Lawyers using dictionaries: a guide

Terrence R. Carney, of the University of South Africa, has published Linguistics for Legal Translation (thanks to Juliette Scott in her From Words to Deeds blog). The book can be downloaded free of charge as a PDF.

The book is intended not for scholars of linguistics but for legal practitioners.

The focus is statutory interpretation, though constitutional interpreters and interpreters of contracts might also gain from this text. Furthermore, I wrote the book specifically for those who must clarify lexical semantic and pragmatic meaning contested in case law, but who have no official training in linguistics or language studies. More precisely, the book aims at providing a resource for those who attempt forensic lexicological investigations in order to resolve legal disputes.

The book has a particular interest in the use of dicionaries and legal corpora. It is rather strange to read case reports where judges alight on a particular dictionary – whether monolingual or bilingual – and treat it as gospel. So one may hope that some of them come across this book and have time to read it.

 

Englisch als Vertragssprache/Zieltexter.de

I have mentioned the book Englisch als Vertragssprache by Triebel and Vogenauer before. I have now found a detailed description by Annika Kunstmann in German in Zieltexter.de:

Das Buch „Englisch als Vertragssprache“ von Dr. Volker Triebel und Prof. Stefan Vogenauer, erschienen 2018 im Verlag C. H. Beck, München, beschäftigt sich mit englischsprachigen Verträgen und der Erkenntnis, dass solche gerade bei Geltung deutschen Rechts zu mehr Missverständnissen, Fehlerquellen und Fallstricken führen können, als dies bei deutschen Vertragstexten der Fall ist.

There is more.

Zieltexter.de is an online publication by ADÜ Nord, following the closure of the print Infoblatt. I missed Richard Schneider’s announcement at uepo.de.

Von Amts wegen

I was always pleased with myself when I recognized whether von Amts wegen was to be translated as ex officio or as of (the court’s) own motion.

But I never asked myself why. Recently, someone has asked why!

It seems that the term ex officio is used in more situations in German than in English. Here is the von Beseler/Jacobs-Wüstefeld dictionary of 1991 on von Amts wegen:

 

ex officio, by virtue of (one’s) office; because of one’s position; officially; proprio motu (Lat.); upon (of its) own motion; upon/of the court’s (own) motion; in ordinary

I think if someone does something by virtue of their office, ex officio works. But if a court comes to a decision, perhaps because it usually deliberates about it, then of its own motion is appropriate.

I looked up both expressions in the big Oxford English Dictionary, but they don’t add anything much to this.

I have one other excellent law dictionary but I don’t speak much Italian so I have never read the introduction, which I am sure is wonderful. I must scan it and run it through DeepL. It is by, Francesco de Franchis, Dizionario Giuridico English-Italian, 1984

He even says where ex officio would not be used in English. It is the bilingual law dictionary every translator wants, but it is in the wrong language.

Di ufficio; si dice, ad es., che il Lord Chancellor (v.) è un giudice della Court of Appeal ex officio, come pure il President della Chancery Division e il Lord Chief Justice. Ma si noti che quando si vuole alludere ad una iniziative di ufficio e ad una istanza di parte si parla, rispettivamente, di suo officio e di its own motion e di at the instance of the parties.

 

 

 

 

 

Basil Markesinis obituaries

Sir Basil Markesinis died on 23 April 2023. There was an obituary in The Times today and in the Daily Telegraph two weeks ago. Telegraph:

The multilingual, cosmopolitan son of a former prime minister of Greece, Markesinis held, successively, the chairs of European Law and then Comparative Law at the University of Oxford, where he founded the Oxford Institute of European and Comparative Law.

Moving to London as Professor of Common and Civil Law at University College (UCL), he established the Institute of Global Law (“exceeded only by galactic”, observed one wag), holding the position simultaneously with a part-time chair at the University of Texas at Austin, where a legal colleague was quoted as describing him as “one active b—-r and as wise as a tree full of owls”.

