Semantic and pragmatic features of legal language

It follows, for the reasons I have given, that this action must, in my opinion, fail. It is clear, I think, that it was prompted by understandable concerns, reflecting a general awareness…

2.3 Legal translation and method

Against this background, one of the many questions that recur in these formal analyses is whether there is a purely standard textual entity, or some objective entity, linguistic, semantic or psychological, expressed in or by an original text, which can then be captured by a different text, the translation. Textual or pragmatic approaches attempt to explain translation - procedure, process and product - from the point of view respectively of sentence content or of what is done by the original author in or by the text. The latter explains why the act performed in the legal text for translation always depends on the `context' to mean those institutional conventions that constitute the necessary infrastructure for performatives to be felicitous or the `language usage' in Levinson's terminology. More recently, but in a different guise, is the definition of a similar concept to include the idea of interaction between the `focal event' (e.g. the contextualised phenomenon) and its setting or situation (e.g. the context), which provides analytic insights (Duranti and Goodwin 1992). If such definitions are taken to properly describe both language use as social activity and the study of language as discourse, be it written or oral, then I have all reasons in the international legal text for translation to refer to two contexts: the national and the supranational.

In this regard, a powerful message comes from the ECJ making it clear that it shall ensure that in the interpretation and application of the Treaty [EU Treaty] the law is observed (Article 164 of the EUT).

However clear and certain the rule is, nothing has yet been said by the Court regarding the training of lawyer linguists working at this institution, apart of course from requiring them to have a law degree and knowledge of one or more languages in order to be recruited. Nor has this training yet been treated in journals and newsletters. Therefore, despite much research for general theories and systems to explain or describe the translation process, most work on the subject continues to address specific problems or aspects of translation. Danet, B. (1980). “Language in the legal process” Law & Society Review 14, 3: 445-564.

Studies in this field may rely on intuitive reactions to the readability of a particular translation or on academic research into contrastive structural linguistics.

With the practice established at the ECJ that for every action there is a language of the case, I believe that every law faculty in Italy now has some responsibility towards the teaching of general and applied language, along with the wider promotion of professional training courses for lawyer linguists in a progressive and systematic way. In that sense, I can hardly see their training as an independent university discipline, in that it is so dependent on a large number of other disciplines in which the core is language and its law encyclopaedia is as important as its linguistic component. Apart from the obvious point as to how to handle legal documents between systems which have neither terminology nor legal entities in common, such training can benefit indirectly from databanks and corpora, thus allowing the trainee to check frequency of linguistic usage both in source and target language. On these grounds, the assumption taken in this paper is that legal translation for lawyer linguists must be aimed primarily at preserving sentence content, with contextual, pragmatic work applying when objective meaning conveyed in the text so require. In the case of opinions and judgments, as well as other ECJ documents on the one hand, which are translated by lawyer linguists into the language of the case to be then passed on to the parties, institutions and Member States, the suggested criterion is the adoption of a literal translation approach, which does not mean word-for-word translation, rather it is an intention to reproduce the words of the original text, adapting syntactic structures and idiomatic use of vocabulary to the target language principles (Nord 1997: 52). On the other hand, producing the desired equivalence of content - be it descriptive or functional - is necessary in order to preserve the target text from all ambiguities. In that sense, the well known `open-texture' character of legal language, as Hart calls it, or hedges, in Lakoff's terminology, must be contextualised in the target text, in that the pragmatic approach to translating allows certain opaque semantic categories of natural language to be interpreted reasonably in the target cultural context so as to produce the desired legal effect. Concept words, such as burocracy, due care, mens rea, public policy have different emphases in different communities. Of these, the most famous example is the use of the standard of due care in cases of negligence.

Civil, and less frequently criminal, sanctions may be applied to those who fail to take reasonable care to avoid inflicting injuries to others. But what is reasonable or due care in a concrete situation? Although all languages appear to have similar ways of expressing vagueness, in linguistic research such a problem has been described both from a semantic and a pragmatic perspective. Thus, it is exactly at this point that all hedges call for a pragmatic explanation of language. As Channel (1994:198) argues, understanding vague expressions requires hearers to bring to bear not just knowledge of the lexis and grammar of English, but also pragmatic knowledge about how language is used, and how it relates to its settings.

