Legal English Translation

8/12/2019 Legal English Translation

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LEGAL ENGLISH AND TRANSLATION:

THEORY & PRACTICE

ANNOTATED TEXTS AND DOCUMENTS

Jos Luis Snchez Febrero

DICIEMBRE 2003


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Fecha publicacin: diciembre de 2003

Ttulo: Legal English & Translation: Theory & practice.

Annotated texts and documents

Autor: Jos Luis Snchez Febrero.

I.S.B.N.: 84-8454-310-2

Depsito legal: A-1107-2003

Edita: Editorial Club Universitario Telf.: 96 567 38 45

C/. Cottolengo, 25 - San Vicente (Alicante)

www.ecu.fm

Printed in Spain

Imprime: Imprenta Gamma Telf.: 965 67 19 87C/. Cottolengo, 25 - San Vicente (Alicante)

www.gamma.fm

[email protected]

Reservados todos los derechos. Ni la totalidad ni parte de este libro puede reproducirse o

transmitirse por ningn procedimiento electrnico o mecnico, incluyendo fotocopia,

grabacin magntica o cualquier almacenamiento de informacin o sistema de

reproduccin, sin permiso previo y por escrito de los titulares del Copyright.


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CONTENTS

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

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

1. INTRODUCTION..............................................................................................................91.1. Theories, methods and data in the paradigm of pragmatics............ .............................91.2. Justification of the use of pragmatic research into Legal English..............................101.3. The state of the art: pragmatic research into Legal language.....................................111.4. Legal discourse and its mechanisms..........................................................................12

1.4.1. Legal discourse as discourse of power ............................................. ..................121.4.2. Compliance of legal language with the law in force...........................................17

2. DISTINCTIVE FEATURES OF LEGAL ENGLISH.......... ............................................192.1. The morphosyntactical level......................................................................................19

2.1.1. Repetition of lexical items..................................................................................202.1.2. Syntactical constructions derivative of a simple logical structure ......................202.1.3. Abuse of nominalisations and passive constructions..........................................212.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................21

2.1.5. Infringement of the ordo rectus .............................................. ............................222.1.6. Use of the conjunction "that" with a special meaning ........................................222.1.7. Use of the suffixes -er and -ee ................................................... .........................222.1.8. Frequent gerundive constructions.......................................................................232.1.9. Legal adjectives..................................................................................................232.1.10. Restrictive use of finite verbal forms................................................................232.1.11. Use of such as determiner, unaccompanied by the indefinite article ................242.1.12. Long, complex and equivocal sentences...........................................................24

2.2. The semantical level..................................................................................................252.2.1. The legal vocabulary ....................................................... ...................................26

2.2.1.1. Adverbs, prepositions and conjunctions......................................................262.2.1.2. Archaisms....................................................................................................272.2.1.3. French terms................................................................................................282.2.1.4. Latin terms...................................................................................................282.2.1.5. Endings pertaining to Medieval English......................................................292.2.1.6. Realization of features in an authentic legal document................................30

2.1.1. Repetition of lexical items..................................................................................312.1.2. Syntactical constructions derivative of a simple logical structure ......................312.1.3. Abuse of nominalisations and passive constructions..........................................312.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................322.1.5. Infringement of the ordo rectus ..........................................................................32 2.1.7. Use of the suffixes -er/or (-rix, feminine) and -ee ..............................................322.1.8. Frequent gerundive constructions.......................................................................322.1.9. Legal adjectives..................................................................................................322.1.10. Restrictive use of finite verbal forms................................................................33

2.1.11. Use ofsuchas determiner, unaccompanied by the indefinite article. Saidasnominal premodifier ........................................................ .............................................332.1.12. Long, complex or equivocal sentences.............................................................33


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2.2. The semantical level..................................................................................................342.2.1. The legal vocabulary ....................................................... ...................................34

2.2.1.1. Adverbs, prepositions and conjunctions......................................................342.2.1.2. Archaisms....................................................................................................342.2.1.3. Expressive redundancies coordinated with the use of French terms............342.2.1.7. Juridical concepts ...................................................... ..................................35

2.2.2. The laxity of legal language ...................................................... .........................36

2.2.3. The ambiguity of legal language ......................................................... ...............442.2.4. The ideological component of legal language ....................................................442.2.4.1. Ideology markers.........................................................................................45

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

3. PRELIMINARY ISSUES ............................................................. ...................................473.1. Translation as a communicative process .............................................................. .....483.2. Register. .................................................... ....................................................... .........48

3.2.1. Speech acts ........................................................... ..............................................503.2.2. Discourse meaning .......................................................... ...................................533.2.3. The textual register.............................................................................................53