It was quite an exciting read. If you have access to the Times or the Telegraph, you can see a photo of him wearing red trousers.  I only knew his comparative-law books on The German Law of Contract and The German Law of Torts, both several times revised and updated. I used them a lot but I regret I have never found time to read them at length. But I have long been looking forward to doing so.

Just last week the ITI German Reading Group was reading the novel “Corpus Delicti” by Juli Zeh, who under her real name is an honorary judge (proposed by the SPD) in the constitutional court of Brandenburg. I didn’t think the legal vocabulary in this science fiction novel would be a big problem for translators, but I noticed the term überholende Kausalität and wondered how I would translate it, if it were essential to the plot or to a legal text. And so I looked at Markesinis on the German law of torts. He refers to overtaking causes. An example is a medical practitioner who blinds a patient who would have subsequently become blind in any case. He queries whether overtaking is the less appropriate adjective than overtaken, which is something I was trying to get my own head around.

At all events, those two books are a really full and useful read, with plenty of references to German sources.

German Civil Code – Books 1 – 2 Commentary

Dannemann/Schulze: German Civil Code Volume I: Books 1 – 3 Article-by-Article (sic) Commentary

This is a huge thick tome which has just appeared. You might like to have a copy, although you might not like to pay the justified price of over £200 for it.

About 40 authors and over 2300 pages. Here’s the blurb at Beck Verlag.

  1. There are many so-called official English translations of German statutes online. Some are here: https://www.gesetze-im-internet.de/Teilliste_translations.htm

But you can often find translations elsewhere. Austrian and Swiss statutes are similarly available.

There used to be an official site linking translations elsewhere (only as long as the German statutes were current, although translators and lawyers do sometimes need earlier versions). Sadly that cgerli site, cited at the bottom of the opening page of this blog, now only links to hotels in Salzburg. Before that, Robin Stocks used to keep a collection, but I think it would be too much for him and me to resurrect/update it.

There is a side-by-side translation of the new post-2002 bits by Gerhard Dannemann online at the German Law Archive.

The online translation of the BGB is thus described:

Übersetzung durch ein Übersetzer-Team des Langenscheidt Übersetzungsservice. Laufende Aktualisierung der Übersetzung durch Neil Mussett.
Translation provided by the Langenscheidt Translation Service. Translation regularly updated by Neil Mussett.

It only goes as far as the 2013 update of the German original.

2. The Dannemann/Schulze commentary quotes this online translation, plus its own versions of the post-2013 sections. It does not like the translation but I assume foreign lawyers would be confused if the online version, which they sometimes pass on to clients, were different. And it has the great advantage that the authors can point out which bits of the translation they don’t like. I have not yet many examples, as I have not had time to look very closely, but for example, the general part now includes Unternehmer and Verbraucher, which the online translation calls entrepreneur and consumer. The notes show how complex the situation is: the EU directives use the term trader. Dannemann has an online translation of the new parts of the BGB post-2002 and uses businessperson, which I like. The Commentary notes:

The definition of entrepreneur (Unternehmer) is of central relevance…Even though the German word is identical, it must be distinguished from Unternehmer as used in §§ 631 et seq.

By the way, I don’t understand why section 14, in theory identical to the online translation, capitalizes the word partnership:

An entrepreneur means a natural or legal person or a Partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

The online BGB translation is often criticized by translators, but they can’t usually give examples of what they mean. Nor do I feel able to criticize them off the cuff – it’s only on the rare occasions when a specific section is problematic that it strikes me. I am giving the Unternehmer example to show how useful a commentary is.

3. Why does it say on the cover and title page “Article-by-Article Commentary”? Surely these are sections in English?

4. I love German commentaries. They are huge tomes with all sorts of details on the law, section by section. If you really need details on this Code, are not near a German law library and find this volume too expensive, I would recommend buying a used copy of Palandt’s commentary in German. Not dated before 2002, when the Code was greatly changed, but it need not be new. Here’s a screenshot from abebooks today, showing you could get the 2007 version most cheaply. There are later ones available too. I used to pick one up at a students’ bookshop in Germany.

