An Insight into the Translation of International Legal Language.pdf

8/17/2019 An Insight into the Translation of International Legal Language.pdf

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Università degli Studi di Padova

Dipartimento di Studi Linguistici e Letterari

Corso di Laurea Magistrale inLingue Moderne per la Comunicazione e la Cooperazione Internazionale

Classe LM-38

Tesi di Laurea

RelatoreProf. Maria Teresa Musacchio

LaureandaSilvia Alchini

n° matr.608026 / LMLCC

An Insight into the Translation ofInternational Legal Language: A Case Study

on the Language of Andrew Clapham’s Human Rights

Anno Accademico 2011 / 2012


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Index of contents

Introduction ....................................................................................................................... 3

1. SPECIAL LANGUAGES

1.1 What is a special language? ................................................................................. 7

1.2 The Italian terminological debate ..................................................................... 10

1.3 The features of special languages

1.3.1 General features ....................................................................................... 17

1.3.2 Lexical features ....................................................................................... 18

1.3.3 Morphosyntactic features ........................................................................ 24

1.3.4 Textual features ....................................................................................... 26

2. LANGUAGE AND THE LAW

2.1 Language of the law and legal language ........................................................... 31

2.2 Legal genres ...................................................................................................... 33

2.3 Lexical, syntactic and textual features of legal language ................................. 37

2.4 Describing legal language ................................................................................ 40

2.5 International Law and its language .................................................................. 44

3. THE TRANSLATION OF LEGAL TEXTS

3.1 Theories and key concepts in legal translation studies ...................................... 53

3.2 The question of equivalence: semantic, functional and legal equivalence ........ 58

3.3 The translator’s role ........................................................................................... 62

3.4 The translation of international documents ....................................................... 65


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4. THE TRANSLATOR’S TOOLS

4.1 Traditional translation tools .............................................................................. 71

4.2 Advanced translation tools: online term banks and electronic corpora ............ 75

4.3 Corpus analysis tools

4.3.1 Word lists and frequency information .................................................... 79

4.3.2 Keyness and keyword lists .................................................................... 80

4.3.3 Concordances and collocations .............................................................. 81

5. CASE STUDY: TRANSLATION AND ANALYSIS OF AN INTRODUCTORY

BOOK ABOUT HUMAN RIGHTS

5.1 Introduction ........................................................................................................ 83

5.2 Aims of the study ............................................................................................... 84

5.3 Methodology ...................................................................................................... 85

5.4 Discussion of findings

5.4.1 Comparing two mother tongue textbooks .............................................. 87

5.4.2. Comparing source and target text: an analysis of syntactic, textual and

lexical features ........................................................................................ 96

Conclusions .................................................................................................................... 109

Appendix 1: Translation of Chapters 2 and 7 of Andrew Clapham’s Human Rights into

Italian ....................................................................................................................... 111

Appendix 2 ..................................................................................................................... 159

References ...................................................................................................................... 185


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Introduction

Nowadays, the demands of the translation market require that professional translators

specialize in specific fields of knowledge. In our globalized contemporary society –

where science, technology, economy, but also cultural aspects are constantly evolving into

more complex and particular forms – every kind of information or new achievement

rapidly spread all over the world, intensifying contacts and relations between different

countries and peoples. Among developments there are also international relations which

take place at a legal level and – just by virtue of their peculiar status – may have

significant repercussions on the life of every kind people. In most cases, the language

commonly used in international relations is English. However, in the case of a treaty, a

specific law or a contract written abroad or produced by the international community, but

also intended for application at a national level, it is important that the text in question is

translated into the national language(s) in order to be accessible not only to experts in the

field, but also to lay people or to those who are not familiar with the English language. In

particular, the language of law plays a fundamental role, since it enables legislators to

grant rights or impose obligations to a large number of citizens. Its translation should

therefore be as accurate, precise and reliable as possible to ensure that equivalents in the

target language preserve the original meaning and perform the intended effect.

This dissertation aims at providing an insight into the vast field of special

languages and specialized (or LSP) translation, focusing, essentially, on legal language

intended as the language of a number of different genres, ranging from highly specialized


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texts (legislation, contracts, wills, etc.) to pedagogic genres (textbooks, manuals, essays,

ect.), whose readers are supposed to possess a significantly different level of expertise.

The first, introductory chapter offers a definition of special languages which tries

to take into consideration the series of different perspectives emerging from a lively

terminological debate which involved various eminent scholars both at a national and

international level. This discussion enables me to identify a series of syntactic, lexical and

textual features which are typical of the language of specialized texts (in spite of the

specific field of knowledge they are about) and contribute to distinguish it from general

language.

In the second chapter, centred on one of the various existing special languages –

legal language – a subtle distinction is made between the language of the law and legal

language. However, within legal writing it was possible to identify a wide set of genres

revealing a series of peculiar morphosyntactic, lexical and textual features, which were

discussed and analyzed in detail by providing also a series of appropriate examples.

Moreover, I also chose to tackle a specific issue in detail, namely International Law and

its language, by highlighting their distinctive features which have relevant consequences

on the translation of International Law into the individual national legal systems.

Chapter three, after a brief definition of legal translation, lists the main theories

and key concepts related to this particular field of specialized translation. Legal

translation acquires a particular significance because – besides language transfer – it also

implies a significant transfer of legal concepts, which will presumably produce practical

legal effects in the legal system of the target culture. In this light, major importance is

given to the concept of equivalence and to the role of the legal translator, who – bearing a

great responsibility – should possess not only linguistic, but also legal skills and


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knowledge. The last part of the chapter, then, is dedicated to a more specific issue – the

translation of international documents.

Chapter four is about translation tools: traditional tools, including paper books,

glossaries, dictionaries, etc, and more advanced tools such as online term banks,

databases, translation memories and other electronic devices. Among translation support

tools, an essential role is played by corpora and corpus analysis tools: not only do they

help the translator in the translation process – facilitating, for example, the search for

technical terminology or typical collocations – but they also provide important statistical

and linguistic data such as frequency information, word lists, and keywords lists. In short,

this chapter serves as an introduction to Chapter five, as it briefly describes the functions

performed by these instruments, which were extensively used in the case study discussed

in the last part of my thesis.

The final chapter is a case study on my translation of Chapters 2 and 7 of Andrew

Clapham’s Human Rights: A Very Short Introduction into Italian. Although not highly

specialized (as the volume belongs to the pedagogic genre, whose readers are supposed to

be the lay public), Human Rights was worth analysing since it includes a set of features –

above all terminology – which are typical of legal language. To begin with, Professor

Clapham’s text was translated into Italian; then it was compared not only with the source

text, but also with another text, La tutela internazionale dei diritti umani, belonging to the

same genre, but originally written in Italian by an eminent academic, Salvatore Zappalà.

This double comparison allowed me to analyze this specific genre, to reflect on the

translation process and to discover linguistic differences and similarities, which turned

out to be linked not only to the different language systems, but also to the different

cultures. To conclude, theory was at last put into practice, providing effective evidence of


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Chapter 1

SPECIAL LANGUAGES

1.1 What is a special language?

A first answer to the question ‘What is a special language?’ could be that a special

language is a variety of language that is used in a specialized subject field of knowledge.

In English, special language is usually referred to as LSP, which stands for language for

special purposes; nonetheless, Bowker and Pearson point out that it would be ‘more

accurate to talk about LSP in the plural (i.e. languages for special purposes) since

different LSPs are used to describe different areas of specialized knowledge’ (Bowker &

Pearson 2002: 25). The ‘S’ of LSP can stand also for ‘specific’, which may be considered

as a synonym of ‘special’ in the sense that both adjectives denote something that is

intended for or restricted to a particular purpose or situation. However, there may be a

significant difference between special and specific. Robinson, who wrote about ESP in

the early eighties, noticed that the meaning of this term had changed since 1969, the year

in which the first conference on languages for special purposes was held: at first, the term

stood for English for Special Purposes, but as time went by an increasing number of

scholars, experts and institutions started to refer to ESP as English for Specific Purposes.