3.2.3.1. Tenor ............................................... ........................................................ ....54

3.2.3.2. Mode .................................................... .......................................................563.2.3.3. Domain (or field).........................................................................................573.3. Cohesion of legal language in a Law Report.............................................................59

3.3.1. Textuality ............................................................ ...............................................593.3.2. Intentionality and acceptability...........................................................................603.3.3. Informativity.......................................................................................................613.3.4. Information structure .................................................... ......................................613.3.5. Textual relevance ............................................................ ...................................623.3.6. Intertextuality ............................................................. ........................................623.3.7. Cohesion and coherence.....................................................................................623.3.8. Theme/rheme arrangements................................................................................653.3.9. PRACTICAL ANALYSIS OF A SHORT LEGAL ENGLISH TEXT. .............66

4. TEXTS AND DOCUMENTS:.........................................................................................75I. PROBATE LAW ................................................... .......................................................81

II. CIVIL LAW ........................................................... .....................................................79III. CRIMINAL LAW ........................................................... ...........................................89IV. INTERNATIONAL LAW ................................................... ......................................97V. EEC LAW ....................................................... ........................................................ ..109VI. PARLIAMENTARY LAW......................................................................................115VII. CONTRACT LAW.................................................................................................119VIII. HOUSING LAW............................................................... ....................................123IX. CORPORATE LAW................................................................................................139X FINANCIAL LAW.....................................................................................................145

XI. BANKING LAW ................................................... ..................................................151XII. FAMILY LAW .......................................................... .............................................153

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


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7

FOREWORD

This study sets out to analyse the distinctive features of specialist languages, legal English in

particular and aspires to being a modest contribution to the school of linguistic thought that a

few years ago adopted language in use, i.e. pragmatics, as the object of its concern. It is hoped

that the analysis will provide us with the linguistic key to unravel the neverending source of

meaning that all texts involve.

English legal institutions have long been studied by philologists, but not Legal

English itself. It is the recent trend in specialist languages which makes it come to the fore.

Legal language is a unity to be understood as the social image of the jargon or language of the

lite of professionalised power; it is the language of authority.

This work is divided into four distinct parts. In the first one legal English will be

subjected to a sociological analysis so that the conclusions we draw can be inserted into the

social sciences. In the second, the different distintive features of Legal English will be

discussed. In the third, theoretical background will be discussed to tackle translation. In the

fourth, a wide variety of text and documents, most of them preceded by a user-friendly

introduction, is given, together with a large number of annotated footnotes, where translations

are given for the most difficult terms.


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9

THEORY

1. INTRODUCTION

If we consider Morris' (1938) theoretical triangle, we can see that the three branches that

comprise linguistics appear to be summarised at each of its vertices: syntaxis, semantics and

pragmatics.

syntaxis

Semantics pragmatics

For the purpose we have in mind we opt for the definition that considers pragmatics to be thestudy of the relationship between the linguistic sign and its users, that is to say, the study of

how speakers use language to communicate, activating their common background and shared

knowledge in a particular situation. It is precisely at this last vertex that several new linguistic

trends have placed themselves: text analysis, discourse analysis, etc.

These new trends tackle the analysis of suprasentence contextualised units such as

paragraphs. Therefore the discourse/text, the length of which may range from a single word to

an essay, seems to be the new maximum unit.

Discourse and Text are partial synonyms, although for Van Dijk (1985:3) Text is a

theoretical construct that manifests itself in the Discourse (language in use). Between them

there exists the same relationship as between Sentence and Utterance. For argumentative

purposes it is taken for granted that an utterance is the pairing of a sentence and a context.

Pragmatics is concerned with utterance meaning, not sentence meaning (that is

semantics). In other words, pragmatics deals with meaning in context and may be the study of

aspects of meaning not covered in semantics.

1.1. Theories, methods and data in the paradigm of pragmatics

Linguists analysing discourse (language used in communication to make an effect on the

addressee) and text from a pragmatic perspective are interested in the formulation of theoriesand models that help to better understand language use and, in particular, the parameters and

dimensions of discourse and text.


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1. Introduction

10

Consequently, pragmatics, as the new trend in linguistic analysis, is called upon to

play a part when language has been put into use and is addressed to a third party. We call this

discourse.

Pragmatics studies language from a functional point of view, i.e. tries to explain

features of the linguistic structure by making reference to non-linguistic causes. Van Dyck

(1981:6) defines it as the "new interdisciplinary field made up of linguistics, poetics,

psychology and the social sciences, devoted to systematic theory and the analysis of discoursesand of its several contexts".

