using the banks of legal terms expressed in various world languages. Due to normative function of legal discourse, legal concepts automatically imply certain legal effects within a given system (see Lampe 1970: 25).

There have been many attempts made by linguists and philosophers to define the concept of meaning in such a way that the meaning would be objective, supra-contextual, independent of any circumstances (see e.g. R. W. Burch’s differentiation between ‘meaning in isolation’ and ‘meaning in use’ – 1973; Stanosz 1973; Wunderlich 1980). Such attempts to shape the non-contextual meaning were often linked with the so-called literal meaning that is the meaning defined in the null context (zero context, neutral context). The researchers though failed to model the meaning without the context (see critical voices e.g. Searle 1980: 221-232).


Obviously, according to contemporary assumptions of researchers, the meaning of a word is partly dependent on the prior experiences of the language user (Barsalou 1992: 34; Wichter 1994: 90; Bromme and Bünder 1994), which have been called by Sigurd Wichter as (partial) determination of meaning by prior experience (in Jan Engberg’s translation 2000: 34). Rainer Bromme and Wolfgang Bünder (1994) suggest that through experience everyday meaning is enriched and transformed into expert meaning which is one of many possible approaches (cf. Jahr 1993; Wichter 1994; see also discussion in Engberg 2000: 32-34), but the one which matches the historical development of legal discourse. The difference between everyday and expert meaning can be explained by existence of different legal genres.

2.2. Interpretation

The interpretation of legal meaning differs from, for example, literary interpretation. T. S. Eliot once said that the interpretation of a reader might be much different than the author’s interpretation, and may be as right, or maybe even more accurate (1972: 22; see also Gadamer’s notion of Anders-Verstehen referred to texts of the arts and social sciences, 1975: 280). Unlike the literary interpretation but close to biblical interpretation, the interpretation of legal texts is based on the assumption that it has one adequate meaning (Sarkowicz 1995: 91). The opposite assumption would make it impossible for the court or the administrative body to pass any decision or judgment. Of course such ideal understanding of legal meaning does not exclude the frequent problems with interpretation of legal texts, as the only meaning embodied in the text may not be the same for all addressees.

The construction of a legal text seems to impose certain limits on the text interpretation. The meaning in the legal text depends less on parameters of communication and more — on generally recognised by legal sciences principles of interpretation. Additionally, the explicit nature of a legal text as well as semantic accuracy in the world of legal text maximally diminishes the possible ways of interpretation. It is assumed that in any legal text the same words possess the same meaning, and if there are different words, they have been used intentionally to assign to them different meanings. The drafting of legislation and other legal acts, as framed by legal tradition, is assumed to be as precise and accurate as possible.

Various methods of interpretation have been developed in order to describe the sources that the interpreter may exploit so as to establish the meaning of the text (the wording of the text, the purpose of the text, the intention of the writer, the framework of other texts of which the interpreted text is a part, etc.). For a detailed description, see, for example, Ian McLeod (1993: 211-273) and Dietrich Busse (1992: 13-30). It should also be noted that the methods of interpretation vary for different types of legal texts, so the interpretation of contracts (see e.g. Lewison 1987: 1-7) will differ from the interpretation of statutes (e.g. Holland and Webb 2006: 227-267). Moreover, the methods of interpreting legislative texts also differ from jurisdiction to jurisdiction.

The standpoint that the clear meaning is fully determinate originates in its contemporary form from the positivist legal theorists, first of all Hans Kelsen, and is adhered to by H. L. A. Hart and D. N. MacCormick (1974: 102), who believed that law


prescribes behaviour by means of a generic set of conventional meanings. The legal discourse is characterised by determinacy rather than polysemy. In Hart’s (1958: 612) words,

If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behaviour be regulated by rules, then the general words we use … must have some standard instance in which no doubts are felt about their application. There must be a core of settled meaning […].

The conception of the systemic determination of legal key words was deemed to be the distinctive character of legal language, although recent developments in linguistics – most particularly within sociolingustics and pragmatics prove that the analysis of the language of the law must take account of its socio-cultural extensions. The product of different institutions, history, culture, and sometimes socio-economic principles, each legal system has its own legal realia and thus its own conceptual system and even knowledge structure (Vanderlinden 1995: 328-337). Consequently, the legal terminology of different legal systems is, for the most part, conceptually incongruent (Šarčević 1989: 278; also Arntz 1993: 6). As a rule, conceptual differences are much greater between common law and civil law systems; however there are also notable differences between the corresponding concepts of individual civil law systems (Šarčević 1997: 245). In fact, these differences are so great that many comparative lawyers regard the ‘romanistic’ systems modeled on the French Civil Code and the ‘germanic’ systems which follow the German BGB as distinct legal families (Zweigert and Kötz 1984-I: 80).

The boundaries between the meanings of concepts of different legal systems are incongruent. The concept of décision in French law corresponds with two, more specific concepts in German law Entscheidung, Beschluss (Bauer-Bernet 1982: 192). Moreover, it appears that, within the same language, the same term designates different concepts in different legal systems. For instance, common-law marriage has one meaning in the U.S., another in Scotland, and still another in England (see Garner 2001: 179). In the United States, e.g. in Texas ”common-law marriage” generally denotes an agreement to marry, followed by cohabitation and a public recognition of the marriage. In Scotland, the term denotes cohabitation for a substantial period with the acquisition of the reputation of being married (an agreement to marry not being necessary). And in England common-law marriage is now used only of a marriage celebrated according to a common-law form in a place where the local forms of marriage cannot be used (e.g. a desert island) or are morally unacceptable to the parties (e.g. a Muslim country) or where no cleric is available.

Even terms whose concepts have been directly transplanted into another legal system take on different meanings once the concepts have been assimilated into the foreign legal system and culture (so called “legal transplants” - see Watson 1974: 21). As a result, the civil law terminology in Turkey is not interpreted strictly in the sense of the Swiss ZGB although the latter was adopted almost word for word in the Turkish Civil Code of 1926 (Šarčević 1997: 232). Rich in transplants from French law (Code Napoléon), German law (BGB), and after 1945 the common law, is the law of Japan. The strict legal sense of the foreign concepts has been successfully assimilated into Japanese law; however, the historical, philosophical, and sociological connotations were lost in translation (Kitamura 1987: 787). Even general terms change their effective meaning when adopted


by other legal systems. This was the case, for example, when terms such as family, land, person, wife, child, reasonable, etc. were transposed from England to the developing legal systems of Africa (see Allott 1974: 134). The family there may mean the major part of the tribe.

In addition, all legal systems contain a number of terms with no comparable counterparts in other legal systems or families (Šarčević 1997: 233). This is due to the fact that the actual object, relationship, action, or procedure does not exist in other legal systems. System-bound terms, as Susan Šarčević refers to them (1988: 455), designate concepts and institutions peculiar to the legal reality of a specific system or related systems. System-bound terms are frequently regarded as untranslatable (cf. Šarčević 1997: 233; Allott 1974: 132). For the English-Polish translation we may mention such terms with no equivalent in the Polish legal system as trust, equity, consideration, estoppel. On the other hand, there are numerous indefinite or vague terms, such as the best interests of the child, due care and attention, and good faith, which are easily translated and already exist in most legal systems, but are interpreted differently by courts of different jurisdictions.

3. Defining law terms In the first instance, legal language is marked by the precision of its lexicalization to achieve its superordinate goal – all-inclusiveness. It is exact meaning which distinguishes the ‘term of art’, and thus facilitates legal communication. On the semantic level, lawyers make attempts at precision of expression by careful choice of words and phrases. Indeed, “precision is the loudest virtue of the language of the law”, as David Mellinkoff (1963: 399) once put it. In order for the law to function, the principle of semantic accuracy or language consistency must be observed. Once a technical term was selected, it must be repeated over and over again instead of using synonyms. The use of synonyms is discouraged in legal texts because the user might think that reference is being made to a different concept (cf. Weston 1991: 32-33).

Legal definitions are today regarded mainly as aids for interpretation that promote clarity by reducing indeterminacy and help achieve consistency (Šarčević 1997: 153). Hence definitions are said to be among the most difficult provisions to draft (Rylance 1994: 137).

To mention cross-cultural differences, generally there are more definitions in common law than in civil law jurisdiction. The abundance of statutory definitions in common law jurisdictions may be viewed as a means of deliberately limiting judicial discretion, while civil law jurisdictions tend to encourage judges to use their own discretion (Wank 1985: 64).

3.1. Types of legal definitions

In philosophy, logic, and law, several different kinds of definitions are often in play, and definitions can serve a variety of different functions, first of all to enhance precision and clarity.


I would like to make a reservation here that I would be taking positions of legal theory and logic rather than that of philosophy which imply my understanding of the definition itself and functionalist approach to the types of definitions discussed.

So let me begin by marking some preliminary but important distinctions. Although “definition” in common understanding can cover all sorts of clarifying utterances, I would accept the logicians’ and lawyers’ distinctions and discuss here some selected types of legal definitions, pertaining to the multilingual drafting of legal instruments and legal translation.

The first distinction may be made between Aristotelian concepts of “real” as opposite to “nominal” definitions. To put it simply, the “real” definition discloses what is important in the thing that is being defined, what elements constitute that thing. “Nominal” definitions, on the other hand, disclose the meaning of words. One main use of nominal definitions is lexical or reportive, which is concerned of what are the common or specific usages of words. In legal texts we only have nominal definitions that investigate the meaning and use of defined terms.

The second important distinction is based on the purpose of formulating a definition. Thus we may distinguish between descriptive definitions that are aimed at just documenting the current or past meaning and prescriptive definitions that assign a special meaning in law for future references. Vested with the force of law, statutory definitions are widely regarded as being prescriptive (cf. Wank 1985: 65). We may subdivide prescriptive definitions into stipulative and explanatory definitions. While stipulative definitions alter “the ordinary meaning of words by narrowing or enlarging their sense or by creating a wholly new meaning for them” (Bowers 1989: 173), explanatory definitions “provide a necessary degree of definiteness” without altering conventional significations (Thornton 1987: 54).

DEFINITION

REAL

thing(s) denoted by X

NOMINAL

meaning and use of X

Table 2. Types of definitions according to the „point of reference” criterion


Of vital importance is the third disctinction of legal definitions that regards the structure of legal definition.

`

Equative definition composes of three parts: definiendum, defining connective, and definiens, as in Figure 1.

Table 3. Types of definitions according to the „purpose” criterion

DEFINITION

DESCRIPTIVE

PRESCRIPTIVE

STIPULATIVE alter or create new meaning

EXPLANATORY do not alter

ordinary meaning

Table 4. Types of definitions according to the „structure” criterion

DEFINITION

EQUATIVE

NONEQUATIVE

INTENSIONAL cite features

AXIOMATIC

INDUCTIVE

EXTENSIONAL list objects


The standard form of the definition can be represented as follows: [________________ = Df………………………..

in which “Soldier_____________” stands for the definiendum that is the term or concept being defined, and “a person serving in the army……………………” stands for the definiens, that is, the expressions or concepts by means of which a term or concept is being defined. The definiendum can be replaced by the definiens and vice versa wherever the substitution is justified by the context, genre, etc. Thus, my understanding of the definition is similar to that of legal theoreticians (Stone 1964: 171; Ziembiński 1995, Malinowski 2006); so that the word “definition” means the whole “definition-formulation” not the definiens alone.

As Naess rightly observes, The special merit of definition is not that it allows us to say more, but that because a definiendum is much shorter than a definiens and the latter contains a high level of preciseness […]. (Naess 1966: 54, quoted after Gotti 2003: 34)

Legal equative definitions can be either intensional or extensional (cf. Table 4). Equative definitions are used to denote those terms that are central to a given legal text (Zieliński 2002: 189, in Malinowski 2006: 166). And what is also important, in most equative definitions the definiendum is placed in the first position which eliminates possible ambiguity (Malinowski 2006: 167). While intensional definitions cite the essential features constituting the core sense of the definiendum, extensional definitions list the objects denoted and/or not denoted by the definiendum.

(a) Intensional definition ‘Bank’ means any person engaged in the business of banking. [The US Uniform Commercial Code] (b) Extensional definition ‘fiduciary’ means any person acting in a fiduciary capacity and includes a personal representative of a deceased person [the Canadian Trust and Loan Companies Act [SC 1991]].

Whereas dictionary definitions of ordinary terms are primarily intensional, a large number of statutory definitions are extensional. Expressing logical relations, legal

Figure 1. Structure of equative definition

„A soldier is a person serving in an army.”

definiendum

defining connective

definiens


definitions set the limits of the definiendum by means of equivalence (X means Y), inclusion (X includes Y), and exclusion (X does not include Y) as well as of combinations of equivalence and inclusion (X means Y and includes Z) or equivalence and exclusion (X means Y but does not include Z).

The older practice of formulating intensional definitions in English with shall mean was replaced with the indicative means which is used in English texts today in accordance with the notion that the law is always speaking (Šarčević 1997: 153). While some researchers maintain that this change reduces the effectiveness of definitions considerably (e.g. Bowers 1989: 177), others point out that that the shall in older definitions did not impose an obligation to be obeyed or disobeyed but merely expressed an authoritative power of the lawmaker to create rules of law (e.g. Driedger 1976: 13).

The best and most frequent, we should say, practice nowadays, esp. in legislative texts is to use “means” for complete (intensional) definition, “includes” for a stipulated expansion in meaning (extensional definition), and “does not include” for a stipulated contraction of meaning (exclusion) (Garner 2001: 258). The most common way to signal terms in text is to use initial capitals, but also boldfacing and italicizing are sometimes used (Garner 2001: 258).

Among non-equative definitions (cf. Table 4) we may distinguish axiomatic definitions that define the term in sample sentences, and inductive or recursive definitions that define an object in terms of itself, but these are less important from the point of view of translation and do not lie within the scope of interest of this article.

3.2. Definitions and their location

For the most part, the formulation of a definition is determined by its position in the instrument (Šarčević 1997: 153). For example, in Canadian legislation both explanatory and stipulative definitions are placed in the definition section of the preliminary provisions or, if they apply to a particular part of an act, in the principal provisions at the beginning of that part. In civil law legislation, definitions of ordinary terms are usually placed in a definition section in the preliminary provisions or following the general provisions, while definitions of technical terms are incorporated into the principal provisions (Šarčević 1997: 154). In both common law and civil law legislation, definitions in the definition section are formulated as definitions, whereas those appearing in the main body of the instrument usually take form of “real” provisions. Although they do not impose obligations or grant rights, definitions in the substantive provisions can be regarded as having a lawmaking function (Lampe 1970: 41).

Irrespective of the position in the instrument, an inherent element of each definition is its scope of application which may navigate the interpretation of a given term (Malinowski 2009: 304-305). Linguistically they take such forms as:

For the purpose(s) of this Act / of this part of the Act / of this paragraph For the purpose of this Agreement As used in this Agreement

Polish legislative drafting guidelines would determine similar expressions: W rozumieniu niniejszej ustawy określenie… oznacza… (Polish Legislative Drafting Guidelines – Zasady Techniki Prawodawczej - ZTP § 150)


[literal translation: „As understood by this Act, the term “…” means ….] or Ilekroć w ustawie jest mowa o…, należy przez to rozumieć …. (ZTP § 148) [literal translation: “Every time the term “…” is used, it shall be understood as …”. As a rule, legal definitions incorporated into the principal provisions of legislative texts are formulated like ‘real’ definitions (Šarčević 1997: 156). Accordingly, inverted commas or italics are no longer used and the definiendum is not referred to as a term. Instead of means or includes, expressions such as is or is deemed to be are commonly used (cf. Bowers 1989: 177). The following example cited by Frederick Bowers shows how the same definition would be formulated in the definition section and as a provision in the main body of the instrument:

In the definition section: ‘pensionable age’ means – (a) in the case of a man, the age of 65 (b) in the case of a woman, the age of 60 In the principal provisions of the instrument: The pensionable age of a man is the age of 65, and of a woman, the age of 60.

Definitions in the principal provisions contain descriptive material but have a lawmaking function in that they establish the legal criteria of terms (Šarčević 1997: 156). 3.3. Definitions and branches of law

A branch of law may also affect the formulation of a legal definition. In criminal provisions of common law legislation, it is frequent to define an offence or a crime by enumerating its constituent elements and situational components in an extended fact-situation. For example, to determine in which situation the death of a newly born child qualifies as infanticide pursuant to the Canadian Criminal Code, the judge relies on the extensional definition of infanticide in the extended fact-situation in section 233:

A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed. (Section 233 of the Canadian Criminal Code; quoted after Šarčević 1997: 157).

The legal rule on infanticide is set forth in section 237 which reads as follows:

Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. (Section 237 of the Canadian Criminal Code; quoted after Šarčević 1997: 157).


Contrary to Canadian legislation, in Polish criminal provisions legislators are discouraged to define crimes by referring to different articles of the Criminal Code (§ 75.1 of ZTP). Thus, art. 206 of the Polish Criminal Code would define bigamy in the following way:

A person who contracts marriage in spite of remaining in a marital union is subject to a fine, penalty of restriction of liberty or imprisonment for up to two years. (Art. 206 of the Polish Criminal Code)

A two-fold norm comprising the fact-situation and the statement of law are covered by a single legal provision.

Contrary to ordinary definitions, legal definitions are often negative, i.e. they define terms by specifying what they are not instead of what they are, for example, X is non-Y. The Canadian Criminal Code gives the following negative definition of manslaughter: “Culpable homicide that is not murder or infanticide is manslaughter.” (section 234 of the Canadian Criminal Code; quoted after Šarčević 1997: 157). This means that manslaughter is an act of culpable homicide that does not qualify as murder or infanticide pursuant to sections 231-233.

Similarly, according to § 75.3 of Polish ZTP Guidelines, the negative forms in criminal law are expressly allowed, especially when referring to other provisions:

Nie popełnia przestępstwa określonego w art. …, kto… . [translation: A person shall not be liable for a crime under art. …., if … .”] Nie podlega karze za przestępstwo określone w art. …, kto… . [translation: “A person who committed a crime prescribed in art. …, shall not be liable to be punished, if …”.]

Legal definitions are also of vital importance in instruments of international law. The role of definitions seems to be decisive in promoting the uniform interpretation and application of international instruments. Since there is only a small number of international legal terms with a universally accepted signification (de Groot 1991: 283), thus it is essential that the parties agree on the signification and scope of terms and incorporate the definitions into the treaty or convention (Šarčević 1997: 158). This presupposes that the definitions contain no technical or other system-bound terms unknown in the legal systems of the signatory states.

This general rule is repeated in EU Joint Practical Guide (2003): 5.3.2. “[…] terms which are too closely linked to national legal systems should be avoided”.

As in the case of other instruments, definitions pertaining to the whole instrument are usually placed in the definition section following the preamble, while definitions pertaining to a specific part are placed at the beginning of that part among the substantive provisions.


4.1. Drafting guidelines and theory of law – notes for translators

The formal aspects of formulating statutory definitions are prescribed first of all in national or supranational (EU) legislative drafting, and additionally by the theory of law and logic. Statutory definitions facilitate adequate contact between a legislator and addressees of legal norms, as rightly observes Zieliński (2002: 188). Therefore, it is of paramount importance when translating legal texts that the terms used are equivalent and that the definition’s formulation is adequate considering its type, location, etc.

The Polish legislative guidelines (ZTP) in §§ 146-154 specify what connective forms are used in different types of statutory definitions, how expressions required for correct formulation of a definition are rendered in legislative Polish (e.g. “including but not limited to”, “hereinafter referred to as”, the title “definitions”), or what punctuation marks should be used. Unlike contractual definitions, statutory definitions are authoritative.

The Polish styleguide prepared by Polish staff at the Directorate General for Translation at the European Commission (version 5 of Feb. 2009) would only include intensional definitions, suggesting that the only connective form between the definiendum and the definiens is “mean” or “means”:

“Customs authorities” means the authorities responsible inter alia for applying customs rules.” “Organy celne” oznaczają organy uprawnione między innymi do stosowania przepisów prawa celnego.” (VADEMECUM TŁUMACZA. Wskazówki redakcyjne dla tłumaczy. Wersja 5 (luty 2009 r.); 2.1.3.8, DGT, Luxembourg)

The only practical thing the Vademecum focuses on is the singular or plural form of the verb “mean” dependent on the form of the defined term.

The formulation of contractual definitions is not subject to any legal provisions. The meaning of a contract term may depend on the usage of the trade, or on how the parties themselves used the term in past (Tiersma 2000: 116). The adherence to analogical rules when formulating statutory definitions in the case of contractual definitions (dependent on type, location, etc.) would be recommended, though not obligatory. Thus, we may see a variety of typographic solutions and translation strategies when translating, for example, a connective form. The non-authoritative nature of contractual definitions, and thus lack of official guidelines, might be the main reason for inconsistent translation of definitions included in multilingual international instruments ratified by Poland and published in the Polish Journal of Laws (see 4.2. below).

4.2. Polish international instruments in translation – empirical analysis

I conducted the qualitative analysis of a corpus of all international instruments published in the Polish official Journal of Laws in 2005 with attached Polish translations, such as


conventions, treaties, agreements, and protocols. The corpus covered a total of 129 texts of international instruments. For the purpose of the analysis, I selected only those texts, where: (a) English was chosen as an authentic language (one of languages); (b) legal definition section or definitions in individual provisions were included. I found 101 such documents.

From the analysis of the corpus I have drawn the following conclusions: * there are no universal conventions in formulating definitions in international

instruments. They depend on the institution or authority that issued the document but even then there are some inconsistencies.

Example 1 The International Convention for the Safety of Life at Sea, 1974, would include two different principles of defining terms in the same Article 2 (italics vs. quotation marks and different style):

“2 DEFINITIONS For the purpose of this part, unless expressly provided otherwise: […] .9 Security level 1 means the level for which minimum appropriate protective measures shall be maintained at all times. […] 2.3 The term “Contracting Government” in connection with any reference to a port facility, when used in sections 14 to 18, includes a reference to the “Designated Authority”.” (Annex 1, Part A of The International Convention for the Safety of Life at Sea, 1974; Dz.U. 2005, No. 120, item 1016)

Example 2

“Article 1 1. For the purposes of this Convention: (a) Alien means: any person other than a national of a Member State; (b) […]” (Convention determining the state responsible for asylum lodged in one of the Member States of the European Communities of 15 June 1990, Dz.U. 2005, 2005, No. 24, item 194).

The term is neither italicised nor put in inverted commas, the collon is used before the definiens. However, the Polish translation is rendered properly:

“cudzoziemiec” oznacza jakąkolwiek osobę inną niż obywatel Państwa Członkowskiego.


Example 3 “Chapter I

Definitions and general provisions Article 1

For the purposes of this Convention: a. “firearm” has the meaning assigned to it in Appendix I to this Convention; b. “person” shall also mean a legal person having a place of business in the territory of a Contracting Party; c. “dealer” means a person whose trade or business consists wholly or partly in the manufacture, sale, purchase, exchange or hire of firearms; d. “resident” refers to a person who has habitual residence in the territory of a Contracting Party within the meaning of Rule 9 of the Annex to Resolution (72) 1 of the Committee of Ministers of the Council of Europe.” (European Convention on the control of the acquisition and possession of firearms by individuals of 28 June 1978; Dz.U. 2005, No. 189, item 1583)

Within art. 1, there are four conventions used to define the definiendum (term), the Polish translation would use two (b, c, d – “oznacza” (mean), a – “ma znaczenie” (“has the meaning”).

* some unusual connective forms are used or no connective form is used, thus hindering the recognition of a proper definition type

Example 4

“Part I Scope and definitions Article 3 For the purpose of this Convention –

(a) the term “air pollution” covers all air contaminated by substances, whatever their physical state, which are harmful to health or otherwise dangerous”;

(b) …” (Art. 3 of Convention 148 concerning the protection of workers against occupational hazards in the working environment due to air pollution, noise and vibration of 20 June 1977, Dz.U. 2005, No. 66, item 574)

What is interesting, the translation remained in such cases indifferent to the variety of forms and used the Polish verb equivalent to English verb “mean” (“znaczyć”).

Example 5

“AMENDMENTS TO THE ANNEX of the Convention on Facilitation of International Maritime Traffic, 1965, adopted by the Conference of Contracting Governments on 10 November 1977 Insert in Section 1 – DEFINITIONS AND GENERAL PROVISIONS, Sub-Section A. DEFINITIONS, the following new definition after the definition of “Mail”:


Passenger in transit. A passenger who arrives by ship from a foreign country for the purpose of continuing his journey by ship or some other means of transport to a foreign country.” (Dz.U. 2005, No. 118, item 988)

Note here unusual format of a legal definition of an international law term “passenger in transit”. Summing up, the translations from Polish and into Polish did not in many cases follow some universal solutions as to the use of particular expressions or typographic conventions (as in drafting guidelines) or used them inconsistently throughout the text. Therefore, a detailed corpus-based qualitative and quantitative analysis would be needed to help establish uniform standards in formulating and translating legal definitions to foster the adequate and consistent interpretation of multilingual instruments.

5. Conclusions

What matters in interpreting and translating legal terms is, first of all, proper formulation of legal definitions from formal and logical points of view. This may be determined by such factors as:

- legal system (civil law system, common law system). Cross-cultural differences must be taken into account, for example, that common law definitions are generally more frequent and considerably longer;

- branch of law (civil law, criminal law, international law) where different styles of defining terms are observed;

- type of legal genre (e.g. statutes, contracts, international conventions). Principles regarding statutes are much stricter than those concerning for example contracts. The statutes are governed by national legislative guidelines, being in turn the product of the theory of law and legal doctrine. Even when you translate into Polish the title “Definitions” in a legislative act, this is subject to strict formula in Polish, namely “Objaśnienia określeń ustawowych”, which is not the case in contracts;

- position in the legal instrument, i.e. the fact that location of a statutory definition may significantly change its formulation;

- type of legal definition (e.g. extensional vs. intensional definition) and certain universal conventions that are commonly used.

In many aspects contracts and statutes today are subject to the processes of globalization/”Europeanization” and localisation operating upon contemporary legal systems. Sometimes very general terms are used to conform to diverse systems which may lead to the results similar to those produced by the localisation industry. The translation of law terms as defined by EU secondary legislation is adapted to the national legal system of each Member State. This, in turn, affects the construction and the interpretation of the discussed legal genres. The EU law works here as tertium comparationis juxtaposing and combining very different legal systems, cultures and styles.


On the one hand, the EU legal system inevitably simplifies law (and legal definitions) at the terminological and structural levels, thus also affecting national laws of member states. European drafting techniques place less emphasis on explicit definitions, which reflects a general determination to use ordinary words in an ordinary way wherever possible (Holland and Webb 2006: 222). On the other hand, the EU law introduces, through its legal jargon, new concepts that are structurally difficult to translate, such as “flexicurity” (a term composed through neological process of two lexemes: “(market) flexibility” and “(job) security”), rendered in Polish with a descriptive equivalent “elastyczność i bezpieczeństwo (zatrudnienia)”.

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—. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International. Thornton, Garth Cecil. 1987. Legislative Drafting. London: Butterworths. Tiersma, Pieter M. 2000. Legal Language. Chicago/London: The University of Chicago

Press. Vanderlinden, Jacques. 1995. Comparer les droits. Bruxelles: Story-Scientia. Wank, Rolf. 1985. Die juristische Begriffsbildung, München: Beck. Watson, Alan. 1974. Legal Transplants. Edinburgh: Scottish Academic Press. Weston, Martin. 1991. An English Reader’s Guide to the French Legal System. New

York/Oxford: Berg. Wichter, Sigurd. 1994. Experten und Laienwortschätze: Umriss einer Lexikologie der

Vertikalität, Tübingen: Niemeyer. Wunderlich, Dieter. „Methodological remarks on Speech Act Theory”. In: Speech Act

Theory and Pragmatics, edited by John R. Searle, Ferenc Kiefer & Manfred Bierwisch, 291-312. Dordrecht: Reidel, 1980.

Zieliński, Maciej. Wykładnia prawa. Zasady. Reguły. Wskazówki. Warszawa: LexisNexis, 2002.

Ziembiński, Zygmunt. Logika praktyczna. Warszawa: Wydawnictwo Naukowe PWN, 1995.

Zweigert, Konrad & Hein Kötz. Einführung in die Rechtsvergleichung, vol. I and II (2nd edition). Tübingen: Mohr, 1984.

• Research in Language, 2011, vol. 9.1 • DOI 10.2478/v10015-011-0004-2

SYNONYMY AND POLYSEMY IN LEGAL TERMINOLOGY AND THEIR APPLICATIONS TO BILINGUAL AND BIJURAL

TRANSLATION MARTA CHROMÁ [email protected] Charles University Law School, Praha, Czech Republic

Abstract The paper focuses on synonymy and polysemy in the language of law in English-speaking countries. The introductory part briefly outlines the process of legal translation and tackle the specificity of bijural translation. Then, traditional understanding of what a term is and its application to legal terminology is considered; three different levels of vocabulary used in legal texts are outlined and their relevance to bijural translation explained. Next, synonyms in the language of law are considered with respect to their intension and distribution, and examples are given to show that most expressions or phrases which are interchangeable synonyms in the general language should be treated carefully in legal translation. Finally, polysemes in legal terminology are discussed and examples given to illustrate problems potentially encountered by translators. Key words: law, bijural translation, legal terminology, synonymy, polysemy

1. Introduction My experience in the language of law started to be shaped in the late 1980s when I became a teacher of what was called “legal Russian” and was expected to teach law students to understand legal texts written in Russian. Although a linguist by education with just lay awareness of law I was supposed to explain to students of Czech law both linguistic and legal peculiarities of Russian legislation and assigned to translate legal texts; any hesitation on my part was withered with the compelling “You can speak Russian, can´t you?”. It was a general understanding of that time (at least in our part of the world) that the only qualification a teacher or translator must possess was a proficient command of a foreign language. Twenty five years later, not only the new research field of comparative legal linguistics is well-established, but also the awareness of the semiotic nature of processes underlying the study of legal languages and interlingual legal translation arose: linguists consciously explore the law in order to identify the specificity of the language, and more and more lawyers recognize the importance of their excellent linguistic competence as a pillar for their excellent legal skills. A closer cooperation between lawyers and linguists helps discover, identify and describe the cross-cultural meaning of the law, which not only leads to its better understanding but also to its efficient application. The topic of my paper is embedded in linguistic and legal

32 Marta Chromá

semantics but exceeds its realm as translation of legal terminology tackles the issues of legal interpretation, just an inch from legal philosophy in general.

2. Translation in legal settings

Legal English has been subject to a more consistent investigation and research since 1963 when Professor Mellinkoff published his book (2004, 1963) with quite a challenging aim to rationalize the language of the law in order to make it more comprehensible not only to the lay audience (e.g. clients) but also to avoid unnecessary ambiguity causing misunderstanding even between lawyers. The academic and scholarly interest in the English language as the dominant language in many translations of law not only in the field of public international law but also in private law in the globalized market (Cao 2007: 4) has gradually spread to other legal languages. Comparative jurists encountered legal and linguistic problems first, trying to establish parallels, similarities or differences between legal systems expressed in different languages; to name one, the work of Professor de Groot deserves special recognition in this context since his academic and research interest has spanned the law, legal languages and translational legal lexicography for almost thirty years. The multilingual European Union with its autonomous legal system and legislation binding on all 27 member states published in 23 languages gave rise to a more intensive research into the languages of the law trying not only to unify the whole system of law but also the languages in which the system is conveyed to its users.1

As early as in 1959 Roman Jakobson laid down the fundaments of the theory of translation based on his semiotic and functional approach to languages. Understanding translation as interpretation, Jakobson (1959: 232) distinguishes intralingual translation or rewording in the same language; interlingual translation or translation proper between two or more languages; and intersemiotic translation or transmutation is an interpretation of verbal signs by means of signs of nonverbal sign systems. Paraphrasing Jakobson I would call the intralingual translation “interpretation proper” as this is the stage when the translator tries to identify the message (in its widest sense including the form, content and functions) to be conveyed, to understand it and possibly to reword it should such rephrasing help transfer it into the target language. Jakobson´s translation proper is transmission across the temporal, geographic, and linguistic boundaries.

Intralingual translation in Jakobson´s terminology creates the initial, but crucial or even critical, stage of interlingual translation as the translator may transmit to another language only such information that he or she finds in the source text, i.e. how he or she can interpret the source text at its individual levels as well as in its complexity as a type of (social) discourse. The interpretive theory of translation was developed by the French École Supérieure d´Interprètes et de Traducteurs almost forty years ago (Lederer 2003) and during those years spread over to other training centres for translators and

1 National legal systems of EU Member States have witnessed Europeanization even of the whole

private law, not only in contract law (Lando-Beale 1995) but even in tort law as the most “culturally specific” branch of law (“The Principles of European Tort Law” available at http://www.ectil.org).

Synonymy and Polysemy in Legal Terminology and Their Applications to Bilingual and Bijural Translation 33

code code code code code code interpretation MESSAGEinterpretation context context context context context

interpreters; its basic premise is that understanding the source text (ST), i.e. interpreting ST using one´s linguistic, extra-linguistic and encyclopaedic knowledge, requires that context be considered at all levels of the meaning construction (word/phrase, sentence, text). The interpretive model of translation sharply contrasts with decontextualized literal translation tending to replace one word in ST with its “dictionary” equivalent regardless of the context of the whole message or even irrespective of the co-text (immediate grammatical surrounding of the word). The terms word-based and sense-based may be used for literal and interpretive translations respectively (Malmkjaer 2005: 6).

Bilingual translation is interactive communication; as social interaction it is a type of discourse fully dependent on a go-between or intermediary – the translator. Explaining the six main functions of a language2 and describing unilingual verbal communication Jakobson (1960: 353) emphasizes the context known to both the addresser and the addressee, their common code and physical and mental connection enabling them to interact. His description may be visualized as follows, with the double-ended arrow suggesting that the contact between the addresser and addressee may be reciprocal or interactive in order to facilitate their efficient communication, i.e. their exchanging of understanding:

addresser addressee

Traditionally, the translator intervenes in communication between the addresser and the addressee where the code, and often the context, used by the former is unknown to the latter but their communication should be facilitated for various reasons. Placing an emphasis on the presumed function of the target text (not its actual perception by the recipient), which predetermines the translation strategy (i.e. approaches, methods and procedures), has prevailed recently. Trosborg (1997: 151) refers to Nord’s extended “skopos” theory3 applied to translation (Nord, 1991: 8); Nord claims that a translation must fulfill certain requirements, which are defined by translation “instructions” (assignments) in order to be suitable for a certain purpose. Simplistically described, the translator as a communication intermediary first becomes a substitute addressee and after his “processing” the original message he acts as a substitute addresser to convey the “processed” message to the presumed original addressee. The “processing” phase is composed of several steps to take: first the translator tries to understand and interpret (decode) the source language message in its context; then he transmits the interpreted message to the target language (the code of the final addressee); finally, the translator should adapt the transmitted information in a way corresponding to the purpose of

2 i.e. referential, emotive, conative, poetic, phatic and metalingual. 3 The skopos theory was introduced by Hans J. Vermeer in 1978; the title of his article is Ein

Rahmen für eine allgemeine Translationstheorie, and it is available in Aufsätze zur Translationstheorie, published in Heidelberg 1983.

34 Marta Chromá

translation, the function of the target text and possibly to the expectations of the ultimate addressee.

Chart 2

It should be noted, however, that the “contact” between the addresser and the addressee in Jakobson´s sense, i.e. the communication channel, is far from being straightforward if the communication is mediated by a translator. Transmission of the original message to the ultimate recipient may span centuries, with substantially different cultures finding themselves at various stages of their development and remote linguistic codes built upon incongruent means of construing social realities. This may leave us slightly incredulous of the potential of interlingual translation as “[...] we cannot simply construct versions of other people´s central terms as if we could understand them perfectly. [...] we have to recognize that the most we can attain is an imperfect understanding and approximation.” (White 1994: 44).

Law establishes a very specific environment for transmission of information: in the widest sense of the term, its primary purpose is to regulate the life of a specifically identified and possibly defined community. Language is the most important vehicle of communicating law as other sign systems, such as icons, colours or sound, play a marginal role. Since Jakobson´s era, the concept of intersemiotic translation has acquired wider dimensions for translating law, particularly in relation to the development of legal semiotics as an extension to legal theory: law may be regarded as a dual semiotic system composed of the language in which it is expressed and the discursive system expressed by that language (Jackson 1997: 3). Interlingual translation of a legal text is intersemiotic translation (Tomášek 1991: 147) as it represents a process where one dual semiotic system should be replaced by the other preserving the purpose and characteristics of the source text to the extent expected and required by the recipient of the translation (the extent may differ depending on the purpose of the translation). The core factor of the interlingual legal translation is the translator´s ability to reasonably interpret the source text, i.e. to carry out an “intra-language translation” identifying, for example, the genre of the legal discourse, the genre of the source text (text-type), its narrative repertoire, legal concepts and their reflection in terminology, etc. Only then may the translator transmit the interpreted information into the target language trying to re-create the text in the other legal and linguistic environment keeping in mind the purpose of translation and the expectations and needs of the ultimate recipient. This is the context which the


Canadian Government calls “bijuralism”. Canadian Legislative Bijuralism was officially launched ten years ago although the first attempts to raise awareness of the tight interconnection between “drafting”, “interpreting” and “translating” between the two Canadian legal systems occurred in the 1970s (White 1994: 243). 4 Strictly speaking, any translation of a legal text may be called bijural since there is always a difference in the source legal and linguistic environment and background and the target legal and linguistic environment and background.

The following chart attempts to schematize a rather complex process of bijural translation built and fully dependent upon the translator´s decoding/encoding and interpretive skills; should source law and target law be replaced by source culture and target culture respectively, the chart sketches the process of any intersemiotic translation trying to transpose the culturally rooted message contained in the source text to the target text reflecting on the original cultural rootedness.

Chart 3

3. Concepts and terms

The language of law is classified in various ways and one may speak of a language for special or specific purposes, or of a sublanguage, scientific language, or specialized language (Pearson 1998: 28). Widdowson (1979: 24) characterizes such subcategories of

4 The purpose of the bijural revision of Canadian federal legislation is “to examine statutes and

regulations to ensure that they are consistent with both civil law and common law, in both official languages,” in order to assist interpretation and drafting of Canadian federal legislation stemming from common law and written in English in the province of Quebec, whose legal system is built upon continental law and written in French. For more information see http://canada.justice.gc.ca/eng/bijurilex/index.html

source legal text

target legal text

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a language “not as formally defined varieties of English, but as realizations of universal sets of concepts and methods or procedures which define disciplines or areas of enquiry independently of any particular language.” This is what Sinclair (2007: 34) calls local grammar describing the specificity of the language in a particular subject area, and what Jackson (1997: 111) terms legal grammar when analyzing the semiotics of legislative texts.

In general understanding what is “legal” about the language of law is usually confined to legal vocabulary, sometimes referred to as “technical words” although terminology as part of vocabulary in legal texts creates no more than one third of the narrative of any legal text and its quantity varies in different text-types as suggested in our earlier research (Chromá 2008: 311).

Semanticists (Cruse 1991: 35, 49; Saeed 2003: 56-57, Murphy 2008: 15, Halliday 2004: 2, Hoey 2006: 156) distinguish between word (as an independent unit for paradigmatic and morphological purposes) and lexical unit (having not only a particular form but also a particular sense).5 As word in this narrower sense can hardly be a unit of translation we will use it in its wider sense and interchangeably with lexical unit. What will be strictly distinguished, following Löbner 2002: 20-21, is concept for mental description or meaning and term for its spelling (or sound) form.

Vocabulary used in law can be classified from different perspectives. Mellinkoff (2004: 11) groups the vocabulary into eight categories (common words with uncommon meanings /prayer as a form of pleading/, Old English and Middle English words /witnesseth/, Latin words and phrases /lex fori/, words of Old French and Anglo-Norman origin /plaintiff/, terms of arts /fee simple/, argot /taking the fifth/,6 formal phrases /approach the bench/, and lexical units with flexible meanings /reasonable/).

Another classification (Riley 1995: 73–79) distributes the legal lexicon among three wider groups:

(1) “Pure” legal terminology as relatively a scarce group of lexical units or phrases (such as legal maxims) that are not used outside the branch of law unless stylistically marked. Examples are ‘detinue’ (as the act of detaining or withholding of what is due) or ‘asportation’ (the action of carrying off). This category usually includes Old and Middle English words,7 and Latin lexical units and phrases.

(2) Legal terminology found in everyday speech: these are lexical units with related legal meaning, such as ‘land’, ‘negligence’ or ‘law’.

(3) Everyday words which are assigned a special connotation in a given legal context; this often happens when a word or phrase regularly and primarily used in common speech becomes a part of the subject-matter of a statute thus acquiring new semantic dimensions either expanding or narrowing their original meaning. For example, the British Animal Welfare Act 2006 defines animal as “a vertebrate

5 Löbner (2002: 40) calls expressions with a lexical meaning lexems or lexical items and for

Murphy (2008: 144) a lexical unit is instantiation of a lexical item. 6 Legal jargon is usually used in the same meaning today. 7 This group includes adverbial expressions traditionally called here words (herein, hereof,

heretofore), where words (whereas, whereby) or there words (thereat, thereby, therewith) “usually thrown in gratuitously to give legal documents that musty legal smell.” (Garner 1995: 401)


other than man” but, under certain circumstances, the Act allows for the expansion of the concept to “include invertebrates of any description”.

Hughes & Alcaraz (2002: 16-18) assign the same three groups of legal vocabulary slightly modified names preserving their characteristics as suggested by Riley above: (1) purely technical terms (meaning the lexical units and phrases found only in the legal setting, i.e. having no application outside law); (2) semi-technical or mixed terms, and (3) everyday vocabulary frequently found in legal texts. It should be noted that the border between (1) and (2) in the latter classification is more relaxed than that of Riley above.8 Moreover, as Phillips points out (2003: 48), “[...] many words appear in ordinary speech before importation into the discourse of the law. Many also make the return journey or even a single journey starting from legal language to the ordinary vocabulary.” And he adds that “in crossing over in either direction [legal language ↔ natural language] words and phrases undergo semantic transformation”. This is what a translator should always bear in mind. It seems to be quite apparent, and our own practical experience in legal translation suggests so, that the second category encompassing specialised vocabulary acquiring its precise legal meaning in a particular legal context is the most difficult for a translator to tackle and transmit into the target text properly. Unlike the first category encompassing lexical units “looking legal” at first sight, the second group includes units very often concealing their actual legal sense under the veil of their common meaning applicable to the general language (see discovery in Example 1 below).

Another relevant issue in terminology analysis is whether legal terms are monosemous (having one meaning) and at the same time mononymous (consisting of one word) as recommended by Thomas (1993: 46). A rough estimate of entries under letter P contained in the Black’s Law Dictionary (9th ed., pp. 1217-1357) suggests that the proportion of one-word terms and multi-word terms is 20 and 80% respectively.9 Moreover, many multi-word terminological phrases have more than one legal meaning and their exact meaning in a particular context is sometimes quite hard to identify (e.g. the translation of legal remedy in general legal contexts and in the context of the law of equity would require different equivalents to reflect the distinction between common law and equity).

Although translation of a legal text is a multifarious process as suggested in Chart 3, and interpretation of the source text naturally spans all levels of the text construction and its contexts, the crucial issue for any translator is to identify what lexical units in the text are legal terms designating special legal concepts, what lexical units express the formality of the text and not necessarily its legal substance and what lexical units belong to the general language thus not commonly susceptible to mistaken interpretation. Although there are many definitions of what a term is as suggested by Pearson in her analysis (1998: 9-40) the burden of determining a particular lexical unit to be a term in the particular text would always rest upon the translator. It is much more difficult to identify what a term is in the legal setting since legal terminology does not confine to 8 For example, they include the word solicitor in the first category although it can have more than

one meaning outside law. 9 The total number of entries and subentries under letter “P” is 4645. There are 784 one-word

terms, 3210 multi-word terms. Latin terminological phrases (576) as well as abbreviations and acronyms (75) were excluded from calculation.

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nomenclatures as natural or exact sciences may do; law as any other human science is based on abstract concepts and culturally rooted institutions sometimes expressed in language acquiring its terminological specificity only in a particular context.

To illustrate this task the text extracted from a Canadian manual instructing young lawyers how to get ready for their first performance as counsel10 suggests a possible analytical approach:

Example 1 The most important step in the pre-trial process is the oral examination of each party under oath. The transcript of the examination of the opposing party may be read into the trial record. The purpose of an examination for discovery is: (1) to obtain admissions which help you to prove your case; (2) to obtain admissions which will undermine your opponent´s case; (3) to discover the evidence upon which your opponent relies to establish his case; (4) to narrow the issues to be determined at trial.

The underlined lexical units constitute legal terms belonging to the second category described earlier, i.e. legal terminology found in other branches of knowledge and possibly in everyday communication (although not necessarily precisely understood by commoners). What matters here is identification by the translator whether the same concepts exist in the target legal system and whether the target language may provide suitable terminological equivalents. Considering the distinction between common law as the source law in this text and any continental legal system, special “translational” attention should be paid to discovery11 and admissions as these concepts may be missing in continental civil procedures. Transcript, oath or opponent are formal words rather than legal terms. Regard should also be given to all collocations with case: in all three occurrences case does not mean the whole cause or suit brought before court but just an individual representation of facts and grounds by one party and should be translated accordingly. Finally, the phrase to establish his case belongs to legal jargon rather than statutory language and means to prove or substantiate one´s allegations.

A traditional core objective of translation has been to reach equivalence between the source text and the target text. As the focus of translational theories has shifted from the strong orientation on the source text to emphasising the purpose of translation, which may determine the mode and process of a translator´s work, the understanding of equivalence has also slightly modified. We may speak of equivalence at all levels of a text – lexical units, phrases, sentences, paragraphs and the text as a whole, but a question arises whether the translator may seek equivalence at a higher level, such as discourse; for example, a British letter of claim (formerly called statement of claim), no matter how excellent the translator´s translation into Czech may be, can never be used for the commencement of a civil action before a Czech court as neither the formal nor substantive elements required by Czech law would be preserved. Should the issue of translational equivalence be reduced to legal vocabulary the degree of equivalence

10 Stockwood, David, Q.C. 1980. Civil Litigation. A Practical Handbook. Toronto: The Carswell

Company Limited, p. 51. 11 In British contexts, the term discovery as defined by the Rules of the Supreme Court 1965

(Order 24) was replaced by disclosure (Civil Procedure Rules, 31).


should always be measured in the legal context of the target text in which a particular terminological equivalent is to be used; for example, an information, criminal complaint and indictment are documents instituting criminal proceedings in the US but which of them should be chosen as a proper legal equivalent in translation into English should the source criminal law have just one such document containing some features of each of them? Or what equivalent should be used for arraignment if there is no such legal institution in the target law?