In this regard, Robinson explains that

English for Special Purposes is thought to suggest special languages, i.e. restrictedlanguages, which for many people is only a small part of ESP, whereas English forSpecific Purposes focuses attention on the purpose of the learner and refers to the wholerange of language resources. (Robinson 1980: 5)

Indeed, the term LSP, intended as Language for Specific Purposes, had been used by

experts who dealt with second or foreign language teaching and training and focused

above all on the needs of the learners who had to use a particular language in their


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education or job. Considered from this perspective, it is the purpose for which the learner

is studying the language that is special or specific and not the language itself. A major

contribution to this field of study was made by Mackay and Mountford, who, in the late

seventies, wrote a work about the teaching of English for special purposes, identifying

three different kinds of utilitarian purpose: occupational requirements (for international

telephone operators, civil airline pilots, etc.), vocational training programmes (for hotel

and catering staff, technical trades, etc.) and academic or professional study (engineering,

medicine, law, etc.). The two scholars show a great interest in the word special; in their

opinion, what is important to stress is that

English for Special Purposes implies a special aim. This aim may determine the precisearea of language required, skills needed and the range of functions to which language isto be put. But it need not imply a special language. (Mackay & Mountford 1978: 4)

The notion of ‘special language’ thus becomes that of

a restricted repertoire of words and expressions selected from the whole language because that restricted repertoire covers every requirement within a well-definedcontext, task or vocation. (Mackay & Mountford 1978: 4)

Language has nothing special in itself, but it is worth noting that, according to the two

scholars,

the emphasis of the word ‘special’ then, in English for Special Purposes should befirmly placed upon the purpose of the learner for learning the language, not on thelanguage he is learning. (Mackay & Mountford 1978: 5-6)

With respect to the nature of language, Cabré (1993: 132), citing Kocourek

(1982), states that 'la langue de spécialité sera une sous-langue de la langue dite naturelle',

that is to say that a special language is a sublanguage of what is known as natural

language. Within natural language, Sager, Dungworth and McDonald identify the

difference between general and special language in their different use, which implies that,

according to the context and situation, some linguistic characteristics are intensified while

others are reduced:

The nature of language is such that general language and special languages can beaccommodated within one natural language: the fundamental characteristics of language


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are manifested both in English and in the language of chemical engineering, both inFrench and in the language of physics. The difference between general and speciallanguages is a difference of degree rather than kind: the degree to which thefundamental characteristics of language are maximized or minimized in speciallanguages. Special languages are used more self-consciously than general language. It istherefore on the level of use that we look for more specific differentiating criteria.

(Sager, Dungworth & McDonald 1980: 81-104)

Picht and Draskau too consider special language as a subcode of natural language:

LSP is a formalized and codified variety of language, use for special purposes and in alegitimate context – that is to say, with the function of communicating information of aspecialized nature at any level – at the highest level of complexity, between initiateexperts, and, at lower levels of complexity, with the aim of informing or initiating otherinterested parties in the most economic, precise and unambiguous terms possible. (Picht& Draskau 1985)

These considerations about general language and special languages differ

significantly from the position of Hoffmann, who actually thinks that special languages

are independent codes – widely different from general language – with their peculiar

characteristics and rules. In Hoffmann's opinion, a special language is 'a complete set of

linguistic phenomena occurring within a definite sphere of communication and limited by

specific subjects, intentions and conditions' (Hoffmann 1979 cit. in Cabré 1993: 133).

Cabré, however, agrees with Sager, Dungworth and McDonald and Picht and

Draskau; turning – once again – her attention to the adjective special , she adds that what

is special is the set of characteristics that are typical of each subcode or special language.

These characteristics include: the subject matter, the participants in the communicative

exchange, the kind of situation, the speaker's aim, the means of communication, etc. In

Cabré's words:

hablamos de lenguaje de especialidad (o de lenguajes especializados), para hacerreferencia al conjunto de subcódigos – parcialmente coincidentes con el subcódigo de lalengua común – caracterizados en virtud de unas peculiaridades 'especiales', esto es,

propias y específicas de cada uno de ellos, como pueden ser la temática, el tipo deinterlocutores, la situación comunicativa, la intención del hablante, el medio en que se

produce un intercambio comunicativo, el tipo de intercambio, etc.. (Cabré 1993: 128)

With reference to pragmatics, she says also that:

un lenguaje de especialidad es, desde una óptica pragmática, un conjunto de posibilidades determinadas por los elementos que intervienen en cada acto de la

comunicación: los interlocutores (emisores y destinatarios, con todo el conjunto de


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características que les son propias), las circunstancias comunicativas y los propósitos ointenciones que se propone el acto de comunicación. (Cabré 1993: 129)

From a pragmatic point of view, therefore, the features of each special language depend

on the situation in which communication takes place and on the participants in the

interaction and their aims. General language and special languages are part of the same

natural language, but they differ by virtue of these pragmatic aspects.

1.2 The Italian terminological debate

The same disagreement on the definition of special languages is present also among

Italian academics. In addition to this, an outright terminological controversy arose about

their official designation; depending on the historical period and the various experts who

have studied them, in Italian LSPs have been called: lingue speciali (Cortelazzo),

microlingue (Balboni), sottocodici (Berruto), linguaggi settoriali (Beccaria, Serianni) or

linguaggi specialistici (Gotti). Since the language used in linguistics is a special language

itself and - as we will discuss later on in further detail - terminology plays a crucial role in

LSPs, it seems appropriate to analyse the different definitions given by Italian scholars in

order to get a deeper understanding of our subject of research and finally come to define

the linguistic characteristics of special languages.

A first major distinction is that between lingua and linguaggio. What in English is

language, in Italian has two clearly distinct meanings with their relative distinct

denominations: lingua means language intended as the system of communication used by

a particular country or community; linguaggio, instead, means language in the sense of

the method of human communication, either spoken or written, consisting of the use of

words in a structured and conventional way. Moreover, when we talk about lingua, we


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Cortelazzo, as other scholars we mentioned above, stresses the fact that a special

language is a variety (an organic system) of natural language, a type of language which is

used in a specialized field by a restricted group of speakers in order to achieve a particular

aim; he also stresses one of the most peculiar characteristics of special languages: their

lexicon.

Cortelazzo's concept of lingue speciali derives from Berruto's notion of

sottocodici (subcodes).

I sottocodici (cfr. Berruto 1980, 51-4 e 182-4) sono varietà diafasiche caratterizzate daun lessico speciale, in relazione a particolari domini extralinguistici e alle corrispondenti

aree di significato. La loro funzione e il loro compito sono quelli di mettere adisposizione un inventario di segni per la comunicazione circa determinati argomenti eambiti di esperienza e attività, in modo che questa sia il più possibile univoca, precisaed economica, e quindi più efficace e funzionale riguardo a temi specifici. (Berruto1987: 154)

Sottocodici are thus defined as a diaphasic variety of language characterized by a special

lexicon. According to Berruto, diaphasy is a variation of language on the basis of its

degree of formality, elaboration and technicity (Berruto 2004: 93). Sottocodici – which

are used in specialized areas of activity or experience – are at the top of the scale of

formality and technicality and so their function is to make communication unambiguous,

precise and, above all, efficient. With regard to the varieties of language, Berruto

distinguishes between:

a) lingue speciali in a strict sense, which coincide with the subcodes and are characterized

by a peculiar lexicon and, in some cases, by a distinctive morphosyntax and textuality.

b) lingue speciali in a broad sense – called linguaggi settoriali – which do not have a

proper specialized lexicon but, however, are linked to particular contexts of use and

possess some linguistic peculiarities (Berruto 1987: 155).2

Therefore, the difference between lingue speciali and linguaggi settoriali can be found in

their lexical qualities: while lingue speciali are characterized by a vocabulary composed

2 Berruto also distinguishes a third kind of language variation: jargons, that is to say languages used byspecific groups of people such as, for example, students, young people or gangsters.