It is particularly this aspect of understanding the function of hedges which is relevant for legal translation as cross-cultural communication. Like other terms already mentioned, this function, for instance, fully applies to the superordinate French term ordre public occurring in the opinion text examined, and which has a wide, general meaning in the language of Community law. Traditionally, this term is rendered as the hyponymic, strained concept of public policy or public order in English common law language and English-drafted opinions to mean ordine pubblico/sicurezza pubblica in general. Functions of Law in the National and Supranational Contexts. In: International Journal for the Semiotics of Law, Vol. VII, No 19, p. 11-37. However, as the concept of public order seems also to be unsatisfactorily developed and understood in English law, it would thus explain in the language of international private law why opinions delivered in English make recourse to the French term to refer to the whole concept as is understood in civil law.

In other words, while covering the whole civil area of semantic reference, the term ordre public is constantly linked to the imperative rule of ius cogens (mandatory rule) deriving from international law to cover the wide, general meaning of regole e principi fondamentali dell'ordinamento giuridico aventi incondizionata applicazione. In that case, however, a purely literal approach to understanding different connotational meanings of the term in different contexts - whether national or international, and the relative different terminology used, would both lead the European Court and the translator to be on unsafe ground. This can only be explained by extra-linguistic reasons, such as: the complex decision-making procedure of the EU, the binding nature of texts in all EU's languages, and last but not least, a degree of discretion applied to the term from one country to another within the limits imposed by the EU treaty and recognised by the ECJ. In that framework, however, the view taken by Salmi-Tolonen (1994) that the EC legislation is not consistently drafted as the national laws, is to be rejected because wide, vague terms are there in the text to allow plenty of scope for the exercise of discretion on the part of national legislators. So, like the Court in this case interpreting the meaning of the term, it is for the translator to find a remedy to the literal translation of such term, this remedy only lying in teleological understanding and translation of the term. In other words, to convey the contextual, objective, or otherwise spoken of pragmatic meaning of the term in line with the cultural and legal semantic connotations in the target language. This point becomes even more important in order to functionally translate hedged terms also in line with the intended meaning of the rule behind the type of text - whether normative or not, and the certainty of law. The above pragmatic example of the term, while also taking into account the structure, stress and intonation of an utterance in which it might occur in the oral-like text type, would at the same time be breeding ground for international misunderstanding and cross-cultural miscommunication. The value a term has may change because of the more extended context in which it occurs. In the above example, what is legally considered to be a superordinate term in one language (ordre public) may onomatopoeically become a synonym in the other (public order). The above example shows that EU legislation makes discourse meaning only as clear as is necessary for effective communication. If it is necessary to distinguish the ordre public from the public order, then both terms would be used. This suggests one important implication for language and translation teaching - increased attention to general, hedged terms - which effectively function as pro-forms. In oral-like discourse, such as opinions, pro-forms constantly assume different values and allow the language user and the translator to achieve many pragmatic purposes within a comparatively sound legal analysis.

These are the grounds I drew on in running a legal translation course to prepare some candidates who were fresh out of legal higher education to undertake the career as Italian native lawyer linguists at the European Court of Justice. They were all students already trained in ESP studies in the law faculty, who showed an aptitude for translation activity. In contrast to linguists, they needed to add and develop language skills and translation techniques to their already acquired legal knowledge in order to sit the professional examinations with confidence and ease. The main objectives were to help them know the basic functions of machine assisted translation, to practice the essential textual, contextual, pragmatic and terminological aspects applied to the translation of speeches, pleadings, regulations, directives, decisions, opinions, judgments and others into their mother tongue, to acknowledge the importance of a programme treatment of terminology in LSP translation along with the final revision or quality assurance.

