Legal Translation and Terminology
Chapter 4
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Terminology – definitions
Characteristics of terms
Legal terms: synonymy, polysemy, metaphor
Legal concepts
Legal families
Modernisation of legal terminology
Importance of legal translation
Legal translation and comparative law
Types and status of legal texts
Goal of legal translation
Legal translator’s competences
Drafting rules
Terminology
 1) the set of practices and methods used for the collection,
description and presentation of terms
 2) a theory required for explaining the relationship between
concepts and terms
 3) a vocabulary of a special subject-field
Terminology
 A) subject-area terminology
 B) vocabulary of scholarly research
 C) lexical units of general language
Terms
 Terms should be :
 Accurate
 Concise
 Easy to spell and pronounce
 Allow the formation of derivatives
 Linguistically correct
Terms
 Should be monosemous (having 1 meaning) and
mononymous (consisting of one word), and a member of a
term system
Legal terminology
 A) “pure” law terminology (estoppel)
 B) law terminology found in everyday speech (title ‘right’)
 C) everyday words assigned a special meaning in a given legal
context
Everyday words assigned a special meaning
in a given legal context: example
 Welfare of Pigs Act 1998 – definition of a pig for the
purposes of that law: “pig means an animal of the porcine
species of any age, kept for breeding or fattening”
 If a pig fails to fulfil either of the two qualifying conditions,
its owner stays outside the scope of that law
English legal terms
 Multi-word expressions and phrases
 Polysemy
 synonymy
Legal concepts
 Law – a social phenomenon
 Legal rules differ in different legal orders
 Legal concepts also differ
Legal concepts
 “…Legal science differs from the natural sciences: the laws of
nature are the same everywhere. The difference is evident in
the relationship between language and its object. The
language of a natural science cannot change reality: if a plant
is described wrongly or inaccurately, it remains as it was
none the less. But if the legislator, in a new law, describes a
legal phenomenon otherwise than in an earlier law, then the
legal reality changes: law only exists in human language”
(Brækhus 1956)
Legal concepts
 Where the concepts of two legal systems differ, the semantic
domains of legal terms do not correspond with one another
 Historical interaction between societies: legal concepts of
Sweden and Finland _ very close, since Finland formed part
of the Kingdom of Sweden for over 6 centuries; England and
the US: English law was applied in the former colonies
Legal families and conceptual kinship
 Common law
 Civil law
 European law
Common law and civil law
 Civil-law system developed in medieval universities on the
basis of Roman law; its divisions and concepts formulated
first on the basis of substantive law founded on a number of
abstract principles
 Common law: formed in the courts of England following the
Norman Conquest; the conceptual apparatus – defined by the
requirements of medieval judicial procedure
Common law and civil law
 Common law – placed on judicial procedure; English judges
– higher status than their continental counterparts
 European law: continuingly unifying the legal orders of the
Member States
The Legal System of the European
Communities
 A legal system of its own, partly superimposed on those of
Member States
 The founding states of the early Communities - part of the
civil-law legal family, the legal system of the European
Communities also based on civil-law foundations
The Legal System of the European
Communities
 French law – considerably influenced the principles and basic
concepts of Community law
 Methods of the Court of Justice - essentially based on those
of the French Conseil d’Etat; the institution of commissaire
du gouvernement served as a model for that of AdvocateGeneral
The Legal System of the European
Communities
 German law: principle of proportionality and that of
reciprocal loyalty and trust (in performing contracts);
 The role of academic legal writing when the ECJ takes its
decision – a feature of the German legal tradition
The Legal System of the European
Communities
 English influence: doctrine of precedent (stare decisis)
develops in harmony with common law traditions in ECJ;
