Syntactical Structure Of The Language Of Law

1. Introduction

Legal language. Once an almost magical language of words of stipulation and oaths that should have impressed its subjects and submit them in awe to its absolute obedience. Now, it may be said that the awe has disappeared, but the magic of the language of the law somehow persists, mainly due to its so called vices – unintelligibility or wordiness. Everyday situations and relationships are governed by law whether people like it or not. Legal positivism argues that all our actions are covered by law (i.e. legislation, legal principles derived from judicial decisions in Common Law, or contracts) based on the principle that what is not prohibited by the law is permitted (see for example Weinberger 1995). Making pirouettes on the roof of my house every day at five o’clock in the morning would be considered ‘legal’ because there is no law prohibiting such an activity. But let me present a less absurd example. Even by getting on the bus, though not in writing, individuals conclude a contract with the transportation agency. In every tram or bus a list of business terms can be found – an official-looking piece of paper divided in articles, sections or paragraphs, full of rights and obligations of the transporter as well as the customer. The society is inter-bound by an enormous number of agreements, arrangements and contracts, stating or implying rights and duties of its parties. To give them the mark of formality, to regulate them and to enforce them, there is the Law with its provisions. As the main functions of the law are the performative and normative (Cao 2007, 13-15), it is necessary for law to be able to communicate its norms to their addresses. This happens through language. In everyday situations, the Law and the language of its norms, regulations and law’s priests – lawyers – are still somewhere near.

Internationalisation of society has brought closer contacts among foreign countries in various aspects. Legal relationships are one of them. The European Union as well as the states themselves produce a large amount of legislation with which the companies and individuals have to deal. Still, an important part of legal relationships is carried out by means of ‘private’ regulations set by bi- or multi-lateral contracts by the individuals themselves (within a given legal context). Therefore, translating these contracts becomes a big issue and the main activity of numerous translation agencies.

Nowadays, English is the Latin of today. It is the main language of international trade and commerce. It is not only the language of contracts when one of their parties comes from an English-speaking environment but even when no native English-speaking party is involved. Although in certain cases English serves as the ‘neutral’ language of legal agreements, the general understanding of English is not at such a level that they would not need to be translated to people’s mother tongues. Apart from that, legal English and ordinary English are not identical languages (Gubby 2007, 9) and the mastery of ordinary English does not mean a mastery of legal English.

This thesis deals with the characteristics of legal Czech and legal English within their legal environments and problems of translation between them. The first part (Chapters 2, 3 and 4) introduces the legal language in general and analyzes the specifics of legal Czech and legal English. Chapter 5 deals with the translation of legal texts and sources of difficulties in legal translation. The second part of this thesis focuses on contracts – a sub-genre of legal texts. Chapter 6 defines the place of contracts among other legal texts and deals with the stylistic specifics of contracts in general. Chapter 7 introduces and analyzes the experiment. The experiment is based on an analysis of translations of contracts by translation agencies who advertise their competence in legal translation. It seeks to find out what the general quality of their translation is and what the main problematic points are: whether it is the understanding of the text in general, finding suitable translational solution of the concepts or the style or understandability of the TL text.

I expect the translation agencies to have problems with finding accurate translation solutions for some of the system-bound concepts, but I expect the translations to be accurate regarding the translation of the actual rights and obligations. Concrete hypotheses follow in Chapter 7.

2. Legal Language

Legal language is not a language of everyday use by a population (unless, with a degree of understatement we want to call lawyers a population of a kind). It is a specialized language of legal norms and related discourse. Its distinctiveness may be seen in a number of characteristics that differentiate it from the language of ordinary use. But, there is no universal language of law that would be comprehensible to all languages.

