English and German judgments/Englische und deutsche Entscheidungen

Here are some notes on the structure and style of English (and German) judgments. It is painted with a somewhat broad brush, and there is already a comment to the effect of ‘incorrect’. Suffice it to say that I agree the following is over-simplified – so it was intended to be – and it relates to a larger context which has not yet been revealed.

German judgments tend to be authoritative and impersonal. They also fail to name the parties (note: this means ‘name the parties’, not say ‘defendant’ and ‘claimant’), and sometimes even the judges (I speak from experience of translating many judgments). You don’t get much information on the history of the case or even the facts. (This means: ‘you don’t get much information’, not ‘you get no information at all’. The story of the case tends to be cryptic).

Quoting Intellectual property in the new millennium: essays in honour of William R. Cornish (quoted from Google Books):

On the other hand, the English judgment is exemplary in style. The judge writes personally, he sets out the matter in a concrete and detailed manner, he explains what he thinks, opines, has reservations and doubts, is irritated or may retrospectively correct a witness without correcting him. The English judgment is discursive, in some ways narrative, but nonetheless human. It is to a significant extent the expression of a human interaction with the parties and also the case. It allows much more to be understood by the third party reader (and also the parties), and it should be valued for this.

Just because the German judgment is impersonal, it doesn’t mean it isn’t the judge’s personal opinion. Just because the English judgment is personal, it doesn’t mean the English judge is not bound by statutes and precedents.

Where is it laid down what form a judgment has to take?

Supposing it’s a German civil judgment, the Zivilprozessordnung (Code of Civil Procedure) contains provisions. Take section 313:

§ 313 Form und Inhalt des Urteils
(1) Das Urteil enthält:

1. die Bezeichnung der Parteien, ihrer gesetzlichen Vertreter und der Prozessbevollmächtigten;
2. die Bezeichnung des Gerichts und die Namen der Richter, die bei der Entscheidung mitgewirkt haben;
3. den Tag, an dem die mündliche Verhandlung geschlossen worden ist;
4. die Urteilsformel;
5. den Tatbestand;
6. die Entscheidungsgründe.

(2) Im Tatbestand sollen die erhobenen Ansprüche und die dazu vorgebrachten Angriffs- und Verteidigungsmittel unter Hervorhebung der gestellten Anträge nur ihrem wesentlichen Inhalt nach knapp dargestellt werden. Wegen der Einzelheiten des Sach- und Streitstandes soll auf Schriftsätze, Protokolle und andere Unterlagen verwiesen werden.
(3) Die Entscheidungsgründe enthalten eine kurze Zusammenfassung der Erwägungen, auf denen die Entscheidung in tatsächlicher und rechtlicher Hinsicht beruht.

What about the English judgment? The Civil Procedure Rules don’t go this far. Are English judges free to write as they like?

It’s true that there are no practice directions or rules that stop an English judge from choosing the structure of a judgment. But there are recommendations – admittedly fairly recent ones.

For instance, the Judicial Studies Board was only founded in 1979. It has a website and you can there download as a PDF file its Civil Bench Book. However, although this apparently used to contain advice on how to write a judgment, it was compeltely revised in 2006 and I can’t find anything.

However, there is a lot more information in the book by Andrew Goodman, How Judges Decide Cases: Reading, Writing and Analysing Judgments. My link is to the 2004 edition, but there is a 2007 one. It’s a down-to-earth, concise book covering how to read and write, and stylistic aspects of judgments. Goodman consulted and obtained information from a large number of judges of every level, nearly forty of whom are named in the preface and some more of whom preferred to remain unnamed. There are a number of notes on how to structure a judgment. The author is a barrister and a professor of conflict management and dispute resolution studies in the USA (at the mysterious Rushmore University). He was particularly influenced by a 1940 book by Mortimer Adler, How to Read a Book. I haven’t read the whole, but I have the impression that the remarks on how judges use language and linguistic analysis are a bit thin. Adn what it says about ratio and obiter is not likely to be new. But the collection of information on the structure and context of judgments is excellent.

I don’t know how interested legal translators are in judgments. But, along with statutes, they form a large part of the material that people who are writing an MA or a PhD /Dr Phil like to cite, because they are publicly available.