Attaining equivalence in the translation of legal terms should go with conceptual analysis of a particular term; translation may require not only a comparative conceptual analysis of the source term and its potential equivalent in the target language and/or legal system but also a comparative research into a wider (extra-linguistic and possibly extra-legal) context. Šarčević (2000: 238) distinguishes among three basic degrees of equivalence: (a) “near equivalence”, where concepts in the source language and target language expressed by the respective terms share all of their essential elements and most of their accidental characteristics; (b) “partial equivalence”, where concepts in the source language and target language share most of their essential elements and only some of their accidental characteristics; and (c) “non-equivalence”, where concepts in the source language and target language share a few or none of their essential elements and no accidental characteristics. Whilst the first two types of equivalence could be satisfied with a functional or substantive equivalent in the target law, non-equivalence (e.g. the above mentioned example of arraignment) would be compensated for by an explanatory or descriptive equivalent (cf. Zgusta 1971: 319 or Al-Kasimi 1983: 159).

4. Synonymy in legal terminology

4.1 Propositional synonymy

Whilst equivalence is the ultimate concept in translation between languages, synonymy is the relationship established between or among units within one language and as such it can play an important role in intralanguage translation or interpretation mentioned above.

Synonymy is traditionally bound to the relations between lexical units but syntactic units may feature similar characteristics, the former being termed lexical synonymy and propositional synonymy is used for the latter. Propositional synonymy is sometimes referred to as paraphrase (e.g. Murphy 2008: 144). Although our focus is on lexical synonymy applicable to legal terminology, propositional synonymy can be found in various legal contexts:

Example 2 A. “... unless the contract provides otherwise” B. “... in the absence of a provision to the contrary” C. “... except when otherwise provided by the contract”

40 Marta Chromá

These three phrases have the same meaning, suggesting that whatever has been expressly agreed upon, or has been implied by contracting parties, will apply as long as there is no explicit statement (in the law) overriding it. Since the meaning is more relevant for translation than the syntactical form of the phrases, they all can be translated by one phrase in the target language that best reflects in the target law the message contained in the source language phrase.

Example 3 A. “You do not have to say anything unless you wish to do so, but what you say may be given in evidence.” B. “You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law.”

These two statements of the police caution are geographically differentiated paraphrases, A applicable to the United Kingdom, B used in the USA as the initial part of Miranda warning, but these distributional constraints (Saeed 2003: 66) seem to be irrelevant for translation. Individual segments of both warnings may be cut into three logical parts and compared.

A B

1. You do not have to say anything

You have the right to remain silent.

2. unless you wish to do so If you give up the right to remain silent,

3. but what you say may be given in evidence.

anything you say can and will be used against you in a court of law.

Not only do the cautions as a whole have the same meaning (despite their different syntactical structure) and are understood in the same way in the UK and US respectively, but their individual parts, if separated, can be seen as paraphrases of each other: A1 and B1 can be freely swopped; A2 and B2 cannot be used interchangeably in these two cautions due to the initial verbal negation in A1; A3 and B3 might be interchanged still preserving the meaning although one may think about nuances in procedural equivalence of “be given in evidence” versus “be used against you in a court of law”. Technically speaking, the latter presupposes the former.

4.2 Lexical synonymy

The extent of similarity or sameness in meaning between lexical units differs and three factors are usually discussed – the scope of similarity or resemblance, permissible or acceptable differences and the distributional potential of alleged synonyms; one factor not always emphasized is context that, pragmatically, has a decisive impact on determining the meaning of a lexical unit or units. Murphy (2008: 145) speaks about sense relation rather than word relation (cf. Malmkjaer´s sense-based and word-based


translation above) since what matters are individual traits of meaning that are compared; we maintain her argument that “synonymy is a relation between words in use” as context-dependence is a crucial factor in determining the identity of senses particularly in legal terminology.

Linguistic terms designating this fluctuating degree of sameness/similarity vary. Cruse (1991: 265-295) distinguishes among absolute synonyms having their semantic mode identical (i.e. all their propositional, expressive and contextual traits), cognitive synonyms sharing most important (or “central” in Cruse´s terminology) traits but having various collocational or contextual restrictions, and plesionyms12 which normally may be considered cognitive synonyms but are used in a sentence stressing their different subordinate semantic traits tending to deny their potential as synonyms; plesionyms very often hinge on hyponymy as suggested in the example provided by Cruse (286): “Was he murdered?” “Not exactly – but he was killed.” The trio of an information, criminal complaint and indictment can also be assigned to the category of plesionyms in some contexts.

Jackson&Zé Amvela (2007: 107-113) distinguish between strict and loose synonymy (the latter covering Cruse´s cognitive synonyms and plesionyms) pointing out that the former is uneconomical because it creates unnecessary redundancy in a language. Löbner (2002: 46) speaks about total and partial synonyms, the former having all meaning parts identical (descriptive, social and expressive meaning), the latter sharing just some and to a various extent.

Filipec&Čermák (1985: 133) emphasize that two aspects should be considered in identifying the extent of sameness or similarity: (a) the intension (as the internal content of a notion or the sum of the attributes contained in it, i.e. its meaning parts) which can be identical or variant, and (b) the distribution of synonyms. Where synonyms are identical with respect to both intension and distribution, full (or ‘exact’) synonymy occurs; there will be partial (or ‘loose’) synonyms in all other cases. The latter prevails in occurrence. Should we admit that full synonymy exists in the lexis of law it would always be confined to a particular legal (and linguistic) context; only exceptionally there are synonyms which may be used interchangeably in all leg al contexts, such as causal link, causal nexus or causal connection.

Sameness/similarity can be a relevant factor in translation when prescriptive and descriptive terms are considered and their equivalents in the target legal system are sought having the same degree of normativity. Legal discourse can be subdivided into three major (but multifarious) areas according to the prescriptive or descriptive nature of speech acts, namely the language of legislation being highly prescriptive, the language of judgments depicting both prescriptive and descriptive features, and the language of legal representation, which is primarily descriptive (Knapp,1995: 120). Terminology used in individual areas follows the same pattern: (a) prescriptive terms are defined by and contained in statutes; in common law there are also terms developed through case law and conventions; and (b) descriptive terms as lexical units featuring a certain degree of contextual legal and linguistic specificity and used in everyday legal practice including professionalisms as a part of legal jargon (cf. Galinski 1982: 189 and Tiersma 1999: 109). Generally speaking, a descriptive term can never be a full synonym for its

12 From Greek: plesio- means “near”.

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prescriptive counterpart as their distributional characteristics differ (although their intension may be identical or very close). The question arises whether translation of a prescriptive term in the source text with a descriptive term in the target language falls within the ambit of near or partial equivalence (cf. Šarčević above), i.e. whether the type of discourse where a particular terminological unit is used should be considered its conceptual essential element, or whether it is reduced to its accidentals, and the difference in its distribution would diminish its degree of equivalence. The following example provides one prescriptive term and its three descriptive counterparts.

Identification of the nature of terminological synonyms would be the crucial issue for a translator to find their adequate equivalents in the target legal system.

Example 4 Lapse of time or statute of limitation clauses are prevalent as well. …. Under some treaties the applicable law is that of the requested state, in others that of the requesting state; under some treaties extradition is precluded if either state’s statute of limitations has run. When a treaty provides for a time-bar only under the law of the requesting state, or only under the law of the requested state, United States courts have held that time-bar of the state not mentioned does not bar extradition. Left unsaid is the fact that some treaties declare in no uncertain terms that the passage of time is no bar to extradition.

Statute of limitation is a “pure” prescriptive common law term denoting the concept (or the legal institution) dating back to the Roman Empire. Lapse of time and time-bar are used in various legal settings and as such form descriptive terms with the same intension (meaning components) as statute of limitation. Unlike lapse of time, which is an established terminological unit, passage of time attains certain intensional terminological characteristics only in the co-text and context above. However, all four terminological synonyms denote the same concept; the translator should look for the same concept in the target legal system, then for its terminological denotation and potential (full or partial) synonyms; subsequently, he would identify the degree of equivalence between synonyms in the source text and their potential matches in target law. Czech law, for example, has just one prescriptive term promlčení that would be used in all four occurrences should the text above be translated into Czech; any translational “creativity” may lead to interpretive difficulties.

4.3 Synonymical chains

A special feature of common law terminology hinging on synonymy is an extensive usage of terminological doublets, triplets and synonymical chains; although doublets and triplets differ from synonymical chains in that the former represent more or less stable combination of two and three terms respectively and the latter may be combined ad hoc to serve a particular legal context, they all are a series of synonyms whether linking two, three or more lexical units having the same or similar meaning serving the special (and intended) purpose of making the sense of the utterance as clear as practicable and its interpretation as unequivocal as possible. As Garner (1995: 292) notes “amplification by synonym has long been ... a part of the language of law” tracing its beginning back to the English Middle Ages and Renaissance when “synonymia was a common figure of


speech.” One reason for using such paired or multiplied synonyms historically subsisted in their rhetorical specialty but the other, and more significant, reason has been lawyers´ striving to arrange for as precise and accurate understanding of their statements as possible, which sometimes invokes the opposite effect. Phillip, academic jurist and practising lawyer, in his comment on legal terminology states (2003: 154): “Typical of the legal text, more a quirk than a characteristic, are the near-synonyms clustering around these [dispone, bequeath, consent] performative terms.” Needless to say, the translator should always be alert should he or she find a chain of apparently synonymical lexical units in the source English text originating in common law. Not much problem is caused by prepositional doublets such as by and between or by and with since prepositions collocate with particular functional words usually in a different way in the source language and in the target language; the choice of TL prepositions will be directed by TL equivalents of SL functional words. However, a chain of synonymical verbs, nouns or their combination may pose a dilemma for the translator whether to transmit to TL all elements in the chain and to what extent such transmission may be bound by the meaning of the chain as a whole and not by its individual components. The following examples will be analysed from the translator´s perspective.

Classical specimens of doublets composed of full synonyms which may be freely translated by one TL equivalent are not very numerous in common law English. Example 5 illustrates three different occurrences (A, B, and C) of verbal doublets.

Example 5 A. This Loan Agreement ("Agreement"), made and entered into on this fifth day of October, 1997, and made effective as of October 13, 1997.

Phrases to make an agreement and to enter into agreement have fully identical meaning suggesting that parties have created their relationship and imposed enforceable obligations upon each other. These two phrases have been elliptically combined into one verbal doublet preserving the meaning of its components; therefore a TL equivalent formed by one verb only is a must where the target legal system does not possess terminological verbal synonyms for this particular act of forming a contract.

B. This instrument is to be construed and interpreted as a general power of attorney.

Generally speaking, to construe a text requires the same mental activities to be pursued as are done with to interpret a text. These two verbs very often serve their mutual dictionary explanations. Most lawyers admit that these two verbs, as well as their nominal derivatives construction and interpretation have identical meaning in their practical applications, i.e. they are full synonyms; however, there are jurisprudential contexts, such as various theoretical approaches to statutory interpretation where interpretation is confined to individual provision of a statute whilst construction applies to the statute as whole. Again, where the target legal system is free of such synonyms the only option for the translator would be to use just one TL equivalent.

Partial synonyms have already been mentioned. The following use of restrict and limit may serve as illustration of their practical application.

44 Marta Chromá

C. The failure to enumerate a specific item, power, or authority does not restrict nor limit my attorney-in-fact from doing them.

Comparing the dictionary definitions (Black´s Law Dictionary 9th ed.) of restrict (to limit or qualify) and limit (to restrict or restrain) suggests that there is a marginal difference in their meaning. However, their distribution, and the distribution of their derived words (nouns, adjectives and participles) may slightly differ in various legal contexts as they are not commonly exchangeable. Here the translator may use a TL paraphrase of “does not restrict in any manner ...”.

More complex doublets and synonymical chains are illustrated by the following examples.

Example 6 Seller further warrants to Buyer that Seller will fully defend, protect, indemnify, and hold harmless the Buyer and Buyer's lawful successors and assigns from any adverse claim thereto.

The underlined synonymical chain splits into two parts: defend, protect and indemnify and hold harmless. Whilst in the former pair most languages can freely find their legal equivalent for either SL term and the translator may use them accordingly, the latter pair is more controversial for translation. The verb indemnify has a triple definition according to a particular context: 1. to reimburse someone for a loss suffered because of a third party´s or one´s own act or default; 2. to promise to reimburse for such a loss; 3. to give security against such a loss. Each number designates a different degree of solving the consequences of a loss, from a direct payment in one, through committing oneself to pay in two, to pledging property or money to substantiate the intent to pay should a loss occur in three. The phrase to hold harmless means “to absolve (another party) from any responsibility for damage or other liability arising from the transaction”. Although this definition fully corresponds with just the first meaning of indemnify we tend to claim that the consequences of both situations – indemnify in its triple meaning and hold harmless – are identical as no expenditures resulting from an adverse claim against the object of the sale may be incurred by the Buyer and should they be the Seller must reimburse the Buyer. In this sense the two terminological units may be translated by one TL equivalent where the target law seems to be deficient in synonyms for the same legal institution.

Example 7 I grant to my attorney-in-fact the full |power and authority| to |do and perform| |all and every| |act and thing| |required and proper| to be done in the exercise of any of the |rights and powers| granted herein as fully as I might do.

This is the granting clause in a general power of attorney serving here as an etalon of what Garner calls “ritual language” (1995: 294). The clause is composed of 44 words of which 18 form doublets; and each doublet has no other role but to convey the serious and solemn character of the clause as it is to notify third parties of the relationship between the principal and the agent. Although each doublet may be reduced to only one TL equivalent the discursive role of a power of attorney in the target legal system may require a similar ceremonious form of the target (ritual) language. On the other hand, for


example, Czech law prescribes quite a concise form of a general POA; coupling Czech synonyms for English doublets would be considered redundant and may be confusing.

4.4 Synonyms in dictionaries

A dictionary of synonyms or thesaurus may be a useful reference source for translating general or literary texts. Although there are legal thesauri (such as Burton´s Legal Thesaurus 1998, New York: McGraw-Hill, or those provided via the Internet) a legal translator should always be aware of one principle applicable to the use of legal terminology by lawyers: they tend to see a new concept behind a new (different) term. This results in another principle applicable to the use of synonyms in legal translation: the translator should not be creative in that he or she uses as many synonyms as possible in order to make the text less boring and to show he or she can play with the language. As suggested earlier, there are not many full synonyms with the same intension (meaning traits) and distribution (potential to be used in the same contexts), causal link – causal connection – causal nexus being repeated as an example; whatever the SL term materializing the source law concept may be, any of the triplet can be used as the TL equivalent in any context. Other strings of synonyms offered as equivalents by various translational legal dictionaries will not offer an unambiguous option.

Example 8 term – condition – warranty

These three terms are partial synonyms as their intension is usually very close to each other but there are contexts where they may not be used interchangeably and each term represents an individual concept. Essentially, a term is any provision forming part of a contract and is mostly used in plural (terms) as limiting stipulations or clauses in a contract. Terms may be either a condition or a warranty depending on their importance. The former is a term of contract under which one party is bound to do a particular thing; a failure on his or her part to perform the promised act constitutes a breach of contract and gives rise to liability for the breach. A warranty is a lesser, subsidiary term of the contract; a breach of a warranty gives rise to liability for damage caused by, for example, a defective product and as such cannot terminate the performance of the contract. It should be noted that doublet terms and conditions is among the most common redundancies in legal drafting (Garner 1995: 872). This doublet is usually used as a subheading to identify the part in a contract where all conditions are stipulated; it can be rephrased as contractual terms and translated to the TL accordingly.

Example 9 an act – a law – a statute – an ordinance – a regulation – legislation

Burton´s Legal Thesaurus provides the chain of 21 (English + 2 French) terms considered to be synonyms of the noun act. However close their intension may be, their distribution significantly differs. The name of a piece of legislation approved by a

46 Marta Chromá

parliament will contain Act and never any other member of the string; a law is a generic term denoting any piece of legislation passed by parliament13; a statute is an original common law term distinguishing a written law passed by parliament from case law established by precedents and today can be used interchangeably with a law;14 today an ordinance denotes a municipal regulation under US law but, historically, it was any authoritative rule although of a less permanent nature than a law. A regulation15 is any express rule usually reduced to writing and issued by any competent and authoritative body (from a local council to parliament). Legislation is only an uncountable noun although it may denote the body of laws as well as an individual statute depending on the context. 5. Polysemy in legal terminology

Whilst synonymy hinges on the relations among lexical units, polysemy applies to one lexical unit possessing multiple meanings. In this sense, polysemy is quite close to homonymy but the origin of polysemic and homonymous words differ. Traditional understanding of homonymy (or contrastive ambiguity in Pustejovsky´s understanding, 1996: 2), as opposed to polysemy (or complementary ambiguity), is that homonyms have no common etymological roots or basis whereas polysemes have developed from one common form and acquired different or modified meanings through their devolution. We would maintain Poštolková’s assumption (1983: 24, 27) that terminological homonyms, should these be found, are the same lexical units having an incoherent term-to-concept relation and used in different branches of science. Therefore, we argue that pure homonymy within one legal system exists in neither legal English nor legal Czech. The problem that lawyers as well as translators face is extensive polysemy resulting from a general tendency in the languages to assign new meanings to the existing vocabulary, i.e. its tendency to sense extension. A polysemous term has several shades of meaning, more or less clearly separable but with a basis in similarity (Malmkjaer 2005: 108). Riggs (1982: 160), (1993: 207), in explaining the substance of polysemy, expands the classification claiming that it is valence that denotes the type of term-to-concept relationship: when a word has one and only one meaning, it may be called univalent (or monosemic), and when it has two or more meanings it is multivalent (polysemic or polysemous); a multivalent (polysemous) term that has only one meaning within a given discourse community can be called unequivocal, whereas when it has several meanings in such a community, it is properly called equivocal. An unambiguous use of an equivocal term may be achieved where writers supply contextual clues to show which of its possible meanings is intended. The simplest contextual hint may be a premodifying classifier attached to the noun term, such as arrest warrant or share

13 Except for some Australian local governments calling their community ordinances local laws. 14 It should be noted, however, that Statute is also a concrete name given to a legislative

instrument in Australia. 15 Regulation may also be an uncountable noun expressing the process of controlling by rule or the

act of regulating. Should the European Union be mentioned in this context regulation denotes a specific type of EU secondary legislation directly applicable to all EU member states.


warrant instead of a sole warrant, or a postmodifying qualifier, such as writ of execution or writ of summons contextualizing the head term writ.

Identification of polysemic expressions in a legal text is difficult, if not impossible, without a sufficient knowledge of the respective legal issue and without a reasonable context available which helps delineate the topic, a branch of law, text-type, etc. For example, disposition has three (main) separable meanings in common law:

1. the act of transferring something to another´s possession (e.g. testamentary disposition);

2. a final settlement of a case by court (in this sense it is more widely used in the USA; in the UK this term is usually confined to decisions of juvenile courts);

3. a provision in a statute (e.g. general dispositions). Possibly the fourth meaning (although not very frequent) can be mentioned:

4. personal temperament of traits of character. All four meanings will require different TL equivalents reflecting on the principles of target law; otherwise the extent of ambiguity in the target text may rise. Čermák (1995: 244) speaks of contrastive polysemy (i.e. translational or bilingual) which should be taken into account particularly by lexicographers compiling bilingual dictionaries.

Example 10 Section 1. General Dispositions Art. 1415. Regulation by agreement among coheirs or by testamentary disposition

Meanings 3 and 1 outlined in Example 11 above are used in the heading and subheading of one provision in the Louisiana Civil Code 1996 respectively. Premodifiers will help the translator correctly interpret (and disambiguate) the meaning of either one. The meaning of the phrase general dispositions is contextualized primarily by its formal location in the text – it is placed in the heading of a longer passage of the statutory section followed by an outline of basic principles applicable; whilst the classifier testamentary precisely determines the context of the whole terminological phrase.

Example 11 If both parties to a divorce action also request the court in writing to order disposition of marital property acquired by either or both of the parties to the divorce prior to January 1, 1972, or nonmarital property owned by the parties to the divorce action, the court shall also order disposition in accordance with subsection 1. (Maine Revised Statutes, §953. Disposition of property)

Meaning 3 applies to both occurrences of disposition in this provision, the postmodifying qualifier of (marital) property being the sense clue in any legal context. Although the translational equivalents of disposition used here and that in the phrase testamentary disposition are likely to differ, as is the case of Czech law (‘nakládání’ and ‘pořízení’ respectively, although they are close synonyms in general Czech), the difference subsists in a “ritual” nature of the language used in last wills rather than in the dissimilarity of meaning.

Example 12 They [students] found that only legal factors, including the number of arrests and detention prior to the adjudicatory hearing, predicted final disposition; [...]

48 Marta Chromá

The meaning of disposition here is the settlement of a case by court. There are several hints leading to the proper sense interpretation: the institutions of arrest, detention, adjudicatory hearing suggest the context of judicial (criminal) procedure resulting in a court decision. Moreover, the classifier final may also help discriminate meanings as final disposition is sometimes considered a terminological unit of its own.

There are many terminological polysemes used in legal English and requiring very accurate and precise choice of equivalents in the target language and legal system; some are quite famous, such as sanction meaning either an authoritative approval or penalty, homeless person being either without any place to live or without state nationality under international law, or procurement denoting either a business transaction with the state (government) or arranging for sexual services for someone else. Other are quite concealed: classifiers voluntary and involuntary in two terminological sets – voluntary/involuntary manslaughter and voluntary/involuntary bankruptcy. The classifier in the former terminological phrase denotes that the killer was either aware of what he or she was doing and of the consequences of such act (voluntary manslaughter) or he was not and the act was committed for example by accident; the latter terminological set suggests that the petition for a bankruptcy order is filed either by the debtor (voluntary petition) or by the creditor (involuntary petition). Target language equivalents should reflect on similar legal concepts in the target legal system (conceptual or functional equivalents); if they are missing the translator should use an explicative approach.

6. Conclusion

The specificity of bijural translation subsists in that it belongs to a wider category of intersemiotic translation: one dual semiotic system (source language expressing source law) is transferred into another dual semiotic system (target language expressing target law). The cultural rootedness of both the language and the law means that full, or absolute, equivalence between the two dual semiotic systems (as well as between the source legal texts and the target legal text) can hardly be found, or even approximated. The meaning of a legal term, whether mononymous or multiverbal, monosemous or polysemous, unique or member of a synonymical string, is context-dependent; its identification depends on the translator´s knowledge of source law, and the choice of its equivalent in the target language is fully dependent upon the translator´s knowledge of target law. In other words, translator´s bijural literacy is a decisive factor in his competent use of legal synonyms and correct identification of polysemous terms.

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1971.


MULTILINGUAL LEGISLATION IN THE EUROPEAN UNION. EU AND NATIONAL LEGISLATIVE-LANGUAGE

STYLES AND TERMINOLOGY COLIN ROBERTSON1 [email protected] Council of the European Union, Brussels, Belgium

Abstract EU law is multilingual and multi-cultural. It is initially drafted in one language, now frequently English, often by non-native speakers and then translated into the other EU languages. Amendments may be proposed that are drafted in a different language. The result is a single multilingual text created in 23 language versions that are authentic within the context of the EU legal order. These circumstances have led EU legal language to develop its own terminology and legislative style as a separate genre.

One question is to identify different national cultural drafting styles and traditions that lie behind the creation of EU legislative texts and terminology. The Member State traditions vary, yet they merge in the EU legislative texts. In order to assist in the understanding of EU legislative texts, it is useful to reflect on how they are constructed and the features and requirements lying behind their creation, interpretation and transposition.

One approach is to consider a specific piece of EU text in a range of languages and consider how the text is reproduced in each language in terms of structure and terminology. Since the original draft is frequently made by non-native speakers and then translated into the other EU languages, which are bound by the structure of the base version, we obtain little information from it about divergent national linguistic and legislative methods. However, if the EU text is a directive which is transposed into national law, we should be able also to look at the national implementing legislation intended to implement the directive. The implementing texts are produced within the national legal context and, one assumes, aim at similar results, as laid down by the directive. Thus it could be expected that they should provide vehicles for study between the national systems and between each national system and the EU legal order. The paper explores these ideas to see where they lead. Key words: multilingual legislation, national law, national language styles, environmental law, terminology

This paper derives from a presentation given at the Workshop on legal terminology LawTerm 2010, 1st International Workshop on Legal Terminology hosted by the Department of English Language and Applied Linguistics, University of Łódź 28-29 May 2010 . It builds on ideas set out in several papers (Robertson 1999, 2009a, 2009b, 1 The views set out in this paper are entirely personal to the author.

52 Colin Robertson

2010a, and 2010b) and is based on personal experience working as a legal-linguistic expert in EU institutions, in particular the Council of the European Union. All comments are, however, purely personal. 1. EU context

The purpose here is to explore the nature of legal terminology of the European Union and its relationship to national legal terminology from the point of view of multiple languages and legal cultures. This information is important because EU legislative texts are being drawn up and negotiated on a regular basis for application and implementation in the national legal systems of the member states. In the case of directives under the Treaty on the functioning of the European Union ("TFEU") the EU texts require to be transposed directly into national law. This stems from the wording of the third paragraph of Article 288 of that Treaty which states:

“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”

Implementation (also referred to as “transposition”) frequently involves the drawing up of new national legislation. This situation creates a pragmatic context in which, on a regular basis, the EU terminology comes into contrast with the terminology of the national legal systems. The concepts in EU directives, expressed in all the language versions, fall to be transferred into the national legal system of each member state using terms selected for, and adapted to, each national legal context.

EU legislative texts are created within a multi-cultural and multi-lingual context.The linguistic regime is established pursuant to Article 342 TFEU which states:

“The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations.”

The focus in this paper is on legislative and not court texts, so no mention will be made of the language rules applying to the Court of Justice. (For information: Court of Justice). The Council exercised its powers in Regulation No 1 determining the languages to be used by the EEC in 1958 (Regulation No 1). The act has been continuously updated and currently lists 23 languages. (For background: Interinstitutional Style Guide, paragraph 7.2.4). Each language version has the same formal status as an original ("authentic") text for the purposes of judicial interpretation.

This multilingual character has an impact on the terminology employed and the meanings which are attributed, often by means of express definitions, which can be explored and made clearer. In many cases EU legislative texts themselves reflect previously negotiated international agreements and this means that in addition to considerations of EU and national terminology one must frequently take into account the terminology of international texts which have been negotiated by parties both inside and outside the European Union, in the wider world, for example in the context of the World Trade Organization or the United Nations. This reflection leads to the thought that the

Multilingual Legislation in the European Union 53

terminology may be subjected to a number of influences and pressures, coming from different directions and that there may be an impact on meanings, and interpretations to be given, which can vary in subtle ways according to the particular context. The terminology can be seen as existing within a kind of ‘matrix’ of inter-connecting legal orders (national law, EU law, international law) and then it becomes a role for the courts and judges to steer a path through this matrix in individual cases as they come before them and to decide on the meanings to be given to specific terms and their application to the facts of cases brought before them for resolution.

It is difficult to understand implications without examples and so it is proposed in this paper to focus on an individual text. There are many possible candidate texts from the many fields of policy within which the European Union is active. Some fields are narrow and the range of terminology is specialised and focused, such as customs tariffs, value-added tax or social security (http://europa.eu/index_en.htm). In certain cases the EU texts exist in the form of regulations, for example customs tariffs (http://europa.eu/legislation_summaries/customs/l11003_en.htm) and social security (http://ec.europa.eu/social/main.jsp?catId=867&langId=en).

The second paragraph of Article 288 TFEU states: "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states."

That means that regulations resemble national laws and apply directly; logically there should be no national implementing legislation to transpose them, although in reality there are frequently incidental details which have to be determined such as naming the body which performs the role of "competent authority" and other practical matters. We can note in passing that this expression "competent authority" is frequently found in EU legislsative texts. It is an empty shell which indicates that a function is to be undertaken by a national body, but without naming them. The national legislator picks up the reference and gives, and is free to change, the identity for the national territory. Here we see how EU terminology is selected to be open and, in a sense empty, while being closed in terms of the range of possible meanings, with the member states filling in the precise meanings. Thus the EU (multilingual) text and the national acts become fused within a continuous discourse. EU legislative acts have to be seen within this wider discourse environment.

With an EU regulation, the logical corollary for EU terminology is that the EU terms apply directly in the national legal systems and carry a common EU meaning (except for the empty terms whose meaning is laid down in national law) backed up by judicial interpretation by the Court of Justice of the European Union in order to ensure uniformity. The EU terms should displace any competing national terms within the fields in which the EU regulations apply. For that reason regulations are the strongest form of EU legislative instrument. On the other hand, the terminology used in an EU text must come from somewhere and, while neologisms are created ("sheepmeat", "goatmeat"), it is frequently borrowed from national legal systems, or international law, together with adjustments and modifications in meaning to fit within the EU context, which is different from the national and internationallaw contexts. Regulations have the value of being generally precise and aiming at embracing all aspects of the domain covered, as befits a

54 Colin Robertson

directly applicable law, but since the EU text displaces the national texts, it is not so easy to make thematic linguistic comaparisons between EU and national law texts. That makes them less useful if one wishes precisely to study these differences. On the other hand, with the EU directive there is a thematic continuity because the exercise is precisely to have a link between the EU directive and the national law texts that give effect to it. With these considerations in mind, it seems convenient to focus on the EU directive where national implementation is a specific requirement.

A few more preliminary observations may be made. All terminology to be found in EU legislative texts can be thought of as being legal simply by virtue of being included in a legal document, but if one looks closer, one can make distinctions between the types of terms used. Thus, there are terms which are used only for legal purposes; for example, names of EU legal instruments ("regulation", "directive", "statute"), names of courts ("Court of Justice", "General Court"), terms used in legislative or judicial procedures ("enter into force", "enact", "transpose"). To that we might perhaps add the terminology of certain specialised fields of law, in particular Contract Law as it is central to legal activity and social life ("breach of contract", "capacity to contract").

On the other hand, there are terms and expressions that appear in legislative texts but which also appear and have meaning in non-legal texts. This is typically the case for matters relating to policy domains and changes to be made within them by a legal act. Thus for example there are agricultural terms in texts dealing with agricultural matters (sheep, goats, beef, cereals…), economic terms for matters of an economic nature, medical terms for medical matters, and so on. That reflects the fact that terms in these fields are used predominantly in non-legal texts relating to the field in question, whether it be agriculture, economics, or medicine, to take the examples given. Thus, the terminology in legal texts varies according to the policy domains covered by the act, as well as the legal operations being performed by it. However, among EU legal texts which may contain some of the widest variations in range of terminology are perhaps those relating to environmental law, since environmental issues tend to be complex and frequently involve a balancing of many different considerations and policies. There are frequently conflicts of interest to be reconciled, such as economic and employment interests as opposed to preserving an undeveloped and wild landscape or clean air. These conflicts, and the compromises negotiated, are reflected in the legal texts, both in their structure and in the choice of terminology and they can be identified through a careful linguistic, and legal, analysis of the texts.

One of the earliest, and perhaps ‘simplest’ of the EU environmental law texts is the Wild Birds Directive and it is proposed to take this directive to serve as a practical example for exploring EU multilingual legal terminology, while at the same time using it to give a slight introduction to EU environmental legal texts. This reflects the dual nature of practical examples as a tool to illustrate theoretical points, while at the same time serving to convey information about the contents of the field in question. Before considering the directive, however, it is necessary to indicate the wider EU context in which it functions as a legislative text and which gives it its status and force. This reflects another feature of legal language, namely that any individual text invisibly reflects a whole mass of background legal rules and philosophy (and facts) that are present and influence the contents of the text but are not made explicit from the face of the text. It is only when one asks ‘why?’ repeatedly that these background factors start to


emerge. For the EU drafter, the question arises repeatedly: de we need to mention a particular matter specifically or not.

Let's take a simple example, does one need to insert at the end of an EU instrument the words "This (act) shall be published in the Official Journal."? There may, or may not, be a need to publish which is connected to the facts, such as a decision addressed to only one person or a regulation addressed to all, but there is also a legal question. If the governing treaty and rules made under it already provide an obligation to publish, then this will happen without a need to say so explicitly in the act, so the sentence should be omitted and it would be inappropriate to include it. On the other hand, if there are no such rules but there is a need (for whatever reason) to publish, then the sentence should be included if publication is intended. That is the viewpoint of the drafter who can only know what to draft by knowing other legal texts. On the other hand, from the viewpoint of the reader, the presence or absence of this sentence is a sign regarding the background legal situation; so it is possible to obtain deeper levels of information working backwards from the face of the text, provided one knows the logic of the system.

To summarise, while a lot of information can be obtained from a linguistic study of a legal text by itself, the reality is that factors governing its structure lie outside it and the text can only be understood fully if all of these elements are identified. That means specialist knowledge; not only specialist legal knowledge, but also knowledge of the policy field in question. That means placing the text in context and, for legal acts, it means that inter-textuality and the link to other texts in the legal system, and the thematic domain, is paramount. We can see that in the EU legal context as regards the Wild Birds Directive. This applies to each language version of the EU legal act.

2. EU Wild Birds Directive

With those thoughts in mind we can move to consider the example of the EU Wild Birds Directive. This was one of the first environmental directives and dates from 1979. It can be noted in passing that much of the legislation in the member states has its origin in EU legislation. (http://ec.europa.eu/environment) The original text has been amended and recently a new codified /consolidated text has been issued. However, before citing the title, it is worth making a short terminology detour becasue we have here an example of the way in which EU terminology in English has diverged from classic English terminology. In classic English legal usage, when a series of legislative texts in which a base text has been amended with insertions and deletions is tidied up by producing a new text inserting all the additions and changes, this is called "consolidation". However, in EU language the exercise is termed "codification". Classic English usage reserves "codification" for organising or collecting together laws, rules or procedures into a system or code which usually entails rewriting in a different way and setting out a series of principles, like the French Code Napoleon (Code civil) or the British Highway Code. However, in the EU context the term "codification" (in French) could be reproduced closely across the various languages and thereby reflect a singular EU concept underlining the conceptual singularity of multilingual EU law. In the process, the English terminology was aligned on the French. This is an example of the way in which EU language, for all language versions, can depart from the national language and means

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that one can think of each EU language as being like a ‘dialect’ form of the language in question.

With respect to the English language, which tends now to be the main language for negotiation, one can add some additional reflections. The original English versions of the EEC texts were historically translations, principally from French, and that in effect means that they were a form of Civil Law English; the subsequent English EU texts have been built on that Civil Law foundation and this influences both terminology and drafting style. For example, the Treaty establishing the European Coal and Steel Community was authentic only in French; the EEC and EAEC treaties were originally framed in four languages: Dutch, French, German, Italian. This can be seen from the final articles of each treaty in its original form. From a legal point of view the form of drafting of Common Law English legislative texts differs from that of Civil Law traditions; notably through a Common Law tendency towards more precision and detail as opposed to a broader and more general Civil Law exposition of rules and principles. (Gotti 2008 ) However, the nature of the field and policy to be implemented also has a bearing: a text on tax will inevitably be detailed and precise whereas a text on culture may be less so.

Taking all the individual elements relating to the way in which EU legislative texts are constructed, combined with Civil Law English and a harmonising of terms across languages to reflect conceptual singularity, it becomes possible to analyse and understand why and how EU texts look and feel odd and unfamiliar to native speakers in the member states–in all the languages. This was discussed for EU English in Mollin 2006. And we have not even mentioned the economic orientation of EU legislative texts and market theory.

The full title of theWild Birds Directive is: "Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version)."

For reasons of space, it is not possible to reproduce the full text of the Directive here, nor to analyse all its contents in all languages. The present purpose is oriented towards legal terminology and exploring issues relating to linguistic style across and between languages. Are there differences in drafting style and use of terminology between languages? Can we make use of the different language versions of EU legislative texts as a means for exploring these differences? And what happens when it comes to transposition? The advantage of using EU texts to work on is that they are easily accessible from the Europea website http://europa.eu. To explore the issues it is proposed to take a selection of texts from different parts of the Directive and to explore four language versions which can be taken as a small sample chosen to cover most of the main linguistic family groups among the EU languages: English, French, German, Slovak.

The Directive, in summary, has as its purpose to enhance the conservation of wild birds. The text sets out provisions on their protection, management and control. It provides for the protection of eggs, nests and habitats and sets out the duties and obligations to be complied with by the member states. There are also derogations, notably in relation to hunting issues. Different rules apply to different species and there are lists in annexes which make clear which rules apply to which species. Lastly, the


Directive contains provisions on the review of the Directive, on its amendment and committee procedures connected with the functioning of the Directive.

In statistical terms, linked to the structure of the Directive, we can note that there are five structural parts, which is typical for EU directives: title, citations, recitals, articles, annexes. Each part has a precise role in the text and the drafting is linked to role and is highly stylised in presentation and formulation. The title makes clear the subject matter (conservation of wild birds), the type of act (directive), the authors (European Parliament and Council) and the date of adoption (30 November 2009). The citations indicate the treaty base and formal procedures connected to the preparation of the act. Here we note that it was Article 175 of the EC Treaty, predecessor to the TFEU. The TFEU Article numbering is different and we need to know that by virtue of the Lisbon Treaty and its Table of Eqivalences, the relevant Treaty base is now Article 192 TFEU. The recitals introduce the act, explain its purpose and what it is seeking to achieve, as well as justifying it and giving reasons. (in French: "motivation"). The articles contain the body of the act, the operative part /enacting provisions; (i.e. the commands and instructions. The annexes contain technical matters which are usually too lengthy to include conveniently in the body of the text.

Typically, annexes contain language which is not legal, for example in this Directive there are lists of birds, using their scientific names. The Wild Birds directive is short: it has four citations, eighteen recitals, twenty articles and seven annexes. Guidance on EU legislative drafting is provided inter alia in the Interinstitutional Style Guide, Interinstitutional Agreement of 22 December 1998 and the Joint Practical Guide. (See also: Gallas 1999, Morgan 1982, Robinson 2008).

To illustrate the language style of different parts of the act we can select an example from the recitals and an example from the articles, in each case in the four languages proposed. Thus, Recital (9) of the Directive states: English

“In order to prevent commercial interests from exerting a possible harmful pressure on exploitation levels, it is necessary to impose a general ban on marketing and to restrict all derogation to those species whose biological status so permits, account being taken of the specific conditions obtaining in the different regions.”

French

“Pour éviter que les intérêts commerciaux n’exercent une pression nocive éventuelle sur les niveaux de prélèvement, il est nécessaire d’instaurer une interdiction générale de commercialisation et de limiter toute dérogation aux seules espèces dont le statut biologique le permet, compte tenu des conditions spécifiques qui prévalent dans les différentes régions.”

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German

"Damit sich kommerzielle Interessen nicht negativ auf den Umfang der Entnahme auswirken können, sollte die Vermarktung allgemein verboten werden und jedwede Ausnahmeregelung ausschließlich auf diejenigen Vogelarten beschränkt werden, deren biologischer Status dies zulässt; hierbei sollte den besonderen Gegebenheiten in den verschiedenen Gegenden Rechnung getragen werden."

Slovak

"Na to, aby sa zabránilo obchodným záujmom vyvinúť možný škodlivý tlak na stupeň využívania, je nevyhnutné zaviesť všeobecný zákaz obchodovania a obmedziť všetky výnimky len na druhy, ktorých biologický stav to umožňuje, berúc do úvahy špecifické podmienky v rôznych oblastiach."

We can reflect on these texts, note their features and ask some questions. Which text reads most smoothly? Which looks like it might have been the original, and why? Does each text convey the same information? Do they all follow the same syntax structure? Which domains do the terms come from – law, economics, biology? Do the equivalent terms used each have the same meaning in each language. Here we can be asking whether the equivalent words in the different language versions have the same EU meaning and also whether for each language the words would have the same meaning if used in a national context. In other words, how would a native speaker who knew about national law but not about EU law read and interpret the terms? This is a fundamental issue as it touches on the comprehensibility of EU texts by citizens unversed in EU law. Another way of framing the question is to ask whether the meaning of each term in each language version is specific to the EU context or goes beyond it, which was touched on previously.

If we look at the texts, we see first that each of them comprises a single sentence. This reflects the basic synoptic approach of EU texts: the language versions match each other structurally and in content. Three language versions begin with a subordinate clause, followed by a main clause and end with a qualifying phrase. The German version, however, departs from that and has a more complex structure. In particular a semi-colon is inserted between "zulässt" and "hierbei". This is a sign that the text is a translation and that the translator preferred not to follow the same syntactic structure as the source language version. Use of the semi-colon allowed the sentence format to be preserved while expressing the same message. We can infer that if the text had been originally drafted in German, it might have been formulated differently.

Each text is introduced by a conditional expression. ("In order to prevent …", "Pour éviter que …", "Damit …", "Na to, aby…"). The versions then follow their own grammatical forms which differ. In the main clause, we can observe the use of conditional verb forms ("it is necessary to", "il est nécessaire d’", "sollte", "je nevyhnutné"). Modern EU legislative texts in English typically use the term "should", or an equivalent expression, as here, in recitals to introduce topics and to act as a marker, or sign–we are also in the field of semiotics–that the text of a recital is not intended to be an enacting provision (Interinstitutional Agreement, guideline 10), which is a role reserved for articles (guideline 12). The language is stylised and brings together in one sentence a


range of topics that in ordinary language might be expressed in more than one sentence. It is language that introduces the articles and provides reasons and justifications, as succinctly as possible. It is not laying down a rule. If we look at the terminology in English, the concepts are not particularly legal: (commercial interests, harmful pressure, exploitation, general ban, marketing, derogation, species, biological status, specific conditions, regions). They are a mixture of economic and biological terms. They belong to the wider category of non-legal terms that overlap with other types of text discussed above.

A further step could be to analyse the language versions to see if each carries exactly the same nuances. This takes us into mulilingual interpretation. However, recitals are ancillary to the articles and so, to identify the action intended, one should first read and interpret the articles themmselves and then, if there are problems in understanding what is intended, one can look back again at the recitals to see what were the reasons for the act and the articles in question; in this way the recitals become an aid to interpreting the articles and the directive generally. This is legal method; there is a legal way of reading the texts. At first sight the texts here seem to match and it is not proposed to proceed further on this point.

What inferences can be drawn? Each language seems to use the grammar, spelling and writing rules of the (national) language, but with adaptations to the EU context. The terminology seems fairly standard and part of national language too. The syntax is specific to the EU context; although maybe national legal texts are written in the same way for some language versions. If we hope to find out more about differences between drafting in the different languages by using EU texts as a source study, it is becoming evident that there are drawbacks; we cannot be sure how far the language versions are expressing themselves freely and naturally and how far they are being forced into a predetermined rigid mold, created by the base language version (whichever it may be). The example of the semi-colon in the German version, taken together with the rest of the text suggests the latter. That is consistent with the ambition of EU legislative texts to present the same information in the same way in all languages and therefore to demonstrate unity in approach across all language versions. But it makes life complicated for translators and revisers at times.

Let’s now take an example of an article, to compare language style in the same four languages. Article 2 of the Wild Birds Directive states:

English

“Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.”

French

"Les États membres prennent toutes les mesures nécessaires pour maintenir ou adapter la population de toutes les espèces d’oiseaux visées à l’article 1 er à un niveau qui corresponde notamment aux exigences écologiques, scientifiques et culturelles, compte tenu des exigences économiques et récréationnelles."

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German

"Die Mitgliedstaaten treffen die erforderlichen Maßnahmen, um die Bestände aller unter Artikel 1 fallenden Vogelarten auf einem Stand zu halten oder auf einen Stand zu bringen, der insbesondere den ökologischen, wissenschaftlichen und kulturellen Erfordernissen entspricht, wobei den wirtschaftlichen und freizeitbedingten Erfordernissen Rechnung getragen wird."

Slovak

"Členské štáty prijmú opatrenia potrebné na zachovanie populácie druhov uvedených v článku 1 na úrovni, ktorá zodpovedá najmä ekologickým, vedeckým a kultúrnym požiadavkám, berúc do úvahy aj hospodárske a rekreačné požiadavky, alebo na prispôsobenie populácie týchto druhov tejto úrovni."

We can ask questions about the articles similar to those we asked about the recitals. The example proposed here is simple and there is a single sentence for the article. The subsequent articles in the Directive are more complex; some texts have extremely complex and subtle articles, and interpretation becomes difficult and complex, but the aim here is to try and remain on a simple level. The Article is essentially a single sentence, with qualifying elements, or at least it is in the French version. It reads smoothly: "… prennent … pour maintenir ou adapter … qui corresponde …compte tenu…". The English version is more awkward, in particular at the end: "…shall take … measures to maintain … which corresponds …while taking account … or to adapt…". The phrase "or to adapt..." begs the question of what it is an alternative to? We need to search the sentence for clues, or signs, as to meaning, which cover topics such as: grammar, syntax, logic, our knowledge of how the language works and our knowledge of the world ("commonsense"). The French version did not raise this doubt. Taking a multilingual approach we can search for meaning from the French text as well as the English and we can find an answer; but is it the correct one, that is to say intended, and which fits within the whole scheme of the act? For the present purposes, we might suspect that if the English text had been drafted in a national English language way from scratch, it might have been structured differently.

We can now look at the German version: "…treffen… um …zu halten oder …zu bringen, der … entspricht, wobei … getragen wird." The doubt we had for the English version is clarified, but the structure of the sentence is more complex, reflecting German syntax. The Slovak version seems to follow the English because it also contains the alternative at the end: "…prijmú … na zachovanie… ktorá zodpovedá…berúc do… alebo na prispôsobenie…." That suggests it may be a translation from the English, since Slovak accession came later, and if so one has a difference betwen the language versions; if we assume that the French version was the source and the German and English were translations, as seems lilely for a text from 1979, as well as from the evidence of the versions, then there is a single step remove between source and target langauge for those texts, but if the Slovak is a translation from the English, then there is perhaps a second step remove from the original source. (This is a consideration when a new language is being added to the EU acquis and implies a constant checking of all language versions.) We can turn now to the terminology of the article.