This is precisely our favourite definition because it comprises the social sciences.

Unless we take as a starting point the premise that discourse expresses society we will not be

able to go on to analyse legal discourse either linguistically or pragmatically. In other words,

by applying linguistics to legal discourse, the latter ingrains itself in the context of the

discourse of the social sciences and the theoretical framework that this involves. Legal texts

are therefore considered communicative processes. According to Van Dyck (1985:2),

discourse analysis has definitely diverted linguistics to the realm of social sciences.

1.2. Justification of the use of pragmatic research into Legal English

If we take legal language to be the sign and society to be the user of that sign, we will be

looking at the pragmatic side of linguistics.

In pragmatics the discovery of regular patterns in the linguistic features has been

deprived of all the attention that it commanded in previous paradigms. Neither deviation from

the norm nor formal analysis of the level features of the language are interesting anymore.

Linguists doing research into pragmatics are no longer attracted by the psycho-socio-

contextual side of discourse. Language and the text in which discourse is embodied have

ceased to be seen as a neutral medium, with only one meaning to be unravelled. Pragmatics, onthe other hand, considers discourse as a rendering of society's ideas and the language used as

not neutral because it shapes ideas.

In every language an ideology is latent, an ideology that carries presuppositions and

that has to be exposed. Since the basis of discourse is the ambiguous natural language, the

ideological load of certain words makes it necessary for the utterance to be explained from a

sociological point of view.

The words we use are already imbued -both in their singularity and in their

combination- with multiple meanings or ideological nuances. At the same time, since this

material of linguistic practice is ideologically saturated, the instance of discourse, the

utterance, is also to be explained sociologically.


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LEGAL ENGLISH AND TRANSLATION

11

In this respect, Fowler (1979:26) points out that rules are instructions to direct

behaviours. Legal language sets out to monitor the behaviour of the addressees whilst hiding

this intention. It is therefore a clear case of the interests of the addressor and the addressees not

being the same.

In a more general sense, the text as a product open to observation and analysis by the

specialist is a discourse that has undergone a social process and the linguist's task is to

investigate the sociolinguistic functions of authentic texts. This line of reasoning will bedeveloped later when we discuss legal language as discourse of power. There we will try to

expose how abusing nominalizations and passives achieves precisely that.

The role that linguistics is called upon to play in Law studies is justified if we

consider it technology (technique making use of scientific knowledge). It is therefore

fundamental to pave the way for other knowledge to enrich it. Atienza (1985:295) mentions

linguistic methods as one of the perspectives of Law studies.

Pragmatics has potential application to all fields with a stake in how utterances are

understood. Fields like those involved in solving problems in communication (e.g. Applied

Linguistics). However, its applicability is much more ample because the possibility arises of

systematic contrastive pragmatics that isolate potential areas of misunderstanding arising from

the learner's assumption that a construction in the language being learnt (e.g. legal English)

will have the same implicatures and presuppositions as some analogous construction in the

native language. The third part of this work will use this as a starting point.

1.3. The state of the art: pragmatic research into Legal language

To the best of our knowledge, very little research has been done in this field in Spain. Only

Alcaraz has shed some light on the subject with hisDiccionario de Trminos Jurdicos (1993),

El Ingls Jurdico. Textos y Documentos (1994),El Ingls Jurdico Norteamericano (2002)andEl Espaol Jurdico (2002).

Abroad things are very much the same. According to Goodrich (1984:173) the only

efforts so far made to describe the grammatical patterns of legal English have merely managed

to corroborate that it is a technical language and a self-contained one at that.

Despite this appalling state, certain research is being done into the variety of legal

English used in trials by jury. Stygall (1994) and Walter (1988) have contributed to this new

trend.


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As regards the second kind of legal documents (i.e. acts) the contrary seems to be the

case. The concern for unambiguity has but disappeared and this could even be thought of as

being done on purpose. Several interpretations could then be made of the text and, why not, a

steady supply of work for lawyers is thus ensured.

Consider the following section taken from the old Spanish Civil Code:

Art. 811. El ascendiente que heredase de su descendiente bienes que stehubiese adquirido por ttulo lucrativo de otro ascendiente, o de un hermano,

se halla obligado a reservar los que hubiere adquirido por ministerio de la

ley en favor de los parientes que estn dentro del tercer grado y pertenezcan

a la lnea de donde los bienes proceden.

Some lawyers have said that up to twenty-seven different interpretations are possible.

This could well be an extreme case of ambiguity.

