LEGAL ENGLISH AND TRANSLATION:

THEORY & PRACTICE

ANNOTATED TEXTS AND DOCUMENTS














Jos Luis Snchez Febrero


DICIEMBRE 2003




















Fecha publicacin: diciembre de 2003

Ttulo: Legal English & Translation: Theory & practice.
Annotated texts and documents
Autor: Jos Luis Snchez Febrero.

I.S.B.N.: 84-8454-310-2
Depsito legal: A-1107-2003

Edita: Editorial Club Universitario Telf.: 96 567 38 45
C/. Cottolengo, 25 - San Vicente (Alicante)
www.ecu.fm

Printed in Spain
Imprime: Imprenta Gamma Telf.: 965 67 19 87
C/. Cottolengo, 25 - San Vicente (Alicante)
www.gamma.fm
gamma@gamma.fm


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reproduccin, sin permiso previo y por escrito de los titulares del Copyright.


CONTENTS

FOREWORD .........................................................................................................................7

THEORY ..............................................................................................................................9

1. INTRODUCTION..............................................................................................................9
1.1. Theories, methods and data in the paradigm of pragmatics.........................................9
1.2. Justification of the use of pragmatic research into Legal English..............................10
1.3. The state of the art: pragmatic research into Legal language.....................................11
1.4. Legal discourse and its mechanisms..........................................................................12
1.4.1. Legal discourse as discourse of power ...............................................................12
1.4.2. Compliance of legal language with the law in force...........................................17

2. DISTINCTIVE FEATURES OF LEGAL ENGLISH......................................................19
2.1. The morphosyntactical level......................................................................................19
2.1.1. Repetition of lexical items..................................................................................20
2.1.2. Syntactical constructions derivative of a simple logical structure ......................20
2.1.3. Abuse of nominalisations and passive constructions..........................................21
2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................21
2.1.5. Infringement of the ordo rectus ..........................................................................22
2.1.6. Use of the conjunction "that" with a special meaning ........................................22
2.1.7. Use of the suffixes -er and -ee ............................................................................22
2.1.8. Frequent gerundive constructions.......................................................................23
2.1.9. Legal adjectives..................................................................................................23
2.1.10. Restrictive use of finite verbal forms................................................................23
2.1.11. Use of such as determiner, unaccompanied by the indefinite article ................24
2.1.12. Long, complex and equivocal sentences...........................................................24
2.2. The semantical level ..................................................................................................25
2.2.1. The legal vocabulary ..........................................................................................26
2.2.1.1. Adverbs, prepositions and conjunctions......................................................26
2.2.1.2. Archaisms....................................................................................................27
2.2.1.3. French terms................................................................................................28
2.2.1.4. Latin terms...................................................................................................28
2.2.1.5. Endings pertaining to Medieval English......................................................29
2.2.1.6. Realization of features in an authentic legal document................................30
2.1.1. Repetition of lexical items..................................................................................31
2.1.2. Syntactical constructions derivative of a simple logical structure ......................31
2.1.3. Abuse of nominalisations and passive constructions..........................................31
2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses ..................32
2.1.5. Infringement of the ordo rectus..........................................................................32
2.1.7. Use of the suffixes -er/or (-rix, feminine) and -ee ..............................................32
2.1.8. Frequent gerundive constructions.......................................................................32
2.1.9. Legal adjectives..................................................................................................32
2.1.10. Restrictive use of finite verbal forms................................................................33
2.1.11. Use of such as determiner, unaccompanied by the indefinite article. Said as
nominal premodifier .....................................................................................................33
2.1.12. Long, complex or equivocal sentences.............................................................33


2.2. The semantical level ..................................................................................................34
2.2.1. The legal vocabulary ..........................................................................................34
2.2.1.1. Adverbs, prepositions and conjunctions......................................................34
2.2.1.2. Archaisms....................................................................................................34
2.2.1.3. Expressive redundancies coordinated with the use of French terms............34
2.2.1.7. Juridical concepts ........................................................................................35
2.2.2. The laxity of legal language ...............................................................................36
2.2.3. The ambiguity of legal language ........................................................................44
2.2.4. The ideological component of legal language ....................................................44
2.2.4.1. Ideology markers.........................................................................................45

PRACTICE.........................................................................................................................47

3. PRELIMINARY ISSUES ................................................................................................47
3.1. Translation as a communicative process ...................................................................48
3.2. Register. ....................................................................................................................48
3.2.1. Speech acts .........................................................................................................50
3.2.2. Discourse meaning .............................................................................................53
3.2.3. The textual register.............................................................................................53
3.2.3.1. Tenor ...........................................................................................................54
3.2.3.2. Mode ...........................................................................................................56
3.2.3.3. Domain (or field).........................................................................................57
3.3. Cohesion of legal language in a Law Report .............................................................59
3.3.1. Textuality ...........................................................................................................59
3.3.2. Intentionality and acceptability...........................................................................60
3.3.3. Informativity.......................................................................................................61
3.3.4. Information structure..........................................................................................61
3.3.5. Textual relevance ...............................................................................................62
3.3.6. Intertextuality .....................................................................................................62
3.3.7. Cohesion and coherence.....................................................................................62
3.3.8. Theme/rheme arrangements................................................................................65
3.3.9. PRACTICAL ANALYSIS OF A SHORT LEGAL ENGLISH TEXT. .............66

