Università degli Studi di Modena e Reggio Emilia
D
IPARTIMENTO DI STUDI LINGUISTICI E CULTURALIC ORSO DI L AUREA M AGISTRALE IN
LANGUAGES FOR COMMUNICATION IN
INTERNATIONAL ENTERPRISES AND ORGANIZATIONS
A corpus-based study of vague language in legal texts:
translating vagueness in European Union Directives
Prova finale di:
Domenica Cozzi Relatore:
Prof.ssa Marina Bondi
Correlatore
Prof.ssa Giuliana Diani
Anno Accademico 2019/2020
Abstract
A causa del continuo flusso di scambi internazionali e delle crescenti relazioni tra i paesi, nel corso dei decenni l'interconnessione tra lingua e diritto è stata indagata da diversi professionisti, sia giuristi che linguisti. Nel presente lavoro, la tematica sarà analizzata principalmente da un punto di vista linguistico, in riferimento alle caratteristiche specifiche del linguaggio giuridico e alle principali implicazioni per la traduzione che da esse derivano. In particolare, l'attenzione è stata focalizzata sulla traduzione del linguaggio vago dall'inglese all'italiano all'interno di un corpus di Direttive dell'Unione Europea.
I primi tre capitoli del lavoro definiscono il quadro teorico di riferimento per definire tre concetti principali e il loro legame: il linguaggio giuridico, la traduzione giuridica e la vaghezza. Il primo capitolo analizzerà prima di tutto le caratteristiche lessicali e sintattiche del linguaggio giuridico in generale e i tratti tipici dei testi giuridici, fornendo una categorizzazione per genere e funzioni.
Successivamente, queste considerazioni iniziali saranno applicate al contesto dell'Unione Europea, descrivendo le tipologie più rilevanti di strumenti giuridici utilizzati e la loro struttura. Il secondo capitolo procederà con una considerazione sulla natura della traduzione giuridica. In primo luogo, verrà descritto il rapporto tra questa disciplina e la teoria generale della traduzione; in secondo luogo, saranno identificate ulteriori peculiarità che dimostrano lo status speciale di quest'area di studio, soprattutto nel contesto multilingue dell'Unione Europea. Inoltre, l'ultima sezione del capitolo spiegherà e riassumerà le principali strategie di traduzione giuridica e i problemi derivant i dal confronto tra lingue e culture differenti. Il terzo capitolo, infine, fornirà una definizione completa riguardante il fenomeno linguistico della vaghezza e descriverà come quest'ultimo si inserisce all'interno del discorso giuridico. In particolare,per introdurre l'analisi riportata nell’ultima parte della tesi, saranno riportati i principali indicatori linguistici di vaghezza nei testi giuridici.
Partendo dalle considerazioni teoretiche iniziali, gli ultimi tre capitoli sono il prodotto di un'analisi linguistica condotta su due corpora paralleli di Direttive Europee riguardanti la tematica ambientale.
In particolare, il quarto capitolo descriverà nel dettaglio gli obiettivi principali, i materiali, gli strumenti e l’approccio metodologico utilizzato per la ricerca. Il quinto capitolo procederà, invece, con l'analisi quantitativa e qualitativa degli elementi lessicali vaghi riconosciuti nel corpus delle Direttive in lingua inglese. Il sesto capitolo, infine, sarà focalizzato sull’'analisi contrastiva dei due corpora, considerando la vaghezza da un punto di vista traduttivo. In particolare, saranno individuate le tecniche più frequenti adottate dai traduttori durante il processo traduttivo degli elementi lessicali vaghi esaminati nella prima parte.
Abstract
Because of the continuous flow of international exchanges and increasing relations between countries, the interconnection between language and law has been investigated across decades by several professionals, both jurists and linguists. In the present work, the thematic will be mainly analysed from a linguistic point of view, focusing on the specific features of legal language and their major implications for translation. In particular, the attention has been devoted to the translation of vague language within a corpus of European Union Directives from English into Italian language.
The first section of this work, comprising chapter 1,2 and 3, will represent provide the theoretical framework necessary to define three main concepts and their relationship: legal language, legal translation and vagueness. The first chapter will analyse general lexico-grammar and syntactic characteristics of legal language and typical traits of legal texts, providing a categorization according to genre and functions. Subsequently, these initial considerations will be applied to the context of European Union, describing the most relevant typologies of legal instruments and their structure. The second chapter will proceed with a consideration about the nature of legal translation. First of all, the relationship between this discipline and general theory of translation will be described; secondly, further peculiarities will be provided demonstrating the special status of this field of study, especially within the multilingual context of European Union.
Moreover, the last section of the chapter will explain and summarize main legal translation strategies and problems arising from differences across languages and cultures. Finally, the third chapter will provide a comprehensive definition of the linguistic phenomenon of vagueness and its connection with legal discourse. In particular, vague indicators in legal texts will be described in order to introduce the analysis reported in the last chapter.
Starting from the initial theoretical considerations, the last and second section of this work, comprising chapter 4,5, and 6 chapter will be the product of a corpus-based analysis of European Directives concerning environmental issues. In particular, the fourth chapter will provide a description of aims, materials, instruments and methodological approach adopted to carry out the analysis. The fifth chapter will focus on the first two phases of the study, concerning the quantitative and qualitative analysis of vague lexical items within the English corpus of Directives.
Finally, the sixth and last chapter, will include the contrastive analysis of vagueness considered from a translation perspective, identifying the most frequent techniques adopted by translators when dealing with the vague lexical items investigated in the first section.
