LEGAL ENGLISH AND TRANSLATION:

THEORY & PRACTICE

ANNOTATED TEXTS AND DOCUMENTS

José Luis Sánchez Febrero

DICIEMBRE 2003

Fecha publicación: diciembre de 2003 Título: Legal English & Translation: Theory & practice. Annotated texts and documents Autor: © José Luis Sánchez Febrero. I.S.B.N.: 84-8454-310-2 Depósito legal: A-1107-2003 Edita: Editorial Club Universitario Telf.: 96 567 38 45 C/. Cottolengo, 25 - San Vicente (Alicante) www.ecu.fm Printed in Spain Imprime: Imprenta Gamma Telf.: 965 67 19 87 C/. Cottolengo, 25 - San Vicente (Alicante) www.gamma.fm gamma@gamma.fm

Reservados todos los derechos. Ni la totalidad ni parte de este libro puede reproducirse o transmitirse por ningún procedimiento electrónico o mecánico, incluyendo fotocopia, grabación magnética o cualquier almacenamiento de información o sistema de reproducción, sin permiso previo y por escrito de los titulares del Copyright.

CONTENTS

FOREWORD .........................................................................................................................7

THEORY ..............................................................................................................................9

1. INTRODUCTION..............................................................................................................9 1.1. Theories, methods and data in the paradigm of pragmatics.........................................9 1.2. Justification of the use of pragmatic research into Legal English..............................10 1.3. The state of the art: pragmatic research into Legal language.....................................11 1.4. Legal discourse and its mechanisms..........................................................................12

1.4.1. Legal discourse as discourse of power ...............................................................12 1.4.2. Compliance of legal language with the law in force...........................................17

2. DISTINCTIVE FEATURES OF LEGAL ENGLISH......................................................19 2.1. The morphosyntactical level......................................................................................19

2.1.1. Repetition of lexical items..................................................................................20 2.1.2. Syntactical constructions derivative of a simple logical structure ......................20 2.1.3. Abuse of nominalisations and passive constructions ..........................................21 2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................21 2.1.5. Infringement of the ordo rectus ..........................................................................22 2.1.6. Use of the conjunction "that" with a special meaning ........................................22 2.1.7. Use of the suffixes -er and -ee ............................................................................22 2.1.8. Frequent gerundive constructions.......................................................................23 2.1.9. Legal adjectives..................................................................................................23 2.1.10. Restrictive use of finite verbal forms................................................................23 2.1.11. Use of such as determiner, unaccompanied by the indefinite article ................24 2.1.12. Long, complex and equivocal sentences...........................................................24

2.2. The semantical level ..................................................................................................25 2.2.1. The legal vocabulary ..........................................................................................26

2.2.1.1. Adverbs, prepositions and conjunctions ......................................................26 2.2.1.2. Archaisms....................................................................................................27 2.2.1.3. French terms ................................................................................................28 2.2.1.4. Latin terms...................................................................................................28 2.2.1.5. Endings pertaining to Medieval English......................................................29 2.2.1.6. Realization of features in an authentic legal document................................30

2.1.1. Repetition of lexical items..................................................................................31 2.1.2. Syntactical constructions derivative of a simple logical structure ......................31 2.1.3. Abuse of nominalisations and passive constructions ..........................................31 2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................32 2.1.5. Infringement of the ordo rectus ..........................................................................32 2.1.7. Use of the suffixes -er/or (-rix, feminine) and -ee ..............................................32 2.1.8. Frequent gerundive constructions.......................................................................32 2.1.9. Legal adjectives..................................................................................................32 2.1.10. Restrictive use of finite verbal forms................................................................33 2.1.11. Use of such as determiner, unaccompanied by the indefinite article. Said as nominal premodifier .....................................................................................................33 2.1.12. Long, complex or equivocal sentences .............................................................33

2.2. The semantical level ..................................................................................................34 2.2.1. The legal vocabulary ..........................................................................................34

2.2.1.1. Adverbs, prepositions and conjunctions ......................................................34 2.2.1.2. Archaisms....................................................................................................34 2.2.1.3. Expressive redundancies coordinated with the use of French terms............34 2.2.1.7. Juridical concepts ........................................................................................35

2.2.2. The laxity of legal language ...............................................................................36 2.2.3. The ambiguity of legal language ........................................................................44 2.2.4. The ideological component of legal language ....................................................44

2.2.4.1. Ideology markers .........................................................................................45

PRACTICE .........................................................................................................................47

3. PRELIMINARY ISSUES ................................................................................................47 3.1. Translation as a communicative process ...................................................................48 3.2. Register. ....................................................................................................................48

3.2.1. Speech acts .........................................................................................................50 3.2.2. Discourse meaning .............................................................................................53 3.2.3. The textual register.............................................................................................53

