Category Archives: law

Book on legal lexicography announced

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This book doesn’t come out till November 2014 and already it has favourable reviews!

Legal lexicography or jurilexicography is the most neglected aspect of the discipline of jurilinguistics, despite its great relevance for translators, academics and comparative lawyers. This volume seeks to bridge this gap in legal literature by bringing together contributions from ten jurisdictions from leading experts in the field. The work addresses aspects of legal lexicography, both monolingual and bilingual, in its various manifestations in both civilian and common law systems. It thus compares epistemic approaches in a subject that is inextricably bound up with specific legal systems and specific languages. Topics covered include the history of French legal lexicography, ordinary language as defined by the courts, the use of law dictionaries by the judiciary, legal lexicography and translation, and a proposed multilingual dictionary for the EU citizen. While the majority of contributions are in English, the volume includes three written in French.
The collection will be a valuable resource for both scholars and practitioners engaging with language in the mechanism of the law.

Legal Lexicography. A Comparative Perspective. ed. by Máirtin Mac Aodha, Council of the European Union.

Contents: Foreword, Lionel Smith; Introduction; A view of French legal lexicography – tradition and change from a doctrinal genre to the modern era, Pierre-Nicolas Barenot; The Early Modern English law lexicon, Ian Lancashire and Janet Damianopoulos; Legal lexicography: a view from the front lines, Bryan A. Garner; The challenges of compiling a legal dictionary, Daniel Greenberg; Bilingual legal dictionaries: comparison without precision?, Coen J.P. van Laer; Pour des dictionnaires juridiques multilingues du citoyen de l’Union européenne, Pierre Lerat; Principes terminologiques pour la constitution d’une base de données pour la traduction juridique, Thierry Grass; Translation and the law dictionary, Marta Chroma; Multinational legal terminology in a paper dictionary?, Peter Sandrini; Database of legal terms for communicative and knowledge information tools, Sandro Nielsen; Defining ordinary words for mundane objects: legal lexicography, ordinary language and the word vehicle, Christopher Hutton; Establishing meaning in a bilingual and bijural context: dictionary use at the Supreme Court of Canada, Mathieu Devinat; La phraséologie chez des jurilexicographes: les exemples linguistiques dans la deuxième édition du Dictionnaire de droit privé et lexiques bilingues, Patrick Forget; Inconsistencies in the sources and use of Irish legal terminology, Malachy O’Rourke; The struggle for civic space between a minority legal language and a dominant legal language: the case of Māori and English, Māmari Stephens and Mary Boyce; Index.

This could be interesting, although it is a bit of a mixed bag. The editor at least is working on how to improve the law dictionary from the translator’s point of view. I recognize Sandro Nielsen’s name because he plays a big role in a Wikipedia entry on Legal Translation.

Via Juritraducteur

Ms Justice

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How to address judges

This is now outdated. There is now a Ms Justice.

A high court judge, Alison Russell, QC, has become the first to be formally addressed as Ms Justice after being given permission to use the title in court.

Judges in the high court are normally referred to as Mr Justice or Mrs Justice but Russell, who joined the bench full time in January and specialises in family law, was allowed to update the traditional form.

They have been called Mrs Justice before, whether married or not, because Miss Justice sounds like misjustice.

But then there was a time when Dame Elizabeth Butler-Sloss was called ‘Lord Butler-Sloss’.

Dame Elizabeth, who is sister to the late Lord Chancellor, Lord Havers, and aunt to the actor Nigel Havers, became a High Court judge in 1979 at the age of 46. In 1988 she broke new ground when she was appointed to the Court of Appeal. She was called Lord Justice Butler-Sloss and “My Lord” for six years until the then Master of the Rolls, Sir Thomas Bingham, said that she could be called Lady Justice Butler-Sloss.

One question is why indicate a judge’s sex at all. I see that if a text refers to Mrs Justice or Ms Justice, you know it’s a woman judge. It may be a good thing that people realize that female judges exist, or it may be unnecessary discrimination. In a German text, it would always be ‘die Richterin’. I remember correcting students for translating that as ‘the woman judge’ (a colleague famously took a mark off for just writing ‘the judge’ and thus missing out part of the meaning).

The translation question also arises with ‘Frau Schmidt’ and so on, where the translation needs an English title. Ideally the client should know whether Mrs, Miss or Ms will be preferred. If you don’t know whether the Frau is married or not, will she be offended to be called Ms?.

It is very difficult to get called Ms here in the UK. The fact that people don’t believe it can be pronounced on the phone is one thing – I seem to spend hours hanging on the phone trying to sort things out – but there seems a tone of ill-will sometimes if I insist on it. I therefore pass as Miss a lot of the time, since Dr feels like overkill and I don’t want to pass as Mrs (airlines usually give the choice between Mr and Mrs).