4. TEXTS AND DOCUMENTS: .........................................................................................75
I. PROBATE LAW..........................................................................................................81
II. CIVIL LAW................................................................................................................79
III. CRIMINAL LAW......................................................................................................89
IV. INTERNATIONAL LAW.........................................................................................97
V. EEC LAW.................................................................................................................109
VI. PARLIAMENTARY LAW......................................................................................115
VII. CONTRACT LAW.................................................................................................119
VIII. HOUSING LAW...................................................................................................123
IX. CORPORATE LAW................................................................................................139
X FINANCIAL LAW.....................................................................................................145
XI. BANKING LAW.....................................................................................................151
XII. FAMILY LAW.......................................................................................................153

BIBLIOGRAPHICAL REFERENCES..............................................................................157
7
FOREWORD


This study sets out to analyse the distinctive features of specialist languages, legal English in
particular and aspires to being a modest contribution to the school of linguistic thought that a
few years ago adopted language in use, i.e. pragmatics, as the object of its concern. It is hoped
that the analysis will provide us with the linguistic key to unravel the neverending source of
meaning that all texts involve.

English legal institutions have long been studied by philologists, but not Legal
English itself. It is the recent trend in specialist languages which makes it come to the fore.
Legal language is a unity to be understood as the social image of the jargon or language of the
lite of professionalised power; it is the language of authority.

This work is divided into four distinct parts. In the first one legal English will be
subjected to a sociological analysis so that the conclusions we draw can be inserted into the
social sciences. In the second, the different distintive features of Legal English will be
discussed. In the third, theoretical background will be discussed to tackle translation. In the
fourth, a wide variety of text and documents, most of them preceded by a user-friendly
introduction, is given, together with a large number of annotated footnotes, where translations
are given for the most difficult terms.
9
THEORY

1. INTRODUCTION


If we consider Morris' (1938) theoretical triangle, we can see that the three branches that
comprise linguistics appear to be summarised at each of its vertices: syntaxis, semantics and
pragmatics.

syntaxis






Semantics pragmatics


For the purpose we have in mind we opt for the definition that considers pragmatics to be the
study of the relationship between the linguistic sign and its users, that is to say, the study of
how speakers use language to communicate, activating their common background and shared
knowledge in a particular situation. It is precisely at this last vertex that several new linguistic
trends have placed themselves: text analysis, discourse analysis, etc.

These new trends tackle the analysis of suprasentence contextualised units such as
paragraphs. Therefore the discourse/text, the length of which may range from a single word to
an essay, seems to be the new maximum unit.

Discourse and Text are partial synonyms, although for Van Dijk (1985:3) Text is a
theoretical construct that manifests itself in the Discourse (language in use). Between them
there exists the same relationship as between Sentence and Utterance. For argumentative
purposes it is taken for granted that an utterance is the pairing of a sentence and a context.

Pragmatics is concerned with utterance meaning, not sentence meaning (that is
semantics). In other words, pragmatics deals with meaning in context and may be the study of
aspects of meaning not covered in semantics.



1.1. Theories, methods and data in the paradigm of pragmatics


Linguists analysing discourse (language used in communication to make an effect on the
addressee) and text from a pragmatic perspective are interested in the formulation of theories
and models that help to better understand language use and, in particular, the parameters and
dimensions of discourse and text.
1. Introduction
10
Consequently, pragmatics, as the new trend in linguistic analysis, is called upon to
play a part when language has been put into use and is addressed to a third party. We call this
discourse.

Pragmatics studies language from a functional point of view, i.e. tries to explain
features of the linguistic structure by making reference to non-linguistic causes. Van Dyck
(1981:6) defines it as the "new interdisciplinary field made up of linguistics, poetics,
psychology and the social sciences, devoted to systematic theory and the analysis of discourses
and of its several contexts".

This is precisely our favourite definition because it comprises the social sciences.
Unless we take as a starting point the premise that discourse expresses society we will not be
able to go on to analyse legal discourse either linguistically or pragmatically. In other words,
by applying linguistics to legal discourse, the latter ingrains itself in the context of the
discourse of the social sciences and the theoretical framework that this involves. Legal texts
are therefore considered communicative processes. According to Van Dyck (1985:2),
discourse analysis has definitely diverted linguistics to the realm of social sciences.



1.2. Justification of the use of pragmatic research into Legal English


If we take legal language to be the sign and society to be the user of that sign, we will be
looking at the pragmatic side of linguistics.

