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Context:
The characteristics of legal language in English and Spanish are derived from its
authoritative role in the institution of law. Hence, the opacity of its discourse: the
conspiracy theory.
Of all the specialized languages, legal language may be the one that pragmatically and
semantically differs the most from culture to culture. Comparative law specialists
consider the existence of very different legal cultures and traditions and, specifically,
legal translators describe the deep gap existing between the legal tradition of Spanish
law and that of the Anglo-Saxon law.
Ostensibly, discrepancies between legal cultures are due to the fact that language is a
cultural product, and so is law. Law is an ideological artifact: it is the most important
social accord in democratic societies, and governs with the highest directive force every
society worldwide. Cultural schemas in the legal area like marriage or contract, for
example, constitute artificial constructs by means of which the human world organizes
the coexistence and conviviality of its members, and, as such, they have a certain
directive force and ideological hue. Therefore, these institutions constitute
predetermined cultural concepts in each culture, similar in essence but arranged
differently in each legal tradition.
As far as the legal communities in the West are concerned, these follow one of two
major legal traditions: the English-speaking Common Law or the Continental law. The
former emerged in England during the Middle Ages and was applied within British
colonies across continents. The latter developed in continental Europe at the same
time and was applied in the colonies of European imperial powers such as Spain and
Portugal. Despite the equal predominance of these two traditions in the world, English
has also turned into the lingua franca for almost every legal practitioner involved in
cross-border legal transactions.
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Traits:
Semantic redundancy: lexical doubles and triplets. Provisos and other limitating clauses: syntactic
qualification
Univocity (technical words) and equivocity Nominal character of sentences
(common words with un common meanings)
Unusual prepositional phrases and polysyllabic Complex prepositional phrases
words
Vagueness: antonyms, hyperonyms, hyponyms, Syntactic discontinuities
false friends, metaphors.
Table 1. General characteristics of Legal English.
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UNUSUAL PREPOSITIONAL PHRASES AND POLYSYLLABIC WORDS
Hereto
Thereabout
Thereafter
hereby
jurisdiction, assignment, implementation, enforcement
Much of this vocabulary is derived from French, Old English and Latin.
Lawyers prefer to use antique terms instead of new ones. For example, they use imbibe as an
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alternative of drink, inquire rather than ask, peruse instead of read, forthwith as a
substitution of right away or at once and so on. Another convenient example is the use of
the verb witnesseth with the preservation of an eth ending for the third person singular of
the present tense as an alternative of the current morpheme es witnesses.
It was inevitable for English law to escape the influence of Latin which was supported by the
power of the Roman church over Europe at that time, and also to its widespread use
throughout this place of earth as a language of learning and literature. The origin is not the
same as the Latinisms used in Roman Codes. Hence, Latinisms in Common Law are not always
the same as those used in Continental systems, and that is something that the translator has to
acknowledge.
Here are some additional Latin phrases and words in common use:
- Bona fide (good faith or in good faith
- Res judicata (an issue adjudicated, cosa juzgada)
- Res nova ( a new thing; an undecided question of law)
- Actus reus (guilty act)
-Mens rea (guilty mind)
Like Latinisms, the existence of legal French terms within English legal language is also
apparent. After the Norman Conquest in 1066, the language of the invaders gained an
undeniable position in the legal sphere of England, bringing with it a wealth of legal French
terminology. As a case of illustration, the following terms are originally French:
abscond, on parole, average, femme sole, profit pendre, chose, lien
There exist also some archaic adverbs, which are actually a mixture of deictic elements: here
there and where with certain prepositions: of, after, by, under etc. By way of illustration,
here are some examples:
- The parties hereto agree as follow.
- Hereinafter referred to as wife.
- The total rent for the term hereof is the sum of________.
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--construction, prefer, redemption, furnish, hold, find, compensation, bar, seize, act, action,
statute, damages, equity, trial.
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Examples extracted from Alcaraz & Hughes, 2002, Legal Translation Explained
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c) Polysyllabic words, derived very often from nominalization:
--jurisdiction, assignment, implementation, enforcement
While originally being deployed to help all lawyers no matter which vocabulary they might use
(English, French, or Latin), it now sometimes refers to words which mean exactly the same
thing; this has become a stylistic standard for other legal concepts (dispute, controversy or
claim, search and seizure).
g) Use of pronominal adverbs in combinations (see above) . Words like hereof, thereof, and
whereof (and further derivatives, including -at, -in, -after, -before, -with, -by, -above, -on, -
upon) are not often used in ordinary modern English. They are used in legal English primarily to
avoid repeating names or phrases.
For example, the parties hereto instead of the parties to this contract.
h) -er, -or, and -ee name endings. Legal English contains some words and titles, such as
employer and employee; lessor and lessee, in which the reciprocal and opposite nature of the
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relationship is indicated by the use of alternative endings.
i) Use of phrasal verbs. Phrasal verbs play a large role in legal English, as they do in standard
English, and are often used in a quasi-technical sense. For example, parties enter into contracts,
put down deposits, serve [documents] upon other parties, write off debts, and so on.
j) Over-precision, characterized in the frequent specification of detail and the use of "legal"
adjectives: absolute, qualified, constructive, actual.