3.2.3.1. Tenor ...........................................................................................................54 3.2.3.2. Mode ...........................................................................................................56 3.2.3.3. Domain (or field).........................................................................................57

3.3. Cohesion of legal language in a Law Report .............................................................59 3.3.1. Textuality ...........................................................................................................59 3.3.2. Intentionality and acceptability...........................................................................60 3.3.3. Informativity.......................................................................................................61 3.3.4. Information structure ..........................................................................................61 3.3.5. Textual relevance ...............................................................................................62 3.3.6. Intertextuality .....................................................................................................62 3.3.7. Cohesion and coherence .....................................................................................62 3.3.8. Theme/rheme arrangements................................................................................65 3.3.9. PRACTICAL ANALYSIS OF A SHORT LEGAL ENGLISH TEXT. .............66

4. TEXTS AND DOCUMENTS:.........................................................................................75 I. PROBATE LAW ..........................................................................................................81 II. CIVIL LAW ................................................................................................................79 III. CRIMINAL LAW ......................................................................................................89 IV. INTERNATIONAL LAW .........................................................................................97 V. EEC LAW .................................................................................................................109 VI. PARLIAMENTARY LAW......................................................................................115 VII. CONTRACT LAW.................................................................................................119 VIII. HOUSING LAW ...................................................................................................123 IX. CORPORATE LAW................................................................................................139 X FINANCIAL LAW.....................................................................................................145 XI. BANKING LAW .....................................................................................................151 XII. FAMILY LAW .......................................................................................................153

BIBLIOGRAPHICAL REFERENCES..............................................................................157

7

FOREWORD This study sets out to analyse the distinctive features of specialist languages, legal English in particular and aspires to being a modest contribution to the school of linguistic thought that a few years ago adopted language in use, i.e. pragmatics, as the object of its concern. It is hoped that the analysis will provide us with the linguistic key to unravel the neverending source of meaning that all texts involve. English legal institutions have long been studied by philologists, but not Legal English itself. It is the recent trend in specialist languages which makes it come to the fore. Legal language is a unity to be understood as the social image of the jargon or language of the élite of professionalised power; it is the language of authority. This work is divided into four distinct parts. In the first one legal English will be subjected to a sociological analysis so that the conclusions we draw can be inserted into the social sciences. In the second, the different distintive features of Legal English will be discussed. In the third, theoretical background will be discussed to tackle translation. In the fourth, a wide variety of text and documents, most of them preceded by a user-friendly introduction, is given, together with a large number of annotated footnotes, where translations are given for the most difficult terms.

9

THEORY 1. INTRODUCTION If we consider Morris' (1938) theoretical triangle, we can see that the three branches that comprise linguistics appear to be summarised at each of its vertices: syntaxis, semantics and pragmatics. syntaxis Semantics pragmatics For the purpose we have in mind we opt for the definition that considers pragmatics to be the study of the relationship between the linguistic sign and its users, that is to say, the study of how speakers use language to communicate, activating their common background and shared knowledge in a particular situation. It is precisely at this last vertex that several new linguistic trends have placed themselves: text analysis, discourse analysis, etc. These new trends tackle the analysis of suprasentence contextualised units such as paragraphs. Therefore the discourse/text, the length of which may range from a single word to an essay, seems to be the new maximum unit. Discourse and Text are partial synonyms, although for Van Dijk (1985:3) Text is a theoretical construct that manifests itself in the Discourse (language in use). Between them there exists the same relationship as between Sentence and Utterance. For argumentative purposes it is taken for granted that an utterance is the pairing of a sentence and a context. Pragmatics is concerned with utterance meaning, not sentence meaning (that is semantics). In other words, pragmatics deals with meaning in context and may be the study of aspects of meaning not covered in semantics. 1.1. Theories, methods and data in the paradigm of pragmatics Linguists analysing discourse (language used in communication to make an effect on the addressee) and text from a pragmatic perspective are interested in the formulation of theories and models that help to better understand language use and, in particular, the parameters and dimensions of discourse and text.

