5- Theoretical Part Final Draft

It is claimed that legal language is known to be difficult and complex especially when translating some legal texts from one language to another. This is due to different legal systems of countries and diverse cultural concepts in addition to linguistic features of each language. Linguistic features govern the way people think of their language. In a legal discourse, linguistic features prove to be upon the main domains one should tackle so as to understand the nature of that field and to reach an outcome useful for translation work from one language to another. English legal language is known to have certain features at the lexical, structural, and stylistic levels. Archaic words, words having different etymological origin, verbosity, and legalese are some linguistic features that may constitute the basics of the lexical level. Archaism means the use of old fashioned words in a legal text. According to Tiersma (1999), “legal language often strives toward great formality, it naturally gravitates towards archaic language” (p. 95). This illustrates that legal language uses a great number of archaic words in order to keep a mark of formality over the language. For instance, the use of the verb ‘WITNESSETH’ in contracts keeping ‘ETH’ ending for the third person singular of the present tense instead of ‘ES’ ‘WITNESSES’, and the use of imbibe, inquire, peruse as alternatives of drink, ask, and read (Alcaraz & Brian, 2002,p. 8). One might think that the excessive use of archaic words gives legal language a kind of solemnity and uniqueness that differentiate it from other branches of language. That is reflected on translation as the outcome will be constant and no changes will take place on that field. The translation of ‘WITNESSETH’ might be إثباتاً‮ ‬لما‮ ‬تم‭ ‬or‭ ‬يثبت.‭ In other words, different origins of legal words from Latin and French may constitute verbosity phenomenon that will be tackled later on. They also play the role of loan words that sometimes add meaning to the sentence like "act and deed" and "acknowledge and confess" while some legal drafters believe that there is no need for using such words as the meaning can be completed without them or as there should be a meaning for each and every word of a legal document construed differently. Furthermore, verbosity means the use of many words to convey meaning instead of using one or two words conveying the same meaning. According to English dictionary, it means "using or containing a great and usually an excessive number of words." In legal documents, there is a tendency towards using strings of synonyms in a form of couplets, triplets, and word sequence. The use of these kinds of word strings could be justified for the following reasons: The tendency to keep traditions is considered one of the main reasons behind verbosity as legislators used to write legal documents using many words to express meaning. Today, that tradition is still used widely because it gives legal documents a type of formality and technicality while there is not an actual difference between the use of simple words instead of strings of words. For example, the use of " made and signed" at the beginning of contracts instead of "made" only and "BY AND BETWEEN" instead of "by" has no reason or difference but to keep traditions. Consequently, that type of writing is translated into many languages especially Arabic. "Made and Signed" is translated as ‎‮"‬تحرر‮ ‬وتوقع‮ (‬هذا‮ ‬العقد‮)"‭ ‬and‭ "‬BY AND BETWEEN‭" ‮"‬بين‮ ‬وبمعرفة‮"‭(‬Sabra,‭ ‬2007,‭ ‬p.‭ ‬159‭)‬. Another reason behind verbosity is the tendency to produce a rhetorical effect on its readers. Looking at the following examples "aid and abet" , "have and hold", " part and parcel", " trials and tribunals", and "mind and memory" leads to the fact that there is a kind of alliteration and consonance that gives musicality and rhythm to words. Although the second word in each couplet does not add anything new to meaning, it produces the effect that this type of writing is neatly written‎‮"‬يساعد‮ ‬ويحرض‮"‭ (‬Sabra,‭ ‬2007,‭ ‬p.‭ ‬158‭)‬.‭ The caution not to mention all inclusive meanings of a legal word or term may justify why lawyers use more than one term to convey the same meaning. According to Charles Davison, drafters resort to use more than one word to secure and support themselves from choosing one word that may hold meaning which is not exactly intended. For instance, -"This Agreement may not be altered, amended, changed, or modified unless the same shall be agreed in writing and signed by the party to be charged"(as cited in Sabra, 2007, p. 160). One may notice that the previous underlined word, although look similar, differ slightly from one another as "alter" means to change the form not the essence of something. Unlike "alter", "change" is to change completely something, while "amend" is to make something better or improve something, and "modify" is to change something