Translation theory is a subject I’ve only ever had time to dabble in. I think it would be interesting but probably requires a leap of faith to put the effort in before reaching that point. Academics who write about legal translation theory are few in number. In Germany, all those I can think of specialize in countries with civil-law jurisdictions, and languages such as Italian, Spanish, French and Dutch. But I have a feeling that some of these academics like to throw in a few references to the common law, because they know that common-law countries have excitingly different legal systems and they think they aren’t doing comparative law without it. And that’s where all this twaddle about the nature of English law originates, because the more outlandish the idea, the more likely it is to be true in England or the USA.

19 thoughts on “English and German judgments/Englische und deutsche Entscheidungen

  1. “They also fail to name the parties, and sometimes even the judges.”

    That is incorrect. All this information has to be given, according to

    • Thanks for the comments. I have added a few notes to make it easier for you to understand what I’m saying. Yes, I’ve seen rhyming judgments, and of course in England and the USA too, but that’s not really what I’m referring to.

  2. “They also fail to name […] sometimes even the judges (I speak from experience of translating many judgments).”

    We’ll have to take your word for it, but a judgement that doesn’t name the judge(s) wouldn’t be legal. It would in fact not be a judgement at all.

    Also, the case’s history is usually very detailed.

    I suspect you’ve been reading/translating _published_ judgements? Maybe that’s the problem, as those are publications are just excerpts from oftentimes much, much longer judgements.
    The judgements you can read in NJW or other publications are indeed barely understandable regarding the case behind them.
    But they are far from complete, and especially anything that can be used to identify parties or judges is cut on purpose because of privacy issues.

    Also, you have to read the judgements of all previous courts that have decided in the matter before. The courts usually don’t repeat what has been proven/discussed beforehand, and so, the OLG/BGH judgements which get published often just discuss some highly theoretical, very fine details.
    If you want to get a feel on how judgements are written in Germany, read judgements from the Amtsgerichte or Landgerichte. They often are quite the opposite of what you describe.

    • Points taken. It’s true, I have often had published judgments and I suppose the judges’ names were blacked out rather than missing altogether.

      As for the difference in style in judgments from different levels, I decided not to even mention that. The truth is that translators very rarely have to deal with first-instance judgments.

      I appreciate that this comes over as an unprovoked attack on German judgments, but the fact is that I have just read an article on judgments which claims that English judges decide at will, there is no statute law in England but only ‘spoken law’, whereas German judges are obliged to follow the law; English judges write in the first person because they are expressing their personal opinion, German judges write in the third person or impersonally because they are stating the law, not their own opinion. In contrast to that I’m building up by profiling English judgments (of higher courts) – which vary extremely – in case any translator readers are interested, but they may not be.

  3. Well I was a bit terrified by what you initially wrote as well. Because an incomplete judgement, that doesn’t explicately state its opinion will be thrown out at the next instance. How is the higher court suppossed to decide if the details of the case are not explicit?

    That facts are missing in a judgement would be a sign of an holy inadequate legal system,that fails in training judges, definetly doesn’t offer proper ability to appeal judgements. No “Rechtstaat” could work like this.

    Proffessionally I had to deal with such a judgement once from a Nigerian court. (Please note I have read better ones from Nigeria as well ;)). The level of scrutiny that judgements face in England and Germany at every hurdle makes that unimaginable.

    Of course there is a difference between the style of English and German judgements. The english ones are indeed more suited for non-lawyers to read, refrence less and explain more. That is the reason in my opinion why they are mostly longer. Sometimes that is anoying to a professional but I see value in it. In the end you have to say that a German and English judgement will always include fundamentals.

    • I didn’t think too much about how this would come over, I realize.
      But I did not mean to say that a German judgment does not explicitly state its opinion. Where did I give that impression?
      And for the second time, when I said ‘you don’t get much information on the facts’, I did not say ‘the facts are omitted’. I understand you people are annoyed at me, but you might at least read what I wrote before attacking.

      Of course it is not so important that the names of the parties aren’t given – I’ve discussed this before and it’s related to privacy. Of course, the initial letters of their names are.
      I just remember translating a lot of constitutional judgments about churches in the 1970s, and it was too late to get the background out of the press, and without the names of the persons involved I found it really hard to get concrete information.

      German Reader says you need to read the decisions of the lower courts. But I can’t usually get hold of those. So yes, I’m saying that an English judgment is more likely to help the reader who hasn’t got the time or opportunity to read the earlier decisions in the matter.