In pragmatics the discovery of regular patterns in the linguistic features has been
deprived of all the attention that it commanded in previous paradigms. Neither deviation from
the norm nor formal analysis of the level features of the language are interesting anymore.

Linguists doing research into pragmatics are no longer attracted by the psycho-socio-
contextual side of discourse. Language and the text in which discourse is embodied have
ceased to be seen as a neutral medium, with only one meaning to be unravelled. Pragmatics, on
the other hand, considers discourse as a rendering of society's ideas and the language used as
not neutral because it shapes ideas.

In every language an ideology is latent, an ideology that carries presuppositions and
that has to be exposed. Since the basis of discourse is the ambiguous natural language, the
ideological load of certain words makes it necessary for the utterance to be explained from a
sociological point of view.

The words we use are already imbued -both in their singularity and in their
combination- with multiple meanings or ideological nuances. At the same time, since this
material of linguistic practice is ideologically saturated, the instance of discourse, the
utterance, is also to be explained sociologically.

LEGAL ENGLISH AND TRANSLATION
11
In this respect, Fowler (1979:26) points out that rules are instructions to direct
behaviours. Legal language sets out to monitor the behaviour of the addressees whilst hiding
this intention. It is therefore a clear case of the interests of the addressor and the addressees not
being the same.

In a more general sense, the text as a product open to observation and analysis by the
specialist is a discourse that has undergone a social process and the linguist's task is to
investigate the sociolinguistic functions of authentic texts. This line of reasoning will be
developed later when we discuss legal language as discourse of power. There we will try to
expose how abusing nominalizations and passives achieves precisely that.

The role that linguistics is called upon to play in Law studies is justified if we
consider it technology (technique making use of scientific knowledge). It is therefore
fundamental to pave the way for other knowledge to enrich it. Atienza (1985:295) mentions
linguistic methods as one of the perspectives of Law studies.

Pragmatics has potential application to all fields with a stake in how utterances are
understood. Fields like those involved in solving problems in communication (e.g. Applied
Linguistics). However, its applicability is much more ample because the possibility arises of
systematic contrastive pragmatics that isolate potential areas of misunderstanding arising from
the learner's assumption that a construction in the language being learnt (e.g. legal English)
will have the same implicatures and presuppositions as some analogous construction in the
native language. The third part of this work will use this as a starting point.



1.3. The state of the art: pragmatic research into Legal language


To the best of our knowledge, very little research has been done in this field in Spain. Only
Alcaraz has shed some light on the subject with his Diccionario de Trminos Jurdicos (1993),
El Ingls Jurdico. Textos y Documentos (1994), El Ingls Jurdico Norteamericano (2002)
and El Espaol Jurdico (2002).

Abroad things are very much the same. According to Goodrich (1984:173) the only
efforts so far made to describe the grammatical patterns of legal English have merely managed
to corroborate that it is a technical language and a self-contained one at that.

Despite this appalling state, certain research is being done into the variety of legal
English used in trials by jury. Stygall (1994) and Walter (1988) have contributed to this new
trend.



1. Introduction
12
1.4. Legal discourse and its mechanisms


We have stated above that the legal language is a discourse of power, according to Goodrich
(1987:133). Now we will try to expose the way legal discourse "works" in its attempt to
manipulate people.

In this respect we will consider two features of legal discourse, namely, its being a
discourse of power and its compliance with the law in force.



1.4.1. Legal discourse as discourse of power


One of the greatest paradoxes of the current legal culture is that "Ignorance of the law is no
defence" and the legal language is structured in such a way that laymen find it
incomprehensible. In other words, the legal language enshrouds the law, hiding it from the
public it exists to serve.

Whoever composes a legal document must take the greatest pains to ensure that it
says exactly what he wants it to say and at the same time gives no opportunities for
misinterpretation.

In this regard we can distinguish between the language used in documents (such as
wills, contracts, etc) and others (such as acts, etc).

When a document is under scrutiny in a court of law, attention will only be paid to
what it appears actually to declare: any intentions of the composer which fail to emerge clearly
are not usually considered in arriving at what the document means. We say "not usually
considered" because, as we shall see later, "interpreting" (not "construing") the text may
involve arriving at a meaning other than the one intended.

Natural language being such a breeding ground for ambiguity, to communicate just
one set of meanings while excluding many others is often impossible. Legal language has
many oddities that are clear evidence of the kinds of efforts that have been made.

Of all uses of language it is perhaps the least communicative, in that it is designed not
so much to enlighten language-users at large as to allow one expert to register information for
scrutiny by another. It is no wonder that they have no need to bother too much about the
simpler needs of the general public.

Lawyers have been doing basically the same things (drawing up wills, etc) since time
immemorial and for each transaction there has developed a linguistic formula which is known
to do the job adequately, having been subjected to long and thorough testing before the courts.