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of specialized terms, linguaggi settoriali do not have a specific lexicon or a proper

terminology (Berruto 1987: 156).

Like Cortelazzo, Sobrero too refers to special languages as lingue speciali. He

agrees with his colleague when he says that he chose to use the term lingue because he

wanted to concentrate solely upon verbal communication. In his opinion, nonverbal

elements actually are minor features that occur only in some types of special languages

(Sobrero 1993: 239).

Ogni varietà si realizza attraverso il linguaggio verbale. Eventuali utilizzazioni di linguagginon verbali (uso di formule, simboli, fotografie, ecc.) sono accessorie, e ricorrono solo in

alcune sottovarietà: non sono, comunque, centrali nella prospettiva di questo lavoro. Non parliamo, perciò, di “linguaggi” ma di “lingue”. (Sobrero 1993:239)

For Sobrero, lingue speciali is a general label including highly differentiated language

varieties which differ in their degree of specialization.

Le lingue speciali comprendono varietà molto differenziate. Il criterio forse più rilevante didifferenziazione, insieme intrinseco alla realtà a cui ci si riferisce e alle caratteristiche dellasua nomenclatura, è il criterio della specializzazione. Alcune lingue speciali riguardanodiscipline ad alto grado di specializzazione (come la fisica, l’informatica, la linguistica): lechiameremo “lingue specialistiche” (LSP). Altre riguardano settori, o ambiti di lavoro, non

specialistici (la lingua dei giornali, della televisione, della politica, della pubblicità, ecc.): lechiameremo, più genericamente, “lingue settoriali”. Per tutte manteniamo l’etichettagenerale di “lingue speciali”. (Sobrero 1993: 239)

We can indeed distinguish between highly specialized languages (such as the language of

physics, medicine, economics or law), which have a specific lexis and distinctive

morphosyntactic and textual features and non-specialized languages which are used in

some particular fields (the language of politics, advertising or press) but have no

distinctive lexis or traits and have to borrow terms from special languages proper. This

distinction shows that some progress was made from the vague and heterogeneous list

drawn up by Beccaria, who, in the early seventies, had bounched together the language of

science, medicine, aeronautics, bureaucracy with the language of politics, press, sport,

and advertising and even with the jargons used by students, soldiers or gangsters.


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In a didactic perspective Balboni – who concentrates on the area in which special

languages are used – talks about microlingue scientifico-professionali, which are defined

as:

microlingue (prodotte cioè dalla selezione all’interno di tutte le componenti dellacompetenza comunicativa di una lingua) usate nei settori specifici (ricerca, università) e

professionali (dall’operaio all’ingegnere, dall’infermiere al medico, dallo studente diliceo al critico letterario) con gli scopi di comunicare nella maniera meno ambigua

possibile e di essere riconosciuti come appartenenti ad un settore scientifico e

professionale. (Balboni 2000: 9)

The prefix micro- helps to show that special languages are varieties of language, peculiar

sets of linguistic features within natural language. Analyzing Balboni’s definition, we can

then observe a focus on the fact that special languages are used in specialized educational

(university, research) and professional fields – engineering, medicine, chemistry, literary

criticism, etc. – with the aim of rendering communication unambiguous and help people

who use them to be recognized as members of a particular branch of study or sphere of

activity. This is what differentiates special languages from general language.

Maurizio Gotti, eminent expert in the study of LSPs, has decided to call them

linguaggi specialistici:

La nostra scelta propenderà quindi per l’espressione “linguaggi specialistici”, che piùcoerentemente si ricollega a nostro avviso all’uso che gli specialisti fanno del linguaggio

per riferirsi a realtà tipiche del proprio ambito professionale. Come si può vedere, nellagiustificazione or ora fornita, l’enfasi è stata posta sia sul tipo di utente che sulla realtàspecifica a cui si fa riferimento oltre che sull’uso specialistico che viene fatto dellinguaggio. Le tre entità, infatti, devono essere compresenti perché si ottenga ilmanifestarsi di un linguaggio specialistico. (Gotti 1991: 8)

He justifies his choice explaining that emphasis is placed on the word specialistici:

special languages, indeed, are so peculiar due to the reason that they are used by

specialists who want to refer to elements and events that are typical of their field of

activity. These languages are so special because they belong to a particular kind of users

who carry on their activity in a specialized context and need them in order to

communicate at a specialist level in the most effective way possible. LSPs are not

governed by special rules which differ from the rules of common language; that existing


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between general and special language, actually, is a difference of quantity, in the sense

that the same rules are used in a more or less extensive way depending on the type of

language.3

However, all the definitions and denominations we have just examined have

attracted criticism from other experts. According to Gotti, for example: lingue speciali

should refer to those languages which have proper rules and symbols that are different

from those of general language; the term microlingue evokes the idea of a microcosm

which does not possess all the expressive possibilities that are typical of standard

language; while the term linguaggi settoriali is too vague. Balboni also dwells on the

term sottocodice, which, in his opinion, does not identify the object of discussion

unequivocally. Sobrero, finally, criticizes the denomination lingue/linguaggi specialistici

because it refers solely to the use of these languages by experts who communicate with

other experts in the same field.

This last reflection leads us to consider that, in effect, there are various kinds of

users who wish or need to discuss a specialized subject; we can therefore identify a

number of different types of LSP users, including experts, semi-experts and non-experts.

Bowker and Pearson make a distinction among:

a) experts, who ‘can be considered to be people who have training or experience in the

specialized field in question’;

b) semi-experts, who ‘may include students (i.e. people who are in the process of learning

about the field in question), or experts from related fields who may be familiar with

some of the terms and concepts in question’;

3

I linguaggi specialistici ‘non si differenziano dalla lingua comune per il possesso di regole linguistichespeciali e non comprese nella lingua comune, quanto per un uso quantitativamente diverso di taliconvenzioni.’ (Gotti 1991: 7)


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c) non-experts, ‘people who, for one reason or another, find themselves in a situation

where they must use an LSP with which they are not f amiliar’ (Bowker & Pearson

2002: 27).

This implies that, due to the fact that different LSP users have different levels of

expertise, there are also different levels of LSP communication. Communication can take

place between two or more experts, who tend to use highly specialized language because

they have a common background and do not need any explanation about the terms that

are used in their specific field. But there can also be an interaction between experts and

semi-experts; in this case experts are likely to use the same number of specialized terms

they would while talking with another expert in the same field, but they will accompany

them with an explanation or definition so that semi-experts can understand and learn the

terms and concept of that particular subject. This is what happens, for example, in

university textbooks. The third and last type of communication is that between experts

and non-experts; ‘in this case, the expert will use fewer terms, and may even use general

language words to give simplified descri ptions of a specialized concept’ (Bowker &

Pearson 2002: 28). This is the kind of language that is used, for example, in newspaper

articles of popular science, where the reader is expected to understand the general idea

which is conveyed, not to become an expert in that field.