slightly. Verbosity proves to be important for legal writing. It semantically gives that type of discourse solemnity and prestige. The famous sentence which is said before testimony "I swear to say the truth, the whole truth, and nothing but the truth" stamps the atmosphere of courts with seriousness that helps people to focus only on the case. Verbosity lexically assures the inclusiveness of meaning and technicality, but plain readers will face difficulty to understand a legal paper written in that manner. Thus, it is advisable to consider target readers in writing. For example, laws and other codes should be drafted plainly because they are intended to regulate the lives of ordinary people while treaties should be written technically because lawyers and other consultants are the target of that type of writing. English legalese is considered to be a distinguishing feature of English legal language that causes a problem for ordinary people to understand. It is a marker of formality. English legalese consists of many categories. One category is the use of the adverbs (here, there, and where) with a huge number of prepositions in order to give new meanings. For instance: -"the Contractor is deemed to have inspected the Work Site and the surroundings thereof and to have read all available information in connection therewith." Thereof= of the Work Site Therewith= with all available information In the previous example there carries the meaning of the word after which it is mentioned. A big problem arises from the fact that there is no equivalent for those terms in Arabic. They do not exist in the Arabic discourse. In order to translate them correctly, Arabic translators have to be cultural mediators; they cannot translate those words literally, so they may resort to specialist dictionaries, or try to understand the terms conceptually and then use the closest Arabic equivalence to those words. As Sabra (2007) translates the previous example, he says" يعتبر‮ ‬المقاول‮ ‬قد‮ ‬عاين‮ ‬موقع‮ ‬العمل‮ ‬والبيئة‮ ‬المحيطة‮ ‬به‮ ‬واطلع‮ ‬على‮ ‬كل‮ ‬المعلومات‮ ‬المتاحة‮ ‬المتعلقة‮ ‬بذلك.‮"‭ Another category of legalese is the unusual use of the words ‘the same’, ‘such’ and ‘said’. Such words in legal language are used quite differently from ordinary ones. The word ‘the same’ is usually to make comparison to a similar object or person, but in legal use it refers to sameness of reference (Tiersma, 1999, p. 88). For example:    - The tenant shall pay all the taxes regularly levied and assessed against Premises and keep the same in repair.  "The same" in the previous example refers to the premises. It is agreed, when translating that example into Arabic, to simply use the article "ال‭" ‬as an equivalent to‭ "‬the same.‭" ‬Thus,‭ ‬a proper translation‭ ‬to‭ ‬that example would be‮"‬يدفع‮ ‬المستأجر‮ ‬كل‮ ‬الضرائب‮ ‬التي‮ ‬يتم‮ ‬جبايتها‮ ‬وتقديرها‮ ‬بشكل‮ ‬منتظم،‮ ‬ويحافظ‮ ‬على‮ ‬العقار‮ ‬في‮ ‬حالة‮ ‬جيدة. In other words, there are some expressions that have turned to be defined terms in legal texts. They are not attached to articles because the existence of so many articles especially "the" weakens the formality of the legal text. These expressions are such as Buyer, Contractor, Seller, Lessor, and lessee…etc. There is also the use of "and\or" which gives the possibility of any of two options or both at the same time. For instance, when we say "Lessor suffers delay and\or bear costs", it means that Lessor may suffer delay or bear costs, on one hand, or suffer delay and bear costs on the other hand. Moreover, legal drafters agree on the meanings and usages of some expressions. This is also reflected on their translations such as: Subject to Without prejudice to Unless otherwise provided in Notwithstanding Article x As such As may be necessary مع مراعاة....، بشرط أن... مع عدم الإخلال ب.... ما لم يرد فيه نصاً خلافاً لذلك في بغض النظر عما هو وارد في مادة س من هذا القبيل حسب الضرورة These types of words control meaning and give a kind of formality over legal language (Sabra, 2007, p. 140-150). Away from lexical features of legal language, the structural features prove to be the main issue for analyzing legal language. As Cao (2007) indicates, most people believe legal structure is described as complex; a mixture between inventiveness of literary language and the precision of technical language (p. 3), specifically the sentences used in legislation of laws, codes, and other instruments. The complexity of these sentences results from their exaggerated length and the difficulty to recognize the basic parts of the sentence. In addition to that, the unusual use of modals that adds ambiguity over sentences sometimes confuses both legal drafters and translators the thing which leads to disputes. As Sabra (2007) suggests, a legal sentence consists of two major parts; the provisionary clause, and qualifications.... The provisionary clause is further divided into the legal subject and the legal action, while qualifications have many types and characteristics that cannot be limited. Most legal sentences take the form of conditionals. For instance: If within 15 minutes from the time appointed for a general meeting a quorum is not present the meeting, if convened on the requisition of members, shall upon counting by the raise of hands be dissolved. إذا‎‮ ‬لم‮ ‬يتوفر،‮ ‬في‮ ‬غضون‮ ‬خمس‮ ‬عشرة‮ ‬دقيقة‮ ‬من‮ ‬الوقت‮ ‬المحدد،‮ ‬النصاب‮ ‬القانوني‮ ‬لانعقاد‮ ‬الجمعية‮ ‬العمومية،‮ ‬تفض‮ ‬الجمعية،‮ ‬إذا‮ ‬كانت‮ ‬قد‮ ‬عقدت‮ ‬بناءً‮ ‬على‮ ‬طلب‮ ‬الأعضاء،‮ ‬بمجرد‮ ‬عد‮ ‬الأصوات‮ ‬بطريق‮ ‬رفع‮ ‬الأيدي.