Table of contents
Introduction ... 1
1. Legal Language ... 4
1.1 The nature of legal language ... 4
1.1.2 Technical nature of legal language ... 4
1.1.3 Normative and performative nature of legal language ... 6
1.1.4 Legal language as system-bound ... 8
1.2 Lexico-grammar characteristics of legal language ... 10
1.3 Legal Texts ... 14
1.3.1 Classification of legal texts into genres ... 16
1.3.2 Legal texts and genre within European Union ... 21
2. Legal Translation ... 24
2.1 Legal translation and general translation theories ... 24
2.2 Defining legal translation ... 26
2.3 Legal translation strategies ... 29
2.4 Legal translation problems ... 33
2.5 Legal translation in the multilingual context of European Union ... 38
2.5.1 The translation regime in European Union Institutions ... 42
3. Vagueness ... 46
3.1 Defining vague language ... 46
3.2 Vagueness and related notions... 51
3.3 Vagueness in law ... 55
3.3.1 Vague indicators in legal texts ... 60
4. Vagueness in European Union Directives... 67
4.1 Introduction to the analysis ... 67
4.2 Why analysing European Union Directives ... 67
4.3 Aims of the analysis ... 68
4.4 Presentation of the corpus ... 69
4.5 Search tools ... 70
4.6 Methodology ... 72
5. Preliminary phase and analysis of English corpus ... 76
5.1 Preliminary phase: a general overview of the corpora ... 76
5.2 Quantitative and qualitative analysis ... 77
5.2.1 Relational adjectives ... 79
5.2.2. Modal adjectives ... 83
5.2.3. Ethic Adjectives ... 86
5.3 Concluding remarks ... 88
6. Translating vagueness in European Directives ... 90
6.1 Preliminary remarks ... 90
6.2. Contrastive analysis ... 91
6.2.1 Transposition ... 93
6.2.2 Explicitation ... 98
6.2.3 Amplification ... 99
6.2.4. Simplification/Reduction. ... 100
6.2.5 Reformulation/Reinterpretation ... 101
6.3. Concluding Remarks ... 102
Conclusions ... 104
References ... 106
Websites ... 112
List of figures ... 113
1 Introduction
In a world characterized by an increasingly frequent interconnection and interaction between single individuals ad nations as a whole, translation has acquired a relevant, if not necessary, role. This statement is particularly true when reference is made to the legal field. Despite the fact that the translation of legal texts belongs to the oldest and most important forms of translation, it has long been overlooked both by translation and legal studies. As a matter of fact, systematic studies of legal translation are still at the early stages. Nonetheless, over recent years, legal translation has aroused the interest of both linguists and researchers in the field of translation studies, as well as legal scholars and professionals. Moreover, the demand for legal translation and capable legal translators has increased considerably, becoming essential to connect people with different history and cultures in such globalized context.
Translation, indeed, represents a major instrument of communication in municipal, supranational and international law (Šarčević 1997). A good example of this acquired relevance is provided by the European Union, which poses its foundations in multilingualism and linguistic equality among the Member States. Notwithstanding the fact that all the official European Union languages are deemed to be equal, some languages are actually used much more than the others. It is the case of English and French, with English distinctively predominant. These languages represent the working language employed by European Institutions in the drafting process of European Union legal documents, which are later translated into all official languages. European Union laws, indeed, are translated and published in the languages of the Member States in order to become national laws and have binding force for all the citizens across Europe. As a consequence, translation represents an indispensable tool in the hands of European Institutions to function properly and the presence of translators may be considered necessary and inevitable. Nonetheless, translation is not always a straightforward process and translators have to face a series of challenges and problems arising from the differences between several languages.
The present research study derives from the intention to analyse and describe the choices and techniques adopted by translators when they have to face the particular linguistic phenomenon of vagueness. Talking about vagueness in relation with legal context may appear paradoxical, because “vagueness seems repugnant to the very idea of making a norm” (Endicott 2005, 27).
Nonetheless, vague expressions may be considered an inherent feature of legal language and normative texts and they may be applied to a series of different situations.
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Therefore, this study pursues two main objectives: on the one hand, the first aim is to recognize the presence of vagueness in normative texts, in particular in European Directives, identifying specific linguistic devices which convey some degree of vagueness; on the other hand, the second one is to analyse the importance of vague language with respect to decisions and strategies undertaken by translators, when they have to transfer the message from one language in the source texts to another into the target text.
For the purposes mentioned above, the entire work has been subdivided into two main sections, each comprising three chapters, organised on the basis of a logical order discussing topics from the general to the specific. The first three chapters will provide a theoretical framework to set out the background of the research study and an attempt to underline the connection between three main concepts: legal language, legal translation and vagueness.
The first chapter comprises a discussion about legal language in general, describing lexico- grammar and syntactical features. The essence of this Language for Special Purposes will be also investigated focusing on its technical, normative and perfomative nature. Since the characteristics analysed find their expression in written texts, the chapter will proceed describing typical traits of legal documents providing a categorization of legal texts according to genre. Subsequently, all the initial considerations will be applied to the context of European Union, identifying and classifying which are the European Union texts affected by translation.
Due to the constant reference to a multilingual and multicultural context, the second chapter will examine the importance and the role of legal translation. First of all, a definition of this discipline will be provided, relying on the opinion of several scholars who compare legal translation with the general theory of translation and stress out its main peculiarities. As mentioned before, the process of legal translation is not a simple transposition from one language to another, but translators need to undertake a series of choices to better perform their tasks. Therefore, the chapter will summarize the most frequent strategies adopted by legal translators and the major challenges they need to face.
One of the difficulty is represented by the presence of a certain degree of vagueness within normative texts. The third chapter, indeed, will firstly provide a general definition of this linguistic phenomenon relying on different theories and orientations and then it will be analysed in relation with legal language. Furthermore, specific indicators of vagueness and indeterminacy will be identified and described. Research on vagueness in normative texts collected by Bhatia, Engberg,
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Gotti and Heller (2005), together with other scholars such as Anesa (2007/2014) and Li (2016) have been essential to carry out this study.
Compared to the first theoretical section, the last one of the work will be the result of a practical investigation about vagueness and its implications for translation across legal texts, within the context of European Union. In order to recognize specific vague linguistic devices and to analyse the techniques adopted by translators to face vagueness, the study will be carried out comparing two parallel corpora of European Directives about environmental issues, comprising 42 texts in English language and their relative translation into Italian language. In particular the fourth chapter will provide a description of aims, materials and instruments employed to carry out the analysis. Further details about the search tools, the theoretical framework considered to conduct qualitative and contrastive analysis will be also described to provide the basis for methodology. The fifth chapter will proceed providing the results of quantitative and qualitative analysis conducted on the English corpus, searching for the presence of vague indicators. For the purpose of this study, the classes of vague adjectives identified by Fjeld (2005) will be taken into account. Quantitative analysis will provide the frequency of those terms in English European Directives and then they will be described from a qualitative point of view. Data collected with the first part of the analysis will be combined in the last chapter with a contrastive analysis, through which every occurrences of vague language in the English version will be compared with the Italian one, reporting the most frequent and remarkable from a translation perspective.
