EDITORS: Vijay K. Bhatia, Christopher N. Candlin, Paola Evangelisti Allori TITLE: Language, Culture and the Law SUBTITLE: The Formulation of Legal Concepts across Systems and Cultures PUBLISHER: Peter Lang AG YEAR: 2008
Leonhard A.G. Voltmer, lecturer and legal translator
The book contains 15 papers of legal discourse analyses. They are divided into three chapters, one on international legal language, one on EU language and one translating legal discourse.
Part 1: International Arbitration and Trade Law
M. Gotti investigates the difference in legal drafting across legal cultures. He sees a big difference between Civil and Common Law conventions, in textual schematization, in clarity and in expression. According to Gotti, Common Law is more structured and clearer in expression. Gotti's judgment is based on a comparison of the type-token ratio between the Italian Code of Civil Procedure (type/token ratio 20) and the Model Law on International Commercial Arbitration (ratio 14). For Gotti, the higher ratio shows that the domestic law is more polysemous, whereas the English legal discourse is more lexically structured and specific.
The comparison involves two texts which are different in length, style, purpose, subject and date of origin. It is unclear how the influence of these factors on the type-token ratio has been normalized. For example, the second text is more structured than the first and therefore more repetitive. Moreover, high type-token ratio is usually not taken as a sign of imprecision, but as a sign of high information flow (low ratio hints instead at high redundancy), cf. http://www.glottopedia.de/index.php/Type-Token-Relation#Interpretation_der_Ergebnisse.
The article mentions that there are explicit codes of conduct for arbitrators in Italy and China, but not in the text of the United Nations Commission on International Trade Law. The reason is, according to the author, the greater autonomy of the judge in Common Law. Further reasons for drafting differently are due to different addressees, for example the Arbitration rules of Milan and Bergamo are written for small and medium businesses and therefore use shorter words and sentences and avoid Latinisms or archaic words.
Gotti's findings are not put forward beyond all reasonable doubt, because the described phenomena can find alternative explanations: The four occurrences of the word ''therefore'', taken by Gotti as a hint to an archaic text, seems to me a very standard word for argumentative texts. Other words taken as ''archaic'' are probably due to the translation, and to the fact that the arbitration rules of the United Nations Commission on International Trade Law are more than 30 years old. Gotti notices also a high average sentence length, but this might come from the use of lists, so that this kind of long sentence is not more difficult, but explicitly reader-friendly.
Nevertheless Gotti's conclusion that normative texts also take into account their readers, their legal culture and professional expectations, may easily be conceded.
G. Garzone examines arbitration rules in Italian, French and English to verify some claims of translation theory. She finds expected effects such as simplification and ''explicitation'' [sic], but against the general rule, she finds the English target texts to contain more words than the Italian or French source texts. Garzone explains this with the aspiration to clarity in English legal texts. She does not consider the higher average word length in Italian and French, so that the English texts are not longer in characters than the source texts. Checking the latest version (2004) of the arbitration rules of the Chamber of Commerce of Milan, the Italian and English texts contain the same number of words, but the English text uses about 14% less characters. This example shows that the corpora used by Garzone and many other authors in this volume are simply too small to be generalized or to allow valid quantitative statements.
P.E. Allori examines Italian and international sports arbitration rules. She finds that the kind of acts and the modals addressing the single actors are indicative of their power. To confirm this claim, a legal analysis would be necessary.
M. Menghini presents her work on an electronic glossary based on a corpus of two sports arbitration texts. She describes the technical details and gives examples of some cross-language ''correspondences and equivalences'' (p. 106). The terminology would be a useful addition to a translation memory or a more comprehensive dictionary, as has been done with a much larger project such as LexALP (Voltmer 2008).
T. Salmi-Tolonen refers, among others, to students' writing for a moot court contest as a sample for transactional law. Her point is that the text-centered approach is misleading, because only the integration of the sender and receiver perspective can establish meaning.
M. Solly poses a challenge to Salmi-Tolonen, because he praises the quality ''embodied in the language of the UK Marine Insurance Act'' (p. 141) across all national legal cultures and more than a century. Solly argues that the text even resists change because of worries that any new version would be less effective.
Part 2: European Legal and Institutional Language
G.S. Mariani criticises the EU Constitution at length, quoting from it extensively in English, French and Italian. His criticism of the subsidiarity principle is that the formulation ''only if and insofar the objectives ... can ... be better achieved at Union level'' would implicitly define the EU as ''superior to the Member States'' (p. 180). Mariani ignores the very strict conditioning (''only if and insofar''), and he ignores the fact that the sentence does not judge the quality or effectiveness of EU norms as generally higher, but is referring only to the achievement of specific objectives in the exclusive competence of the EU. The subsidiarity principle, rather than stating EU superiority, establishes that the Member States are considered capable to rule on any area of EU competence. The EU has to show that the default rule does not apply before acting.
M. Dossena examines the popularization strategy of law firms in reaction to the Abolition of Feudal Tenure (Scotland) Act. The law firms use paraphrases, examples and clear textual organization as well as references to everyday life of the citizens.
G. Caliendo and M. Venuti analyze the language used by the EU Commission and the EU Council during the process of Turkey's accession to the EU. They detect an overuse of downtoners, modals and contrast/concessive adverbials compared to the Brown Corpus and reveal the linguistic means by which the Commission speaks in favour of accession and the Council tries to gain time.