Law is a system that is bound to a particular state or organization. Language of law, its words, syntactic structure and concepts are closely related to the legal system in question. The relationship between the language and the law is mutual: the legal system influences the nature of the legal language and the legal language – the language of the legal discourse – influences the system. The speech of lawyers is conditioned not by the law alone, but also by the prevailing language of their environment (Mellinkoff 1963, 4). Language of law is a system- and culture-bound language for special purposes. This does not mean that the language of law is completely detached from the ordinary language. Most of its words are taken from the ordinary language. On the other hand, legal language influences everyday speech and many of its originally technical terms are now accepted as common. Mellinkoff (1963, 9) gives the examples of plaintiff or defendant in English; the same holds for the Czech smlouva – (contract) or zástava(pawn).

In making generalizations about the language of law for the purpose of this thesis, the characteristics will be drawn from those of legal Czech and legal English. The legal systems in which these technical languages originated belong to different legal system families: English law (i.e. the law of England) is a part of the common law family whereas the Czech law is a member of the civil law family.

2.1 The Nature of Legal Language

Cao (2007, 13-20) classifies legal language with respect to the nature of its use that can be described as normative, performative and technical.

Normative

The Language of law is used to impose rights and obligations; it is largely prescriptive. Law’s basic function is to regulate human behaviour and human relations. Law exists as a set of prescriptions having the form of imperatives defining and enforcing the arrangements, relationships, procedures and patterns of behaviour that are to be followed in a society (Cao 2007, 12, quoting Jenkins 1980, 98). Legal language serves to communicate the legal norms to their addressees.

Performative

The speech act theory developed by J. L. Austin and J. R. Searle makes language responsible for effects in reality. Speech is not only words but also actions. By uttering certain words, we the facts may be changed. Legal effects and legal consequences are commonly obtained by merely uttering certain words (Cao 2007, 14), for example in a court’s judgement or in front of a clerk or a priest during the marriage ceremony.

Technical

The question of technicality of legal language is not perceived consistently. One position argues that there is no legal language as such and it is a part of the ordinary language. The other holds that legal language is a technical language. If the latter view is accepted, what makes the language of law different from other types of language use? 

The chief differences may be discussed in relation to the following aspects:

1. speakers
2. stylistic differences
1. specific vocabulary – terminology issues
2. syntactic structures

2.2 Speakers

The language of law is a language of legal norms and related discourse. The language of legal norms is that of legislation, judicial decisions or contracts. It is said that it is the language created and used specifically by lawyers. Although the lawyers form the core of the language-of-law-speaking community, legislation, for example, is influenced by people with no legal educational background, yet who adopt the legal terminology and expressions to a certain extent. Drawing on the situation in the civil law system, the circle of the legal language users may be described as follows:

– The legislators (the drafters who actually write the laws; members of the parliament, whose knowledge of all the terminology and concepts is not complete and sufficient but who try to sound as if it was), i.e. all those who create the laws in the written form and who have real influence on definitions of legal terms

– The judiciary (judges and people who influence the written judgements – assistants to the judges or court clerks – vyÅ¡Å¡í soudní úÅ™edníci)

– The lawyers (when negotiating, giving speeches in court, drafting documents etc.; and when talking to one another)

The circle of the law language speakers in common law systems is generally the same. The major difference is that the origins of certain terms and the evolution of the language are somewhat different due to the different sources of law (the main body of legal rules is to be found in judicial decisions not in legislation).

The type of speaker influences the particular style of the legal language: there is a difference between the language of an Act of Parliament (or zákon) and the language used by lawyers when talking to one another about legal matters.

Nevertheless, at times the language the lawyers use does not seem to resemble the language of legislation at all. Lawyers seem to have developed some linguistic quirks that have little communicative function, and serve mainly to mark them as members of the legal fraternity (Tiersma 1999, 51). 

2.3 Style

Language of law is said to be purposive and pragmatic (Knapp 1995, 122). Its style is therefore governed by these characters.