LEGAL ENGLISH AND TRANSLATION
13
As regards the second kind of legal documents (i.e. acts) the contrary seems to be the
case. The concern for unambiguity has but disappeared and this could even be thought of as
being done on purpose. Several interpretations could then be made of the text and, why not, a
steady supply of work for lawyers is thus ensured.

Consider the following section taken from the old Spanish Civil Code:

Art. 811. El ascendiente que heredase de su descendiente bienes que ste
hubiese adquirido por ttulo lucrativo de otro ascendiente, o de un hermano,
se halla obligado a reservar los que hubiere adquirido por ministerio de la
ley en favor de los parientes que estn dentro del tercer grado y pertenezcan
a la lnea de donde los bienes proceden.

Some lawyers have said that up to twenty-seven different interpretations are possible.
This could well be an extreme case of ambiguity.

As far as interpretation is concerned, judges have two criteria at their disposal:
interpretation and construction. "Interpreting" is done in the light of a theory, a belief, the
moral rules of modern societies, the judicial precedent, etc. "Construing" (from the verb "to
construe") tries to explain the textual meaning that a word, clause or sentence has in an
utterance or in a document, after a linguistic analysis.

It is a fact that both English and Spanish share linguistic features. This can enable us
to make a comparative study between the sources of ambiguity in English and Spanish.
Ambiguity in legal Spanish arises from the grammatical construction of the sentences, in
particular, from word order and the way words are connected in the structure of the sentence.
This kind of ambiguity is found in the following:

a) adjectival clauses

b) sentences containing demonstrative, relative and possessive adjectives

c) conditional clauses

Iturralde (1989:40) gives the following examples:

a) "Los letrados y las letradas de la ltima oposicin podrn jurar su cargo dentro de
un mes"

"de la ltima oposicin" can be a noun complement only of "las letradas" or of "los letradas y
las letradas".

b) "El Secretario del Juzgado citar a los encausados por orden alfabtico y les
asignar un da para que comparezcan. Esto, por ley, debe hacerse con la mayor
celeridad posible"

1. Introduction
14
"Esto" is ambiguous because, as an anaphora, does it relate to the whole sentence or only to the
fixing of a date for their appearance"?

c) The translation into Spanish of section 64 of the Danish Constitution 1920 reads:

"En el ejercicio de sus funciones los jueces estn
limitados por el derecho. Los jueces no sern separados
de sus cargos sino mediante juicio, ni sern trasladados
en contra de su voluntad, excepto en aquellos casos en
que tenga lugar una reorganizacin de los tribunales".

The phrasing of the sentence does not make it explicit whether the exception to the
reorganization of the courts is only applicable to the rule that judges cannot be transferred to
other posts against their will or also to the rule that they cannot be removed from office
without a trial.

As far as the language used in the writing of statutes and laws is concerned, the
ambiguity arises from the following three:

a) modifiers

b) dual meaning of the conjunctions "or" and "and"

c) punctuation

a') modifiers

Let us consider section 315 of the Communications Act:

If any holder of a license authorizes anybody who is a legally qualified
candidate for a public office to make use of a radio station, he will afford
same opportunity to all those other candidates for said office to make use of
such radio station. On condition that said holder of license shall not have
any power of censorship over what is broadcast as provided in this section.

This section is ambiguous, to say the least. Does the condition that the holder of a
license does not have any power of censorship only overrule the permission he can give to all
the other candidates for that office in the use of such radio station or does it also refer to
anybody who is a legally qualified candidate running for office?

Due to the fact that English and Spanish share some features this ambiguity also
arises in the translation into Spanish:

Si cualquier poseedor de licencia autoriza a cualquier que sea un candidato
legalmente cualificado a un cargo pblico a hacer uso de una emisora de
radio, ofrecer igual oportunidad a todos los dems candidatos a aquel
cargo en el uso de dicha emisora de radio, con la condicin de que dicho
LEGAL ENGLISH AND TRANSLATION
15
poseedor de licencia no tenga ningn poder de censura sobre cuanto es
transmitido, segn las disposiciones de este artculo.

b') Dual meaning of the conjunctions "or" and "and"

The Iranian Oil Nationalization Act 1951 included, according to the British,
arbitration clauses that infringed several license agreements concluded before 1919 between
Great Britain, the Oil Company and Iran. The British urged the International Court of Justice
to step in and enforce these agreements. Iran, on the other hand, questioned the jurisdiction of
the Court as arbitrator. It is precisely the final part of one of those clauses which the
disagreement was all about:

Iran recognizes as compulsory ipso facto and without special agreement in
relation to any other acceptance of the same obligation, the jurisdiction of
the Permanent Court of International Justice in any disputes arising after the
ratification of the present declaration with regard to situations or facts
relating directly or indirectly to the application of treaties or conventions
accepted by Iran and subsequent to the ratification of this declaration.