My feeling is that things were different here thirty years ago. I was shocked when I first received a birthday card from a relation addressed to “Miss”. And I discover that when I ask companies to write to me as “Ms”, there is either surprise at my insistence or irritation. My surprise isn’t because in Germany every woman is “Frau”, but because things have changed in this country. Eve Kay confirms my feeling:

A quick survey around the offices where I work uncovered an interesting generational divide. Most of the women under 30 had never even heard of the title Ms and couldn’t understand why I was so worked up. Equally, most of the women over 30 were vociferously in favour of Ms and thought the title Miss preposterous. Elisabeth Murdoch, chief executive of the company I work for, noted: “You become a Ms as opposed to a Miss on your first day as a professional … I don’t think you take a Miss seriously (nor would you take Master seriously). And, as for the choice of Mrs – I am not someone who subscribes to the idea of assuming your husband’s identity rather than your own.”

A note on punctuation: BrE says Mrs, Mr, Dr, Ltd are contractions, not abbreviations, so take no full stop at the end. I suppose that Ms is the same, even if no one is sure what the long form is. AmE tends to put a full stop (period).

Beschwerde/appeal

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strafrechtsblogger (Konstantin Stern) has been continuing its series on Englisch für Strafverteidiger – English for criminal defence lawyers. I am sorry to appear to be picking on this, and I did like the post on Der Beschuldigte. There have been 19 posts on English so far – I may have missed some. But when it comes to Beschwerde, I feel my fingers reaching for the keyboard.

Die Beschwerde lässt sich mit complaint sowie grievance übersetzen.

Für das Einlegen der Beschwerde gibt es mehrere Möglichkeiten. Entweder wird es simpel mit to complain übersetzt, oder es wird aus den Verben to lodge, to file oder to make a und dem Substantiv complaint zusammengesetzt. Beispiel: to make a complaint.

One nice thing about these entries is that they are down-to-earth and simple. As soon as I start taking it apart, it will appear complex and confusing – possibly a reason I should never have been a teacher.

But this will not stop me. Still, at the outset, here’s my summary: I would translate Beschwerde as appeal, and if necessary add some more description. The word appeal is used fairly widely in English and will cover Berufung, Revision, Beschwerde and more, although if their specific meaning is important, more detail will be needed.

Now down to brass tacks:

1. Grievance is not appropriate, because it is part of general English, not legal terminology.

2. Here’s a definition of Beschwerde in German.

There are various kinds of Beschwerde, but they are never directed against judgments.

Robbers, Introduction to German Law, has: ‘request for relief from an administraive act; interlocutory appeal in civil proceedings’.

Dietl: Beschwerde 1. (als Rechtsmittel)ë appeal (gegen from)
auf Grund der Beschwerde des (als Rechtsmittel) … on an appeal by …
Das Rechtsmittel der Beschwerde findet gegen solche Entscheidungen statt, durch die ein das Verfahren betreffendes Gesuch zurückgewiesen ist.
“Beschwerde” is an appeal to the higher court from the dismissal of a motion (or application) concerning a procedural issue.

Romain: complaint (injustice, grievance to superior, etc), grievance, request for relief; remonstrance, appeal against an administrative act; interlocutory appeal, appeal from a court order (from interlocutory or final decisions in the form of an order and not judgment)

3. Finally, what is a complaint, in legal terms? The Oxford Dictionary of Law defines it as follows:

1. The document used to start certain types of criminal proceedings in a magistrates’ court, or the process of using such a document to start proceedings. 2. A formal allegation of a crime.

That rules complaint out as a translation of Beschwerde in England and Wales.
In the USA, according to Black’s Ninth, it can also mean ‘the initial pleading that starts a civil action’.

Yet another book I haven’t read

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Dietrich Busse’s Recht als Text first came out in 1992. It looks like a heavy linguistics text.

From Words to Deeds describes the book as a classic on German legal linguistics and links to a video describing its value. The video shows Professor Anne Lise Kjær describing the book – in Danish, fortunately with English subtitles.

For Professor Kjaer, this book is important because it promotes an approach bringing together linguistics, jurisprudence and social science, where the institutional framework of law and the roles of judges, lawyers and lay parties in a trial are essential to understanding and analyzing the language of the law. Professor Kjaer also stresses the importance of text in a lawyer’s work.

It’s a sad fact of growing old that one can begin to say: here is a book I am unlikely to get round to.

Loss of capitals in court names

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There’s going to be a ruling today on whether whole-life sentences for murder are acceptable or whether the European Court of Human Rights should prevail.