It would answer most questions of the meaning of the Code.

5. This commentary is intended for English-speaking lawyers who know little German or little German law. It has a full introduction putting the Code in historical context. Each section has the original German (dated 2018 I think), the online translation and a number of notes under subheadings. There may be notes on the translation and on EU law.

6. I should repeat what I’ve written before, that the terminology of the BGB is consistent in what now seems an unnatural way. Many criticisms of the translations are based on a misunderstanding – they find a term unnatural and don’t realize it has to be consistent throughout, just like the original. This is why, as I’ve written before too, there must be footnotes. And this volume more than generously provides them.

Book recommendation: Katrin FitzHerbert: True to Both My Selves

Katrin Fitzherbert’s autobiography won a prize for autobiography in 1997. I only heard of it recently and picked it up second-hand. It’s subtitled A Family Memoir of Germany and England in two World Wars.

Here’s the summary from the Virago website:

TRUE TO BOTH MY SELVES is an extraordinary account of a childhood disjointed by country and by war. Curiously mirroring her English grandmother, who married a German hairdresser in London and was then expelled to Germany following the First World War, Katrin Fitzherbert was born in Germany in 1936 and lived under Hitler’s regime until, at the age of eleven, she was suddenly ‘repatriated’ to an England she had never known. There she had to forget her German father and the German language. This is the story of three generations of remarkable women, and their struggle for survival and integrity as individuals in times divided by war.

This is a readable and honest account of some parts of English and German history I know only skeleton facts about – what it was like living through WWII as a child who supported the system and then being told to pretend she had been born in London (for fear of the 1918-type repercussions), that after WWII the English tended to see all Germans as either villains or victims, the psychological pressure when no one in her family had any understanding of what it was like having to hide half of one’s own history.

The blurb on the book says:

Katrin FitzHerbert was born in Germany in 1936. She was educated at fourteen schools in Germany and England and read PPE at St. Anne’s College, Oxford. She has been a journalist, an anthropologist, and trained and worked as a psychiatric social worker. She is the founder and director of the National Pyramid Trust, a charity promoting self-esteem and resilience in primary-school children. She is married, has two daughter, and lives in London and Totnes.

Creifelds on Acolada

At the moment I use only the Dietl/Lorenz law dictionary on the Acolada platform. I more often use Romain on paper (despite the time it takes to look things up). I actually wore out the latest Romain so I bought a copy of the earlier (1994) edition. The later one had feminine and masculine versions of all German nouns where this was relevant, but I didn’t need to look up Anwalt and Anwältin myself.

When there is a new paper version of Dietl/Lorenz (with CD for both directions – currently promised for 2020), I don’t expect it will contain versions of all the latest legal terminology, but that can be found on the Web nowadays – there are quite a few law firms’ sites with a variety of options. Gradually paper dictionaries are whittled down to a few useful ones.

I always used to have an up-to-date version of Creifelds German law dictionary, and now I see that it could be put on the computer and consulted along with Dietl/Lorenz. I read this in the Acolada newsletter. Creifelds Rechtswörterbuch.

I noticed while researching this that Beck Verlag promises another book in the form of a German-English legal dictionary for 2020: This has the perhaps misleading title Rechtsenglisch and is by Rinscheid and Miller. It is as so often for anyone, including judges in (German) English-language courtrooms. It contains sentence examples and is organized both alphabetically and also thematically, so that a lawyer can learn the relevant vocabulary, for example before a client conference. I’d love to be a fly on the wall.