1. Introduction

10

Consequently, pragmatics, as the new trend in linguistic analysis, is called upon to play a part when language has been put into use and is addressed to a third party. We call this discourse. Pragmatics studies language from a functional point of view, i.e. tries to explain features of the linguistic structure by making reference to non-linguistic causes. Van Dyck (1981:6) defines it as the "new interdisciplinary field made up of linguistics, poetics, psychology and the social sciences, devoted to systematic theory and the analysis of discourses and of its several contexts". This is precisely our favourite definition because it comprises the social sciences. Unless we take as a starting point the premise that discourse expresses society we will not be able to go on to analyse legal discourse either linguistically or pragmatically. In other words, by applying linguistics to legal discourse, the latter ingrains itself in the context of the discourse of the social sciences and the theoretical framework that this involves. Legal texts are therefore considered communicative processes. According to Van Dyck (1985:2), discourse analysis has definitely diverted linguistics to the realm of social sciences. 1.2. Justification of the use of pragmatic research into Legal English If we take legal language to be the sign and society to be the user of that sign, we will be looking at the pragmatic side of linguistics. In pragmatics the discovery of regular patterns in the linguistic features has been deprived of all the attention that it commanded in previous paradigms. Neither deviation from the norm nor formal analysis of the level features of the language are interesting anymore. Linguists doing research into pragmatics are no longer attracted by the psycho-socio-contextual side of discourse. Language and the text in which discourse is embodied have ceased to be seen as a neutral medium, with only one meaning to be unravelled. Pragmatics, on the other hand, considers discourse as a rendering of society's ideas and the language used as not neutral because it shapes ideas. In every language an ideology is latent, an ideology that carries presuppositions and that has to be exposed. Since the basis of discourse is the ambiguous natural language, the ideological load of certain words makes it necessary for the utterance to be explained from a sociological point of view. The words we use are already imbued -both in their singularity and in their combination- with multiple meanings or ideological nuances. At the same time, since this material of linguistic practice is ideologically saturated, the instance of discourse, the utterance, is also to be explained sociologically.

LEGAL ENGLISH AND TRANSLATION

11

In this respect, Fowler (1979:26) points out that rules are instructions to direct behaviours. Legal language sets out to monitor the behaviour of the addressees whilst hiding this intention. It is therefore a clear case of the interests of the addressor and the addressees not being the same. In a more general sense, the text as a product open to observation and analysis by the specialist is a discourse that has undergone a social process and the linguist's task is to investigate the sociolinguistic functions of authentic texts. This line of reasoning will be developed later when we discuss legal language as discourse of power. There we will try to expose how abusing nominalizations and passives achieves precisely that. The role that linguistics is called upon to play in Law studies is justified if we consider it technology (technique making use of scientific knowledge). It is therefore fundamental to pave the way for other knowledge to enrich it. Atienza (1985:295) mentions linguistic methods as one of the perspectives of Law studies. Pragmatics has potential application to all fields with a stake in how utterances are understood. Fields like those involved in solving problems in communication (e.g. Applied Linguistics). However, its applicability is much more ample because the possibility arises of systematic contrastive pragmatics that isolate potential areas of misunderstanding arising from the learner's assumption that a construction in the language being learnt (e.g. legal English) will have the same implicatures and presuppositions as some analogous construction in the native language. The third part of this work will use this as a starting point. 1.3. The state of the art: pragmatic research into Legal language To the best of our knowledge, very little research has been done in this field in Spain. Only Alcaraz has shed some light on the subject with his Diccionario de Términos Jurídicos (1993), El Inglés Jurídico. Textos y Documentos (1994), El Inglés Jurídico Norteamericano (2002) and El Español Jurídico (2002). Abroad things are very much the same. According to Goodrich (1984:173) the only efforts so far made to describe the grammatical patterns of legal English have merely managed to corroborate that it is a technical language and a self-contained one at that. Despite this appalling state, certain research is being done into the variety of legal English used in trials by jury. Stygall (1994) and Walter (1988) have contributed to this new trend.

1. Introduction

12

1.4. Legal discourse and its mechanisms We have stated above that the legal language is a discourse of power, according to Goodrich (1987:133). Now we will try to expose the way legal discourse "works" in its attempt to manipulate people. In this respect we will consider two features of legal discourse, namely, its being a discourse of power and its compliance with the law in force. 1.4.1. Legal discourse as discourse of power One of the greatest paradoxes of the current legal culture is that "Ignorance of the law is no defence" and the legal language is structured in such a way that laymen find it incomprehensible. In other words, the legal language enshrouds the law, hiding it from the public it exists to serve. Whoever composes a legal document must take the greatest pains to ensure that it says exactly what he wants it to say and at the same time gives no opportunities for misinterpretation. In this regard we can distinguish between the language used in documents (such as wills, contracts, etc) and others (such as acts, etc). When a document is under scrutiny in a court of law, attention will only be paid to what it appears actually to declare: any intentions of the composer which fail to emerge clearly are not usually considered in arriving at what the document means. We say "not usually considered" because, as we shall see later, "interpreting" (not "construing") the text may involve arriving at a meaning other than the one intended. Natural language being such a breeding ground for ambiguity, to communicate just one set of meanings while excluding many others is often impossible. Legal language has many oddities that are clear evidence of the kinds of efforts that have been made. Of all uses of language it is perhaps the least communicative, in that it is designed not so much to enlighten language-users at large as to allow one expert to register information for scrutiny by another. It is no wonder that they have no need to bother too much about the simpler needs of the general public. Lawyers have been doing basically the same things (drawing up wills, etc) since time immemorial and for each transaction there has developed a linguistic formula which is known to do the job adequately, having been subjected to long and thorough testing before the courts.