 The style of judgments: in 1950’s and 1960’s, ECJ judgments
- stylistic copies of French judgments, esp. in their
construction and disposition (e.g. the signal words attendu
que); over time, the style of the Court became more
independent: construction of its judgments does not come
directly from any legal order of Member States
The Legal System of the European
Communities
 A hybrid, mixed law in which legal traditions of Europe
increasingly intertwine
 Methods of interpretation of ECJ: a mix of different legal
traditions
 Interaction between the Community institutions and
national legal orders in a way not directly borrowed from any
legal order
The Legal System of the European
Communities
 An entirely new type of legal system, with its own
characteristics, developing side by side with civil law and
common law; applies to legal systematization and to doctrine
relating to sources of law and to individual institutions and
principles
The Legal System of the European
Communities
 New elements - partly evident in the form of new
terminology, partly hidden behind established terms coming
chiefly from France; these old terms possess a new
conceptual content in Community law
Characteristics of legal terminology:
Legal Concepts and Legal Terms
 Concept: mental representation of an object
 Term: the technical designation of a concept
 Term – verbal expression of a concept belonging to the
conceptual system of a LSP; may be a single word, compound
or a phrase (e.g. “good faith”, “free movement of persons”)
Characteristics of legal terminology:
Legal Concepts and Legal Terms
 Terms – usually nouns
 Referent – entity that exists physically or metaphysically and
fulfils the conditions imposed by a concept (e.g. in France,
175 referents of the concept of “general court of first
instance (juridiction de droit commun du premier degré de
l’ordre judiciaire, expressed by the term “tribunal de grande
instance”; by contrast, only 1 referent connected to the
concept expressed by the term “Cour de cassation”)
Characteristics of legal terminology:
Legal Concepts and Legal Terms
 Legal terms:
 not imaginable without a legal relationship;
 can be used in other contexts, but have a particular meaning
in certain legal relationships;
 express legal facts in cases where the features “to which the
Law attaches effects answer to the conditions that the Law
imposes and thus to a legal notion that confers on them a
meaning with regard to the Law (e.g. “error”)
Characteristics of legal terminology:
Legal Concepts and Legal Terms
 Legal term can be a word or phrase that only appears in legal
language (“abuse of process”, “criminal responsibility”), or a
word or phrase that forms part of ordinary language but has a
special meaning in legal language (“consideration”)
Synonymy: 1 concept – 2 terms:
examples
 Sole proprietor (US) – sole trader (UK)
 Articles of association (UK) – Articles of incorporation (US)
 Memorandum of association (UK) – by-law (US)
 Corporate law (US) – company law (UK)
 Tort (English) – delict (Scottish)
Implied terms and concepts
 What happens when a common law term e.g. punitive damages
is translated as condamnation à dommages et intérêts punitifs or
Strafschadensersatz – unknown in the French or German legal
systems
Implied terms and concepts
 E.g. Verhältnissmässigkeitsgrundsatz introduced as principe de
proportionnalité into French-language legal acts within the EU
although it does not exist in the French terminology
Emergence of new legal-linguistic units
 A new tort termed intentional infliction of emotional distress –
added to the list of common law torts
 Japanese law distinguishes between injury to honor and injury
to reputation
 Understanding of legal terminology - based upon
institutionlized creation and interpretation of legal concepts
and terms, mainly by the legislator and by courts
Classification of terms: technical,
scientific, everyday words
 Technical: promissory estoppel, renvoi, certiorari
 Meaning different from ordinary language: consideration, equity
 Preferences: warranty preferred in US, guarantee in UK;
antitrust legislation (US), competition legislation (UK),
corporation (US), company (UK)
Scientific terms introduced into law
 Terms from other sciences introduced into statutes
 Do they retain their meaning?