The controversy arose over the antecedent of the terms "subsequent to the ratification
of this declaration". For the British these words were linked to "situations or facts relating
directly or indirectly to the application of treaties or conventions accepted by Iran", thereby
making the jurisdiction of the court on agreements prior to 1932 a matter of course. The
Iranians, on the other hand, held that the clause applied only to "treaties or conventions" and,
consequently, the compulsory jurisdiction of the Court did not apply to obligations agreed
upon before 1932.

c') Ambiguity caused by punctuation signs is closely linked to that caused by the dual
meaning of the conjunctions "or" and "and".

Most of the problems that using punctuation signs gives rise to can be put down to the use of
complex clauses separated by commas at the end of which we find "or" or "and". As a rule of
thumb, we can say that the commas separating clauses amount to "and" if the last terms of the
list is preceded by "and", and they amount to "or" if preceded by "or".

Let us analyse section 7 of the Official Secrets Acts 1920. It was at the heart of
controversy when it was applied to the case Federal Steam Navigation Co., Ltd v Department
of Trade and Industry (R. v Oakes). The conjunction "or" was substituted in the interpretation
of the Court by "and".

The section reads:

Any person who attempts to commit any offence under the Official Secrets
Acts 1911, or this Act, or solicits or incites or endeavours to persuade
another, or aids or abets and does any act preparatory to the commission of
an offence under the Official Secrets Acts 1911 or this Act shall be guilty ...

1. Introduction
16
The counsel for the defence submitted a "no case to answer" plea, arguing that his
client had not committed an offence because he was not accused of "soliciting or inciting or
endeavouring..., or aiding or abetting and doing any act preparatory to the commission of an
offence". His plea was dismissed, and the conjunction "and", despite the fact that it was after a
series of alternatives joined by repeatedly using "or", was interpreted as disjunctive.

What the Court did is an example of the two rules of interpretation that judges have at
their disposal ("construction" and "interpretation"). The Court found the grammatically literal
interpretation inconsistent and went on to "interpret" (not "construe") what the lawmaker
presumably intended to say when drafting the law.

This discussion forces us to raise a controversial issue because the general public
feels that the law is only understood by lawyers and that engaging a good lawyer amounts to
being able to accomodate the law to suit your own personal interests. The whole business
would collapse if laws were rigidly drafted so that only one interpretation could be made.
David Pannick (1985:186) says:

This language ... serves various purposes, none of them in the public
interest. It unites lawyers, distinguishing them from laymen. It makes the
law mysterious and incomprehensible to those laymen, thus ensuring a
steady supply of work for lawyers who are needed to interpret the language
they have invented.

This quotation points to three of the harshest criticisms ever made against the legal
world:

a) the feeling of it being a hermetic world

b) the incomprehensibility of the law (and of which legal language is a vehicle)

c) the corroboration that these features are intentional and aimed at lawyers' ensuring
work for themselves

Using symbols that divert conflicts to formal spaces is very effective when it comes
to repressing the individual. By treating legal problems as problems of syntax or of a lexico-
grammatical kind, the law manages to keep the individual in his place. After something has
happened, the law, when giving an account of it, reduces the events to logical terms.

Consequently, legal language, what the law uses to express itself, is the means by
which what has happened is reduced to formulaic statements and dehumanized.

In this respect, Goodrich (1987:167) remarks that reducing conflicts or sociological
relationships to mere facts of legal relevance is a feature of legal argumentation:

The peculiar feature of legal discourse (its specificity) is resident in its
ability to "transform" and "translate" (correct and verify) ordinary language
and ordinary meaning into the closed code of the legally relevant and legally
LEGAL ENGLISH AND TRANSLATION
17
valid.

Fowler (1979:40) thinks that the structure of legal English shows an abuse of
nominalizations and passives so that orders and prohibitions are subtly transmitted. The very
fact that it is an order or a prohibition is hidden this way.

Nominalizations are transformations that reduce a phrase to its nucleus, the verb, and
this verb is turned into a noun. It permits ommitting a reference to the persons responsible for
the processes described by the verbs. Something very much like the passive voice, which
permits ommission of the agent. Goodrich (1990:180) puts it this way:

The legal vocabulary is closely tied to a syntax of generalisation; of non-
agentive passives, nominalisations (frequently postmodified or
relexicalised) and thematisations, whose overall tendency is that of
establishing distance and impersonality. The syntax of generalisation deletes
the context and specific identity of the agents of the processes described and
judged.

We could even say that the asepsy of legal language has a divine origin. Just as
religious discourse is founded upon the precept that "God made Man and the Word in his own
image", legal discourse has tended to presuppose that the law makes the individual according
to the model of sovereign discourse.

By "sovereign discourse" we understand "the reasonable man", a hypothetical person
used in law to convey that the legitimacy of a conduct must be judged according to the patterns
of behaviour accepted by society. This "reasonable man" is also colloquially known as the
"man on the Clapham omnibus".



