So today really is the birthday of the current Lord Chancellor!
My first hope for the election would be that we could have a different Lord Chancellor, perhaps a lawyer, but at least one who acts lawfully and doesn’t make one ashamed to be British.
See Jack of Kent on Grayling: the Lord Chancellor who told the High Court to disregard the Rule of Law
Thank goodness the Supreme Court has ruled that Prince Charles’s ‘black spider memo’ letters to parliament can be disclosed:
full judgment and press summary as PDFs on the Supreme Court site.
Judgment read out on youtube:
R (on the application of Evans) and another v Attorney General
This relates to letters predating the coalition legislation under which the royal family are exempt from freedom of information law: see 37 here (PDF).
But attention quickly concentrated on the use of an exclamation mark in the judgment (fortunately in a dissenting opinion):
LORD WILSON: (dissenting)
168. I would have allowed the appeal. How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence!
Jack of Kent on Twitter:
Jack of Kent @JackofKent
So Lord Wilson has brought a long distinguished judicial career to an end by using an exclamation mark in a judgment pic.twitter.com/s8KF8QgMEJ
In another mailing list last week, I was struck by the question of how to translate the term divorce decree into German.
One would normally write Scheidungsurteil, but recently the term Urteil has been removed from German divorce law, apparently because it makes divorce sound like a fight (haha!). Indeed, all family law cases now end in a Beschluss, which sounds more harmless, allegedly.
See Es gibt keine Scheidungsurteile mehr in Thomas von der Wehl’s blog.
Wir haben nur durch das neue FamFG eine neue Begrifflichkeit erhalten. Aus einem schwer nachvollziehbaren Grunde hat der Gesetzgeber den Begriff Scheidungsurteil abgeschafft und durch den Begriff Scheidungsbeschluss ersetzt. Er wollte damit ausdrücken, dass es sich bei Scheidungsverfahren um angeblich weniger streitige Verfahren handelt und dieses Weniger an Streit mit dem etwas geringerwertigen Begriff “Beschluss” kenntlich machen. Ich halte das für Unsinn, zumal die Vermutung, Scheidungsverfahren seien weniger weniger streitige Verfahren, häufig falsch ist.
So the colleague’s question was: do we change the translated term to suit new German practice? The answer on all sides was ‘no’.
And yet when English law removed the term plaintiff and replaced it by claimant, translators in the UK followed suit, even though the term plaintiff is used in Ireland and thus in the EU, and also in the USA and other common-law jurisdictions. And similarly, in family law, it’s common to use contact instead of access in translations, just because the term has changed in English law.
Of course one has to consider how close the concepts are in German law and English law. And also whether the audience is from one specific jurisdiction – it’s statistically more sensible to use plaintiff unless the readership are purely from the UK.
I’m trying to think of other cases where changes in terminology might affect translations. One area is the introduction of ‘politically correct’ usage, which may occur in the USA and UK before it does in Germany. Should a German institution use non-sexist language in its English documentation even if it doesn’t in German? I think so.
The names of courts, court personnel and lawyers often change. So do forms of companies and partnerships.
Of course, many concepts are not close and the target language needs a definition. It’s only terms like Scheidungsurteil and plaintiff that are close enough that one wonders whether to follow changes in the target language.
Inter alia
This was a recent mailing-list discussion.
We are advised nowadays to avoid Latin expressions, even in legal English. When avoiding inter alia, we are widely advised to use among others, but this doesn’t always work.
inter alia: among other things
inter alios: among others/among other persons
Actually, among others sometimes works in a wider sense, but not always.
Thus, here it works, as ‘others’ is taken to refer back to ‘factors’:
The survey, carried out by The Economist, rates locations based on factors such as stability, healthcare and infrastructure, among others.
and
here it doesn’t work:
Museum collections have been enriched with video records. Registered accounts are devoted to, among others, functioning of ghettos in Lublin, grounds of the Majdanek camp after its liquidation, and post-war fates of a former prisoner of KL Lublin.
These are often non-native English texts, but they may have taken their advice from native sources.
There is a problem that Bryan Garner, who edits Black’s Dictionary, does say in his book on style that
‘among others’ refers to both people and things. This is not the view of Mellinkoff or of The Cambridge Guide to English Usage or of Thornton on Legislative Drafting – all agree with me that ‘among/amongst others’ means people.
One of my colleagues quoted a slightly edited example from a search engine as a sentence where ‘among other things’ would not work, he felt:
For example, the Transparency and the Markets in Financial Instruments Directives, among others, have come into effect since 2003.
Among/amongst and while/whilst
We also had an argument about this. Some don’t like the use of amongst and whilst, which are more common in BE than in AmE, but even in BE less common than the forms without -st on the end.
