Modern Legal Usage: Bridging the Spanish-English Divide

Martin Boyd

legalese-noIn his Dictionary of Modern Legal Usage, US lawyer and lexicographer Bryan A. Garner suggests that legal writers today need to “strike a difficult balance in the quest to simplify legal English.” In drafting legal texts, he suggests, lawyers and jurists should “not cling perversely to archaic language, which becomes less comprehensible year by year, nor should they seek to jettison every word or phrase that bears the stamp of legal tradition” (xiii). Garner’s call to abandon unnecessary “legalese” and endeavour to make legal English as clear and precise as possible reflects a prevailing attitude in the world of law in recent decades that stresses the importance of “using legal language that is simple and direct” (ix). This general shift towards simplicity and directness in legal language is extremely important for legal translators if we want to produce translations that conform to the norms of contemporary legal English. Of course, problems arise when we are dealing with a source language where such “simplicity and directness” are not necessarily as highly valued as observance of traditional legal formulas.

Similar calls for greater simplicity and directness of legal language have in fact been heard in recent years in Spanish-speaking countries as well. At official levels, lenguage llano (“plain language”) initiatives have been launched by various governments, such as the Comunicación en Lenguaje Claro project in Argentina, the Lenguage Cuidadano initiative in Mexico, or Spain’s Commission for the Modernization of Legal Language. Although these initiatives have been more specifically targeted at simplifying the bureaucratic language used by government departments, they do reflect a general trend in the legal and administrative sectors of these countries to abandon the kind of obscure circumlocutions and empty formula phrases that have become such a hallmark of the legal genre.

In practice, however, as most Spanish-English legal translators will be able to testify, legal texts from many Spanish-speaking countries (or at least those that I deal with most frequently, i.e. Spain and Mexico) still tend to be characterized by a much higher proportion of excess verbiage than their equivalents in the English-speaking world. To give one example, the standard Mexican contract invariably employs the corresponding pair of formula phrases “De una parte…” and “De otra parte…” to introduce the two parties to the agreement. In Spanish these phrases are not particularly unwieldy, and so it is perhaps understandable that they have not been disposed of in the move towards more concise language, even if they could easily be omitted without any appreciable loss of meaning. But the real problem arises when the translator attempts to render them in English, as their only real English equivalent is the rather more cumbersome pair “As party of the first part,” and “As party of the second part,”, a formula which the legal lexicographer William Putnam (among many others) identifies as a clumsy archaism that is “currently being phased out of legal writing” (253). The translator is thus faced with the dilemma of whether to use the traditionally accepted equivalent and produce an English translation marked by awkward archaisms, or omit the phrases altogether and take the risk of being accused of taking liberties with the source text by an overly conscientious proofreader.

In translation theory, this dilemma could be framed within the concept of the “equivalence continuum” posited by Eugene Nida. According to Nida, a translator’s approach to the translation of any text can generally be placed somewhere along this continuum, which is marked on one extreme by “formal equivalence”, characterized by a meticulous effort to reproduce each semantic element of the source text as exactly as possible, and on the other by “dynamic equivalence”, where the translator makes frequent departures from semantic equivalence in an effort to render a translation that conforms more closely to target language norms, in an effort to achieve what Nida calls “equivalent effect” on the target text reader. The position of a translation along this continuum is determined by the particular function of the translation and the type of text being translated. Literary texts, for example, would tend to be placed closer to the “dynamic” end of the spectrum, given their focus on eliciting an emotional response from the source text reader which the translator must somehow seek to replicate for the target text reader; conversely, legal translations, whose function is (presumably) more informative than expressive, would generally be placed closer to the extreme of “formal equivalence”. Indeed, the importance in a legal context of producing a translation that precisely reflects the content of its source (coupled with the legal ramifications of not doing so), would generally dissuade most translators from employing the kind of oblique translation techniques associated with a more dynamic approach, such as omission or linguistic compression, even where formula phrases of minimal semantic significance are concerned.