 In the materials accompaning preparatory work in the
Parliament, interpretive guidelines, definitions and other
information is contained which allows the interpretation of a
concept when it becomes part of a statute
 The materials may introduce a specific meaning, broader or
narrower than the scientific one
Scientific terms introduced into law
 Medical terms e.g. alchoholic or drug addict may be
understood in law differently
 The scientific term becoming a legal term may acquire a
different meaning
Polysemy
 Term – a verbal expression of a concept
 Legal terms – often characterized by polysemy: depending
on context, a single term can express several concepts
 Polysemy - “allows the vocabulary of the language to transmit
the infinitely varied ideas that arise in social life” (Vlasenko
1997)
Polysemy
 Rule rather than exception
 Legal orders are continually changing over time
 Example: ius civile
Ius civile
 Ancient Rome : referred to classical Roman law as opposed
to ius honorarium on the one hand, and, on the other, to the
law applied to Roman citizens (as opposed to ius gentium)
 In Byzantium, in medieval Europe and at the beginning of
modern times – referred to Roman law and to temporal
State law, as opposed to the divine law (ius divinum) or
natural law (ius naturale)
Ius civile
 In medieval Europe, legal science focused on the study of
those parts of the Corpus iuris civilis dealing with legal
relationships between private individuals; a branch of law
relative to relations between private individuals
Ius civile
 In English:
 Roman law
 Continental law
 Private law
Ius civile
 In Germany: Zivilrecht synonymous with Privatrecht
 In France, commercial law is not included in civil law
Orderly and disorderly polysemy
 Orderly (consistent) polysemy: a legal term has two or three
closely connected meanings; often: the concepts expressed by
a term are hierarchical or partly overlapping
 Example: common law: 3 meanings in English; misleading
from the international standpoint
Common law
 English common law – different from the pan-European ius
commune
 English common law – developed by English courts
 Ius commune – law developed in European universities in the
Middle Ages and early modern times
Consequences of polysemy
 When p. occurs, interpreters of the text should be able to
assign to a term the meaning appropriate to the context
 Often – easy to distinguish between different meanings;
sometimes – impossible to tell what is the correct
interpretation of the text: ambiguity
Synonymy
 Opposite to polysemy: two or several terms express the same
concept
 E.g., where magistrates arrange an inspection on the scene,
legal French uses: “visite des lieux”, “transport sur les lieus”,
“descente sur les lieux”, or “vue des lieux”
 Synonymy – a common feature of legal terms
Synonymy
 In legal languages with several layers of language, such as
English, this is especially frequent
 Legal English often expresses the same concept by an AngloSaxon term, a French term, and a Latin term
Synonymy
 Partial synonyms – misleading; mistakes and
misunderstandings are possible where the semantic fields of
two terms stand side by side
 E.g. judge and magistrat in legal French
Towards modernized legal terminology
 Modernization – replacing outmoded lexical units by
contemporary ones, creation of neologisms and semantic
change, the modernisation of legal language through plain
language rules based on readability or understandability
Towards modernized legal terminology
 Replacement of the term writ of certiorari by certification does
not increase the understanding although it modernizes the
language
 His conviction and sentence were affirmed on direct appeal and
certification was denied
 - understandable to laypersons only if the procedure is
explained
Certiorari
 A writ that a superior appellate court issues in its discretion to an
inferior court, ordering it to produce a certified record of a particular
case it has tried, in order to determine whether any irregularities or
errors occurred that justify review of the case
Updating legal terminology
 Lord Woolf’s reforms (1999)
 Writ – claim form
 Pleading – statement of case
 Plaintiff – claimant
 Minor/infant – child
 In camera – in private
 Ex parte – without notice
 Guardian ad litem – litigation friend
 Mareva injunction – freezing injunction
 Anton Pillar order – search order
Dissolution of terms or concepts?
 Legal terminology usually followed the conceptual
framework of the Roman law
 Legal maximes: Lex retro non agit (recent origin)
 New tendency: the term does not rigidly correspond to a
concept any more
 Different terms in different linguistic forms reflect the
content of a concept
Dissolution of terms or concepts?
Examples
 Example: piercing the corporate veil (US); lifting the corporate veil
(UK); levantamiento de velo (Sp); Durchgriffshaftung
 A rule permitting veil-piercing in undercapitalized firms can be
seen as a penalty default that creates an incentive for firms with low
net capital to disclose that fact when contracting with potential
creditors, so that the creditors will be estopped from piercing
Vagueness of legal terms
 Reasonable man – a standard in common law to determine the
appropriate interpretation of party intent in the contract law
or the appropriate action in tort law
 Clinical negligence: reasonable doctor
 Reasonable bystander – synonymous with the reasonable third
party (contract formation)
 Reasonable person
Dissolution of terms or concepts?
Examples
 The terms piercing the corporate veil and reasonable man are
dynamic; their linguistic status varies and depends upon the
structural (textual) circumstances of use
The future?