LEGAL ENGLISH AND TRANSLATION

13

As regards the second kind of legal documents (i.e. acts) the contrary seems to be the case. The concern for unambiguity has but disappeared and this could even be thought of as being done on purpose. Several interpretations could then be made of the text and, why not, a steady supply of work for lawyers is thus ensured. Consider the following section taken from the old Spanish Civil Code: Art. 811. El ascendiente que heredase de su descendiente bienes que éste

hubiese adquirido por título lucrativo de otro ascendiente, o de un hermano, se halla obligado a reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que estén dentro del tercer grado y pertenezcan a la línea de donde los bienes proceden.

Some lawyers have said that up to twenty-seven different interpretations are possible. This could well be an extreme case of ambiguity. As far as interpretation is concerned, judges have two criteria at their disposal: interpretation and construction. "Interpreting" is done in the light of a theory, a belief, the moral rules of modern societies, the judicial precedent, etc. "Construing" (from the verb "to construe") tries to explain the textual meaning that a word, clause or sentence has in an utterance or in a document, after a linguistic analysis. It is a fact that both English and Spanish share linguistic features. This can enable us to make a comparative study between the sources of ambiguity in English and Spanish. Ambiguity in legal Spanish arises from the grammatical construction of the sentences, in particular, from word order and the way words are connected in the structure of the sentence. This kind of ambiguity is found in the following: a) adjectival clauses b) sentences containing demonstrative, relative and possessive adjectives c) conditional clauses Iturralde (1989:40) gives the following examples: a) "Los letrados y las letradas de la última oposición podrán jurar su cargo dentro de

un mes" "de la última oposición" can be a noun complement only of "las letradas" or of "los letradas y las letradas". b) "El Secretario del Juzgado citará a los encausados por orden alfabético y les

asignará un día para que comparezcan. Esto, por ley, debe hacerse con la mayor celeridad posible"

1. Introduction

14

"Esto" is ambiguous because, as an anaphora, does it relate to the whole sentence or only to the fixing of a date for their appearance"? c) The translation into Spanish of section 64 of the Danish Constitution 1920 reads: "En el ejercicio de sus funciones los jueces están

limitados por el derecho. Los jueces no serán separados de sus cargos sino mediante juicio, ni serán trasladados en contra de su voluntad, excepto en aquellos casos en que tenga lugar una reorganización de los tribunales".

The phrasing of the sentence does not make it explicit whether the exception to the reorganization of the courts is only applicable to the rule that judges cannot be transferred to other posts against their will or also to the rule that they cannot be removed from office without a trial. As far as the language used in the writing of statutes and laws is concerned, the ambiguity arises from the following three: a) modifiers b) dual meaning of the conjunctions "or" and "and" c) punctuation a') modifiers Let us consider section 315 of the Communications Act: If any holder of a license authorizes anybody who is a legally qualified

candidate for a public office to make use of a radio station, he will afford same opportunity to all those other candidates for said office to make use of such radio station. On condition that said holder of license shall not have any power of censorship over what is broadcast as provided in this section.

This section is ambiguous, to say the least. Does the condition that the holder of a license does not have any power of censorship only overrule the permission he can give to all the other candidates for that office in the use of such radio station or does it also refer to anybody who is a legally qualified candidate running for office? Due to the fact that English and Spanish share some features this ambiguity also arises in the translation into Spanish: Si cualquier poseedor de licencia autoriza a cualquier que sea un candidato

legalmente cualificado a un cargo público a hacer uso de una emisora de radio, ofrecerá igual oportunidad a todos los demás candidatos a aquel cargo en el uso de dicha emisora de radio, con la condición de que dicho

LEGAL ENGLISH AND TRANSLATION

15

poseedor de licencia no tenga ningún poder de censura sobre cuanto es transmitido, según las disposiciones de este artículo.

b') Dual meaning of the conjunctions "or" and "and" The Iranian Oil Nationalization Act 1951 included, according to the British, arbitration clauses that infringed several license agreements concluded before 1919 between Great Britain, the Oil Company and Iran. The British urged the International Court of Justice to step in and enforce these agreements. Iran, on the other hand, questioned the jurisdiction of the Court as arbitrator. It is precisely the final part of one of those clauses which the disagreement was all about: Iran recognizes as compulsory ipso facto and without special agreement in

relation to any other acceptance of the same obligation, the jurisdiction of the Permanent Court of International Justice in any disputes arising after the ratification of the present declaration with regard to situations or facts relating directly or indirectly to the application of treaties or conventions accepted by Iran and subsequent to the ratification of this declaration.