1.4.2. Compliance of legal language with the law in force


The peculiar feature of legal discourse is that it 'transforms' or 'translates' ordinary language
and ordinary meanings into the closed code of the legal system.

Crystal (1969:214) points this out:

...This points to another characteristic of legal language that sets it apart
from most varieties: it is a form of language that must always behave in
conformity with the body of rules -the law- of which it is the vehicle. Certain
things must be said in certain ways for fear of seeming to misrepresent the
law, and before they may be said differently the law itself must often
consent.
19
2. DISTINCTIVE FEATURES OF LEGAL ENGLISH


The analysis of the distinctive features that add up to the characterisation of the discursive
meaning of legal English can be made by dividing it into the morphosyntactical and the
semantical levels.



2.1. The morphosyntactical level


To learn the law is in large measure to learn a highly technical and frequently archaic
vocabulary, a professional argot which makes frequent lexical use of specialised legal
meanings, medieval English and French, as well a pervasive use of Latin terms and phrases.

Much legal writing is by no means spontaneous but is copied directly from 'form
books', in which established formulae are collected. It is a form of language which is about as
far removed as possible from informal spontaneous conversation. It is essentially visual
language, meant to be scrutinised in silence. Anyone who tries to produce a spoken version is
likely to have to go through a process of repeated and careful scanning in order to sort out the
grammatical relationships which give the necessary clues to adequate phrasing.

In early legal documents their contents were usually set down as a solid block of
script whose long lines extended from margin to margin across the parchment on which they
were written, and there were no patterns for spacing or indentation to indicate either the
sections of which a document was made up or the relationship between them. Various reasons
have been suggested for this, including economy in the use of parchment and an intention to
defeat fraudulent deletions and additions.

The sentences which went to make up a document were usually long. When legal
documents came to be printed, compositors, in keeping with the practices already established,
thought that legal language should have a visual coherence interrupted as little as possible by
features that could be regarded as not forming an essential part of the language itself.
Therefore, long, thinly punctuated sentences are the rule rather than the exception.

This lack of punctuation is perhaps one of the first things that comes to mind in
connection with printed legal language. Punctuation attempted to do no more than show in a
crude way the points in a piece of written language at which anyone reading it aloud ought to
pause. A public performance which would necessitate accurate reading aloud was the last thing
likely to happen to legal documents, whose chief function was to serve as written records, and
hence the thinnes of their punctuation.

The tendency nowadays is to recognise the usefulness of punctuation as a guide to
grammatical structure, although only a limited range of punctuation marks is allowable in legal
English.

2. Distinctive features of Legal English
20
In most written legal language, in which documents are divided into sentences, the
sentences tend to be extremely long. It is a characteristic legal habit to conflate, by means of an
array of subordinating devices, sections of language which would elsewhere be much more
likely to appear as separate sentences. As a result, legal sentences are usually self-contained
units which do not need to be closely linked either to what follows or to what has gone before,
the cotext.



2.1.1. Repetition of lexical items


Apart from the occasional introductory adverbial, almost the only formal linkage to be found
between the sentences is the repetition of lexical items. The habit is to be expected in a variety
which attaches so much importance to exactness of reference. In almost all other varieties too
much repetition is considered tiresome. It is often reduced by the use of anaphora, in which a
substitute word refers back to a lexical item that would otherwise have needed repeating. The
trouble is that they can often look as though they are referring back to an item other than that
which the writer had in mind, thereby producing ambiguities which would be quite intolerable
in a legal document.

Pronoun reference and anaphora are virtually done away with, the most notable
omission being IT. This pronoun turns up only in formulaic constructions such as It is agreed
as follows. The following extract from a divorce petition bears out what we have stated so far:

"The Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent"



2.1.2. Syntactical constructions derivative of a simple logical structure


Statements are very often of a characteristic type which is reflected in equally characteristic
sentence structure. Reduced to a minimal formula, the great majority of legal sentences have an
underlying logical structure which says something like 'if X, then Z shall be Y" or, in the
alternative, "if X, then Z shall do Y". Every action or requirement, from a legal point of view,
is dependent on a set on conditions which must be satisfied before anything at all can happen.

The following covenant, taken from a rental agreement, is a case in point:

"If Tenant vacates the premises without first furnishing said notice, Tenant
shall be liable to the Landlord for one month's rent"



LEGAL ENGLISH AND TRANSLATION
21
2.1.3. Abuse of nominalisations and passive constructions


An excessive use is made of nominalizations and passives. This abuse is what makes us label
legal language as "neutral" and "aseptic". Consider the following extract from a Scots Law
Report of 29 October, 1991:

"Where a party who apprehended that an action was shortly to be raised,
against him in a foreign country sought interim interdict to prevent that
being done, and yet in the event of such an action it would be open to him to
argue forum non conveniens in the foreign court, interim interdict would be
refused"

We also include here the use of rare passives:
"...but if resort is to be had..."