 Future legal language – more descriptive than conceptual and
closer to ordinary language
 More guidelines with reference to the linguistic aspects of
creation and application of law
Problems
 Modernized legal terminology – tendency to refer to
ordinary language
 US state securities laws referred to as blue sky laws; derive
from a court decision which described the purpose of
securities legislation as aiming to prevent “speculative schemes
which have no more basis than so many feet of blue sky”
Legal Thesaurus
 Electronic data processing allows for broad lexical corpus to
be included into a lexicon
 Legal thesaurus – includes not only lexical material but also
samples of context, example of use, phraseological units,
texts and doctrinal commentaries
Legal Thesaurus
 Traditional lexicographical approaches – based on terms
 Approaches based on concepts (mental abstractions)
 Lexicographic works based on legal concepts may map the
whole conceptual field which includes the typical terms used
in it
 Legal translators need dictionaries
Legal pragmatics
 Depicts how the legal concepts are used as a structural
background for the legal argumentation
 Legal language – more than terminology; becomes operative
in speech acts
Legal translation
(S. Šarčević)
 Legal translators – in high demand today due to
globalization, regionalism and increased translation at
national level
High demand for legal translators
 Globalization – increased mobility of people, goods, services
and capital
 International law and international organizations
 International trade law
 International dispute resolution
High demand for legal translators
 Regionalism – development of regional markets and
harmonization of national laws
 EU law
 National level - translation in bilingual and multilingual states
 Right to use one’s langage before the courts
Specialized translation
 Transfer of specialist knowledge from a source text into a
target text by a translator who ideally has “the knowledge,
the competence and the recognized status of an expert”
Legal translation
 More than the “transfer of specialist knowledge”
 Most legal texts produce legal effects
 The success of legal translations – measured by their
interpretation and application in practice, esp. by the courts
 A translation – successful only if it accurately conveys the
specialist knowledge in the source text and produces the
intended legal effects in practice
Legal translation
 Unlike texts of natural sciences, legal texts are not based on a
universal system of knowledge but derive their meaning from
a particular national legal system – the source legal system
 The product of a different history, cultural and lagal
tradition, every legal system has its own sources of law,
classification, institutions and conceptual system and thus its
own language and knowledge structure
 Due to incongruity of legal systems, legal translation is often
said to be “approximation”
Legal translation and comparative law
 Legal translation consists of both legal and interlingual
transfer
 Translator – concerned not only with interlingual transfer
from a source language into a target language but also with
legal transfer between legal systems
 The target legal system – the system to which the target
receivers belong and is determined by the language of the
target text
The role of comparative law
 The success of a legal translation depends on the degree of
similarity of the source and target legal systems, and
 On the affinity of the source and target languages
Types of legal texts
Prescriptive
Descriptive/prescriptive descriptive
Legislation, delegated
legislation
Codifications
Treaties and conventions
Contracts
Judgments
Wills
Documents used for judicial
proceedings (appeals,
requests)
Academic textbooks
Commentaries
Scholarly articles
Legal opinions
Legal translation as communication
 Factors that have an impact on translation strategy:
 Type of text
 Communicative function or purpose (skopos)
 Legal factors: source legal system, legal receivers and target
legal systems, how many legal systems are involved, drafting
techniques, rules of interpretation
Status of legal translations
 The communicative purpose – determined by its status, i.e.