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1. Legal Language 1.1 The nature of legal language
The relationship between language and the law has been observed and analysed by several professionals, both jurists and linguists, who have investigated this particular kind of language from different perspectives. Indeed, because of the continuous flow of international exchanges and increasing relations between countries, whether social, economic or political, interlinguistic and intercultural issues affect legal action and process.
In the present work, the theme will be mainly analysed from a linguistic point of view, focusing on the specific characteristics of legal language, considered as a language for special purposes, and their major implications for translation. In particular, the attention will be focused on the translation of a certain degree of vagueness in a corpus of European Union Directives. Before of discussing about legal translation, an analysis of the leading aspects of legal language and texts is useful to understand its nature and function.
1.1.2 Technical nature of legal language
Working with a language for special purposes involves taking into account a certain degree of technicity, but the singularity of legal language is the fact that it resembles the ordinary and common language. About this issue specialists engaged several debates, whose main argument was the definition of the nature of legal language with respect to its connection with ordinary language.
The question was whether the legal language should be considered as a technical language or simply part and a form of ordinary language. Two positions seem to emerge: the first, which argues that legal language is a technical language, while the second one sustains that there is no legal language and that, even if it does exist, it is to be considered as part or as specialized form of the ordinary language for a particular purpose, in this case, the achievement of legal effect (Cao 2007, 15-16).
About the first perspective, distinct points of view have been conveyed on the nature of legal language as technical language. The main positions may be led back to two strands: some linguistic and legal philosophers pursue the idea of a technical language, still connected to the ordinary language; others, instead, support the opposite view.
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In particular, the linguistic philosopher Caton (1963) sustains that legal language is a technical language, but it can be considered as complementary to common language, because they share the same syntax, but differ in vocabulary. The legal philosopher Schauer (1987) supports the same theory, defining legal language as a parasite of ordinary language.
Opposite to this position is the legal philosopher Hart, who argues the uniqueness of legal language that is justified and demonstrated by the existence of a legal system of reference and the presence of specific rules of law. According to Hart, legal terms affect the meaning of the other words connected with them and they have meanings only in a definite legal system in accordance with definite rules of law. Another relevant point of view is provided by the legal semiotician Jackson (1985), who defines legal language as technical language, underlining the independence of legal language related to ordinary language.
However, as Cao points out (Cao 2007, 17), the nature of legal language is not merely a question of lexicon and terminology, even if they represent the most distinguishing mark. Looking at legal language as register may also be useful to give a further angle of analysis to the discussion.
The scholar proceeds from the definition of register provided by Halliday and Hasan (1985), which says that register:
“(...) is what you are speaking at the time, depending on what you are doing and the nature of the activity in which the language is functioning, (...) it reflects the social order, the types of social activity.”
(Halliday and Hasan 1985, 41)
Register is a variety of language use for particular purposes or for a particular communicative situation. The elements that characterize the register are both lexical and structural.
Therefore, trying to sum up the above mentioned debate, Cao (2007) claims that legal language as a register can be considered a variety of language use with a technical nature. It is not completely equal to ordinary language, they present a common ground, and this is one of the reasons why problems arise. However, because of some specific elements that characterize legal language from the point of view of lexicon, syntax, style and pragmatics, they differ in terms of substance.
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1.1.3 Normative and performative nature of legal language
Beside its technical nature, the uniqueness of legal language is defined and related to the normative and performative use of the language. In order to describe the normative one, a primary observation which needs to be made is the one proposed by the Italian linguist Cortellazzo (1997):
“Il diritto non si serve della lingua, ma è fatto di lingua.”
(Cortellazzo 1997, 36)
The citation stresses the relevant role of language in the law, because normative texts, which are linguistic products in the first place, are made of words. The texts type most studied and analysed by linguists is the normative text. The draft of normative text shows and makes clear the normative nature of legal language, because “it is related to norm creation, norm production and norm expression” (Cao 2007, 13). It derives from the fact that the law has the main purpose of regulating relations and behaviours according to commonly shared principles, granting rights and imposing duties and restrictions upon its addressee, who has to comply with them to avoid sanctions. As a consequence, the language of the law is employed not only to communicate a message, provide information or diffuse knowledge, but also to influence and govern social behaviour. In the words of Maley:
“(...) the greater part of these different legal processes is realised primarily through language. Language is the medium, process and product in the various arenas of the law where legal texts, spoken or written, are generated in the service of regulating social behaviour.”
(Maley 1994, 11)
The norm is conveyed by words, which means that the language of the law is a normative language, largely prescriptive. However, according to the jurist Carcaterra (1990) not every normative utterance is also prescriptive. He draws a distinction between norms that are prescriptive, in the sense that they establish and impose duties and obligations, and norms that enact/execute what they are expressing in words. Prescriptive propositions make reference to behaviour, which has not been realized at the moment of prescription, but its realization represents its final purpose.
In contrast, the second type of norms produce an effect at the time when they are produced and just because of their production. This kind of distinction derives its argument from the speech acts theory elaborated by the philosopher of language J. L. Austin. Speech act theory has been helpful in relation to legal discourse in order to classify different types of utterances. Linguists are interested
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in speech acts for several reasons, mostly because they may facilitate the comprehension of how law and language are connected. In legal language a significant number of speech acts may be found, and most of them are categorized as performatives. They do not only report about an event:
their articulation actually constitutes performing an action. In other words, performatives are actual actions. Therefore, closely related to the normative and prescriptive nature of legal language there is its performative nature, because “language used in law can perform acts such as conferring rights, prescribing prohibition and granting permission” (Cao 2007, 14).
The notion of performativity was introduced by the theory of Austin (1962). Performative utterances or performatives are different from constative ones in the sense they do not simply describe an action, but for the only fact of being issued, they perform contextually the action they mention. The name derives from the verb “perform”, which is usually used with the noun “action”.
“The uttering of the sentence is, or is part of, the doing of an action”… “to say something is to do something;
or in which by saying or in saying something we are doing something .”
(Austin 1962, 5)
Austin provided also a description of the characteristics of performatives, in semantic terms, because they do not describe or constate anything, in logical terms, because they are not true or false, and in pragmatic terms, because the production of the utterance is the performing of an action.