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1.3 The features of special languages

1.3.1 General features

Although there are many different kinds of special languages, some studies have been

conducted in order to find general characteristics on which all LSPs are based. According

to Sager, Dungworth and McDonald, there are three fundamental criteria that special

languages have to meet: appropriateness, economy and precision. Hoffmann’s list is much

longer and includes eleven characteristics: precision; objectivity; abstraction;

generalization; density of information; conciseness; emotional neutrality; lack of

ambiguity; impersonality; logical coherence; and the use of specific terms, symbols and

figures (Sobrero 1993: 243). In Sobrero’s opinion, these are very general char acteristics

whose meanings can, in some cases, overlap. Moreover, we can rarely find all these

features in the same text and some of them are undoubtedly more important than others.

Sobrero actually thinks that essential characteristics of special languages must be

considered precision and emotional neutrality. Precision implies that every specific term

has one and only one meaning while emotional neutrality means that a special language is

supposed to have no emotional connotations, neither positive nor negative (Sobrero 1993:

243-4). However, in addition to these very general characteristics, special languages also

possess some peculiar lexical, morphosyntactic and textual features.


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1.3.2 Lexical features

Lexis is one of the most peculiar and distinctive features of special languages. When

non-experts read a specialized text for the first time, what immediately attracts their

attention and, at the same time, may render their comprehension of the text more difficult

is the presence of highly specific terms. Taylor mentions this phenomenon when he talks

about lexical density:

Lexical density refers to the proportion of lexical words (words with recognisableconcrete or abstract referents, be they nouns, verbs, adjectives or adverbs, e.g. table,

elephant, intelligence, go, beautiful, quickly) in a text compared to the number offunction words (prepositions, conjunctions, copular verbs, etc.). (Taylor 1998: 38)

As regards LSPs, he adds that

one of the most distinguishing features of technical, ‘term-ridden’ text at a macro-levelis assumed to be the greater than normal level of lexical density and, more particularly,the greater level of ‘term’ density, that is the ratio of technical terms to ordinary lexicalwords and function words. The information load is considered to be heavier, often to theextent of being impenetrable to the non-expert. (Taylor 1998: 38)

However, in our society – always on the move – we have to get used to cope with

a growing number of specialized texts. We continually hear about new discoveries, our

knowledge is constantly expanded and unprecedented events take place every day;

therefore, we need to have at our disposal a number of new words that indicate as many

new concepts and situations. As a consequence of this, terminology has rapidly developed

over the last fifty years and has also become subject of debate about its status of

independent discipline. Whether or not it is considered an independent discipline,

terminology can be defined, using Sager’s words, as ‘the study of and the field of activity

concerned with the collection, description, processing and presentation of terms, i.e.

lexical terms belonging to specialized areas of usage of one or more languages’; he also

adds that

in its objectives ˂terminology> is akin to lexicography which combines the double aim

of generally collecting data about the lexicon of a language with providing information,


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and sometimes even an advisory, service to language users. (Sager 1990 cit. in Taylor1998: 34)

Being concerned with the naming of concepts in specialized domains of knowledge,

terminology is linked with three fundamental notions (described in Routledge

Encyclopedia of Translation Studies): concept, definition and term. Concepts are ‘units of

thought that are used to organize our knowledge and perceptions of the world around

us’(Wright 1997 cit. in Baker & Saldanha 2009: 286); once concepts have been identified,

they need to be described or explained by a definition, which may be considered as the

element that ‘provides a bridge between the concept and the term that is used to designate

it (de Bessé 1997 cit. in Baker & Saldanha 2009: 286).

Terms – the most interesting notion, in my opinion – are the linguistic

designations assigned to concepts. It is very important to underline that,

because terminology deals with specialized domains of knowledge, terms refer to thediscrete conceptual entities, properties, activities or relations that constitute knowledgein a particular domain. Ideally, then, behind each term there should be a clearly definedconcept which is systematically related to the other concepts that make up theknowledge structure of the domain. Moreover, the choice of the term should reflect this

concept effectively and the form of the term should be generally acceptable within thelanguage in question. (Sager 1997 cit. in Baker & Saldanha 2009: 286)

Terms, therefore, must not be confused with words: being appositely conceived to label

concepts contained in LSP texts, terms – at least according to theory – are supposed to be

unambiguous, monosemic, invariable and independent of context; on the other hand,

words, which constitute the lexis of general language, can be ambiguous, polysemous,

collocation-bound and register sensitive (Taylor 1998: 22). In her book about

terminology, Cabré says that specialized terminology is the most peculiar aspect of

specialized texts and its presence is one of the elements that enables us to find the

difference between general language and special languages, as well as among the

different kinds of special languages. Quoting Cabré:

En efecto, la terminología es el aspecto más peculiar de los textos especializados. Las

comunicaciones especializadas, además de contener un determinado número de palabrasfuncionales y léxicas propias del lenguaje común, contienen términos peculiares propios


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de la temática de la que tratan. El conjunto de los términos de un campo, es decir suterminología, presenta la estructura conceptual de esa materia, y cada uno de lostérminos denomina un concepto de la red estructurada de la materia en cuestión. (Cabré1993: 166-7)

As we have seen before, scholars have identified and examined various features

that characterize special language lexis; here is a list drawn up by Gotti:

a) monoreferentiality;

b) lack of emotion;

c) precision;

d) clarity or lack of ambiguity;

e) conciseness (Gotti 1991: 17-63).

Terms are monoreferential in the sense that one term represents one and only one

concept; there is, in other words, a one-to-one correspondence between terms and

concepts. Gotti underlines that ‘nei linguaggi specialistici si privilegia l’aspetto

denotativo, per cui il significato dei termini specifici è desumibile indipendentemente dal

contesto’ (Gotti 1991: 18); that is to say that – since in special languages the focus is onthe denotative (not emotional) aspect of language – what counts is the literal meaning of

the term, which can be understood independently of the context. In this respect, it is

important to underline that a term cannot be appropriately replaced by a synonym, but

only by its definition or by a periphrasis. According to Taylor, indeed, ‘terms should have

no synonyms. Ideally, terms should be defined analytically, fixing their meaning in a

hermetic way in relation to all other associated terms’ (Taylor 1998: 34). He also adds that

Sometimes the lexical item representing the term also exists in the general language, butis considered to be a separate lexical unit. [...] The same lexical item may appear indifferent subject fields, but it will be fulfilling a different terminological job in eachcase, and will be translated correspondingly differently. (Taylor 1998: 33-4)

Every term also has to refer to its concept directly, which implies that euphemisms cannot

be used. Moreover, contrary to the words which constitute the vocabulary of general

language, terms do not express any positive or negative emotion and this makes the tone


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of LSP texts extremely neutral; what is important, indeed, is to provide strong logical

arguments and convey information effectively. In addition to all these practical aspects,

terms may also become a mark whose function is to identify the members belonging to

the scientific community (Balboni 2000: 48).

A further criterion concerning specialized lexicon is that a term should

immediately evoke, through its surface form, the idea that it conveys. This is the case, for

example, of chemical suffixes and prefixes; nomenclature in chemistry is a systematic

method according to which every chemical compound should be given a name from

which an unambiguous formula can be determined. The meaning has necessarily to be

clear and fixed in order to improve comprehension and standardize communication and

practice.