As far as interpretation is concerned, judges have two criteria at their disposal:

interpretation and construction. "Interpreting" is done in the light of a theory, a belief, the

moral rules of modern societies, the judicial precedent, etc. "Construing" (from the verb "to

construe") tries to explain the textual meaning that a word, clause or sentence has in an

utterance or in a document, after a linguistic analysis.

It is a fact that both English and Spanish share linguistic features. This can enable us

to make a comparative study between the sources of ambiguity in English and Spanish.

Ambiguity in legal Spanish arises from the grammatical construction of the sentences, in

particular, from word order and the way words are connected in the structure of the sentence.

This kind of ambiguity is found in the following:

a) adjectival clauses

b) sentences containing demonstrative, relative and possessive adjectives

c) conditional clauses

Iturralde (1989:40) gives the following examples:

a) "Los letrados y las letradas de la ltima oposicinpodrn jurar su cargo dentro de

un mes"

"de la ltima oposicin" can be a noun complement only of "las letradas" or of "los letradas y

las letradas".

b) "El Secretario del Juzgado citar a los encausados por orden alfabtico y les

asignar un da para que comparezcan. Esto, por ley, debe hacerse con la mayor

celeridad posible"


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1. Introduction

14

"Esto" is ambiguous because, as an anaphora, does it relate to the whole sentence or only to the

fixing of a date for their appearance"?

c) The translation into Spanish of section 64 of the Danish Constitution 1920 reads:

"En el ejercicio de sus funciones los jueces estn

limitados por el derecho. Los jueces no sern separados

de sus cargos sino mediante juicio, ni sern trasladadosen contra de su voluntad, excepto en aquellos casos en

que tenga lugar una reorganizacin de los tribunales".

The phrasing of the sentence does not make it explicit whether the exception to the

reorganization of the courts is only applicable to the rule that judges cannot be transferred to

other posts against their will or also to the rule that they cannot be removed from office

without a trial.

As far as the language used in the writing of statutes and laws is concerned, the

ambiguity arises from the following three:

a) modifiers

b) dual meaning of the conjunctions "or" and "and"

c) punctuation

a') modifiers

Let us consider section 315 of the Communications Act:

If any holder of a license authorizes anybody who is a legally qualified

candidate for a public office to make use of a radio station, he will afford

same opportunity to all those other candidates for said office to make use of

such radio station. On condition that said holder of license shall not haveany power of censorship over what is broadcast as provided in this section.

This section is ambiguous, to say the least. Does the condition that the holder of a

license does not have any power of censorship only overrule the permission he can give to all

the other candidates for that office in the use of such radio station or does it also refer to

anybody who is a legally qualified candidate running for office?

Due to the fact that English and Spanish share some features this ambiguity also

arises in the translation into Spanish:

Si cualquier poseedor de licencia autoriza a cualquier que sea un candidato

legalmente cualificado a un cargo pblico a hacer uso de una emisora de

radio, ofrecer igual oportunidad a todos los dems candidatos a aquel

cargo en el uso de dicha emisora de radio, con la condicin de que dicho


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poseedor de licencia no tenga ningn poder de censura sobre cuanto es

transmitido, segn las disposiciones de este artculo.

b') Dual meaning of the conjunctions "or" and "and"

The Iranian Oil Nationalization Act 1951 included, according to the British,

arbitration clauses that infringed several license agreements concluded before 1919 between

Great Britain, the Oil Company and Iran. The British urged the International Court of Justiceto step in and enforce these agreements. Iran, on the other hand, questioned the jurisdiction of

the Court as arbitrator. It is precisely the final part of one of those clauses which the

disagreement was all about:

Iran recognizes as compulsory ipso factoand without special agreement in

relation to any other acceptance of the same obligation, the jurisdiction of

the Permanent Court of International Justice in any disputes arising after the

ratification of the present declaration with regard to situations or facts

relating directly or indirectly to the application of treaties or conventions

accepted by Iran and subsequent to the ratification of this declaration.

The controversy arose over the antecedent of the terms "subsequent to the ratification

of this declaration". For the British these words were linked to "situations or facts relating

directly or indirectly to the application of treaties or conventions accepted by Iran", thereby

making the jurisdiction of the court on agreements prior to 1932 a matter of course. The

Iranians, on the other hand, held that the clause applied only to "treaties or conventions" and,

consequently, the compulsory jurisdiction of the Court did not apply to obligations agreed

upon before 1932.

c') Ambiguity caused by punctuation signs is closely linked to that caused by the dual

meaning of the conjunctions "or" and "and".

Most of the problems that using punctuation signs gives rise to can be put down to the use of

complex clauses separated by commas at the end of which we find "or" or "and". As a rule of

thumb, we can say that the commas separating clauses amount to "and" if the last terms of thelist is preceded by "and", and they amount to "or" if preceded by "or".