It’s in poor taste, perhaps, that the capitalization in The Guardian was what caught my eye – Joshua Rozenberg’s article:

One of the most important sentencing cases in many years comes before the court of appeal on Friday. …

At a broader level, the court will have to decide whether to follow English law or human rights law as declared by the European court in Strasbourg. Chris Grayling, the justice secretary, will certainly be taking a close interest in the outcome. …

The lord chief justice is sitting, of course. On either side of Lord Thomas of Cwmgiedd will be two judges who will have hoped they might now be occupying his chair: Sir Brian Leveson, president of the Queen’s bench division, and Lady Justice Hallett, vice-president of the court of appeal criminal division. Sitting with them will be Lord Justice Treacy, who succeeded Leveson as chairman of the sentencing council, and Mr Justice Burnett, a well-regarded public lawyer who was counsel to the Princess Diana inquest before he became a judge. …

It was because of a ruling of the European court of human rights delivered last July in a case called Vinter. The court’s grand chamber had found that “there must be both a prospect of release and a possibility of review” for a life sentence to be compatible with article 3 of the human rights convention, which bans “inhuman or degrading treatment or punishment”. … the Council of Europe, which runs the human rights court. … Northampton crown court … the Human Rights Act, courts in the UK need only “take into account” Strasbourg rulings unless it is possible to interpret them in a way that is compatible with human rights.

Queen’s bench division? Why not queen’s bench division then? Human Rights Act but human rights convention?

I wonder what the Guardian Style Guide (style guide?) would tweet on this?

Guardian, Observer and guardian.co.uk style guide.

Telegraph style book on courts and crime.

The Economist Style Guide on capitals:

A balance has to be struck between so many capitals that the eyes dance and so few that the reader is diverted more by our style than by our substance. The general rule is to dignify with capital letters organisations and institutions, but not people. More exact rules are laid out below. Even these, however, leave some decisions to individual judgment. If in doubt use lower case unless it looks absurd. And remember that “a foolish consistency is the hobgoblin of little minds” (Ralph Waldo Emerson).

Qaddafi? Benedict? Schröder?

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Deutsche Sprache schwere Sprache: new initiative for English-speaking courts in Germany

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In 2010, in a post on the first German court hearing in English, I summarized what I could find out about the success of the initiative. The planned statutory change did not come about, presumably because the legislative period came to an end.

The same plan, however, is revived in a draft statute in Hamburg: Hamburg beschließt Gesetzesinitiative. Die Gerichtssprache ist … bald auch Englisch? in the German (!) legal magazine Legal Tribune.

The plan is to encourage more parties to use the Hamburg courts for international disputes. One reason for parties to litigate abroad or to use arbitration is allegedly the fact that cases in Germany are conducted in German. Chambers for international commercial matters, where the court language could be English, are to be established if the statute is passed.

Presumably the judges and all the court staff would have to have fluent English and be able to discuss German law in English.

It’s good that not all those involved are over-optimistic. One of the comments refers to an article by Wolfgang Bernet: Vom „Law made in Germany“ zur „Justice made in English“, commenting on the initiative. He points out the lack of empirical evidence that it is specifically the language of the court that frightens people off. At all events, the Hamburg courts already deal with documents in English, and if they have any doubts, they can consult a (specialist) dictionary – including online dictionaries such as LEO (sic).

Bernet thinks language may be the last reason why parties are put off.

Rechtswahl und Gerichtsstandsvereinbarungen sind Machtfragen: die geschicktere und einflussreichere Partei setzt sich in den Verhandlungen mit ihren Klauseln durch. Und da – so ist zu hören – wird selbst von Lieferanten und Herstellern mit Sitz in Deutschland das Heimatrecht keineswegs blind übernommen; erst recht mögen sich auswärtige Parteien in dieser Rolle nicht mit den käuferfreundlichen Bestimmungen des BGB und des CISG anfreunden, zudem deren Abbedingung über § 307 BGB auch im unternehmerischen Rechtsverkehr nur sehr eingeschränkt zugelassen wird. Und da man befürchten muss, dass die deutschen Gerichte, einmal angerufen, die Absichten der Vertragsparteien wohlmeinend durchkreuzen könnten und auch Rechtswahlklauseln kritisch gegenüber stehen, geht man diesem Risiko lieber aus dem Weg. Zur Steigerung der Attraktivität hier anzusetzen, könnte Erfolg versprechender sein, als bei unveränderter Rechtslage englisch zu verhandeln.

The question then arises as to how easy it is to express German legal concepts in English, particularly in oral reaction to unexpected arguments in court.

There was an example of this in the hearing reported on in my earlier entry: the court suddenly needed to use the term Grundurteil. The term was left in German and presumably defined. Romain defines this as judgment on the basis of the cause of action (reserving the amount to a later decision). It isn’t in Dietl. There’s a question about in LEO, but the link given is now dead. We had a discussion on a translators’ mailing list about this today and decided that interlocutory judgment (as used in the online ZPO translation) is misleading, because a Grundurteil is final as far as the merits of the case are concerned. But maybe the judges would consult the online translations of statutes. After all www.cgerli.org was presumably set up to help in this. I don’t know why German courts always love Dietl and not Romain: I use both.