The controversy arose over the antecedent of the terms "subsequent to the ratification of this declaration". For the British these words were linked to "situations or facts relating directly or indirectly to the application of treaties or conventions accepted by Iran", thereby making the jurisdiction of the court on agreements prior to 1932 a matter of course. The Iranians, on the other hand, held that the clause applied only to "treaties or conventions" and, consequently, the compulsory jurisdiction of the Court did not apply to obligations agreed upon before 1932. c') Ambiguity caused by punctuation signs is closely linked to that caused by the dual

meaning of the conjunctions "or" and "and". Most of the problems that using punctuation signs gives rise to can be put down to the use of complex clauses separated by commas at the end of which we find "or" or "and". As a rule of thumb, we can say that the commas separating clauses amount to "and" if the last terms of the list is preceded by "and", and they amount to "or" if preceded by "or". Let us analyse section 7 of the Official Secrets Acts 1920. It was at the heart of controversy when it was applied to the case Federal Steam Navigation Co., Ltd v Department of Trade and Industry (R. v Oakes). The conjunction "or" was substituted in the interpretation of the Court by "and". The section reads: Any person who attempts to commit any offence under the Official Secrets

Acts 1911, or this Act, or solicits or incites or endeavours to persuade another, or aids or abets and does any act preparatory to the commission of an offence under the Official Secrets Acts 1911 or this Act shall be guilty ...

1. Introduction

16

The counsel for the defence submitted a "no case to answer" plea, arguing that his client had not committed an offence because he was not accused of "soliciting or inciting or endeavouring..., or aiding or abetting and doing any act preparatory to the commission of an offence". His plea was dismissed, and the conjunction "and", despite the fact that it was after a series of alternatives joined by repeatedly using "or", was interpreted as disjunctive. What the Court did is an example of the two rules of interpretation that judges have at their disposal ("construction" and "interpretation"). The Court found the grammatically literal interpretation inconsistent and went on to "interpret" (not "construe") what the lawmaker presumably intended to say when drafting the law. This discussion forces us to raise a controversial issue because the general public feels that the law is only understood by lawyers and that engaging a good lawyer amounts to being able to accomodate the law to suit your own personal interests. The whole business would collapse if laws were rigidly drafted so that only one interpretation could be made. David Pannick (1985:186) says: This language ... serves various purposes, none of them in the public

interest. It unites lawyers, distinguishing them from laymen. It makes the law mysterious and incomprehensible to those laymen, thus ensuring a steady supply of work for lawyers who are needed to interpret the language they have invented.

This quotation points to three of the harshest criticisms ever made against the legal world: a) the feeling of it being a hermetic world b) the incomprehensibility of the law (and of which legal language is a vehicle) c) the corroboration that these features are intentional and aimed at lawyers' ensuring

work for themselves Using symbols that divert conflicts to formal spaces is very effective when it comes to repressing the individual. By treating legal problems as problems of syntax or of a lexico-grammatical kind, the law manages to keep the individual in his place. After something has happened, the law, when giving an account of it, reduces the events to logical terms. Consequently, legal language, what the law uses to express itself, is the means by which what has happened is reduced to formulaic statements and dehumanized. In this respect, Goodrich (1987:167) remarks that reducing conflicts or sociological relationships to mere facts of legal relevance is a feature of legal argumentation: The peculiar feature of legal discourse (its specificity) is resident in its

ability to "transform" and "translate" (correct and verify) ordinary language and ordinary meaning into the closed code of the legally relevant and legally

LEGAL ENGLISH AND TRANSLATION

17

valid. Fowler (1979:40) thinks that the structure of legal English shows an abuse of nominalizations and passives so that orders and prohibitions are subtly transmitted. The very fact that it is an order or a prohibition is hidden this way. Nominalizations are transformations that reduce a phrase to its nucleus, the verb, and this verb is turned into a noun. It permits ommitting a reference to the persons responsible for the processes described by the verbs. Something very much like the passive voice, which permits ommission of the agent. Goodrich (1990:180) puts it this way: The legal vocabulary is closely tied to a syntax of generalisation; of non-

agentive passives, nominalisations (frequently postmodified or relexicalised) and thematisations, whose overall tendency is that of establishing distance and impersonality. The syntax of generalisation deletes the context and specific identity of the agents of the processes described and judged.