The text contains a command. This is reflected in English by the modal "shall" ("Member States shall take the requisite measures"). That conforms to classic English legal usage, although it is changing. (Williams 2006, 2008). In French ("prennent"), German ("treffen") and Slovak ("prijmú") it is a present tense indicative. That is believed to reflect national styles. There is however a residual ambiguity between statement of fact and statement of command, which "shall" avoids. The context should make clear what is intended. In terms of drafting style, the article looks like Civil Law drafting style (Gotti 2008), in view of the broad and general wording. The terminology is a mixture of domains, even in this short article. There are legal terms ("shall take", "measures", "referred to in Article1"), scientific terrms ("population", "species", "ecological", "scientific") and economic terms ("economic") . Another feature of the article is the use of references to other texts in order to avoid lengthy repetitions; the expression "referred to in article 1" performs this function, as do references to annexes elsewhere in the text. This is a typical feature of legal texts.

One language serves as a model (Robertson 2010a), the others follow that model. Sometimes, a translation may serve as a model for yet a further translation, in particularly when new languages are added when new states become members; we noted that for the Slovak version of Recital (9). Structure and terminology are set in the base language version and other languages adapt to them as well as they can; if necessary new terms are created. The language versions use national language, but not necessarily in the way it would be used in a national context. The EU context shapes and determines all the language versions structurally, syntactically, grammatically and sometimes for spelling, for example words in English ("cooperate" rather than "co-operate").

However, EU base texts are often drafted and negotiated by non-native speakers which means that terms and syntax may not exactly match native usage; that can create problems for translators who have been highly trained in the native terminology and syntax as it gives rise to an element of uncertainty as to the exact intended meaning of the text. It also means that sometimes texts may be grammatically correct but stylistically not in accordance with native usage, and there is some evidence of that in the examples studie above. Translators have to adapt to that; so do users of the texts. Yet strange wording, and ambiguity, is sometimes intended by the negotiators as the only means by which they can agree on a joint text, but then it means that they may be handing over the power of decision regarding meaning to the courts, in the event of a dispute. Another aspect is that some languages have difficulty handling ambiguous sentences and are forced to make interpretations as to meaning, which may be intended or not; German and Slavic languages are examples here, because of their systems of inflection. Lastly new terms are continuously being created and used in EU texts and frequently they are hard to translate. A favourite example is “gender mainstreaming”.

From the examples looked at, it looks as if it may not be possible to make clear identifications as regards the different linguistic and drafting styles of the various languages from EU texts alone, since the language versions are so closely bound together. However, it is not the case that the language versions do not reflect national styles and methods at all; they do. The EU terminology does not come from nowhere; it is derived from national legal and linguistic methods and styles, for example the use of the modal ‘shall’ in English is drawn from national drafting practice. But it is difficult to be able to identify clear dividing lines in view of the hybrid nature of EU legislation and

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the needs of multilingual drafting. To go further in studying differences in national linguistic practices, one should look at the various national pieces of legislation that have been produced, for example, in implementation of the EU Wild Birds Directive.

Conceptually, one could imagine that one starts with a single EU text in 23 languages, containing a single (in theory) set of policy instructions for implementation in all the member states according to their own domestic methods. One would then expect a single piece of national legislation dealing with all the issues together in a neat way, matching the Directive. That would mean that we would be able to obtain clearer information about national drafting styles and make comparisons. The approach would be rather like the studies of international arbitration law texts (Bhatia 2008).The bottom line is that to go further into the national context requires going into issues relating to transposition of EU directives. Is it possible to match up the EU directive with the national laws? Is transposition done on a one to one basis? That is to say, one EU directive transposed into one national law, so we can line up and compare all the national language versions?

3. Transposition from EU into national law

Let’s say a few more words on the EU directive. Of the five parts of the text (title, citation, recitals, articles and annexes) we have considered one title, one recital and one article. We have not looked at the annexes which are technical and do two things: first, they indicate the bird species covered by particular provisions of the act and the linkage of particular obligations to particular member states, for example as regards hunting rights. Secondly, because the text is a "codified" text which consolidates pervious texts into a single act, there are annexes that indicate the past texts of the act, the deadlines for transposition and the carry-over of old articles to the new text ("table of equivalences"). As regards the citations we can note that they have no verbs. They indicate the legal foundation of the text but do not by themselves undertake an action. For example, the first citation in the Wild Birds Directive in English is: "Having regard to Article 175(1) of the Treaty establishing the European Community" (Pre-Lisbon treaty text).

A directive may have just a few articles or a hundred of them (with a matching variation in the number of recitals) in a complex text. There may be higher level divisions grouping articles together according to themes under chapters, sections or parts, and there may be many lower level divisions of the articles where issues are complex and subdivisions into paragraphs, subparagraphs and points are required. The central element is the article in an EU text which sets out a unit of information. Typically articles are imagined as commands and use language of obligation, whether it be to confer rights or duties (conferring a right implies an obligation by others to respect it). The language versions are intended to convey the same information and are aligned to that end. Analysing the texts leads to questions about translation strategies, styles and equivalence of terminology. A certain amount of information about national legal language differences is obtained.

The EU directive can be thought of as an instruction to member states to change their laws in particular ways. It is legally binding as to result but the method is left to the member states. What does that mean in practice? We will stay with Wild Birds


Directive. Two EU terms of art in this area are "transpose" and "harmonise". The former denotes the carrying over and implementation of obligations, the latter the making of national laws of the member states the same or similar. Transposition takes place from the EU context towards and into the national context and the result is that the laws of the member states become harmonised.

Transposition implies: first, analysing the directive, interpreting it, understanding the intentions, objectives and methods, deconstructing it, discarding purely EU elements (such as EU committee procedures and EU review arrangements); second, making an analysis of national law point by point for each element in the directive and identifying whether the obligation is already respected or requires new national laws and if so what; third, constructing national texts within the national legislative framework in accordance with national rules on drafting (intertextually) in order to implement the EU policy.

The actual task of transposition is frequently complicated and involves many decisions. For example, whether simply to repeat the wording of a directive as a block of text embedded into national law, or whether to make a new detailed enactment which deconstructs every EU element and reconstructs them in specialised and technical ways, thereby departing radically from the appearance of the EU directive. Or something in between. Are the obligations already implemented in national law, so that no further action is needed? EU terms have EU meanings; can the same words be used? Do the same words have a sufficiently similar meaning so as to be capable of being used without attaching special definitions to them? Which language versions to work with? Do they all convey the same meaning? It is at this point that divergences in EU languages will start to have effects if national authorities take different versions and interpetations of the EU texts in order to adapt the national law. There is also a risk of the national legislator attaching national law meanings to the EU text. The national drafter must think about many things. The national legal act must conform to the national styles, methods and procedures. For example, the EU text, especially if a treaty text may require changes to the national constitution; or it may just be a case of deciding whether implementation is to take place by means of a a higher ranking law or a lower ranking implementing regulation. There is often a broader national policy dimension and the EU implementing part may be just one element of a wider set of changes being made at the national level for other reasons. The national drafter has to decide on the structure of the national act and on its terminology, which must be adapted to the national legal system. EU terms and expressions have to be adapted and fitted into the national context. The EU message has to be understood clearly so that it can be translated into the national context and since the EU text is multilingual all the language versions should logically be consulted. However, the national drafters will not understand all the language versions, so there is a risk of missing something.

What happens if they discover slight divergences? We saw a difference in presentation between language versions of Article 2 of the Wild Birds directive. Yet divergences can occur within the same language over time. Take the example where an EU text is written in the 1970’s and amended several times in following decades. An English drafter studies the English versions and finds that there have been changes in the terms and expressions used in succeeding versions and worries whether there is a change of meaning for the terms. However, an examination of the French versions of the same texts may reveal that the same terms and expressions were used and in repeated each

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time in French. So there is no problem for the French version. The French may have been the base language used for negotiation and the English may have been a translation. The policy remained constant. However, translation is not a purely scientific activity and English in particular is a language with many synonyms; different translators can choose different terms for the same source language word. The role of EU legal-linguistic revision is to spot and align these inconsistencies but sometimes they are not detected or may not be changed. The important point is that there can be an element of ‘fuzziness’ at times in the EU texts. This arrives first from hybridity stemming from intercultural negotiation and secondly from slight translation variations over time, or a desire to switch terminology, which also sometimes happens in the light of a better understanding of what is involved. These factors need to be built into the process of reading and interpreting the EU message.

4. National law context

If we wish to proceed further in making comparisons between different languages and between EU and national language and the process of transposition, we need to move into the national law context. In every case, national law is complex; there are highly developed political and administrative structures and levels (federal, länder/regions, local level). This affects who makes the acts as author. There are many domains of law: civil, criminal, property, contract, administrative, etc. There are many policy fields: competition, energy, finance, budget, family, social security, environment, etc (domains which are often codified, depending on the system). There is also ‘intertextuality’ in the shape of a network of interconnecting laws, court judgments, etc. There is also substantive law and procedural law; in general the EU texts aim at changing the rules of substantive law, but it may be that new methods and processes, in the form of procedures, are to be introduced. Law is also hierarchical and transposition may involve interventions at different levels.

We can return to the example of the wild Birds Directive and consider its transposition into the law of the member states. In theory we should be able to trace the EU obligations and language obligations through into the national texts and identify the linguistic and terminology choices. However, in order to do so we need first to find out which texts are relevant. That involves making searches and requesting information. Internet searches for implementation of the Wild Birds directive reveal that this task is not easy to achieve. For the UK, there are a range of texts and these include for England: The Wildlife & Countryside Act 1981 (as amended), The Conservation (Natural Habitats & c.) Regulations) 2010 (as amended), Offshore Marine Conservation (Natural Habitats & c.)Regulations 200, and other legislation related to the uses of land and sea. (http://www.jncc.gov.uk/page-1373). French environmental law is codified and set out in the Code de l'environnement (Version consolidée au 17 novembre 2010). In Germany there is the Gesetz über Naturschutz und Landschaftspflege. Slovakia has ZÁKON z 25. júna 2002 o ochrane prírody a krajiny.

If we wish to proceed further, we need to become more specific and selective. We need to focus on a particular issue and see how that one issue was handled in each system and study the context. At this initial stage, we are not sure whether we have the


right texts or whether there are other texts that cover wild birds in some way. The list of implementing acts for England suggests that the theme of wild birds may occur in different domains of the national legal system. Yet we can already sketch out some different contexts: on the one hand series of narrowly focused laws that deal with, inter alia, wild birds and on the other hand a very broad code that covers a large range of topics and somewhere embedded there are provisions that relate to wild birds. But a perusal of the French Code de l'environnement soon reveals a highly structured and internally organised set of information. That means that if one wishes to understand the rules applying to wild birds one must first master the theory and method lying behind the construction of the code. It is a very specialised text. As against that, the provisions applying in the other countries seem to be more specific to particular themes. To reflect further on the relationshp between EU and national legislative styles and terminology we need not only linguistic knowledge but legal knowledge about the ways in which the texts have been constructed and how they should be read. In view of the extent and range of national law, we can expect terms to have narrow and very precise meanings, especially so, since each of the countries mentioned makes its laws in a single language and in the context of a single legal system which allows a high level of control. Perhaps it is that which constitutes the biggest difference between EU and national legislative-language styles and terminology.

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Code de l'environnement (Version consolidée au 17 novembre 2010) (http://legifrance.org/affichCode.do?cidTexte=LEGITEXT000006074220&dateTexte=20101121&categorieLien=cid) (accessed 25.11.2010)

Court of Justice. http://europa.eu/institutions/inst/justice/index_en.htm and http://curia.europa.eu (accessed 24.11.2010)

Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version) (OJ L 20, 26.1.2010. 7). See generally: http://ec.europa.eu/environment/nature/legislation/birdsdirective/index_en.htm (accessed 25.11.2010)

Gallas, Tito. 1999. “Coredazione e Traduzione Giuridica nella Legislazione Multilingue, in Particolare Quella Comunitaria”. 43 Quaderni di Libri e riviste d'Italia, la Traduzione, Saggi e documenti (IV), 135-147.

Gesetz über Naturschutz und Landschaftspflege (Bundesnaturschutzgesetz - BNatSchG) (http://archiv.jura.uni-saarland.de/BIJUS/umwelt/ Text in German and French). (Accessed 25.11.2010).

Gotti Maurizio. 2008. “The Formulation of Legal Concepts in Arbitration Normative Texts in a Multilingual, Multicultural Context”. Bhatia, Vijay, Christopher Candlin & Paola Evangelisti Allori (eds). In Language, Culture and the Law: The Formulation of legal Concepts across Systems and Cultures. Linguistic Insights. 64. Bern: Peter Lang. 23-45.

66 Colin Robertson

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— 2009a. "Multilingual Law: What is it? How is it made? How is it Used and Applied? (with reference to EU practice)". Sočanac, Lelija, Goddard, Christopher, Kremer, Ludger (eds). In Curriculum, Multilingualism and the Law. 373-395. Zagreb: Globus, 2009.

— 2009b. “LSP and EU Legal Language”. XVII European Symposium on LSP, 17-21 August 2009. Aarhus. Denmark. Extended paper to be published on-line at the Symposium website: <http://www.asb.dk/article.aspx?pid=20015>.

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EUROPEAN UNION TERMINOLOGY UNIFICATION – DIRECTIONS FOR THE CONTRASTIVE STUDY OF TWO

SLAVIC AND TWO NON-SLAVIC LANGUAGES (BULGARIAN, POLISH, MODERN GREEK AND ENGLISH)

ILIANA GENEW-PUHALEWA [email protected] University of Silesia, Katowice, Poland

Abstract This study attempts to characterize terminology unification in the European Union legislation, regarding both content and form. It analyzes terms related to the thematic field of environmental law in four official EU languages: two Slavic (Bulgarian and Polish) and two non-Slavic (Modern Greek and English). Different types of relations between the languages under comparison suggest possible directions for further comparative study. The comparison aims to identify differences and similarities in the componential structure, formal-grammatical structure, word formation structure, form variantivity, origin and formal status. The study may also testify to the presence of linguistic convergence processes in the multilingual European Union. Key words: term, European Union terminology, terminology unification, Bulgarian, Modern Greek, Polish, comparative study

1. Introduction This study will attempt to expose a tendency of unification of the terminology used in the legal documents of the European Union (EU). The study concerns the terms related to a certain subject field in four official EU languages: two Slavic, Bulgarian and Polish, and two non-Slavic, Modern Greek (Greek) and English. Environmental Protection Legislation has been chosen as a thematic example, for the reason that it is an area which reflects the state of contemporary professional knowledge in the natural and formal sciences as well in the social sciences. The excerption covers legislative texts of the EU, published on the official internet portal of the EU (www.europa.eu), and units included in the e-glossaries of the EU (IATE, EuroVoc, ETDS).

The basis for a hypothesis to be put forward, that the terminology used in the EU legislative texts becomes uniform in different languages, is on the one hand the result of an initial observation and on the other hand a well-known extralinguistic fact: EU legislation is harmonized. That means that the fundamental differences among the legal systems of the EU member states have been eliminated. It can therefore be assumed that the identical content of the legislative texts (the unification of the content) involves

70 Iliana Genew-Puhalewa

unification of the language form. The more so because experts have been consciously seeking to abolish the differences in the terminology:

Different legal terminology forms an obstacle to European integration. (Heutger 2003:3) The desired unification of the EU legislation terminology lexicon in different languages is difficult to reconcile with another current requirement in relation to the law, including legislative language: to be understood, optimally simplified and accessible to both professionals and ordinary citizens:

However, there is nevertheless a new European legal culture emerging that requires law that can be understood not only by legal experts but also even by laymen without any legal skills. (Heutger 2003:5)

The question arises whether the best way to eliminate the inconvenient diversity of specialized vocabulary in legal practice is the use of internationalisms, as recommended in general in the formal and natural sciences, or whether to establish a common legal language (Ristikivi 2002, Seymour 2005). A contrastive study allows one to capture the current trends in term creation and EU terminology work, understood as “activities aimed at improving the particular terminology glossaries” (Lukszyn, Zmarzer 2001: 86).

The study, due to the selected object, is situated in the context of contrastive-typological linguistic studies, more precisely in the terminological lexicology. Taking into account the triad “form – function -meaning” (Jarcewa 1985:12, Koczerhan 2009:72) the equivalence of the meaning and function of the terminological units is stated. This is because the terms used in EU legislation in the various languages are defined in the same way. The legal systems of the EU member states have been harmonized, thus the analysis does not take into account the issue of the conceptual structure and focuses on the formal characteristics of the language (cf formal structure in Popova 1985:30 and formal parameter in Lukszyn & Zmarzer 2001:109-110). Note that the issue of the conceptual content of the terms and their definitions belongs to the science from which they originate. However, the possession of the legal definition (formulated in a EU legal act) by the terminological unit will serve as a strict criterion to distinguish terms from non-terms, since there is no substantive difference between one and the other (regarding “quasi-terms” and “pseudo-terms” see Zmarzer 1991:123, Lukszyn, Zmarzer 2001: 24,25, 40, 41)

Different types of relations between the languages under comparison suggest possible directions for further comparative study. The languages arrange in a few opposite pairs depending on the adopted classification criterion. From the perspective of their genetic relations these are (1) two Slavic languages, Bulgarian and Polish (abbreviated as bg and pl) and two non-Slavic, Modern Greek and English (gr and en). From the perspective of their typological relations these are (2) two Balkan languages (i.e. classified to the Balkan Linguistic League), Bulgarian and Greek, and two non-Balkan languages, Polish and English. This scheme will be maintained as well if we take into account the graphical systems used in the languages we compare: (3) two using Latin, Polish and English, and two using other alphabets, Bulgarian and Greek (the graphic form could be of importance for the adaptation of the term, cf the term in situ below). From the viewpoint of the morphological type these are (4) inflecting languages (synthetic), Polish and Modern Greek, which can be contrasted with non-inflecting languages (analytical), Bulgarian and English.

European Union Terminology Unification 71

Apart from strict linguistic criteria, other criteria can be applied to sort the chosen languages, acknowledging extralinguistic facts which affect the processes of terminogenesis. These are:

a) the period of the countries’ membership in the EU: two EU languages with longer experience in the EU, both non-Slavic, and two with shorter experience, both Slavic;

b) the burden of the communist past (possible russification of the legal terminology of People’s Republics and influence of “newspeak”): two post-communist, Bulgarian and Polish (both Slavic) and two unburdened with a communist past, English and Greek (both non-Slavic).

c) Eventually in asymmetrical opposition Bulgarian, Polish and Modern Greek as “post-slavery” contrast with English (unburdened with foreign dominance) according to the criterion of experience of foreign dependence. Building national institutions, including those of justice of their own independent states in the first half of the XXth century after a long period of dependence (foreign slavery) is a historical fact common to the Bulgarians, Greeks and Poles. Related to this fact is the sometimes purist approach to problems of term creation, which has implications extant even today (Yanakiev 1977 83-96. Mazur 1961:16-17, Stoberski 1982:9-10, Filopoulos 1994). These observations form a wider framework for comparative studies on terminology.

A concept which requires more substantial comment at the beginning of this paper is unification, because it is understood in different ways. Some experts call the unification of the terminology a certain method or procedure (an element of intended work), aimed at bringing order to the use of national terminology in a given terminological lexicon. For example, according to Lukszyn & Zmarzer the unification (in addition to normalization, standardization, codification, regulation and others) is “a kind of terminology work”, i.e. ”activity aimed at improving the terminological lexicons”. Popova understands unification similarly (1990:13).

Elsewhere in the same publication Lukszyn and Zmarzer define unification as follows:

Generally speaking, the procedure of unification of Lt (terminological lexicon) is reduced to a subordination of a set of conventional language signs to the national language standards. (2001: 86)

The unification, as a method which brings order to the terminological systems, is seen by Vinogradov and Platonova as part of harmonization i.e. a method of insuring accordance of the national terminology with the international one.

Методы унификации терминов используются и в случае межъязыкового упорядочения, т.е. обеспечения сопоставимости терминологии национального и международного уровней, или гармонизации. (Winogradow & Platonowa 1999: IV, § 27)

The internalization of terminological phenomena is the other common way of understanding unification. For example the name of the organization which encourages the process of internalization and the overcoming of language barriers in special


terminology pl Międzynarodowa Organizacja Unifikacji Neologizmów Terminologicznych (International Organization for Unification of Terminology Neologisms), indicates that unification is associated with internalization. Similarly D. Kierzkowska in her monograph on the problems of legal translation uses the term unification ambiguously, in some cases in terms of internationalization of the terminological units after the harmonization of the legal system with the international one (Kierzkowska 2008:159-164). The author writes about some “new elements” entering into the Polish legal language, which come from international systems “as a result of the trend towards unification of national legislation with the international system of European Community Law” (2008:160). Kierzkowska has a critical attitude towards this phenomenon: she sees in the unreasonable use of internationalisms, rather than native terms and phrases connected with traditions of Polish legal language, an “overpowering European influence” and ”snobbery” (e.g. raport instead of sprawozdanie, rezolucja instead of uchwała, procedura instead of tryb postępowania, rekomendacja instead of zalecenie etc.) (2008: 167-168).

In this paper, under the concept unification of the EU terminology, the author understands the intentional or unintentional (e.g. as a result of the interpreter’s/ translator’s work) uniformity of the terminological units in different language versions of EU legislation, both on the content level and the formal level.

The above cited authors Lukszyn and Zmarzer postulate briefly in their monograph as follows:

St (terminology system) is Lt (terminology lexicon) structured under the F-, K- and R-parameters” (2001:109),

where F-parameter is the formal parameter, K-parameter is the conceptual parameter and R-parameter is the relational parameter. F-parameter takes into account formal language characteristics such as: componential structure, formal-grammatical structure, word formation structure, form variantivity, origins, formal status, etc. The contrastive analysis of the terminology in the selected subject field is based here in the cited research proposal of Lukszyn and Zmarzer. 2. Results of the contrastive analysis In terms of componential structure the terminological units can be divided into one-, two- or multi-word. In the analyzed set of terms the multi-word units definitely dominate (mostly two-word). This situation constitutes the norm, because in terminological theory and practice there is a conviction that word-combinations better reflect the content of the concept, as they have both the formal exponents for both the generic characteristics and the distinctive features of the concepts which they signify (Hałas 1995:73, 83; Valeontis, Zeriti, Nikolaki, 1999:10, 15-16, Popova 1985). Cf the one-word-term for generic concept:

en

pollution pl

zanieczyszczenie bg

замърсяване gr

ρύπανση


with two-word-terms:

en pl bg gr

domestic pollution zanieczyszczenia krajowe битово замърсяванe οικιακή ρύπανση toxic pollution zanieczyzczenia toksyczne токсично замърсяванe τοξική ρύπανση physical pollution zanieczyszczenie fizyczne физическо замърсяване φυσική ρύπανση chemical pollution zanieczyszczenie chemiczne химическо замърсяване χημική ρύπανση In cases where the terms under comparison are not equivalents from the point of view of their formal structure, because in one of the languages a one-word-term is used and in the others multi-componential terms are used, it often happens the one-word-term is a compound word or derivative, components of which have a similar or identical meaning to the lexical meaning of the term elements in the multi-word terminological units. Cf the Polish term zanieczyszczenie lotne ‘gaseous pollution’ (en olfactory pollution) with the Greek term οσμορύπανση < οσμ(-ή) ‘fume’ + ρύπανση ‘pollution’.

Although similarities among componential structure of the EU terms are more common than their differences, it is worth noting the lack of equivalence in the case of the key term environment, which is a one-word-term in almost all the EU languages, except for in Bulgarian, which uses the multi-componential term околна среда, a calque of the Russian term окружающая среда. The Bulgarian term was created before the political changes in 1989, during the People’s Republic. Cf:

en pl gr

environment środowiskо περιβάλλον The grammatical structure of the terminological units is compared on the basis of their belonging to the given lexicogrammatical category. There is a categorical monotony in this case: the term-words are usually nouns, and the elements of multicomponental terms are mostly nouns, or adjectives, or (rarely) participles. The comparative analysis of multi-word terms draws attention to the lexicogrammatical classification of both the main element and the dependent element(s).

The main element as a rule is a noun, but the subordinate element can be a noun in a non-nominative-case combined without a preposition (in Polish and Greek), or an attributive noun (in English), or a noun joined with a preposition (in Bulgarian), or an adjective (in all four languages), or a participle (in all four languages). The examples below illustrate the most common patterns:

a) Adjective (subordinate defining element) + noun (main defined element)1 en ecotoxicological properties; pl właściwości ekotoksykologiczne; bg екотоксикологични свойства; gr οικοτοξικολογικές ιδιότητες. In the listed units the elements-adjectives are compound words which have an identical word-formation-structure, composed of classical roots eko-, tox(-ic), log- and a corresponding adjectival suffix –al (en), -iczn- (pl), -ичн- (bg), -ικ-(gr).

1 In Polish with inverted word order – adjective in postposition.


b) Participle (subordinate defining element) + noun (main defined element)

en protected area; pl obszar chroniony; bg защитена територия; gr προστατευόμενη περιοχή.

c) Noun + noun en risk assessment; pl ocena ryzyka; bg oценка на риска; gr εκτίμηση κινδύνου.

The subordinated (defining) nouns in the above formations combine with the main noun without a preposition in Polish and Modern Greek, which are inflecting languages (the defining nouns are in the Genitive case). The attributive noun in the English term also combines without a preposition, whereas in Bulgarian it combines with a preposition. In other languages, in place of the English formation [attributive noun + noun], which probably served as a pattern for the term creation, an adjective may appear. Cf:

en water infiltration into the ground pl inflitracja wody do ziemi gr απορρόφηση νερού από το έδαφος

bg водно инфилтриране в земята

en plant protecton product pl środek ochrony roślin

bg продукт за растителна защита gr φυτοφαρμακευτικό προϊόν

As for the model to follow, the language of its source is in doubt, because the different language versions of the legislative texts have equal status and equal legal force, so none of the languages is considered as a source, nor are the others considered as a target in the translation (regarding hidden translation see Kierzkowska 2008:147).

In some cases a foreign (English) formal model of the term is followed too literally, see en the warning of danger and bg предупреждаващ знак за опасност, where warning (a Present Participle form) in Bulgarian corresponds to an Active Present Participle предупреждаващ + noun знак, instead of the common participial adjective предупредителен (e.g . предупредителен знак – ‘warning sign (road)’). This avoids the undesirable phenomenon of transterminological homonymy. The Polish and Greek counterparts are nouns: ostrzeżenie o niebezpieczeństwie, προειδοποίηση κινδύνου. Overall, from the formal-grammatical perspective, as well as from the componential, similarities are many and substantial.

The term is a linguistic unit with the structure of a word or a word combination and those words can be analyzed from the point of view of word formation . This is another characteristic included in the F-parameter. In the comparison of genetically unrelated languages the word formation analysis is limited, which is why the observations here only take into account the type of word formations. The observations show that the vast majority of the analyzed one-word-terms and term-elements are derivatives or compound words. The second ones (the compound words) more often come from the LSP’s of the formal and natural sciences, while they are created from Greek or Latin roots, hence the material identity of the forms is not rare, despite a lack of genetic relationship among the languages, cf:


pl en bg gr

bioenergia bioenergy биоенергия βιοενέργεια ekosystem ecosystem екосистема οικοσύστημα

agroturystyka agrotourism агротуризъм αγροτουρισμός However, as regards the formative derivatives, their form depends on the derivative resources of the national terminological systems. Affixation seems to be the dominant type of derivation for both the Slavic (bg and pl) and non-Slavic (en and gr) terms. The observations on the word-formation structure of the adjectives, which are subordinated elements of two-word terms [adjective + noun], with an international base (so one can expect a formal equivalence among the terms), show that the Bulgarian derivational resource of affixes for term-creation is richer than the English and Greek ones. This may indicate not only the potential of the Slavic affixation, but also the instability of the Bulgarian terminological system, as well as a lack of standardization. Cf:

en pl bg gr physiographic factors czynniki fizjograficzne физиографски фактори φυσιογραφικοί παράγοντες geological factors czynniki geologiczne геоложки фактори γεωλογικοί παράγοντες biological factors czynniki biologiczne биологични фактори βιολογικοί παράγοντες climatic factors czynniki klimatyczne климатични фактори κλιματικοί παράγοντες evolutionary process proces ewolucyjny еволюционен процес εξελικτική διαδικασία

In the comparison of the languages the fertility of Greek term creation comes into prominence: Modern Greek presents a unique derivational potential, cultivated by the purist-oriented term creators. An illustration of this assertion may be the Greek counterparts of the term-elements in situ ‘in the original, natural place’ and ex situ ‘beyond the original, natural place’, borrowed in the other languages from Latin. They fulfill an attributive function in the two-word terms. In both the Slavic terminology systems these elements remain barbarisms, i.e. unadapted elements (in Bulgarian even graphically), whereas Greek uses elements of native origin: επιτόπου [επί-τόπος] (derivative) and εκτός τόπου (word combination), which maintains system relations on formal and formative levels with units as οικοτόπος [οίκος + τόπος] (en habitat, pl siedlisko, bg местообитание). In addition, the adverb επιτόπου is a member of the derivational nest, cf the adjective επιτόπιος,-α,-ο ‘local’.

en in situ sources ex situ sources pl źródła in-situ gr επιτόπου πηγές źródła ex-situ εκτός τόπου πηγές bg източници in-situ източници ex-situ en in situ conservation ex situ conservation pl ochrona in-situ gr επιτόπου διατήρηση ochrona ex-situ διατήρηση εκτός τόπου bg in-situ опазване ex-situ опазване

The variantivity of the terminological units, defined here as a parallel usage of short forms and full forms, is another characteristic within the formal parameter of the terminological lexicon. The comparison of the set of terms in the four languages from


the viewpoint of form variantivity reveals additional similarities. E.g. two-component units consist of an adjective formed from a international base as ecological, biological etc. and a noun of native origin, have short one-word variants of the same construction. It is a symbiotic neologism, created by the shortcut of a foreign element (eco-, bio- , similarly to European: euro-) and a native component (the noun base), cf:

en biological diversity - biodiversity pl różnorodność biologiczna - bioróżnorodność bg биологично разнообразие - биоразнообразие gr βιολογική ποικιλομορφία – βιοποικιλότητα.

In some cases the analogies between the short forms and the full forms are only partial, cf:

full form short form en agricultural biotechnology en agrobiotechnology gr αγροτική βιοτεχνολογία gr αγροβιοτεχνολογία pl biotechnologia rolnicza pl agrobiotechnologia bg земеделска биотехнология bg агробиотехнология

Greek and English terms (noting internationalisms) with the structure [adjective (in English compound) + compound noun] also have identical short forms structured as compound words. Polish and Bulgarian prefer the short forms pl agrobiotechnologia and bg агробиотехнология, while the full forms are created from adjectives of native origin rolniczy and земеделски. Similarly:

en agricultural tourism – agrotourism gr αγροτικός τουρισμός - αγροτουρισμός pl turystyka wiejska – agroturystyka bg селски туризъм - агротуризъм

In accordance with the principle adopted here, the short forms should be considered as quasi-terms, while in the EU legal acts the full forms are defined. Short forms are used in non-normative texts.

The formal parameter includes also the origin of the terms (”source” in Lukszyn, Zmarzer 2001:109). Preliminary observations of the linguistic material in this direction show remarkable similarities in term-creation, despite the fact that not all of the four languages we compare are genetically related, as mentioned above.

Calquing is the most common term creation technique - most units are structural and semantic calques of one pattern, usually English. It should be noted that English has been involved in this study because of its position as the lingua franca of our times, with impact on other languages as a source of direct borrowings and calques.

Borrowing, as adopting a word from another language, is the other common method, and the majority of terms reported here may be classified as borrowings, or internationalisms. The terminologists point out that the demarcation of the boundary between borrowings and internationalisms is a difficult task, since both categories are derived from the so-called “world famous languages”, while the most of them are neoclassicisms, i.e. containing Greek or Latin term elements. It is worth noting that the


borrowings from English often become internationalisms, especially if they contain classical elements (see Dictionary of English Anglicisms 2001, Stoberski 1982).

The assertions as to the origin of the terms we study are based on the comparison of an arbitrarily selected group of terminological units (total 25). These are multi-word terms, with the same main (determinate) element, which means a generic feature ‘action’. It is the element of Greek origin < ἀνάλυσις, respectively: gr ανάλυση, en analysis, pl analiza, bg анализ. The multi-componential units are evidently semantic calques of one original formation, therefore the differences will occur in the subordinated elements, which can be of native origin or borrowings. Thus in 9 cases of a total of 25 we are dealing with internationalisms of Greek origin. E.g.

en pl bg gr

ecosystem analysis analiza ekosystemu екосистемен анализ ανάλυση οικοσυστήματος

microbiological analysis

analiza mikrobiologiczna

микробиологичен анализ

μικροβιολογική ανάλυση

physicochemical analysis

analiza fizyko-chemiczna

физикохимичен анализ

φυσικοχημική ανάλυση

chromatographic analysis

analiza chromatograficzna

хроматографски анализ

χρωματογραφική ανάλυση

In 5 of 25 cases the Polish, Bulgarian and English units are of identical origin: their elements are internationalisms from Latin, or anglicisms. The Greek terms differ, cf:

en risk analysis

pl analiza ryzyka

bg анализ на риска

gr ανάλυση κινδύνου

process analysis analiza procesowa процесен анализ ανάλυση διαδικασίας social analysis analiza

socjologiczna социален анализ κοινωνική ανάλυση

cost-effectiveness analysis

analiza efektywności nakładów

анализ на разходи и икономически ефект

ανάλυση κόστους-αποτελεσματικότητας

In four cases (4/25) we note a similarity between Bulgarian and Polish units as a result of the genetic relations of these languages, e.g.

pl bg en gr

analiza odpadów aнализ на отпадъците waste analysis ανάλυση αποβλήτων analiza danych анализ на данни data analysis ανάλυση δεδομένων

In two cases (2/25) Greek, Polish and English units are partly similar, but the Bulgarian ones differ. The similarity is a result of the use of the element cost, borrowed also in Greek through Italian (<coston) but absent in Bulgarian, e.g:

pl en gr bg analiza kosztów i zysków

cost-benefit analysis

ανάλυση κόστους-οφέλους

анализ на съотношението разход-полза


In one case a term of the same origin occurs in Greek, Bulgarian and in English, but of another origin in Polish, cf:

en pl bg gr

economic analysis analiza gospodarcza икономически анализ οικονομική ανάλυση

Subordinated term elements of different origins can be noted in 7 of 25 cases, in which the terminological lexicons of the languages use native lexical elements, e.g:

en pl gr bg sensitivity analysis

analiza wrażliwości ανάλυση ευαισθησίας анализ на чувствителността

pollutant analysis

analiza zanieczyszczeń

ανάλυση ρύπων анализ на замърсители

noise analysis analiza hałasu ανάλυση θορύβου шумов анализ water analysis analiza wód ανάλυση νερού

(υδάτων) воден анализ

The interpretation of the simple, otherwise, statistical data, according to which 7 of the 25 Polish, 8 of 25 Bulgarian, 11 of the 25 English and 16 of the 25 Greek terminological units from a selected group show no similarity with the other under comparison in terms of the origin of the subordinated element, enables one to draw the conclusion that the majority of all borrowings occur in the Bulgarian and in the Polish terminologies (languages with shorter experience in the EU, post-communist, Slavic), and the least appear in the Greek. The unique “purity” of the Greek terminology is due not only to consistently purist language policy, but also to the evident fact that the resources of this language supply the international scientific terminology with so-called etymons (Filopoulos 1994, 1998: 2-3, ). It should be emphasized that English being a source-language for borrowings in other languageswidely uses classical etymons. These assertions, taken from a small sample of the material are not absolute, but do show a tendency. 3. Conclusion The widely understood formal similarity of the terminological units in different languages in great measure determines the understanding of the discourse in a multilingual European context.

Bulgarian, Modern Greek, Polish and English LSP’s, which are versions of languages genetically and typologically different, become similar. Similarities among the studied terminological lexicons do not derive from their common origin or typological closeness, but from following a common pattern.

From the synchronous point of view, what is common for English, Bulgarian, Greek and Polish, is their status as official EU languages. For the moment that extralinguistic fact has no evident effect on the condition and the development of the national languages. However, there is a direct reflection in the LSP’s. Their unification can be regarded as an indication of contemporary processes of linguistic convergence.


References ETDS - Environmental Terminology and Discovery Service - http://glossary.bg.eea.europa.eu/ EuroVoc. www.eurovoc.europa.eu Filopoulos. 1994. Φιλόπουλος, Βασίλης. Η ανάγκη της ορολογίας για την ανάπτυξη της

γλώσσας. Ομιλία στο Συνέδριο ΅Ελληνική γλώσσα και μετάφραση στην διευρυμένη Ευρωπαική Ένωση. Αθήνα.

Filopoulos. 1998. Φιλόπουλος, Βασίλης. Διεθνοποίηση της ορολογίας και προοπτικές της Ελληνικής Γλώσσας. Ιδρυμα Αντώνη Σ.Ν. Τρίτση – Σύλλογος Φίλων Αντώνη Τρίτση Εσπερίδα – Δευτέρα 1 Ιουνίου 1998 – Ζάππειο Μέγαρο. Θέμα: “Η Ελληνική Γλώσσα: η προσφορά και το μέλλον της στο Ευρωπαϊκό Πολιτισμικό Γίγνεσθαι”.

Görlach, Manfred. 2001. Dictionary of the English Anglicisms. Oxford University Press. Hałas, Bożena. 1995. Terminologia języka prawnego. Zielona Góra. Heutger, Viola. 2003. “Law and Language in the European Union”. In Global Jurist

Topics. Volume 3, Issue 1. IATE - Interactive Terminology for Europe - www.iate.europa.eu Jarcewa, Ярцева Виктория Н. 1985. „К определению понятия „языковой тип”.

Лингвистическая типология, Москва. Koczerhan, Michajło P. 2009. Podstawy językoznawstwa konfrontatywnego. Wyd.

Nowik. Kępa. Lukszyn, Jurij & Zmarzer, Wanda. 2001. Teoretyczne podstawy terminologii. Wydział

Lingwistyki Stosowanej i Filologii Wschodniosłowiańskiej Uniwersytetu Warszawskiego, Warszawa.

Mazur, Marian. 1961. Terminologia techniczna. Wydawnictwo Naukowo-techniczne. Warszawa. Popova. Попова, Мария. Термини-словосъчетания (из областта на товароподемните и подемно-транспортните машини). БАН. София, 1985.

Popova. Попова, Мария. 1990. Типология на терминологичнта номиниация. БАН. София.

Ristikivi, Merike. “Latin: The common legal language of Europe?” http://www.juridicainternational.eu/public/pdf/ji_2005_1_199.pdf

Seymour, Edward. 2002. “A common EU legal language?”. In Perspectives: Studies in Translatology, 1747-6623, Volume 10, Issue 1, Pages 7 – 13

Stoberski, Zygmunt. 1982. Międzynarodowa terminologia naukowa. Problemy. Postulaty. Oczekiwania. PWN. Warszawa.

Valeontis, Zeriti, Nikolaki. 1999. Βαλεοντής, Κώστας & Ζερίτη, Κατερίνα & Νικολάκη, Αννα. Ο ελληνικός σύμπλοκος όρος και η χρήση της γενικής ως προσδιοριστικού συνθετικού. Αθήνα.

Yanakiev. Янакиев, Мирослав. 1977. Стилистиката и езиковото обучение. София. Zmarzer, Wanda. 1991. „Leksykografia terminologiczna”. In Teoretyczne podstawy

terminologii. Katedra Języków Specjalistycznych Uniwersytetu Warszawskiego. Warszawa.


CONCEPTUALIZATION OF LEGAL TERMS IN DIFFERENT FIELDS OF LAW: THE NEED FOR A TRANSPARENT

TERMINOLOGICAL APPROACH MARTINA BAJCIC [email protected] Faculty of Law, University of Rijeka, Croatia

Abstract Researchers often use subject-specific terminology in order to facilitate communication within a given field of law. Difficulties may arise when they must use scientific information that does not belong to their field. The transfer of information from one subject area to another is restricted by the technical vocabulary used in the particular field. If this is so, what happens when lawyers in one field of law use terms from another? Is the concept in question couched in the same term within another field of law as well? The process of conceptualizing one and the same legal term in different legal fields does not always proceed smoothly. As will be illustrated in this paper, the problem of conceptualizing legal terms in different fields of law calls for a transparent terminological approach. While it is true that legal concepts cannot be fully conveyed by terminology, a transparent terminological approach can contribute to the understanding of these concepts and facilitate their use in legal comparisons, thus making such an approach a conditio sine qua non of legal translation. Key words: subject-specific terminology, conceptualization of legal terms, transparent terminological approach

1. Introduction This chapter examines how notions of EU law are conceptualized at the national level of member states. Above all, it focuses on the process of integrating concepts of EU law into national legal discourse by using national terminology belonging to a different field of law. However, since EU law differs from national law, using terms of national legal discourse to express notions of EU law represents a risky compromise.

In order to analyze the process of conceptualizing one and the same legal term in different legal fields, the following questions will be addressed: Which terms belong to a specific field of law? How should 'interdisciplinary' concepts be classified? How can polysemous terms and synonyms best be treated?

Delimitation of a specific field of law includes establishing conceptual and terminological limits. This is a difficult task because certain concepts can belong to more than one field of law, such as the principle of subsidiarity. Concepts used in more than one field of law are referred to here as interdisciplinary concepts. It is argued that,

82 Martina Bajcic

although certain interdisciplinary concepts are expressed by the same term, their conceptualization may differ from one legal field to another. A combined terminological approach should be used to resolve conceptualization and classification difficulties. Such an approach is essential when classifying problematic concepts and translating EU legal texts and finally, providing translation equivalents in the target language. This will be illustrated by examples of concepts of EU law which have been integrated into Croatian national law by using national terminology from a different field of law.

2. Earlier research

The problem of classification and conceptualization has received increasing attention not only in the field of terminology and ontology, but in legal translation as well. Within terminology, Felber distinguishes three types of concept classification: Begriffsklassifikation, Themenklassifikation and Gegenstandsklassifikation (2001: 58). Themenklassifikation, or classification according to the topic, serves for documentation purposes and is applied in the library science, whereas in Begriffsklassifikation, or classification according to the concept, concepts correspond ontologically to the object (2001: 58). On the other hand, in Gegenstandsklassifikation, or classification according to the subject, concepts represent encyclopaedic concepts and correspond to the entire object (2001: 58).

Furthermore, Šarčević made it clear that classification plays an important role in law and in legal translation as well:

Classification serves as a catalyst to put the lawyer’s mind on the right track, calling up the related concepts and institutions involved in solving the particular problem. Thus terminologists should not deal with isolated concepts but need to compare the conceptual structures of the functional equivalent and its source term by analyzing the conceptual hierarchies to which each belongs (Šarčević 2000: 242-243)1.

Especially problematic are legal terms which are used in several legal fields, but convey diverging concepts. Sandrini rightly asserts that the solution to such problematic terms lies in disambiguating them by indicating the legal field in which the concept conveyed by the term in question is used:

Zur Desambiguierung von Rechtstermini genügt es meist, den begrifflich-inhaltlichen Hintergrund der verwendeten Terminologie in jedem Fall durch Angabe des Rechtsbereichs und der Rechtsordnung eindeutig zu kennzeichen (2004: 145).

In the context of EU law, legal concepts have been described as unstable, fuzzy and vague (Kjær 2007: 81)2. As the EU creates its own supranational legal system, its legal 1 Functional equivalent is a terminus technicus in legal translation. As defined by Šarčević, it is “a

term designating a concept or institution of the target legal system having the same function as a particular concept of the source legal system” (Šarčević 1989:278-279; 1988: 964, cited in Šarčević 2000: 236).

2 “...EU legal concepts are generally lacking the deep level structure of meaning otherwise characteristic of legal semantics. ” (Kjær 2007: 81)

Conceptualization of Legal Terms in Different Fields Of Law 83

terminology differs from the national terminology of the member states. Thus, borrowing national terminology to convey EU legal concepts might lead to ambiguities. This can be avoided by introducing parallel terminology: using one term to denote a legal concept on the national level and another term to denote the concept in question on the EU level. Examples of parallel terminology are found within German legal terminology. In contrast to the term Zivilprozessordnung which is used in German civil law, the term Zivilverfahrensgesetz is used to denote this concept in EU law. The existence of parallel terminology provides clarity in the event of any ambiguities and facilitates legal translation3.

In addition, interesting approaches to conceptualization and classification come from various fields of linguistics, such as cognitive linguistics (Langacker 1988; Žic-Fuchs 1991; 2009; Geld 2006) and lexicography (Meyer and Mackintosh 1994: 344; Moerdijk 2003: 291). In cognitive grammar, meaning is equated with conceptualization (see especially Langacker 1988, 1991). Departing from the fundamental notions of cognitive linguistics, Geld analyses aspects of the construal of meaning on the basis of conceptualization (2006). More recently, Christiansen analysed lexical items pertaining to Indigenous land rights in English and Indigenous Australian languages, applying Langacker’s cognitive-grammatical model to show different conceptualizations of the notions of possession and property in Anglo-Australian law, as opposed to Indigenous Australian cultures and societies (2010: 285-313).

On the other hand, within ontology, conceptualization is seen as the body of formally represented knowledge which represents “the objects, concepts and other entities that are assumed to exist in some area of interest and the relationships that hold among them (for more detailed research see Genesereth and Nilsson 1987; Madsen and Thomsen 20094; Gómez Gonález-Jover especially 2006: 219).

However, a strict terminological approach in the sense of Felber’s or Wüster’s general terminology theory, i.e, the primacy of the concept, associating concepts with a specific knowledge domain, monosemy of terms, or a strict cognitive approach might prove ineffective in solving classification or conceptualization problems that occur in the practice of legal translation. On the other hand, descriptive terminology work conducted by Riggs et al. provides valuable assistance in resolving ambiguities related to interdisciplinary concepts, as is analyzed in the second part of this chapter (Riggs. et al 2000: 184-196; Cábre 2003; Gómez González-Jover 2006, and Faber et al. 2006, 2007). Such a combined terminological approach resolves the problem of conceptualization and classification and is thus instrumental in legal translation. This is illustrated by a short study which analyzes differing conceptualizations of one and the same term in different fields of law. Special attention is paid to achieving clear delimitation of a legal field which constitutes the precondition for classifying interdisciplinary concepts.

3 In this sense the possibility of creating a pan-European legal language, i.e., a neutral meta-

language with common legal concepts at EU level can be further explored. This question sparked a debate among many scholars in the context of the Common Frame of Reference for European Contract Law (see Šarčević 2010: 25).