In addition to highly specialized terms, LSPs are characterized also by what

Serianni calls tecnicismi collaterali:

Si tratta di termini altrettanto caratteristici di un certo ambito settoriale, che però sono

legati non a effettive necessità comunicative bensì all’opportunità di adoperare unregistro elevato, distinto dal linguaggio comune. […] I tecnicismi specifici sono indispensabili alle esigenze terminologiche di un certolinguaggio settoriale, mentre i tecnicismi collaterali potrebbero essere sostituiti senzache l’esattezza ne risenta. Ma, paradossalmente, proprio questi ultimi sono quelli di uso

più esclusivo – e quindi in qualche modo più caratteristico – essendo limitati allaristretta cerchia degli specialisti, mentre i tecnicismi specifici possono essere noti ancheal profano che sia coinvolto in un problema di pertinenza settoriale e sia esposto, quindi,a una certa quota dei relativi tecnicismi. (Serianni 2003: 82-3)

In English, we can talk of collocations: two or more words or terms that “go together”,

combinations of words that are more predictable than others (Taylor 1998: 38). Serianni

cites an example taken from Italian medical language:

Un malato dirà che sente (avverte, prova) un forte dolore alla bocca dello stomaco,mentre in una cartella clinica il medico tradurrà questo sintomo più o meno così: “Il

paziente accusa (o lamenta, riferisce) vivo dolore nella regione epigastrica”. (Serianni2003: 82)

Serianni underlines that the choice to use a collocation rather than another in special

language texts does not satisfy specific communication needs: these collocations could be


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replaced by other words without changing the meaning, but they are typical of a particular

field of activity and give specialists the opportunity to elevate the register of their texts.

Specialists usually tend to form their lexicon in a way that is as concise as

possible. However, there are many methods of term formation, which essentially consist

in creating new forms; using existing forms; or borrowing terms from other languages.

In order to create new forms, specialists can make use of: derivation;

compounding; and abbreviated forms. Derivation is the process of creating a new term

by adding one or more affixes (prefixes and suffixes) to a root or to an existing word (e.g.

educational = education + al). Compounds are formed by combining existing words or

lexical elements. Scarpa made a list of the types of compounds: noun + noun; adjective +

noun (and vice versa); present/past participle + noun (and vice versa); noun + preposition

+ noun (Scarpa 2008: 61). Abbreviated forms are created by abbreviating a complex term

or name of considerable length in words (“the Universal Declaration of Human Rights”

becomes “the Universal Declaration”) or by omitting words or parts of the words of

which a term consists (“et cetera” becomes “etc.”). However, we can find also initialisms,

which are formed by the first letters of each of the elements of a complex term or name

and are pronounced letter by letter (“United Nations” becomes “UN”); and acronyms,

which – like initialisms – are formed by the initial components of a complex word, but

are always pronounced syllabically like regular words (“light amplification by stimulated

emission of radiation” becomes “laser”). Cortelazzo observes that initialisms and

acronyms seem to be the only mechanisms that are used exclusively in special languages

(Cortelazzo 1994: 14).

Existing forms can be used to create new terms: a word taken from general

language or a term taken from a special language may become a term which designates a

concept in another special language, but in both cases the term will have a completely


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new and different meaning. Berruto pointed out that general language and special

languages are not completely separate, but they coexist within a same language and there

is a continuous interchange of lexis between them (Berruto 2004: 102). It may also

happen that a part of the discourse can function as a different part of the discourse: for

example, the noun “Google” – name of a popular search engine – originated the verb “to

google”, which means to look something up on the internet.

Terms that are present in special languages of a foreign country may be introduced

into another language. On one hand, they can be direct borrowings, in the sense that they

are introduced in the target language with the same spelling, pronunciation and meaning

they have in the source language; on the other hand they can be morphological or

semantic calques. A morphological calque is a borrowing that preserves the structure of

the source word but uses the morphemes of the target language, that is to say that the

word taken from the source language is translated literally, word-for-word, into the target

language, keeping, obviously, the same meaning (the English “search engine” becomes

the Italian “motore di ricerca”). A semantic calque occurs when a pre-existing word

acquires a new meaning due to imitative language contact with a foreign language (the

Italian verb “realizzare”, which originally meant “to produce, to make” now means also

“to understand”, due to imitative contact with the English verb “to realize”) . It is

sufficient to look at Italian language for information technology to realize how it is full of

calques, but above all terms, taken directly from English language. This is partly due to

the fact that this science develops so rapidly – above all in English speaking countries –

that there is no time to translate terms from the source language into the target language,

but Italian scholars have often criticize this tendency, widely spread in Italian language, to

use foreign words instead of translating it into Italian.


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1.3.3 Morphosyntactic features

Special languages do not have distinctive morphosyntactic features, they use the same

morphosyntax that is used in general language, but we can say that in LSP texts some

morphosyntactic features are more spread than others. The most typical morphosyntactic

features of special languages are: nominalization; premodification; the use of generic

verbs; and the use of passive and impersonal verb forms.

Nominalization is the process of turning a verb into a noun. As we said before,

conciseness and lack of ambiguity are two features that specialists consider to be of high

importance. On the other hand, verbs are perhaps the most complex among

morphosyntactic elements, so it is likely that – in order to render a text as concise and

unambiguous as possible – the authors of specialized texts prefer to use a noun phrase

instead of the corresponding verb phrase (Balboni 2000: 42). Other strategies are

developed in order to increase the conciseness of a technical text. Relative clauses are

often replaced by adjectives, -ing forms or past participles, as well as other subordinate

clauses (adverb clauses of time, place, cause or effect) are replaced by non-finite verb

forms, such as infinitive, present and past participle. Although there are few finite

dependent clauses, the period is usually longer than in general language (Gotti 1991: 84).4

Furthermore, articles and prepositions are often omitted and noun premodification is

widely used. Gotti points out that

Il passaggio dalla postmodificazione alla premodificazione è particolarmente facilitatonella lingua inglese dalle regole sintattiche di tale lingua, che permettono numerose

possibilità di utilizzo di vari elementi della frase in funzione aggett ivale. (Gotti 1991:72)

In English, indeed, different parts of speech can function as an adjective, but the most

frequent phenomenon is the premodification of nouns by nouns, which is productive to

4 Gotti reports the data which Barber (1962) collected from scientific texts; they show that the averagelength of the period is of 27,6 words.


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such an extent that a noun can be premodified even by other five nouns. Technical

writers, however, need to be careful of using too many pre-modifiers with a noun,

because it could introduce confusion as to exactly what is being premodified. In this case,

although the text appears undoubtedly concise, the lack of ambiguity is at risk. Gotti

highlights that

Vi sono diversi casi in cui i sintagmi nominali possono dare origine a diverseinterpretazioni. Per risolvere questi casi di ambiguità, non ci si può affidare a unacompetenza puramente linguistica, ma si deve far ricorso alla propria conoscenzadell’argomento o ad altri elementi del contesto o del cotesto. (Gotti 1991: 73)

Therefore, in order to find the right meaning of a complex noun phrase, it is necessary to

have certain knowledge of the subject matter which is being discussed or try to draw the

right interpretation from the context. Sometimes, in order to facilitate comprehension, the

words that are semantically related are linked by a hyphen.

The increasing importance of the noun has as its consequence the loss of

importance of the verb. The verb tends to lose its value and, as a result, it often functions

as a mere linking verb, like to be or to become. As a matter of fact, the verb which

appears with highest frequency in specialized texts is the verb to be, followed by very

generic verbs such as to take place, to consist of , to depend on, to deal with, to allude, to

refer , etc. Furthermore, there is a high prevalence of the third person, singular, simple

present while other tenses or moods are rarely used. Gotti explains that, in general, the

simple present tense is used to talk about common phenomena, the present perfect tense is

used to talk about events that take place less frequently while the simple past tense is used

to talk about an event which happened only once (Gotti 1991: 93). The choice of a

particular verb form, however, depends also on the type of text and on its subject matter.

Finally, technical writers tend to use passive or impersonal verb forms, since their

aim is to “hide” the agent, the person who does the action, in order to put into evidence

the effects or the results of a certain action or process. Besides giving a more objective


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and neutral tone to the text, passive and impersonal forms also enable the author not to

express their opinion directly; indeed, when the author wants to criticize or express a

personal, independent opinion that differs from the results of someone else’s research or

wants to states something completely new, they use the first person explicitly.