C. Pennarola tries to show through linguistic analysis of EU humanitarian aid policies that the EU enacts an ''imperialism-grounded humanitarian assistance'', ''based on political and economic asymmetry, geographical and cultural distance and on benevolent if not patronising concessions'' (p. 239). For example, the term ''Community assistance'' is taken to be patronising, because it implicitly expresses the subordinate status of the recipient countries, in contrast to the term ''Community programme'' used for actions inside the EU. Actually, it might also be perceived the other way round: the EU is not ''master of the programme'', but only ''assistant'' when acting abroad, and putting itself into an inferior position. A neutral, non-ideologic reading would perceive the wording as accurate: EU actions inside its own area are quite complex and programme-like, whereas humanitarian aid is usually ad hoc, less articulated in goals and time-frame, and usually in cooperation with the recipient country.
M. Volini examines phrasemes, i.e. set expressions, in English and Italian used by the EU. She assumes that all Italian texts are translated versions of the English original and concludes that the translation has led to the overuse of certain phrasemes.
P. Catenaccio notes that the integral adoption of the European Directive on Unfair Terms in Consumer Contracts in 1999 in the UK introduced ''false friends'' and formerly unknown legal concepts like ''good faith''. The EU bypasses the UK gatekeepers of legal discourse, but for Catenaccio '''translating' European Directives into local languages will not be an option for much longer'' (pp. 276-277).
From a legal point of view, the UK can very well adopt the content of directives by using domestic legal concepts and avoiding ''false friends''. The UK gatekeepers didn't close their gate, probably because they underestimated the legal and linguistic impact of EU statute law on their legal system.
Part 3: Translating Legal Discourse
G. Tessuto discusses legal concepts and their socio-cultural imbeddedness as arguments for his terminographical standard. Tessuto's idea of ''meaning'' is that it is more than the ''ordinary meaning'' because it includes ''subtle meaning''. Therefore, meaning should be described not only by ''a set of sufficient semantic features'' (p. 285), but by further information such as the concept's presuppositions and use, its ''descriptive meaning'' (quality, intensity and specificity), as well as the position in a concept map (hypernym, hyponym and meronym).
Tessuto mixes lexicography into terminography and criticizes the first with the strengths of the latter. The ''less evident'' nature of legal concepts is, according to Tessuto, that legal concepts are ''continually redefined'' and they become therefore ambiguous and inconsistent (while most writers claim that legal language is rather conservative and precise, for example Chromá in the same publication). Tessuto's ''standardised data entry for terminography'' does not resolve any of the identified problems. The given ideal entry (p. 294-296) contains not only ambiguous data (a very confusing ''context example'' and a ''low chart'' without indication if the criteria are cumulative or alternative), inconsistent data (different source indications on p. 295), non-standard data (source directly included the context field itself, instead of a separate field) and non-standard field names, but also wrong data (''specific intent'' is not a homonym for ''recklessness''). In Tessuto's entry, the equivalent concept in the Italian legal system comes between the English definition and the English synonyms and consists of a field without a field name which contains a nine-line quote - but no other ''subtle meaning''. To compare, the data-base BISTRO (www.eurac.edu/bistro) has a standard entry for ''dolo eventuale'', which has not changed for ten years, but is still up to date. Tessuto makes rather a point for context intensive teaching.
M. Chromá sums up what legal translation means and gives advice to English-Czech translators. She explains how Charles University Law School teaches legal English, German, French and Russian.
S. Marrone gives examples of the translation of the Rules of Procedure from Italian to English.
The authors in this book use statistical tools to make ''findings'' which always support the author's hypotheses – and not a single falsification. Some authors compare apples and oranges, some operate with zero frequencies, and throughout the book small sample texts and infrequent phenomena render the ''results'' insignificant. It is safe to state that the word ''significance'' is underrepresented in a book on quantitative linguistic research. Reading the contributions as qualitative research (just skip the statistical part), you can find interesting, sometimes contradictory hypotheses (law is precise vs. law is imprecise). Reading the book, I have the impression that the current research activities in linguistics on law do not yet have a common agenda or a lesson for other fields.
Voltmer, Leonhard, Experiences in Harmonising, in: Chiocchetti, Elena & Voltmer, Leonhard, eds. (2008), Harmonising Legal Terminology, EURAC Bolzano/Bozen 2008.
ABOUT THE REVIEWER:
Leonhard A. G. Voltmer is jurilinguist. He studied law in Munich and Paris,
Legal Theory in Brussels and Lund, and Romance Languages in Salzburg and
Munich. From 2001 to 2009 he worked for the European Academy of Bolzano
(Italy) in terminology, translation and language normation. His experiences
in the computational linguistic treatment of multilingual legal data have
become a Ph.D. thesis at the University of Munich
(http://edoc.ub.uni-muenchen.de/archive/00003716/). Dr. Voltmer was
lecturer for Translators and Interpreters at SSLMIT (Italy) and SDI
(Germany), and was teaching Intercultural Mediation in Degree and Master
Courses at the University of Trento. Dr. Voltmer's research agenda focuses
on the combination of disciplines: The dialogue between cultures
(Intercultural Communication/Mediation), between lawyers and laymen,
between computational linguists and language practitioners, and between the
different scientific disciplines in Legal Theory.