There have been numerous attempts on defining ‘style’. One of them was made by Vilém Mathesius. He defines style as “individual, unifying character found to be present in any work resulting from intentional activity” (Vachek 1974, 114). Legal style refers to the linguistic aspects of the written legal language and also to the way in which legal problems are approached, managed and solved (Cao 2007, 22, quoting Smith 1995, 190). The style of the language of law is one of the functional styles. It is said to be marked and sometimes described as being a sub-style and the most typical specimen of the officialese style, the style of official documents (Vachek 1974, 187). On the other hand, in the last decades there have been authors who believed the style of the language of law to be a separate functional style alongside other functional styles, the officialese, or administrative, being one of them. The style of the language of law can be described mainly with regard to its syntactical structure and specific vocabulary.

2.3.1 Syntactical Structure of the Language of Law

Vachek (1974, 188) describes the sentences in English legal texts to be long and complex, yet clearly built up, using various typographical devices of distributing phrases, division of the text into parallel paragraphs and capitalizing certain crucial points of the document. When describing the typical features of legal English, Tiersma (1999, 51-71) gives the following list of typical features which overlap with Vachek’s description at some points: lengthy and complex sentences, unusual sentence structure, wordiness and redundancy, conjoined phrases, frequent use of negation and impersonal constructions. Cao (2007, 22) gives two general characteristics of the legal language: impersonal constructions and extensive use of declarative sentences pronouncing rights and obligations. Mellinkoff (1963, 285) argues that the language of law should not be different from the ordinary language without reason. For such differences, the following rationales are usually given: legal language is more precise, shorter, more intelligible and more durable. Of these arguments, precision seems to be the leading feature of the language of law that should give reason to all the other features which are sometimes said to be its vices.

These syntactical features are further discussed in relation to legal English and legal Czech respectively.

2.3.2 Lexis

The most important difference that sets off legal language from ordinary language is its lexicon. Legal language makes use of numerous words and terms that are not common in ordinary language or carry an additional meaning different from their ordinary meaning. Legal language utilizes vocabulary from standard language both in their ordinary meanings (the majority of legal language vocabulary) and specialized meanings. This second class of words may create confusion because in legal texts they may appear in both their meanings – ordinary and specialized. Knapp (1978, 17-20) distinguishes the following groups of words:

1. legal terms
2. words with specific legal meaning and specific meaning in another specialized language
3. words with both specific legal meaning and ordinary meaning
4. words having specific legal meaning, specific meaning in another specialized language as well as ordinary meaning
5. words with neutral meaning

In his later writing, Knapp (1995, 122) describes legal lexis as follows:

1. words with ordinary meaning
2. words with both specific legal meaning and ordinary meaning
3. specific legal vocabulary
4. legal language does not use some of the words with ordinary meaning (e.g. beauty, darkness)

To complete the enumeration of characteristics of legal language, Mellinkoff (1963, 11) gives the following characteristics of legal English terms: frequent use of common words with uncommon meanings; legal archaisms (words from Old and Middle English, Old French and Anglo-Norman); terms of art; argot; formal words; use of expressions with flexible meanings.

3. Legal English

Because of the nature of law, the language of law has developed particular linguistic features – lexical, syntactic and pragmatic – to meet the demands of law and to accommodate the idiosyncrasies of law and its applications (Cao 2007, 20). Legal English style and lexicon originate in various languages: Anglo-Saxon, Latin and/or French. Legal language was originally oral; any writings served only as a report of the oral ceremony (Tiersma 1999, 36). It took quite a long time to accept the written texts as authoritative. Formbooks were written and their main effect was conservation of legal language, its terminology and phraseology. Although the ritualistic and the magical has disappeared from law, it has not disappeared from the language of law.

The main vices of legal English are said to be its wordiness and excessive use of archaic words and constructions. In the last 50 years legal English underwent significant changes, mainly due to the Plain English Movement, but certain specifics persist.

