In einem amerikanischen Artikel wird argumentiert, dass ausländisches Recht auf verschiedener Weise in amerikanische Urteile eingehen kann, dass ein ausländisches Urteil aber nicht als Präzedenzfall herhalten darf.

In legal affairs, Judge Richard Posner writes: ‘No Thanks, We Already Have Our Own Laws – The court should never view a foreign legal decision as a precedent in any way’

The article argues that it is OK to incorporate foreign law into American law:

bq. Suppose a judge happened to read a decision of the German Constitutional Court concerning the right to an abortion and found in it an argument against abortion (or perhaps facts about the motives for or procedures of abortion) that he hadn’t seen before and that he found persuasive. Suppose he wanted either to give credit where credit was due or simply to identify a source, because judges, like most other lawyers, are obsessive citers (a reflex designed to conceal the subjective and unstable character of much legal reasoning). Or the foreign decision might be material in a legal sense, for example, because of a choice-of-law provision in the contract on which the U.S. suit was based, or because the foreign decision was claimed to have a pre-emptive effect in a U.S. litigation. These would be cases in which foreign law was incorporated into American law.

Claims and defences may also be based on international law. But foreign decisions may not be used as precedents.

bq. Problems arise only when the foreign decision is believed to have some (even if quite attenuated) persuasive force in an American court merely by virtue of being the decision of a recognized legal tribunal. This occurs, in short, when it is treated as an authority, albeit not a controlling one, in a U.S. lawsuit even though the issue is purely local, such as whether abortion should be forbidden, or the execution of retarded murderers forbidden, or gay marriage allowed.

Posner goes into some detail on this.

bq. To know how much weight to give to, say, the decision of the German Constitutional Court in an abortion case, you would want to know such things as how the judges of that court are appointed and how German constitutional judges conceive of their role. You would especially want to know how German attitudes toward abortion have been shaped by peculiarities of German history, notably the abortion jurisprudence of the Weimar Republic, which is thought to have set the stage for some of Nazi Germany’s legal atrocities, such as involuntary euthanasia. And, speaking of history, it seems highly likely that the European rejection of the death penalty, which advocates of abolition in the United States cite as evidence for an emerging international consensus that ought to influence our Supreme Court, is related to two things: the past overuse of the penalty by European nations (think only of the executions for petty larceny in 18th-century England, the Reign of Terror in France, and the rampant employment of the death penalty by Nazi Germany and the Soviet Union); and the less democratic cast of European politics, which makes elite opinion more likely to override public opinion there than in the United States. For example, public opinion in the United Kingdom supports the death penalty as strongly as public opinion in the United States does, yet Parliament repealed the death penalty (except for some military crimes) in 1965 and has since steadily refused to reconsider.

(Via The Curmudgeonly Clerk)

In connection with a mailing-list query on how to translate Rechtspfleger into Italian, the European Union of Rechtspfleger was mentioned.

Until a few years ago, there was a registrar at the English county courts, a kind of sub-judge, who seemed similar to the German Rechtspfleger. But these were renamed district judges and so I hesitate to use the term – not everybody understood it even when it was generally used, and still fewer now. And there were always other registrars: registrars of births, deaths and marriages, company registrars.

The website of this ‘European Union’ is odd. Their symbol recalls the EU and uses the 12 stars, but the reference is to the Council of Europe (Europarat), which surely doesn’t use the stars? Very misleading. They appear to call themselves – in English – greffier/Rechtspfleger. They appear to have links with the Justices’ Clerks’ Society in England and Wales, but that is something quite different – a justices’ clerk is a lawyer who advises lay magistrates.

Unfortunately the English on their site leaves much to be desired, if I may mention that sore point again:

Rechtspfleger are judicial officials to whom judicial tasks were transferred to be done by themselves in their own responsibility. They belong to the higher staff of the judicial organisation, the transfer of judicial tasks needs an at least three years lasting, highly qualified formation.

Die IHK Darmstadt empfiehlt, Bankkaufmann z.B. mit “Bank Management Assistant” zu übersetzen. (Kaufmann im Sinne des HGB würde ich mit “merchant” übersetzen, auch wenn manchmal eine zusätzliche Erklärung nötig ist).