Constructive total loss
Actual manslaughter
k) Ambiguity: characterized in the frequent open-endness and the use of "legal" adjectives:
proper, reasonable, suitable
its reasonable, but good faith opinion,
k) Archaic use of the modal shall in legal English: Shall poses a level of difficulty in both
interpretation of clauses containing it and in the translation of such clauses. Traditionally, the
modal shall, in legal texts carries an obligation or a duty as opposed its common function, i.e.
expressing futurity.
- All such payments shall be made to Landlord at Landlord's address as set forth in the
preamble to this Agreement on or before the due date and without demand.
- Tenant shall comply with any and all laws, ordinances, rules and orders of any and all
governmental or quasi-governmental authorities affecting the cleanliness, use, occupancy and
preservation of the Premises.
MORPHO-SYNTACTIC FEATURES
LONG AND COMPLEX SENTENCE STRUCTURES
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--If Party B fails to remedy a breach of this contract within 7 days of receiving written notice
from Party A, and provided that Party A has complied with the terms of this contract, Party A
may sue Party B for damages if Party B breaches this contract without limiting the rights that
Party A might otherwise have at law, but only if Party A notifies Party B of its election to to do
so pursuant to clause 7
PASSIVE STRUCTURES
--The motion was filed, a hearing was held, and a ruling was issued.
--The district attorney filed the motion, both lawyers attended a hearing, and the judge issued a
ruling.
An agreement was made by the parties to reach a decision by Friday. (13 words; passive voice;
weak verb)
The intention of Congress was for the interpretation of the statute to be made broadly by the
courts. (18 words; passive voice; weak verbs)
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COMPLEX PREPOSITIONAL PHRASES
--In the light of the Commissions considerable experience in applying Articles 87 and 88 of the
Treaty to regional investment aid and in the light of the guidelines on national regional aid
issued by the Commission [] it is appropriate [...] that
--If a thing is transferred regardless of its quality and quantity
--Should this Regulation expire without being extended, Member States should have an
adjustment period of six months with regard to de minimis aid covered by it
--products and services in respect of which the Member State has granted a special or exclusive
right
--For the purpose of this Regulation: 1. "aid" means any measure fulfilling all the criteria laid
down in Article 87
--Such documents shall include commitments offered by the undertakings concerned vis-- vis
the Commission with a view to rendering the concentration compatible with the common
market
OTHER SYNTACTIC PECULIARITIES:
1. Conditionals
When the Lease term expires, if Renton has fully complied with all its obligations under the
Lease, Renton will be entitled to a 20% interest in the profits of Jamie Ridge in the form of a
non-managing membership interest, and the right to lease or buy for nominal consideration
approximately 1.6 acres, in an area designated by Jamie Ridge, for the purpose of operating a
garden nursery, provided that any such lease or sale would be contingent upon the nursery's
purpose being permitted under all applicable laws, and provided further that the area
designated for the nursery would be burdened by a restrictive covenant prohibiting any other
use thereof.
2. Unusual anaphora and absence of pronouns to make language more precise, not leaving
doubt as to the referent (ironically, they end by confusing the reader!)
In legal writing, draftsmen avoid the use of anaphoric devices or referential pronouns. Such as:
the personal pronouns (he, she, it etc) or the demonstrative ones (this, that, etc), in addition to
the verb to do that may substitute a whole clause as in the following example, He rents a car
and so does his brother . Actually, legal language is highly concerned with the exactness of
reference; hence its tendency toward lexical repetition, and therefore to functional
redundancy.
The Lessee shall pay to the Lessor at the office of the Lessor
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When translating legal texts, it is commonly advocated to keep the same redundancy of the
original text since it is a redundancy that is functional. So, the translator should ensure that the
version proposed is without ambiguity as its original counterpart.
3. Impersonal Constructions (avoidance of the first and second person pronouns "I" and
"you"; judges referring to themselves as "the court").
The defence shall remain neutral on this point
4. Passive constructions.
A copy of every Action Letter shall be sent to the Clerk of the Administrative Office for
entry and filing, and a memorandum briefly describing the Action Letter shall be distributed
to each Commissioner within three days thereafter
5. Multiple Negation
6. Long and Complex Sentences (sometimes hundreds of words long). For example, the
provisions for termination hereinafter appearing or will at the cost of the borrower
forthwith comply with the same.
7. Wordiness and redundancy ("I give, devise and bequeath the rest, residue and remainder
of my estate...").
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Look for examples of these traits in the following text:
-Archaisms
-Technical words
-Common words with uncommon meanings
-Doublets
-Conditionals
-Unusual anaphoras, repetition
-Impersonality
-Long sentences
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