Zum Werk
Die fachgerechte Formulierung deutscher Rechtsberatung in englischer Sprache erfordert mehr als lediglich die Übersetzung einzelner Rechtsbegriffe. Die schnell zugänglichen Online- Wörterbücher scheinen nur auf den ersten Blick eine verlässliche Abhilfe bei der kontextgerechten Verwendung eines Rechtsbegriffs zu bieten. Mit der Vokabel allein ist schließlich noch keine Korrespondenz mit dem Mandanten geführt, kein Schriftsatz geschrieben und auch keine vernünftige Hilfestellung für eine Telefonkonferenz gegeben. Konsequenz ist eine häufig unreflektierte Verwendung von Übersetzungsvorschlägen mit in der Folge fehlerhafter Darstellung.
Die Autoren des vorliegenden Werkes schließen eine wichtige Lücke, in dem sie dem international arbeitenden Juristen eine umfassende Arbeitsgrundlage zur Verwendung der englischen Rechtssprache liefern. Hierzu ist das Werk auf drei Säulen aufgebaut. Erstens enthält das Werk ein alphabetisch sortiertes Glossar mitsamt Beispielssätzen, Erläuterungen und Hinweisen zur kontextgerechten Verwendung (Deutsch-Englisch). Zweitens sind die Begriffe zusätzlich thematisch sortiert – so kann sich der Rechtsanwender mit den in einem speziellen Sach- oder Rechtsgebiet geläufigen Vokabeln vertraut machen, beispielsweise vor einer Mandantenbesprechung. Die dritte Säule bilden Formulierungshilfen und Textbausteine für die Praxis (Emails, Schriftsätze, Telefonkonferenzen etc.).
Vorteile auf einen Blick
Das vorliegende Buch bietet
– ein klassisches zweisprachiges Nachschlagewerk/Wörterbuch mit Beispielsätzen, Erläuterungen und Hinweisen
– zusätzlich die Möglichkeit einer nach Sach- und Rechtsgebieten geordneten Suche
– Englische Formulierungshilfen aus der Praxis
Zielgruppe
Für international tätige Anwälte und Unternehmensjuristen, Richter in englischsprachigen Kammern, Juristische Fachübersetzer, Studierende der Fachspezifischen Fremdsprachenausbildung, Universitäten und Forschungseinrichtungen.

Functional and formal equivalence in legal translation

Some TranslationTalk tweets this week reminded me of the terms functional equivalence and formal equivalence. I haven’t thought about these terms for years so I thought I would refresh my memory. (This is not a disagreement with the TranslationTalk tweets – they just reminded me of it).

When I started teaching legal translation, in the late 1980s, in those glorious days when no one much wanted legal translation at all, let alone for it to be taught, except, as it happened, the Bavarian courts, I was pleased to be recommended Martin Weston’s book An English Reader’s Guide to the French Legal System. I should add that legal translation had not yet been discovered as such a cornucopia for academic investigation – this was before Susan Šarčević’s New Approach to Legal Translation (which was hampered by having to take many of its translation examples from Canadian French, which is usually translated into Canadian Frenglish). We didn’t have internet resources in the 80s, whereas nowadays, at least for the German and English language pair, there are plenty of bilingual materials online.

Martin Weston had translated in the Secretariat of the Council of Europe in Strasbourg and was then Senior Translator in the Registry of the European Court of Human Rights. His book was originally a dissertation for a linguistics MA. He has a full bibliography of works on linguistics and translation theory; law; and dictionaries and lexicography.

I found Weston’s analysis of how to translate legal terminology very useful for teaching, though when I myself had a problematic term to translate, I didn’t run through his categories in my head but simply decided how close the German and English terms should be and how they would work in my context before I decided how to translate them.

Weston says that there are five possible approaches to translating ‘culture-bound’ SL expressions (incidentally it looks as if Newmark did something like this at an earlier date):

  1. nearest equivalent TL concept (départment: county)
  2. translate word for word (Académie Française: French Academy)
  3. transcribe the foreign expression, adding a TL explanation if necessary (croissant: croissant – needs no explanation)
  4. create a neologism: a) a literal translation / calque (université du troisième age: university of the third age) b) naturalization (informatique: informatics) c) use existing naturalization (départment: department);
  5. use an existing naturalization (which may be felt to be a native TL expression) (département: department,

Number 1 is functional equivalence, number 2 is formal equivalence.

Thus one could translate le Conseil des ministres as the Cabinet – to translate it as the Council of Ministers would have no equivalent in British culture and would conflict with the English title of the decision-making body of the European Community.