We could even say that the asepsy of legal language has a divine origin. Just as religious discourse is founded upon the precept that "God made Man and the Word in his own image", legal discourse has tended to presuppose that the law makes the individual according to the model of sovereign discourse. By "sovereign discourse" we understand "the reasonable man", a hypothetical person used in law to convey that the legitimacy of a conduct must be judged according to the patterns of behaviour accepted by society. This "reasonable man" is also colloquially known as the "man on the Clapham omnibus". 1.4.2. Compliance of legal language with the law in force The peculiar feature of legal discourse is that it 'transforms' or 'translates' ordinary language and ordinary meanings into the closed code of the legal system. Crystal (1969:214) points this out: ...This points to another characteristic of legal language that sets it apart

from most varieties: it is a form of language that must always behave in conformity with the body of rules -the law- of which it is the vehicle. Certain things must be said in certain ways for fear of seeming to misrepresent the law, and before they may be said differently the law itself must often consent.

19

2. DISTINCTIVE FEATURES OF LEGAL ENGLISH The analysis of the distinctive features that add up to the characterisation of the discursive meaning of legal English can be made by dividing it into the morphosyntactical and the semantical levels. 2.1. The morphosyntactical level To learn the law is in large measure to learn a highly technical and frequently archaic vocabulary, a professional argot which makes frequent lexical use of specialised legal meanings, medieval English and French, as well a pervasive use of Latin terms and phrases. Much legal writing is by no means spontaneous but is copied directly from 'form books', in which established formulae are collected. It is a form of language which is about as far removed as possible from informal spontaneous conversation. It is essentially visual language, meant to be scrutinised in silence. Anyone who tries to produce a spoken version is likely to have to go through a process of repeated and careful scanning in order to sort out the grammatical relationships which give the necessary clues to adequate phrasing. In early legal documents their contents were usually set down as a solid block of script whose long lines extended from margin to margin across the parchment on which they were written, and there were no patterns for spacing or indentation to indicate either the sections of which a document was made up or the relationship between them. Various reasons have been suggested for this, including economy in the use of parchment and an intention to defeat fraudulent deletions and additions. The sentences which went to make up a document were usually long. When legal documents came to be printed, compositors, in keeping with the practices already established, thought that legal language should have a visual coherence interrupted as little as possible by features that could be regarded as not forming an essential part of the language itself. Therefore, long, thinly punctuated sentences are the rule rather than the exception. This lack of punctuation is perhaps one of the first things that comes to mind in connection with printed legal language. Punctuation attempted to do no more than show in a crude way the points in a piece of written language at which anyone reading it aloud ought to pause. A public performance which would necessitate accurate reading aloud was the last thing likely to happen to legal documents, whose chief function was to serve as written records, and hence the thinnes of their punctuation. The tendency nowadays is to recognise the usefulness of punctuation as a guide to grammatical structure, although only a limited range of punctuation marks is allowable in legal English.

2. Distinctive features of Legal English

20

In most written legal language, in which documents are divided into sentences, the sentences tend to be extremely long. It is a characteristic legal habit to conflate, by means of an array of subordinating devices, sections of language which would elsewhere be much more likely to appear as separate sentences. As a result, legal sentences are usually self-contained units which do not need to be closely linked either to what follows or to what has gone before, the cotext. 2.1.1. Repetition of lexical items Apart from the occasional introductory adverbial, almost the only formal linkage to be found between the sentences is the repetition of lexical items. The habit is to be expected in a variety which attaches so much importance to exactness of reference. In almost all other varieties too much repetition is considered tiresome. It is often reduced by the use of anaphora, in which a substitute word refers back to a lexical item that would otherwise have needed repeating. The trouble is that they can often look as though they are referring back to an item other than that which the writer had in mind, thereby producing ambiguities which would be quite intolerable in a legal document. Pronoun reference and anaphora are virtually done away with, the most notable omission being IT. This pronoun turns up only in formulaic constructions such as It is agreed as follows. The following extract from a divorce petition bears out what we have stated so far: "The Respondent has behaved in such a way that the Petitioner cannot

reasonably be expected to live with the Respondent" 2.1.2. Syntactical constructions derivative of a simple logical structure Statements are very often of a characteristic type which is reflected in equally characteristic sentence structure. Reduced to a minimal formula, the great majority of legal sentences have an underlying logical structure which says something like 'if X, then Z shall be Y" or, in the alternative, "if X, then Z shall do Y". Every action or requirement, from a legal point of view, is dependent on a set on conditions which must be satisfied before anything at all can happen. The following covenant, taken from a rental agreement, is a case in point: "If Tenant vacates the premises without first furnishing said notice, Tenant

shall be liable to the Landlord for one month's rent"

LEGAL ENGLISH AND TRANSLATION

21

2.1.3. Abuse of nominalisations and passive constructions An excessive use is made of nominalizations and passives. This abuse is what makes us label legal language as "neutral" and "aseptic". Consider the following extract from a Scots Law Report of 29 October, 1991: "Where a party who apprehended that an action was shortly to be raised,

against him in a foreign country sought interim interdict to prevent that being done, and yet in the event of such an action it would be open to him to argue forum non conveniens in the foreign court, interim interdict would be refused"