On the other hand, an approach that focuses on the highest level of formal equivalence will generally result in a translation that falls considerably short of the contemporary standard for “simple and direct” legal English. Consider, for example, the following passage, taken from a European Union directive dealing with the awarding of concession contracts:

Conviene recordar que la presente Directiva se aplica únicamente a los poderes y entidades adjudicadores de los Estados miembros. Por lo tanto, los partidos políticos en general no están sujetos a lo dispuesto en ella, al no tratarse de poderes ni entidades adjudicadores. No obstante, puede que en algunos Estados miembros existan partidos políticos que se incluyan en el concepto de organismos de Derecho público. Sin embargo, determinados servicios (como películas de propaganda y producciones de vídeo) están relacionados de forma tan inextricable con las opiniones políticas del prestador de servicios cuando se prestan en el contexto de una campaña electoral, que habitualmente se selecciona a los prestadores de servicios de un modo al que no se pueden aplicar normas sobre concesiones. Por último, cabe recordar que el estatuto y la financiación de los partidos políticos europeos y las fundaciones políticas europeas están sometidos a otras normas distintas de las de la presente Directiva.” (Directiva 2014/23/UE)

The Spanish language is rich in conjunctions and connecting phrases, often with little or no semantic content, which serve merely as buffers between one idea and the next. The frequent use of such connectors is a common feature of legal language in Spanish, as the paragraph above shows: every sentence is introduced by such a connector (marked in bold). In keeping with the standard approach for legal translations, the official English translation of this EU directive is oriented heavily towards formal equivalence, reflecting a slavish effort to reproduce these connectors:

It is appropriate to recall that this Directive applies only to contracting authorities and contracting entities of Member States. Consequently, political parties, not being contracting authorities or contracting entities are not subject to its provisions. However, political parties in some Member States might fall within the notion of bodies governed by public law. However, certain services (such as propaganda film production and propaganda video-tape production) are so inextricably connected to the political views of the service provider when provided in the context of an election campaign, that the service providers are normally selected in a manner which cannot be governed by concession rules. Finally it should be recalled that the statute and funding of European political parties and European Political foundations are subject to rules other than those laid down in this Directive.” (Directive 2014/23/EU)

Introductory phrases like “it is appropriate to recall that” are decidedly awkward in English, and certainly don’t reflect contemporary standards for simple and concise expression in legal English. The whole phrase could be omitted without losing any semantic content, but the translator was clearly averse to taking such a dynamic approach.* While the conjunctions “consequently” and “however” do serve the semantic function of flagging a causal or adversative relationship between sentences, the clumsy repetition of “however” reflects the relative paucity of contrastive conjunctions in English compared to Spanish. It is also arguable whether “finally” is really a semantic equivalent of “por último” in this context, given that the function of the latter is merely to identify what follows as the final sentence of the paragraph, and certainly doesn’t suggest the temporal relationship normally denoted by the former.

While an orientation towards formal equivalence is the prevailing norm in legal translation, the above example raises questions of whether such an approach should override considerations of natural fluency in the target language. While legal translators obviously need to exercise caution in considering more dynamically equivalent options, we need to be equally mindful of contemporary norms of English legal usage, which advocate the elimination of the kind of excess verbiage that is still a characteristic feature of many Spanish legal texts.

References
Garner, Bryan A. A Dictionary of Modern Legal Usage. New York: Oxford University Press, 2001.
Nida, Eugene. The Theory and Practice of Translation. Amsterdam: Brill, 1969.
Putnam, William. Legal Analysis and Writing. New York: Nelson Education, 2012.

* As this is an EU Directive, it is quite likely that the Spanish text was not in fact the original version of the text, or the direct source of the English translation. Nevertheless, it is palpably clear that the English version is not the source text, and it seems highly probable that it is a translation, if not from the Spanish, than certainly from another language (likely French) in which the formula phrases that read so naturally in the Spanish text are equally acceptable.

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