‮ "If we look back to the previous sentence, we find out it is classified under what is called complex sentence. It consists of a subordinate clause and a main clause. The complexity of that sentence stems from the separation, subordination, and coordination of its main parts (i.e. if, main verb, and verb of subordinate clause) with many qualifications." Qualifications are not used in ordinary language with that intensity. In the previous example, there are six qualifications namely:"within 15 minutes", "from the time appointed for a general meeting", "if convened", "on the requisition of members", "upon counting", and "by the raise of hands (pp. 168-170). In order to fully analyze the previous example, one should know types and functions of qualifications. According to Sabra (2007), qualifications are classified into three categories: preparatory qualifications, operational qualifications, and referential qualifications. Firstly, preparatory qualifications function as case description that determines the necessary conditions for execution of legal action. Generally, preparatory qualifications come as subordinate clauses starting with subordinators such as "where\If-clause", "In case (event of), "Unless-clause" …etc. For instance, as previously mentioned, "If… a quorum is not present" is considered to be the assumption upon which a legal action takes place. Secondly, operational qualifications function as ascribing legal purpose and expressing temporal relations such as "within 15 minutes"...etc. Thirdly, referential qualifications determine the frame of legal action, laws and other codes that should be followed such as" without prejudice to, subject to, and notwithstanding…etc. They also include other qualifications that represent textual authority such as" hereby, in accordance with, and by virtue of"…etc, and qualifications that refer to different parts of a legal paper as "mentioned in, specified in, above and aforesaid"…etc (Sabra, 2007, pp. 180-210). Classifying different types and functions of qualifications may help to overcome the complexity of legal structure through determining main and other parts of legal sentence and breaking them into small units which consequently eases the process of their translation. As El-Farahaty (2008) reports: As for a sentence with a complex structure, the translator is advised to divide the sentence into independent and dependent clauses. This process simplifies his understanding of the main pieces of information given in each sentence, though it is not an easy task. He/she then may have a choice of following the same structure of the ST which most legal translators do. Yet, this method results in ambiguity as in the case of translating from English into Arabic. These two have different syntactic structures because the former uses a SVO[subject-verb-object] structure while the latter uses a VSO. [verb-subject-object] structure. He/she may also consider the syntactic structure of the TL and stick to the content displayed in the sentence. It is worth noting that this technique involves risk as it may lead to subjectivity or lack of accuracy. That is, content may be sacrificed for achieving formal adequacy of the TL (p. 16). On the other hand, modality is used heavily with different meaning than ordinary language especially in legislation. According to Sullivan (2002: 56–57), ‘may’ and ‘shall’ (including ‘shall not’) have the following usage: ‘May’ is used to confer an authority or a power: a person may lawfully do something that would otherwise be unlawful, or to confer a right: a person may claim a benefit or protection under the law, while ‘Shall’ is used to impose a duty – ‘a person shall . . .’ prohibit conduct – ‘no person shall . . .’ or ‘. . . shall not. . .’; create formal or substantive conditions precedent – ‘to achieve x, a person shall . . .’; and declare legal effects – ‘the contract shall be deemed valid’, ‘. . . [a particular word] shall mean . . .’ ( as cited in Cao, 2007, p. 116). "Must" is used rarely, as Sabra (2007) suggests, to mean that there is a requirement to be fulfilled (used for all requirements that are not duties) (P.102). Finally, "will" is used with its common meaning to express a future contingency or, as some drafters introduce, express obligations of two parties when the relationship is delicate. Stylistic features of legal language are many. The most prominent features are repetition or tautology, emptiness of emotions and punctuation. Legal drafters avoid using anaphoric devices or referential pronouns; instead they resort to repetition of nouns. As Mattila (2006) also illustrates, Tautology is one of the linguistic features of legal language as it is required for clarity and to avoid ambiguity that may result from replacing words or changing the parts of speech of sentences (P.66). English legal drafters resort to reduce repetitious words while Arabic does not. It is also noticed that; Although English and Arabic use similar cohesive devices in legal discourse such as repetition and reference, the frequency of such features and the way they are handled in the text is different from English to Arabic and vice versa. English for instance reduces the amount of repetitious words, as long as the meaning can be retrieved and there will be no ambiguity. For more clarification, consider the following instance from An Agreement Between Libya and the U.S.A. — II يجوز لحكومة الولايات المتحدة أن تقوم بمسح هندسي، وأرضي، ومائي، وبمسح، للأراضي والسواحل وبأي مسح آخر... وتقدم نسخاً كافية من هذا المسح مع... The Government of the United States of America may make engineering, topographic, hydrographic, coast and geodetic and other technical surveys… A sufficient number of copies with title and triangulations and other control data of such a survey shall be furnished….(as cited in El-Farahaty,2008). The previous example shows how many times the "word survey" has been repeated in Arabic (i.e. four times), while it was mentioned in English two times. Another stylistic feature of legal language is emptiness of emotions. As Mattila (2006) argues: legal language today tends to be official and formal. The style of this language is as neutral as possible because the main intention is to have an effect on the understanding, rather than the feelings, of the reader or listener. This is why one author says that the style of legal language is “cold”: it rejects all that is affective and does not include emotional elements. This is why legal texts contain practically no exclamation or question marks. Nor should legal language give rise to irrelevant associations that distract the attention (p.74). One can add, legal language is supposed to be the language of what is right and wrong, so there is no place for emotions. Thirdly, punctuation plays an important role in determining meaning of a legal sentence. Recently, legal drafters have started to give much attention to graphitic and graphological devices as capitalization and italicizing and punctuation marks such as serial commas and semi-colons…etc. "The General Assembly", for instance, is italicized at the beginning of UN resolutions, and "BY AND BETWEEN" at the beginning of contracts is capitalized. Italicizing and capitalization is not common in other languages such as Arabic. Looking in English and Arabic legal languages shows that although Arabic does not have italicized or capitalized letters, still, translators may resort to boldness of letters as a way to cope with English. Translators can use them to imitate the English text with no differences except for punctuation marks system. As for punctuation marks, they differ according to languages. As El Farahaty (2008) suggests, "Punctuation marks in English vary whereas Arabic uses a few, mainly, the comma and the dot, which is used only at the end of a too long sentence. This huge difference between the two systems causes difficulty in legal translation… Arab text makers generally do not follow a well-defined system that employs punctuation marks with the same efficacy and precision as in English"(p. 21). To sum up, the above features of legal language, in one's point of view, are considered the most prominent features that could cause problems during translation process. That translators should be aware of most common feature of legal language is essential for a perfect outcome of translation process. At the lexical level, archaic words, words having different etymological origin, verbosity and legalese have been tackled. At the structural level, complexity and modality have been discussed, and punctuation problems in general have been viewed. References Alcaraz, E. & Hughes. B. (2002), Legal Translation Explained, Manchester: St. Jerome Publishing. Cao, Deborah (2007). Translating Law. Clevedon, Multilingual Matters Ltd.UK. El Farahaty, E. Hanem (2008, August), Legal Translation: Theory and Practice, Volume:1 issue:2. The Journal of the Saudi association for languages and translation. Definition of Legal Action (2012, February 2). Retrieved from http://www.thefreedictionary.com/verbosity Mattila, Hekki.E.S. Translated by Christopher Goddard (2002). Comparative Legal Linguistics, Ashgate Publishing Limited, England. Sabra, M. M. A. (2007), Al-Asoul Al-fenneya fe Al-Siaga AL- Kanooneya 2nd ed, Giza. Tiersma, P. (1999), Legal Language, London: The University of Chicago Press. PAGE \* MERGEFORMAT 12