It’s for every translator to decide which type of translation works in English – in any case, many translations of terms have become standard now. I was surprised at the suggestion that a civil-law lawyer might be translated as barrister or solicitor, depending on their current role, because for me the terms are too specific to the English divided profession. Weston does discuss this at length. He seems inclined to accept barrister as a generic term. Discussing how to translate avocat (p. 103), Weston finds that the differences “are not such as to preclude the trnaslation ‘barrister’, however. At the same time, though, it should be noted that, just as many international organizations have official titles in more than one language, so European Community barristers, who are now allowed to practise in any member State, must use only their original official title (e.g. avocat, Rechtsanwalt, barrister), not a translation.”

When I wanted to use this list in teaching, I tried to replace the French examples by German ones, but it didn’t work very well. If you translate Kabinett as Cabinet, I suppose you have both formal and functional equivalence. But still it seemed a useful way of thinking about terminology – not that legal translation consists solely of terminology.

If I were to encounter the word Rechtsanwalt to translate for the first time today, I would have a number of dictionaries to consult and examples to consider. I probably wouldn’t have the time to research in great detail the precise differences not only between Rechtsanwalt and Notar, but between solicitor, barrister, attorney, lawyer, attorney-at-law. As Weston writes, “In a court context, avocat (de la défense) will often be translated as ‘counsel for the defence)'”. But I would be thinking: is this close enough functionally? would it confuse the English reader? how much support does the rest of the text provide to the intended meaning? how important is a precise rendering of this term in this particular text? who is going to read it? (my texts are never intended specifically for England and Wales, but for a number of readers, some of whom aren’t even in common law systems).

I agree with Malcolm Harvey on this (A Beginner’s Course in Legal Translation: the Case of Culture-bound Terms)

Malcolm Harvey Université Lumière Lyon 2, France


Authors are divided over the merits of this technique: Weston describes it as the ‘ideal method of translation’ (1991:23), whereas Sarcevic claims it is ‘misleading and should be avoided in the translation of laws’ (1985:131). Experience shows that learners tend to overuse this device, no doubt because it is aesthetically satisfying and allows them to apply newly-acquired knowledge about the TL system. This can cause them to ignore potential dangers: for instance, the term tribunal d’instance can produce anomalies such as ‘Magistrates’ Court’ or ‘County Court’, which sound distinctly odd in the French context. This temptation is shared by dictionaries and vocabulary books, which sometimes offer incongruous or erroneous equivalencies such as Garde des Sceaux = ‘Lord Chancellor’; avocat général = ‘Queen’s Counsel’ (Gusdorf 1993:85).

Apprentice translators should double-check both denotation and connotation before resorting to a functional equivalent.

This technique is appropriate for the translation of texts intended for the lay reader (novels, general newspaper articles, political speeches etc.) in contexts where scrupulous accuracy is less important than fluency and clarity. However, in a document intended for lawyers, the technique can be misleading. 

Travelling in Germany in earlier years

I eventually got round to reading Vanity Fair when I had watched the excellent TV adaptation last year – I did not realize the book was over 900 pages long. Previous attempts had failed after about 4 pages because I thought there were no interesting characters, so I missed its light treatment of society and politics and Waterloo.

There are some parts where the characters travel to the German principalities in the summer, as was apparently common. They went by boat from near the Tower. Here from Project Gutenberg