whether it is authentic or non-authentic
 Authenticated translations – legally binding
 (e.g. EU legislation, UN conventions)
 Non-authentic translations – for information purposes
Target receivers in legal translation
 Indirect receivers – all persons affected by the particular
instrument, including the general public
 Direct receivers – specialists empowered to interpret and
apply the insturment: public officers in government and
administrative agencies, the judiciary
The goal of legal translation
 To produce a target text which conveys the content of the
source text as accurately as possible and leads to the same
legal effects (legal equivalence)
 The success of authenticated translations – measured by their
interpretation and application in practice
 The goal of multilingual legal communication – to achieve
equality before the law in all language versions; to produce a
target text that will be interpreted and applied by the courts
in the same way ( uniform interpretation and application of
all texts)
Legal translator
 Must be able “to understand not only what the words mean
and what a sentence means, but also what legal effect it is
supposed to have” and possess the drefting skills “to achieve
that legal effect in the other language”
 Considerable language and legal competence
Legal translator
 Must produce a target text that is legally reliable and of high
language quality
Consistency requirements
 Use of official titles
 Citations from prior translations
 Consistency of terminology
 Use of official translation equivalents
Standard forms
 Clauses and entire provisions expressing repetitive actions –
standardized for use in translations and published in drafting
manuals
Commercial contracts: common
clauses
 Names and addresses of the parties
 Rights, obligations and liabilities of the parties
 Force majeure clause
 Termination
 Dispute resolution
 Warranty and exclusion
 Entire agreement clause
 Governing law
 Signature, date and execution
Commercial contracts
 The source legal system is the law governing the contract
regardless of the language of the contract; many contracts –
drafted in English but governed by a different law
 Target receivers – contracting parties identified in the first
clause and ultimately the courts specified in the forum clause
in the part on dispute resolution
Commercial contracts
 Civil law lawyers should not use model forms of commom
law contracts because they contain technical common law
terms which appear to be easily translatable but the literal
translations often mean sth very different to civil law lawyers
 International commercial contracts should be drafted in
neutral terms that are easily translatable and will be
understood by both parties and the competent courts
Drafting legal rules in legislative texts
 Legal rules specify the subject matter and scope of
application, set forth definitions and prescribe the rights,
obligations and liabilities
 Translation competence presupposes that translators are able
to understand legal rules in the source text and “draft” them
correctly in the target language. They should not be
translated literally because drafting techniques differ from
jurisdiction to jurisdiction
Main elements of legal rules
 The fact-situation expressing the conditions that must be
fulfilled in order for the rule to operate
 The statement of law which prescribes the legal action to be
performed when the rule becomes operative
Implications for translators
 Translators – generally permitted to select the syntax and
word order that expresses a legal rule most clearly in the
target language, provided the content remains unchanged
Using language to achieve the desired
legal effects in legal rules
 The statement of law contains the normative content of legal
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rules expressing the legal action prescribing how the
addressee:
Shall act (commands),
Refrain from acting (prohibitions)
May act (permissions) or
Is authorized to act (authorizations)
Modality: The legal ‘shall’
 Any person bidding at the auction shall stand surety for his own
debt until full payment is made for purchased merchandise
 Shall – the binding character
 Institutes the legal speech act and introduces the binding
force of the utterance, i.e. it establishes its enforceability
Formulating legal commands
 Legal commands express obligations
 Shall – in legal English used to express the legal imperative; it
imposes obligations
Formulating requirements
 Requirements express the existence of an obligation that is
usually procedural. Such provisions often require that
certain conditions be satisfied and the subject is not a human
being. They are formulated in English with must
 Securities must fulfill the following essential requirements
The use of “should” in legal English
 Should does not express a binding obligation and is therefore
not used in the substantive provisions of legislation and
treaties, including the enacting terms of EU regulations,
directives and decisions (binding)
 Should means “it is recommended” it is used in the preamble
of treaties and legislation, in the recitals of binding EU
legislation and in EU recommendations and opinions (nonbinding)
Modality: the legal ‘may’
 In certain circumstances a police officer may ask the driver to take a
breath test
 If convicted, an accused person may appeal
 May = ‘have right to’
Formulating prohibitions in English
 Prohibitions are provisions forbidding persons and authorities
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to perform certain acts and whose performance is punishable
by sanction. As negative commands, they are expressed with:
SHALL NOT
By negating the subject or
With the expression IT IS PROHIBITED
Weaker prohibitions with MAY NOT express the
cancellation of a permission or exception to a general
permission. The expressions IS NOT PERMITTED and IS
NOT ALLOWED are not used to exress prohibitions in
English
Formulating permissions
 Exspressed with MAY; NEVER use CAN
 Do not use the expressions “it is permitted” and “it is
allowed” IT IS ADMISSIBLE is used in procedural provisions
Formulating authorizations
 Authorizations confer power upon some person or authority
to perform an act
 Expressed with MAY, IS AUTHORIZED TO or IS
EMPOWERED TO