The Language Of The Law By David Mellinkoff __FULL__
One reason for this animosity is the reputation lawyers have earned for obfuscation, for using "dead and deadly words" and "swarming imprecision" (Mellinkoff, 1992: vii, viii). The language of the law tends to violate many of the precepts of style and syntax that grammar teachers try to instill in their students. When language experts not familiar with the legal register are confronted with passages of text written by legislators or attorneys, they itch to get out the red pen. "This is not English (or Spanish, or Russian, or Chinese)!" they cry, and they are incredulous when told this is an excerpt from their own constitution or penal code.
The Language Of The Law By David Mellinkoff
Experts in comparative law and legal translation contend that the language of the law "results from legal traditions, thought, and culture" (Smith, 1995: 190), and that in translating legal texts, "one is translating not only the words on the page but the underlying legal system as well" (Beyer and Conradsen, 1995: 146). Nonetheless, there are still some shared elements in the "lawyer-speak" of countries with quite different legal traditions. A look at these registers in English and Spanish, one a reflection of common law and the other of the civil law tradition, illustrates this point.
And so on. Clearly, Mellinkoff, himself a lawyer, is exasperated with the hypocrisy of his profession's claims to linguistic precision, logic, and clarity. He is not alone in noticing this phenomenon; he is merely one of the most articulate of its critics. Another expert in the language of the law, Enrique Alcaraz Varó, has studied legal English from the perspective of a Spanish-speaker who must translate such language. In El inglés jurídico (Alcaraz Varó, 1996), he notes that legal English
Alcaraz Varó identifies many of the features of English legal language that Mellinkoff discussed, plus a few more: empirical verbs in place of speculative verbs (find instead of believe, submit instead of think, etc.), euphemisms (custodial interrogation), "mutilated" and abbreviated terms (writ of a fi fa), and the frequent use of suffixes -er and -ee (Alcaraz Varó, 1996: 76-78). He notes that there is an ongoing debate between the supporters of the Plain English movement, who contend that legal language must be made more accessible to the lay public, and traditionalists who believe too many guarantees would be sacrificed if the language of the law were to be brought in line with common usage (Alcaraz Varó, 1996: 73).
In Los conceptos jurídicos y su terminología, Argentine scholar Rafael Bielsa (1961) attempts to describe, explain, and even defend legal language. After tracing the origins of legal Spanish back to the official language of the Romans, he declares:
While remaining ostensibly neutral in their treatment of legal language, Duarte and Martinez are implicitly critical of legal professionals when they identify characteristics of the legal writing style and recommend ways to avoid common pitfalls:
Bielsa, in contrast, defends the use of erudite language by legal scholars, contending that legal writing has "literary value," and literary style is the highest form of expression in a language (Bielsa, 1993: 5-6). Contrary to Mellinkoff's complaints about musty legal language that has no relationship to modern usage, Bielsa asserts that using terms in the sense closest to their original Latin meaning, rather than in more recently evolved senses, is preferable in the legal context because centuries of consistent usage have made their meaning precise and predictable (Bielsa, 1993: 10).
As noted above, legal translators (and interpreters) are expected to convey the meaning not just of words but of the legal system that dictates the writer's choice of those words. This is no easy task. One definition of a good translation is one that has the same impact on the target-language audience as the original text has on the source-language audience, what Nida and Taber (1974) call "dynamic equivalence." Thus, the translator/interpreter must ask the same question that Duarte and Martinez (1995) ask: Who is the intended audience? A related question is, What is the purpose of the text? In fact, Matt Hammond notes that
Hammond also emphasizes that "the intended use of a target text more often than not differs from the use of the original" (Hammond, 1995: 240). Consequently, when a translator is given a text to translate, he or she must find out who is going to be reading the translation and for what purpose it is to be used. Is the translation for informational purposes only, or will it be legally binding on the target-language receptor? Is it going to be submitted as evidence in a court of law, or is the translation merely a formality to comply with legal requirements?