Am Rhein

The above everyday events had occurred, and a few weeks had passed, when on one fine morning, Parliament being over, the summer advanced, and all the good company in London about to quit that city for their annual tour in search of pleasure or health, the Batavier steamboat left the Tower-stairs laden with a goodly company of English fugitives. The quarter-deck awnings were up, and the benches and gangways crowded with scores of rosy children, bustling nursemaids; ladies in the prettiest pink bonnets and summer dresses; gentlemen in travelling caps and linen-jackets, whose mustachios had just begun to sprout for the ensuing tour; and stout trim old veterans with starched neckcloths and neat-brushed hats, such as have invaded Europe any time since the conclusion of the war, and carry the national Goddem into every city of the Continent. The congregation of hat-boxes, and Bramah desks, and dressing-cases was prodigious. There were jaunty young Cambridge-men travelling with their tutor, and going for a reading excursion to Nonnenwerth or Konigswinter; there were Irish gentlemen, with the most dashing whiskers and jewellery, talking about horses incessantly, and prodigiously polite to the young ladies on board, whom, on the contrary, the Cambridge lads and their pale-faced tutor avoided with maiden coyness; there were old Pall Mall loungers bound for Ems and Wiesbaden and a course of waters to clear off the dinners of the season, and a little roulette and trente-et-quarante to keep the excitement going; there was old Methuselah, who had married his young wife, with Captain Papillon of the Guards holding her parasol and guide-books; there was young May who was carrying off his bride on a pleasure tour (Mrs. Winter that was, and who had been at school with May’s grandmother); there was Sir John and my Lady with a dozen children, and corresponding nursemaids; and the great grandee Bareacres family that sat by themselves near the wheel, stared at everybody, and spoke to no one. Their carriages, emblazoned with coronets and heaped with shining imperials, were on the foredeck, locked in with a dozen more such vehicles: it was difficult to pass in and out amongst them; and the poor inmates of the fore-cabin had scarcely any space for locomotion. These consisted of a few magnificently attired gentlemen from Houndsditch, who brought their own provisions, and could have bought half the gay people in the grand saloon; a few honest fellows with mustachios and portfolios, who set to sketching before they had been half an hour on board; one or two French femmes de chambre who began to be dreadfully ill by the time the boat had passed Greenwich; a groom or two who lounged in the neighbourhood of the horse-boxes under their charge, or leaned over the side by the paddle-wheels, and talked about who was good for the Leger, and what they stood to win or lose for the Goodwood cup.


There is more.

I’ve also look ed at Travellers in the Third Reich. The rise of fascism through the eyes of everyday people, by Julia Boyd. This collects reports by British and American visitors to the new Germany in the 1930s. There is a wide variety of anecdotes (the US athletes from poor backgrounds who went to the Berlin Olympics were amazed by the amount of food they could eat on the boa – one marathon runner had to give up the race after one mile because he had put on so much weight during the voyage).

From the introduction:

Students form a particularly interesting group. It seems that even in the context of such an unpleasant regime, a dose of German culture was still considered an essential part of growing up. But it is hard to find an explanation for why so many British and American teenagers were sent off to Nazi Germany right up until the outbreak of war. Parents who despised the Nazis and derided their gross ‘culture’ showed no compunction in parcelling off their children to the Reich for a lengthy stay. For the young people in question, it was to prove an extraordinary experience, if not exactly the one originally proposed. Students certainly numbered among those who, on returning from Germany, tried to alert their families and friends to the lurking danger. But public indifference or sympathy with Nazi ‘achievements’, cheerful memories of beer gardens and dirndls, and, above all, the deep-seated fear of another war, meant that too often such warnings fell on deaf ears.

Österreichisches Rechtswörterbuch

The small German-language dictionary of Austrian Law, Österreichisches Rechtswörterbuch by Heinz G. Russwurm and Alexander P. Schoeller, published by Juridica Verlag (2nd ed. 1997, ISBN 3-85131-067-5)

has been updated as Österreichisches Rechtswörterbuch, by Ute Svinger and Katharina Winkler, published by Manz Verlag (2014, ISBN 978-3-214-17586-3)

I completely missed this in 2014!

The new edition still has “1600 Rechtsbegriffe”. One difference is that the relevant statute reference is placed in brackets after each term it applies too.

I have done PDF scans of one double page of each and I am trying to add them – I absolutely hate this new WordPress version – can I go back to the old one? how do I add media? and what good does the change do? OK, you will have to download these PDFs if you are interested. I may replace them with an iphone shot when the light is better.

Russwurm:

Svinger:

Anyway, it won’t break the bank, and the formatting is nice – cross-referenced words appear in italics in the text.