4 See Genesereth and Nilsson, 1987 on classification in ontology. Available at: http://www-ksl.stanford.edu/kst/what-is-an-ontology.html (visited 10 July 2010) and Madsen and Thomsen (2009): Ontologies vs. classification systems. Available at: http://dspace.utlib.ee/dspace/bitstream/1062/984/1/13-4-Final-Ontologies_vs_classification_systems_NODALIDA-2009.pdf

84 Martina Bajcic

3. Delimitation of a specific legal field

Delimitation of the object of description involves the description of the relevant lexical units and their meaning within a specialised domain. Terminological work has traditionally focused on the organization of concepts and lexical units in a specialised domain, in which each term represents one concept and each concept is denoted by one term. Identifying a specific field of law and which terms belong to that field includes establishing both terminological and conceptual limits. Gómez González-Jover defines technical terms that belong to a specific subject field:

These units are particular to the domain they belong to, and have a highly specific meaning and only one conceptual referent (i.e., units with an ‘encapsulated meaning’). In general, technical terms can be found in specialized dictionaries, glossaries, and scientific and technical texts (2006: 221).

Such technical terms are said to belong to a specialised language or a sublanguage, the term used by Martin and van der Vliet (2003: 333). A sublanguage covers a special subject field and its most prototypical usage is in communication between experts in the field (Martin and van der Vliet 2003: 333).

However, the boundaries of most subject fields are fuzzy and overlapping subfields may emerge as a consequence of applying different criteria to establish a field. As regards classification, Riggs et al. thus warn terminologists not to regard any field as a rigid intellectual category (2000: 186). This holds true in the field of law and should be taken as the point of departure in legal translation as well.

4. Practical difficulties of classifying concepts The following example from the interdisciplinary field of library science illustrates the problem of classification in different subject fields which apply different classification systems. The need to incorporate new topics and classify new concepts is constantly evolving within library science. In accordance with the UDC, i.e., the universal decimal classification system (corresponding to Felber’s Themenklassifikation) used to classify concepts in this field, concepts are classified into different categories and subcategories. One of those categories is the social sciences, whereas law constitutes one of its subcategories. Law is then further subdivided into different subfields. For instance, in the Croatian UDC the concepts zločinačka banda (criminal gang) and zločinačko udruženje (criminal association) are classified under criminal law. However, these concepts are not used in Croatian criminal law. Moreover, they are not cited in the Croatian Criminal Law Act (Official Gazette, No. 110/97) or in other relevant legislation. Instead, Article 89 of the Criminal Law Act defines the concept zločinačka organizacija (criminal organization), which is not included under criminal law in the UDC5.

5 The above problem of classifying legal concepts according to the UDC was the topic of a paper

entitled: Terminology Management: UDC vs. Criminal Law Classification, Bajčić M. and


Contrary to the UDC scheme, concepts of criminal law are classified according to authoritative interpretation which usually takes the form of statutory definitions provided by the legislator and is binding erga omnes and ex tunc (Grozdanić and Škorić 2009: 26-27). As such, this must be taken into account when classifying concepts of law in UDC tables, despite the fact that other classification rules apply within library science. What more, librarians and terminologists should be constantly on the alert because definitions of legal concepts are subject to change (see Sandrini 1996: 345).

The problem above arose as a result of the literal translation of UDC tables from English into Croatian and the failure to comply with the authoritative interpretation of concepts in criminal law. Unfortunately, this is not an isolated event. Inconsistent terminology has been observed more recently in the usage of the Croatian equivalent in the UDC for the Court of Justice of the EU. Upon the entry into force of the Treaty of Lisbon, the Court of Justice of the EU is divided into the Court of Justice (formerly the European Court of Justice), the general court (formerly the Court of First Instance) and the Civil Service Tribunal6. Furthermore, the Treaty of Lisbon (consisting of the Treaty on the EU and the Treaty on the Functioning of the EU) has not yet been officially translated into Croatian7. In the absence of a standardized Croatian translation, Croatian lawyers prefer the term Europski sud for the Court of Justice, whereas librarians use Europski sud pravde, the literal translation in the UDC tables. This can cause confusion among translators and impede the process of information retrieval.

It remains to be seen whether and to what extent such problems of flagrant inconsistency will be resolved. It goes without saying that particular care should be taken when dealing with the classification of concepts belonging to different fields. Interdisciplinary concepts can be especially tricky, as is shown in the following section.

5. Interdisciplinary concepts

It has been traditionally presumed that polysemy frequently occurs between fields (Gómez Gonález-Jover 2006: 223). Accordingly, polysemous terms are present in law as well (see Chroma 2004: 34). Nevertheless, in the context of EU law, the term interdisciplinary concepts seems to be more adequate because of the complex relationship between the national laws of the member states and EU law. Hence, the emphasis here is placed on interdisciplinary concepts, i.e. concepts or institutions appearing in more than one legal field. More concretely, such concepts can belong to both the national legal system and to EU law. Although one and the same term is used to denote an interdisciplinary concept, its conceptualization may differ from one legal field to another.

Golenko, D., which was presented at an interdisciplinary conference: Science and Sustainability in Zagreb, Croatia, 8-9 October 2009.

6 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF (visited 11 August 2010).

7 There was no official Croatian translation of the Treaty of Lisbon in May 2010 when this contribution was presented at the LawTerm 2010 Conference in Łódź, Poland.

86 Martina Bajcic

This is illustrated by three basic principles of EU law which lend themselves particularly well to this type of study: subsidiarity, proportionality and primacy (prior to the Treaty of Lisbon: supremacy).

It should be noted that the Treaty of Lisbon which entered into force on 1. 12. 2009, has brought about several terminological and conceptual changes, some of which have already been discussed in this chapter. Therefore, Croatian legal scholars are in the process of introducing new concepts from the Treaty of Lisbon into Croatian law. These concepts are expressed by national legal terminology, which, however, presents some problems. The examples of such concepts mentioned above are by no means exhaustive. They merely serve as an example to examine how terminological problems concerning interdisciplinary concepts can best be resolved.

5.1 Example 1: Subsidiarity

According to Article 5 of the Treaty on the Functioning of the European Union, subsidiarity is intended to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made as to whether action at the Union level is justified in light of the possibilities available at national, regional or local level. Specifically, it is the principle whereby the Union does not take action (except in areas under its exclusive jurisdiction) unless it is more effective than action taken at national, regional or local level8. In Croatian constitutional law, subsidiarity means that political decisions should be reached at the lowest level possible, bearing in mind the purpose to be achieved (Smerdel 2006: 58). The Croatian term načelo supsidijarnosti is used to denote this concept in both EU law and Croatian constitutional law. 5.2 Example 2: Proportionality The principle of proportionality regulates the exercise of powers by the European Union, seeking to set clear boundaries for the action taken by EU institutions. Under this rule, the institutions' involvement must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the extent of the action must be in keeping with the aim pursued9. In Croatian constitutional law the principle of proportionality is interpreted as meaning that any limitation of rights and freedoms must be limited to what is necessary in order to achieve a legal objective (Smerdel 2006: 58). Two Croatian terms are used to denote this concept: načelo proporcionalnosti and načelo razmjernosti. Contrary to the clear differentiation between national and EU terminology illustrated by the example of the German parallel terminology, these two terms are the result of terminological inconsistency; while some legal scholars use one term, others prefer the

8 Available at: http://europa.eu/scadplus/glossary/subsidiarity_en.htm (visited 1 May 2010). 9 Available at: http://europa.eu/scadplus/glossary/proportionality_en.htm (visited 10 May 2010).


other. Consequently, both terms are used to denote this concept in the context of EU law and Croatian constitutional law.10

The necessary terminological precision can be achieved by adding additional descriptors, such as the legal field in which the concept in question is used, e.g. the principle of supsidiarity in EU law, as opposed to the principle of supsidiarity in constitutional law. As Sandrini suggests, indicating the legal field helps to disambiguate a term (2004: 145). In the case of the principle of proportionality, it is recommended to use one Croatian term to denote the concept on the EU level and another for the concept on the national level. This would prevent ambiguities and facilitate legal translation. Otherwise, there is a risk that inconsistent usage of terminology might not only confuse translators of legal texts, but lead to legal uncertainty as well.

5.3 Example 3: Primacy The Declaration concerning primacy11 (FR Déclaration relative à la primauté, DE Erklärung zum Vorrang, SL Izjava o primarnosti) was annexed to the Final Act of the Intergovernmental Conference adopted together with the Treaty of Lisbon, signed on 13 December 2007. The Declaration states that, in accordance with the case-law of the Court of Justice of the EU, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of member states, under the conditions laid down by the said case-law. To examine whether similar concepts exist in Croatian law, the procedure employed in descriptive terminology projects by Riggs et al. is applied. After identifying and delimiting a subject field and compiling an exemplary12 corpus of relevant literature, five tasks need to be carried out:

1. identifying the key works in which the subject-field concepts are used; 2. identifying the relevant concepts; 3. defining these concepts; 4. determining which words, phrases or symbols are used as terms to designate them,

and 5. selecting contexts to illustrate their usage (Riggs et al. 1997: 185-186).

This procedure can be used to compile a terminological corpus for a specific field and to create conceptual glossaries. In my opinion, a similar procedure can also be helpful when translating interdisciplinary concepts. To illustrate this on the example of primacy, I have compiled a corpus including the Croatian Constitution, relevant legal textbooks,

10 It is important to differentiate these concepts from the Croatian sudski test proporcionalnosti

(judicial control), and the proportionality test in the context of the free movement of goods. Two Croatian terms are used to denote the latter concept test proporcionalnosti and test razmjernosti which leads to further inconsistency and ambiguity.

11Available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0335:0359:EN:PDF (visited 10 July 2010)

12 Instead of the term representative literature I prefer exemplary corpus, agreeing with Martin that corpora (for terminological dictionaries) cannot be representative, but at best exemplary (2003: 340).

88 Martina Bajcic

scholarly writing, Eurovoc and the Croatian Lexicon of Law. The results of the five-step analysis of the corpus can be summarized as follows:

1. nadređenost (Visković 2006: 180); 2. nadređenost (Ćapeta 2009); 3. nadređenost (Pezo 2010: 768); 4. prvenstvo (in the Croatian translation of Herdeggen’s Europarecht, 2003: 221)13; 5. prvenstvo (Omejec 2008); 6. primat as the recommended term and prvenstvo (Eurovoc)14; 7. iznad zakona (Smerdel 2006: 185)15; 8. viši i niži akti (Perić 1994: 106).

The results show that the term nadređenost is used in legal textbooks on constitutional law (first example) as well as in a scholarly paper dealing with the relationship between Constitutional and EU law (second example). In addition, the term nadređenost is an entry term in the Croatian Lexicon of Law (third example). On the other hand, the term prvenstvo is only found in one textbook on European law, which is a translation from German (fourth example), and in a recently published book on EU law (fifth example). It is worth noting that the author of the latter book is the presiding judge of the Constitutional Court of the Republic of Croatia. The term recommended by Eurovoc primat is not a Croatian term and thus not considered an appropriate equivalent for primacy (sixth example).

From the above it can be concluded that the term prvenstvo is used only in the context of EU law, whereas nadređenost is preferred in the context of constitutional law. Examples 7) and 8) list other terms which are not considered relevant for our purpose because they refer to the hierarchy of legal acts.

Having identified the Croatian terms used to denote the concept of primacy, further analysis is needed to determine which of these terms is the most adequate and whether the concept denoted by this term has the same scope of application as the English concept.

5.4 Conceptual analysis

Before continuing, a few words should be said about the difference between concept (Begriffsinhalt) and meaning. The former is a cognitive category, whereas the latter is a linguistic one. As Felber points out, certain terms move in a conceptual-semantic field

13 Herdegen's Europarecht was translated from German into Croatian by two professors of law:

Prof. Dr. Edita Čulinović Herc and Prof. Dr. Nada Bodiroga Vukobrat and published by the Rijeka Faculty of Law in Rijeka 2003. English translations are my own, unless otherwise indicated.

14 Available at: http://eurovoc.europa.eu/drupal/?q=de/search&text=prvenstvo%20prava&cl=hr&page=1 (visited 10 July 2010) 15 Constitution of the Republic of Croatia, Art. 134: International agreements concluded and

ratified in accordance with the Constitution and made public shall be part of the Republic's internal legal order and shall in terms of legal effect be above law. (Official English translation of the Constitution of the Republic of Croatia, emphasis added.)


(Felber 2001: 58-59)16. Similarly, the word field (Wortfeld) reflects the conceptual field (Begriffsfeld) (Trier 1931:1-2). In cognitive linguistics the intertwined relationship of lexical and conceptual knowledge is emphasized by the term lexical concept (Komlev 1976; Žic-Fuchs 1991, 2009). For the purposes of this chapter, it is important to regard a concept as part of a structured concept field in accordance with Felber’s view that a concept is a set of common characteristics which can be observed by human beings in a certain number of objects (1982: 123).

The building blocks of conceptual analysis are concepts and characteristics. Characteristics can be classified according to the type of relation existing between the characteristic and the concept it describes, such as attributes (e.g. height, weight) and relations (part, function) (see Felber 2000 for more details)17. Similarly, Meyer et al. consider systematic concept analysis to consist of encoding knowledge within a knowledge base (Meyer et al. 1997: 99).

In order to analyze the concept of primacy it is necessary to determine its intension and extension. Intension is the sum of all the characteristics of a concept. It is the internal content of a notion or the sum of the attributes contained in it, which can be identical or variant, just as distribution (Chroma 2004: 31). While the intension of a term includes the set of essential properties which determines the applicability of the term, extension comprises the collection of objects to which a concept refers (Lyons 1977: 158-159, cited in Šarčević 2000: 239). Šarčević considers the scope of application of a concept, i.e., whether the concept can be applied in a concrete fact situation, to be vital for determining the extension of a concept (2000: 244)18. Both intension and extension can be narrow or broad and are instrumental for determining whether or not two terms are synonyms. For instance, the concept of claim is expressed by two different Croatian terms which are considered to be synonyms. Tražbina is the term used in the Croatian Obligations Act, whereas the term potraživanje19 is used in the Croatian Insolvency Act.

The existence of synonymy in legal language is attributed to non-standardized and inconsistent terminology (Gruntar Jermol 2009: 225). In the field of legal translation synonymy is undesirable as it confuses both experts and translators:

Von Synonymie spricht man auch in dem Fall, wenn innerhalb eines Faches für ein und denselben Begriff mehrere verschiedene Benennungen verwendet werden. Derartige Synonyme sind ein Zeichen einer nicht ausreichend vereinheitlichen Terminologie und sind als solche unerwünscht, da sie nicht nur bei Experten, sondern vor allem bei Überestzern Verwirrung verursachen. (Gruntar Jermol 2009: 225)

16 “Der Begriff ist eine erkenntnistheoretische Kategorie, die Bedeutung eine linguistische.

Untersuchungen in einigen Fachgebieten haben gezeigt, dass sich bestimmte Benennungen in einem begrifflich-semantischen Feld bewegen.“ (Felber 2001: 58-59).

17 Felber names five possible relations between the scope of two or more concepts: “Umfangsgleichheit, Unterordnung, Überordnung, Umfangsüberschneidung, und Ausschließung“ (2000: 62).

18 Based on intersection and inclusion Šarčević proposes three categories of equivalence for translators in field of law: near equivalence, partial equivalence and non-equivalence (2000: 237-240).

19 Croatian Obligations Act, Offical Gazette No. 35/2005 , Croatian Insolvency Act, Official Gazette, No. 44/96.

90 Martina Bajcic

While legal experts in the field of civil law maintain that the terms tražbina and potraživanje are synonyms and denote the same meaning, the intension of the terms is not absolutely equivalent. Potraživanje has a broader extension and is used more frequently. As for the Croatian terms used to express the concept of primacy, the above analysis shows that the term nadređenost does not have the same extension as prvenstvo, and that these terms are used in different contexts.

One of the main problems for translators working in the field of EU law is to find adequate equivalents for interdisciplinary concepts existing in both the national law and EU law, and whether or not one and the same term may be used to denote such concepts. Furthermore, translators of EU legislation should bear in mind that the meaning of a concept is sometimes determined by the Court, and therefore, they should consult the relevant case-law. Moreover, they need to take account of the fact that the meaning of legal concepts is not fixed, but “in a constant state of flux, being redefined by lawmakers, judges or scholars (Sandrini 1996: 345, cited in Kjær 2007: 81).”

The Court of Justice plays a vital role in the interpretation of concepts of EU law. As a rule, the Court’s approach is a teleological one in the sense that it considers the purpose of a given legal rule or a provision, i.e. the will of the legislator, rather than relying on literal interpretation. In other words, the Court finds the meaning by taking into account the purpose of the provision in question. In doing so, it enjoys a great margin of discretion and can define the concept in question extensively20.

In light of these considerations it is possible to distinguish linguistic, teleological and legal conceptualizations of the terms nadređenost and prvenstvo on the basis of the above mentioned five-step analysis of the exemplary corpus:

a) The term nadređenost denotes the linguistic conceptualization of quality or condition of being supreme21. Hence, to say that EU law is nadređeno (that it has supremacy) over national law, this would mean that national law is subsidiary or subordinate.

b) However, the concept of primacy of EU law as interpreted by the Court of Justice

means that national law which is contrary to EU law shall not be applied. It does not imply that national law is subsidiary. This corresponds to the teleological interpretation of the concept of primacy.

c) Thus, a Croatian professor of law22 argues that this concept does not involve

substantial nadređenost in the sense of higher legal authority or in the context of Constitutional law. In his opinion, the term law in the Declaration concerning primacy is ambiguous as to whether it denotes law or legal acts. Based on other language versions: Recht, droit, the underlying concept is assumed to be law, which could be taken as an argument in favorem of the term nadređenost (a term used in the context of law en generale).

20 See Lawrie-Blum 66/85, Levin 53/81, Kempf 139/85, Steymann 196/87. A worker can be a

student as well as someone who works part-time (Herdeggen 2003: 209). 21 Entry from the online Croatian dictionary for the term nadređenost: 1. osobina onoga koji je

nadređen, svojstvo onog što je nadređeno 2. lingv. odnos dvaju pojmova u kojemu je sadržaj jednoga pojma uključen u sadržaj drugoga, a opseg toga drugoga pojma u sadržaj prvoga, vidi podređen. Available at: www.hjp.hr (visited 10 May 2010)

22 Professor Siniša Rodin elaborated this view at a lecture held at the Faculty of Law of the University of Rijeka at the Postgradute programme in European Integration Law in April 2010.


d) Finally, the term prvenstvo, which is not used in Croatian legal language,23 denotes

the state of being first in rank24. Although this term is not listed in the Croatian Lexicon of Law it is more neutral than nadređenost and corresponds to the French, German and Slovene equivalents listed at the beginning of the previous section.25

In conclusion, it can be said that the analysis of the term nadređenost indicates that legal scholars and researchers in the field of constitutional law conceptualize this term differently than those in the field of EU law. On the basis of the above conceptualizations and especially considering b) and d), the term prvenstvo would be in my opinion a more adequate equivalent than nadređenost for primacy. Unlike the former term which is used in constitutional law, prvenstvo is more neutral and does not refer to a specific field of law. Furthermore, it corresponds to the equivalents for primacy in other EU official languages. Finally, it denotes the concept of primacy in the meaning attached to it by the case-law of the Court of Justice.

Considering that the consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union have not yet been officially translated into Croatian, it remains to be seen which term will be adopted as the official equivalent. At present, Croatian legal scholars are starting to discuss new concepts from the Treaty of Lisbon. In the absence of a standardized Croatian terminology for EU concepts, there is a danger of inconsistency, since legal scholars are using different terms to denote the same concept.

6. Summary of Findings

As has been shown, the transfer of concepts from one subject field into another requires a transparent terminological approach. Such an approach includes the following steps: 1) delimitation of a specific legal field by establishing relevant terminological data bases; 2) identifying which terms belong to the particular field, and 3) conducting conceptual analysis.

Caution is necessary when classifying interdisciplinary concepts and ‘synonyms’, e.g. the principle of proportionality which can belong to Croatian constitutional law and to EU law. Hence, it is important to bear in mind that, although certain interdisciplinary concepts, i.e. concepts used in more than one field of law may be couched in the same term, their ‘meaning’ may differ from one legal field to another. In other words, when professors of European law use the term nadređenost, they might not be thinking of the same concept as researchers or lawyers using this term in the field 23 An exception is found in the context of shareholder’s rights to purchase shares under the

Croatian legislation (pre-emption right), which is in Croatian law known as pravo prvokupa. However, the Croatian Financial Glossary refers to the latter as to pravo prvenstva. Available at: http://wmd.hr/rjecnik-pojmovi-p/web/pravo-prvenstva-dionicara/ (visited 10 August 2010).

24 Entry from the online Croatian dictionary: 1. prvo mjesto kao prednost, najviša počast; starješinstvo, prvijenstvo 2. prednost [imati prvenstvo; cesta s pravom prvenstva] Available at: www.hjp.hr (visited 10 May 2010)

25 It should be noted that a research conducted based on a Croatian corpus wikicroatia (source) resulted in only 4 entries for the term nadređenost, whereas it listed 42 pages for the term prvenstvo. However, these did not include legal meanings of these concepts.

92 Martina Bajcic

of constitutional law. From the above study it follows that nadređenost and prvenstvo are conceptualized differently by legal scholars working in different fields of law. Thus, it is essential to follow Felber’s advice: “Die Festlegung der Begriffe ist unbedingt nötig für einen Wissenstransfer.“ (Felber 2001: 60). This can be achieved by means of a transparent terminological approach which resolves difficulties concerning the classification and conceptualization of interdisciplinary concepts, thus proving indispensable in legal translation. References

Cabré, M. T. 2003. “Theories of terminology. Their description, prescription and

explanation.” In Terminology 9(2), Amsterdam: John Benjamins, 163-200. Ćapeta, Tamara. 2009. “Nacionalni ustav i nadređenost prava EU u eri pravnog

pluralizma.” Collected papers of Zagreb Law School, year: 59, no. 1: 63-96. Christiansen, Thomas. 2010. “The Concept of Property and of Land Rights in the Legal

Discourse of Australia Relating to Indigenous Groups.” In Legal Discourse across Languages and Cultures, edited by Maurizio Gotti & Christopher Williams, 285-313. Bern: Peter Lang.

Chroma, Marta. 2004. Legal Translation and the Dictionary. Tübingen: Max Niemeyer Verlag.

Felber, Helmut. 2001. Allgemeine Terminologielehre, Wissenslehre und Wissenstechnik. Theoretische Grundlagen und philosophischen Betrachtungen. Wien: Termnet.

Geld, Renata. 2006. “Conceptualization and aspects of construal: fundamental cognitive linguistic notions” in Contemporary Linguistics (Suvremena lingvistika), issue: 62: 183-212.

Gómez Gonález-Jover, Adelina. 2006. “Meaning and anisomoprhism in modern lexicography.” Terminology 12:2, 215-234. Amsterdam: John Benjamins: 215-234.

Grozdanić, Velinka and Marissabell Škorić. 2009. Uvod u kazneno pravo. Opći dio, Zagreb: Organizator.

Herdeggen, Matthias. 2003. Europsko pravo. Rijeka: Pravni fakultet Sveučilišta u Rijeci. Kjær, Anne Lisse. 2007. “Legal Translation in the European Union: A Research Field in

Need of a New Approach.” In Language and the Law: International Outlooks edited by Krzysztof Kredens and Stanisław Goźdź Roszkowski, 69-97. Frankfurt am Main: Peter Lang.

Komlev, N. G. 1976. Components of the Content Structure of the Word. The Hague – Paris: Mouton.

Langacker, Roland. 1991. Foundations of Cognitive Grammar, Descriptive applications, Vol. II, Stanford, California: Stanford University Press.

—. 1988. “An overview of cognitive grammar.“ In Rudzka-Ostyn (ed.) Topics in Cognitive Linguistics: 3-47.


Meyer, Ingrid, Karen Eckand Douglas Skuce. 1997. “Systematic Concept Analysis within a Knowledge-Based Approach to Terminology.” In Hanbook of Terminology Management. Vol. I. edited by Sue Ellen Wright and Gerhard Budin, 98-119. Amsterdam Philadelphia: John Benjamins Publishing Company.

Meyer, Ingrid and K. Mackintosh. 2003. “Phraseme analysis and concept analysis: Exploring a symbiotic relationship in the specialized lexicon.” In Euralex 1994 Proceedings edited by Martin W., Meijs. M. Moerland, E. ten Pas, P. van Sterkenburg and P. Vossen. The Netherlands. 339-348.

Moerdijk, Fans. 2003. “The codification of semantic information.” In: A Practical Guide to Lexicography, edited by Piet van Sterkenburg. Amsterdam/Philadelphia: John Benjamins Publishing Company: 273-297.

Omejec, Jasna. 2008. Vijeće Europe i Europska unija – institucionalni i pravni okvir. Zagreb: Novi informator.

Perić, Berislav. 1994. Država i pravni sustav. Zagreb: Informator. Pezo, Vladimir. 2009. Pravni leksikon. Zagreb: Leksikografski zavod Miroslav Krleža. Riggs, Fred W., Matti Mälkiä, and Gerhard Budin. 1997. Descriptive Terminology in

Social Sciences. In Handbook of Terminology Management. Vol. I. edited by Sue Ellen Wright and Gerhard Budin, 184-197. Amsterdam Philadelphia: John Benjamins Publishing Company.

Sandrini, Peter. 2004. „Transantionale interlinguale Rechtskommunikation: Translation als Wissenstransfer.“ In Rechtssprache Europas, edited by Friedrich Müller and Isolde Burr, 139-157. Berlin: Duncker & Humblot.

Smerdel, Branko. 2006. Ustavno pravo. Zagreb: Pravni fakultet. Šarčević, Susan. 2002. “Problems of interpretation in an enlarged European Union.” In

L’interpretation des textes juridiques rédigés dans plus d’une langue edited by Rodolfo Sacco, 239-273. Italia: L’Harmattan.

Trier, Jost. 1931. Der deutsche Wortschatz im Sinnezirk des Verstandes: Die Geschichte eines sprachlichen Feldes, I von den Anfängen bis zum Beginn des 13 Jh. Heidelberg: Winter.

Visković, Nikola. 1995. Država i pravo. Zagreb: Birotehnika. Willy, Martin, Hennie van der Vliet. 2003. „Design and production of terminological

dictionaries.” In: A Practical Guide to Lexicography, edited by Piet van Sterkenburg. Amsterdam/Philadelphia: John Benjamins Publishing Company: 333-350.

Žic-Fuchs, Milena. 2009. Kognitivna lingvistika i present perfect. Zagreb: Nakladni zavod Globus.

—. 1991. Znanje o jeziku i znanje o svijetu. Zagreb: SOL.


ANALYSIS FRAMEWORK FOR TRANSLATION OF MARITIME LEGAL DOCUMENTS

Mª ISABEL DEL POZO TRIVIÑO [email protected] University of Vigo, Spain

Abstract Maritime activity around the globe currently generates a great amount of translation work, especially from English into other languages. This paper focuses on the analysis of the translation process in maritime legal and administrative documents. The study first establishes which maritime documents are most often translated and a tool is then developed to analyse such documents in detail, based on the concept of textual genre. Such analysis would help translators to better understand these highly specialised documents and thus contribute towards improving translation of the same. Key words: maritime documents, textual genre, subgenre, macrogenre, systems of genre.

1. Introduction The sea is a medium that links people the world over. Maritime transportation around the globe nowadays accounts for huge turnover figures. This results in great commercial activity of a multicultural and multilingual nature, where most transactions are carried out in English. It is not surprising therefore that maritime activity generates a large amount of translation work, especially from English into other languages.

This paper focuses on the analysis of the translation process in maritime legal and administrative documents. Such documents shall be hereinafter referred to as maritime documents. Given the fact that legal translation is a very wide field wherein a lot of aspects are yet unexplored, I have chosen to concentrate on an area in which I have ample experience (+14 years) as a professional translator in Vigo (Spain) ‒a city with one of the most important commercial ports in Europe and in the world.

The principal objective of this paper is to first establish which maritime documents are most often translated and then develop a tool for analysing such documents in detail based on the concept of textual genre. The results of this paper would help translators to better understand these highly specialised documents and thus contribute towards improving translation of the same. Each and every genre is not analysed here1 due to space limitations and therefore only the genre analysis method, which facilitates translation from English into any other language, is presented herein.

1 See Del Pozo (2007) for an extensive analysis of the most important maritime documents

mentioned herein.

96 Mª Isabel del Pozo Triviño

2. Principal maritime documents

There are many documents linked to maritime activity which frequently need to be translated. These, according to their importance, include:

1. Sea Protest 2. Shipbuilding Contract 3. Bill of Lading 4. Protocol of Delivery & Acceptance 5. Single Customs Declaration 6. Cargo Manifest 7. Vessel Purchase & Sale Agreement 8. Maritime Insurance 9. Charterparty Agreement 10. Naval Mortgage 11. Privileged Maritime Lien

3. The concept of genre applied to translation and its analysis framework

The notion of genre began to gain impetus in Translation Studies after the 1970s and achieved wide acceptance through the work of Hatim & Mason (1990), who followed audiovisual communication scholars such as Kress (1985) and systemic functionalist such as Martin (1984). They defined genre from an approach that includes formal, sociocultural and cognitive perspectives.

There are also many authors from the field of specialised translation who defend usefulness of classifying the several genres of a specialisation (García Izquierdo 2007, Monzó 2002). My opinion is that classification of texts into genres helps us to organise them prior to their actual analysis. Guidelines established by the research group GITRAD-GENTT have been used in this study to classify genres linked with maritime activity2. The said research group has classified legal macro-genres and has also created an index card for legal genre analysis. GITRAD-GENTT guidelines have been used in this study as a starting point by adapting them for analysis of maritime documents. The said guidelines are flexible, dynamic and can be generally used for all types of legal texts.

The many advantages provided by genre taxonomy in two different systems (source & target) enable translators to benefit not only from a linguistic point of view but also from a sociocultural one. In this sense Borja states:

a comparison of several texts in their source and target languages is a task which is constantly performed by specialised translators. Translators need to master text typology in their field of specialisation in order to ensure that their translations

2 http://www.gentt.es/

Analysis Framework for Translation of Maritime Legal Documents 97

contain the required textual, social and legal conventions3. There therefore arises a need to have schemes for classifying documents in each field of specialisation4 (1998).

Specialist translators greatly benefit from recourse to text taxonomy, both in source and target languages, since it helps them to understand and compare texts from organisational and contextual points of views. Mediators should always try to understand the characteristic traits of each text genre in order to adapt their translation to such characteristics so that any target user is able to identify the same5.

Paltridge (1994), on the subject of genre analysis, states that we should first determine our basis of analysis, i.e., whether we have taken into account just formal items or those of content as well. Text analysis was traditionally associated with form and not content, however, there is an increasing trend towards importance given to content:

(...) indicators of boundaries are most clearly seen in terms of content; that is, it is a cognitive rather than a linguistic sense that guides our perception of textual division (Paltridge, 1994: 295, apud Posteguillo, 1996).

Depending on the approach selected, analyses should essentially take into account both formal and content aspects, especially when the field of specialisation we are interested in is quite alien and unknown to most translators who for the very first time are faced with the task of converting text from one language into the other. If we are not familiar with the world of maritime law, then we would obviously not know the meaning of terms such as "Sea Protest" or how one writes a "Vessel Charterparty Agreement" or know which elements are essential to a "Bill of Lading" for it to have legal effect. Translators therefore should not only have a command of both source and target languages but also have extra-linguistic knowledge of the documents they intend to translate in order to be successful in their communicative mediation task.

The analysis framework proposed in this paper for studying the selected genres is a wide framework which takes into consideration not only formal and content factors but also linguistic and extra-linguistic ones. 4. Analysis framework based on the genre concept The analysis framework proposed hereunder is deliberately eclectic since it contains concepts not only from Systemic Functional Linguistics but also from genre theory applied to translation studies. 3 One of the useful and interesting trends of translation theory for this study was contrastive

textology by Hartmann (1980). 4 A lot of work has been done in the languages field to achieve specific objectives and there are

many works on text classification, especially for economy and business, as well as for technical and scientific texts (Tannen, 1982; Biber, 1989, 1994; Swales 1990.

5 Biber (1989) defends a similar argument and proposes the use of a (text-type) to refer to those texts that have maximum similarity with respect to their lexical characteristics (identified via statistical analysis).


Concepts explained later in this article and which form the skeleton for the analysis framework are: macrogenre, genre, subgenre, communicative situation, formal and contrastive issues and relationship with other genres. The following table presents the basic structure of the analysis index card, which is based on GENTT guidelines for analysing specialisation genres:

ANALYSIS INDEX CARD Macrogenre Genre Subgenres Communicative situation Formal and contrastive issues Relationship with other genres

Table 1: Analysis index card for specialisation genres

Concepts outlined in the analysis index card will be discussed in detail in the following paragraph. 4.1 Macrogenre The macrogenre concept is a label that does not correspond with any "reality" and is therefore only valid for classification and taxonomic purposes. The following are the "labels" used for classifying genres linked to maritime activity.

The Administrative texts macrogenre includes texts from public administrations, (except court texts which are included under another macrogenre called "court texts"). This macrogenre is really quite extensive since there is an infinite number of genres related to public administrations that often need to be translated. Thus birth certificates, death or marriage certificates, police clearance certificates, academic certifications, vessel registry certificates, etc. are a few examples of the same.

Meeting of minds or mutual agreement is an agreement between one or more persons through which one or more persons are obliged to either do something or not to do it. Amongst “mutual agreements” we could highlight contracts, treaties, conventions, etc. This is also an extensive macrogenre which contains a huge number of genres.

Unilateral declarations. Texts of this type correspond to manifestations made by just one party. However, this is also a wide and flexible category since it contains many genres, which in turn fit into other macrogenres. For example, an expert's report is a "unilateral declaration" but it could also be a “Notarial Document”. Testaments, powers of attorney, etc. can also be included under unilateral declarations or under Notarial documents.


4.2 Genre As explained at section 3, the genre concept associated with the multicultural nature of translation has been used in Translation Studies since the 1970s. The genre concept used in the present work includes formal and sociocultural aspects of texts. It also includes cognitive aspects, amongst which worth mentioning is the intention of participants in the communication action. Ezpeleta defines genre as follows:

Genres are firstly defined by the communication purpose that they try to fulfil. This is what determines the remainder of the characteristics and the one that permits differentiation between genres (2008:431).

At this level of analysis the function of the different genres that fit into the macrogenres mentioned in the earlier section is be described. It is important to clarify at this stage that the classification of genres sometimes coincides in the two systems (source and target) but no perfect equivalence in both systems is sometimes observed.

4.3 Subgenre Certain genres in turn present specific manifestations that convert them into subgenres, since they respond to variations or specifications for the communication purpose (Ezpeleta, 2008). The said communication purpose variations or specifications can in turn be related to the end result or the communication action of the participants.

As in the case of genres, subgenres within a specific legal context may sometimes not coincide with the subgenres of a foreign legal system. In our field of interest, this mainly happens with genres that are less standardised and less uniform. This is because such genres and subgenres are included in the source language legal system but are not included in the international legal system, which is common to all countries.

For instance, the subgenres of Naval Mortgage are quite different in the different legal systems because the said document has not undergone a strong standardisation process. However, the subgenres of Charter Party are practically the same everywhere since they are always derived from the international model.

4.4 Communicative situation We can only talk about genre when members of professional or academic bodies accept the same as one. Therefore, in order to explain the communicative situation of a specific genre, we must at times have recourse to Linguistic concepts. These refer to the register (field, tenor and mode) and to the user (transmitter, receiver, idiolects, etc.) (Gamero 2001: 55). We shall now analyse the tenor in which documents of interest to us, are written. Tenor in our case is formal since the documents are legal and administrative ones. The field is specialised because we are talking about maritime documents and these documents are drafted by specialists, therefore their mode will always be written.

However, as mentioned earlier, my conception of translation activity is framed within a global analysis which takes into account not only the document's field of


specialisation, tenor and mode of presentation but also that such activity is carried out within a specific sociocultural context which strongly affects the nature of the same. Therefore, when we approach a text, we ought to also analyse the sociocultural context in which each of the genres analysed fit in. Along the same lines, Gamero outlines factors that must be taken into account when considering the “communicative situation” of a specific genre and therefore its sociocultural context:

With respect to translation, one should bear in mind that sociocultural contexts: (a) determine genre conventions in each culture, (b) perform a primordial function when creating new genres since they respond to specific communication needs which may be common or not in the different cultures, and (c) determine the guidelines in genre evolution since they adapt to changes produced in the culture, in which they are used (2001: 57).

4.5 Formal and contrastive issues Genres are structured and conventionalised communication actions. Cuddon describes convention as:

…a device, principle, procedure or form which is generally accepted and through which there is an agreement between the writer and his readers which subjects him to various freedoms and restrictions (1992: 192).

Conventions that characterise genres are the formal traits sanctioned by the user community to the detriment of other linguistically acceptable ones but which do not fit into the agreed patterns (Ezpeleta 2008: 432). Formal aspects refer to directly observable elements of the communicative fact, namely; structural characteristics and intra-textual aspects (amongst which are level of discourse, lexicon, level of terminological density, non-verbal graphical elements, etc.).

This section therefore analyses issues of a formal nature that characterise a specific genre and can be divided into:

(a) Macro-structure related issues, such as document size, its spread into paragraphs, clauses, etc; and

(b) Micro-structure related ones, such as syntax, aspects related to cohesion and coherence, typography, terminology and phraseology, etc.

Macro-structure. It is not uncommon to find that genres present a macro-structure which changes according to the cultural context in which they arise. Likewise, it would not be surprising to find a uniform format in certain genres that is independent of the cultural context in which they fit in. For documents generated within maritime activity, there is a strong trend towards homogenisation of documentation and therefore macro-structure of such documents tends to be quite similar if not identical.

Translation is a discipline that always involves a minimum of two languages and therefore in order to know the elements contained in each of them, it is sometimes quite useful to be able to compare genre macro-structure in the two languages. Such comparative analysis acquires higher relevance in genres whose macro-structures differ greatly in the two systems. Relevance is low when genres are practically the same in both systems.


We are faced with a dilemma during translation when macro-structures are different in both target and source languages. The translator is thus faced with the eternal dilemma of whether to adapt the text or not. The following are the options available: Respect the macro-structure of the source text and reproduce it in the target text. Adapt macro-structure of the original text to the generic macro-structure of the

target text. Adopt an intermediate solution which results in a hybrid. The third possibility leads us directly to the concept of “transgenre”, which was coined by Monzó in 2001 and further developed in her doctoral thesis in 2002. The author understands a transgenre as follows:

a genre that is exclusive to translation and includes the three cultural, cognitive and discursive aspects of genre; it shares characteristics that are homogeneous among texts belonging to the same genre and displays differences with respect to the original texts in the source and target cultures which it could be considered as being analogous to (Monzó, 2001: 251).

A transgenre arises when a genre belonging to a specific sociocultural and linguistic context gets transferred to a new sociocultural and linguistic context. The translational process creates a sole hybrid with unique characteristics that contains elements from the source context para-culture as well as elements from the target context para-culture.

Microstructure. On the subject of micro-structural issues, we can highlight analysis of language related aspects, syntax, phraseology, terminology, etc., which characterise a specific text genre.

In case of legal genres, most formal issues are determined by the legal context in which they are inserted and therefore by the legal system governing the same. Thus, legislative aspects that affect each of the genres in the respective legal systems should also be included at this analysis level which is dedicated to formal and contrastive issues.

4.6 Relationship with other genres This is where inter-relationship between genres is analysed and a brief review of Bazerman's work would help here. The author states that from a legal point of view, there exist what he calls "systems of genre" which the author describes as "…interrelated genres that interact with each other in specific settings"6 (1994: 97). Bazerman states that a good amount of genres are interdependent and cites the example of patents:

Only a limited range of genres may appropriately follow upon another in particular settings, because the success conditions of the actions of each require various states of affairs to exist. That is a patent may not be issued unless there is an application. An infringement complaint cannot be filed unless there is a valid patent. An affidavit about the events in a laboratory on a certain date will not be sworn unless a challenge to the patent is filed (1994: 98).

6 Yates and Orlikowski (2002) developed the genre system concept in a paper titled: “Genre

systems: Structuring interaction through communicative norms”. Also see Bazerman (2003) and Russell and Yáñez (2003).


There is a clear "genre system" within documents that are generated as part of maritime activity. This system in turn has a number of sub-systems. In fact law firms have created their own genre systems and often request translation of all inter-related documents (genres that are linked within a specific project). Purchase & Sale Agreement of a new vessel can be cited as an example in this case. Such an operation cannot be carried out without reference being made to the Shipbuilding Contract which governs construction of the vessel. The buyer of the vessel must provide approval to the construction of the vessel by the shipyard prior to signing the Vessel Purchase & Sale Agreement. In like manner, and at the time of purchase, the shipyard must provide documents related to the seaworthiness of the vessel built, together with registration documents, etc. Other documents issued at the time of purchase are Bill of Sale and Protocol of Delivery and Acceptance. All of the above are part of the one transaction that requires a well defined documentary system or what Bazerman calls "systems of genre".

We have so far established the different strategies or levels that can be taken into consideration when carrying out the analysis of legal documents for translation purposes. The following sections describe the designed analysis framework proposal and its application to classification and study of the most important maritime documents. In the present work we have only considered the classification of documents into macro-genres, genres and sub-genres, however, the remaining levels of analysis will be incorporated into future research works.

5. Proposal for classifying the principal maritime genres

The following is a classification proposal for maritime genres and subgenres that are grouped under a wider macrogenre. Justification for the proposal is also provided hereunder.

Administrative SINGLE CUSTOMS DECLARATION Meeting of minds/mutual agreements SHIP MORTGAGE

o DEED OF COVENANT SHIPBUILDING CONTRACT (SBC) SALE CONTRACT CHARTER PARTY

o TIME CHARTER o VOYAGE CHARTER o DEMISE/BAREBOAT CHARTER

MARITIME INSURANCE o HULL INSURANCE o CARGO INSURANCE o P&I INSURANCE

PRIVILEGED MARITIME LIENS


Unilateral declarations BILL OF LADING SEA PROTEST/NOTE OF PROTEST CARGO MANIFEST

Table 3: Proposal for classifying the principal maritime genres

The proposal put forward for genre classification is not a closed one. It is an information classification system which has proved to be of much value to me in organising information for the purpose of this study. For further illustration, we can state that contracts (including the Shipbuilding Contract) are "meeting of minds", while a Bill of Lading, for example, would be a "unilateral declaration" since it is a document drafted by the Captain of a vessel to certify goods carried onboard the vessel. However, as stated above, the multifunctional nature of certain documents warrants their simultaneous inclusion in several macro-genre categories. Therefore, in the mentioned case of Bill of Lading, we can say that it is a "unilateral declaration" and also an "administrative document" since it is a requisite required by Public Administrations for certain procedures.

5.1 Justification for classification proposal

The following is the justification for classifying frequently translated maritime texts into macro-genres, genres and subgenres. 5.1.1 Macrogenre: Administrative

Single Administrative Document (SAD). This is an "administrative document" and it is the main customs declaration used in international trade. Traders and agents use this document to declare imports, exports, and transit & community status declarations. It is also used to deposit and remove goods from customs warehouses. The SAD is aimed at ensuring openness in national administrative requirements, rationalize and reduce administrative documentation, reduce the amount of requested information and standardize and harmonize data7. Our research did not find presence of any subgenres for this genre, since it is a standardised international document.

5.1.2 Macrogenre: Meeting of minds

Ship Mortgage. This is a mutual agreement through which a mortgagor mortgages a vessel in favour of a mortgagee in exchange for a sum of money.

In as far as principal sub-genres of Naval Mortgage are concerned, mention must be made of the U.K.'s Deed of Covenant.

7 http://ec.europa.eu/taxation_customs/customs/procedural_aspects/general/sad/index_en.htm


Shipbuilding Contract (SBC). This is a "meeting of minds" (mutual agreement) entered into by the parties by which the ship-owner entrusts construction of a vessel to a shipyard which undertakes such construction.

As stated earlier, variations or specifications of the communicative purpose of genres give rise to subgenres. Such variations or specifications of the communicative purpose can in turn be related to the field of use, to its purpose, or to the participants in the communication action. The absence of any typical legal regulation both in Spanish and Anglo-American legal systems together with the trend towards international unification of norms that govern maritime law mean that standard forms are increasingly being used at the international level. This study considers such forms as subgenres within the SBC genre since they present variations that are related to scope of use, final objective, or the participants in the communication action. At times, choice of form will be based on influence of trade association which the builders belong to. Amongst the most widely used SBC types, special mention must be made, according to Gabaldón y Ruiz (2002: 253): of

a) The Shipbuilding Contract of West European Shipbuilders, (AWES). It revised and reissued in May 1999.

b) Shipbuilding Contract of the Maritime Subsidy Board of the United States Department of Commerce Maritime Administration (MARAD Form). It is used in relation to American newbuildings financed under Federal Ship Financing Program and authorized by Title XI of the Merchant Marine Act 1936.

c) Shipbuilding Contract of the Ship-owners Association of Japan (SAJ Form), It was published by the Shipbuilders’ Association of Japan in January 1974 and the framework of this form is commonly used in South Korea, China, Singapore and Taiwan.

d) Norwegian Standard Form Newbuilding Contract (NSF), drafted as a result of negotiations between Norwegian ship-owners associations and shipbuilders.

Ship Purchase & Sale Agreement. This is a mutual agreement. It is a legal agreement through which the seller transfers ownership of the vessel to the buyer for a set consideration/price.

Amongst the many ship purchase and sale agreements considered within this section as subgenres (since they have special characteristics), we can highlight some models of Ship Sale Contracts such as NIPPONSALE/778 and the SALESCRAP, the latter being designed for vessel scrapping.

Mention must also be made at this point of a practice at the time called sale "according to good or bad news". This was used whenever communication with the vessel was not possible (when current day communication systems were unavailable). It was a random agreement wherein the buyer risked paying the price of a vessel despite the fact that the vessel could be lost.

Charter Party. According to Alcaraz & Hughes (1997: 78), the term charter party is derived from the Latin term "charta partita". It was so called because the agreement was divided into two parts upon signature and each party kept one part. The charter party is an agreement wherein the vessel owner places his vessel at the disposal of the charterer so that goods can be shipped in exchange for payment of freight.