1.3.4 Textual features

As mentioned before about morphosyntactic features, there are phenomena that take place

mainly, but not exclusively, in specialized texts. However, as pointed out by Sobrero, it is

important to underline that we can identify various types of texts – characterized by a

style ranging from a maximum to a minimum of technicality – according to the

extralinguistic context, including, in particular, the receiver of the text, the subject matter

of the text, and the aim of the author. We could also refer, more technically, to the aspects

of the context – or, better to say, of the register of the text – calling them field, tenor and

mode: field refers to the subject field or subject matter of the text; tenor refers to the role

played by the author and the reader/hearer, their relationship (on the base of social class,

gender, age, level of expertise, education, etc.) and their purposes; while mode refers to

the communication channel (spoken or written). By way of example, a university

textbook should contain less specialized terms and more definitions, explanations and

illustrations than an academic article since its aim is to teach students and lay people who

need to acquire a deeper knowledge of the subject matter.

Some authors distinguish the following types of scientific and technical texts:

- specialized scientific texts, such as papers which appear in scientific journals;

- semi-scientific texts, such as graduation theses;


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- popular science texts, such as the articles for the general reader which are published in

magazines or newspapers;

- pedagogical texts, such as secondary school textbooks;

- official texts, such as public discourses.

The main distinction, then, is that between highly specialized scientific texts, whose

readers are experts in that particular field; and popular texts, whose readers are the

members of the general public (Sobrero 1993: 240-2).

The differences among the various kinds of texts can also depend on the culture

within which a text is produced; in this connection, Balboni distinguishes three different

kinds of text structure:

- texts written in Germanic languages are usually characterized by parataxis, which

implies the use of short, simple sentences and coordinating rather than subordinating

conjunctions;

- texts written in Romance languages are characterized by hypotaxis and therefore

favour long sentences with a high presence of subordinate and incidental clauses and a

wide variety of verb tenses and moods;

- Asian and North-African languages produce “spiral” texts, that is to say texts that start

with long preambles and reach the heart of the matter slowly (Balboni 2000: 28-9).

Leaving all these distinctions aside, according to Sobrero, specialized texts must

possess at least three fundamental qualities: clarity, lack of contradictions and coherence

(Sobrero 1993: 251). Every text has its own logical-semantic coherence and includes

linguistic elements which give cohesion to the text itself. Coherence is the systematic or

logical connection which gives sense to a text. Within a text, information is usually

organized according to a temporal, spatial or causal order. Moreover, especially in

English texts, the flux of information follows theme-rheme progression: the topic, what


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the text is about (usually something that the reader already knows) is placed at the

beginning of the sentence and is followed by the rheme or what is being said about the

topic (usually a new piece of information); the rheme then can become the theme of the

following sentence and so forth. A subdivision of the text into chapters, paragraphs and

subparagraphs can also contribute to create a logical order and enables the author to

convey information more clearly. Cohesion is the creation of links within the discourse by

the use of words themselves. Cohesion is achieved both grammatically and lexically:

through conjunctions; through anaphoric and cataphoric reference (usually pronouns);

through ellipsis (the omission of one or more words); through the repetition of words;

through the use of synonyms; and through the use of semantically-related items –

antonyms, hyponyms or other items in the same semantic field (Taylor 1998: 20). The

authors of specialized texts, however, tend to repeat the same word – instead of using

synonyms or semantically related items – in order to avoid every possible ambiguity and

use conjunctions to render the link between sentences explicit and show their reasoning

and logical deductions to the reader.

Some scholars have also drawn up a list of elements that are usually present in all

types of written specialized scientific and technical texts:

- short paragraphs with titles and subtitles;

- footnotes;

- quotations;

- boxes with additional data and information;

- charts, figures, diagrams, tables;

- glossaries;

- index;

- bibliography (Porcelli 1998 cit. in Balboni 2000: 34).


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Finally, some brief considerations are necessary about popular science texts,

whose readers usually are in large numbers and do not have a wide knowledge about the

topic which is being discussed; the features of popular texts will thus be different from

those of highly technical texts, whose readers are experts or semi-experts in that particular

field. In popular science texts, technical terms – distinctive features of highly specialized

texts – are replaced by the corresponding words used in general language or are followed

by a simple, understandable explanation and the meaning or expansion of acronyms and

abbreviations is made explicit. Moreover, authors use a wider range of verbs and tend to

go into greater detail about the concepts they have already mentioned – using more words

and additional information – in order to enrich the text with the kind of redundancy that is

typical of common language. This leads to the conclusion that, depending on the author’s

aim, the context and the text receiver, lexical, morphosyntactic and textual features can

also radically change; therefore, when we analyze a text which deals with a specialized

subject matter, it is important not to focus only on the specificity of the field, but to take

into account all these variables as well.


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language’ (Mellinkoff 1963: 3). He thus decided to restrict his research to a specific

profession, that of the lawyer; to a specific legal system, that of common law; and to a

specific language, English.

However, if we wish to widen our perspective and have a more inclusive

overview, we can refer to Kurzon, who talks about ‘legal discourse’ in general, making a

distinction between the language of the law and legal language. In his opinion, the terms

are not synonymous: the language of the law is ‘the language or the style used i n

documents that lay down the law; while legal language refers to ‘the language that is used

when people talk about the law’. In other words, ‘legal language is a metalanguage used

to talk about the law in a broad sense, and the language of the law is literally just that –

the language in which the law is written’. Just to give you a few examples, the language

of the law is the language used to draw up statutes and contracts, while legal language is

the language used in legal textbooks and judges’ opinions (Kurzon 1997: 120-1) (See

Figure 1). Nevertheless, there is a strong connection between the language of the law and

legal language, in the sense that the language of the law has had an influence on legal

language: ‘the transfer of words, expressions, and possibly syntactic structures that

originate in legal documents to legal language and to talk about the law’ (Kurzon 1997:

121). Indeed, words, expressions and grammatical structures that are typical of laws and

legal documents have become tools which are commonly used also by the authors of

textbooks about the law or by judges who have to pronounce their decisions. This is true

not only of English language and for common law systems, but also for other languages

(Italian, Spanish, French, Arabic, etc.) and legal systems (civil law systems or religious

law systems).


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Figure 1. Legal discourse (adapted from Kurzon)

2.2 Legal genres

From a slightly different perspective, Bhatia identifies various genres within the wider

category of legal writing.

First of all, it is necessary to define what genre is. Bhatia starts from the definition

of genre given by Swales:

Genre is a recognizable communicative event characterized by a set of communicative purpose(s) identified and mutually understood by the members of the professional oracademic community in which it regularly occurs. Most often it is highly structured andconventionalized with constraints on allowable contributions in terms of their intent,

positioning, form and functional value. These constraints, however, are often exploited by

LEGALDISCOURSE

LANGUAGEOF THE LAW

contracts

wills

statutes,conventions,treaties, etc.

affidavits

otherdocuments

LEGALLANGUAGE

written

judgements

textbooks

spoken

formalspeech

witness questioning

other types


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the expert members of the discourse community to achieve private intentions within theframework of socially recognized purpose(s). (Swales 1981 cit. in Bhatia 1993: 13)

He then comments upon this definition, saying that genre ‘is primarily characterized by

the communicative purpose(s) that it is intended to fulfil. This shared set of

communicative purpose(s) shapes the genre and gives it an internal structure’. As a

consequence, the best way to recognize and classify texts belonging to specific genres is

to look at the purpose of the text itself. Bhatia highlights also that, thank to their

experience within a certain specialist professional or academic community, experts

acquire the ability to cope with the structure and the conventions of a specific genre and

‘although the writer has a lot of freedom to use linguistic resources in any way s/he likes,

s/he must conform to certain standard practices within the boundaries of a particular

genre’ (Bhatia 1993: 14). Therefore, a text belonging to a particular genre is expected to

contain certain elements and not to contain others; it must include a minimum of

obligatory elements that, in addition, are supposed to be recognized by those who take

part in the social action. Bhatia finally provides his own definition of genre as ‘an

instance of a successful achievement of a specific communicative purpose using

conventionalized knowledge of linguistic and discoursal resources’ (Bhatia 1993: 16).