The approach I used focussed on assessing trainees' performance under the two well-known rubrics: how the source text was decoded, and how it was encoded. A third rubric, commenting, was added to the performance criteria and involved annotating the translation in a bid to highlight trainees' strategies in resolving problems and issues encountered.

Many trainees learned to stand back from their translations, therefore having firmly closed their dictionaries, and ask themselves whether what they had written conveyed what they wanted it to.

The features which were worth annotating included identifying certain titles of opinions and/or judgments, which need not be translated and are usually retained in the TL version by the established translation practice at the ECJ (The Queen v Secretary of State for Transport); handling untranslatable institutional terms whose precise meaning is peculiar to the SL or its culture (Queen's Bench Division; [Ireland] Chief State Solicitor); usage of terms other than the meaning given in good dictionaries or for which a paraphrase would aid the comprehension of a legal TL reader (court of last resort: giudice la cui decisione и inappellabile); ambiguities of various kinds or terms with connotations likely to be unfamiliar to a TL reader (courts of law/ordinary courts) used in the common law language to mean both inferior and superior jurisdiction(s): giurisdizione(i)/magistratura ordinaria(e), as opposed to tribunal to mean a specialised jurisdiction/body: organo con funzioni giurisdizionali al di fuori della magistratura ordinaria, as in the connotational meanings of administrative tribunal, domestic tribunal, statutory tribunal; stylistic devices or registers (charge of guilt and conspiracy: chiamata in reitа e correitа); established technical terms (in joined cases: nei procedimenti riuniti; having regard to the Report for the Hearing: vista la relazione d'udienza; request for preliminary ruling: pronuncia pregiudiziale); and handling concepts and terminology to search for equivalences (individual rights: diritti soggettivi; protected interests: interessi legittimi). In addition, commenting involved trainees using a simple test to establish whether or not the basic criteria of preserving sentence content was worth translating metaphors, which in most cases were left out.

Such work exposed them not only to denotative aspects of the text for translation, but also in a broader sense to become critical and analytical constructors in their own right. They were able to draw on a whole repertoire of possible solutions. In weighing up the pros and cons in the commenting rubric, they drew on a wide range of criteria including considerations of style, expression and idioms, cultural and legal contexts, connotations, the functions of source and target texts, and intended audience. As a result, the study of legal language as discourse offered reflection and fruitful class discussion not only on language, style, meaning, interpretation, and translation strategies, but also on the pragmatic purposes of the text, which is extremely structured, institutional, and contextually controlled.

Conclusion

Due to limitations of space the present discussion provides just an overview of problems which can be encountered while approaching sublanguage, and LL in particular, with RT apparatus. The list of problems is by no means exhaustive; for example the analysis does not cover the problem of translation where e.g. the RT distinction between descriptive and interpretive uses of language results in the same LL texts classified differently depending on the audiences involved (cf. Witczak-Plisiecka, 2005).

In summary it seems that RT cannot be contradicted while analysing language in the legal domain. All RT principles can be applied successfully. However, the description is at the same time very general and can hardly be used to define LL against general language.

The focus of RT is on relevance in a particular communicative situation and not on context irrespective of the participants of the act. Thus, specific participants and their interrelations with the context are foregrounded leaving the functional context in the background. It results in LL diluting in a vast array of unpredictable situations where it can hardly be perceived as a self-contained entity, even if fuzzy edges are allowed. RT has achieved methodological elegance due to its concise apparatus, but also has to face the limitations which this condensation incurs.

The purpose of our paper has been to describe and discuss codified legal language used at international institutions, which falls between oral and written discourse. This language, while serving argumentative and pragmatic purposes in legal discourse, concurrently forms the object of the translation process itself as a mere institutional, cross-communication activity, in which textual and contextual functions of the text for translation also call for the need to have proper training of lawyer linguists run within Italian law faculties. This language constantly proves to be situated within a `context', whether national or supranational which, on the one hand, provides the jurist with a suitable environment to fit in his own pragmatic legal discourse and, on the other, it requires lawyer linguists to assume different values of the discourse meaning in order to achieve pragmatic purposes for effective written communication.

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