8 http://www.bimco.dk/Corporate%20Area/idea/News/NIPPONSALE%201999.aspx


Many subgenres can be found within the genre Charterparty and these require a detailed explanation due to the importance of such documents for maritime goods transportation. The following are the most important Charterparty agreements:

Time-Charter. This is an agreement which places a vessel at the disposal of a Charterer for a fee, so that the Charterer can undertake the voyages needed during a certain time period. Del Pozo & Padín state the following on the same:

This agreement transfers commercial management of the vessel to the Charterer, wherein the ship-owner company retains control and seafaring management of the vessel. The characteristic of this agreement is that expenses and risks are shared between the parties: the ship-owner company pays for vessel navigation expenses while the Charterer takes on commercial exploitation expenses and risks. This agreement is quite often used in practice (2005: 809).

The lack of specific legislation about the form of this agreement has given rise to a number of Time-Charter models amongst which mention must be made of: BALTIME, NYPE, LINERTIME charterparties and models created by oil companies such as STBTIME, SHELLTIME 4, etc.9.

Voyage-Charter. Del Pozo & Padín state (op. cit.: 810) that it is a "typically historical contract" which is entered into when the charterer contracts the entire load capacity of a vessel on a certain voyage. The authors further state:

…no management, commercial or seafaring transfer of vessel takes place, i.e.; the ship-owner company has full control of the same and only just places vessel transportation capacity at the disposal of the charterer for a specific trip (op. cit.: 810-811).

Several types of agreements are used for Voyage-Charters and include GENCON, the most used Charterparty model. Other Voyage-Charter models are CORE 7, EXXONVOY and SHELLVOY.

The authors state that there is a substantial difference between Time-Charter and Voyage-Charter:

… commercial management of vessel is transferred from vessel owner to charterer in Time-Charter, while in Voyage-Charter such management is retained by vessel owner. The basic characteristic of Time-Charter is the subordination of the Captain to the Charterer in so far as voyages to be undertaken is concerned (op. cit: 811).

Demise/Bareboat Charter. As explained by Alcaraz & Hughes (1997: 79), here, the vessel owner rents the vessel to the charterer without crew or fuel, and the charterer assumes all expenses and responsibility during the validity period of the agreement.

Others. Besides the abovementioned three types, there are other types of contracts which are half-way between Time-Charter and Voyage-Charter. These include:

9 Buelga & Wilson (1994) provide a classification of Charterparties in line with the purpose of

transportation.


Consecutive Voyage Charter, in which the vessel is chartered for a set of continuous voyages or for a fixed amount of voyages that can be undertaken during a certain time period.

Volume Contract or Tonnage Agreement, wherein a vessel is chartered for as many trips as are needed to transport a specific amount of goods.

Round Trip Charter, where the vessel is chartered for one trip but based on a Time-Charter, i.e.; the vessel is chartered for the time taken by a specific trip.

Slot Charter, this type does not refer to the entire vessel but to a certain amount of slots, which are equally dimensioned spaces that occupy dimensions of a standard sized container.

Maritime Insurance. Marine underwriters, through Maritime Insurance, undertake to insure policy holders under certain circumstances, upon payment of a fee premium. The principal Maritime Insurance sub-genres include: a) Hull Insurance, which covers vessel owner's interest in relation to a specific vessel.

This insurance policy is of two types: ‒ Vessel Insurance, which includes hull, machinery, rigging and everything that belongs to a ship, including provisions and fuel. ‒ Liabilities Insurance, which covers material damage caused to third party goods.

b) Cargo Insurance, which insures goods loaded on a vessel for transportation, as well as any interests pertaining to the same. The ILU – Institute of London Underwriters published some clauses for Cargo Insurance called Institute Cargo Clauses10. It is the most frequently used type of document.11

c) Other Maritime Insurance Policies worth mentioning are Ship-owner’s Freight & Civil Liability, and P&I Insurance. The history of P&I Clubs is quite interesting and dates back to the 18th century. They were established by vessel owners from different geographic areas who were not satisfied with cost and cover provided by insurance companies of the time. Although it is true that P&I Clubs originated in Great Britain, they soon became international. Many insurance companies tend to follow the Anglo-Saxon insurance policy model and therefore P&I Clubs have gained worldwide importance within the field of international maritime law. This has led to the need for translation from English into other languages.

Maritime Lien. This is a voluntary agreement whereby a creditor agrees to loan money to a debtor for carrying out navigation related activities.

Gabaldón & Ruiz (2002: 268) and Arroyo (2002: 125), amongst other authors, indicate that Maritime Lien is one of the remarkable “characteristics” of Maritime Law because a creditor avails of the vessel to provide credit, something that does not happen with other credits regulated by civil or mercantile common law. 10 Orts (2006) carried out a detailed study of these clauses. 11 The following link can be used to freely download all model policies pertaining to this

organisation: http://www.jus.uio.no/lm/private.international.commercial.law/insurance.html


5.1.3 Macrogenre: Unilateral declarations Bill of Lading (B/L). This is a “unilateral declaration” since the person-in-charge (captain, shipping agent or transport company) acknowledges receipt of goods onboard the vessel for transportation and undertakes to deliver goods to the legitimate holder of the title at destination. However, just like in the case of other documents, one can argue that this is an “administrative document” because at times the document is a requisite without which certain commercial transactions cannot be carried out. There are many subgenres within the genre Bill of Lading. According to Gabaldón & Ruiz (2002), and Del Pozo & Padín (2005: 811), we can divide them into two main types12:

(a) Tramp Bills of Lading. These are issued for Voyage Charterparties and therefore most of their clauses are taken from the said charterparties through an incorporation mechanism. They are mainly used for bulk carriage. Del Pozo & Padín highlight CONGENBILL13 (bill of lading to be used with charter-parties) and INTANKBILL 78, used mainly for transportation of crude oil.

(b) Liner Bills of Lading. These are autonomous Bills of Lading which specify carriage conditions since they are conceived for vessels that serve on regular routes. The CONLINEBILL is worth mentioning here, which specifies that it is a Liner Bill of Lading.

Sea Protest/Note of Protest. A Sea Protest is a “unilateral declaration” because it is generally made by the person commanding the vessel and is made to cover the interested party from any possible liability that may arise. There is no intervention from any other party. During our study, we did not find any evidence of subgenres for the genre Sea Protest.

Cargo Manifest. This is a “unilateral declaration” because it is a document drafted by the Captain after goods have been loaded onto the vessel. However, just like in the case of Bill of Lading, we can also argue that this too could be considered as an “administrative document” for the same reasons explained hereinabove.

There are two subgenres for the Cargo Manifest, namely: a) Inward Manifest: a document that needs to be handed upon arrival of vessel at

a port. b) Outward Manifest: a document that needs to be handed over at departure of vessel

from a port. Now that justification has been provided for classification into genres and subgenres, I would like to clarify that this is not a final or rigid proposal since we could debate that the analysed genre could possibly be included under other macrogenres. Therefore, we may argue that a Bill of Lading could be considered as a “unilateral agreement” and thus could also be included under the “administrative document” macrogenre. This proposal is therefore dynamic and flexible, where the objective is to contribute to organising the different textual genres that are connected with maritime activity.

12 Buelga & Wilson (1994) provide an exhaustive presentation of the several Bills of Lading.

Socorro (2002) presents a list of the principal Bills of Lading approved by BIMCO.


6. Conclusions Several conclusions can be drawn from this study, some of them already mentioned in earlier paragraphs. Firstly, we can conclude that there is a field of specialization within translation, namely; translation of documents related to maritime activity. These documents contain special characteristics that translators ought to know, in order to successfully carry out their linguistic mediation task. Such characteristics may at times be purely formal or linguistic, while at other times they may be influenced by extra-textual conditions, such as the legal system of the country where the original documents were written. Therefore, translators need to have an in-depth knowledge of the genres they translate such that their translation fulfils the same communication purpose in the target language as in the source language text.

Secondly, we can also conclude that there are certain textual genres that are translated more often than other genres. This conclusion helps us to decide which genres should be analysed in detail, in order to obtain a greater yield from our analysis. Therefore, we can conclude that the three most “yielding” genres for analysis are: Sea Protest, Shipbuilding Contract and Bill of Lading14.

The third conclusion that can be drawn is the predominance of English in international relations, and more precisely within maritime activity, and therefore its designation as a vehicular language by the IMO (López & González 2004). Most documentation related to maritime activity is drafted in English even though place of origin of the document may not be an English speaking country. It is normal that such English originals are sent for translation into target languages although there are times when originals written in other languages need to be translated into English. An example of the latter is Naval Mortgage, which is signed by companies of a certain country with partners from a foreign country.

The present work has presented classification of the most frequently translated maritime documents into macrogenres. Such classification is followed by an analysis index card that helps one to undertake a detailed study of maritime genres. Further work will hopefully permit us to apply the analysis framework presented here, in order to throw more light on this specific section of translation studies. References Alcaraz, E. & Hughes, B. 1997. Diccionario de términos jurídicos. Inglés-español.

Barcelona: Ariel. Arroyo, I. 2002. Compendio de Derecho Marítimo. Madrid: Tecnos. Bazerman, Ch. 1994. “Systems of genres and the enactment of social intentions” in

Genre and the New Rhetoric de Freedman A. & P. Medway eds., 79-101. London: Taylor & Francis Ltd.

14 See Del Pozo (2007) and Del Pozo & Padín (2005).


Bazerman, Ch. 2003. “What is not institutionally visible does not count: the problem of making activity assessable, accountable, and plannable” in Writing selves/writing Societies: Research from Activity Perspectives by Bazerman, Ch. & D. Russell, eds.. http://wac.colostate.edu/books/selves_societies/ [Last visit: 14.07.07].

Biber, D. 1989. “A typology of English texts” in Linguistics 27, 3-43. DOI: 10.1515/ling.1989.27.1.3, //1989

Biber, D. 1994. “Towards a comprehensive analytical framework for register studies” en Perspectives on Register: Situating Register Variation within Sociolinguistics by Biber, D. & E. Finegan, eds. Oxford University Press, 235-276.

Borja, A. 1998. Estudio descriptivo de la traducción jurídica. Un enfoque discursivo. PhD thesis. Universitat Autònoma de Barcelona, Department of Translation & Interpretation.

Buelga, J. & D. Wilson 1994. English for Maritime Commerce. Colegio de Oficiales de la Marina Mercante española. Madrid: Iberediciones.

Cuddon, J. 1992. The Penguin Dictionary of Literary Terms and Literary Theory. Harmondsworth: Penguin.

Del Pozo, M. 2007. Análisis contrastivo de los géneros del derecho marítimo para la traducción inglés-español. PhD thesis. CD Rom. University of Vigo Publications Service.

Del Pozo, M. & Padín, A. 2005. “Conceptos básicos sobre los principales contratos de explotación de buques”. In Actas del II Congreso Internacional AIETI, 808-819. Madrid: Universidad Pontificia de Comillas. CD-Rom format.

European Commission Taxation and Customs Union. http://ec.europa.eu/taxation_customs/customs/procedural_aspects/general/sad/index_en.htm. [Last visit: 21.12.2010].

Ezpeleta, P. 2008. “El informe técnico. Estudio y definición del género textual”. In La traducción del futuro: mediación lingüística y cultural en el siglo XXI. Vol. II La traducción y su entorno, Luis Pegenaute, Janet DeCesaris, Mercè Tricás and Elisenda Bernal eds., 489-501. Barcelona: PPU.

Gabaldón, J.L. & Ruiz, J. 2002. Manual de derecho de la navegación marítima. 2ª ed.. Madrid: Marcial Pons. Ediciones Jurídicas y Sociales S.A.

Gamero, S. 2001. La traducción de textos técnicos. Descripción y análisis de textos alemán-español. Barcelona: Ariel.

García Izquierdo 2007. “Los géneros y las lenguas de especialidad”. In Las lenguas profesionales y académicas by Alacaraz E. ed.. Alicante-Barcelona: Ariel. IULMA. Pp. 119-125.

Hatim, B. & I. Mason 1990. Discourse and the Translator. London: Longman. Hartmann, R. K. 1980. Contrastive Textology. Studies in Descriptive Linguistics.

Heidelberg: Julius Groos Verlag. Kress, 1985. Linguistic Processes in Sociocultural Practice. Victoria: Deakin University

Press. López, A. & González, I 2004. Inglés marítimo. A Coruña: Netbiblo. Martin, J.R. 1984. “Language, register and genre” by Christie F. ed.. Children Writing:

Reader. Geelong: Deakin University Press. 21-29. Monzó, E. 2001: El concepte de gènere discursiu. Una aplicació a la traducció jurídica.

Research Project, Castelló, Universitat Jaume I.


Monzó, E. 2002. La professió del traductor juridic i jurat: descripció sociològica del profesional i anàlisi discursiva del transgènere. PhD thesis. Castellón: Universitat Jaume I.

Orts, M. 2006. Aproximación al discurso jurídico en inglés. Las pólizas de seguro marítimo de Lloyd's. Madrid: Edisofer.

Posteguillo, S. 1996. Genre Analysis in English for Computer Science. PhD Thesis collection. Valencia: University of Valencia.

Russell, D. & A. Yáñez, 2003. “Big picture people rarely become historians': Genre systems and the contradictions of general education”. In Writing Selves/Writing Societies: Research from Activity Perspectives by Bazerman C. & D. Russell, eds.. http://wac.colostate.edu/books/selves_societies/ [Last visit: 14.04.09].

Socorro, K. 2002. La traducción comercial: un modelo didáctico para la traducción de documentos mercantiles del comercio internacional inglés-español. PhD thesis. University of Las Palmas de Gran Canaria.

Swales, J. 1990. Genre Analysis: English in Academic and Research Settings. Cambridge: Cambridge University Press.

Tannen, D. ed. 1982. Spoken and Written Language: Exploring Orality and Literacy. NJ: Ablex, Norwood.

Yates, J. & W. Orlikowski 2002. “Genre systems: Structuring interaction through communicative norms”. In Journal of Business Communication, 391, 13-3.

• Research in Language, 2011, vol. 9.1 • DOI 10.2478/v10015-011-0009-x

EU TERMINOLOGY IN INTERPRETER TRAINING: SELECTED PROBLEM AREAS CONNECTED WITH

EU-RELATED TEXTS EWA KOŚCIAŁKOWSKA-OKOŃSKA [email protected] Nicolaus Copernicus University in Toruń, Poland

Abstract The presentation refers to the entire area of translating legal terminology, in particular to the translation of EU law-related texts that are especially vital for translating the acquis communautaire. This area of translation (and interpreting) services has been developing rapidly. The language used in documents is specialist and, at the same time, specific, due to the terminology used. Both the translator and the interpreter face the responsibility and the obligation to observe and apply translation strategies, consistently selected and considering the already existing and valid names, terms, concepts, definitions etc., by means of such available sources of information as dictionaries, encyclopedias, lexicons or special glossaries. Problems that translators and interpreters may encounter focus, to a large extent, on (un)translatability of certain terms, ambiguity of EU-speak or textual coherence, or the absence of it, which results from unclear, vague or ambiguous style of the original. On the other hand, the challenge for the translator/interpreter is constant care of the quality of the text created in Polish, which substantially affects the standard level and quality of Polish that we use everyday. Quality is the concept in translation and interpreting closely related with successful performance and communication (with all its aspects). The attempt at quality description in this context, apart from subjective impressions resulting from our understanding of the importance of features that good – competent – translation and effective communication should have, cannot be devoid of focusing on three principal factors, i.e., the translator/interpreter (as the text author/ producer), translation/interpreting process and product, which is the result of this process and, finally, involvement (and competence) on the part of the translator/interpreter. All the above aspects pose a real challenge for the translator/interpreter focusing on legal terminology.

Selected aspects of the aforementioned issues shall be verified in a case study conducted on trainee interpreters.

Key words: translation, interpreting, quality, legal terms

1. Introduction

This article refers to the specific area of translating EU law-related texts that are especially vital for the translation of the entire acquis communautaire. The language used in documents is specialist and, at the same time, specific, due to the terminology used. Both the translator and the interpreter face the responsibility and the obligation to

112 Ewa Kościałkowska-Okońska

observe and apply translation strategies, consistently selected and considering the already existing and valid names, terms, concepts, definitions etc., by means of such available sources of information as dictionaries, encyclopedias, lexicons or special glossaries. Problems that translators and interpreters may encounter focus, to a large extent, on (un)translatability of certain terms, ambiguity of EU-speak or textual coherence, or the absence of it, which results from unclear, vague or ambiguous style of the original. On the other hand, the challenge for the translator/interpreter is constant care of the quality of the text created in Polish, which substantially affects the standard level and quality of Polish that we use everyday. Quality is the concept in translation and interpreting closely related with successful performance and communication (with all its aspects). The attempt at quality description in this context, apart from subjective impressions resulting from our understanding of the importance of features that good – competent – translation and effective communication should have, cannot be devoid of focusing on three principal factors, i.e., the translator/interpreter (as the text author/ producer), translation/interpreting process and product, which is the result of this process and, finally, involvement (and competence) on the part of the translator/interpreter. All the above aspects pose a real challenge for the translator/interpreter focusing on legal terminology.

Translating EU-related texts, including normative ones (in the remainder of the article referred to as EU texts) tends to be in a constant state of development. These texts must be translated due to the legal obligation imposed on EU member states that assumes the acknowledgement of the entire legal output and legal regulations of the European Union (i.e., acquis communautaire). The language used in those documents is a specialist language, thus having characteristic features inherent to specialist texts; this language, if we follow Šarčević (2000), is even considered a sub-language subject to certain specific syntactic, semantic and pragmatic rules. Another feature typical of the language of EU texts is specialist vocabulary that aims at precise and accurate description of the reality embraced within the normative functioning of legal documents. In these documents the passive voice is frequently used together with impersonal forms; these are accompanied by nominalisations (nominalising is in general a characteristic feature of legal texts; see Jopek-Bosiacka 2006). The priority of translation, and therefore the priority of the translator and interpreter, is accurate and precise message transfer.

Terminology occurring in legal texts seems to be, to quite a substantial degree, incoherent in terms of concepts (Šarčević, 2000); this is mostly determined by circumstances behind the emergence and evolution of legal systems. Each legal system has its own legal realia, own conceptual systems derived from the operation of institutions in a given state, cultural or historical aspects or, last but not least, socio-economic factors. In any system there are legal concepts that, due to systemic differences, may not have conceptual or terminological equivalents in other languages as they do not exist (either in a culture or in a given legal system). The translator may find support in glossaries (either printed or on-line) containing binding and relevant terminology applied in legal documents or regulations, EU institutions, EU funds and programmes (e.g. IATE tem-base – Inter-Active Terminology for Europe that has been in existence since 2007 and offers wide access to multilingual terminology in various fields of EU operation).

EU Terminology in Interpreter Training 113

2. Translation-related problems

In the process of translating EU-related texts most frequently occurring problems include untranslatability (which is an inherent feature of translation in general, but that is too broad a field to discuss considering space limitations of this article) and cultural barriers related with it which shall be briefly described below.

Untranslatability is mostly connected with finding appropriate equivalents for concepts and notions typical of a given country for, inter alia, geographical reasons (for instance, olive growing in Mediterranean countries and specialist vocabulary related with it; cf. Chesterman et al. 2002). Moreover, notions and concepts typical of a given country tend to be quite frequently replaced with more general (or even safer, if we might say so in this context), euro-speak. The very term of ‘euro-speak’ embraces to a large extent terms and concepts occurring in the aforementioned glossaries or term bases (for the detailed explanation of the term see Chesterman et al. 2002). Even more interesting is the application of ‘supranational’ terms (cf. Chesterman et al. 2002); this derives from the fact that translating certain concepts by means of one, allegedly ‘correct’ term applied in a given country might be misleading (even if such an accurate equivalent operates in the target language). The supranational term is better in the sense that it does not produce direct ‘national’ associations, therefore associations connected with a specific legal regulation or a term to be found in detailed provisions: the text itself is concerned with a supranational term, and not a national equivalent.

The cultural barriers, addressed above, are related with references occurring in EU texts that might be typical of the culture of the language that is the source language of the document (see the concept of ‘authentic text’ by Aust, 2000). It is difficult to assume identical cultural and historical knowledge of receivers (here an example that we might give concerns the importance of Charlemagne in Western Europe, or the perception of the role of King Casimir the Great with an a priori assumption – quite popular in Poland – that this king is commonly known in Europe and is equally important for the development of Europe as Charlemagne, which, to say the least, is not always the case).

3. Specific nature of interpreting

All the abovementioned issues do exert an impact on the performance and quality of interpreting which, in the context that we are focusing on, denotes an interaction of cognitive factors affecting the translation process in general (i.e., memory, knowledge, decision making and problem solving, motivation, experience, creativity or intelligence). Knowledge accumulated by the interpreter throughout his or her professional (and life) experience can be effectively utilised while performing interpreting tasks; this is enabled by activating and retrieving information necessary in a given context. Interpreters should also constantly develop and broaden their knowledge in order to be able to produce a good quality translation: without being motivated they would not be capable to do that (for external and internal motivation see Amabile 1996).

Interpreting – in the almost classical view of Gile (1995) – is a highly complex verbal activity performed under time pressure. It is meaning-oriented, and precise and accurate transfer of that meaning is perceived as priority (this is also well reflected in


research studies, e.g. Bühler 1986, Kurz 1986, Kurz 1993, Mesa 2000, Pöchhacker 2000, Kadric 2000); the interpreter is the one who controls the rate of information processing. Another factor vital for interpreting is its social context as it is a service provided for different user groups (listeners, clients). Effective performance of translation functions – i.e., enabling communication in a given situational context – results from the translator’s competence manifested in the process. This competence is a consequence of the interaction of the aforementioned cognitive factors. One of manifestations of competence that facilitates the performance of a translation task but also poses a challenges due to its very nature is quality. This concept, owing to its significance and function performed in interpreting deserves a wider discussion.

4. The concept of quality

For interpreting research quality has not always been in the very centre of attention as the scholars began to investigate the issue only somewhat over twenty years ago. As they were working in a sense individually, the results of the research were many individual definitions of quality, rather than one clear and precise definition instead. Maybe this has become an inherent feature of quality research as we perceive it from today’s context: it is a multifarious, complex, even slightly vague term, in which varying research concepts and paradigms are, to an extent, intertwined. Attempts as specifying quality per se and its parameters were reflected in empirical studies of such scholars as – in the chronological order – Bühler (1986), Kurz (1989, 1993), Marrone (1993), Kopczyński (1994), Moser (1995), Mesa (2000), Kadric (2000) or Pöchhacker (2000, 2002). The research mentioned introduced a dichotomous distinction between varying perspectives, vital for the quality assessment process and undoubtedly affecting it, into interpreters and interpretation users (listeners or recipients). Different groups of users may have differing perceptions of quality and this subjectivity has been reflected in the research mentioned; yet, despite varying expectations, a number of key pillars for quality description have been distinguished. These are accuracy, clarity, precision and sense consistency with the original message (Pöchhacker seems to corroborate the above by determining accuracy, equivalence, adequacy and communicative success as pillars pivotal for high-quality effective interpreting; see Pöchhacker 2002).

A definition of quality must take into account in this context a triad of factors resulting in successful performance, namely, the interpreting process, the interpreting product and the interpreter him/herself (being the producer/author of the text). The interpreting process embraces various stages such as, for instance, preparing for a specific task, collecting necessary information and doing research. The interpreting product is a manifestation of the quality in the interpreter’s performance and results from the functioning and interaction of the already mentioned linguistic, extralinguistic and cognitive factors. The product is assessed in quality-related terms, also with regard to professional codes of ethics or standards that should be complied with by professional interpreters. Obviously, there are substantial differences as to these standards in various countries, or even – in terms of legal translation and interpreting – in various courts, yet some universals seem to be commonly acknowledged. These universal features were nicely summarised by Mikkelson (2000, 2008) in the form of four major features of


professional interpreters, i.e., impartiality, fidelity, professional conduct and confidentiality.

All interpreters should be impartial, regardless of the venue where an interpreting event is held. The assumed neutrality and impartiality of the interpreter should never have any impact on the performance (see Gile 1995 for the term ‘rotating-side taking’ denoting loyalty shifts). In the legal context, the interpreter controls the communicative situation (with parties to a case being in conflict and distrustful of one another) and is thus obliged to interpret utterances in the most accurate and precise manner possible so as to avoid any doubts whether he/she changes anything in the message that is to be conveyed.

Fidelity assumes the need to transfer the meaning of an utterance in its entirety, thus the interpreter cannot change, omit or add anything. This need is not only derived from professional requirements, but it is mostly of legal nature: the text to be translated into the target language should contain both linguistic and extralinguistic elements that appear in the original. Mikkelson also lists a number of problems that might emerge during interpretation and distort its faithful transfer and which should be reported; these are, for instance, too high tempo of speech, no breaks while interpreting, too long sentences or speech fragments that are a burden to memory.

Professional conduct is related with observing the court and its procedural standards. It also refers to the interpreter being able to cooperate with other interpreters and even to offer assistance, or ask for support, should the need arise. The interpreter, if he/she is professionally honest, is to deal only with tasks for which he/she is appropriately qualified. Preparation for the task, already mentioned above, is adequate if accompanied by doing necessary research and collecting information that might be of help for task performance. This seems to be in close relation with the obligation to be fulfilled by all interpreters, namely, to have a high degree of motivation for constant development and broadening one’s knowledge by means of e.g., participating in conferences and meetings to exchange ideas, thoughts and experiences with other professionals in the field and updating their knowledge in the area of their specialisation.

As regards confidentiality, the interpreter is not to reveal or take benefit of the information that he/she obtained while working. Thus, no comments in public should ever be made that refer to issues or cases the interpreters are to deal with.

The above considerations leave us with certain postulates concerning the grounds for successful and high-quality translation and interpreting performance: it is the result of perfect command of both the source and target languages, constantly improved qualifications and broadened knowledge (both general and specialist including the knowledge of textual conventions, of special use in the legal domain) and professional ethical standards.

5. The norm and creativity

The very term ‘standard’ seems to open a new path in our deliberations on successful and quality performance as a ‘standard’ tends to be interchangeably applied with the notion of ‘norm’. The norm in translation in general is a very broad concept, and the


focus will not be laid on the norm typology (see Toury 1995), but rather on its importance and implications for quality-related performance.

Norms in translation have been perceived from the social and cultural perspective: since translation and interpreting fulfil certain social functions enabling communication, norms may be treated as the transposition of values or ideas common for a given society into appropriate “instructions” of how to behave or proceed. These are to be applied in a situation, in which certain constraints on procedures or behavioural patterns may occur. The emergence and acquisition of norms is a natural consequence of the socialisation process due to the fact that norms can also be utilised as criteria of evaluation of specific social behaviours (provided a given situation or event allows a variety of behaviours; see Schaffner 1998). The concept of norm is indispensable to explain social implications of actions and behaviours, manifested in social institutions or social order, and thus it contributes to the creation of cultural reality. The problem with norms in the context of translation and interpreting consists in their specificity, i.e., social and cultural characteristics and a certain lack of stability (cf. Toury 1995). Norms are specific from the social and cultural point of view and they exist within the frameworks of a given cultural context. Their interference with other norms results from contacts between cultural systems. The already mentioned lack of stability, or in other words a certain fluidity of norms, derives from their very nature as they are subject to temporary changes that can be ascribed to historical or political conditions.

The operation of norms in translation is hard to be observed. What we really see are the products of the translation/interpreting process and results of the norm-governed procedures as manifested by the translator/interpreter. Translation as being an interactive and communication-focused activity cannot function without the feedback from the environment in a given translation or interpreting event. This feedback is also norm-governed and in this very sense translation is the ‘embodiment’ of a specific form of the production process of the text/utterance. The feedback from the environment reflects the operation of norms that can be used for mutual reactions existing between texts in the source and target languages; therefore, norms determine the adequacy of procedures applied in translation/interpreting.

In interpreting of extreme importance is the interaction of those cognitive factors that directly affect the entire process, namely, knowledge, experience, processes of decision making and problem solving (the efficiency of which depends on the accrued knowledge and experience), memory, motivation or, finally, creativity, as the result of the interaction of the above factors. When we analyse the operation and application of norms in interpreting, it has to be stressed that although Toury in his theoretical considerations addressed both translation and interpreting, the usefulness of norms in interpreting has not been perceived as valid from the very beginning (see Schjoldager 2002). There were claims as to a very limited number of research corpora, and empirical studies based on such a restricted scope render difficulties in analysing the application of general norms (Shlesinger 1989) and, potentially, constitute investigation material for the formulation of hypotheses on the application of norms (in a given language pair in the corpus). Moreover, it should be emphasised that vital obstacles exist – for creating corpus material – of technical, organisational or even legal nature (for instance, while recording interpreters for the purpose of research). Transcripts of utterances recorded may not reveal all the features inherent for a given interpretation; interpreters are also not always


willing to be recorded (cf. also Shlesinger 1989). There is an entire group of factors that do affect the process and product of interpreting (be it conference or simultaneous) that cannot be subject to analysis due to the absence of necessary instruments (cf. Diriker 1999). In interpreting, and in simultaneous interpreting in particular, the interpreter interprets in real time which further makes it difficult to asses whether the final interpretation product is a result of the norms applied or rather the result of constraints on information processing capacity (this issue is addressed both by Shlesinger 2000 and Schjoldager 2002). Schjoldager (2002) even postulates to introduce a new norm that would be of effect only in interpreting that would determine what could or should be done by the interpreter in a situation when the degree of difficulty of a given task is rising or even it becomes impossible to be performed. The capacity to proceed with the task in this situation is a trait of professional competence manifested through the operation of translation creativity. The very concept of creativity, due to its significance and function performed in interpreting, with the exclusion of other forms of human intellectual activity due to the absence of space, shall be briefly discussed below.

Scholars and researchers tend to define creativity in a variety of ways. Initially, we can assume the reasoning adopted by Boden (1992, 1994) or Sternberg (1999) that creativity results in a product that is both valuable and original (or even unconventional). In empirical research (see Kussmaul 1995, Danks 1999, Shreve 1999, Englund-Dimitrova 2005) creativity is positioned in a relatively wide spectrum of translation perception as a psychological operation in general: interpreting relies on cognitive factors and therefore on the recognition capacity and the awareness of the existence of potential problems. It should be underlined, however, that creativity per se is much more complex, which leads to problems related with attempts aimed at its more specific definition. If creativity is seen as seeking solutions most optimal from the point of view of the given specific context in which an interpreting task is performed, then the product of this ‘search process’ should be effective in the realisation of a given interpreting task.

A creative interpreter has a variety of individual features, owing to which (and owing to mutual interactions) creativity can be manifested at all. These features include motivation and involvement in the work performed as well as a conviction of the value of one’s own work, willingness and skill of breaking conventions (see the classical view of creativity of Rogers 1976), experience, general and specialist knowledge, and the ability to take risk. Thus creativity is viewed as the ability of making new (novel) ideas or extracting new (novel) meaning out of the already well known and existing concepts. In interpreting the source text is transferred into the target text, which leads to the creation of an entirely new text, close in terms of content to the original, yet in other aspects it is a brand new text; thus the target text is a creative product. The creativity understood as the construction of new texts is the purpose of the translator’s activity and the purpose of translation in general perceived as intercultural communication: its aim is to overcome barriers between two language and cultural realities.

On the other hand, keeping balance between creative activity of the interpreter and re-creating the sense of the message in the source language is vital. It necessitates the need to apply translation strategies and procedures as well as to utilise the new resources (e.g., cognitive ones, see Neubert 2000). These strategies (with concurrent application of cognitive factors such as knowledge or experience) interact with the creative potential that is manifested by the interpreter (cf. Gran 1998). Effectively accrued knowledge


combined with experience, memory, motivation, intelligence or other cognitive factors form grounds for effective operational processes of decision making and problem solving as practiced by interpreters. Yet, creativity manifested by an individual devoid of sufficient degree of experience and knowledge would not be fully realised in an interpreting task. The absence of the awareness of the individual’s creative potential or the absence of the skill to assess it appropriately could possibly result in the application of ineffective procedures and strategies and, finally, in the selection of inappropriate or incorrect translation solutions.

6. The study

A potentiality of the operation of this mechanism was the objective of a brief study conducted among students of the Post-Graduate Studies in Translation and Interpreting at the Nicolaus Copernicus University in Toruń. Prior to discussing the research proceedings and results, a brief elucidation of interpreter training objectives seems to be in order.

While considering interpreter training in general it is essential to bear in mind that trainees should ideally have psychological features indispensable for professionals to make the training process efficient and the trainees confident about skills they develop and improve. These features embrace good memory, ability to manage stress, motivation for constant development, broadening knowledge and gaining experience; they are yet in the process of constant development in trainees.

We might also ponder about yet another aspect in interpreter training, i.e., the role of theoretical insights into the subject matter being the focus of interpreting. This particularly refers in our situation to the knowledge of the law and law-related aspects as manifested in interpreting. It would be feasible to follow Kaiser-Cooke in her saying that the combination of practice and theory in training is “not only compatible, but mutually necessary” (Kaiser-Cooke 2000:68). Therefore, new theories may originate from practical results, or empirical background may be a stimulus for practical implications. Training thus covers such aspects as the awareness of potential strategies of effective problem solving and decision making, and this knowledge may be of use in the process of developing (professional) skills.

Trainees do face a variety of requirements, ranging from extensive general knowledge (to be followed by specialist knowledge in particular areas of specialisation), command of both languages and a number of cognitive factors that we have already mentioned before. Yet, theoretical aspects and expectations concerning their performance form just one side of training, the other being practice (or reality, for that matter). This reality is reflected in the possessed awareness of trainees’ skills and competencies. Trainees tend to have expectations as to what their performance should be like; they also seem to recognise areas of potential deficits in either their interpreting performance or cognitive resources (or both of them).

The group under research consisted of 18 persons. In the majority of cases (apart from one person being a law graduate), the students are graduates of the English studies who would like to become professional translators (and interpreters) in the future. The study was performed during classes in consecutive interpreting; the students had had 30


hours of practical consecutive interpreting exercises before. The material subject to be analysed during the classes constituted the research base: the students had both lexical and content-related knowledge enabling them – at least in theoretical terms – to interpret the text correctly. The text to be interpreted concerned one of the most essential EU funds, namely, the European Social Fund. The students were equipped with a special ESF glossary combined with practical knowledge in translating texts on the ESF functioning in which ESF-related terms occurred. The research consisted in interpreting fragments of the text on the ESF with a special focus being laid on the manner, in which students interpreted specific terms as well as the selection of variants that they used. Selected examples of the interpretation of specific terms are included in the table below (the number of instances where a given term was used is given in brackets; if the number is not given, then a specific term was used only once). In a number of cases no equivalents were offered and students decided not to interpret a term they were not familiar with.

ESF term Equivalent variants in Polish Community Support Framework (CSF)

….wsparcia społecznego program wspierania społeczności (3) ramy wspierania społeczności system wsparcia społeczności no equivalent (5) system wsparcia społecznego plan wspierania wspólnotowego plan wspierania inicjatyw społecznych wspólnotowe ramy wsparcia program wsparcia społeczeństwa plan działania na rzecz wsparcia rozwoju społecznego ramowy plan program/plan wsparcia społeczności

Eligible costs – ..…. koszty no equivalent (5) koszty uprawnione (2) koszty uzasadnione przejrzyste koszty transparentne koszty koszta przewidywane koszty (2) koszty kwalifikowane szacowane koszta koszty faktyczne koszty rzeczywiste dostosowane koszty

Implementing institution –

instytucja wdrażająca (5) brak ekwiwalentu (3) instytucja wprowadzająca w życie instytucja realizująca instytucja ds. implementacji inicjatywa zastępcza instytucja implementująca


ESF term Equivalent variants in Polish Implementing institution – instytucja wprowadzająca

instytucja odpowiedzialna za wdrożenie (3) instytucja

Intermediate Body – władza pośrednicząca organ pośredniczący (6) ciało pośredniczące (3) ciało pośrednie organizacja pośrednicząca (2) no equivalent (3) instytucja pośrednia instytucja pośrednicząca organizacja pośrednia jednostka pośrednicząca

Managing Authority –

Władza władze nadzorujące (2) instytucja zarządzająca (2) władza zarządzająca (4) ciało zarządzające organ zarządzający (5) zarząd instytucja zarządzająca no equivalent dyrektor szef

Measure –

miara (4) wielkość (2) środek (7) pomiar skala ocena wskaźniki no equivalent (2) rozmiar

National Development Plan narodowy plan rozwoju (10) krajowy plan rozwoju (3) krajowa strategia rozwoju narodowa strategia rozwoju plan rozwoju państwa plan rozwoju kraju plan rozwoju narodowego plan rozwoju krajowego

Payment application –

aplikacja (2)/ podanie o finansowanie podanie o dokonanie płatności (2) wniosek o płatność formularz/wniosek aplikacyjny o wypłatę środków no equivalent (2) wniosek formularz dopłat wniosek płatności generator wniosków płatniczych


ESF term Equivalent variants in Polish Payment application – druk uiszczenia opłaty

uiszczenie wpłaty sposób płatności formularz płatności płatność formularz opłat

Ultimate beneficiary – końcowy (4)/ostateczny beneficjent (6) no equivalent (3) beneficjent docelowy (2) beneficjent efekty końcowe ostateczny odbiorca odbiorca końcowy ostateczne korzyści końcowe korzyści

From the above table one might infer that despite the access to glossaries, vocabulary lists and prior preparation, students while performing consecutive interpreting tend to forget about them or, at any possible costs, they are trying to find and use equivalents created ad hoc. In the follow-up discussion the students, while explaining their translation decisions, claimed the stress factor and time constraints as most significant for their performance; they also said that they did not always recognise and value highly glossaries and binding equivalents. They were also sure that the interpreter should in all situations and at any time be creative since creativity forms the basis of good and effective translation/interpreting performance. They did not, however, consider the fact that creativity existing for its own sake and being realised in a sort of enforced manner does not result in producing a good translation or interpreting; on the contrary, it becomes a burden. Excessive focusing on creativity and its manifestations may lead to problems related with proper message conveyance. Another interesting aspect is the occurrence of breaks in interpreting in places where no equivalents were provided. This might seem a ‘strategy’, although hardly recommendable: providing no equivalent, or in other words, leaving a term not translated and disintegrating the fluency of delivery tends to be a method of proceeding with the text typical of beginner, inexperienced interpreters, despite the awareness of the inappropriateness of this sort of interpreter behaviour.

7. Conclusions

The transfer of messages contained in the original is the priority of translation in general; in particular the terminological precision and accurate conveyance of the sense of the source language message is of fundamental importance in interpreting (including the interpretation of EU-related texts that are normative in nature). Interpreting as synergistic (co)operation of knowledge, memory, experience, processes of decision making and problem solving is undoubtedly a creative operation in the sense of creating a product (an interpreted text) that is novel, original, valuable or the best out of a possible number of variants. It should be borne in mind that creativity in good translation


and interpreting is most of all the balance between what is novel and original and what is optimal from the point of view of the perception of a given text. The ability to keep this balance is the ability to assess one’s own potential as an individual that embraces one’s own translation competence that results from cognitive factors and the aforementioned creativity. It can be postulated that the absence of this ability is the reason for so many translation problems; it is also responsible for the results of research conducted among students of the Post-Graduate Studies in Translation and Interpreting at the Nicolaus Copernicus University in Toruń. Yet, we may hope that acquiring the ability to assess this potential depends on experience accrued, and thus the would-be interpreters have a wide array of challenges to face in the future. References Amabile, Teresa M., 1996, Creativity in context. Boulder, Co: Westview. Aust, Anthony, 2000, Modern treaty law and practice. Cambridge: Cambridge

University Press. Boden, Margaret, 1992, The Creative Mind: Myths and Mechanisms. New York: Basic

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for the evaluation of conference interpretation and interpreters”, Multilingua 5, 4: 231 - 235.

Bylard-Ozeroff, A., Králová, J. and B.Moser-Mercer, (eds.), 1998, Translators’ strategies and creativity, Amsterdam: Philadelphia: John Benjamins.

Danks, Joseph H., Shreve, Gregory M., Fountain, Stephen B., & McBeath, Michael K. (eds) 1997. Cognitive Processes in Translation and Interpreting. Thousand Oaks, CA: Sage

Diriker, Ebru, 1999, "Problematizing the discourse on interpreting - A quest for norms in simultaneous interpreting", [in:] TexTconTexT 132, 73-90.

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Tübingen: Stauffenburg Verlag. Kaiser-Cooke, Michele “Theory in practice: translation as trans-disciplinary action”. In

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Kopczyński, Andrzej 1994. “Quality in conference interpreting: Some pragmatic problems”,[in:] S.Lambert and B.Moser-Mercer (eds.), Bridging the gap. Empirical Research in simultaneous interpretation. Amsterdam: John Benjamins.87-100.

Kurz, I., 1989, “Conference Interpreting: User Expectations”, [in:], Coming of Age: Proceedings of the 30th Annual Conference of the American Translators Association, D.L.Hammond (ed.), Medford/New Jersey: Learned Information, 143-148.

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Marrone, Stefano 1993. “Quality: A Shared Objective”, The Interpreter’s Newsletter, 5, 35-41.

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Mikkelson, Holly, 2008, “Evolving views of the court interpreter’s role: Between Scylla and Charybdis”, [in:] Crossing Borders in Community Interpreting, Carmen Valero-Garces and Anne Martin (eds.), Amsterdam/ Philadelphia: John Benjamins, 81-97.

Moser, Peter 1995. “Simultanes Konferenzdolmetschen. Anforderungen und Erwartungen der Benutzer. Endbericht, im Auftrag von AIIC”, Wien: SRZ Stadt- und Regionalforschung.

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Schjoldager, Anne, 2002, "An exploratory study of translational norms in simultaneous interpreting: methodological reflections", [in:] The Interpreting Studies Reader, F. Pöchhacker and M.Shlesinger (eds.), London: Routledge, 300-311.

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• Research in Language, 2011, vol. 9.1 • DOI 10.2478/v10015-011-0007-z

THE IMPORTANCE OF CONTENT KNOWLEDGE FOR SUCCESSFUL LEGAL LANGUAGE ACQUISITION

SNJEŽANA HUSINEC [email protected] Faculty of Law, University of Zagreb, Croatia

Abstract One of the most difficult tasks in the instruction of legal language is teaching highly specific legal terminology. Although some legal terms are widely used in ordinary language, there are some words and phrases which seem familiar, but have an unexpected meaning for a layperson. Additionally, there is a number of terms with specific legal meanings which presuppose some knowledge of legal content to be fully understood. On the other hand, since legal language is shaped by the legal system in which it is used, legal terms reflect particular legal systems and differences between them and are therefore inseparable from the law.

This paper examines what implications this interconnection between language and law has on the process of legal language instruction and acquisition. How important is the knowledge of legal content for successful acquisition of legal terminology? What is the best approach to teaching such content-dependant language and what amount of background information needs to be taught? To answer these questions, the author analyses the results of a survey conducted among the law students attending legal language courses at the Faculty of Law in Zagreb and combines it with theoretical research and her teaching experience.

Key words: instruction and acquisition of legal terminology, legal language courses, importance of legal content

1. Introduction The very nature of legal language makes it a very difficult language to teach. In order to develop the learners’ linguistic ability and ensure their successful communication in the field of law a legal language teacher needs to deal with specialized text structures, extreme formality of legal documents, long and complex sentence structures and highly specialized vocabulary. In this process of teaching legal language special attention must be given to the teaching of highly specific legal terminology with very specific legal meaning, which usually presupposes some legal knowledge to be understood. Namely, “the law and its practitioners have developed a range of unique legal concepts, and these can be expressed efficiently only by using legal jargon” (Gibbons 286: 2006). Since legal concepts are shaped by the legal system in which they have been developed and are used, legal terms as their verbal expressions, besides reflecting their content, also reflect particular legal cultures and dissimilarities between them. Therefore, they are

126 Snježana Husinec

inseparable from the law. Such close interconnection between legal language and the law unavoidably has strong implications on the process of legal language acquisition and requires a special methodological approach to its instruction.

This paper examines the implications of the interconnection between language and law on the legal language instruction and acquisition and discusses the role of the knowledge of legal content in the legal language study. On basis of the results of a survey conducted among the law students attending legal English courses at the Faculty of Law in Zagreb, some theoretical research and the author’s teaching experience we will try to prove the importance of content knowledge for successful legal language acquisition and the need for an integrated language and content approach to teaching legal language.

2. Integrating language and content in LLP instruction

One of the core characteristics of languages for specific purposes is close relation between language instruction and the subject matter. Contents of various disciplines provide frameworks for LSP courses. Since interdisciplinarity is undoubtedly a key feature of LSP courses, it does not surprise that the integration of language and content has become one of the major issues in the discussion on the course design of various LSP courses. Since legal language is, owing to its specificity, inseparable from the law and the legal system in which it is used, the need for interdisciplinarity in legal language courses is even greater than in other LSP courses. In order to understand exact meanings of legal terms the learners of legal languages need to know about the law. They need to understand legal concepts as they have developed and are used in a foreign legal system and need to be able to compare it with their national legal system. Therefore, their study of legal language can be sufficiently successful only if they have some expertise of the law from their earlier study or work experience and if they study language through content and context. The central questions arising from the above facts are: how should language and content be integrated in a legal language course, and which methodology is the most appropriate for teaching such content-dependent language?

Content-based instruction (CBI) may be the answer to both questions. It is a relatively new methodological approach in second language acquisition which refers to “the concurrent study of language and subject matter” (Brinton et al., 1989: vii) and represents a shift from the traditional bottom-up approaches in foreign language teaching. So far various models of CBI have been implemented in a number of educational settings and it has become quite popular on the language teaching scene (Juez, 2006: 327). CBI integrates particular content with language teaching aims and teaches concurrently language skills and subject matter where syntax, morphology and semantics of the particular legal area are studied within the specific context.

“During content-based instruction attention is shifted from learning language per se to learning language through a relevant learning context. Communicative competence is achieved in the process of learning about specific topics” (Juez, 2006: 328).

The Importance of Content Knowledge for Successful Legal Language Acquisition 127

Such a model of teaching supports learning language through specialist content and in its original context and therefore seems to be the most appropriate for legal language instruction.