Apart from the purpose of the text, there are other factors that may be taken into account

in order to distinguish the different types of genres: the setting or context in which they

are used; the communicative events or activities they are associated with; and the

background knowledge of the participants to that particular situation. These elements,

however, should be rather connected to register, defined by Halliday as ‘variety according

to use’ and characterized by the three parameters of field, tenor and mode (See Chapter

1). As noted by Kurzon, ‘the register is not necessarily the defining feature of a particular

genre of text’; indeed, what makes us decide that a text belongs to a specific genre is its

contents and its purpose.


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As far as legal language is concerned, Bhatia points out that there are a variety of

legal genres. According to his classification, the primary legal genre is legislation, which

serves the main purpose of ruling society by creating and maintaining ‘a model world of

rights and obligations, permissions and prohibitions’ (Bhatia 2006: 1). A further set of

legal genres includes judgments and cases, which can be considered as the applications of

the legislative intentions expressed through legislation. If one the one hand legislative

provision expresses the ideas, intentions and values of a model world, on the other hand

legal judgment has to deal with the events that take place in the real world and that, in

most cases, differ completely from legislators’ original intentions. ‘Judgments and cases

are thus the written records of negotiation of justice, which can be viewed as attempts to

enforce legislative intentions to bring the real world closer to the model world’ (Bhatia

2006: 4). There are two more sets of legal genres: the target genres and the enabling

academic genres. The target genres include a range of professional genres (products and

instruments of legal practice): property conveyance documents, contracts and agreements,

including insurance documents, court case documents, and affidavits of various kinds

(Bhatia 2006: 6). The enabling academic genres include both academic legal genres that

are used to train legal professionals (textbooks, legal problems, moots, and examination

essays) and the genres which serve as interface between the academy and the profession

(legal memoranda, critical essays, problem-solving essays, and pleadings). The function

of these pedagogic genres is to explain and interpret that model world which should be

created through and governed by legislation in light of what effectively happens in our

real world, with the aim of training those professional who will perform legal practice

(Bhatia 2006: 6).


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Figure 2. Genres in legal writing (adapted from Bhatia)

LEGALWRITING

PRIMARYGENRE Legislation

SECONDARYGENRE

Judgements

Cases

Courtroomgenres

ENABLING(PEDAGOGIC)

GENRE

Academic purposes

Textbook genre

Legal problemgenre

Moots

Examinationessays

Professional purposes

Legal

memoranda

Critical essays

Problem-solvingessays

Pleadings

TARGETGENRES

Propertyconveyancedocument

Court case

documents

Clientconsultationdocuments

Affidavits

Agreements andcontracts


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Although all these genres may appear to be very different and independent one

from another, there can be a mutual exchange among them; for example, the author of a

textbook about criminal laws will be undoubtedly influenced by the language used in the

body of laws that relates to crime and will thus use words, expressions and even

grammatical structures that are peculiar to that legal genre.

2.3 Lexical, syntactic and textual features of legal language

Being a special language, legal language is characterized by some peculiar lexical and

syntactic features that distinguish it from standard language. These features are more or

less universal, although, for example, Taylor points out that ‘the distinction between

English legal discourse and ordinary English discourse is greater than that between Italian

legal language and ordinary Italian’ (Taylor 1998: 129).

However, the main grammatical features of legal language are the following:

- Use of technical terminology, which consists primarily of abstract nouns and, in most

cases, has a strong cultural connotation. In spite of the legal language universality

mentioned above, there are a number of legal terms which are tightly connected to the

country, the society and the legal system in which they originate. Taylor cites an

example referring to the difference existing between Italian and British/American

juridical ranking systems: barrister (British English), attorney, prosecutor (both

British and American English with different shades of meaning) compared with the

Italian terms avvocato, procuratore, pubblico ministero (Taylor 1998: 129);

- Frequent use of common words with uncommon meaning. There are words belonging

to ordinary language (action; consideration; prayer ; without prejudice; etc.) which


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acquire a completely different meaning when used by legal professionals (Mellinkoff

1963: 11);

- Frequent use of Latin words and phrases (ad hoc; bona fide; ex parte; quid pro quo;

etc.);

- Widespread use of formal words, which contribute to make the style of this language

‘mystical, sacerdotal, and dignified’ (Mellinkoff 1963: 19);

- Use of archaic terms;

- Use of binomials and multinomials, defined as ‘a sequence of two or more words o r

phrases belonging to the same grammatical category having some semantic

relationship and joined by some syntactic device such as ‘and’ or ‘or’’. Some typical

examples are: signed and delivered ; in whole or in part ; advice and consent ; under or

in accordance with; unless and until ; etc. (Bhatia 1993: 108);

- Deliberate use of words and expressions with flexible meanings (adequate; due; fair ;

approximately; average; etc.) (Mellinkoff 1963: 11) which can adapt to the various

contexts and situations in which legislative provisions must be put into effect;

- Presence of formulaic expressions, such as given that ; in the event of ; I, the

undersigned ; etc.;

- Frequent recourse to nominalization. Noun clauses are actually preferred to verb

clauses since they can be qualified and modified more easily, also by other nouns. This

is the reason way legal documents are often characterized by extraordinarily long noun

phrases;

- Presence of a process called ‘grammatical metaphor’, a concept conceived by Halliday

and shortly def ined as ‘the creation of abstract nouns from other parts of speech’

(Halliday cit. in Gibbons 2004: 287);

- Frequent repetition of actions and concepts;


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- Use of qualifying expressions such as complex prepositional phrases (in pursuance of ;

in accordance with; by virtue of ; for the purpose of ; etc.) and various subordinate

clauses which are ‘syntactically highly mobile’ and can thus be inserted ‘at various

syntactic positions to achieve the desired level of precision and unambiguity’ (Bhatia

2006: 2);

- Use of elaborate hypotactic constructions, such as conditional clauses introduced by

if / should /where;

- Presence of sentences of an average length which is longer than that of sentences

which are produced in ordinary language;

- Prevalence of present and present perfect tenses;

- Impersonal, conventional tone achieved through the use of impersonal and passive

constructions. Passive forms also serve the purpose of ‘thematic topicalization’ since

they enable the author to emphasize whatever draftsmen want to explain or define and,

at the same time, to de-emphasize the actor (Belotti 2006: 235);

- Organization of the text into paragraphs, with an appropriate punctuation consisting of

a frequent use of colons, semi-colons, numbers and spacing;

- Use of intertextual devices which serve the function of: ‘signalling textual authority;

providing terminological explanation; facilitating textual mapping; and defining the

legal scope of a provision’ (Belotti 2006: 235).

As far as legal English is concerned, Mellinkoff mentions also the frequent use of Old

English and Middle English words (therefore, thereof , wherefore, whosoever , etc.) once in

common use, and the use of Old French and Anglo-Norman words which have not been

taken into the general vocabulary.


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2.4 Describing legal language

The lexico-grammatical devices listed above create both a syntactic and semantic

complexity that may render legal language difficult for lay people to understand. Lawyers

and experts, who are well aware of this, reply to this criticism claiming that ‘Complex

concepts require complex language’ (Kurzon 1997: 125). Actually, the function that legal

texts – especially the so-called authoritative legal texts – have to fulfil is not easy at all.