Let us analyse section 7 of the Official Secrets Acts 1920. It was at the heart of

controversy when it was applied to the caseFederal Steam Navigation Co., Ltd v Department

of Trade and Industry (R. v Oakes). The conjunction "or" was substituted in the interpretation

of the Court by "and".

The section reads:

Any person who attempts to commit any offence under the Official Secrets

Acts 1911, or this Act, or solicits or incites or endeavours to persuade

another, or aids or abets and does any act preparatory to the commission of

an offence under the Official Secrets Acts 1911 or this Act shall be guilty ...


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1. Introduction

16

The counsel for the defence submitted a "no case to answer" plea, arguing that his

client had not committed an offence because he was not accused of "soliciting or inciting or

endeavouring..., or aiding or abetting and doing any act preparatory to the commission of an

offence". His plea was dismissed, and the conjunction "and", despite the fact that it was after a

series of alternatives joined by repeatedly using "or", was interpreted as disjunctive.

What the Court did is an example of the two rules of interpretation that judges have at

their disposal ("construction" and "interpretation"). The Court found the grammatically literalinterpretation inconsistent and went on to "interpret" (not "construe") what the lawmaker

presumably intended to say when drafting the law.

This discussion forces us to raise a controversial issue because the general public

feels that the law is only understood by lawyers and that engaging a good lawyer amounts to

being able to accomodate the law to suit your own personal interests. The whole business

would collapse if laws were rigidly drafted so that only one interpretation could be made.

David Pannick (1985:186) says:

This language ... serves various purposes, none of them in the public

interest. It unites lawyers, distinguishing them from laymen. It makes the

law mysterious and incomprehensible to those laymen, thus ensuring a

steady supply of work for lawyers who are needed to interpret the language

they have invented.

This quotation points to three of the harshest criticisms ever made against the legal

world:

a) the feeling of it being a hermetic world

b) the incomprehensibility of the law (and of which legal language is a vehicle)

c) the corroboration that these features are intentional and aimed at lawyers' ensuring

work for themselves

Using symbols that divert conflicts to formal spaces is very effective when it comes

to repressing the individual. By treating legal problems as problems of syntax or of a lexico-

grammatical kind, the law manages to keep the individual in his place. After something has

happened, the law, when giving an account of it, reduces the events to logical terms.

Consequently, legal language, what the law uses to express itself, is the means by

which what has happened is reduced to formulaic statements and dehumanized.

In this respect, Goodrich (1987:167) remarks that reducing conflicts or sociological

relationships to mere facts of legal relevance is a feature of legal argumentation:

The peculiar feature of legal discourse (its specificity) is resident in its

ability to "transform" and "translate" (correct and verify) ordinary language

and ordinary meaning into the closed code of the legally relevant and legally


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valid.

Fowler (1979:40) thinks that the structure of legal English shows an abuse of

nominalizations and passives so that orders and prohibitions are subtly transmitted. The very

fact that it is an order or a prohibition is hidden this way.

Nominalizations are transformations that reduce a phrase to its nucleus, the verb, and

this verb is turned into a noun. It permits ommitting a reference to the persons responsible forthe processes described by the verbs. Something very much like the passive voice, which

permits ommission of the agent. Goodrich (1990:180) puts it this way:

The legal vocabulary is closely tied to a syntax of generalisation; of non-

agentive passives, nominalisations (frequently postmodified or

relexicalised) and thematisations, whose overall tendency is that of

establishing distance and impersonality. The syntax of generalisation deletes

the context and specific identity of the agents of the processes described and

judged.

We could even say that the asepsy of legal language has a divine origin. Just as

religious discourse is founded upon the precept that "God made Man and the Word in his own

image", legal discourse has tended to presuppose that the law makes the individual according

to the model of sovereign discourse.

By "sovereign discourse" we understand "the reasonable man", a hypothetical person

used in law to convey that the legitimacy of a conduct must be judged according to the patterns

of behaviour accepted by society. This "reasonable man" is also colloquially known as the

"man on the Clapham omnibus".

1.4.2. Compliance of legal language with the law in force

The peculiar feature of legal discourse is that it 'transforms' or 'translates' ordinary language

and ordinary meanings into the closed code of the legal system.

Crystal (1969:214) points this out:

...This points to another characteristic of legal language that sets it apart

from most varieties: it is a form of language that must always behave in

conformity with the body of rules -the law- of which it is the vehicle. Certain

things must be said in certain ways for fear of seeming to misrepresent the

law, and before they may be said differently the law itself must often

consent.