Let us pay special attention to the following sentence. There is a very marked
tendency to use postmodifications in the nominal groups. The long complicated nominals that
result are noticeable by contrast with the verbal groups, which are relatively few. There is also
a fondness for using non-finite clauses (infinitives, gerunds and participles, both present and
past), which in many other varieties would probably be replaced by postmodifiers of nominal
elements (ie finite relative clauses).

"the payment to the Owner of the total amount of any instalments then
remaining unpaid of the rent hereinbefore reserved and agreed to be paid
during the term and the further sum of ten shillings..."



2.1.4. Excessive use of non-finite forms as postmodifiers of noun clauses


As stated before, this use rules out relative clauses introduced by the pronouns which, who and
that.

Let us see this feature at work once again in the following covenants from the same rental
agreement:

"Tenant will pay the rent at the time specified"

"Both Landlord and Tenant waive trial by jury in connection with any agreement
contained in the rental agreement or any claim for damages arising out of the
agreement or connected with this tenancy"



2. Distinctive features of Legal English
22
2.1.5. Infringement of the ordo rectus


Another source of oddity is the insertion of post-modifying elements at precisely those points
in a group at which they will most clearly give the required sense. The need to achieve
precision or avoid ambiguity always takes precedence over considerations of elegance, and
unusual sequences are, as a result, common:

"... and will within seven days after any premium in respect of such insurance shall
become due deliver receipt for..."



2.1.6. Use of the conjunction "that" with a special meaning


Legal English is the only variety in which the relative pronoun "that" (acting as antecedent)
requires a periphrasis in the translation into Spanish ("en el/la que se afirma que; en el sentido
que"):

"An objection was taken that her application was bad in point of law":

Se le acept una objecin en el sentido de que su demanda careca de fundamentos
jurdicos.



2.1.7. Use of the suffixes -er and -ee


In general, the ending -or/-er refers to somebody who grants something, that is, it is the active
point of view of the action; its counterpart, the passive subject, usually ends in -ee. Alcaraz
(1994:78), however, points out that "mortgagor" (deudor hipotecario) is the person who
borrows money, giving a property as security, whereas "mortgagee" (acreedor hipotecario) is
the person or company which lends money for someone to buy a property and takes a
mortgage of the property as security. Seemingly an exception to the rule, it is not because the
active point of view is taken from the act of mortgaging, something done by the private
individual.

"...made when the grantor was not indebted..."

"And although the gift be not made known to the donee"


LEGAL ENGLISH AND TRANSLATION
23
2.1.8. Frequent gerundive constructions


By this we mean the type of participial clause introduced by a subordinating participle
(present, perfect or past). Its translation into Spanish requires a paraphrasis. The meaning can
be temporal or causative.

If the verb in the clause is dynamic, for example "reaching", the two clauses, both the
main and the adverbial one, are linked temporally:

Reaching the river, we set up camp:

Al llegar al ro, montamos el campamento

If, on the other hand, the verb in the clause is stative, for example being, the two clauses
are linked causatively:

"...and although the gift be not made known to the donee, being for his benefit"

"...y aunque la ddiva no le conste al donatario, si es para su beneficio"



2.1.9. Legal adjectives


Zero determination is the rule and the few exceptions (like reversionary bonus) seem to be
formulaic expressions.

Alcaraz (1994:77) says:

Aparte de los adjetivos legal, illegal, equitable, etc, que son lgicamente frecuentes
en los textos y documentos jurdicos, hay otros, pertenecientes al lenguaje estndar,
entre los que destacamos: absolute, qualified, constructive y actual".

It is not difficult to see why so few adjectives are used, no doubt in keeping with the
general inclination to be specific.



2.1.10. Restrictive use of finite verbal forms


The verbal groups used in legal language are notable for the high proportion of non-finites and
for the number of finites that are of the type modal auxiliary (usually SHALL) + BE + past
participle.

2. Distinctive features of Legal English
24
SHALL is invariably used to express what is to be the obligatory consequence of a legal
decision, and not simply as a marker of future tense, its main function in other varieties.



2.1.11. Use of such as determiner, unaccompanied by the indefinite article


This is of course one of the most readily recognisable marks of legal language. Its use is
presumably prompted by the desire to achieve precision of reference, which is also behind
another feature of legal style, the use of said in premodifying function, and the use of same as
head of the noun clause.