We also include here the use of rare passives: "...but if resort is to be had..." Let us pay special attention to the following sentence. There is a very marked tendency to use postmodifications in the nominal groups. The long complicated nominals that result are noticeable by contrast with the verbal groups, which are relatively few. There is also a fondness for using non-finite clauses (infinitives, gerunds and participles, both present and past), which in many other varieties would probably be replaced by postmodifiers of nominal elements (ie finite relative clauses). "the payment to the Owner of the total amount of any instalments then

remaining unpaid of the rent hereinbefore reserved and agreed to be paid during the term and the further sum of ten shillings..."

2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses As stated before, this use rules out relative clauses introduced by the pronouns which, who and that. Let us see this feature at work once again in the following covenants from the same rental agreement: "Tenant will pay the rent at the time specified" "Both Landlord and Tenant waive trial by jury in connection with any agreement

contained in the rental agreement or any claim for damages arising out of the agreement or connected with this tenancy"

2. Distinctive features of Legal English

22

2.1.5. Infringement of the ordo rectus Another source of oddity is the insertion of post-modifying elements at precisely those points in a group at which they will most clearly give the required sense. The need to achieve precision or avoid ambiguity always takes precedence over considerations of elegance, and unusual sequences are, as a result, common: "... and will within seven days after any premium in respect of such insurance shall

become due deliver receipt for..." 2.1.6. Use of the conjunction "that" with a special meaning Legal English is the only variety in which the relative pronoun "that" (acting as antecedent) requires a periphrasis in the translation into Spanish ("en el/la que se afirma que; en el sentido que"): "An objection was taken that her application was bad in point of law": Se le aceptó una objeción en el sentido de que su demanda carecía de fundamentos jurídicos. 2.1.7. Use of the suffixes -er and -ee In general, the ending -or/-er refers to somebody who grants something, that is, it is the active point of view of the action; its counterpart, the passive subject, usually ends in -ee. Alcaraz (1994:78), however, points out that "mortgagor" (deudor hipotecario) is the person who borrows money, giving a property as security, whereas "mortgagee" (acreedor hipotecario) is the person or company which lends money for someone to buy a property and takes a mortgage of the property as security. Seemingly an exception to the rule, it is not because the active point of view is taken from the act of mortgaging, something done by the private individual. "...made when the grantor was not indebted..." "And although the gift be not made known to the donee"

LEGAL ENGLISH AND TRANSLATION

23

2.1.8. Frequent gerundive constructions By this we mean the type of participial clause introduced by a subordinating participle (present, perfect or past). Its translation into Spanish requires a paraphrasis. The meaning can be temporal or causative. If the verb in the clause is dynamic, for example "reaching", the two clauses, both the main and the adverbial one, are linked temporally: Reaching the river, we set up camp: Al llegar al río, montamos el campamento If, on the other hand, the verb in the clause is stative, for example being, the two clauses are linked causatively: "...and although the gift be not made known to the donee, being for his benefit" "...y aunque la dádiva no le conste al donatario, si es para su beneficio" 2.1.9. Legal adjectives Zero determination is the rule and the few exceptions (like reversionary bonus) seem to be formulaic expressions. Alcaraz (1994:77) says: “Aparte de los adjetivos legal, illegal, equitable, etc, que son lógicamente frecuentes

en los textos y documentos jurídicos, hay otros, pertenecientes al lenguaje estándar, entre los que destacamos: absolute, qualified, constructive y actual".

It is not difficult to see why so few adjectives are used, no doubt in keeping with the general inclination to be specific. 2.1.10. Restrictive use of finite verbal forms The verbal groups used in legal language are notable for the high proportion of non-finites and for the number of finites that are of the type modal auxiliary (usually SHALL) + BE + past participle.

2. Distinctive features of Legal English

24

SHALL is invariably used to express what is to be the obligatory consequence of a legal decision, and not simply as a marker of future tense, its main function in other varieties. 2.1.11. Use of such as determiner, unaccompanied by the indefinite article This is of course one of the most readily recognisable marks of legal language. Its use is presumably prompted by the desire to achieve precision of reference, which is also behind another feature of legal style, the use of said in premodifying function, and the use of same as head of the noun clause. All these features can be checked in the following extract from an indenture (a private contract): "it shall be lawful for the said Lord Stonebreaker to keep on foot or effect such

insurance and charge the costs thereof with interest at the rate of eight per cent per annum to the said Sir Fireater and the same shall be considered to be included in this security"