3. Content-based legal language instruction at the Faculty of law in Zagreb

Having taken into consideration all the specificities of legal language instruction and acquisition and the specific circumstances in which legal languages are taught at the Faculty of law in Zagreb as well as the benefits of CBI, content-based instruction has been adopted as the most appropriate approach for the two-year courses of legal English at our Law faculty. The courses are compulsory and have been developed for the first and second year students with the main goal to introduce them to basic legal concepts and terminology and to improve their ability to read and understand legal texts in a foreign language, as well as to familiarize them with the general aspects of foreign legal systems. The courses are primarily language courses and are taught by language and not by content teachers. Although transmission of content knowledge is only secondary here, in order to teach legal language effectively a content-based instruction as the most effective methodological approach has been applied. The course “Legal English” is a theme-based course, which within sixty 90-minute-classes throughout four semesters covers 36 topics related to different areas and aspects of English and American law. Through different activities focusing on the content related to the English and American legal systems, i.e. within the specific context, the law students study specific legal concepts and terms, syntax and morphology and develop their linguistic ability in the particular areas of law.

All classes follow a similar pattern. The first part of each class focuses on the main features of the English or American judicial system (eg. court systems, institutions, legal principles …) in a particular area or sub-area. An overview is usually given by a teacher in an interactive presentation within which foreign legal terminology is defined and possible equivalents in the Croatian legal system are discussed. Such presentations are meant to demonstrate and develop meaningful use of language in context and teach legal terminology through context and content. By learning about legal principles, traditions, institutions, legal procedures etc. the students are confronted with the important factual and linguistic features of Anglo-Saxon law and they develop their awareness of similarities and differences between the Croatian and English/American judicial system, concepts and terminology. After the intensive content-based study, students focus on a text in the textbook on the same topic or an aspect of the same topic. In this second section the approach to language learning is more traditional – reading comprehension is practiced, terminology analyzed and practiced and structural and stylistic aspects of the language are discussed, but with the constant awareness of the broader content-framework given in the first section.

The presented methodological approach has proven the most rewarding one in our specific teaching circumstances. Namely, the course, which presupposes certain knowledge of law is attended at the very beginning of the law degree programme (the first and second year) when the students have no legal knowledge of their national law


yet, let alone another judicial system, and have absolutely no awareness of considerable differences between legal systems. In addition, legal English at our Law faculty is taught to huge groups of over 100 students, which makes the teacher-student interaction extremely difficult and requires an even more careful planning and course design. 4. The survey 4.1 Research objective, target group and method In order to fully evaluate the efficiency of a course and the applied approach and further improve it, it is necessary to learn about the students’ perception of its efficiency. For this purpose a survey was conducted among the first and second year law students who attend legal English courses at the Faculty of Law, University of Zagreb. The objective of the survey was to discover how efficient the students find the integrated content and language approach to legal English learning and how important they find the content knowledge for the successful mastering of legal language and legal terminology in particular. The survey was descriptive and the participants were requested to respond to a brief questionnaire. The students’ responses were then statistically analyzed. There were all together 214 respondents, half of them in the first year of their study, who had been studying legal English for a semester, and one half who had a history of studying legal English in a university setting for a year and a half. 4.2 Questionnaire description The questionnaire consisted of three parts. The questions were mainly multiple-choice and scaled questions with two open-ended questions included. The responses to questions in the first section intended to reveal how homogeneous the group is concerning the length of their study of general English and their self-assessed level of general English. In this section the respondents were also asked to assess their knowledge of law, of Croatian legal terminology and legal English before starting the legal English course at the university. Section II focused on their actual attitudes towards the importance of content knowledge and the appropriate teaching approach for successful acquisition of legal English language and terminology in particular. In scaled questions the respondents rated the importance of general English, legal terminology and legal systems as well as different sources of knowledge for successful acquisition of legal terminology. In a multiple choice question the respondents were expected to select the most effective method(s) for the legal terminology acquisition and in an open-ended question, which followed, they pointed out the problems they encountered during their legal terminology study. Section III focused on the students’ opinions concerning the best time to start a legal English course within a law degree programme and their self-assessed success in legal English study.


4.3 The survey results and data analysis 4.3.1 Section I The data collected in first section of the questionnaire revealed that the group is very homogeneous concerning both the length of their study and their self-assessed level of general English. So, the majority of respondents have been studying English for either 9 (34,6 %) or 12 years (29 %) or even longer (26,2 %) and assessed their knowledge of general English either as very good (47,2 %) or good (29,4 %). 20,1 % even thought their command of general English was excellent. So, obviously, their level of general English cannot be an obstacle in learning legal English. Concerning their knowledge of legal content before the beginning of their legal studies the vast majority of students claimed that they were familiar with only some general legal terms which belong to everyday language (75 %) and that they never had any contact with legal English (77,5 %). A lower percentage (18,7 %) knew some English legal terms, which they learned mostly by watching movies and other TV programmes on legal topics on Croatian TV. So, in both, legal English and legal content study most students were beginners. 4.3.2 Section II In the second part of the questionnaire the students rated on a scale from 1 to 5 (1 for unimportant and for 5 extremely important) the importance of general English, the knowledge of national legal terminology, the legal knowledge of a particular area of the national legal system and English legal system for their understanding and successful learning of English legal terminology. The data collected in this section show that almost 40 % of all respondents think that it is very important to be familiar with the legal vocabulary of your national system (of a specific area of law that you study in English) to be successful in acquiring English legal terminology. 23,4 % more thought it was extremely important, whereas 29 % rated it as important. So, overall, over 90 % of all respondents are aware of the importance of having firs the knowledge of national legal system and terminology in their mother tongue in order to master the foreign legal terminology successfully. They find somewhat less important the knowledge of the particular branch of Croatia law for the study of the language of the same area of English law. Nevertheless, over 80 % highly value this knowledge and think it is of importance for the acquisition of English legal terminology. 34,6 % find it very important and 8,9 % extremely important, whereas 39,3 % thought it was just important. A similar percentage of respondents rated the knowledge of the English legal system in the studied area as important (40,2 %) whereas 25,7 % thought it is very important or even extremely important (11,7 %). All in all 77,3 % of all students find such knowledge important for their successful study of legal English.

Therefore, we can conclude that content knowledge of both the national legal system and English legal system in the area that is being studied as well as the knowledge of Croatian legal terminology prior to the study of English legal terminology is of importance for the majority of students. However, it can be noted, that they attach a


slightly higher value to the knowledge of terminology in their national system that the actual content of the particular branch of law in both legal systems. Table 1-1. Students’ perception of the importance of legal knowledge for successful acquisition of

English legal terminology

Unimportant Less important Important Very

important Extremely important

Legal terms in Croatian law

0,9 %

7,5 %

29,0 %

39,3 %

23,4 %

Knowledge of area of Croatian law

1,9 %

15,4 %

39,3 %

34,6 %

8,9 %

Knowledge of area of English law

3,7 %

18,7 %

40,2 %

25,7 %

11,7 %

In the next scaled question the respondents were asked to identify the level of importance of particular sources of knowledge for their successful study of English legal terminology. The responses to this question revealed that the text book is very important to them (38,3 % very important, 31,8 % important, 17,8 % extremely important), whereas they find bilingual and monolingual dictionaries somewhat less important (bilingual slightly more important than monolingual – see Table 2). Legal encyclopedias and additional reading in English on legal topics was by a third of all respondents indicated as less important, whereas another third thought it was important (but not very or extremely important). However, as their ratings show, students recognized high importance of introductory presentations on a content area of English law, which constitute the first part of their legal language classes. Almost 60 % of all respondents find it extremely important for their efficient study of legal terminology to know about the legal content of a specific area within the English legal system, its structure and regulations, and to be exposed to the contextual use of language in this particular branch of law. Further 26,6 % rated it as very important and 10,3 % as important. It can easily be calculated that 96,8 % of all students (almost all!) highly value the content knowledge and are aware that, owing to different concepts, classifications and regulations within different legal systems, the knowledge of foreign law facilitates the study of legal terminology. Table 1-2. Students’ perception of the importance of different sources of knowledge for successful

acquisition of English legal terminology

Unimportant Less important Important Very

important Extremely important

Course book text 1,9 % 10,3 % 31,8 % 38,3 % 17,8 % Introduct.

presentat. onEnglish law

1,4 %

2,8 %

10,3 %

26,6 %

58,9 %

Bilingual dict. 3,7 % 15,9 % 33,2 % 26,6 % 20,6 % Monoling. dict. 7,9 % 25,7 % 30,8 % 26,2 % 9,3 % Legal encycl. 20,6 % 31,8 % 30,4 % 12,1 % 5,1 %

Additional reading in legal English

20,6 %

39,3 %

28,5 %

10,3 %

1,4 %


Concerning the most efficient method(s) of acquiring legal terminology, most students indicated that a combination of two or even more methods makes the legal terminology study more efficient. The collected data reveal that translation of a particular terms into their mother tongue, i.e. finding a Croatian equivalent for a particular English term is extremely important to students (62,2 %). Many also stated that comparison of terminology in the Croatian and English legal system facilitates their learning a lot (even 45,8 % indicated this method as very rewarding). The second most efficient method according to the survey is explaining an English term in the context of English law. Even 55,6 % of all respondents find it essential to learn terminology in the original context. Defining in English seems to be very popular with students as well (46,2 % indicated it as an effective way to study terminology).

Table 1-3. The most efficient method(s) of legal terminology acquisition

Method % Reading and translation 62,2 Explaining an English term in the context of English law 55,6 Defining in Croatian 50,7 Defining in English 46,2 Comparison of legal terms and their meanings in both languages 45,8 Some other way 0,9

The difficulties the students encounter when studying legal terminology confirmed the conclusion that can be drawn from the previously mentioned statistical data. They namely strongly stressed three problems:

1. their lack of legal knowledge in general and Croatian legal terminology and law (they study legal areas in English which they still do not know about in their own legal system);

2. non-existance of terminological equivalents and hence no translation into Croatian;

3. different legal systems, which makes the understanding difficult. Since it has been stressed by students as extremely important to know Croatian equivalents for the English terminology wherever possible and to have knowledge of domestic law prior to the study of legal English, and, since they obviously highly value learning in the context of English law, it can be concluded that their answers here once again confirmed the importance of legal content for successful legal language acquisition.

4.3.3 Section III

Although most respondents recognized that good knowledge of Croatian legal terminology and the Croatian law contributes to greater success with the acquisition of legal English, the majority of students did not think anything should be changed about the position the legal language courses occupy in the overall curriculum. 69,6 % indicated that the beginning of law studies is the best time to start a legal language course. In an open-ended question in which they were asked to clarify their answers they


emphasized a parallel study of both systems and terminology as the most rewarding one for the proper development of basic linguistic ability in the field, although, some of them noted that the language course should follow at least a month after other 1st semester courses. However, 22,4 % were convinced that it is much better to start a legal language course after you already have basic legal knowledge of the Croatian legal system, i.e. in the second half of the law degree programme.

The reasons for such distribution of answers might lie in the fact that the present course focuses on the basic terminology and features of the English/American legal system and in such a course it is not essential to know the area of law in debt. So, the students can cope with what they parallelly learn within other law courses and in the English course (although they pointed out that lack of legal knowledge causes difficulties). On the other hand it might be interpreted as a sign that the selected teaching approach is appropriate in the given circumstances and guarantees successful legal terminology acquisition (at the basic level), so the students feel that there is no need for changes.

The students’ responses to the last question, where they expressed how successful they think they are in their legal English studies, also speaks in favour of the effectiveness of the language and content integrated approach. Namely, the majority of the students see themselves as successful with studying legal English. Almost 40 % of all respondents assessed their study of legal English as very successful, 27 % indicated they are extremely successful, and further 25 % think they are successful.

6. Conclusion

As the survey results show the legal course participants perceive legal content as very important for successful legal language and terminology study. Studying terminology in the context of the legal system to which it belongs and being able to draw comparisons with the national system and terms facilitates their accurate and precise acquisition of foreign legal vocabulary. Therefore, it is necessary to combine legal language teaching with teaching of the features of the foreign legal system for the purpose of contextualized learning. In this respect content-based language instruction (CBI) seems to be the appropriate approach to legal language instruction. As for the best time to start a legal language course, we can conclude that, if legal language is taught only at the basic level for which the in-debt knowledge of law is not necessary and the students can learn enough through the content presented in the class and parallel study of national law, then legal language study can be sufficiently successful even if the course is attended at the beginning of the law degree programme (especially if the same legal areas are dealt with in other law courses). However, as students’ responses to most questions, as well as the author’s teaching experience indicate, even in such circumstances where only the basics of a foreign legal language are taught, content knowledge is extremely helpful and it is highly recommendable to move a legal language course towards the middle of the law degree programme. Owing to the better legal knowledge acquired by then, the language of different branches of law can be studied in more detail and the overall teaching and learning success can be greater.


References

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Brinton, Donna M., Snow, Marguerite Ann & Wesche, Marjorie Bingham. 1989. Content-Based Second Language Instruction. New York: Newbury 1989.

Buhlmann, Rosemarie, Fearns, Anneliese. 2000. Handbuch des Fachsprachenunterrichts. Tübingen: Gunter Narr Verlag.

Bukovčan, Dragica. 2009. Od Teorije do prakse u jeziku struke. Zagreb: Školska knjiga, d.d.

Fortanet-Gomez, Inmaculada & Räisänen, Christina A. (ed.). 2008. ESP in European Higher Education: Integratomg Language and Content. Amsterdam/Philadelphia: John Benjamins B.V.

Gibbons, John. 2006. “Language and the Law”. In The Handbook of Applied Linguistics, edited by Davies, Alan & Elder, Catherine, 285-303. Oxford: Blackwell Publishing Ltd..

Hutchinson, Tom & Waters, Alan. 2005. English for Specific Purposes. Cambridge: Cambridge University Press.

Juez, Mª Teresa Alejos. 2006. Linking language and content: ESL instruction through legal topics. In Proceedings of the 5th International AELFE Conference, 327-332. http://www.unizar.es/aelfe2006/ALEFE06/2.%20didactics/46.pdf

Kim, Dan. 2008. English for Occupational Purposes: One Language? London/New York: Continuum.

Stryker, S.N. & Leaver, B.L. (eds). 1997. Content-based Instruction in Foreign Language Education. Washington D.C.: Georgetown University Press.


LEGAL TERMINOLOGY AND LESSER USED LANGUAGES: THE CASE OF MÒCHENO

ELENA CHIOCCHETTI [email protected] NATASCIA RALLI [email protected] European Academy of Bolzano, Bolzano, Italy

Bos as gaben ist, kimp nea’mer, s sèll as ist, mechet ònderst sai’,

kenn ber bèckschln s sèll as sai’ bart?1 (Bersntoler Kulturinstitut 2010)

Abstract The article aims at outlining the specific problems connected with the elaboration of legal and administrative terminology in a lesser used language and illustrating the methods and tools proposed considering the knowledge and competences to be conveyed.

Since 2003 the Institute for Specialised Communication and Multilingualism of the European Academy of Bolzano (EURAC) offers education courses in legal terminology work, coupled with introductions in related/complementary disciplines, e.g. documentation, specialised translation and technical writing. Next to professional trainings, the Institute held also ad-hoc courses, such as a two-day course organised in 2008 for the Mòcheni, a Germanic minority living in the Italian Province of Trento. Since the passing of provincial law no. 6/2008, which foresees specific measures for the protection and promotion of local language minorities, the Mòcheno-speaking community has the right to use their language in all situations of social, economic and administrative life in both oral and written communications. Notwithstanding the recent compilation of a standard grammar, the Mòcheno language is not yet developed for the use in technical and specialised contexts. Indeed, the most urgent needs seem to exist in the translation of administrative terminology.

Key words: legal terminology, terminology training, lesser used languages, Mòcheno, language planning

1 What has been will not come back, what is should be different, can we change what is going to

be?

136 Elena Chiocchetti & Natascia Ralli

1. Introduction and background2

Chi dice comunicazione specialistica, dice terminologia, ovvero 1) il vocabolario proprio a un settore; 2) l’attività che rileva, crea e dà forma al vocabolario di un settore (denominata anche terminografia); 3) la disciplina che definisce i fondamenti teorici della terminologia. (Pulitano 2006)3

Terminology is a discipline that combines elements of applied linguistics (in particular, lexicology, translation studies, language teaching and pragmatics) with techniques of information science. Defined as the “study of concepts and their representations in a special language” (ISO/TC37/SC1 N165 E: 6), terminology represents the central component of specialised communication and knowledge transfer between individuals and/or organisations. At the same time, it is also the main means of overcoming language barriers in order to ensure communication among different countries and, therefore, to enable mutual understanding. Hence, terminology is everywhere where there is the need for writing, translating, interpreting, reviewing or reading a text. Consequently, it plays a key role in knowledge management: terminology supports communication in all its forms, helps avoid misunderstandings due to intralinguistic and interlinguistic ambiguities and reduces the time required to find the “right” word (see Pulitano 2006). The importance of its correct application in order to guarantee the certainty of communication and the correctness of interpretation is evident. The use of incorrect or inconsistent terminology can reduce the quality of a product, cause misunderstandings and hence lead to additional costs (e.g., misdelivery, delay in delivery) or even to legal disputes (e.g., producer liability).

In order to avoid these problems, terminology requires precision in the study of the subject field, a good feeling for problems in intercultural communication and awareness of the possible consequences which an incorrect term or—from the point of view of translation—an incorrect equivalent can cause. Since 2003 the Institute for Specialised Communication and Multilingualism of the European Academy of Bolzano (EURAC) has offered post-graduate education courses in terminology work, in particular in legal terminology work, coupled with courses in related and complementary disciplines: documentation, specialised translation and technical writing, to name but a few. Dealing with communication requires intertwined abilities, such as, for example, the ability to write clearly and competently in one’s native language using different linguistic registers and a large and flexible vocabulary; the inclination to investigate meanings in order to create terminological entries or understand the text to be translated; and the competence to efficiently evaluate documentation. These abilities must be accompanied by a

2 The present article was drafted by the two authors in close collaboration, from the initial research

(design, discussion) to the final written version; nevertheless, responsibility for the sections shall be attributed as follows: Elena Chiocchetti is responsible for the sections 4 to 6, Natascia Ralli for the sections 1 to 3.

3 Those who talk about “specialised communication” talk about terminology, i.e., 1) the vocabulary of a specific subject field; 2) the activity which collects and describes the terms of a specific subject field (also called “terminography”); 3) the discipline defining the theoretical aspects of terminology.

Legal Terminology and Lesser Used Languages: The Case of Mòcheno 137

thorough knowledge of the specialised subject fields in question, curiosity and good general knowledge as well as the complete mastery of working methods and tools.

Over the past few years in addition to education courses (training for work and lifelong learning) addressed to a wide audience (e.g., legal practitioners, translators, students, graduates in translation studies), the Institute also has held ad hoc courses, such as a two-day course organised in 2008 for the Mòcheni, a Germanic minority living in the Italian Province of Trento.

This article aims at outlining the specific problems connected with the elaboration of legal and administrative terminology in a lesser used language and illustrating the methods and tools proposed, based on the knowledge and competences to be conveyed. In the first section, the training in legal terminology is introduced by briefly describing the specific problems of this field, the requirements needed, the related disciplines that contribute to terminology and the training components. In the second section, the Mòcheno language community and its characteristics are described and the problems and challenges related to terminology work in a lesser used language are outlined. The final section illustrates the differences between “standard courses” in multilingual legal terminology and “ad hoc courses” for languages that are used by a small number of citizens.

2. Training in legal terminology work

Language and law are intertwined: law expresses itself through language and in particular through its own legal jargon, which is characterised by specific mental categories and concepts and may differ considerably between distinct legal systems. So, translating a legal text, or even just finding an equivalent term in another legal system, does not only consist in the simple search for a linguistic label and, therefore, in the shift from one language to another, but also from one legal system to another (Kerby 1982 in de Groot 1999: 18). Consequently, the translation of legal texts does not only require linguistic and cultural knowledge about the source language, but also knowledge about the legal context (where the terms of the source language acquire a specific meaning) and the legal system in which the target text will be used.

From the perspective of translation, aspects of non-equivalence, polysemy/homonymy, neologisms and terms which are difficult to translate because of their geographical, historical and cultural connotation, cannot be overlooked. So, for example, earthquake terminology is well described in the Italian city-planning law, unlike in the German one. The reason probably lies in the fact that Germany is not a highly seismic zone (Ralli 2006: 120).

Working with language and law does not always involve the need to deal with different national languages and distinct legal systems. Language varieties and linguistic registers, which must be considered, coexist even in the same language. So, for example, traffic law talks about “intersezione a raso” or “intersezione a livello”, but in everyday language the most current term is “incrocio” (crossroads). In family law the terms “vincolo matrimoniale”, “vincolo coniugale” and “vincolo di coniugio” (marriage bond) are fully interchangeable (Ralli 2010).


Language, law and technology evolve over time according to the evolution of society: as far as legislation is concerned, reforms are introduced quite frequently. Also the development and improvement of methods and tools require a continuous upgrading of skills in order to be maintain competitiveness on the market. Being aware of the existence of serious and peculiar problems related to the translation of legal terms as well as knowing a foreign legal language, are fundamental prerequisites for the success of communication processes.

As a consequence, terminology plays an important role in communication and represents the basis on which to build on. Legal texts need to be clear, correct and effective, both from the legal point view and from the communicative one (Fioritto 2007: 45). In order to do that, the following requirements are necessary (see also RaDT 2004):

well-developed feel for the language and a high degree of linguistic creativity appropriate knowledge about the problems related to specific subject fields,

taking into account the intercultural dynamics interdisciplinary thinking and comparative working methods systematic working methodology awareness of the importance of terminology in the translation process and, more

generally, in editing awareness of the existing differences between legal systems, even when they

use the same language awareness of the possible consequences of an incorrect translation; familiarity with legal language knowledge of the principles and methods of legal translation ability to apply principles of terminology theory and practice ability to identify the translation problems related to text production in the

target language, including the level of terminology, as well as to recognise the extent of such problems and to work out solutions

ability to apply appropriate micro-strategies for the production of a legal text in the target language

ability to adapt the legal text of the source language to the new communicative situation

mastery of traditional and electronic search and documentation tools used for the acquisition of information and the creation of glossaries and databases

In light of all of that, interdisciplinary aspects have to be considered in teaching legal terminology. From this point of view, a number of other topics and/or complementary disciplines should be treated. An outline of the main subjects to be taught follows.

Introduction to the nature of legal language: it helps professionals in translation and terminology to become familiar with the language and the peculiarities (e.g., rules, conventions) of the law. Terminology should be discussed here with a focus on methods for identifying, describing and storing the concepts and related terms.

Textual analysis: to evaluate text quality (e.g., intelligibility, correctness), in order to identify terms for a terminology collection and recognise potential translation problems related to text production in the target language at several


levels (e.g., terminology, style). Recognising such problems helps finding strategies for solving them.

Documentation: it provides the methods and tools needed to search for information so as to acquire familiarity with the language and the field of investigation. It also includes methods and strategies to evaluate the quality of information on the web, as well as other information resources, such as manuals, parallel texts, dictionaries, etc. on the basis of the parameters of authority, authenticity, reliability, objectivity, timeliness, relevance and efficiency.

Micro-comparison: a type of research in comparative law which investigates concepts or aspects of two or more legal systems (Chiocchetti et al. 2009: 3) with the aim of acquiring more knowledge and identifying similarities and differences between legal systems (Pizzorusso 1995: 138, Chiocchetti et al. 2009: 3). From a terminological point of view, micro-comparison provides the basis for addressing translation gaps, terminological incongruities and equivalence between legal systems, both from the conceptual perspective as well as from the perspective of effectiveness and function.

Technologies (e.g. software, Internet) play an important role in terminology, too. The overlapping areas between computer science and translation or computer science and terminology become more and more frequent and decisive for anyone working in translation and terminology. Dedicated systems (e.g., terminology management systems, CAT-tools) and integrated programmes (e.g., databases, word processors) help to increase productivity and optimise the working process in terms of time and money.

3. Important training factors

Many different factors have to be taken into account in education courses. First, the aim of the course: Is it a short practice-oriented introductory course? Is it a refresher course? Is it a course for a specific audience? The aim determines the duration of the course, the contents to be treated and the target group to be involved. For example, a course for professional translators should be practice-oriented and designed to take advantage of specific tools for practical terminology work and translation (e.g., translation memories, terminology management systems). In this case, an overview of dedicated software products available on the market is advisable in order to help participants in the choice of the most appropriate tool for their work.

Secondly, the educational background: knowing if the attendees have a background in languages or law is necessary for the preparation of teaching material and the elaboration of subjects, namely for understanding which subjects can be briefly treated and which ones need to be discussed in depth. Related to that, a target group of students, translators or employees will require specific teaching methods and lead to different course durations. So, for example, a course for employees would focus only on the most relevant information and practical contents related to the specific activities of the target group. The main emphasis should be put on the problems they encounter in their daily terminology and translation practice with the aim of making them familiar with the methods needed for elaborating their own solutions.


Even the technological competencies of the attendees can influence teaching methodologies. Ideally, they should all have the same level of experience with the technologies being taught.

Finally, it is necessary to know the needs, motivations and expectations of course participants. This kind of information can be gathered, for example, during an entrance examination. Some want to attend the course in order to fill specific gaps in their educational background (e.g., aspects of theory, knowledge gaps related to the faculty attended, etc.), to refresh their qualifications, acquire credits to transfer into a master of translation studies or even to become familiar with the use of gender-neutral language.

In post-graduate education courses the attendees often have a heterogeneous background. Usually, most of them have a background in (ordered by frequency): translation studies, language mediation and intercultural communication, foreign languages and literatures, and (rarely) in law. In other cases, attendees have different levels of background knowledge due to their age and work experience. Therefore, it is fundamental to create a common knowledge basis.

In the case of ad hoc courses, such as the course for the Mòcheno language community (see sections 4 and 5), other aspects also have to be considered. Such courses are often promoted by institutions in response to some specific need. Therefore, they have to be accurately designed with the focus on the problems the target group will (or could) encounter in their daily practice and on the strategies to be applied to reach a solution. This type of audience usually has different educational backgrounds and, sometimes, even no background in translation or languages studies at all, but just a practical background in “translation” (e.g., employees of the public administration with the task of translating circulars, contracts, etc., without any prior knowledge of translation theory). Usually this type of course is very short, practice-oriented and includes only the most relevant and fundamental information so as to give the participants a general overview of standard methodologies and available tools.

4. The Mòcheno language community

Mòcheno is a Germanic language spoken by about 1000 inhabitants of three municipalities located in the upper valley of the Fersina river (Abbruzzese 2005: 11), in the northern Italian province of Trento. More than half of the Mòcheno speaking population have left their places of origin and reside elsewhere. Altogether, during the last general census in 2001, about 2200 people declared themselves speakers of Mòcheno (Bersntoler Kulturinstitut 2010). The origin of this small Germanic language island amidst speakers of Italian dates back to the 13th century when the first settlers, mainly from Bavaria but also from other German-speaking areas, came to cultivate the then uninhabited valley. A further wave of immigration followed a couple of centuries later, when more settlers from central Europe came to work in the copper, iron and silver mines (Istituto culturale mòcheno-cimbro 2010).

The relative isolation of the three municipalities of the valley, Fierozzo/Vlarotz, Frassilongo/Garait, Palù del Fersina/Palae en Bersntol, caused the development of slightly different language variants. In 2003 a standard grammar was published and


attempts at creating a unified orthography and standard Mòcheno were started (Rowley 2003: 23).

An example of the language can be given with the version of the Christian Lord’s prayer in Mòcheno:

Voter inger en himbl, gahailegt kimmp der dai´Nu´m, der dai´raich schellt kemmen, der dai´billn schellt tschechen, en himbl abia as de eart. S proat van òllto gib ins hait. Ont vargib ins de inger schuld, Abia aa biar vargem sa en de ingern schuldeger. Tua´ins nèt varviarn, over moch ins vrai van tschlècht. (Prezzi 2004: 294)

Only in the last decade has the Mòcheno language been properly protected by state and regional laws. At the national level the community was granted extended rights in 1999 with law n. 482/1999, which lists twelve so-called “historic” language minorities in Italy that are to be safeguarded in their respective local territories. This official recognition was an important step for preserving Italy’s historic multilingualism in general and the Mòcheno language and culture in our specific case.

Linguists recognise different factors for language preservation; these can be both internal and external to the community. The most important among the internal factors is indeed the degree of institutionalisation of the lesser used language. Conferring a language an official status entails its use in the public administration and official documents (cf. Eichinger et al. 2008: 12). This is an essential step, since

[...] le minoranze linguistiche oggi non possono più pensare di sopravvivere semplicemente con il tramandarsi la parlata nell’ambito familiare, come è avvenuto nelle generazioni passate. Sicuramente anche questo aspetto ha una sua importanza, ma non è più sufficiente. È necessario che la lingua minoritaria venga utilizzata a tutti i livelli, sia in famiglia come nell’amministrazione pubblica […]4 (Gino Fontana, responsible for relations with language minorities of the regional government, in Rowley 2003: 15).

The constant contact with the country of origin of the settlers is a further quite decisive factor for language preservation, as it keeps the channel to the centres of language innovation open, thus hampering a separate development or the freezing in time of the language variant spoken by isolated communities. This contact may consist of the arrival of new settlers or, for example, of the habit of sending students back to the mother country for higher studies (Eichinger et al. 2008: 12-13). The Mòcheno community has seen the last wave of immigration in the 16th century; the exchange with the nearest

4 Today language minorities can no longer survive only with passing down their language in the

family, as was the case with past generations. This type of language transmission is indeed important, but not sufficient any more. The minority language must be used at all levels, i.e. both in the family and in the public administration.


German speaking areas was partly kept up thanks to the kromeri, pedlars who travelled to sell goods in the nearby Tyrol, but this did not avoid the preservation of antique and unique language characteristics in Mòcheno.

Finally, another internal factor for language preservation is religious. For centuries the language communities that did not share the same confession with the surrounding population were more likely to live in isolation, avoiding contacts and mixed marriages (and hence potential assimilation), than others (cf. Eichinger et al. 2008: 13). This factor is not extremely relevant for the Mòcheno community, who mostly profess the Roman Catholic faith as do the neighbouring people.

As regards the external factors, the presence of a Dachsprache, a standardised and common means of communication used by the speakers of different dialects, especially as a written means, can be crucial. The attempts at standardising and unifying the different variants of Mòcheno through the grammar published in 2003 have only partly succeeded, but this will probably change in the next decades, as more people will have attended Mòcheno lessons at school or in evening classes. As Eichinger (et al. 2008: 14) points out,

[d]ie Schule spielt heute eine ungleich höhere Rolle für den Spracherhalt als vor 150 Jahren. Während etwa um 1850 erst zehn Prozent der schulpflichtigen Kinder eingeschult waren und die Analphabetismusrate entsprechend hoch war, ist heute das Beherrschen einer Sprache in Wort und Schrift eine grundsätzliche Voraussetzung.5

The kinship between the languages in contact (Eichinger et al. 2008: 13) is among the last external factors of language preservation we wish to shortly discuss. The assimilation of an alloglot group is in fact less likely when the majority language is of a different language group or family, as is the case with the Germanic Mòcheno surrounded by Italian (a Romance language). Last but not least, the social and psychological attitude of speakers towards their language can play an important role (Eichinger et al. 2008: 13-14). In recent years the awareness of having a unique and original language and culture has risen in the Mòcheno community; many are now proud of being part of the minority, while a few decades ago it was still a cause of embarrassment or even shame.

The official recognition of Mòcheno as a historic minority language in Italy in 1999 and the subsequent regulations, which allowed its use in the public administration and documentation, contributed strongly to this rise of awareness and change in attitude towards the language, both within and outside of the community. The legal frame around this change in status is very varied, ranging from national to provincial laws, and is based on article 6 of the Italian Constitution stating that “[t]he Republic protects linguistic minorities by special laws”. The first step was taken with the aforementioned law n. 482/1999, which lists the minorities to be safeguarded and sets a clear territorial principle, meaning that only the speakers of a minority language actually living in certain municipalities shall benefit from the new law. In those areas the teaching and use

5 Today school plays a more important role for language preservation than 150 years ago. While in

1850 only 10% of children attended school and the rate of illiteracy was consequently high, knowing how to speak and write a language today is a basic prerequisite.


of the minority language is allowed in nursery schools as well as in primary and secondary education, in municipal council meetings, when dealing with public administration officials and Justices of the Peace. Official documentation can be drafted bilingually, however the Italian wording remains the only legally binding version. Finally, specific funding is allocated for the protection and promotion of all historic Italian minority languages.

A second essential step followed at the provincial level when law n. 6/2008 was passed, requiring official documentation to be always bilingual in the areas populated by a language minority. The local law also establishes the right to education in the minority language and considers the knowledge of the language as a preference criterion for public employment. This entails that it will be easier in future to find public officials who are proficient in the Mòcheno language in the territory.

It is against this legal background that the community of the Fersina Valley realized the need for the development of legal and administrative specialised language and terminology in their native language, so as to be able to convey highly specialised concepts effectively in written and oral official communication. The problems the Mòcheno translators face are quite different from the standard challenges posed by legal translation and terminology. Such specific needs and background conditions will be outlined in the next section.

5. Outline of specific problems and challenges

Mòcheno is a typically oral language that has never been used before in modern and complex administrative contexts. As a consequence, it faces several “deficiencies” if compared with widely used and well-standardised languages that have an official status in one or more national states. From the point of view of orthography and lexis, writers must cope with people’s strong attachment to their own village variant and phonology, which partly leads to differences in writing and word choice, despite the standardisation efforts undertaken with the common grammar published in 2003. For example, one of the municipalities in the valley can be found spelled Palae en Bersntol or Palai en Bersntol. At the moment it is still early to predict the effects of this slow diffusion of the standard orthography and grammar, but this will probably change as the standard language is taught more and more at school and in evening classes. This is a problem that cannot be addressed adequately during translation and terminology lessons but should be solved within the community of Mòcheno speakers and writers.

The almost complete lack of normative references and textual corpora deprives legal drafters and translators of any written linguistic authority to be consulted in order to find specialised terminology and cues or ideas for translation proposals. What any translator or terminologist working on largely spoken languages would notice immediately is the general shortage of language resources in Mòcheno on the one hand and on the other hand the great disparity between the minority language and the languages it is in closer contact with, first and foremost Italian and then German. Whereas the latter has online monolingual and bilingual dictionaries, searchable collections of legislation, large textual corpora, specialised terminology databases and many other—often even freely available—tools, no such resources have ever been worked on for Mòcheno. An


essential type of information conveyed during the translation and terminology course was a good introduction to the existing monolingual resources of Italian and German as well as many bilingual tools, with a focus on free of charge web-based resources. This served the double purpose of teaching the trainees how to retrieve information in the source language, which leads to a better understanding of the text to be translated and hence less difficulties in transposing it into Mòcheno, but also of making them familiar with all the possible tools they could set up for their own language. The bilingual resources can be used as a source of inspiration and suggestions when neologisms and translation proposals have to be created.

With this respect, the tools and strategies developed in the neighbouring province of Bolzano have proven to be quite useful. Since the end of World War I, when the formerly Austrian territory called Südtirol was transferred to Italy, the province of Bolzano has a large German speaking minority. These citizens were granted extended rights and a substantial autonomy several decades ago. Having come to enjoy the right to use the German language (standard German in this case) many years before the Mòcheni, the South Tyroleans have faced and already partly solved many challenges now faced by the smaller minorities. Bilingual collections of local legislation, databases of legal and administrative terminology, dictionaries, monolingual corpora, etc. already exist. The province of Bolzano even set up a Terminology Commission in charge of standardising the German translation equivalents for the Italian legal and administrative terminology, thus for the first time creating a German language terminology which reflects the Italian legal concepts and order. It seems extremely useful for the Mòcheni to be introduced into the South Tyrolean standardisation process, for them to gain insight into how new legal terminology can be created when no existing term can be borrowed from the Austrian or German legal systems due to insufficient or nonexistent conceptual correspondence between the Italian legal concepts and the foreign systems. The tools and terms developed and created by their more numerous German speaking neighbours can serve the Mòcheno translators and drafters as a source of suggestions and inspiration when proposing new special language terms in their own language. In this context, during the training great attention and an adequate amount of time had to be devoted to the rules and strategies for term formation (compounding, derivation, paraphrasing etc.), in order to provide attendees with enough theoretical insights into the creation and dissemination of neologisms.

A further challenge to overcome is that, given the small number of speakers, it is quite unlikely to find expert legal drafters, translators and terminologists who are also proficient in the Mòcheno language. Most of them work without any specific training, simply because they are proficient in the minority language. As a consequence, a course in specialised translation and terminology work would have to start with very basic introductions into translation and terminology theories and techniques. To facilitate the trainees’ approach to specialised translation and terminology work, extremely simple and straightforward subject fields were chosen: the theory and basic strategies for terminology work (definition writing, essential and sufficient characteristics of a concept, examples of use, etc.), were explained first monolingually, using the domain of jams and marmalades. Translation was illustrated on the basis of tourist texts describing the valley and its attractions. One of the most difficult messages to convey was that there


is never just one correct translation and that the same message may be delivered in several ways and through different words.

Considering that the course was aimed at non-expert translators and terminologists it was deemed essential to provide them with an in-depth overview of the characteristics of Italian legal language and terminology, with the purpose of refining their abilities in detecting certain structures, differences in register, subtleties in the wording etc. in the original language. Once these are readily recognised they can be reproduced more easily in the target language, if this is possible and desired. Also, a good training in identifying translation problems allows the translator to decide more consciously which solutions can be viable or should be avoided.

From a more technical point of view, the Mòcheno community needed expert advice on the tools to be adopted or developed on the basis of their purpose, target audience and situations of use. The possible creation of a database of legal and administrative terminology called for background information on the selection and structuring of data categories in a term base as well as an overview of existing commercial and non commercial tools for terminology management.

6. Conclusions and outlook

All these aspects cause the activities related to translation and terminology to be very different when dealing with languages that are used by a small number of citizens and have very few financial and computational resources. Especially work on term formation and neology is extremely demanding and calls for specific training.

Concentrating on the aspects of terminology training, several adaptations of the “standard courses” in multilingual legal terminology work need to be carried out. Instead of teaching the basics of comparative legal terminology, the focus is laid on neology, since we are not comparing two fully-fledged legal systems; in fact, it is one and the same legal system that needs to be expressed in two languages, one of which lacks the specialised terminology that must still be developed. While standard terminology activities can often count on several tools developed for well-known languages and similar or equivalent tools can be found for both the target and source language, the terminologists working with Mòcheno can resort to useful tools only in the source language. Hence, the main difference in the two types of terminology work lies in the focus on term retrieval strategies in the first case and neology in the second.

These substantial differences confirm the need for specific terminology training to answer special needs, which focus on the strategies for countering the lack of existing tools and references. It seems desirable to develop tailor-made guidelines for terminology work on minority and lesser resourced languages in future to support the use and development of these languages and allow them to become fully fledged even from the point of view of specialised terminology.


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ACTORS AND ACTIONS IN PRENUPS AND CAPITULACIONES MATRIMONIALES:

A CROSS-CULTURAL STUDY OLGA DENTI [email protected] MICHELA GIORDANO1 [email protected] University of Cagliari, Italy

Abstract The investigation of a corpus of American prenuptial agreements and Spanish capitulaciones matrimoniales shows how the popularity of premarital contracts is spreading everywhere. The American and the Spanish documents, juridically diverse in many aspects, embedded in two different legal systems, belong to the genre of contracts and are classified as a type of negotiation/mediation. The lexical and semantic analysis focuses on the specialized terminology used to refer to the human actors and their actions within the documents. The aim is to discover whether and how legal, intercultural and sociological divergences emerge from the textual context. Participants play several roles in the various semantic-pragmatic units constituting the contract, being in turn considered as contracting parties, married couple, notary public, parents, esposos, padres, and otorgantes. Their actions are highlighted by a punctual and proper use of verbal constructions and speech acts, such as asserting, signing, stipulating, agreeing. The study demonstrates how actors and actions do not stand autonomously and separately: they perform and fulfil a specific pragmatic function in a precise legal and cultural context. Key words: prenuptial agreements, legal terminology, negotiation, mediation

1. Introduction The growing popularity of premarital contracts, as a way to handle the financial aspects in the marriage in order to prevent possible future disagreements, is directly linked to the increasing number of divorces, a phenomenon spreading in several countries.

This paper, part of a more comprehensive research, aims at providing an investigation of a corpus of American prenuptial agreements and Spanish capitulaciones matrimoniales. The two institutions are juridically diverse in many aspects, being embedded in two different legal systems regulating life in two diverse cultures. The lexical and semantic analysis will focus on the specialized terminology used to refer to 1 This paper has been jointly planned: Introduction and Data and methodology have been written

by both authors. Olga Denti wrote paragraphs 5 and 6 and Michela Giordano wrote paragraphs 2, 4 and Conclusions.

148 Olga Denti & Michela Giordano

the human actors and their actions within the documents in order to discover whether and how legal, intercultural and sociological divergences emerge from the textual content. Starting from the observation that both prenuptial agreements and capitulaciones matrimoniales comply with the genre of contracts and employ elements of negotiation/mediation, this study will focus on the roles participants play in the various semantic-pragmatic units (Gotti 2005, 124) such as parties, married couple, notary public, parents, esposos, padres, and otorgantes, highlighted by a peculiar use of verbal constructions and types of acts, such as asserting, signing, stipulating, agreeing. Actors and actions do not stand autonomously and separately: they perform and fulfil a specific pragmatic function in a precise legal and cultural context. 2. Legal background Prenuptial agreements, or prenups, are nowadays recognized in all fifty American states, although sometimes they may not be enforced and different degrees of juridical discretion may be exercised. The lack of uniformity among the states in the application of this legal institution seems to be the major feature. The states are divided into two groups, the community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) and the equitable distribution states (the remaining 41 states), which differently govern the way in which properties will be allocated within the couple in case of death or divorce. The Uniform Premarital Agreement Act (UPAA) in 1983 aimed at giving the states uniform guidelines, but it itself is currently not applied homogeneously (Al Mureden 2005).

The Spanish capitulaciones matrimoniales or “articles of marriage” identify the agreement between future spouses or married couples who decide to choose, modify or substitute their matrimonial property regime. All over Spain the stipulation of capitulaciones is regulated by the Código civil. The most common form is the Community Property Matrimonial Regime, régimen de gananciales, which is applied by default if nothing is agreed by the spouses, according to the Derecho Común. On the contrary, in some regions such as the Autonomous Communities as Catalonia, Balearic Islands, Aragon, Pais Vasco and Navarra, regulated by the Derecho Foral (regional), in case of no agreement between the spouses, the Separate Property Matrimonial Regime, or régimen de separación de bienes, is applied by default.

There has been a steady growth in the amount of divorces in the last few years in Spain and this factor has brought about an increase in the number of couples deciding to settle their financial matters before the wedding (Lamarca et al. 2003), choosing the matrimonial property regime on their own rather than accepting the one applied by default in their place of residence, in case nothing is agreed upon.

The various legal differences and modes of application both in the USA and in Spain will not be dealt with here since that goes beyond the final aim of the present study.

Actors and Actions in Prenups and Capitulaciones Matrimoniales: A Cross-Cultural Study 149

3. Data and methodology The data for this study is part of a wider corpus currently being built up and collected by the authors from specialized legal websites or kindly provided by law firms in the US and in Spain. It includes:

a) premarital agreement from the State of Illinois (PREN1 henceforth); b) prenuptial agreement from the State of Texas kindly provided by the law firm

Granstaff, Gaedke and Edgmon, P.C, San Antonio, Texas, (PREN2 henceforth); c) modelo de acuerdo prematrimonial (CAP1 henceforth); d) modelo de capitulaciones matrimoniales (CAP2 henceforth);

If four documents could seem a small corpus to carry out a quantitative analysis on the one hand, on the other they surely provide a large amount of material to be investigated from a qualitative point of view, especially when dealing with specific terminology or even with everyday terms which acquire a special connotation in a given legal context.

As already pointed out in a previous study on the matter (Denti, Giordano 2010), the different legal systems and social and cultural backgrounds account for the different overall organization of texts and the main sequential “semantic-pragmatic structures” (Gotti 2005, 124), or “conceptual units” (Garzone 2003, 188), which identify the several parts or sections in the agreements. Some of the conceptual units are explicitly covered in the American prenups, while they are not in the capitulaciones and vice versa. The documents surely belong to the same type of text, displaying many of the features typical of the genre of contracts, but different drafting rules and practices and legal frameworks interfere with the final result.

The documents will therefore be analysed contrastively taking into account the legislative frameworks of the countries where they are utilised, in a cross-cultural perspective in order to find out the existence of differences or similarities on the lexical and semantic level and to ascertain whether such dissimilarities can be the outcome of divergences in the legal system or differences due to cultural and social factors.

The theoretical framework within which the data is analysed includes the description of human actors proposed by Salmi-Tolonen (2003) and the taxonomy of speech act verbs suggested by Fraser (1975). 4. Participants or “human actors” The first part of the present discussion will deal with the terminology used to refer to participants or legal subjects or, with Salmi-Tolonen’s words (2003, 324), “the human actors” performing some type of acts in the context of the agreement signing.

Human actors in the corpus can be classified into three large groups: contracting parties, official authorities, and third parties (see Table 1). Reference to them is made through the use of different lexical items according to their functions in the text which imply different actions they are supposed or required to perform in order to stipulate an agreement.


Participants or “human actors”

American prenups Spanish capitulaciones CONTRACTING PARTIES CONTRACTING PARTIES

party/parties Party/Parties Party A resident of beneficiary trustee surviving spouse deceased spouse omitted spouse spouses owner-spouse owner non-managing spouse respective Party

los reunidos los comparecientes los otorgantes los intervinientes los futuros esposos los cónyuges, ambos cónyuges los esposos, ambos esposos los consortes los padres la madre, el padre el progenitor, los progenitores el cónyuge titular del domicilio conyugal el cónyuge que tenga la custodia el cónyuge no custodio el progenitor no custodio

OFFICIAL AUTHORITIES OFFICIAL AUTHORITIES the court a mediator an arbitrator Notary Public attorney independent legal counsel witnesses

el Notario

THIRD PARTIES THIRD PARTIES children minor children children from other marriages successors heirs, assigns, personal representatives and all successors creditors

los hijos del matrimonio los hijos mayores de 12 años los menores

Table 1 Human actors in prenups and capitulaciones matrimoniales

4.1. The contracting parties in prenups

The opening statement in PREN1

“THIS AGREEMENT is made and entered into this ___ day of ____, 2004, by and between Lisa Renee Smith, a resident of Chicago, Illinois, and Ricardo Montoban, Jr. a resident of Madrid, Spain, who shall be collectively known herein as ‘the parties’”

introduces the contracting parties, providing their names and place of residence: each party is identified as a “resident of” and, therefore, both geographically and legally located. In both American prenups, the parties are either referred to by their first name


and surname or by “the Parties”, either capitalised initially, such as in “The Parties desire to make reasonable and sufficient provisions for each other” (PREN2), or in lower case, such as in “the parties desire to fix and determine various financial relationships that will apply during their marriage” (PREN1). The terms “party/parties” (PREN1) and “Party/Parties” (PREN2) are utilized consistently throughout the two prenups. In PREN2 parties are often referred to by their proper names (which recur more frequently than in PREN1) or by the expression “either Party” when they are taken or considered individually. Similarly, in PREN1, they are referred to as “each party” or “either party” when considered individually and “both parties” when taken collectively as a couple.

