Category Archives: terminology

Accessibility / Barrierefreiheit

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Jeremy Keith of Adactio went to Berlin last December for the BIENE website accessibility awards and wondered about the German language, under the heading ‘The language of accessibility’:

… I was thinking about the German word being used to describe accessibility: “Barrierefreiheit”, literally “free from obstacles.” It’s a good word, but because it’s describes websites by what they don’’t contain (obstacles), it leads to a different way of thinking about the topic.
In English, it’’s relatively easy to qualify the word “accessible.” We can talk about sites being “quite accessible”, “fairly accessible”, or “very accessible”. But if you define accessibility as a lack of obstacles, then as long as a single obstacle remains in place it’s hard to use the word “barrierefrei” as an adjective. The term is too binary; black or white; yes or no.

This also relates to the fact that creating an accessible website is not such a problem as keeping it accessible, and ensuring a client has an accessible website is not a question of expensive extras, but of fewer extras.

He was also a bit concerned that he might have offended jury members by calling them all du (I presume not).

(Transblawg is a not a barrier-free website)

LATER NOTE: Transblawg may well be more barrier-free since its move to Serendipity.

Kinds of goods /Waren und Güter

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Wikipedia has an entry headed Final good, which subsumes all kinds of things as goods. For example, the public good and private good are listed as types of goods.

I am in a quandary. I don’t feel like correcting the article, because it is about economics terms and not language. I also feel that people like the Language Log bloggers would see me as a prescriptivist.

But for me, the public good is an abstract, only ever used in the singular, and consumer goods always has an s on the end, and never the twain shall meet. That is, goods is an example of pluralia tantum – nouns that in a particular sense occur only in the plural.

However, there is also a technical meaning of good: a particular article that is produced in order to be sold. So it’s not part of everyday English, but it fits in that article. I’m still not happy with the heading – it’s not a disambiguation article, after all.

Claimant, plaintiff, pursuer / Kläger

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Parties to civil proceedings in England:
Up to 1999: plaintiff and defendant
(divorce: petitioner and respondent)
A claimant included a person claiming some benefit, for instance unemployment benefit.

From 1999 (Civil Procedure Rules)
claimant and defendant
(divorce: petitioner and respondent)
A claimant for unemployment benefit etc. (as before)

In Scotland: pursuer and defender
(divorce: petitioner and respondent)
Benefit claimant as above

Most English websites mention ‘claimant (plaintiff)’ – after all, it’s only been seven years since the change. A Google search for claimant -plaintiff site:uk produces mainly references to benefit claimants.

Here’s an exception: the claimant user guide of Her Majesty’s Courts Service.

I have previously linked to Michael Quinion on this subject. He writes of legal Latin being ‘swept away’, which seems a bit sweeping, so to speak.

I mention this because I don’t often use the word claimant to translate Kläger(in). My translations don’t just go to England, either. Do people who translate for England and the rest of the UK use claimant? Do translators for the EU and the European Court of Justice? I think maybe only sometimes. And I remember in 2000 or 2001 asking a British publisher client whether I was now to use claimant, and getting the answer ‘When it’s appropriate’, which suggested to me that the problem hadn’t even filtered through.

Nugatory / Richtersprache

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A translator was wondering recently how to translate the word nugatory into German. A judge had used it, saying that it didn’t really matter whether a decision was made on appeal or not, since there would be no money to be got – the decision would be nugatory.

It’s typical of judges in English and in German to use this kind of word. I wonder if it’s used at all outside legal language. I decided to search at Bailii – the new judgments rather than the old ones. Some examples:

THE USE OF THE COMPLAINTS PROCEDURE UNDER ARTICLE 90 OF THE STAFF REGULATIONS IS NUGATORY WHERE A DECISION IS MADE BY A BODY SUCH AS A SELECTION BOARD FOR A COMPETITION , WHICH ADJUDICATES IN COMPLETE INDEPENDENCE AND WHOSE DECISIONS CANNOT BE AMENDED BY THE APPOINTING AUTHORITY . (ECJ 1981)

The second main ground for the application is that if matters are allowed to proceed next week then the appeal will be rendered nugatory. (Court of Appeal, 1996)

In such situations as Vafi, where a change in circumstance would render the substantive hearing nugatory, requiring the matter to go to substantive hearing before having the proceedings struck out would result in the parties incurring unnecessary additional costs. (Irish Law Reform Commission, 2003)

In our view, the Sheriff misdirected himself by not expressly taking all these matters into account when exercising his judgment as to whether or not the mere appearance of “bias” on his part was sufficient to render the first four days of the proof entirely nugatory and to necessitate a fresh start. (Court of Session, Scotland, 1998)

Here it seems quite often to relate to appeals. I also find legal dictionaries defining it as meaning ‘being without operative legal effect (held that such an interpretation would render the statute nugatory)’ (Merriam Webster). Things are often rendered nugatory. (‘He misdirected himself’ is another nice legal expression).