Writers on jurisprudence, conducting further researches and analysis, have adopted the notion of performativity as a model to be applied to the theory of language. Indeed, performative discourse is now recognised as one of the varieties of discourse which are peculiar to the language of the law.
Starting from this theory, several classification of speech acts have been proposed, with the most known being the one by Searle (1976). Drawing on this work, Danet (1980) provided a classification of legal speech acts, which consists of:
- Representatives: “utterances that commit the speaker to something being the case or assert the truth of a proposition” (Danet 1980, 458). These acts, in which words match to the world, include testifying or swearing, asserting, claiming, and stating.
- Directives: future-oriented speech acts that have the aim “to change the world, to get someone to do something” (Danet 1980, 458). They are most prominent in regulative functions of law, hence in legislation that imposes obligations. The notion of directives
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clearly lies behind the view of the law as a set of commands. Criminal law relies heavily on this use of language.
- Commissives: utterances that “commit the speaker to do something in the future” (Danet 1980, 459). The major category in legal settings is contract. Both the parties to a contract engage in commissive acts. Other examples are marriage, ceremonies and wills.
- Expressives: utterances that “express the speaker's psychological state about a proposition and include speech acts such as apologizing, excusing, condemning, deploring, forgiving, and blaming” (Danet 1980, 459).
- Declarations: “utterances whose successful performance brings about a correspondence between their propositional content and reality” (Danet 1980, 459). According to Searle (1976) declarations may be effectively performed trough the involvement of an extra- linguistic institution, intended a system of rules complementing the constitutive rules of language. Within the facilitative-regulative functions of law, regular declarations include marriage ceremonies, bills of sale or receipts, appointments and nominations, and the legislative stipulation of rights.
In conclusion, it may be said that the nature of legal language can be defined as comprising at least three key elements:
- technicity, due to its particular features,
- normative and performative value, which make legal language essential for the law in order to achieve its primary purpose of regulating social behaviour and produce legal effects.
1.1.4 Legal language as system-bound
Legal translation is a specialised field which involves different areas of study: linguistics, translation and law. A relevant problem concerning legal language, and its related translation, is the existence of conceptual distinctions in notions belonging to different national legal system. As Cortellazzo (2001) points out, legal language may be considered one of the most “national”
languages for special purposes. A process of international homogenisation in legal language may
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result more challenging than other types of languages, used in specific fields such as maths, science or physics, even in countries which shares similarities from legal system point of view. In the words of Megale (2008) “law is system-bound” and there is no such a thing as an international legal language because of independent national legal systems (Sandrini 2018, 513). Law and language, indeed, are the expression of the historical, social and cultural evolution of a nation. Languages and legal systems are strictly interlocked and mutually influencing one another. This means that a legal system consists of concepts developed across an historical evolution, related to a specific culture and expressed through language. The question core is represented by the diversity of concepts expressed by means of words. Often it may happen that some legal concepts normally employed into a system differ significantly from others, or do not exist at all.
Moreover, translation is strictly connected with comparative law. The latter is defined as the science, whose object of study includes differences and similarities between different legal system.
Within the discipline of comparative law legal systems have been categorized into so-called legal families, according to commonly shared features. Inside each category there are legal systems that may not be considered as completely equivalent, but they share more elements among them than with systems belonging to distinct legal families. Cao (2007) identifies one set of criteria in order to classify legal systems, which includes: “the historical development of a legal system, the distinctive mode of legal thinking, the distinctive legal institutions, the sources of law and their treatment and the ideology” (Cao 2007, 25). These criteria may be applied to compare the major legal systems in the world which are: Common Law and Civil Law system. They represent the pillars of western legal world. They do coexist in some countries and within the framework of international organizations, such as the European Union.
Common Law legal system developed in the historical background of England starting from the 11th century. It bases its principles on a system of case law or judicial precedent, by which judges follow previously decided cases where the facts are of sufficient similarity, showing the importance of reported judgements, related to specific fact situations. Specific rules are set for specific sets of facts. Case law is the main source of law. Referring to legal institutions, trust, tort law, estoppel and agency are unique to Common Law.
Civil Law, instead, is rooted in ancient Rome with the codification of the Corpus Juris Civilis of Justinian. In this kind of systems, case law applies general principle and represents a secondary source of law. The primary source of law consists of statutes and regulations. About legal
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institutions, abuse of right, the direct action, the oblique action, among others, are unique to Civil Law.
However, besides the differences, the two systems are not totally incompatible: both, indeed, belongs to the western tradition and culture. Furthermore, European Union laws and institutions had a relevant impact on both jurisdictions. In conclusion, we can talk about one language for each legal system. As Ajani Ebers points out:
“There are as many languages as there are legal systems.”
(Megale 2008, 80)
Referring to the two languages taken into consideration in this work, Italian is used as legal language of Italian system, of Switzerland and of the European Union, where terminology needs to be interpreted according to EU law, and English is used as legal language of Common Law countries and of European Union. One particular case is represented by the nation of Canada, in which English has become the legal language of a civil law system.
1.2 Lexico-grammar characteristics of legal language
In the attempt to consider legal language as a whole, various difficulties arise due to its heterogeneous nature. Nonetheless, particular features regarding lexicon, syntax and style may be found to be common and applicable to different languages, in this case English and Italian. In terms of legal lexicon, a universal property of legal language is the complex legal vocabulary that may be identified in distinct legal languages. It is the most visible feature of legal language, considered as technical language.
First of all, the lexical corpus of any language can be categorized into two groups:
“symbolic or representational items and functional items” (Alcaraz and Hughes 2002, 16).
Functional items are grammatical words or expressions which have no specific referent in reality, but they have the function to tie the others together and give them an order. In contrast, symbolic or representational items consist of terms which do refer to things and concept that can be found in reality, intended as both physical and mental. The latter group, in turn, may be subdivided into three types terms:
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- Purely technical terms (Alcaraz and Hughes 2002, 16)
- Semi-technical or mixed terms (Alcaraz and Hughes 2002, 17);
- Everyday vocabulary. (Alcaraz and Hughes 2002, 18).