3.1 Style

Legal style results from cultural and legal traditions. Its chief characteristics are impersonality, extensive use of declarative sentences, negative and passive constructions. Mellinkoff (1963, 24) says the language of law has a strong tendency towards certain mannerisms such as being wordy, unclear, pompous and dull. Legal texts tend to use number of words instead of one (e.g. annul and set aside instead of annul;or totally null and void instead of void). Sometimes, they seem to contain a great part of text that seems to be devoid of meaning (as Mellinkoff puts it) such as using metaphors. Pomposity in the language of law may take many shapes especially by using words evoking respect (e.g. solemn, supreme, wisely). Pomposity and wordiness, together with long complex sentences and a lack of clarity of expression contribute to the dullness of the legal language.

It has been already mentioned that the nature of legal language is among others performative. As Cao (2007, 21) writes, legal utterances perform acts, creating facts, rights and/or institutions: they are speech acts. Their performative nature may be marked by special words such as hereby and various performative verbs such as declare, undertake, promise etc.

3.1.2 Syntax

Legal language is highly formal and impersonal. This is achieved by passive constructions, complex and long sentences, multiple negations and prepositional phrases (e.g. in what follows, by virtue of which). Legal English is full of archaisms and this tendency may be seen in the syntax as well. The old-fashioned syntax still makes the legal text dense, though mainly thanks to the Plain English Movement there can no longer be found grammatical archaisms like the old ‘-th’ endings (Alcaraz and Hughes 2002, 7) in legal texts. Slightly archaic tone is achieved by the use of certain prepositional phrases such as pursuant to (very often used in contracts) or subject to. A certain degree of sexism can also be found: e.g. judges calling judges of the same rank brethren.

Although it is typical of legal language to consist of unusually long sentences, there is a specific area of it that is rather plain and surprisingly comprehensible. The first group is the syntax of statutes, contracts or pleadings; the second group is that of judicial summaries of particular facts of cases. Complexity of legal English documents may be seen in their layout, multiple subordination and postponement of the main verb until very late in the sentence (Alcaraz and Hughes 2002, 19). In legal texts such as statutes, contracts or handbooks containing procedural rules, many possible situations, factual scenarios and exceptions must be provided for (Alcaraz and Hughes 2002, 20) therefore the sentences are often conditional and contain hypothetical formulations. The illegibility of legal texts derives from the fact that originally legal texts were written from the far left side to the other side of the page to avoid the possibility of adding anything to the text. From this fact the custom of avoiding punctuation is also derived: full stops, commas and semicolons may alter the meaning of the sentence. As Mellinkoff writes (1963, 367), lawyers are still reluctant to end a sentence, even though the old reasons for skimping punctuation are gone.

3.1.3 Lexis

To deal with legal lexis it may be useful to systematize it. Alcaraz and Hughes (2002, 16-18) classify it as follows:

1. Functional items – grammatical words and phrases that have no direct referents either in reality or conceptual;

2. Symbolic (or representational) items – all the terms that refer to things or ideas in the world of reality. This group can be further divided into: purely technical terms, semi-technical terms and shared, common or “unmarked” vocabulary

a) Purely technical terms: terms found exclusively in the legal sphere that have no application outside. They can be one-word terms (barrister) or whole phrases (bring an action). Some of the theorists argue that these terms are so closely related to the legal system that they cannot be translated, but only adapted. Therefore, a number of terms is often left untranslated (e.g. estoppel, trust) (Alcaraz and Hughes 2002, 17).

b) Semi-technical or mixed terms: words or phrases that have acquired additional meaning in addition to their common meanings (issue, consideration). Their number is constantly growing to meet the developing needs of the society.

c) Everyday vocabulary found in legal texts (paragraph, subject-matter).

Legal English lexis – especially the purely technical terms and semi-technical terms – comes from various origins. Because legal English is a product of its history, various influences can be traced in contemporary legal language. The eldest part of the legal lexis is Anglo-Saxon such as bequeath, manslaughter, oath or writ.[2] Besides vocabulary, a typical Anglo-Saxon feature – alliteration – is to be found in legal English. Its usage is closely linked to the original magical nature of law but it can be still (and often) found in legal texts and seems to have acquired some kind of terminological value: rest, residue and remainder, to have and to hold, hold harmless etc. There are also Middle English words that nowadays survive only in legal language: aforesaid, thence, there- and here- words etc. (Mellinkoff 1963, 13).