All these features can be checked in the following extract from an indenture (a private
contract):

"it shall be lawful for the said Lord Stonebreaker to keep on foot or effect such
insurance and charge the costs thereof with interest at the rate of eight per cent per
annum to the said Sir Fireater and the same shall be considered to be included in
this security"

We can find here:

a) a double passive construction: shall be considered to be included

b) infringement of the ordo rectus: ... and charge the costs thereof with interest at the rate
of eight per cent per annum to the said Sir Fireater

c) only one typical legal adjective: lawful

d) exclusive use of shall as the only finite verbal form

e) such used as a determiner, unaccompanied by the indefinite article

f) said in premodifying function

g) same as head of the noun clause



2.1.12. Long, complex and equivocal sentences


Sentences usually stand alone and are self-sufficient. They are autonomous units and do not
need to be linked to what has gone before or what follows. Let us consider the following (a
single sentence taken from an issue of shares by Rolls Royce!):

LEGAL ENGLISH AND TRANSLATION
25
"You agree, as a collateral contract between you and the Secretary of State which
will become binding on posting to, or (in the case of delivery in any other manner)
receipt by, a receiving bank of your application and in consideration of the Secretary
of State agreeing that he will not, prior to 11th May 1987, offer any of the Shares to
any person other than by means of one of the procedures referred to in the
Prospectus, that your application cannot be revoked prior to 31st May 1987 and if
you are requested to do so at any time in writing within 21 days of the date of such
request, to the person making it, the name(s) and address(es) of any person(s) for
whose benefit your application was made or who would, if all the Shares for which
your application is accepted had been suscribed, be, to your knowledge, at any time
or for any periods prior to such request interested in such Shares for the purposes of
section 212 of the Companies Act 1985"



2.2. The semantical level


We will base our study of this on the following:

a) vocabulary

b) ambiguity

Natural language is at the heart of legal discourse, and it is a language fraught with
polisemia. Discourse meaning is conditional on semantic appropriation, that is, the power of
the legal text to define its own, very narrow, conceptions of meaning, and simultaneously to
exclude alternative meanings and contexts. A case in point is the verb "to provide" (and its
nominalization "provision"). In general English they mean "to supply" and "supply",
respectively; in legal English only they mean "to stipulate" and "stipulation").

It is also a fundamental premise in legal discourse that conflicts are dealt with as if they
were problems of syntax and the points of law used in judicial decisions usually take the shape
of remarks loosely related to several passages and sections of the laws that are applicable.

The following two passages corroborate this reasoning:

"The applicant, Mrs Wendy Smith, was employed by wholesale dealers in
pharmaceutical products. She was paid a salary of 50 pounds a week. She
discovered that a man (who had left) had previously been performing her task. He
had been paid 60 pounds a week. She took proceedings under our English statute,
the Equal Pay Act 1970 (as amended by the Sex Discrimination Act 1975)..." (Court
of Justice of the European Communities, case 129/79)

"On the basis of the foregoing detailed examination of the merits of the case, the
Court finds that Iran, by committing successive and continuing breaches of the
obligations laid upon it by the Vienna Conventions of 1961 and 1963 on Diplomatic
2. Distinctive features of Legal English
26
and Consular Relations, the Treaty of Amity, Economic Relations, and Consular
Rights of 1955, and the applicable rules of general international law, has incurred
responsibility towards the United States..." (International Court of Justice, case of
the Consular and Embassy staff of the US in Tehran, 24 May 1980)



2.2.1. The legal vocabulary


2.2.1.1. ADVERBS, PREPOSITIONS AND CONJUNCTIONS


The range of vocabulary that may be encountered in legal language is extremely wide since
almost anything can become the subject of legislation. But lawyers have developed marked
preferences in their choice of words. It is especially noticeable that any passage of legal
English is usually full of archaic words and phrases of a kind that could be used by no one else
but lawyers.

Among them, those words which consist of an adverbial word of place to which a
preposition-like word has been suffixed. They are used to refer clearly to specific times and
places in and around documents.

Here means this document - the one you are reading
There means that document - the one which is being discussed, not the one you are
reading

What follows is a comprehensive list, together with a definition:

HERE

Hereafter : in the future - from the production of this document on

hereby: resulting from this document

herein: appearing somewhere in this document

hereinafter: listed later in this document

hereof: relating to this document or part of it

hereto: mentioned in this same section of this document

heretofore: previous to the production of this document

hereunder: following this document

LEGAL ENGLISH AND TRANSLATION
27
herewith: accompanying this document


THERE

thereafter: from the production of that document until now

thereby: resulting from that document or decision

therefore: for that reason or purpose

therein: appearing somewhere in that document

thereinafter: listed later in that document

thereinbefore: mentioned previously in that document

thereinunder: following that document

thereof: relating to that document

thereto: mentioned in that section of that document

theretofore: in the time before that document was produced

therewith: accompanying that document

All these are useful for the kind of precise references, especially to the document or its
parts, and to the contracting parties- which lawyers find it so necessary to make; but again it
seems possible to see in the almost ritualistic repetitiveness more than a little reverence for
tradition.



2.2.1.2. ARCHAISMS


Archaisms nearly always seem to add a touch of formality to the language in which they occur,
and in this respect those found in legal documents complement the extremely large proportion
of words which, even though in current use, seem highly formal in their effect: duly, deem,
expiration, termination.