In general, legal language, more than other types of languages for special purposes, shows the presence of several purely technical terms or “tecnicismi specifici” (Garavelli 2001, 10). They are found exclusively in legal language and do not exist outside of the scope of the language in question. This lexical type of terms shows univocal meaning and across time has remained stable from the semantic point of view within its sphere of application.
The second group, instead, is composed of words and expressions taken from the ordinary language which have acquired new meanings within the context of legal field through the process of analogy. This category is called by Garavelli (2001) “ridefinizioni o estensioni del significato” in order to indicate the change that gives the ordinary words a new meaning which does not match to the ordinary one, used in everyday language. This can be explained by the fact that usually legal messages are addressed to a large number of people, even to all members of a society. Moreover, legal messages are often related to the daily problems of citizens.
Redefining the meaning of words is a core theme of legal language, especially when we make reference to texts, such as the Directives of European Union, that have legal effects on more than one country, which as we have already mentioned, brings with it its terminology related to its legal system. In this sense, legal terminology is characterized by polysemy, despite the requirements of clarity and precision due to the subject matter. The frequency of polysemy can be explained by the fact that legal systems are in a constant state of update, and they also influence each other (Mattila 2012, 30).
Nowadays the European Union needs to deal with polysemy of legal language because traditional legal terms often acquire specific Union law meanings, even if in some cases neologisms are created in order to avoid confusion. As Mattila (2012) points out, the problem arises for two main reasons: first of all, part of the terminology of European Union derives from French language, but now English has replaced French as leading language of the Union and, therefore, traditional terms of legal English acquired new meanings. However, polysemy should not be confused with vagueness (Megale 2008), which will be subject to a deeper analysis in Chapter 3 of this work.
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Finally, the last group is composed of words of everyday language. Many terms of general use may be found in legal texts and contexts. Unlike the second group, they have neither lost their everyday meanings nor acquired others by contact with the specific field of law. This proves again the strict and continuous interchange between ordinary and technical language.
Besides these main categories, there are those that Garavelli (2001) calls “tecnicismi collaterali”, which represent particular kinds of expressions, not really necessary, but preferred because of their technical connotation. In addition, external forms may be found in legal language, which belong to the field of different professions, such as commerce, technology or social work.
A legal term may consist of a single unit, a phrase or a compound word. Such technical terms are frequently nouns. Verbs and adjectives are also classified as terms, but, in general compared to ordinary language, legal language uses fewer verbs. This particular feature may be explained because it is believed that a noun is more objective than a verb. Despite the fact that Italian shows a more evident tendency in using a nominal style rather than English, nominalization is a common element of both legal Italian and legal English. It has been referred both lexical and syntactic.
From the lexical perspective, it has been defined as “a process whereby a verb or adjective is converted into a noun” (Mattiello 2010, 132). From the syntactic one, on the other hand, it is considered as “the process through which a verbal clause, or a verb phrase, is converted into a noun phrase” (Mattiello 2010, 132). The high presence of nouns is one of the factors which contribute to the obscurity of legal texts. The complexity of nominalization process involves implications concerning the accessibility of legal texts, especially for non-specialist receivers who are going to read legal documents. Therefore if, on the one hand, nominal style enhances precision and all- inclusiveness, on the other hand, it may reduce the possibility for a reader to access to all information. Nonetheless, according to Mattiello (2010), nominalization gives rise to a series of lexico-semantic references in the text, which makes the writer able to redirect to ideas and concepts mentioned before, and the reader capable of following the logical progression of the document, facing problems of interpretation with the continuous presence of reference within the body of the text.
The relevant use of nominal style and constructions in written legal texts is generally related to the formal register and highly impersonal style adopted in legal documents. Impersonal style is also obtained by the use of passive voice, which allows to obtain a greater degree of objectivity, and
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through declarative sentences, which make reference to particular rights or obligations. Moreover, sentences in the context of legal language are longer than in other uses of language (Cao 2007).
This can be explained by the complexity of the subject matter and by the continuous reference to precise norms, articles or previous sentences within the text that can cause a certain degree of confusion. The obscurity is increased by the fact that legal texts usually contain compound words or phrases. As Mattila (2012) points out : “this is because the easiest way to coin a term to express a new legal concept is by using a compound or phrase composed of two or more words” (Mattila 2012, 32). On the one hand, the meaning expressed by the single unit makes the term more transparent, allowing the comprehension of the entire term, on the other hand, compound word or phrase may appear troublesome (Mattila 2012, 32). Sometimes, indeed, the desire of transparency and precision may take the form of reduplication, combining together two or more synonyms. This can represent a challenge for translators, who, in some cases, may find similar expressions and combinations in the target language. Otherwise they need to decide if the original formulation implies a distinction in meaning or an emphasis. In the first case they tend to render literally the combinations, while in the second one they may opt for an adjective or adverb which convey the general meaning. (Alcaraz and Hughes 2002, 9-10).
Another characteristic of legal language is still the presence of archaic words and phrases. In particular legal terms often consist of words of foreign origin, mostly belonging to Latin. Mattila (2012) provided an historical survey, related to the terminological interaction between legal cultures and languages across the decades. For many centuries Latin was the most important source for Western society, both in terms of law and lexical borrowings. This can be explained by the relevant role played by Roman and Canon Law in the history of Europe. Western layers mainly used Latin in their writings till the first centuries of modern times. As result of the continuous interchange between cultures and language mixing, all legal languages of Europe present a large number of Latin terms in the form of borrowings or naturalized words of Latin origin.
After the Latin period, other modern languages also influenced other languages with their vocabulary. Indeed the rise of powerful European nations, through the phenomenon of Colonialism, led to the use of their language both in common and specific contexts even in other continents. The dominance of French legal culture and legal French, for example, through the Code Napoléon, led to the diffusion of French legal terminology across Europe in the forms of borrowings, calques, naturalized words or borrowed meaning given to existing terms. Since French acted like the lingua franca of diplomacy during the eighteenth and nineteenth centuries, different languages still
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includes French words in the field of law related to international issues. The influence of legal German was more restricted, but its role at the end of nineteenth century and the beginning of twentieth century led to the spread of several borrowings in the legal language of Eastern Central Europe and Northern Europe (Mattila 2012, 34). At the present times, lexical borrowings from modern languages are increasing. This is due to powerful influences of United States of America and European Union. In particular, legal English has its impact on European institutions, which is made evident by the use of English borrowings in their legal texts.