Despite the native origins of some of the most characteristic legal terms, legal English draws on numerous Latin or Latinized terms. There are dozens of phrases that still have their place in everyday legal discourse and because of their Roman Law origin they are often common to the Civil Law system as well (lex fori, bona fide, res iudicata, restitutio in integrum). Some of these phrases have their calque version that may be used alongside the Latin one (bona fide or good faith, mors civilis or civil death).

Although numerous words of Latin, Anglo-Saxon or Viking origin may be found in legal English, it may be argued that the main influence for the development of legal language is to be attributed to Norman and later to French. French used to be once the language of the royal courts. Despite several attempts to return to legal English (for example the 1362 Statute of Pleading which although itself written in French forbade using French in lawsuits), French remained in use until 1731, when it was together with Latin banned from being used in legal proceedings. A vast amount of the most basic legal vocabulary is of French origin (appeal, complaint, evidence, judge, tort or verdict, and real law French words such as estoppel or alien in the sense of transfer). French influence may be also seen in some legal phrases following the French way of putting an adjective after the noun (attorney general, fee simple) or in creating neologisms by adding an -ee ending (lessee, condemnee) to a verb.

From what has been just said might follow that legal English is not “English” at all, especially when considering that the word law itself is derived from the Norse word for “lay” and means “that which is laid down”.

Although legal language seems to be very old-fashioned at first sight, lawyers can be quite creative when it suits their purposes (as Tiersma writes[5]) and can create neologisms such as palimony, zoning or hedonic damages.

A special feature of legal English of Anglo-Saxon origin is the conjoined phrases or multinominal expressions. Some of them are alliterated as for example the rest, residue and remainder, some of them are not, such as last will and testament. These phrasesconsist of synonyms or near-synonyms. It has been argued that one of the justifications of such language behaviour is the never-ending quest for absolute precision. But as Mellinkoff says, this may not be the case: the phrase last will and testament is not as precise as plain will and when one of these words is used, the other is superfluous (Mellinkoff 1963, 331-332). Perhaps a more sound justification for the wordiness of legal English is derived from its adversarial nature. Tiersma says that

“…virtually any legal document is liable, at some point in its existence, to be picked apart by an opponent eager to exploit a loophole or ambiguity in hopes of wiggling out of an agreement or contesting a will.

The question arising when dealing with these conjoined phrases is whether they really present a redundant overflow of words or whether they constitute a special kind of term. But an answer to this question would be outside the scope of this thesis.

4. Legal Czech

Legal language is a specialized language of legal texts (TomáÅ¡ek 2003, 25). It is the main means of communication within law as a legal system. Communication between the legislator and the addressees of legal norms is carried out solely by language. It is mostly a natural language (the exceptions being for example road signs) and a standard language. Knapp (1988, 95) argues that there are non-standard languages of law as well, such as the spoken language of judges, or legal slangs, such as the law students’ speak). Legal Czech can be distinguished from the ordinary Czech especially with respect to its style. Knapp (1995, 120) distinguishes between three varieties of legal Czech:

1. Language of laws (language of legislation)
2. Language of courts (decision making)
3. Language of lawyers (language of legal representation)

It is typical of legal Czech that it originates from the language of legal norms – the language of legislation. Legal norms regulate social relationships: they state what should be done (prescriptive function) as well as what is (descriptive function). The language of judicial decisions and the language of lawyers are basically derived from the language of legal texts.