Authoritative legal texts – those that lawyers would define as operative or dispositive –

are written performative texts whose function is that of creating, modifying or terminating

a legal state of affairs (Tiersma 2006: 549). Quoting Gibbons,

The legal system is by its very nature an instrument of control and power, and in ademocratic society this power is ceded to the legal system to maintain order and somedegree of fairness within society. (Gibbons 2004: 289)

It is thus clear that legal documents are extremely important and powerful, since not only

do they serve the purpose of granting rights and imposing obligations to citizens, but they

also enable judges to make a decision which will inevitably have an effect on the life of

one or more human beings. This general nature of legal texts is remarkably similar across

all legal systems, although there can be considerable variations in their detailed structure

and particular use within a certain legal system.

The use of a complex and technical language carries also a social message, in the

sense that it gives power and authority to the person using it. In this regard, Bhatia points

out that this use or overuse of such tortuous, even obscure, linguistic devices is looked at

with suspicion by the non-specialist, who sees no advantage in using it, but rather

considers it as ‘a mere ploy to promote solidarity between members of the specialist

community, and to keep non-specialists at a respectable distance’ (Bhatia 1993: 102).

Given the importance and authority of legal writing, it is of vital importance that

draftsmen specify their intentions as precisely, clearly and unambiguously as possible in


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order to avoid mistaken interpretations which diverge from their original ideas. However,

legislative provisions are enforced in real life situations and therefore have to face the

multiple aspects of human behaviour, which nobody can fully foresee. Gibbons

underlines that

The legal code is not designed to cover a single instance of human behaviour, but rather arange of situations. The main problem is saying neither too much, and thus having anoppressive legal code, nor too little, and so licensing instances of behaviour that areunacceptable (Gibbons 1994: 3).

Not only is legal writing supposed to express legislators’ intentions clearly and

unambiguously, but it also has to try to cover all possible combinations of present – but

also future – conditions and contingencies. In a few words, one of the most important

features that legal discourse must possess is all-inclusiveness, but attention has to be paid

also to the fact of letting the possibility to adapt a rule or a provision to a specific

situation.

At a purely grammatical level, precision and unambiguity in legal writing are

achieved through a variety of linguistic devices: nominalized expressions andqualifications such as long and complex noun phrases and subordinate clauses of various

kinds are extensively used and complex prepositional phrases are preferred to simple

prepositions, which are potentially ambiguous in meaning. Moreover, Bhatia comments

upon the widespread presence of binomials and multinomials, saying that:

The use of binomials and multinomials brings not only precision but also all-inclusiveness in the specification of legal scope. […] Although these expressions areoften viewed as indicators of vagueness and hence lacking in precision in a traditionalsense, they bring all-inclusiveness of a different kind to the provision. The legislativegenre thus appears to be extremely versatile, using not only precision and all-inclusiveness, but also vagueness and indeterminacy for the required specification oflegal intentions. (Bhatia 2006: 3)

Although Bhatia describes legislative writing as ‘highly impersonal and

decontextualized’ (Bhatia 1993: 102), legislative provisions – as we said before – are

meant to apply to real life situations and to be interpreted by a system of courts in the

context of a specific dispute that involves real people. If on the one hand Tiersma


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mentions ‘the tendency of many judges and lawyers to interpret legal texts in relatively

literal or acotenxtual ways’ (Tiersma 2006: 554), on the other hand Wagner talks about

the concept of ‘open texture’, which ‘ leads to various possibilities of interpretation

within space and time’ (Wagner 2006: 733). As a consequence, Tiersma underlines the

importance of precision, clarity and all-inclusiveness in the writing of legal provisions. In

addition to the reasons mentioned above, this is due also to the fact that the procedure to

create and execute an authoritative text is usually formal, long and complex and eventual

additions and changes to a text must be made in an equally formal manner. Therefore,

legal texts tend to be ‘relatively permanent ‘ texts that may remain in force also for

hundreds of years; which implies that it is very unlikely that draftsmen will have a second

chance to modify them or explain their intentions better. So, according to the author,

The drafter aims to place into the text as much information as is needed to interpret it.The ideal is that a legally educated reader will be able to interpret the text withoutrecourse to other information, even if situated thousands of miles away or many yearslater (Tiersma 2006: 554-5).

From a different point of view, Wagner points out that, especially in the Englishlegal system, ‘the written word is of supreme authority, but it is integrated in the English

logic of interpretative reasoning’ (Wagner 2006: 733). This means that, besides literal

meaning, interpretation plays a fundamental role; so, in order to give judges the

possibility to adapt a legislative provision to a particular context or situation, legal texts

must be characterized by a sort of deliberate generality or flexibility, which is usually

defined as ‘vagueness’. In a very interesting contribution, Charnock argues that, in spite

of being a special language – characterized by a high degree of precision and technicality

– legal language constitutes an exception, since it also depends to a great extent on the

interpretation, not only of everyday words and phrases (which can acquire a different

meaning when used in legal language), but also of specialized terminology. Legal

language is therefore exceptional because it is often explicitly concerned with the


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question of vagueness and ambiguity. Although vagueness and ambiguity are occasionally

confused, Charnock makes a neat distinction between the two terms: ambiguity implies

that there is more than one possible interpretation; while vagueness means that there is an

imprecise expression, which usually ‘corresponds perfectly with legislators’ imprecise

intentions’ (Charnock 2006: 248).5 The author points out that vagueness – which may

evoke a sense of uncertainty – must not be thought to constitute a defect in the law; on the

contrary,

in statute law, vagueness often appears to be a deliberate choice on the part of thelegislator, when it is impracticable to give an explicit definition of a common concept,

applicable to all circumstances. The draftsman may then use vague expressions like ‘safesystem of work’ or ‘reasonable belief’, thus inviting the judge to exercise his discretionwithin prescribed limits (Charnock 2006: 248).

There are precise rules concerning interpretation: when the meaning of a word or

expression is clear and unambiguous, then the judge is obliged to apply the law as it

stands, although the result may appear unjust or absurd; instead, if the literal meaning is

ambiguous or obscure, ‘it is acceptable, under clearly defined conditions […], to refer to

surrounding circumstances, legislative committee reports or Parliamentary debates in

order to resolve the ambiguity’ (Charnock 2006: 255) and the final sentencing decision is

up to the judge. However, some scholars claim that there can never be purely literal

interpretation, because the majority of words and phrases have more than one meaning

depending on the context of use. It is common opinion that

it is not possible to give a complete definition of ordinary words, even in their principal,stereotypical sense. Because, things are associated with an indefinite number of semanticfeatures, of which some are at present unknown, and others may never be discovered, alldefinitions must remain forever uncertain. On this view, all meanings require theassumption of a normal background context. (Waismann 1951: 119-23)

This implies that, when a given rule is to be applied, the right meaning can be found only

in reference to context.

5 In confirmation of this, it is sufficient to look up the definition of ‘vague’ and ‘ambiguous’ in the Merriam-Webster

Dictionary: ‘vague’ means ‘not clearly expressed, stated in indefinite terms’; ‘not having a precise meaning’; ‘notclearly defined, grasped or understood’. ‘Ambiguous’, instead, means ‘capable of being understood in two or more possible senses or ways’.


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However, this complexity, which is present at various levels and which we may

now recognize as a typical feature of legal language, has received strong criticism from

both experts and non-experts – lawyers, the public at large and linguists. Therefore, the

Plain English movement has been set up in order to oppose

Documents

An Insight into the Translation of International Legal Language.pdf