The terminological work of the European Union is challenging for several reasons. First of all, the Union has the attempt to create a new type of legal system which has no direct models in the past and which needs to be adapted and incorporated by the single national legal system of all the Member States. Moreover, the administration of the Union is entrusted to a series of parallel institutions, whose terminological work is not easy to coordinate (Mattila 2012). Nowadays English has replaced French as the major language of work in the European Union, with the exception of the Court of Justice. Up to 90 per cent of EU legislative texts are drafted in English However, the influence of French is still present and reflected into a series of terms , classified as false friends, that may occur in legal texts.
Therefore, the risk for a translator is to translate into another language a text written in English, containing borrowings from French used with the wrong meaning (Robertson 2014, 160).
Because of this situation, a new variant of legal English is being elaborated, which comprises new terms that do not form part of legal language of common law or lexical items used with another meaning.
1.3 Legal Texts
All the characteristics of legal language analysed until now take form in legal discourse by means of legal texts and documents, which may be considered special texts different from other kinds of texts. According to Gotti (2012) a series of features may be identified, which differentiate legal texts not only from those written using general language but also from other specialized texts (Gotti 2012, 52).
First of all what makes legal texts a distinctive typology is the language in which they are drafted (not meant as idiom, but as language for special purposes). Secondly, another peculiar feature of legal documents certainly is their constraining nature, because of which legal texts tend to
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follow particular stylistic and structural rules typical of legal field, that need to be observed not only by the producer, but even by translators.
Generally speaking, some common shared characteristics between texts may be found. But, as well as language, legal documents are bound to the legal system they are expression of.
Moreover, a large range of legal texts manifests the heterogeneity of law itself and different legal texts present different functions and structures. Many authors have attempted to classify legal texts into genres according to various criteria, which will be mentioned in the next paragraph. The analysis of genres of legal texts constitutes an important instrument to understand legal discourse from a general perspective and legal texts from a particular one.
However, before providing a classification of legal texts, it is important to identify what needs to be considered to underline general features that makes legal texts and documents “legal”.
Legal texts are a part of legal discourse. At first analysis, any text related to law can be considered as legal text. J.C. Gémar (2002), for instance, argues that:
“le texte juridique present trios caractéristiques qui le distinguent des autres: il s’agit d’un texte normative disposant d’un style et d’un vocabulaire particuliers”
(Gémar 2002, 166)
Therefore, legal texts are normative texts which present a particular style and vocabulary.
Gémar continues his study defining legal text as any text which is issued by a legislator, such as constitution, law, decree, by a judge and by other institutions with legal power, such as notary or an attorney. This means that every text produced by a subject or entity performing his legal profession may be considered as a legal text.
According to this point of view, people who are not specialists of law are excluded.
According to Asensio (2003), indeed, what is important to consider in order to identify a legal text is the context in which it is produced. In particular, if its realization takes place in a legislative, judicial, contractual or administrative context, it may correspond to a legal text. But, again, according to this view, texts such as essays and articles on legal issues seem to be excluded from the definition of legal text.
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A more general and comprehensive view is provided by other authors, such as Albi and Albir which argue that legal texts may be distinguished from other typology of text taking into account the entire discursive situation of the text, which means the sender, the receiver, the register and the objective (Berūkštienė 2016). According to this criteria, laws, decrees, judgments, as well as encyclopedias, essays and articles may be defined as legal texts because all the elements which constitute them are strictly tied to legal background.
At the beginning of this work, we have considered legal language as a language for special purposes. Therefore, we may argue that legal texts are texts for special purposes. Indeed, they reflect the six properties of languages for special purposes identified by Lehrberger (1986), as reported by Berūkštienė (2016) in her work:
1. Limited subject matter, which in this case can be defined as Law;
2. Lexical, semantic and syntactic constraints, peculiar to legal language;
3. “Deviant” rules of grammar, expressed by the sentences’ length and particular order.
4. High frequency of certain constructions, such as nominalizations, passives.
5. Text structure, often predictable and formulaic.
6. The use of special symbols, such as abbreviations and acronyms.
1.3.1 Classification of legal texts into genres
Once analysed the main features that defines a legal text, a distinction in terms of genre may be possible on the basis of various perspectives about what the concept of genre includes and what needs to be taken into account for its determination, such as text-external criteria (function, communicative purpose, context) or text-internal criteria (structure and syntactic characteristics) or both text-external and -internal criteria (Rasmussen and Engberg 1999). Many authors provided their own definition of genre. As Alcaraz and Hughes (2002) point out:
“By ‘genre’, or ‘text type’, we mean each of the specific classes of texts characteristic of a given scientific community or professional group and distinguished from each other by certain features and vocabulary, form and style, which are wholly function-specific and conventional in nature.”
(Alcaraz and Hughes 2002, 101)
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The authors continue their work providing a list of stylistic and formal features shared by texts belonging to same genre:
- “A shared communicative function expressed by means of the same performative verb;
- A similar macrostructure, which means format and organizational outline;
- A similar discursive mode of developing the macrostructure and similar discourse technique;
- A common lexical and syntactic arrangement of the material and a common set of functional units and formal features;
- Common socio-pragmatic conventions.” (Alcaraz and Hughes 2002, 102)
Alcaraz and Hughes (2002) add that besides genre, also sub genres of the major typology of texts are identifiable, which are related to the internal subdivision of law itself in civil law, criminal law, administrative law, employment law, European Union law, land law, property law, and to the different activities performed by legal professionals. According to the authors, determining the genre may be helpful for translator, who need to understand the peculiarity and the nature of the texts they are dealing with and go beyond the lexical, syntactical and semantic equivalence.
Relying on Swales’ model, Bathia (1993) also gives a definition of genre, defining it as “a communicative event which is characterized by a communicative purpose and mutually understood by the professional community in which it regularly appears” (Bathia 1993, 13). Moreover, most of the times, genre may be recognizable because of its “high structured and conventionalized” nature, that allows to perceive its communicative purpose. In addition, Swales argues that different examples of genre present a network of similarities concerning structure, style, content and intended audience (Berūkštienė 2016, 93).
As stated by Gotti (2012), genre not only provides a conventional framework of reference but also has consequences on the other textual features and influences the development of concepts.