Muret-Sanders says ‘besonders juristisch: unwirksam, nichtig’. This won’t work for the appeal, though. I once found unbeachtlich being used in this way, but that won’t always work either.

Dog law

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I’ve been meaning to write about the Abmahnwelle in Germany, but since I haven’t researched it in depth and there are new examples every day, I don’t get round to it. I did mention it in an earlier entry.

Abmahnen means to send someone a letter before action. For instance, lawyers can do this to people whose Impressum is inadequate. The rules for the Impressum, the legal notice on a weblog that allows the person in charge to be contacted, are similar throughout the EU, I believe, but it’s only in Germany that legislation enables such a wide range of people to sue and collect fees. It’s a source of income for some lawyers to sue on formalities, because they can collect their fees. It’s particularly ridiculous that in order to sue someone for a formal defect in an Impressum, you have to be able to contact them, and the sole purpose of the Impressum is to enable you to contact the webmaster – so the mere fact you are able to take action against them proves the Impressum was doing its job.

Fortunately Larko has written on the topic in English. He says it’s a combination of legislation and some German courts. I had thought it was just the legislation. Here on the Impressum (note the link to the Abmahnwelle blog, in German):

The justice system is also frequently abused by lawyers who choose to sue bloggers and forums as a matter of routine although they could just as well write to the blogger or forum administrator and politely ask them to remove an offensive comment or post. Rather than negotiating in a civilized manner, they promptly sue because they can then charge their fat fees from the person who was sued even if the dispute itself is settled. This sort of dog law approach is so common in Germany that there is a word for it: Abmahnwelle. And believe it or not, a special blog was recently kicked off with the sole purpose of covering lawsuites against bloggers.

Incidentally, I hadn’t encountered the term dog law, but apparently it was coined by Jeremy Bentham with reference to judge-made criminal law:

It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do – they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.

But these German lawyers could not behave in this way if the legislation did not support them.

This term dog law was used in German to refer to the Abmahnwelle by Professor Maximilian Herberger, I learn.

It would be fundamentally unjust to punish someone for violation of the law, if this person did not have a fair chance to know the law beforehand. This would be, as Jeremy Bentham has put it in criticism of his contemporary law, a kind of “dog law”, the point of comparison being that the dog learns about his failures only by being punished. He has (in this view) no chance to know the applicable rules before.

I still think dog law is a bit of a misnomer for the whole phenomenon, since it seems to result from legislation, even if judges and lawyers exploit it in unjust ways.

Every Dog’s Legal Guide here.

I picked up this discussion in RA-Blog, where one of the commentators had strong objections to Larko’s use of the word sue for out-of-court pursuit. I notice I used the word sue above myself loosely. When I wrote that German law allows a wide range of people to sue, that was correct, because even if they have to write a letter before action first, they could still sue afterwards. But it was strictly incorrect to say that German lawyers earn money from suing. They earn money from sending letters before action. I suppose this might be misleading for someone who doesn’t know the German legal system.

Incidentally, the commenter tells Larko that he can find the correct translation of Abmahnung in a dictionary. Obviously an optimist.

Translating ‘Rechtsverordnung’ into English

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In a recent comment, the term Rechtsverordnung was mentioned, and it reminded me of an article by Geoffrey Perrin, then of the Sprachendienst, Bundesministerium der Justiz, in an issue of Lebende Sprachen so long ago that the cover was still blue (LS No. 1/1988, pp. 17-18). It is one of the best things I have ever read on German-English legal translation. There was a later article on the vocabulary of juvenile crime and prosecution that was good too. I found Perrin translated the Nationality Act (Staatsangehörigkeitsgesetz) for Inter Nationes, who have published English versions of numerous statutes both on paper (I ordered some free of charge by post once) and online. This translation is also available at the German Law Archive.

The article takes the problems of translating the term Rechtsverordnung into English as examples of the problems of translating legal terminology in general. For a summary, see the continuation. Continue reading →