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2. DISTINCTIVE FEATURES OF LEGAL ENGLISH

The analysis of the distinctive features that add up to the characterisation of the discursive

meaning of legal English can be made by dividing it into the morphosyntactical and the

semantical levels.

2.1. The morphosyntactical level

To learn the law is in large measure to learn a highly technical and frequently archaic

vocabulary, a professional argot which makes frequent lexical use of specialised legal

meanings, medieval English and French, as well a pervasive use of Latin terms and phrases.

Much legal writing is by no means spontaneous but is copied directly from 'form

books', in which established formulae are collected. It is a form of language which is about as

far removed as possible from informal spontaneous conversation. It is essentially visual

language, meant to be scrutinised in silence. Anyone who tries to produce a spoken version islikely to have to go through a process of repeated and careful scanning in order to sort out the

grammatical relationships which give the necessary clues to adequate phrasing.

In early legal documents their contents were usually set down as a solid block of

script whose long lines extended from margin to margin across the parchment on which they

were written, and there were no patterns for spacing or indentation to indicate either the

sections of which a document was made up or the relationship between them. Various reasons

have been suggested for this, including economy in the use of parchment and an intention to

defeat fraudulent deletions and additions.

The sentences which went to make up a document were usually long. When legal

documents came to be printed, compositors, in keeping with the practices already established,

thought that legal language should have a visual coherence interrupted as little as possible byfeatures that could be regarded as not forming an essential part of the language itself.

Therefore, long, thinly punctuated sentences are the rule rather than the exception.

This lack of punctuation is perhaps one of the first things that comes to mind in

connection with printed legal language. Punctuation attempted to do no more than show in a

crude way the points in a piece of written language at which anyone reading it aloud ought to

pause. A public performance which would necessitate accurate reading aloud was the last thing

likely to happen to legal documents, whose chief function was to serve as written records, and

hence the thinnes of their punctuation.

The tendency nowadays is to recognise the usefulness of punctuation as a guide to

grammatical structure, although only a limited range of punctuation marks is allowable in legalEnglish.


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2. Distinctive features of Legal English

20

In most written legal language, in which documents are divided into sentences, the

sentences tend to be extremely long. It is a characteristic legal habit to conflate, by means of an

array of subordinating devices, sections of language which would elsewhere be much more

likely to appear as separate sentences. As a result, legal sentences are usually self-contained

units which do not need to be closely linked either to what follows or to what has gone before,

the cotext.

2.1.1. Repetition of lexical items

Apart from the occasional introductory adverbial, almost the only formal linkage to be found

between the sentences is the repetition of lexical items. The habit is to be expected in a variety

which attaches so much importance to exactness of reference. In almost all other varieties too

much repetition is considered tiresome. It is often reduced by the use of anaphora, in which a

substitute word refers back to a lexical item that would otherwise have needed repeating. The

trouble is that they can often look as though they are referring back to an item other than that

which the writer had in mind, thereby producing ambiguities which would be quite intolerable

in a legal document.

Pronoun reference and anaphora are virtually done away with, the most notable

omission being IT. This pronoun turns up only in formulaic constructions such asIt is agreed

as follows. The following extract from a divorce petition bears out what we have stated so far:

"The Respondent has behaved in such a way that the Petitioner cannot

reasonably be expected to live with theRespondent"

2.1.2. Syntactical constructions derivative of a simple logical structure

Statements are very often of a characteristic type which is reflected in equally characteristic

sentence structure. Reduced to a minimal formula, the great majority of legal sentences have an

underlying logical structure which says something like 'if X, then Z shall be Y" or, in the

alternative, "if X, then Z shall do Y". Every action or requirement, from a legal point of view,

is dependent on a set on conditions which must be satisfied before anything at all can happen.

The following covenant, taken from a rental agreement, is a case in point:

"If Tenant vacates the premises without first furnishing said notice, Tenant

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


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2.1.3. Abuse of nominalisations and passive constructions

An excessive use is made of nominalizations and passives. This abuse is what makes us label

legal language as "neutral" and "aseptic". Consider the following extract from a Scots Law

Report of 29 October, 1991:

"Where a party who apprehended that an action was shortly to be raised,against him in a foreign country sought interim interdict to prevent that

being done, and yet in the event of such an action it would be open to him to

argue forum non conveniens in the foreign court, interim interdict would be

refused"

We also include here the use of rare passives:

"...but if resort is to be had..."