The subsections “Contributions and accumulations in retirement plans and accounts” (PREN2) and “Contributions to Retirement Accounts” (PREN1) identify each party as the “plan beneficiary” (PREN1) or as a “participant or owner of such retirement account” (PREN2). The expressions “surviving spouse”, “deceased spouse”, ”deceased party” or “omitted spouse” are used in the section “Waiver of Rights Upon Death” (PREN1) to identify the contracting parties and their rights and duties in the event of death of one of the spouses. In some cases, the surviving spouse can be nominated “executor or personal administrator” (PREN1) of the deceased spouse’s Last Will.

The terms used to identify the party are therefore context-dependent: the change of context brings about a change in the function of participants, thus the contracting parties take on a different role. The same happens when the agreement deals with the assets or liabilities of the parties considered as a married couple and the expressions “spouses” or “owner-spouse” are used in contrast with the terms “owner” and “non-managing spouse”, employed when dealing with separate property management (PREN2). In particular, the expression “respective Party” is utilized when coping with “Separate property to remain separate property” in PREN2.

It can be concluded that all the lexical items referring to the contracting parties regarding rights and duties on properties and assets all belong to the financial field. This is in accordance with the peculiar “financial character” of American prenups in which alimony, debts, common family expenses, retirement plans, pensions and wills are the matters at issue. However, they cannot provide for children’s support, custody and education, especially if limiting their rights, since these issues cannot be contemplated in American prenups.

4.2. The contracting parties in capitulaciones In the first Spanish document under scrutiny (CAP1), the opening statement defines the contracting parties as “los reunidos” of whom proper names and personal details are provided. The lexical item “los reunidos” is utilized each time the parties are fulfilling their legal duties appearing before a notary public in order to discuss and agree on some future conditions in case of separation or divorce. The last statement in CAP1 closes the agreement underlining the parties’ will to sign all necessary legal documents and to ratify them before a judge for the agreement to be enforceable:

“(…) el presente constituirá el convenio de separación o divorcio, obligándose los reunidos a firmar cuantos documentos públicos o privados sean necesarios y en todo caso a comparecer en la presencia judicial para su ratificación”.


The terms “los futuros esposos”, “los cónyuges”, and “los consortes” are employed throughout the text to refer to the parties as an engaged pair aiming at getting married, and as a couple either married or already divorced, and their repetition conveys internal cohesion to the document.

The most striking difference between CAP1 and the other documents under scrutiny is the presence of provisions for the couple’s children. The very first article of marriage in CAP1 contemplates the possibility of “separación”. Therefore, the parties are considered “el cónyuge que tenga la custodia”, the spouse who will win child custody, who can become “el cónyuge ocupante” if he/she decides to live in the matrimonial residence after separation; or “el cónyuge titular del domicilio conyugal” and “el cónyuge que ostente la propiedad de la vivienda”, meaning the spouse who can demonstrate to be the legal owner of the matrimonial residence.

The second article in the agreement, distributed in several sub-sections all dedicated to the couple’s children, “los hijos del matrimonio”, changes the role of the contracting parties completely, showing again how the choice of the terms referring to the parties is context-related. When the parties are considered collectively as parents, they are referred to as “los padres” or “los progenitors”; when each party is considered individually can be either “el padre”, “la madre”, “el progenitor”, “el cónyuge no custodio” and “el progenitor no custodio” (alternatively the father or the mother or the spouse who has or has not child custody). The financial aspects leave the floor to the legal aspects but also to the practical matters linked to the parents-children relationship and to everyday life, foreseeing parental legal custody, “garda y custodia” or “patria potestad”; visitation to the children, “régimen de visitas y estancia”; custody during weekends, “fines de semana”, Christmas and Easter holidays, “vacaciones escolares de Navidad y Semana Santa”, summer holidays, “vacaciones estivales” and even parents’ work holidays, “vacaciones laborales”.

On the contrary, reference pattern to the contracting parties in the second Spanish document (CAP2) is far less complex (Denti, Giordano 2010, 121). Throughout the text, “los futuros esposos” establishes the identity of the parties as an engaged couple committing themselves to perform some joint legal action, such as sharing the burdens of marriage or “las cargas del matrimonio”. When their individual duties and legal rights and obligations are at stake, each spouse, “cada uno de los futuros esposos”, is considered separately.

When the contracting parties are considered as legal subjects who appear before the notary in order to sign and execute a public instrument such as the articles of marriage, they are defined as “los comparecientes”, “los otorgantes” or “los intervinientes”. 4.3. Official authorities The second group of human actors includes the notary public, the attorneys, the independent legal counsels and even the witnesses.

The notary is the official authority par excellence in both American and Spanish documents: his presence and official duties assure legal validity to the agreement stipulation and signing.


In PREN1 the final statement is the Notary’s declaration, introduced by the use of the first person singular pronoun which confers authority and legitimacy to the whole document:

“I, the undersigned, a Notary Public authorized to administer oaths in the State of Illinois, certify that (...). IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal this ____ day of October, 2004”.

In PREN2, final ACKNOWLEDGMENTS recite as follows: “BEFORE ME, the undersigned Notary public in and for the State of Texas, on this day personally appeared (…)”.

Similarly, “el Notario” in the capitulaciones matrimoniales becomes an active actor: his/her official functions include introducing the parties, acknowledging their identity and their will to marry, mediating, signing and sealing the agreement with the fixed closing formulas. In CAP2, he/she introduces the parties in the first statement “ANTE MI, _____________ Notario del Ilustre Colegio de Madrid (…) comparecen (…)” meaning “before me, the Notary (…) appeared…” followed by the parties’ proper names. Later in the same document, the notary legitimizes and swears upon the legal validity of such public instrument attesting the parties’ legal capacity and their free consent to the agreement (Denti, Giordano 2010, 122).

Differently from the Spanish capitulaciones, American prenups foresee the possibility to consult an expert, who assists the parties in understanding the agreement content and in complying with the formalities which make it valid and enforceable. After the ACKNOWLEDGMENT by the Notary, the CERTIFICATION OF ATTORNEY is uttered and signed by both parties’ attorneys as follows:

“I certify that I am an attorney at law, duly licensed and admitted to practice in the State of Texas; that I have been employed by _______ (…) and that ________ has acknowledged his full and complete understanding of this agreement and its legal consequences, and has freely and voluntarily executed the agreement”.

In addition, in PREN2 “witnesses” as well hold an official role within the documents, and “the court”, a “mediator” and an “arbitrator” are introduced when suggesting the resolution of a dispute through Alternative Dispute Resolution methods such as mediation or arbitration (Denti, Giordano 2010, 119).

4.4. Third parties

The third group of participants in the American prenups includes “children”. Though, children support is not dealt with since “Nothing in this agreement shall be construed as relieving either party of an obligation to support their minor children” (PREN1). PREN2 mentions “children from other marriages”, and, with reference to the couple’s children support it is specified that “The provisions of this agreement are not intended to adversely affect the right of any child of this marriage to child support”.


In both American documents, “successors”, “heirs”, “personal representatives”, and “assigns” are examples of the third party (Denti, Giordano 2010, 119)

“This Agreement (…) is binding on the Parties and their respective heirs, personal representatives, successors, and assigns.” (PREN2)

As already explained, CAP1 is the only premarital contract among those under scrutiny which explicitly deals with the issues related to child custody and the rights and duties influencing the relationship between divorced parents and minor children, or “los menores”. The couple’s children, or “los hijos del matrimonio”, are introduced in Section A of the first article. The children’s mother, “la madre” will be responsible for child custody in case she decides to reside in the same town where the matrimonial residence is placed, and especially if the father, “el padre”, decides to move elsewhere. In this case, children represent just passive actors for whom parents are supposed to make decisions. On the contrary, in Section B of the second article of marriage, children older than twelve, “los hijos mayores de 12 años” become active actors since they are capable of choosing freely their custodian parent, or “progenitor que libremente elijan”. Joint custody is generally mentioned and preferred when minors are involved: custody should be “compartida por ambos cónyuges” meaning collaboratively shared between the parents.

5. Actions

The second part of the analysis has focused on the actions performed by the contracting parties, the official authorities and the third parties present within the documents. The actions present in Tables 2 and 3 have been chosen with reference to either their occurrence frequency or their semantic role within the text. The aim of this analysis was to highlight the position of the actors towards the propositions, i.e. what was being decided upon.

In order to investigate the actions performed by the actors to stipulate the agreement and make it enforceable, according to Fraser (1975, 189-193) the speech act verbs in the documents were categorized as follows (an example is given for each speech act):

Asserting – evaluating the suitability of what is expressed in the context and supporting the truth of what is expressed: “Each party acknowledges an opportunity to view said financial information prior to execution of this document” (PREN1);

Evaluating – appraising and judging the truth: “I, the undersigned, a Notary Public (…), certify that Lisa Renee Smith and Ricardo Montoban, (…), declared to me that they had willingly signed and executed the instrument as their Prenuptial Agreement” (PREN1);

Reflecting speaker’s attitude – expressing the reaction to previous or following acts expressed by the proposition: “The Parties desire to make reasonable and sufficient provisions for each other (…)” (PREN2);

Stipulating – expressing a position towards the specificities of what is uttered: “John Doe (…) and Jane Doe (…) have entered into an Agreement with respect


to such marriage for the following reasons and with reference to the following facts (…)” (PREN2);

Requesting – asking the other actor for a response: “La patria potestad sobre los hijos será compartida por ambos cónyuges” (CAP1) (both parents will share their children’s support);

Suggesting – expressing the wish for the other actor to consider the value of what follows: “I certify that I am an attorney at law, (…) and that I have advised him with respect to this contract” (PREN2);

Exercising authority – expressing rights or powers to be established and exercised by the actors: “(…) yo, el Notario, DOY FE” (CAP2) (and, I, the Notary Public, guarantee);

Committing – expressing obligations to be defined and respected: “(...) que tienen intención de contraer matrimonio en (...), el día (...)” (CAP2) (that intend to get married in ..., on ...).

However, even if Salmi-Tolonen (2003, 326) argues that this can only represent a general framework referring to ordinary common speech rather than to legal language events, Fraser’s taxonomy of illocutionary acts (1975, 189-190) perfectly adapts to the present study. As a matter of fact, the author specifies that along with the vernacular performatives, term used to refer to acts of a general, everyday variety, the ceremonial performatives exist, meaning those verbs which belong to some codified and conventionalized activities such as those pertaining to the legal, religious, business, government, and sport fields. 5.1. Actions in prenups After classifying the American prenups’ speech acts following Fraser, Table 2 was drawn to represent the analysis results: some of them appear only in one of the documents, and that is specified in brackets.

Actions in American prenups

ACTION ACTORS

TYPE OF ACT Contracting parties

Official authorities

Third party

acknowledge X asserting acquire property X exercising

authority act X X (PREN2) X exercising

authority administer X exercising

authority advise X (PREN2) suggesting agree, covenant X committing,

exercising authority, reflecting speaker’s attitude


Actions in American prenups

ACTION ACTORS



Third party

appoint X (PREN1) exercising authority

assume X (PREN2) committing certify X evaluating define X (PREN2) stipulating desire/wish X reflecting

speaker’s attitude disclose, make disclosure, examine disclosure

X asserting, evaluating, exercising authority

dispose X exercising authority

elect X (PREN1) evaluating, stipulating

enter X stipulating, committing

execute X committing express intention to get married and to stipulate the agreement: intend to, plan

X committing and stipulating

explain X (PREN2) asserting fix and determine

X evaluating, stipulating

give up, waive X exercising authority

indemnify X stipulating make X X exercising

authority order X (PREN2) requesting own X asserting pay, make payment

X stipulating

request X requesting schedule X (PREN2) stipulating select X X X stipulating sign X X (PREN1) committing submit X committing undersign X committing

Table 2 Actions in American prenups

As it can easily be observed from Table 2, most actions are performed by the parties, as they represent the main actors within the document, those mostly involved and affected


by the agreement. They try to foresee all possible outcomes and future events in their marriage and in their potential divorce, and the provisions to deal with them. They state their present and future rights and duties, but also evaluate: “each party has had the opportunity to fully examine the financial disclosures of the other party” (PREN1). In the example

“each Party expressly waives in this written instrument any right to disclosure of the property or financial obligations of the other Party beyond the disclosure provided in this instrument as summarized in Schedule A” (PREN2),

the parties’ intent is to exercise their authority to maintain their separate property separate both during their marriage and in case of divorce.

In particular, committing, exercising authority and stipulating are the most common performative acts, denoting the text as formal, objective, precise and impersonal: verbs such as agree, covenant, appoint, dispose, execute, intend to, plan, sign and undersign typically belong to the field of legal discourse and in particular identify and ascribe these texts to the genre of contracts.

Official authorities mostly carry out formal actions, such as representing and acknowledging the parties, certifying the legality and ratification of the document, and counseling actions, as they hold the role to advice the parties and make sure they understand their rights and duties. “IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal this ____ day of October, 2004” underlines the commitment of the Notary Public who places “himself under an obligation to bring about the state of affairs expressed in the proposition” (Fraser 1975, 193).

The third party, mainly children and successors, are barely represented in Table 2, as they are essentially a passive party, upon whom the parties’ obligations fall, as it is evident in the following examples “This Agreement will bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the Parties” and “The provisions of this agreement are not intended to adversely affect the right of any child of this marriage to child support” (PREN2).

A particular archaic verb form which is worth mentioning is WITNESSETH in capital letters in PREN1, an instance of asserting act, introducing the subsequent five premises, each one starting with the adverbial whereas, typical of contracts.

5.2. Actions in capitulaciones The same closer analysis on the performative verbs was conducted for the Spanish capitulaciones matrimoniales which display many of the several elements typically present in those texts drafted according to the rules of el español jurídico.

As it can be seen from Table 3, in the capitulaciones matrimoniales analysed, the parties are again the most important players.


Actions in Spanish capitulaciones

ACTION

ACTORS TYPE OF ACT Contracting

parties Official

authorities Third party

comparecer, reconocer X

asserting

acreditar X (CAP1) evaluating acuerdar, convenir, pactar, consentir, coincidir

X X (CAP1)

exercising authority, reflecting speaker’s attitude

compartir X (CAP1) requesting conservar, tener, quedar, continuar

X asserting

contribuir X exercising authority

corresponder X (CAP1) evaluating, stipulating

dar fe X (CAP2) exercising authority

decidir X (CAP1) evaluating declarar X (CAP2) asserting efectuar pagos y saldar, pagar X exercising

authority ejercer derechos X (CAP2) exercising

authority elegir X

(CAP1) exercising authority

ser deseo de X (CAP1) reflecting speaker’s attitude

establecer X (CAP1) evaluating exponer X asserting tener intención, pretender celebrar, contraer matrimonio, otorgar capitulaciones matrimoniales

X committing, stipulating

facilitar X (CAP1) committing firmar X committing independizar X

(CAP1) asserting, exercising authority

intervenir X (CAP2) requesting, exercising authority

obligar X (CAP1) committing pasar X

(CAP1) exercising authority


Actions in Spanish capitulaciones

ACTION ACTORS



Third party

permanecer X (CAP1)

exercising authority

permitir X (CAP1) exercising authority

reconocer X (CAP2) asserting, exercising authority

respetar X (CAP1) reflecting speaker’s attitude

ser responsable X (CAP2) committing solicitar X (CAP2) exercising

authority tener informado X asserting

Table 3 Actions in Spanish capitulaciones

However, as already mentioned, differently from the American prenups, Spanish texts better distinguish participants and actions using different lexical expressions to identify the actors according to the specific performative act they are carrying out in a particular context within the stipulation of the agreements: they do not act simply as parties agreeing on financial matters through a contract, but they take on the role of parents and legal custodians of minors who make provisions for their children’s future life and legal rights. For example, the verbs “EXPONEN” and “CONVIENEN Y PACTAN”, capitalized in the introduction of both texts, in the third person plural, underline the parties’ joint action of meeting to present and explain some facts, to reach an agreement and to make decisions which will rule their relationship in case of separation or divorce.

One of the most evident differences between the American prenups and the Spanish capitulaciones matrimoniales, despite the brevity of texts if compared to the lengthy American documents, is the higher number of acts exercising authority such as acuerdar, convenir, pactar, ejercer derechos, permitir, reconocer, solicitar (see Table 3). This is due to the fact that in CAP1 much space is devoted to the management of children’s issues, and thus to the parents’ obligations as a couple or as divorced parents, counterbalanced by their rights. Instead, in CAP2, the listing of the future spouses’ specific rights and responsibilities is given with reference to the administration of each spouse’s property, stating that each

“podrá ejercer todos los derechos y acciones inherentes a dicha libre administración, judiciales o extrajudiciales, como cobro de rentas, intereses y cupones, celebración de contratos, rescisión de los mismos, efectuar pagos y saldar cuentas (...)”.

On the contrary, while asserting acts are higher in number, stipulating ones are definitely lower. Thus, the text results less formal, a little more personal, but gives the parties, in particular, fewer opportunities to choose.


Official authorities, as already seen in American prenups, function as an intermediary entity between the spouses, making sure that what is included in the documents is expression of the future spouses’ wills and is carried out in observance of the standard legal procedures and in compliance with one’s duties. The only speech act “yo, el Notario, DOY FE” (CAP2) exercised by the notary, is at once his sole intervention and the most relevant and significant act without which the other actions cannot have substance or validity, since it guarantees for the truth and legality of the document. Throughout the text, the role held by the notary in the stipulation of the contract is expressed through other word classes, such as “ante mi”, before me, “a mi juicio”, in my opinion, more than through actions or performatives.

The only actions performed by children in their role of active participants, and not passive recipients, are instances of exercising authority act as, in Fraser’s words (1975, 192), “the speaker’s proposal” is “to create a new state of affairs by exercising certain rights or powers”. Examples from (CAP1) are “Los hijos mayores de 12 años permanecerán bajo la custodia del progenitor que libremente elijan” in which children older than twelve can exercise their right to choose their parental custody and “En la medida en que los hijos cumplan la edad de 14 años el régimen de visitas será el que libremente pacten los hijos y el progenitor no custodio”, in which fourteen-year-old children can even “pactar” or arrange and stipulate with the non-custodian parent the schedule for visits.

6. Modal verbs Modal verbs require a separate discussion which integrates the previous paragraphs. They often enforce, but sometimes change, the meaning of the verb they accompany.

Prenups belong to the genre of contracts, they contain rules of conduct to regulate the consequences of certain conditions. They are also “normative texts which prescribe a specific course of action than an individual ought to conform to or (…) will be subject to sanction” (Šarčević 2000, 9). They lay down what the parties shall, shall not, may or may not do (PREN1 and PREN2), i.e. obligations, prohibitions, authorizations.

Many scholars have argued that Spanish does not really have modal verbs apart from poder and deber, identifying a certain degree of possibility and necessity. It is also true that haber de, haber que and tener que followed by the infinitive express obligation, while deber de, tener que, venir a followed by the infinitive also express possibility/probability (Klein 1968, 7). In the sentence

“ (…) Que siendo el deseo de los reunidos convenir las condiciones por las que se habrán de regir ante una eventual separación legal o de hecho o divorcio de su matrimonio” (CAP1),

se habrán de regir expresses the parties’ obligation to rule their potential separation or divorce through the terms agreed upon in the capitulaciones matrimoniales.

Moreover, tense variation may lead to a sort of correspondence between the two languages. For example, puede (present indicative) translates “can/may”, while podría (conditional) stands for “could/would be able to”, and podrá (future) means “will be able


to”. In the statement “Por tanto, cualquiera de los dos futuros esposos, (...), podrá ejercer todos los derechos y acciones inherentes a dicha libre administración (...)” (CAP2) “podrá ejercer” entails that each spouse will be able to/will be allowed to freely administer his/her personal property. This is supported by the quantitative analysis of our documents, that highlights primarily the use of the future tense to express prescription in Spanish, very common in español jurídico, and of shall, will, may in English. We found the following main instances: pudiesen 1, puedan 1, pusieran 1, podrá 2, podrán 1, ha de 2, habrán de 1 (CAP1,2); be to 2, could 1, may 29, must 5, shall 66, should 5, will 44 and would 3 (PREN1 and PREN2).

In legal English, the form be to has a semi-modal function (Williams 2005, 114), as it can be inferred from the following example:

“(…) all property designated as "Separate Property" in this agreement shall be exempt from claims, and is not to be classified, as "community property", "quasi−community property", or "marital property" under state law” (PREN1).

Shall is the most frequent modal, as we would expect having to deal with legal texts. It represents an order, a direction such as in “The Parties agree that each of them shall retain full possession, control, and management of his or her separate property” (PREN2). Will, instead, is normally used just as a marker of future tense, opposed to shall “which normally conveys an unmistakably prescriptive quality to the verbal construction” (Williams 2005, 114):

“The Parties agree that the property listed above and all increases in value of all such property (…) shall remain the separate property of the Party owning it. The Parties agree that they will use their best efforts to keep the property of the Parties as separate property by any means necessary” (PREN2).

May has the principal meaning to give discretionary power (Williams 2005, 121) as it happens in “This Agreement may be modified, superseded, or voided only upon the written agreement of the parties” (PREN1).

Must, which is the modal mostly associated with obligation in common English, is less common in legal English than shall. However, Williams (2005, 123) argues that being shall so frequent, “must tends to be preserved for cases where expressing strong mandatory obligation or urgent necessity”. When foreseeing the possibility to modify the Agreement, it becomes essential to specify that “Such written Agreement must specifically refer to this Agreement” (PREN2).

Should is also hardly used as it implies some ambiguity, uncertainty and personal judgment and might sound as a suggestion of how to behave in certain circumstances, not having a binding character, as in the example “(…) any conflict or controversy that may arise regarding this agreement, its interpretation, or its application should be resolved amicably by the Parties” (PREN2).

As for the use of negative forms, shall not expresses prohibition as well as may not. Shall not is more frequent than may not: 4 instances in each prenup of the former against one single one of the latter in PREN2.


7. Conclusions The contrastive study and the results obtained allow some conclusions to be drawn. The different legal systems and the different cultural background underlying the stipulation of premarital agreements in the different cultures certainly explain many of the linguistic features both at a textual level and at a lexical-semantic level. The employment of different terminology to refer to participants is strongly context-related: participants take on different roles and acquire different semantic connotations according to the different scenario in which they act: each section or article in the agreements sets up a different situation in which participants are supposed to perform a certain action. Contracting parties are therefore at one and the same time legal subjects, engaged pair, married couple, divorced couple, parents, owners, heirs or successors depending on the section or clause in the agreement under consideration.

The larger number of acts found in the documents under scrutiny are acts expressing authority, both exercised by the parties in their stipulation of a contract, as active participants, or by the legal rules under which they are supposed to act and behave in certain circumstances. Therefore, acts expressing authority are exercised not only by the official authorities such as notaries, attorneys, and legal counsels (especially in the American documents), as one could expect: parties themselves, in their capacity of legal subjects, are entitled to stipulate a contract and lay down provisions and conditions to regulate their future life and marriage. Moreover, the Spanish documents show how acts of authority can be exercised by children who are not only passive recipients of their parents’ decisions, but can also become active participants in the settlement and organization of their future everyday life in case of family dissolution.

The very nature of premarital agreements is exploited in both American and Spanish texts: all of them provide for a series of performatives aiming at regulating marriage and its dissolution whilst helping parties to prevent, both consciously and responsibly, possible conflicts through anticipatory measures in order to avoid resorting to a tribunal for the resolution of a future dispute. Primary sources Premarital agreement from the State of Illinois, http://www.medlawplus.com/legalforms/instruct/sample-prenup.html Prenuptial agreement from the State of Texas, Law Firm Granstaff, Gaedke and Edgmon, P.C, 5535 Fredericksburg Rd # 110, San Antonio, TX 78229-3553. Modelo de Acuerdo Prematrimonial, www.nuevodivorcio.com Modelo de capitulaciones matrimoniales, http://tusasuntoslegales.blogspot.com


References Al Mureden, Enrico. 2005. I prenuptial agreements negli Stati Uniti e nella prospettiva

del diritto italiano. University of Bologna, Faculty of Law. http://www.corsodirittofamiglia.it/allegati/contr_almureden.pdf. Later published in FAMIGLIA E DIRITTO, 2005, 5, 543 – 570.

Denti, Olga and Michela Giordano. 2010. “Till Money (and Divorce) Do Us Part: premarital agreements in the American and Spanish legal discourse”. In Bhatia Vijay K., Christopher N. Candlin and Maurizio Gotti, eds. The Discourses of Dispute Resolution. Bern: Peter Lang, 101-125.

Fraser, Bruce 1975. Hedged Performatives. In Peter Cole and Jerry L. Morgan, eds. Syntax and Semantics. Volume 3. Speech Acts. New York, San Francisco, London: Academic Press, 187-210.

Garzone, Giuliana. 2003. Arbitration rules across legal cultures. In Bhatia Vijay K., Christopher N. Candlin and Maurizio Gotti, eds. Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe. Bern: Peter Lang, 177-220.

Gotti, Maurizio. 2005. Investigating Specialized Discourse. Bern: Peter Lang. Klein, Philip W. 1968. Modal Auxiliaries in Spanish. Studies in Linguistics and

Language Learning. Volume IV. Seattle: University of Washington. Lamarca I Marquès, Albert, Esther Farnós Amorós, Albert Azagra Malo and Mireira

Artigot Golobardes. 2003. Separate Property and Family Self-Determination in Catalonia: A Peaceful Model Under a Change? Working Paper of Catalan Law No: 164, Barcelona, October 2003, www.indret.com.

Salmi-Tolonen, Tarja. 2003. Arbitration Law as Action: An Analysis of the Finnish Arbitration Act. In Bhatia Vijay K., Christopher N. Candlin and Maurizio Gotti, eds. Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe. Bern: Peter Lang, 313-336.

Šarčević, Susan. 2000. New Approach to Legal Translation. The Hague: Kluwer Law International.

Williams, Christopher. 2005. Legal English and Plain Language: an introduction. ESP Across Cultures, 2004, 1. Milano: B.A. Graphis, 111-124.


SPEED TRAPS AND THE RIGHT OF SILENCE DENNIS KURZON [email protected] Department of English, University of Haifa, Israel

Abstract In two English cases which reached the European Court of Human Rights in the mid-2000s, it was argued that the statutory requirement on the part of a motorist who has been caught speeding to give the police information concerning the identity of the driver of the car at the time of the offence is a violation of the right of silence by which a person should not be put into a position that s/he incriminates him/herself. The right of silence is one of the conventional interpretations of Article 6 of the European Convention on Human Rights.

As well as a study on the right of silence with regard to written texts, this paper also investigates the two cases in terms of icons and indices: a text may be indexical of a basic human right, and then may become an icon of that right. The European Court of Human Rights considers the particular section of the relevant statute as an icon of the “regulatory regime”. Key words: pragmatics, discourse, law, semiotics

1. The Case Narrative 1.1. O’Halloran On April 7, 2000, a car owned by Gerard O’Halloran was photographed driving at 69mph on the M11 in England in a temporary 40mph zone. He was sent a letter from the local police, which included the following:

You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page 2. I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £1,000 and 3-6 penalty points.

Attached was the Notice of Intention to Prosecute (NIP), which he signed. The text ran: You are recorded as the owner/keeper/driver or user for the above vehicle at the time of the alleged offence, and you are required to provide the full name and address of the driver at the time and location specified. Under section 172 of the Road Traffic Act you are required to provide the information specified within 28 days of receipt of this notice. Failure to supply this information may render you liable to prosecution.

166 Dennis Kurzon

The penalty on conviction for failure to supply the information is similar to that for the offence itself, i.e. a fine and penalty points.

O’Halloran returned the NIP, signing it that he was the driver of the car at the time the photograph was taken. However, before the hearing at the magistrates’ court in North Essex, where he was tried for driving in excess of the speed limit, he asked for the confession to be excluded on the grounds that sections 76 and 78 of the Police and Criminal Evidence Act of 1984 (henceforth, PACE 1984) read in conjunction with Article 6 of the European Human Rights (EHR) Convention both support the exclusion of such evidence (see below).

The court, relying on section 172 of the Road Traffic Act 1988 (henceforth “the 1988 Act”) and on Brown v. Stott (see 2.2. below),1 which endorsed the legality of the 1988 Act, convicted O’Halloran, who was fined £100, ordered to pay £150 costs, and had his licence endorsed with six penalty points.

1.2. Francis On June 12, 2001, an Alvis car owned by Mr. Idris Francis was photographed driving at the speed of 47mph in a 30mph zone in Guilford, Surrey in the UK. Unlike O’Halloran, Francis refused to sign the NIP. He wrote to the Surrey Police stating that he had the right to remain silent, invoking his privilege against self-incrimination. Even after being informed by the Surrey police that according to Brown v. Stott his right of silence was not being infringed, Francis still refused to provide the police with the information as to the identity of the driver of the car at the time of the speeding offence.

After a number of adjournments, and after Francis had applied to the EHR Court in Strasbourg, the magistrates’ court dealing with his case imposed a fine upon him of £750 with £250 costs and 3 penalty points, which was, according to Francis,2 probably a punishment more severe than he would have received for the speeding offence alone.

Eventually, both cases were presented as a package to the EHR Court (O'Halloran and Francis v. The United Kingdom), claiming that the 1988 Act infringes a person’s basic human right of silence when questioned by the police or by the court itself. 2. The Legal Texts A number of legislative texts and cases were cited in the EHR court opinion of the two cases, issued on June 29, 2007. The texts I am relating to are Section 172 of the 1988 Act, section 78 of PACE 1984, Article 6 of the EHR Convention, as well as a number of precedents. At this juncture, we may say – if we may adopt Charles Peirce's terms (Peirce, CP 4.531) – that some of these sets of symbols, as these texts may be said to be, become indices (see 3.2. below).

1 [2001] 2 WLR 817. 2 From one of the websites of the Association of British Drivers (www.righttosilence.org.uk)

Speed Traps and the Right of Silence 167

2.1. Legislative texts Subsection 2 of the 1988 Act states that when

the driver of a vehicle is alleged to be guilty of an offence to which this section applies– (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police…

and Subsection 3 provides that subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

The following subsection (4) lays down that [a] person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

To prove the relevance of subsection (4), a person may have to claim that either his or her car has been stolen or s/he has no control over members of his or her family, who take the car without permission. Needless to say, neither of the two appellants invoked this subsection.

To fulfil subsection (2)(a) of the 1988 Act, all that a driver accused of a motoring offence has to do is to sign a statement that s/he was the driver of the vehicle which was photographed speeding. Such a statement would be accepted as evidence of that fact.

In their case before the EHR court, the two appellants – O’Halloran and Francis – firstly claimed that section 78 of PACE 1984 would rule out such self-discriminatory evidence. This section states that in

any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given, if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (my emphasis)

The argument here could be worded in the following way: Since the source of the only piece of evidence that the driver at the time of the offence is the owner of the car, the court has to rely solely on this evidence to convict or not to convict. In other words, the owner would have either to incriminate him- or herself or to incriminate someone else, perhaps a member of the family.

Secondly, the appellants made use of Article 6 of the Human Rights Convention in claiming that section 172 of the 1988 Act is being violated by the British statute. The relevant article reads:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In cases previously argued before the EHR court, this article, especially section 2, has been interpreted as a guarantee of the right of silence.

168 Dennis Kurzon

2.2. Precedents I will relate to two previous cases, among others, claimed by both sides – by the appellants O’Halloran and Francis and by the UK government – to support their respective positions. In the first of the two, Brown v. Stott (see 1. above), a 2001 Scottish case, the defendant was initially arrested for shoplifting near a car which she was purported to be driving. After a breathalyzer test which found that she had an access of alcohol in her blood, it was alleged that she had been driving under the influence of alcohol. She signed the NIP stating that she was the driver of the car. This was the only piece of evidence the court had in order to prove that she had been driving a car with an amount of alcohol in her blood above the acceptable limit. In other words, if she had not incriminated herself, she could not have been convicted of drunken driving, but she could have been convicted of refusing to sign the NIP. The High Court of Justiciary allowed the defendant's appeal, since the prosecution could not rely as evidence on the admission which she had been compelled to make on the basis of section 172 of the 1988 Act.

The Procurator Fiscal (the public prosecutor in Scotland) appealed against the High Court of Justiciary’s judgment to the Privy Council, which decided that the use of the NIP is not an infringement of the requirements of Article 6 of the Human Rights Convention. The leading judgment was given by Lord Bingham, in which he claimed, inter alia, that democratic societies have used a number of methods to deal with the high incidence of death and injury on the roads caused by the misuse of motor vehicles. One such method is

by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. … (1) Section 172 [of the 1988 Act] provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. (my emphasis)

Lord Bingham continued: If, viewing this situation in the round, one asks whether section 172 represents a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, … I would feel bound to give negative answers. (my emphasis)

Lord Bingham introduced into the argument the concept of “a regime of regulation” or “a regulatory regime”. Modern states cannot function without sets of regulations that control what people can or cannot do, and control how people can do certain things. So, in order to drive a car, one must pass a driving test and pay a fee for the subsequent licence. In order to own and drive a car, one needs not only the driving licence, but also a car registration licence, car insurance and – in many countries – an annual test of roadworthiness. All this is part of the regulations a bureaucracy places on the individual citizen who is a car owner. Without these regulations, one cannot control what is going on on the roads, and reduce the accident rate, for example. It is the state that has to


ensure that only competent drivers are allowed to drive vehicles, and that car insurance covers at least third-party injury, among other things. This is Bingham’s “regulatory regime” as far as motor vehicles are concerned. So, signing a NIP after certain driving offences is considered part of this regulatory regime. In the same way that a driver hands over information concerning his or her identity while registering a car, s/he has to sign an NIP when one is sent to him or her. In the balance between the rights of the individual and the need to run a modern state, it is the state that carries the day.

The second case, John Murray v. United Kingdom3 concerns a suspected member of the Irish Republican Army (IRA) in Belfast, who had allegedly illegally kidnapped and held prisoner a Mr L., who was an informer for the Royal Ulster Constabulary, the Northern Irish police force. On arrest Murray refused to give reasons for his being in the house where Mr. L was being held. He claimed the right of silence, as enunciated in the police warning:

You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.4

Later at the police station, Murray was questioned, and warned again, this time through use of the Criminal Evidence (Northern Ireland) Order 1988, section 3, which deals not only with a failure to relate to facts which may be used later as part of the defence, but also with possible interpretations of silence during subsequent proceedings. The relevant part of the section reads:

Circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned, charged, etc. Where, in any proceedings against a person for an offence, evidence is given that the accused ... on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, … the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

The court in Murray v. United Kingdom related to the accused’s right of silence, but at the same time, it

deems it equally obvious that these immunities cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him, be

3 ECHR 1996, 41/1994/488/570 4 This is the version used in Northern Ireland. For the genesis of the new police warning in

England and Wales, see 3.2. below.

170 Dennis Kurzon

taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. Wherever the line between these two extremes is to be drawn, it follows from this understanding of "the right to silence" that the question whether the right is absolute must be answered in the negative. (Par. 47)

Hence, courts generally interpret the right of silence as a right relative to the regulatory regime required to run a modern state (as laid out in Brown v. Stott), and relative to what would be a normal interpretation of silence in everyday conversation (as in John Murray v. United Kingdom). 2.3. The submission of the parties The argument, therefore, between the British government and the two appellants in the case before the EHR Court was clearly divided between the interpretation of the right of silence as a relative right and its interpretation as an absolute right.

The Government maintained that both the privilege against self-incrimination and the right to remain silent were not absolute. These rights must be evaluated in the context of “other legitimate aims in the public interest”.5 As long as “the fair balance between the interests of the individual and the general interests of the community” (ibid.) is not being disturbed, it was submitted, governments may, in specific situations, “reverse the onus of proof of certain matters” (ibid.).

On the other hand, the two appellants argued that there are other means to achieve the same result without infringing basic human rights, of which the right of silence is one such right. Another method, acceptable in many countries, is “a statutory presumption of fact that the registered owner was the driver unless he or she provided evidence to the contrary”.6 Certain presumptions are necessary in legal proceedings. Hence, holding that a regulatory regime is necessary for running a modern state does not mean that existing methods are necessary to maintain such a regime and, at the same time, to uphold a democratic society. 3. The Issues From the above discussion of the O'Halloran and Francis v. The United Kingdom case, I would like to focus on two issues in this paper. Firstly, the appellants argue that their refusal to sign the NIP is akin to an accused’s right of silence in criminal proceedings from the moment of arrest to the court hearing or hearings. The question asked here is whether a refusal to perform a spoken utterance may be extended to a refusal to sign a document, or to write something down as requested.

5 O'Halloran and Francis v. The United Kingdom Par. 37 6 O'Halloran and Francis v. The United Kingdom Par. 41. It may be argued that such a

presumption conflicts with the presumption of innocence, i.e. you are guilty (of speeding) unless you can prove otherwise. That seems a topic for another paper.


The second issue concerns the way this case may be seen from the point of view of symbol, index and icon, especially the latter two.7 I have already mentioned above (2.) that the texts under discussion consist of symbols, i.e. words. These symbols make up different texts which in the viewpoint of the parties to the judicial conflict become indices, and then icons. 3.1. Silence I have previously set up a typology of silence in social interaction, in which I distinguish three types of silence (Kurzon 2007a, 2007b, 2009):

1) conversational silence: the type of silence often observed in everyday conversation when a participant in the conversation – frequently as one member of a dyad, but also as a member of a multi-party conversation – either does not respond to something said directly to him or her (in terms of turn-taking, s/he does not take up his or her turn although selected to do so; Sachs et al. 1974), or does not participate in a multi-party interaction, although s/he is physically present (Kurzon 1998: 32).

2) textual silence: the silence of a person, and often a group of people, while reading or reciting a text in silence. An example of this type of silence is silent prayer.

3) situational silence: This is similar to textual silence, but no text is suggested or laid down. The one-minute silence (or “moment of silence”) at war remembrance ceremonies would be an example of such a silence.

Which of these types of silence would fit the refusal to sign a document or to write in general? I would argue that we have in our case an example of conversational silence. In the same way that a participant does not respond to a question addressed to him or her – where s/he is selected to take up the turn, but does not do so – the person who refuses to sign the NIP is a person who is selected to respond (by signing the form) but does not do so when a question is addressed to him or her. The silent person is present in the interaction – the Notice is addressed to him or her, but as in an everyday conversation, s/he becomes metaphorically non-present by not responding. It should be pointed out that while in a conversation there may be a number of reasons the addressee does not respond – here we may distinguish between intentional and unintentional silence, the latter often deriving from some psychological inhibition (Kurzon 1998: 33f.) – the addressee in the case of refusing to sign an official document is acting intentionally. Hence, silence, albeit a term that relates to the world of sound and to spoken language, may be interpreted metaphorically to relate to the written and, more generally, to the visual world.

7 The terms come from Peirce (CP 4.531), but I am using them as in everyday discourse, without

giving a Peircian analysis of the texts and of the particular events.

172 Dennis Kurzon

3.2. Icons and indices As stated in the introductory paragraph to the present section, the texts under discussion consist of sets of symbols. What we will deal with here is the transformation of these sets of symbols into indices, and then the subsequent transformation of the indices into icons. As I have stated above, I am not using these terms in a strict Peircian sense (which is in any case not consistent).

The texts I am referring to here are, on the one hand, section 172 of the 1988 Act, and on the other, section 78 of PACE 1984 and the police warning concerning the right of silence read out to arrested persons. The first text is the one used by the government in their argument in favour of convicting the two appellants, and the other two texts are those used by the appellants defending their rights. These texts are presented as indices of broader legal and social issues in the case. The 1988 Act points to the need for the modern state to set up a regulatory regime in order to control much of what is going on in the public arena. More particularly, the Notice of Intention to Prosecute (NIP), set up by section 172 of the 1988 Act, is indexical of Lord Bringham’s regulatory regime. The appellants, however, look at the relevant section of PACE 1984 and the right of silence as enunciated in the police warning as indexical of human rights – of the right not to incriminate oneself. The court, according to O’Halloran and Francis’ interpretation of section 78 of PACE 1984, should reject as evidence the signed NIP, since it contradicts the spirit of the police warning, especially its opening sentence: “You do not have to say anything unless you wish to do so”.

The next stage in this transformation is the conversion of these indices into icons. The texts not only indicate approaches to the central issue in the case – whether in the balance between the need for a regulatory regime and civil rights, the one or the other is given more weight – but the texts are iconized. For the government, section 172 of the 1988 Act (and in other contexts, many other sections of other statutes) represents the “regulatory regime”. That is, the regulatory regime is an icon representing a regime in which files, forms and reports regulate the lives of the public.

For the appellants, the two texts indicating civil rights adopt the icon of the Magna Carta, the document signed by the English King John in 1215 to prevent a more belligerent conflict between himself and the barons. This icon was suggested by the Association of British Drivers, an organization that supported and financially aided O’Halloran and Francis in their appeal to the EHR court in Strasbourg. On the website discussing this case, the Association cited Winston Churchill’s A History of the English Speaking Peoples, in which he wrote:

The facts embodied in Magna Carta and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success. (Churchill 1993; see note 2. above)


The Magna Carta, then, is an icon of basic civil liberties and rights, which includes the right of silence. Of course, in the original charter, no mention is made of such a right.8 This specific right is in fact a latecomer to the list of rights. It may have emerged as a reaction to the proceedings of the Star Chamber, which was dissolved in the 17th century during the conflict between the monarchy and parliament, but it was legislated upon only in 1912.

According to the Criminal Justice and Public Order Act of 1994, the police warning was changed,9 following the change of law in Northern Ireland. Section 34(1) of the 1994 Act reads:

Where, in any proceedings against a person for an offence, evidence is given that the accused— (a) at any time before he was charged with the offence, on being questioned under

caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, …

a number of courts listed may draw such inferences from the failure as appear proper. (34(2))

However, in the present case, the appellants’ argument was that it was the prosecutor’s task to prove that they were the drivers of the respective cars which were photographed speeding, and not to use as evidence self-incriminating notices forced upon the car-owners, since they were in a no-win situation. If a car is photographed allegedly for speeding or some other traffic violation (e.g. going through a red light), and the car owner signs the NIP10, s/he incriminates him-/herself. If, on the other hand, the car owner refuses to sign, s/he violates section 1972 of the 1988 Act and is liable to be fined up to the sum laid down for the original traffic offence, and to be given penalty points. For example, for a particular driving violation, the car driver may be fined, say £250 and be given four penalty points. If s/he refuses to comply with the NIP, s/he may be fined £250 (or maybe more) and given penalty points. There is no way out. Whatever choice one makes, a similar punishment may be given.

8 The closest may be Paragraph 40 of the Magna Carta, which seems to refer generally to due

process. 9 See 2.2. above. The present warning in England and Wales reads: “You do not have to say anything but it may harm your defence if you do not mention, when

questioned, something which you later rely on in court. Anything you do say may be given in evidence.”

10 O’Halloran had signed the NIP initially, but retracted.

174 Dennis Kurzon

4. The judgment Four separate opinions were published. The first was the majority report (of 15 judges), the second was a concurring opinion of Judge Borrego; and there were two dissident opinions, one – to be discussed below – by Judge Pavlovschi and the second by Judge Myjer. The majority supported the UK government’s contention that in order to run a country, a regulatory regime was necessary. In their words:

Those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.11

As to the right of silence of the appellants, argued to support both O’Halloran’s request to retract his signature from the NIP he had originally signed and Francis’ refusal to sign the document, the Court said of Francis’ refusal:

The question of the use of the statements in criminal proceedings did not arise, as his refusal to make a statement was not used as evidence: it constituted the offence itself. (ibid. Par. 61)

Hence, O’Halloran and Francis lost their case. But let us take a look at one of the two dissenting opinions, that of Judge Pavlovschi.

He saw the right of silence as an icon of human rights. “Nowadays,” he wrote the prohibition of compulsory self-incrimination has become a generally recognised standard in the field of criminal procedure. (ibid. p. 22)

He viewed the icon of the regulatory regime – in this case, section 172 of the 1988 Act – as

a deviation from the principle of prohibition of “compulsory self-incrimination” and a breach of the right to silence, and can be considered as subjecting the individuals concerned to a legal compulsion to give evidence against themselves. Moreover, the applicants in this case were actually subjected to legal compulsion to give evidence which incriminated them. (ibid. p. 28)

Moreover, it is perfectly obvious that for an individual to state that he was the driver of a car which was speeding illegally is tantamount to a confession that he was in breach of the speed regulations. (ibid. p. 29)

In further support of his contention he cited not the UK police warning, but the far more severe – as far as the responsibilities of the police and prosecution are concerned –American so-called Miranda warning: 11 O’Halloran and Francis v. United Kingdom, Par. 57.


You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. (ibid. p. 23)

While the question of the right to an attorney did not enter the equation in this case, if we change “Anything you say can and will be used against you in a court of law” into “Anything you write can and will be used against you in a court of law”, then we may certainly see that signing the NIP may be used against the signer in a court of law. An interpretation generally held of the following clause in the Fifth Amendment of the United States Constitution

nor shall [any person] be compelled in any criminal case to be a witness against himself …

provides constitutional backing to the Miranda warning and the right of silence. O’Halloran “was punished for making use of his fundamental right not to incriminate himself”, according to Judge Pavlovschi. He then compares the severe stand in relation to traffic offenders, a relative minor – albeit large – group of offenders,12 with criminals such as murderers:

In my view it is illogical for persons who have committed minor offences to find themselves in a less favourable situation than those who have committed acts which are truly dangerous to society. (ibid. p. 31)

Although Pavlovschi, apart from citing the Miranda warning, did not relate to American law and speeding, we may add that in most states in the United States, when the car of a traffic offender is photographed a police officer would stop the offending driver after a short distance. In such a case, there is no problem with regard to the identity of the driver. It is impossible to generalize over the fifty states, but this seems to be the tendency. Moreover, police manuals do not seem to relate to the question of identity. In the Highway Safety Desk Book, published by the Advisory Committee on Highway Safety of the International Association of Chiefs of Police,13 the focus seems to be on the presence of police officers, and on the policy that fines for speeding should not be considered a means by local authorities for making money. 5. Conclusion The two opposing parties in this dispute brought to the European Human Rights Court in Strasbourg adopted icons as their leading arguments to support their respective cases.