4.1 Style

Knapp (1988, 96) argues that there may not be a unified legal style because there are recognizable stylistic differences between the language of legal texts, lawyers’ speak or the language of theoretical legal texts. Basic stylistic requirements of legal texts may be listed as follows:

1. precision
2. definiteness
3. brevity
4. comprehensibility/understandability
5. stability 
6. inexpressiveness
7. purposiveness

Some of the points of this list of basic requirements quoted by TomáÅ¡ek (2003, 28) are developed later.

a) Precision and Definiteness

Precision seems to be the most important legal language requirement, not only with respect to legal Czech but other legal languages as well. To ensure legal certainty and the principle of equality in law, law must state all the rights and obligations of its subjects exactly and without doubt. This does not mean that all the legal expressions must be absolutely exact and precise: legal Czech is full of vague words, words with flexible meanings. This vagueness may not be a flaw in precise legal language. Expressions such as míra pÅ™iměřená pomÄ›rům (degree adequate to the circumstances), značná Å¡koda (substantial loss), vÄ›k blízký vÄ›ku mladistvým (an age close to the age of minors/juveniles), may be interpreted according to particular circumstances of the case. Relatively frequent use of these expressions in Czech legal texts may be explained by the nature of continental-system legal norms. Czech legal norms (and continental legal norms in general) tend to be more general, often using vague expressions to leave their interpretation on courts. Common-law-system norms tend to be more casuistic and such vagueness of expression would be perceived as inadequate.   

Unless used in legal theory and scientific legal writings, use of synonyms is forbidden. Although we may find such synonyms in the bulk of legal expressions, legislation usually chooses only one of them and keeps using it to avoid any misinterpretation. Here are some examples of such synonyms in legal Czech: zletilost – plnoletost (legal age – majority; only zletilost is a truly legal expression), způsobilost k právním úkonům – svéprávnost (legal capacity; only the first expression is known to the legal texts)[7].

Contrary to the use of synonyms, the use of polysemes and homonyms is not that easily avoided. When such use is inevitable, the meaning of such expressions must be interpreted by context: nález (finding) may refer to nález Ústavního soudu (Constitutional Court’s ruling) or to nález vÄ›ci opuÅ¡tÄ›né (finding of a derelict), započtení (inclusion) may refer to způsob zániku závazku (a way of termination of an obligation), kompenzace (compensation) etc.

b) Stability

To regulate social relationships and to ensure legal certainty, legal terminology and style should be relatively stable. This does not mean that the meaning of the terms does not change from time to time. Stability means that one and the same term used in a legal text should denote one and the same thing (Knapp 1995, 125). It is typical of legal Czech to “normalize” certain words and phrases, to set firmly their meanings and way of usage (see for example Knapp 1978, 47-48).

c) Comprehensibility/Understandability

This requirement is closely connected to that of purposiveness and precision. Legal text should communicate its content clearly and without doubt to its addressees. The ideal of understandability is to make the addressee of the legal norm understand it in the same way as its creator (Knapp 1995, 126). In another work Knapp (1988, 99) argues that even people with no legal education are able to understand the text of a legal norm. The language of law is sometimes demonized but to understand the language of law in reality is not very difficult. The demand for popularization of legal language would suggest that people read legal texts on a daily basis: but this is not so. Whether we like it or not, law seems to be a complex system that has developed its terminology and to understand the law and its language needs a specialized education in the same way as medicine does. To simplify the language of law – yes; to vulgarize it – no. What people may not understand when reading a law or a contract should be issues connected to law, not to language.

4.1.1 Lexis

Legal Czech makes use of all classes of words except interjections. Words of various language origins are included: traditionally Latin, less often French and recently English. Legal Czech makes use of various Latin phrases which are even taught at law schools and are used relatively frequently in legal texts and in lawyers’ talk. These include phrases such as inter vivos (among the living), mortis causa (in case of death) or even whole sentences describing legal principles such as Ignorantia iuris neminem excusat (The ignorance of law does not excuse). With the growth of European Union legislation and numerous international contracts, English terms slowly find their way into legal Czech. Typically, these are words for which there is no Czech equivalent (due to the systemic differences, Chapter 5) and to avo