Let us pay special attention to the following sentence. There is a very marked

tendency to use postmodifications in the nominal groups. The long complicated nominals that

result are noticeable by contrast with the verbal groups, which are relatively few. There is also

a fondness for using non-finite clauses (infinitives, gerunds and participles, both present and

past), which in many other varieties would probably be replaced by postmodifiers of nominal

elements (ie finite relative clauses).

"the payment to the Owner of the total amount of any instalments then

remaining unpaid of the rent hereinbefore reserved and agreed to be paid

during the term and the further sum of ten shillings..."

2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses

As stated before, this use rules out relative clauses introduced by the pronouns which, who andthat.

Let us see this feature at work once again in the following covenants from the same rental

agreement:

"Tenant will pay the rent at the timespecified"

"Both Landlord and Tenant waive trial by jury in connection with any agreement

contained in the rental agreement or any claim for damages arising out of the

agreement or connectedwith this tenancy"


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2.1.5. Infringement of the ordo rectus

Another source of oddity is the insertion of post-modifying elements at precisely those points

in a group at which they will most clearly give the required sense. The need to achieve

precision or avoid ambiguity always takes precedence over considerations of elegance, and

unusual sequences are, as a result, common:

"... and willwithin seven days after any premium in respect of such insurance shall

become due deliverreceipt for..."

2.1.6. Use of the conjunction "that" with a special meaning

Legal English is the only variety in which the relative pronoun "that" (acting as antecedent)

requires a periphrasis in the translation into Spanish ("en el/la que se afirma que; en el sentido

que"):

"An objection was taken thather application was bad in point of law":

Se le acept una objecin en el sentido de que su demanda careca de fundamentos

jurdicos.

2.1.7. Use of the suffixes -er and -ee

In general, the ending -or/-errefers to somebody who grants something, that is, it is the active

point of view of the action; its counterpart, the passive subject, usually ends in -ee.Alcaraz

(1994:78), however, points out that "mortgagor" (deudor hipotecario) is the person whoborrows money, giving a property as security, whereas "mortgagee"(acreedor hipotecario) is

the person or company which lends money for someone to buy a property and takes a

mortgage of the property as security. Seemingly an exception to the rule, it is not because the

active point of view is taken from the act of mortgaging, something done by the private

individual.

"...made when thegrantorwas not indebted..."

"And although the gift be not made known to the donee"


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2.1.8. Frequent gerundive constructions

By this we mean the type of participial clause introduced by a subordinating participle

(present, perfect or past). Its translation into Spanish requires a paraphrasis. The meaning can

be temporal or causative.

If the verb in the clause is dynamic, for example "reaching", the two clauses, both themain and the adverbial one, are linked temporally:

Reaching the river, we set up camp:

Al llegaral ro, montamos el campamento

If, on the other hand, the verb in the clause is stative, for example being, the two clauses

are linked causatively:

"...and although the gift be not made known to the donee, being for his benefit"

"...y aunque la ddiva no le conste al donatario,si es para su beneficio"

2.1.9. Legal adjectives

Zero determination is the rule and the few exceptions (like reversionary bonus) seem to be

formulaic expressions.

Alcaraz (1994:77) says:

Aparte de los adjetivos legal, illegal, equitable, etc, que son lgicamente frecuentes

en los textos y documentos jurdicos, hay otros, pertenecientes al lenguaje estndar,entre los que destacamos: absolute, qualified, constructivey actual".

It is not difficult to see why so few adjectives are used, no doubt in keeping with the

general inclination to be specific.

2.1.10. Restrictive use of finite verbal forms

The verbal groups used in legal language are notable for the high proportion of non-finites and

for the number of finites that are of the type modal auxiliary (usually SHALL) + BE + pastparticiple.


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SHALLis invariably used to express what is to be the obligatory consequence of a legal

decision, and not simply as a marker of future tense, its main function in other varieties.

2.1.11. Use of such as determiner, unaccompanied by the indefinite article

This is of course one of the most readily recognisable marks of legal language. Its use is

presumably prompted by the desire to achieve precision of reference, which is also behind

another feature of legal style, the use of saidin premodifying function, and the use of sameas

head of the noun clause.