Indeed, producers of texts got used to follow certain rules and forms in each text type. Genre also represents a significant element in order to better understand the macrostructure of legal texts because there is usually a close relationship between the type of legal text and its structure.
It may be stated, essentially, that all the authors seem to agree that genre is defined at least by some elements: the communicative purpose, i.e. the function, the content. i.e. the branch of law, the structure, and the context of use. According to these criteria, different classification may be
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provided, depending on the approach adopted and on the element considered. A summary of these various approaches is provided below.
With regard to structure of a legal text, it may be considered as the format of a text, the organization and the relationship between its different parts and elements. Talking about a macrostructure, Alcaraz and Hughes (2002) define it as:
“by macrostructure we mean the dominant outline or organizational framework of a given genre, i.e. the layout of its constituent parts.”
(Alcaraz and Hughes 2002, 103)
The majority of genres within legal texts, such as legislation, contracts, judgments and last will have a standard arrangement, which includes not only the division of the text into different parts but also the layout of pages in terms of spacing, paragraphing, punctuation and even typographic characteristics (Berūkštienė 2016, 98). According to Tiersma (2003), the most relevant characteristic of the structure of legal texts is represented by the fact that it is highly formulaic and stereotypical. The authors adds that some texts may appear more elaborate with respect to structure, but the majority of routine documents usually present a static structure.
Analysing the structure and formalism of legal texts, Mattila (2016) observes that the structure of legal document is quite elaborated and the logical disposition of content tends to proceed from the general to particular, from the abstract to concrete, following a hierarchical order.
Indeed, “the principal items are presented before secondary items, and general rules before special conditions and exceptions” (Mattila 2016, 106). This type of argumentation is due to the fact that legal discourse is characterized by intertextuality and interdiscursivity (Gotti 2012), which means that there is a constant reference to previous laws, articles and regulation when drafting and producing a new legal text. Therefore, a hierarchical order and a disposition in blocks, sections, paragraphs, all numbered, may be helpful to have a coherent and cohesive structure.
Besides the structure, different legal texts perform different functions. As Sabatini (1990) points out, a first classification of texts may be provided in relation with the degree of rigidity of the constraints provided by the author of the text. Therefore, he divides texts in highly binding, middle binding and poorly binding. Highly binding texts are characterized by a rigorous and identifiable structure, composed of brief texts blocks, mainly numbered and linked through connectives; they always make reference to precise principles expressed or indicated within the texts. These general
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criteria may be applied to legal texts too, with normative texts belonging to first category, together with scientific and specialized texts. Within normative texts Sabatini identifies law, decrees, regulations, contracts. Other typologies, which may be identified as non – authoritative texts, belong to the second category. Indeed, they include all texts which are written in the domain and context of law, but they do not have legal force. Each group is then characterized by a specific function and concrete text type. Nonetheless, Sabatini is keen to underline that in practise a real and sharp distinction between each category may not exist. Indeed, texts are often considered as mixed, because they may present different characteristics at the same time.
Another scholar, Garavelli (2001), provided a classification of legal texts based on the distinction of the fundamental purposes of the language used in legal context: the creation of rules, their interpretation and their application to concrete situations. On the basis of this tripartite division, Garavelli (2001) distinguishes texts into:
- Normative texts, which include constitutions, conventions, laws, decrees and regulations;
- Interpretative texts, which encompass manuals, encyclopaedias, articles in law journals, essays, doctrine;
- Applicative texts, which include procedural documents, administrative acts.
In 1971 the major contribution to the analysis of texts taking into account not only the subject of matter, but also their function was provided by Katherina Reiss. Reiss classified texts as expressive, conative or informative. In her theory law and contracts as informative texts. Opposed to this view is Susan Šarčević, who argues that the function of legal texts may vary in connection with the context and typology. Although legal texts may be regarded as informative in a certain degree, it is not their primary function (Šarčević 1997). Their main function is normative, therefore regulatory, because they normally define rules of conduct, allowing some behaviours and prohibit others. Relying on the bipartite system of languages in legal theory, according to which language has two main function, regulatory, i.e. prescriptive, and informative, i.e. descriptive, Šarčević (1997) categorizes legal texts into three groups depending on their function:
- “primarily prescriptive”;
- “primarily descriptive but also prescriptive”;
- “purely descriptive”. (Sarcevic 1997,11)
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The first group comprises legislative texts, such as law and regulations, codes, treaties and conventions. This type of texts are regulatory tools, which contains rules of conduct or norms. The second group is composed of hybrid texts, because they contain both descriptive and prescriptive parts. They include judicial decisions and litigation documents used in judicial and administrative proceedings and documents used as evidence such as witness statements, records, certificates. The third group, instead, consists of texts written by legal scholars, such a legal opinions, law textbooks and article. We may affirm that the classification proposed by Šarčević resembles the one provided by Garavelli, arguing that primarily prescriptive texts correspond to normative texts, primarily descriptive and also prescriptive correspond to applicative texts and purely descriptive correspond to interpretative texts.
As mentioned above, Alcaraz and Hughes (2002) emphasize that different legal texts may be found in various contexts in which law and legal practitioners perform their activities. The authors indicate three groups of genre of legal texts. The first group consists of legal texts issued in the field of statute law, public law and judicial decision; the second group is composed of texts found in private law setting out legal arrangements made by private individuals, such as contracts, last will and deeds; the third group, instead, includes academic writings on the law, such as textbooks, professional articles and opinions (Alcaraz and Hughes 2002, 125). Relying on this categorization, it may be stated that Alcaraz and Hughes provide a classification of legal genre, manly based on the branch of law involved.
In the recent years, the attention of scholars when classifying legal texts according to genre has been moved towards a deeper understanding of the relationship that occur between text and context of use. Maley (1994) classifies legal text according to what he calls “discourse situations”, intended as the situation in which the text is used. This criteria gives rise to four groups of texts (Maley 1994, 15):
1. “Sources of law” and originating points of legal process, which include laws, regulations, wills, contracts, etc...
2. “Pre-trial processes”, including pleadings, consultations, jury summons;
3. “Trial processes”, which refer to spoken texts that are not analysed for the purpose of this work;
4. “Recording of judgment” in law reports.