The Darmstadt chamber of commerce has a document online with a list of suggestions for translating words like
Automobilkaufmann Automobile Sales Management Assistant
Bankkaufmann Bank Business Management Assistant
Bürokaufmann Office Management Assistant

These are job titles that always present problems. I think the idea of ‘management assistant’ is a good one, even if it doesn’t solve all problems.

bq. Wir bitten darum, diese Übersetzungen zu benutzen, selbst wenn in offiziellen Dokumenten des Wirtschaftsministeriums noch die unzutreffende Bezeichnung “clerk” verwendet wird.
Wir würden es begrüßen, wenn Sie weitere eigene Übersetzungen nach diesem Schema mit dem DIHK abstimmten.

(Please use these translations, even if official documents from the Hessen Ministry of Economics still use the incorrect term ‘clerk’.
We would be happy if you would agree on translations of your other terms with us.)

For Kaufmann in the sense of someone subject to the Commercial Code, I would use merchant, although this might need explanation.

I suppose we are still getting words from French. The toilettage of texts isn’t what blocks up the drain. To quote the Sugar Traders Association (look, no apostrophe – hope Lynne Truss doesn’t see this – I think it’s a good idea to omit apostrophes in names of institutions like this):

bq. 30 May 2001 – Details of EU sugar regime compromise have been published on Europa’s RAPID database. Now the sugar regime has been agreed, the legislation will be tidied up (“toilettage”) by the SCA at their meetings on 6th and 12th June, adopted as an “A” point at the Farm Council on 18th June and shortly afterwards published in the Official Journal as a Council Regulation.

BBC News picks it up too:

bq. And before we get there, the legal texts have to be translated and double-checked in a myriad of languages – a process given the faintly unpleasant name of toilettage, or cleaning-up.

In French itself, in face, toilettage appears to mean grooming a dog.

Mark Liberman of Language Log touches on the question of redundancy in legal language.

One focus of redundancy is coupled synonyms, to quote Mellinkoff’s term:

bq. A long habit of coupling synonyms persists in American legal usage, e.g. authorize and empower, null and void, true and correct. The habit is compounded of antiquated literary style, the mixture of languages we now call English, the lawyer’s gamble on venial repetition against mortal omission, and a misplaced reliance on the precision of what has endured.

(Mellinkoff’s Dictionary of American Legal Usage – see this comparison of law dictionaries)

Mellinkoff has a long list, as does Garner’s Dictionary of Modern Legal Usage, under Doublets, Triplets, and Synonym-Strings. Garner mentions the theory that a Latin word was paired with an Anglo-Saxon one for wider comprehension (acknowledge and confess, act and deed, goods and chattels); the rhetorical elements; and the element of ignorance, where the writer doesn’t know the exact definition of any of the terms and so throws them all in. Some of these doublets/couplets are terms of art and most are purely redundant, but even in the latter case, an inventive court may surprise the lawyers by construing shades of meaning, especially if the doublet is a rare one.

The New Yorker has a review of Eats, Shoots & Leaves (see earlier entry) by Louis Menand. This is a much more careful demolition job than mine. Menand points out inconsistencies in punctuation and that the book was not adapted for the American market. So many books are adapted, far too many, and yet here, where the punctuation rules are different, no changes were introduced.

The supreme peculiarity of this peculiar publishing phenomenon is that the British are less rigid about punctuation and related matters, such as footnote and bibliographic form, than Americans are. An Englishwoman lecturing Americans on semicolons is a little like an American lecturing the French on sauces. Some of Truss’s departures from punctuation norms are just British laxness. In a book that pretends to be all about firmness, though, this is not a good excuse. The main rule in grammatical form is to stick to whatever rules you start out with, and the most objectionable thing about Truss’’s writing is its inconsistency.

How true this rings. Oh, the times I used to tell my students, ‘You can’t do that. You know, the Americans are even more pedantic than we British are.’ Did they believe me? No – because pedantry is bad and Americans are good. Or if I said, ‘The Americans divide words differently from the British’, it was ‘You don’t like the Americans, do you, because you keep mentioning them.’ (We accepted both BE and AmE from German students, as far as we could, and we had both British and American staff, with the odd Australian or Irish person).

via Language Log.