All these features can be checked in the following extract from an indenture (a private

contract):

"it shall be lawful for the said Lord Stonebreaker to keep on foot or effect such

insurance and charge the costs thereof with interest at the rate of eight per cent per

annum to the saidSir Fireater and the sameshallbe considered to be included in

this security"

We can find here:

a) a double passive construction:shall be considered to be included

b) infringement of the ordo rectus: ... and charge the costs thereofwith interest at the rate

of eight per cent per annumto the said Sir Fireater

c) only one typical legal adjective: lawful

d) exclusive use ofshallas the only finite verbal form

e)suchused as a determiner, unaccompanied by the indefinite article

f)said in premodifying function

g)sameas head of the noun clause

2.1.12. Long, complex and equivocal sentences

Sentences usually stand alone and are self-sufficient. They are autonomous units and do not

need to be linked to what has gone before or what follows. Let us consider the following (a

single sentence taken from an issue of shares by Rolls Royce!):


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"You agree, as a collateral contract between you and the Secretary of State which

will become binding on posting to, or (in the case of delivery in any other manner)

receipt by, a receiving bank of your application and in consideration of the Secretary

of State agreeing that he will not, prior to 11th May 1987, offer any of the Shares to

any person other than by means of one of the procedures referred to in the

Prospectus, that your application cannot be revoked prior to 31st May 1987 and if

you are requested to do so at any time in writing within 21 days of the date of such

request, to the person making it, the name(s) and address(es) of any person(s) forwhose benefit your application was made or who would, if all the Shares for which

your application is accepted had been suscribed, be, to your knowledge, at any time

or for any periods prior to such request interested in such Shares for the purposes of

section 212 of the Companies Act 1985"

2.2. The semantical level

We will base our study of this on the following:

a) vocabulary

b) ambiguity

Natural language is at the heart of legal discourse, and it is a language fraught with

polisemia. Discourse meaning is conditional on semantic appropriation, that is, the power of

the legal text to define its own, very narrow, conceptions of meaning, and simultaneously to

exclude alternative meanings and contexts. A case in point is the verb "to provide" (and its

nominalization "provision"). In general English they mean "to supply" and "supply",

respectively; in legal English only they mean "to stipulate" and "stipulation").

It is also a fundamental premise in legal discourse that conflicts are dealt with as if they

were problems of syntax and the points of law used in judicial decisions usually take the shapeof remarks loosely related to several passages and sections of the laws that are applicable.

The following two passages corroborate this reasoning:

"The applicant, Mrs Wendy Smith, was employed by wholesale dealers in

pharmaceutical products. She was paid a salary of 50 pounds a week. She

discovered that a man (who had left) had previously been performing her task. He

had been paid 60 pounds a week. She took proceedings under our English statute,

the Equal Pay Act 1970 (as amended by the Sex Discrimination Act 1975)..."(Court

of Justice of the European Communities, case 129/79)

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

Court finds that Iran, by committing successive and continuing breaches of the

obligations laid upon it by the Vienna Conventions of 1961 and 1963 on Diplomatic


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and Consular Relations, the Treaty of Amity, Economic Relations, and Consular

Rights of 1955, and the applicable rules of general international law,has incurred

responsibility towards the United States..." (International Court of Justice, case of

the Consular and Embassy staff of the US in Tehran, 24 May 1980)

2.2.1. The legal vocabulary

2.2.1.1. ADVERBS, PREPOSITIONS AND CONJUNCTIONS

The range of vocabulary that may be encountered in legal language is extremely wide since

almost anything can become the subject of legislation. But lawyers have developed marked

preferences in their choice of words. It is especially noticeable that any passage of legal

English is usually full of archaic words and phrases of a kind that could be used by no one else

but lawyers.

Among them, those words which consist of an adverbial word of place to which a

preposition-like word has been suffixed. They are used to refer clearly to specific times and

places in and around documents.

Here means this document - the one you are reading

There means that document - the one which is being discussed, not the one you are

reading

What follows is a comprehensive list, together with a definition:

HERE

Hereafter : in the future - from the production of this document on

hereby: resulting from this document

herein: appearing somewhere in this document

hereinafter: listed later in this document

hereof: relating to this document or part of it

hereto: mentioned in this same section of this document

heretofore: previous to the production of this document

hereunder: following this document


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herewith: accompanying this document

THERE

thereafter: from the production of that document until now

thereby: resulting from that document or decision

therefore: for that reason or purpose

therein: appearing somewhere in that document

thereinafter: listed later in that document

thereinbefore: mentioned previously in that document

thereinunder: following that document

thereof: relating to that document

thereto: mentioned in that section of that document

theretofore: in the time before that document was produced

therewith: accompanying that document

All these are useful for the kind of precise references, especially to the document or its

parts, and to the contracting parties- which lawyers find it so necessary to make; but again it

seems possible to see in the almost ritualistic repetitiveness more than a little reverence for

tradition.

2.2.1.2. ARCHAISMS

Archaisms nearly always seem to add a touch of formality to the language in which they occur,

and in this respect those found in legal documents complement the extremely large proportion

of words which, even though in current use, seem highly formal in their effect: duly, deem,

expiration, termination.

Documents

Legal English Translation