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Category Archives: terminology
“Wir sind da ein Rechtsstaat”
There’s been some discussion of how Angela Merkel responded to a Palestinian girl who spoke very fluently of her situation but afterwards began to cry, apparently in the stress of the moment. Merkel took the line that Germany can’t take all immigrants without exception, because there are too many. In a TV interview ranging over the political situation before the summer break, Merkel defended her statement, saying Germany is a Rechtsstaat. From Die Zeit:
In diesem Zusammenhang verteidigte Merkel ihre Reaktion auf ein weinendes Mädchen aus dem Libanon. “Ich finde, die Geste war in Ordnung.” Sie könne ja nicht Menschen, mit denen sie diskutiere, sagen, “weil du jetzt die Bundeskanzlerin getroffen hast, ist dein Schicksal schneller zu lösen als das von vielen, vielen anderen”, sagte Merkel. “Wir sind da ein Rechtsstaat.”
The Local translates this as follows:
“I think the gesture was fine,” Merkel, 61, said Sunday.
She said it would be wrong to tell people “just because you met the chancellor, we can resolve your case faster than many, many other people’s”.
“We are a state under the rule of law,” she said.
I often use that translation for Rechtsstaat, but it seems to me that state under the rule of law puts the wrong emphasis here: it emphasizes that the individual has rights and can enforce them at court, whereas Merkel is emphasizing law as a system that needs to be enforced. Maybe constitutional state would work better here.
This problem is particularly acute for interpreters, who have to translate this kind of thing off the cuff, and may also encounter references to the Third Reich as Unrechtsstaat: however you translate it, it tends to lose its rhetorical punch.
DIN terminology online
Beuth Verlag publishes standards, and on the few occasions I would have liked to use one, they were too expensive for me.
Now the publisher has put DIN terminology online free of charge.
The first site gives the translations of terms used in norms, the second gives more information such as definitions, notes and examples, but it requires registration:
DIN-TERM online
DIN-TERMinologieportal (registration needed)
Thanks, Marc!
Changes in legal terminology
If a legal concept changes slightly, a new term may be introduced to replace the old.
For instance:
enduring power of attorney (EPA) up till September 2007
lasting power of attorney (LPA) from October 2007
These are the common powers of attorney you might take out for an aged parent while they are still compos mentis and have registered later. There are definite differences so the distinction is necessary.
But what about family-law terms like
custody > residence
access > contact
See John Bolch, A matter of terminology:
Perhaps the best known example – one that still catches out lay people (and some older lawyers) – is the new names given to the two main types of children’s order by the Children Act 1989. Out went the old terms ‘custody’ (which, incidentally, is still understood throughout the English-speaking world) and ‘access’. In their place came ‘residence’ and ‘contact’. I acknowledge that ‘residence’ has a different meaning to ‘custody’, but is a ‘contact order’ really that different to what an ‘access order’ used to be?
See that article for more on: child arrangement, ancillary relief > financial remedy, Divorce Registry > Principal Registry, registrar > district judge, child mnaintenance > child support > child maintenance, absent parent/person with care > non-resident parent/parent with care > paying parent/ receiving parent > parent who pays/parent who receives
As John writes about custody and access, these are terms familiar throughout the English-speaking world. It’s all quite a pain for translators out of English, and also into English, especially if they don’t translate from German for one specific jurisdiction.
In a later post, also on Marilyn Stowe’s family law blog, (Are the terms ‘custody’ and ‘access’ really degrading?). John Bolch writes that the terms custody and access are still sometimes used but some regard them as degrading. This sounds as if the change in terminology was regarded as a move towards PC.
My personal bugbear is the replacement in England of plaintiff by claimant. There was no change of meaning that might have justified this: it was purely done because the hoi polloi were not expected to understand it. But the term remains used in Ireland and hence in the EU, in the USA, Canada, Australia, New Zealand and elsewhere. When I translate into English for German clients my translations are not just for England so I always write plaintiff.
Changing terminology
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 et al.
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.