12 A minor group, unless of course a serious accident occurs as a result of the infringement. In a

case several years ago in Israel, a driver who was convicted of speeding, being under the influence of drink and drugs, crossing a red traffic light and killing six people, was sentenced to 16 years imprisonment.

13 http://www.nhtsa.dot.gov/people/injury/enforce/deskbk.html (accessed August 2008). Information on speeding is found in Part Six: “Speed Enforcement”.

176 Dennis Kurzon

The UK government argued that “the regulatory regime” which obliged citizens to fill in forms, pay for licences, etc. is required to run a modern state. The appellants, O’Halloran and Francis, used basic civil rights, iconicized as the Magna Carta, as their argument that their refusal to sign a Notice of Intention to Prosecution is akin to their right of silence.

In both cases, the icon selected emerged initially as a set of symbols in specific texts. These texts then became indexical of certain argumentative positions in the legal conflict that followed. For the government, section 172 of the 1988 Road Traffic Act with supporting precedents was indexical of the regulatory regime, and for the appellants, section 78 of PACE 1984 and the police warning concerning the right of silence became the indices of their argument in favour of the right of silence. These indices were subsequently turned into icons.

The remaining matter, of course – and perhaps the more important one from a pragmatic point of view – is whether in the context of writing, not writing something is equivalent to not speaking, that is, whether "not writing" is to be considered "being silent". If so, then it may be argued the right of silence may also be applied to a refusal to sign a document. The majority of the European Human Rights Courts did not think so. References Churchill, Winston. 1993 (1956). A History of the English-speaking Peoples, New York:

Barnes & Noble Books. Kurzon, Dennis. 1998. Discourse of Silence. Amsterdam: John Benjamins. Kurzon, Dennis. 2007a. “Towards a typology of silence”. Journal of Pragmatics, 39,

1673-1688. DOI: 10.1016/j.pragma.2007.07.003 Kurzon, Dennis. 2007b. “Peters Edition v. Batt: The intertextuality of silence”.

International Journal for the Semiotics of Law 285-303. DOI: 10.1007/s11196-007-. 9050-4

Kurzon, Dennis. 2009. “Thematic silence as metaphor”. In Ken Turner and Bruce Fraser (eds.) Language in Life, and a Life in Language: Jacob Mey – A Festschrift. Emerald Group, 255-263.

Peirce, Charles. 1931-58. Collected Papers (CP) eds.Charles Hartshorne and Paul Weiss Cambridge, Mass.: Belknap Press of Harvard University Press.

Sachs, H., Schegloff, E. A., & Jefferson, G. 1974. “A simplest systematics for the organization of turn-taking for conversation”. Language, 50, 696-735. DOI: 10.2307/412243


TRANSLATING LAW INTO A DICTIONARY. A TERMINOGRAPHIC MODEL

WERONIKA SZEMIŃSKA [email protected] University of Warsaw, Poland

Abstract The purpose of the paper is to present a model dictionary which could serve as a tool for professional translators of legal texts.

Firstly, the methodological approach which was adopted in order to create the model is delineated. It is based on the combined specialist knowledge of three disciplines, namely terminography, translation studies and law. Subsequently, the notion of the translation dictionary as a separate type of terminological dictionary is presented, with particular emphasis on the unit of translation and translation equivalence. The following part of the paper characterises translation of legal texts and its implications concerning the needs of the translator as well as the role of the dictionary in the translation process. Finally, the paper proposes a model dictionary, constructed according to the methodological rules determined at the beginning and in the light of the conclusions drawn from the following analysis. Key words: legal translation, terminological translation dictionary, dictionary model

1. Introduction If we asked translators who their best friend was, they would probably say it was a web search engine—not a dictionary, as one might expect. T. Piotrowski (1994a: 116-117) explains: bilingual dictionaries do not answer translators’ needs concerning equivalent search and choice. Therefore, they are treated as springboards for further search rather than as actual sources.

The aim of this article is to put under discussion a concept of a dictionary, designed to serve as an essential tool in specialist translators’ work. The concept is presented in the form of a precise description of a terminographic model which could be used in constructing translation dictionaries of law. In order to design such a model, a method was adopted which could be depicted on a triangle, since the construction requires the combination of three disciplines: translation studies, terminography, that is the science of specialist dictionary making, and law, being the subject of the lexicographic work.

178 Weronika Szemińska

Fig. 1: Relation of the methodologies applied.

More specifically: 1) combining the art and methodology of terminography with the findings of translation studies renders it possible to determine the expectations of a translator towards a translation dictionary and, in consequence, to characterise translation dictionary as a professional translator’s tool; 2) projecting the knowledge of law onto the translation studies’ findings and methodology is the way to determine the nature of and specific problems in translating legal texts; 3) finally, combining the knowledge of law and the findings of terminography is necessary to analyse the terminological lexicon of the discipline, to learn about the structure of the knowledge in respect of its representation in a dictionary. This combination should render it possible to construct a dictionary which takes account of all the essential aspects: the specific problems in legal translation, the structure of the professional knowledge, and the expectations of a translator towards a translation dictionary. 2. Terminological Translation Dictionary A terminological translation dictionary is a dictionary representing terminology of a particular discipline or branch of knowledge. What is more, it is meant as a tool for professional translators: its purpose is to facilitate the process of translation of specialist texts within this given discipline.

As a terminological dictionary, it cannot be a mere list of terms, but must represent the structure of the terminological lexicon it deals with, thus also allowing the user to gain information about the structure of the knowledge. This can be achieved by various means: on the macrostructural level, that is of the general organisation of the dictionary—the dictionary may for instance take a systematic order or be divided into thematic modules—or on the microstructural level, that is of the organisation of the entry, namely in the way how the conceptual relations are presented in the entry.

As a translation dictionary, it should offer information which would be of particular use to a professional translator. Since what a translator has to understand and subsequently produce, or better to say, reproduce, is a coherent text, the entry should be

TRANSLATION DICTIONARY

OF LAW

TRANSLATION DICTIONARY

TRANSLATION OF LEGAL TEXTS

LAW

TRANSLATION STUDIES

TERMINOGRAPHY

TERMINOLOGICAL LEXICON OF THE LEGAL LANGUAGE

Translating Law into a Dictionary. A Terminographic Model 179

based on textual units as well as provide their translation equivalents. Translation equivalents cannot be established through language analysis according to criteria set in advance, but only through the examination of appropriate texts in the two languages at issue (Piotrowski 1994b: 167; Urbanek 1993: 17-19). While translation equivalence is unstable, always depending on particular texts and contexts as well as the purpose of the translation, the terminographer needs to determine the units of translation a priori, on a certain level of abstraction, unlike a translator working on a given text. It does not suffice, however, to list possible equivalents, but it is necessary to indicate the differences of stylistic, semantic and lexical nature between them. This may be achieved by various means, such as a closed system of indicators, the construction of the entry article or a solution on the macrostructural level.

3. Legal Translation

Possibly the majority of legal translators would agree, if only jokingly, with the following statement by P. Chaffey (1997: 69): “As translators we all know deep in our hearts that legal translation is impossible. The very expression legal translation seems to be a contradiction in terms, and yet we do have to translate legislation and legal documents”. These words sound radical, but there is much truth in them. Unlike other branches of knowledge, law is not one reality which can be expressed in (more or less) any language, but as many realities as there are legal systems. The language of law, therefore, does not merely describe a given, independent reality. What it primarily does is create the said reality: name and define it, determine the rules which govern it. Legal translation, therefore, is burdened with a particular difficulty, foreign to many other fields of knowledge: it occurs not only between languages, but also between systems, ergo realities. Thus, legal translation involves not only a transition between languages, but also a transition between legal systems. In order to carry out this transition, the translator needs to surmount a twofold incongruence: that of the legal systems and that of the languages, which in turn translates into incongruence on the plane of individual terms.

There are various ways in which a translator deals with the in-congruence. According to the purpose of the translation, he assumes a strategy, which further determines the range of techniques applied. The two opposing strategies are the source system oriented and the target system oriented strategy. In the former one, the differences are emphasised, while the latter has the aim of bringing out the similarities.

The analysis of the process of translating a legal text is a way to distinguish the types of information which a specialist dictionary should include in order to allow the translator to understand the source term, compare the legal systems and find an analogous concept, differentiate between the suggested equivalents and choose an equivalent or a substitute solution, finally to use the chosen expression in a grammatically, lexically and stylistically correct way. The pieces of information the dictionary may need to contain are above all: explanations concerning the meaning and interpretation of the source concept as well as its place in the legal system, data on corresponding concepts in the target legal system, intension and extension of the


equivalents, suggestions of substitute solutions and rules of use and collocability of the target language expressions. 4. Dictionary Model Terminological dictionary modelling is referred to as terminographic construction and is the most pragmatically oriented part of terminography. The main function of the model presented here is instructional, since the precise description of the model, based on the network of connections between terminography, translation studies and law, ought to become a blueprint for the construction of concrete terminological dictionaries designed for professional translators of legal texts. In other words, on the one hand, the structure of the particular specialist knowledge represented in the dictionary, on the other hand, the needs of the user of the dictionary determine the character of the model, pursuant to which a concrete terminological dictionary is to be created. These relations are presented in the form of the following figure:

Fig. 2: Outline of the construction of a terminological dictionary (TD).

The general type of the dictionary has been defined as terminological translation dictionary. Due to practical reasons it seems justified to say that every concrete realisation of the proposed model should encompass not the whole of law (whatever that would mean), but the lexicon of a branch of law, for instance only criminal law, or possibly a limited number of connected branches, e.g. criminal law and criminal procedure.

Translation dictionary is by definition a bi- or multilingual work. However, the specificity of law requires a less standard approach, since the translation, or rather the communication occurs between legal systems. Therefore, the dictionary ought not to be defined as bilingual, but as bijural. At this point it is worth reconsidering what branch of knowledge is actually the subject of the work. The translator is not supposed to merely know law, as there is no one law, but to know “laws”: legal systems in which the author and the final reader are immersed. What the translator does is compare the said systems, as only the confrontation of the legal reality referred to in the source text with the legal

MODEL

KNOWLEDGE USER

TD


reality the receiver of the translation functions in allows the translator to choose an optimal equivalent in accord with the chosen translation strategy. Therefore, it is the result of the said confrontation and comparison which should be reflected in the dictionary; not comparative law perhaps, but the relation of the two legal systems at issue.

This statement is crucial for the design of the dictionary order, since in the case of a terminological translation dictionary it should both be functional from the point of view of the translator and represent the knowledge of the given discipline. In our case, the knowledge should be represented in a way which could facilitate equivalent evaluation and choice, where the vital aspect is the degree of congruence of concepts in the two legal systems. In order to combine these two elements, the following order has been designed. Comparative study of the two legal systems included in the dictionary ought to be carried out and allow the terminographer to divide the concepts and the terms expressing them into three categories: 1) concepts having highly congruent equivalents in the target legal system, 2) concepts having partly congruent equivalents in the target system, and 3) concepts having no congruent equivalents in the target system. The comparative analysis should in particular include the place of the concept in the hierarchy, the scope of application and the legal effects. Vocabulary of each category ought to be placed in a separate module of the dictionary, wherein the entries should be ordered alphabetically. The dictionary may be provided with a diagram reflecting the relation of the modules. The figures below represent two examples of such diagrams, indicating two types of relations reflected in the dictionary:

Fig. 3: Diagram of the relations between the dictionary modules (the terms representing concepts

with partially congruent equivalents in the target legal system constitute the largest part of the lexicon).

MODULE 3 incongruence

MODULE 2 partial congruence

MODULE 1 congruence


Fig. 4: Diagram of the relations between the dictionary modules (the terms representing concepts

with highly congruent equivalents in the target legal system constitute the largest part of the lexicon).

This triple division is limited enough in order not to diminish the functionality of the dictionary, while at the same time it is productive, since it allows the translator to relevantly compare the legal systems. So as to enhance the ease of term search, the dictionary ought to be provided with an index of terms together with references to individual modules. Due to the specificity of legal translation, no a priori rules concerning the mediostructures of the dictionary have been formulated. Regardless of the degree of congruence between the legal systems and individual concepts, the translator always needs to compare the legal systems and may always choose either the source system oriented or the target system oriented strategy, wherefore the information set offered ought to comprise the same elements in all modules.

When it comes to the macrostructure of the dictionary, the work ought to be oriented towards the type of texts whose translation it is to facilitate. Therefore, the corpus should first of all include such texts, followed by the legislative texts in this field (both national and supranational), as well as commentaries and scientific and didactic texts. Chronologically, the corpus should above all comprise texts which are in accordance with the current regulation. Finally, the dictionary ought to include, apart from the modular part and the term index, a description of the metalanguage used, a bibliography, in particular the list of legal texts being the source of terms and explanations, as well as additional elements such as figures, tables and illustrations which may be useful to the translator.

The vocabulary particular to legal texts may be divided into three layers: 1) the vocabulary related to the object of regulation, 2) the vocabulary related to the method of regulation, as well as 3) the vocabulary being the consequence of the normative character of legal texts (Gizbert-Studnicki 2004: 44-45). This division could be stretched out onto all legal documents, that is not only statutes, but also contracts, regulations, deeds, wills etc. (Roszkowski 1999: 8). Legal commentaries and course books are in any case secondary texts based on the primary ones. The vocabulary related to the method of

MODULE 3 incongruence

MODULE 2 partial congruence

MODULE 1 congruence


regulation and the vocabulary being a consequence of the normative character of legal texts are constituted by strictly legal terminology, whereas the expressions related to the object of regulation gain the quality of legal terms through the said regulation. What follows, the translation of these expressions is subject to the same rules as the translation of typical legal terms. Therefore, the designed dictionary ought to include all three layers of legal vocabulary.

The organisation of the dictionary entry should as fully as possible reflect and answer the needs of the translator of legal texts. The process of term translation begins with the attempt to understand it, that is to determine the semantic scope of the concept represented by the term. In order to offer information allowing the translator to understand and interpret the source term, the entry must include a definition of the term. Since an extensional definition would be impossible to apply for practical reasons, a modified intensional definition could be used, that is one facilitating the comparison of the legal systems involved rather than analysis of the concept in isolation. Such a definition would offer the superordinate as well as the main features distinctive both in relation to coordinates and to corresponding concepts in the target legal system (if such exist). The definitions ought to be formulated on the basis of legislative texts, then judicial texts determining, specifying or modifying the binding interpretation of the concept, finally commentaries and scientific and didactic jurisprudential texts. The definition should be followed by an indication of the source of regulation of the concept, which will direct the translator in their further search, should this be necessary.

If synonyms of a given term exist, they ought to be indicated in the entry and provided with the information on whether they are exact synonyms or contextual synonyms, of broader or narrower meaning. In the situation when a concept regulated in the legislation can be expressed by more terms being exact synonyms (e.g. German Adoption and Annahme als Kind), only the term used in legislation needs to have a full entry.

The other synonyms should also appear in the dictionary as headwords, however not followed by full entries, but only by references to the term used in legislation, where they should be mentioned as synonyms and included in the list of collocations. Such a technique singles out the “legislated” terms from among the synonyms, thus indicating their superordinate place in the lexicon.

The following part of the entry concerns the equivalents. They ought to be divided into four categories:

1) equivalents denoting concepts in the target system which are highly congruent with the source concepts,

2) equivalents denoting concepts in the target system which are partly congruent with the source concepts,

3) source system oriented neologisms, and 4) target system oriented neologisms (e.g. bill of indictment and act of indictment are

equivalents of the first and the fourth type, respectively, of the Polish term akt oskarżenia; magistrates’ court and minor offences court are equivalents of the second and the third type, respectively, of the term sąd grodzki).

It must be noted that the third and the fourth type are understood as neologisms not in the linguistic, but in the legal sense. In other words, they are expressions in the target language which do not denote concepts in the target legal system. The equivalents of the


first and the second type ought to be followed by definitions and synonyms according to the same rules as the source terms.

The final part of the entry are the collocations of the source term and their translations into the target language. This solution answers the postulate formulated above, namely that a translation dictionary should be based on textual units.

The collocations ought to be ordered according to the grammatical category of the word(s) accompanying the term. If the entry contains a synonym which does not have a separate full entry, the synonym ought to be included in the list of collocations.

Depending on the relations of the languages included in the dictionary, suitable grammatical and phonetic information ought to be provided where relevant; this may be for instance pronunciation, grammatical gender, irregular forms etc. Individual elements of the entry need to be marked by a system of indicators, described in the foreword to the dictionary.

The below figure presents the proposed organisation of the entry:

term [grammatical information] definition (source of regulation) = exact synonym [grammatical information]; ≤ contextual synonym with a broader meaning [grammatical information]; ≥ contextual synonym with a narrower meaning [grammatical information]

≡ equivalent denoting a concept in the target system highly congruent with the source concept [grammatical information] definition (source of regulation) = exact synonym [grammatical information]; ≤ contextual synonym with a broader meaning [grammatical information]; ≥ contextual synonym with a narrower meaning [grammatical information]

≈ equivalent denoting a concept in the target system partly congruent with the source concept [grammatical information] definition (source of regulation) = exact synonym [grammatical information]; ≤ contextual synonym with a broader meaning [grammatical information]; ≥ contextual synonym with a narrower meaning [grammatical information]

n target system oriented neologism [grammatical information] n source system oriented neologism [grammatical information] ▪ collocation of the term translation of the collocation,

translation of the collocation; collocation of the term translation / translation of the collocation

Fig. 5: Organisation of the entry.

5. Conclusion The model presented above is supposed to be a framework, a blueprint for the construction of dictionaries, requiring adjustments to a given pair of languages and legal


systems. Creating a dictionary according to this model would require the cooperation of a team consisting of terminographers, terminologists, lawyers and scholars specialising in the given branch of law, possibly experts on both legal systems as well as researchers dealing with comparative law. Certainly this would not be an easy task, yet it may be worth the effort if such a dictionary might become a tool of great service to professional translators of legal texts, and render legal translation somewhat less impossible. References Cao, Deborah. 2007. Translating Law. Clevendon – Buffalo – Toronto: Multilingual

Matters Ltd. Chaffey, Patrick Nigel. 1997. “Language, Law and Reality”. In On the Practice of Legal

and Specialised Translation: Papers from the Third International Forum of Legal and Specialised Translation held in Cracow on 7th and 8th September, 1996, edited by Zofia Rybińska, 69-84. Warsaw: The Polish Society of Economic, Legal, and Court Translators TEPIS.

Gizbert-Studnicki, Tomasz. 2004. “Sytuacyjne uwarunkowanie językowych właściwości tekstów prawnych”. In Język – prawo – społeczeństw, edited by Ewa Malinowska, 37-48. Opole: Uniwersytet Opolski.

Groot, Gerard-René de. 1990. „Die relative Äquivalenz juristischer Begriffe und deren Folge für mehrsprachige juristische Wörterbücher“. In Translation and Meaning, Part 1. Proceedings of the Maastricht Session of the 1990 Maastricht-Łódz Duo Colloquium on “Translation and Meaning”, Held in Maastricht, The Netherlands, 4-6 January 1990 edited by Marcel Thelen and Barbara Lewandowska-Tomaszczyk, 122-128. Maastricht: Euroterm.

Kielar, Barbara Z. 1977. Language of the Law in the Aspect of Translation. Warszawa: Wydawnictwa Uniwersytetu Warszawskiego.

Kierzkowska, Danuta. 2008. Tłumaczenie prawnicze. (3rd edition). Warszawa: Wydawnictwo TEPIS.

Lukszyn, Jerzy, and Wanda Zmarzer. 2006. Teoretyczne podstawy terminologii. (2nd edition). Warszawa: Katedra Języków Specjalistycznych.

Pawelec, Monika. 2007. „Zrozumieć prawnika… Słownictwo fachowe z dziedziny prawa w dziełach leksykograficznych”. In Współczesny język prawny i prawniczy. Ogólnopolska Konferencja Naukowa 20 kwietnia 2007 r. edited by Adam Niewiadomski, Anna Mróz and Monika Pawelec, 23-32. Warszawa: Wydział Prawa i Administracji, Uniwersytet Warszawski.

Piotrowski, Tadeusz. 1994a. Problems in Bilingual Lexicography. Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego.

—. 1994b. Z zagadnień leksykografii. Warszawa: Wydawnictwo Naukowe PWN. Roszkowski, Stanisław. 1999. „The Language of the Law as Sublanguage”. In Aspects of

Legal Language and Legal Translation edited by Jerzy Tomaszczyk, 7-16. Łódź: Łódź University Press.

Šarčević, Susan. 1997. New Approach to Legal Translation. The Hague-London-Boston: Kluwer Law International.


Szemińska, Weronika. 2009. Model przekładowego słownika prawa. (M.A. thesis, University of Warsaw).

—. 2009. “Terminologiczny słownik przekładowy: w poszukiwaniu narzędzia doskonałego.” In Publikacja jubileuszowa I. Na drodze wiedzy specjalistycznej edited by Marek Łukasik, 112-122. Warszawa: Katedra Języków Specjalistycznych.

Urbanek, Dorota. 1993. Zasady translatorycznego opisu jednostek leksykalnych (na materiale języka rosyjskiego i polskiego). (Doctoral dissertation, University of Warsaw).


CURIOUS LEGAL CONDITIONALS LESZEK BEREZOWSKI [email protected] Wrocław University, Poland

Abstract The paper examines the use of the modal verb SHALL in the if clauses of conditionals found in legal English. The study traces the history of such usages and compares them to two uses of WILL attested in the same grammatical environment: a temporal use and a nonepistemic modal use. The comparison provides the foundation for examining the use of SHALL in Biblical translations, where this verb has outlived its demise in general English, and both of these sources inform the analysis of SHALL in legal conditionals. Specifically, it is claimed that SHALL is not inherently deontic in legal English but is used as an explicit marker of the authority vested in the author or authors of spoken and written texts. This approach explains why authority conscious drafters can use SHALL in the if clauses of conditionals and in temporal clauses whenever they want to and why the proponents of the plain language movement advocate simply deleting SHALL from legal writing and not replacing it with more popular modals expressing deontic meanings, e.g. HAVE TO, MUST, etc. It is claimed that no such replacements are recommended because there is no deontic meaning to replace and the authority designated by SHALL can be inferred from the context. Key words: legal English, modal verbs, SHALL, conditionals, temporal clauses

1. Introduction

The drafters of English legal documents are well known for their fond attachment to the modal verb SHALL. It has been noted in a number of studies that its use in legal texts is substantially more frequent than elsewhere in English (e.g. Williams 2007, Witczak–Plisiecka 2009, Goźdź–Roszkowski forthcoming) and resilient enough to withstand so far the zealous calls to weed it out repeatedly made by the supporters of simplifying legal writing (e.g. Kimble 2000).

Given the contrast between the survival of SHALL in drafting contracts and legislation (Goźdź–Roszkowski forthcoming) and its almost complete disappearance from other kinds of written and spoken texts during the previous century (Leech et al (2009), it is no wonder that it has attracted quite much research. Based on extensive corpora scholars have studied the development of SHALL as a modal verb and future marker, e.g.: van Ostade (1985), Arnovick (1990), Gotti et al (2002) or Wischer (2006), its current standing in English, e.g.: Gotti (2003), Bergs (2008) or Leech et al (2009), the rise of SHALL in legal English, e.g.: Rissanen (2000) and its present use in legal drafting, e.g.: Klinge (1995) or Trosborg (1995), Conte and Di Lucia (2009) or Witczak–Plisiecka (2009).

188 Leszek Berezowski

However, all these studies have mostly stayed away from examining in any detail the use of SHALL in if clauses and an assortment of temporal clauses occasionally found in legal documents. Both atypical patterns are illustrated below by two recent examples: an excerpt from the terms and conditions of ordering medical equipment posted online in 2010 by Genetix Ltd., an English company headquartered in New Milton, Hampshire (1) and a clause found in an order issued by North Dakota Securities Department in 2008 (2):

(1) 2.6 If the Company shall cease to manufacture any Goods ordered by the

Customer it shall give notice of the fact in writing to the Customer (but shall not be liable for any loss or damage occasioned thereby to the Customer) whereupon the Customer will have the option to be exercised within twenty-one days of the date of such notice, either to take equivalent goods (if available from the Company) or to cancel its order without further liability upon the Company or the Customer.

(2) Pursuant to N.D.C.C. § 10-04-16, when it shall appear to the Commissioner

that any person has engaged in, or is engaging in, or is about to engage in an act or practice which is declared illegal in this chapter, the commissioner may issue an order and collect civil penalties against any person found in an administrative action to have violated any provision of the chapter in an amount not to exceed $10,000 for each violation.

The usages underlined above are relatively infrequent even in legal drafting and could be easily dismissed as antiquities to be swept away by the plain language movement but the insights into the role of SHALL in legal English offered by the curious grammar of such cases certainly make them worth exploring. This paper will do so by surveying scant previous scholarship on such uses of SHALL in section 2, tracing their origin in section 3, examining their relationship to comparable uses of WILL in section 4, offering an explanation in section 5 and pursuing its wider ramifications in section 6. 2. Previous scholarship Recent corpus studies of SHALL in legal English dutifully note only the existence of the pattern illustrated in (1) but the authors do not venture too far beyond stating that fact. For example Trosborg (1995) quotes an example with SHALL in the if clause repeated here as (3) below:

(3) The licence to reside in the premises [...] shall terminate automatically without any

notice if the officer shall cease to reside in the premises or upon termination of this agreement.

and comments on it as follows:

Only the structure with shall in italics functions as a directive; the second shall (in the subordinate clause) is used as a condition on the illocution signalled in the main clause. (Trosborg 1995: 40)

Curious Legal Conditionals 189

In other words she merely notes the fairly obvious point that the use of SHALL in if clauses does not serve to impose obligation on the addressee and goes on to examine other facets of legal English. Doing so does not explain much but passing over the problem in silence turns out to be benevolently neutral when compared with the opinions other scholars.

Discussing an essentially similar example Klinge (1995) is more radical both in admitting defeat in dealing with the problem and dismissing its importance:

Although it may not be an entirely satisfactory solution, the explanation is most likely that such data are the results of draftsmen’s penchant for shall rather than semantics or systematic usage. In this context shall makes little sense both in this framework and in traditional frameworks. (Klinge 1995: 670)

In the final sentence of the comment Klinge admits that accounting for the use of SHALL in if clauses and a host of other subordinate clauses is well beyond the reach of extant approaches, whether they are built on the concept of deontic modality (e.g. Trosborg’s model) or broader theories of discourse operators (e.g. Klinge’s model). However, in the preceding sentence he tries to load the blame for the shortcomings of his model on the data he set out to explain by questioning their reliability and consistence.

The same dismissive attitude is voiced in Williams (2007), who likewise views the use of SHALL in if clauses as a harmless relic of the past that need not be bothered with or accounted for:

In such cases shall would seem to have no modal function whatsoever; it is purely ornamental, [...] a legacy from the past which many contemporary drafters still adopt on the basis of a centuries-old tradition rather than for reasons of clarity. (Williams 2007: 120)

The temporal pattern illustrated in (2) is not even mentioned in studies devoted to the use of SHALL in legal English, which sadly underscores the point that previous scholarship has thus focused much more on evading the patterns exemplified above than on positing even the most tentative explanations. As will be shown in section 6 below this sad state of affairs is a consequence of the assumptions underlying the studies of SHALL reported on above.

3. Historical background A brief look into the history of using SHALL in legal English if clauses is a more positive experience than reviewing the evasive comments surveyed above and exposes facts that eventually help uncover the rationale behind this curious grammatical pattern.

Both uses of SHALL illustrated above arose in early Middle English times as an alternative to if and temporal clauses formulated in the present tense and the subjunctive and they continued well into the eighteenth century. The last example noted in Visser (1963) comes from the writings of Coleridge, which means that the patterns finally disappeared from general English in the first half of the nineteenth century. However, in legal discourse the story is a bit different.


The earliest example of legal usage dates from 1533, i.e. from the time when the use of SHALL in legal writing started mushrooming (Rissanan 2000: 114), and is found in the Appointment of Bishops Act, a piece of legislation that was instrumental in establishing the Church of England and remains in force until now:

(4) And yf any such nomynacion or presentment shall happen to be made for

defaute of suche eleccion to the dignytie or office of any Archebishope then the Kynges Highnes his heires and successours, by hys letters patentes under hys greate seale, shall nomynate and present such person, as they wyll dispose to have the seid office and dignitie of Archebishopriche beyng voyde.

A century later the continuing use of the pattern is evidenced by An Ordinance for the better observation of the Lords – Day passed by the Long Parliament in 1644:

(5) And it is further Ordained, That if any of the said Officers shall neglect to do their Office in the Premises, within one week after the notice of this Ordinance, every of them, for such neglect shall forfeit Five Shillings of lawful Moneys; and so from week to week, weekly Five shillings more afterwards, till the said May-Pole shall be taken down, and removed.

The usage did not change much in the following century as shown by an excerpt from article 1 section 7 of the Constitution of the United States of America adopted in 1787:

(6) Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; [...] If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law.

The pattern remained also in use more than a century later as evidenced by the following passage in the regulations governing the Balfour Studentship in Zoology drafted in 1904 and kept on the books of Cambridge University until now:

(7) If the Managers shall at any time learn that the Student is following any such business or profession, or has undertaken any such work, as would in their opinion interfere with the Student's inquiries, they shall at once call upon him or her to desist from the same, and if the Student shall refuse or neglect so to do they shall report the circumstances to the Board.

Finally, the pattern continues to be used nowadays as has already been shown in section 1 above and is witnessed again below by a provision culled from the general conditions of contracting services with the company operating Liverpool John Lennon Airport posted online in 2010:

(8) if the Company shall have a winding up order or administration order made against it or it shall enter into or become subject to a scheme, composition or voluntary arrangement with his creditors or there shall be commenced a winding-up dissolution administrative receivership or analogous proceedings of or in respect of the Company or any of the Company's assets then, without


prejudice to any other remedy of the Group, it shall be lawful, without avoiding the Order, to take the work wholly or partially out of the hands of the Company and to employ another company to purchase the Goods or similar items or to carry out or complete the Services

While it is correct that the use of SHALL in legal English if clauses is quite an old pattern, as implied in the evasive comments in Klinge (1995) and Williams (2007), it is thus not true, as intimated by the same authors, that it is unsystematic and / or defunct. As shown above, it has continued in the same form for five centuries and has outlived the demise of the pattern in general English at least by a century and a half.

The fact that SHALL has not disappeared completely from if clauses and lingers on in legal usage is not in itself remarkable in any way as most language changes are incomplete and leave in their wake a residue of unaffected items or contexts that are then labeled exceptions and irregularities. What is striking, though, is that the change failed to affect the people who spend long years honing their language skills to perfection and enjoy high social status. Becoming a lawyer has always required completing several levels of formal education exposing students to grammar books and teachers whose combined pressure was usually quite effective as witnessed, for example, by the replacement of multiple negation with single negation in the language of educated speakers. Besides single negation lawyers have accepted the rise of perfect and progressive verb forms, the demise of the subjunctive in if clauses and several other grammar changes promoted by textbooks and the rejection of each of these developments could have become a hallmark of legal English. However, only the pressure to drop SHALL was stubbornly resisted on a large scale, which shows that the motivation to do so must have been much stronger than a mere penchant for grammatical relics. For instance lawyers may have continued to use SHALL in if and temporal clauses after its demise in general English because that verb designates a meaning that remains vital in law but has lost its significance elsewhere in society. 4. Comparison with WILL Another modal verb that is found in if and temporal clauses is WILL. Given the fact that the case of WILL has been researched more fruitfully and is now better understood, it might be worthwhile to check if the accounts worked out for that modal verb could be extended to SHALL.

One meaning found to be profiled by WILL in if clauses is essentially temporal, e.g.: (9) If it will amuse you, I’ll tell you a joke. The students of such atypical patterns, e.g. Comrie (1982), where this example comes from, or Declerck (1984) agree that the use of WILL illustrated in (9) is linked to the ordering of the events profiled by the two clauses of the conditional. The standard scenario is that the if clause designates and event which precedes the situation profiled by the result clause in the same fashion as causes precede their consequences. However, in cases like (9) this ordering is reversed in that the result clause profiles joke telling, i.e.


the event that normally comes first, and the if clause designates amusement, i.e. the state that results from entertainment and occurs later.

Instead of stipulating a condition the if clause in (9) designates thus a future prediction, which requires the use of WILL. In other words WILL is dispensed with in the standard case when the if clause profiles a condition but it is indispensable in the nonstandard scenario described and illustrated above.

Unfortunately, it is not possible to extrapolate this account to cases where the modal verb used in the if clause is SHALL, e.g. the following excerpt of an act adopted by New Jersey legislature in 2009:

(10) If the director shall, in accordance with subsection a of this section, reduce the rate of tax imposed pursuant to PL 1966, c.30 to a rate of less than 3.5% during a tax reduction period, the Director shall immediately notify the State Treasurer of the rate and the terms and conditions for which tax shall be imposed during that tax reduction period and shall immediately submit a report to the Legislature, pursuant to section 2 of P.L. 1991, c. 164 (C.52:14-19.1) outlining the rate and the terms and conditions for which tax shall be imposed during that tax reduction period.

The reduction of the tax rate profiled in the if clause underlined above is a true condition profiling an event that has to precede each of the actions designated in the result clauses, i.e. notifying the state treasurer and filing a report with the state legislature. The order of the events profiled in (10) does not then follow the pattern that conditions the use of WILL in the if clause in (9), which means that the rationale for using SHALL in the if clause in (10) has to be looked for elsewhere.

The second use of WILL in if clauses is, however, more promising. As is well known WILL can designate in such clauses a variety of nonepistemic meanings illustrated below with examples quoted after Decleck and Reed (2001: 210–212):

(11) If your mother will cooperate, you might ask her these kinds of questions.

(12) Let’s check in the brochure. If the boat will sleep eight people, none of us will have to go to a hotel.

(13) If Freedom Fighters will not give in – Quo Vadis, John Major ?

In (11) the use of WILL designates willingness on the part of the mother, i.e. a person who is not the addressee or, as lawyers prefer to say, a third party, in (12) WILL profiles an inherent capacity of the referent and in (13), along with the negation marker, it signifies refusal.

Since most or all uses of SHALL are described by grammarians as nonepistemic, the occurrence of that verb in if clauses could then in principle be analyzed along the same lines as above provided that it carries a suitable meaning.


5. Power and authority A good place to look for such a meaning seems to be an area of language use where SHALL has shown the same tenacity as in law and for decades defied changes prevailing elsewhere in English. A case in point is the language of Bible translations.

The strength of the resistance to give up on SHALL in that field of language use is aptly illustrated by the three following English versions of a well known gospel verse (St. Matthew 16: 26):

(14) For what is a man profited, if he shall gain the whole world, and lose his own soul? or what shall a man give in exchange for his soul? KJ 1611

(15) For what shall a man be profited, if he shall gain the whole world, and forfeit his

life? or what shall a man give in exchange for his life? ASV 1901 (16) What good will it be for a man if he gains the whole world, yet forfeits his soul?

Or what can a man give in exchange for his soul? NIV 1973 The translation in (14) comes from the King James Bible first printed in 1611, i.e. at a time when the use of SHALL in the if clause of a conditional was not in any way unusual (Visser 1963). However, the translation in (15) comes from the American Standard Version issued in 1901, well after SHALL had disappeared from if clauses in virtually all varieties of English except legal drafting. What is perhaps even more telling is the fact the American Standard Version is in fact a revision of the King James Bible and one of the goals of the editors was to update its grammar. They modernized verb morphology, brought up to date the use of relative pronouns and introduced a number of other changes, but decided to leave SHALL in if clauses intact.

As shown in (16), which comes from the New International Version released in 1973, this usage was finally discontinued, but it held out long enough to show that SHALL is the carrier of a meaning that is both precious to Bible scholars and hard to replace.

A good way to glimpse that meaning is to examine a biblical passage in which the use of SHALL continues until now, e.g. the wording of the Ten Commandments in the Book of Exodus 20:13–15. SHALL had already been used in the translation of that text well before the times of the King James Bible, e.g. the following excerpt from Wycliffe’s Bible completed in the final two decades of the fourteenth century (Ellingworth 2007):

(17) 12 Onoure thi fadir and thi moder, that thou be long lyuyng on the lond, which thi Lord God schal yyue to thee. 13 Thou schalt not sle. 14Thou schalt do no letcherie. 15 Thou schalt do no theft.

The usage obviously continued in the King James Bible:

(18) 12Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee. 13Thou shalt not kill. 14Thou shalt not commit adultery. 15Thou shalt not steal.


And was retained in the New International Version of 1973:

(19) 12 “Honor your father and your mother so that you may live long in the land which the Lord your God is giving you. 13 “You shall not murder”. 14 “You shall not commit adultery”. 15 “You shall not steal”.

The fact that the use of SHALL has survived so well in this passage is significant in that it is a most explicit example of law giving by a supreme authority equipped with the power to lay down biding rules and punish those who fail to follow them. God can certainly do both and given the correlation between His superior position with respect to creation and the use of SHALL in the translation of those scriptural passages where His dominion is directly exercised in formulating the commandments, SHALL may be claimed to be a grammatical marker of the supreme status of the speaker.

As shown in all three versions of verse 12 above, commandments might just as well be formulated in the imperative and without any recourse to SHALL, leaving the dominating position of the speaker to be inferred from the context. The use of SHALL in the meaning stipulated above is thus optional. However, if the writer chooses to indicate explicitly that the rules are warranted by a superior authority, SHALL becomes indispensable as in the three remaining verses.

Since authority may be exercised not only orally (cf. the use of inverted commas in (19) to underscore the directness of the experience) but also in writing, e.g. by signing legal or financial instruments, and superiority is manifest not only in laying down the rules or enacting laws but also in enforcing them by persons and institutions duly empowered to do so, the meaning identified above to be carried by SHALL can be restated in somewhat more general terms. Specifically it is claimed that SHALL is construed as a marker of authority vested in the author or authors of spoken and written texts.

Given this perspective on SHALL accounting for its usage in if clauses is not a problem any more, e.g. the following provision of the by-laws of the International Rugby Board, the organization governing the sport of rugby union:

(20) If the Chairman shall cease in office then the Vice – Chairman elected pursuant to Bye – Law 9.7(a) shall assume the position of Chairman pro – tem and the Council shall elect a new Chairman and Vice Chairman at its next meeting.

The underlined clause specifies the case when the vice-chairman steps into the shoes of the chairman and the use of SHALL merely explicates that the council that drafted and adopted this provision was duly authorized to do so.

The provision obviously might just as well have been formulated without resorting to SHALL and, for example, worded as follows:

(20´) If the Chairman ceases in office then the Vice – Chairman elected pursuant to Bye – Law 9.7(a) shall assume the position of Chairman pro – tem and the Council shall elect a new Chairman and Vice Chairman at its next meeting.

The change would not have in any way affected the validity of the provision or the manner of its application. However, the fact that it was promulgated by an institution


empowered to lay down rules and enforce them would then have to be inferred from a variety of contextual cues, e.g. the title of the document, its preamble, previous clauses, etc., while the use of SHALL in (20) makes that point explicit.

The same is the case with the use of SHALL in temporal clauses attested in legal English but left out of its descriptions surveyed in section 2 above, e.g. the following clause from the terms and conditions of sale posted online in 2010 by Company Select (UK) Limited, based in Telford, Shropshire :

(21) No order once placed may be cancelled by the Customer who will accept delivery of the goods or supply of the services from Company Select (UK) Limited when the Company shall so require.

Formulating the underlined clause without any recourse to SHALL again would not have caused any damage to the effectiveness of the provision, but only using that verb explicitly indicates that the company is authorized to stipulate such conditions and enforce them. 6. Wider ramifications The account developed in the preceding sections sheds light a number of further issues discussed below. The most immediate one is identifying the reason why previous accounts of SHALL use in legal English have shied away from discussing its occurrence in temporal and conditional clauses.

The problem seems to have been rooted in assuming that SHALL has a principally deontic meaning (Witczak-Plisiecka 2009) and using it in a text is tantamount to imposing an obligation on the addresses (Trosborg 1995) or warranting that the text is a true representation of reality to the extent the situation is under the control of an intentional agent (Klinge 1995). However, as has been shown above, this approach is too narrow. Building on such an assumption makes it possible to account for SHALL uses in most main clauses, but rules out doing so in conditional and temporal clauses where no guarantees are offered or obligations imposed.

Secondly, the approach pursued above offers a straightforward explanation of the reason why the practitioners of simplifying legal English usually do not replace SHALL with other modal verbs but prefer to remove it and rephrase all affected clauses in the simple present (Williams 2007). If SHALL really profiled the imposition of an obligation, replacing it with MUST, HAVE TO, etc. would certainly make much more sense. However, as shown above, SHALL in fact designates that the author of a text is vested with sufficient authority to formulate it, which does not come anywhere close to the meaning of any other English modal verb but fortunately can be easily deduced from the context.

The efforts to eradicate SHALL from legal writing are thus ultimately based on the unspoken assumption that it is irreplaceable but removable, and, paradoxically, provide support for an account of its use.

Finally, the account of SHALL worked out above to explain its uses in conditional and temporal clauses can be extended to all types of clauses and legal documents. In


instruments enacted by legislatures, assented to by monarchs, signed into law by presidents, approved by general meetings and issued by courts or administrative agencies the superiority of their real or imputed authors over the addressees is unquestionable. Citizens, subjects, company employees and parties to disputes are bound by the decisions written down in statutes, resolutions, charters, by – laws, judgments, orders, warrants, etc., which makes any such documents susceptible to the use of SHALL for reasons matching its description in section 5.

In the case of deeds and contracts the situation is somewhat more egalitarian in that the parties to such instruments agree to create obligations for one another and promise to fulfill them (Black et al. 1983). Each party is thus both bound to perform the duties it owes to the counterparties and is empowered to exercise the rights the counterparties agreed to vest in it. Since all parties to a contract serve in both roles they are ultimately equal but that condition stems from the fact that they are each other’s superiors. Consequently, the provisions of deeds and contracts also are susceptible to the use of SHALL for reasons that match its description in section 5.

Analyzing SHALL in terms of a marker of the authority vested in the author of a text corroborates thus the thetic account outlined in Conte and Di Lucia (2009) and makes it possible to account both for legal English usages which can be satisfactorily explicated in other frameworks and for those cases where other explanations fail, e.g. conditional and temporal clauses. As shown in the preceding sections, this account is also applicable to other fields of language use in which SHALL has outlived the pressure to phase it out, e.g. Bible translation, and is analogous to a well known and documented use of WILL. And last but not least, it explains why legal documents or religious texts may be fraught with SHALL, merely peppered with it here and there or devoid of it altogether without any impact on their validity as the meaning explicitly designated by that verb can be easily inferred from contextual clues.

References Arnovick, Leslie K. 1990. The Development of Future Constructions in English. The

Pragmatics of Modal and temporal Will and Shall in Middle English. Bern: Peter Lang.

Bergs, Alexander. 2008. Shall and shan’t in contemporary English – a case of functional condensation. In: Trousdale, G. and Gisborne, N. (eds.) Constructional Approaches to English Grammar, pp. 113-144. Berlin: Mouton de Gruyter.

Black, H. 1983. Black’s Law Dictionary. St. Paul: West Publishing Company. Comrie, B. 1982. Future time reference in conditional protasis. Australian Journal of

Linguistics 2: 143-152. Conte, Amadeo G. and Paolo Di Lucia. 2009. Pragmatic ambiguity: the thetic function

of modality. Lodz Papers in Pragmatics 5: 191-199. DOI: 10.2478/v10016-009-0009-7

Declerck, Renaat. 1984. ‘Pure future’ will in if clauses. Lingua 63: 279-312. DOI:10.1016/0024-3841(84)90036-6

Declerck, Renaat and S. Reed. 2001. Conditionals. A Comprehensive Empirical Analysis. Berlin: Mouton de Gruyter.


Ellingworth, Paul. 2007. Translation techniques in modern Bible translation. In: Noss, P (ed.) A History of Bible Translation pp 307-334. Rome: American Bible Society.

Gotti, Maurizio, M. Dossena, R. Dury, R.Facchinetti and M. Lima. 2002. Variation in Central Modals. A Repertoire of Forms and Types of Usage in Middle English and Early Modern English. Bern: Peter Lang.

Gotti, Maurizio. 2003. Shall and will in contemporary English: a comparison with past uses. In: R.Facchinetti, M.Krug and F. Palmer (eds.) Modality in contemporary English pp. 267-300. Berlin: Mouton de Gruyter.

Kimble, Joseph. 2000. The Great Myth that Plain Language is not Precise. The Scribes Journal of Legal Writing 1998-2000: 109-119.

Klinge, Alex. 1995. On the linguistic interpretation of contractual modalities. Journal of Pragmatics 23: 649-675.

Leech, G., M.Hundt, Ch. Mair and N. Smith. 2009. Change in Contemporary English. Cambridge: Cambridge University Press.

Rissanen, M. 2000. Standardization and the language of early statutes. In: L. Wright. The Development of Standard English 1300 – 1800, pp. 117-130. Cambridge: Cambridge University Press

Trosborg, Anna. 1995. Statutes and contracts: an analysis of legal speech acts in the English language of the law. Journal of Pragmatics 23: 31-53. DOI:10.1016/0378-2166(94)00034-C

Visser, F. Th. 1963. An Historical Syntax of the English Language. Leiden: E.J. Brill. Williams, Christopher. 2007. Tradition and Change in Legal English. Bern: Peter Lang. Witczak–Plisiecka, Iwona. 2009. A note on the linguistic (in)determinancy in the legal

context. Lodz Papers in Pragmatics 5: 201-226. DOI: 10.2478/v10016-009-0013-y

Special Issue on Legal Terminology: Approaches and Applications

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