We can find here: a) a double passive construction: shall be considered to be included b) infringement of the ordo rectus: ... and charge the costs thereof with interest at the rate

of eight per cent per annum to the said Sir Fireater c) only one typical legal adjective: lawful d) exclusive use of shall as the only finite verbal form e) such used as a determiner, unaccompanied by the indefinite article f) said in premodifying function g) same as head of the noun clause 2.1.12. Long, complex and equivocal sentences Sentences usually stand alone and are self-sufficient. They are autonomous units and do not need to be linked to what has gone before or what follows. Let us consider the following (a single sentence taken from an issue of shares by Rolls Royce!):

LEGAL ENGLISH AND TRANSLATION

25

"You agree, as a collateral contract between you and the Secretary of State which will become binding on posting to, or (in the case of delivery in any other manner) receipt by, a receiving bank of your application and in consideration of the Secretary of State agreeing that he will not, prior to 11th May 1987, offer any of the Shares to any person other than by means of one of the procedures referred to in the Prospectus, that your application cannot be revoked prior to 31st May 1987 and if you are requested to do so at any time in writing within 21 days of the date of such request, to the person making it, the name(s) and address(es) of any person(s) for whose benefit your application was made or who would, if all the Shares for which your application is accepted had been suscribed, be, to your knowledge, at any time or for any periods prior to such request interested in such Shares for the purposes of section 212 of the Companies Act 1985"

2.2. The semantical level We will base our study of this on the following: a) vocabulary b) ambiguity Natural language is at the heart of legal discourse, and it is a language fraught with polisemia. Discourse meaning is conditional on semantic appropriation, that is, the power of the legal text to define its own, very narrow, conceptions of meaning, and simultaneously to exclude alternative meanings and contexts. A case in point is the verb "to provide" (and its nominalization "provision"). In general English they mean "to supply" and "supply", respectively; in legal English only they mean "to stipulate" and "stipulation"). It is also a fundamental premise in legal discourse that conflicts are dealt with as if they were problems of syntax and the points of law used in judicial decisions usually take the shape of remarks loosely related to several passages and sections of the laws that are applicable. The following two passages corroborate this reasoning: "The applicant, Mrs Wendy Smith, was employed by wholesale dealers in

pharmaceutical products. She was paid a salary of 50 pounds a week. She discovered that a man (who had left) had previously been performing her task. He had been paid 60 pounds a week. She took proceedings under our English statute, the Equal Pay Act 1970 (as amended by the Sex Discrimination Act 1975)..." (Court of Justice of the European Communities, case 129/79)

"On the basis of the foregoing detailed examination of the merits of the case, the

Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon it by the Vienna Conventions of 1961 and 1963 on Diplomatic

2. Distinctive features of Legal English

26

and Consular Relations, the Treaty of Amity, Economic Relations, and Consular Rights of 1955, and the applicable rules of general international law, has incurred responsibility towards the United States..." (International Court of Justice, case of the Consular and Embassy staff of the US in Tehran, 24 May 1980)

2.2.1. The legal vocabulary 2.2.1.1. ADVERBS, PREPOSITIONS AND CONJUNCTIONS The range of vocabulary that may be encountered in legal language is extremely wide since almost anything can become the subject of legislation. But lawyers have developed marked preferences in their choice of words. It is especially noticeable that any passage of legal English is usually full of archaic words and phrases of a kind that could be used by no one else but lawyers. Among them, those words which consist of an adverbial word of place to which a preposition-like word has been suffixed. They are used to refer clearly to specific times and places in and around documents. Here means this document - the one you are reading There means that document - the one which is being discussed, not the one you are reading What follows is a comprehensive list, together with a definition: HERE Hereafter : in the future - from the production of this document on hereby: resulting from this document herein: appearing somewhere in this document hereinafter: listed later in this document hereof: relating to this document or part of it hereto: mentioned in this same section of this document heretofore: previous to the production of this document hereunder: following this document

LEGAL ENGLISH AND TRANSLATION

27

herewith: accompanying this document THERE thereafter: from the production of that document until now thereby: resulting from that document or decision therefore: for that reason or purpose therein: appearing somewhere in that document thereinafter: listed later in that document thereinbefore: mentioned previously in that document thereinunder: following that document thereof: relating to that document thereto: mentioned in that section of that document theretofore: in the time before that document was produced therewith: accompanying that document All these are useful for the kind of precise references, especially to the document or its parts, and to the contracting parties- which lawyers find it so necessary to make; but again it seems possible to see in the almost ritualistic repetitiveness more than a little reverence for tradition. 2.2.1.2. ARCHAISMS Archaisms nearly always seem to add a touch of formality to the language in which they occur, and in this respect those found in legal documents complement the extremely large proportion of words which, even though in current use, seem highly formal in their effect: duly, deem, expiration, termination.