I don’t think it’s relevant to us BE speakers that it sounds pretentious for Americans to use those forms, although we may think about our target audience if they are Americans. My target audience is often a variety of native and non-native speakers of English in Europe, some of whom are going to be from the USA, so I tend to use double inverted commas and I suppose I should avoid ‘amongst’. I certainly avoid the verb ‘to undertake’ in a contract because I believe, rightly or wrongly, that Americans find it odd. A colleague in Vienna (no, not you, Adrian) once got very hot under the collar at the very idea I might pander to Americans, but there it is.
But as for the use of ‘whilst’ in BE – I hate it! I wonder why. I don’t hate ‘amongst’. I think I am being snobbish here. I associate it with people who aren’t very well educated. But I haven’t found that confirmed.
Wikipedia:
Some publications on both sides of the Atlantic disapprove of whilst in their style guides (along with “amidst” and “amongst”); for example:
Times Online Style Guide: “while (not whilst)”
Guardian Style Guide: “while not whilst”
Hansard: the Canadian Parliament record: “while not whilst”
More Latin
I have mentioned before that lawyers’ Latin differs from jurisdiction to jurisdiction. You can have a nice library of glossaries of legal Latin for England and Wales, Scotland, the USA, Germany, Austria and Switzerland.
There’s been a move to reduce Latin and for legal texts to be comprehensible to the public for some years now, famously in Woolf’s Civil Procedure Rules in 1998. But not every intended simplification really works.
A 2004 article in the Law Gazette, Language Barrier, is useful. Quoting David Ibbetson, professor of civil law at Cambridge University:
‘Sometimes Latin phrases were used as a sort of shorthand for technical terms which could not be translated into simple English,’ he says.
‘Actus reus, for example, doesn’t simply mean guilty act, and to try to translate it out of the Latin into comprehensible English would risk giving the impression that it had an ordinary language certainty.
‘So we do have to be careful not to try to achieve a spurious comprehensibility at the expense of accuracy.
That said, there can be no excuse for retaining Latin terminology simply because putting it in English would demystify the whole law – like insisting on singing operas in German because the words sound so silly in translation.’
Mutatis mutandis
Finally, one of the expressions found useful is Latin, is mutatis mutandis. Note that this has been replaced in English legislation by ‘with the necessary modifications. Here’s a Google search:
“with the necessary modifications” site:www.legislation.gov.uk
This gets 30,000 ghits, whereas ‘mutatis mutandis’ gets 220.
I will be getting back to legal translation matters – really! Meanwhile:
1. Postman’s leg £2.95:
Apparently these are also sold as Dinosaur Bones.
2. Burns Night tomorrow: Lidl has or had kilts on offer.
3. Between the Lines: podcasts on literary translation, including Joyce Crick on Freud and Kafka in English and Anthea Bell and Jo Catling on translating W.G. Sebald.
4. It seems holders of manorial rights in land will not be able to claim damages for fracking.
5. I suppose it’s not likely that, if Scotland were to be independent, Orkney and Shetland would have to be handed back under udal law? It does appear that a very few people, possibly not including royalty, are or were pursuing this line.
AN INDEPENDENT Scotland will have to hand back Shetland and Orkney according to Denmark’s British Ambassador.
In partnership with Norway’s King Harald V, the Danish regent Queen Margrethe II intends reviving the ancient rites of Udal Law which were ratified by the Scottish parliament in 1567.
I am excited to announce that Thomas West has been running a legal blog for a couple of months – I have only just seen it.
The blog can be accessed from his website, www.intermarkls.com.
Most of the posts so far are on Spanish to English legal translation, but there will certainly be posts on German coming, on German law and Swiss law above all.
The opening post in 2014 is headed 10 Ways to Improve Your Legal Translations – it contains a lot of useful advice:
3. Beware of British terminology in the bilingual dictionaries:
High Court (a court of first instance in England, but used by American journalists to refer to the United States Supreme Court)
locus standi (this is called “standing” in the United States)
Rules of the Supreme Court (this is the equivalent of the Federal Rules of Civil Procedure in the United States)
Yes, I remember being surprised to read the US press writing about ‘the high court’.
Be careful not to assume that the photograph of the former King Juan Carlos of Spain, who has been testing the adage ‘The King can do no wrong’, with Tom, who looks different and as far as I know has done less wrong.
The post Costas, costes y costos reminded me that in England we talk about court fees and lawyers’ costs. There used to be a term taxation of costs, meaning review of the necessity of costs, where a court officer, called a taxing officer (this gives the word taxing at least three meanings), reviews whether the solicitors had overcharged (the service is only available in connection with a court case, but the court’s fees, of course, cannot be challenged in the same way). The term has apparently been changed to detailed assessment since 1998. However, taxing officers and taxation orders are still so called. Here’s the Law Society on making a complaint about your solicitor’s bill.