In legal interpreting, such questions are also extremely relevant, but the legal doctrine is contradictory on this point. In the United States, as in many countries, the court interpreter is expected to ensure the constitutional right of a non-English-speaking defendant to be "present" at his or her trial by simultaneously interpreting all proceedings into "a language the defendant understands" (California Evidence Code, Chapter 4, Section 751), and to eliminate the language barrier for non-English-speaking witnesses so that their testimony is rendered "verbatim" into English for the record; on the other hand, the interpreter is not to add, omit, clarify or explain anything (Mikkelson, 1996: 2). "It is, therefore, the interpreter's task to mediate between these two extremes: the verbatim requirement of the legal record and the need to convey a meaningful message in the [target language]" (Gonzalez, et al., 1991: 17). As Morris (1995) points out, it is doubtful whether both of these criteria can be met:
Thus, translators are caught between the universal objective of fidelity to the original and the specific objective of tailoring a translated legal document to the needs of the target-language user; while interpreters must strike a balance between the legal tradition of a "verbatim" record and the requirement that they convey meaning accurately. How can they resolve this dichotomy? To put the question in a different light, we must consider that translators and interpreters operate in the real world, not in the ivory tower where legal scholars dwell. They must contend with the imperfect writing and speaking of ordinary human beings, and with audiences not always well-versed in their own native languages. Thus, the translator/interpreter is often faced with a dilemma: Is the text unintelligible to the layman but not to the expert, or is it simply unintelligible? Of course, a faithful translation of a meaningless original should be equally meaningless in the target language, though it is excruciatingly painful for a competent translator to deliberately create a nonsensical text.
Complicating matters further is the Plain English movement, which as Duarte and Martinez (1995: 50) note, began in the United States in the 1940s and has since spread to all English-speaking nations. It represents an effort to render legal language more accessible to the general public. Alcaraz Varó (1996: 72-73) points out, however, that the movement has not won universal acceptance, and traditionalists still prevail in many circles. Again, translators and interpreters, who are expected to keep abreast of current usage, must choose between competing schools of thought. If a translator renders a contract in good old-fashioned legalese, replete with phrases such as "the party of the first part," "hereinafter known as," and "hereunto set their hand and seal," is he making the translation sound like an authentic legal document in English, or helping to perpetuate a stilted, frozen style that is impenetrable to the average reader? If an interpreter preserves the bombast and redundancy of the judge's admonition, "It is the order of the court that you are hereby enjoined from harassing, molesting, annoying, or in any way disturbing the peace and tranquility of the domicile of the complainant," has she really conveyed a meaningful message to the defendant in the targe language? In a sense, the rigid rules governing court interpreters make their job a little easier than that of legal translators, as the decision is taken out of their hands:
Translators, who must be much more careful about adhering to "proper" style and grammar in the target language, have a more difficult decision to make. It takes years of experience working with legal documents, reading legal texts in both source and target languages, and becoming familiar with the mentality of legal professionals and the lay public to develop a sense of current, proper legal style; and even then, translators often feel obliged to rely on common sense and instinct in deciding how much to manipulate the style of a text.
Students must be introduced to some basic tools before they embark on a translation, including an annotated bibliography of monolingual and bilingual references, a tour of a law library, information on software and other tools for legal research, and background reading assignments. Reading assignments may also be taken from textbooks and articles on legal translation and the language of the law, such as those cited in this article. Guest speakers with specialized knowledge of the law can provide a valuable complement to course materials.
Questions to be asked in class before analyzing students' completed translations include: What is the purpose of this document? Why might someone want it translated? How does the target-language audience differ from the source-language audience? What resources did you find most helpful for this assignment? What steps did you follow from the moment you were given the text to the production of the finished translation? What were the main problems you had with this translation? Is the translation as readable as the original?
A long-term research assignment is an effective way to familiarize students with resources for legal research. Topics might include international environmental law, extradition, comparative civil procedure, comparative family law, judicial reform or investment law in a given country, legal language, and so on. Emphasis should be placed on the research itself more than the writing of the paper; accordingly, the bibliography should be a significant part of the work. 350c69d7ab