      I also think that German law is very elegant, in parts at least, but it can be more fun to learn English law through cases than German law through invented F

  4. I’m actually neither annoyed nor do I feel attacked. I did only respond because I felt someting has to be set right.

    When translating judgements you should of course have the complete history of a case. I can’t see how a professional translation that meets the standards I’d set for my self is suppossed to be possible. When translating you have a necessary room for interpretation and this room has to be structured by as many validated facts as possible.

    I feel for you. It is an amazing job you have where you constantly switch from one world to another. I have always the greatest respect for translators.

  5. We are a not-for-profit educational organization, founded by Mortimer Adler and we have recently made an exciting discovery–three years after writing the wonderfully expanded third edition of How to Read a Book, Mortimer Adler and Charles Van Doren made a series of thirteen 14-minute videos, lively discussing the art of reading. The videos were produced by Encyclopaedia Britannica. For reasons unknown, sometime after their original publication, these videos were lost.

    Three hours with Mortimer Adler on one DVD. A must for libraries and classroom teaching the art of reading.

    I cannot over exaggerate how instructive these programs are–we are so sure that you will agree, if you are not completely satisfied, we will refund your donation.

    Please go here to see a clip and learn more:

    http://www.thegreatideas.org/HowToReadABook.htm

  6. I wonder if Max himself can read a blog?
    He certainly seems to ramble on in his own world without understanding a word of your informative blog article.
    If he can’t read a blog, how can Mortimer teach him to read a whole book?

  7. ‘The truth is that translators very rarely have to deal with first-instance judgments.’

    Well, it depends. German divorce decrees are first instance and are, unless there are lot of children and a lot of assets involved, a paradigm example of shortness and pithiness with little need to go ruminating into dirty-linen background.

    Also different types of higher court-level judgment in English, civil or criminal, are written in different styles: personal (Lord Denning/land law and equity cases) to impersonal (taxation of trusts).

    UK tribunal determinations are another kind of judgment, sometimes delivered by legally unqualified Chairmen/women, but no one bothers about them.

    Also remember that (lazy) English High Court judges often have their judgments drafted for them by Counsel in a Draft Order. Quote: ‘please give us the draft on a computer diskette to make our lives easier’ or ‘the greatest compliment we can pay Counsel is by lifting your draft’.

    • Yes, very true – I’ve done several divorce decrees as certified translations. I haven’t thought about the problems for people translating English ones into German. The worst I have had, when the client was requested to have the whole document translated without omissions, had a lot of details on the financial decision, but since German law allows divorce after living apart for one year, the dirty washing is rare. Still, I recall a lot of detail about maintenance for a child.

  8. I didn’t feel any “attack” on the German justice system, either, just a (very understandable) misconception.

    If you read NJW or other publications, than yes, in fact, it’s usually just legalese with the occasional, out of place fact thrown in there. Especially the Bundesverfassungsgericht often doesn’t seem to judge individual cases, but uses them as an occasion to write another essay about constitutional law and the evil of the world in general.
    But this shouldn’t be mistaken for the everyday life of the justice system, where reporting a case’s facts often takes more room than the legal part.

    Your initial statement is, thus, completely correct regarding the custom in _publishing_ judgements. That, I suppose, is very differently from the US/UK system, and that fact is a valuable fact in itself. Maybe even more interesting – why aren’t the details of the case more important in the practice of law than in the literature/publications in Germany?

  9. Now that you mention it, Margaret, it stroke me that I would never have believed myself to have endorsed a German tory (CDU/CSU) for a public office. However, I would have been more than happy if the Bundesversammlung had left Mr. Wulff to serve as the premier of Lower Saxony :-P

    • Yes, I didn’t so much want the coalition to be taught a lesson in the first two rounds as I actually wanted Mr Gauck to win. It’s not that I mind a CDU politician being president as that I don’t see that von der Leyen or Wulff have the right personality for it.

  10. I prepared a translation that mentioned Wulff along with his (former) title. I translated it as “Minister President Wulff,” just as you did, only to receive a complaint later that Wulff is known as the “Prime Minister” of Lower Saxony in English. It says so on his own website and Wikipedia as well (so I was told).
    Well well.It sounds like it might give the wrong idea to the English speakers out there, but luckily it seems that it is not much of an issue any more. Now I wonder if McAllister will also call himself “Prime Minister”?

    • You’re right, and I did think twice about that. I don’t know any translation of it I like, and I like Prime Minister least, but if he calls himself that, might as well use it. I’ve also heard ‘First Minister’. Must Google the other 15 websites and see if they vary!

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