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A similar approach is adopted by Cao (2007), who argues that legal language is a type of register, intended as a variety of language use. Consequently, legal texts are texts produced or used for legal purposes in legal settings, i.e. situations of use. Within legal written texts, the scholar distinguishes between (Cao 2007, 9-10):
1. Legislative texts, including domestic statutes, laws, international treaties and multilingual laws;
2. Judicial texts formulated during the judicial process by judicial officers and other legal authorities;
3. Legal scholarly texts released by academic lawyers or legal scholars;
4. Private legal texts comprising texts such as contracts, leases, wills, private agreements and witness statements.
Another type of classification of legal texts, which somehow is different from the others, is the one provided by Danet (1980). As reported by Gotti (2012, 61), Danet developed a sociolinguistic scheme for the genre of legal language, in which she characterizes each legal genre according to its style: frozen, formal, consultative and casual. Only the first two are related to written forms of legal language, with frozen written including insurance policies, wills, contracts, and formal written comprising statutes, briefs, appellate, opinions.
In conclusion, even if many authors propose different criteria in order to classify legal texts into genre, they all agree that they need to share some features, whether they be internal or external, and the recognition of genre proves relevant to better understand legal discourse and consequently produce a satisfying translation.
1.3.2 Legal texts and genre within European Union
Having provided a brief summary of different classifications of legal texts in general, it’s now useful for the purpose of this work, analysing existing legal texts and typologies within the context of European Union.
In his work, Robertson (2012) analyses the main features of EU legal texts, focusing in particular on its technical and highly standardized structure. He argues that EU legal texts are typically complex and technical because they need to pursue the “highest level of legal precision
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compatible with a multilingual and multicultural drafting environment shared between member states” (Robertson 2012, 155) presenting different legal, cultural and linguistic background. In addition EU legal texts are constructed with particular precision, because they have legal effects binding for all the Member States of the Union. The aim to be achieved is a kind of standardization across all countries and languages. This is reflected in legal texts in terms of terminology, syntax, punctuation and orthographic details reproduced in all versions, in order to simplify the communication between European Institutions and Member States. All of this implies that legislative texts are also characterized by a series of standard expressions and formulations identifiable in the various parts of a written act, such as titles, citations, recitals, articles, annexes, which lead to the production of a new genre. The formulaic style of European Union instruments is constructed as follows (Yankova 2008):
- Title;
- Name of the enacting authority (the Commission, the Council, the Parliament);
- Citation of laws and provisions which establish the legal basis of the act;
- Recitals referring to policy considerations;
- Articles, which constitute the body of the text.
Notwithstanding this, it may be still the case in which legal texts present some degree of vagueness, actually due to the needs of general and wide application. European Institutions have issued some guidance in order to achieve standardization in forms and structures, such as the
“Interinstitutional Agreement of 22 December 1998 on Common Guidelines for the Quality of Drafting of Community Legislation” and “ Legislative Drafting. A Commission Manual”.
Even in the context of the European Union it is possible to find a classification of texts.
Cosmai ( 2003) provides a classification of legal texts on the basis of a pragmatic approach, identifying four groups of texts (Cosmai 2003, 90):
1. Normative acts;
2. Political documents;
3. Administrative documents;
4. Informative texts.
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Cosmai (2003) underlines that, as a result of the large number of documents produced in the European Union, this type of classification should not be considered as static and fixed because of the interdependence and intertextuality that occurs between different kind of texts.
The first group, normative acts, includes both the primary source of European law, which means the founding or constitutive Treaties, as well as secondary law, which comprises Regulations, Directives, Decisions.
Regulations are binding legislative acts, that must be applied in their entirety across the European Union, despite the different in legal systems across the countries. Directives are legislative acts that establish a goal that all the countries in the European Union must achieve.
Nonetheless, Member States may decide forms and methods of achievement. Decisions, instead, are acts binding for those to whom they are addressed, be they individuals or Member States. The second group, political documents, consists of documents that are not legally binding. Conclusions of European councils, statements of Institutions, interinstitutional agreements, all fall into this category of texts. The third group, administrative documents, includes documents which are related not only to the functioning of single Institutions, but also to the communication within the institutions and the organization of meetings. The forth and last group, instead, encompasses a series of documents whose aim is to inform and to raise awareness of the activities and initiatives carried on by the European Union and its bodies.
The consideration provided until now about the specific features of legal language and texts has been necessary in order to introduce and deal with the thematic of the following chapter: legal translation and its challenges for translators. The present work will focus the attention on one type of text represented by Directives and their translation, comparing the English version of the text and the Italian one, analysing the specific issue of vagueness of legal language.
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2. Legal Translation 2.1 Legal translation and general translation theories
According to some scholars it may be considered almost a paradox that the demand for translation has increased, despite the wide dominance of English. This statement is mostly true for specialized translation (Gotti/Šarčević 2006, 9). Since Translation Studies has been identified as a discipline, the interest of most of the scholars was focused on the issue of literal translation, while other areas of technical translation were deemed as part of Applied Linguistics and inferior forms. Only with the establishment of Language for Special Purpose (LSP) theory, the related term LSP translation started to diffuse and it is still largely used until today. In particular, the event of globalization has resulted in the development of technical, industrial and legal translation (Gotti/ Šarčević 2006). The latter will constitute the focus of this chapter, which will analyse what makes legal translation different from the others, identifying its peculiarities and typologies.
Despite the fact that translations of legal texts form part of the oldest and important ones in the world, legal translation has long been overlooked both by translation and legal studies and systematic studies of legal translation are still at the early stages. However, the need for legal translation and competent legal translators has drastically increased (Alwanza 2014, 237), playing a relevant role in such a globalized world connecting people with different history and cultures. In this sense, over recent years, legal translation has aroused the interest of both linguists and researchers in the field of translation studies, as well as legal scholars and professionals.
Translation, indeed, represents a major instrument of communication in municipal, supranational and international law (Šarčević 1997). A good example of this acquired relevance is provided by the European Union, which poses its foundations in multilingualism and linguistic equality among the Member States. In response to this emphasis placed on equal language rights, the European Council has recently adopted a special Charter to protect the language rights of ethnic or minority groups in multi ethnic societies (Šarčević 1997, 1).
European Union laws, indeed, are translated and published in the languages of the Member States in order to become national laws and have binding force for all the citizens across Europe. As a consequence, translation represents an indispensable tool in the hands of European Institutions to function properly.
