July 4, 2022 / Legal Translation
Every specialized field of study has its own jargon and a unique way of using language to meet its specific needs. However, the legal field in particular stands out as a discipline that has an intrinsic relationship with language. For this reason, it is important to determine how we can decipher complex legal language based on linguistic theories.
Linguistics is the science that studies all aspects of human language: from how we learn to speak to the ways in which we communicate with others. Like any science, linguistics has various theories that seek to explain the phenomena it studies. In this case, linguistic theories help us understand how different variations in language affect the meaning of what we say.
It turns out that linguistics isn't just useful in intellectual circles. Since the difficulty in understanding legal texts stems, in part, from the highly complex language they use, learning about different linguistic theories can help us understand why these texts are written in such a distinct way and give us the tools we need to understand and translate them properly.
Below, we will explain two theories that can be applied when working with legal texts, whether drafting, understanding, or translating them.
There is a theory called “Speech Act Theory,” developed by the linguist John Langshaw Austin, which explains the distinction between constative and performative utterances. In simple terms, constative utterances are intended to describe reality. Their function is to inform the listener, and they can be classified as true or false.
Let’s think about the statements we use every day. What is their purpose? Most of the time when we communicate with others, our goal is to convey information to them. When we tell someone where we’ll be or what time we’ll arrive, we’re making factual statements.
Well, in legal texts, this type of statement can be found, for example, in a lease agreement, in the section where the property’s features and characteristics are listed. Thus, the purpose of these descriptions is simply to provide information for the reader. In Spanish, this type of statement is usually translated in the present or future tense—depending on the state of the element being described—and in the indicative mood.
Most statements in texts, whether legal or general, are declarative. However, it is not uncommon to encounter a performative statement, especially in legal texts. It is important to be able to recognize a performative statement and understand its characteristics in order to translate it accurately.
A performative utterance is one that—unlike a constative utterance—is intended to alter the reality being discussed rather than describe it. In other words, uttering aperformative involves carrying out an action.
For example, at a wedding, we know that when the bride and groom say “I do,” it is the moment they utter those words that validates the marriage. When a promise is made, explicitly stating what is being promised is what solidifies that act. Let’s look at some other examples using the following statements:
- “I now pronounce you husband and wife.”
- “I’ll bet you fifty pesos he won’t show up.”
- “Here, this book is for you.”
Do you think saying these statements involves taking action?
If you answered yes, you're right. The three examples above are realitive sentences, since the action being described isn't completed until the speaker utters the words.
While a declarative sentence states, a performative sentence does.
Well, English contracts treat declaratory clauses in a particular way, as they include an element that distinguishes them from assertive clauses: the adverb “hereby.” Translators with experience in the legal field have surely encountered this adverb more than once.
When translating a contract into English, it is important to include this adverb in the relevant clauses, as shown in the following examples:
- “The Parties hereby agree as follows:”
- “The Parties hereby agree to the following:”
- “The Customer hereby agrees to comply with the obligations set forth in this Agreement.”
- “The Client hereby agrees to comply with the obligations set forth in this Agreement.”
Have you ever wondered how we make communication successful?
It’s not usually an explicit agreement: after all, most people don’t start a conversation by agreeing on what communication guidelines to follow.
Paul Grice's principle of cooperation is a model that posits that all communication is aimed at achieving a goal. This goal varies depending on the conversation: it can range from organizing a family party to brokering a ceasefire between nations.
The goal may evolve over the course of the conversation or have multiple nuances, but the strategy for achieving it depends on four principles that the participants agree to follow throughout the conversation. Although this is a tacit agreement, failure to adhere to these maxims hinders communication and prevents the goal of the exchange from being achieved. However, sometimes certain maxims take precedence over others, as there are areas where failure to adhere to some maxims is considered standard—even necessary.
This is particularly true in the legal field, where the nature of the texts requires a certain degree of flexibility in adhering to some rules, while others must remain unchanged. When translating a legal text, it is essential to be aware of these requirements to avoid violating mandatory rules and to know when exceptions are permissible.
So, what are these maxims, and how are they used in legal texts? Below, we explain two of Grice’s main maxims that are of paramount importance for legal translation.
Maximum quantity
The principle of optimal length states that during a communicative exchange, the participants’ contributions should be neither shorter nor longer than necessary.
In legal texts, this principle is often set aside in favor of others. There isn’t a single legal translator who hasn’t had to deal with the endless length of sentences in these texts. Furthermore, their complex nested clauses have given the writing style in this field a notorious reputation.
While it is not ideal to create sentences that are too long or complicated, it is sometimes necessary to set this rule aside to avoid any ambiguity in the text. For example, although using a pronoun to replace a noun is a good strategy for shortening a sentence and eliminating repetition, in legal translation it is often preferable to repeat the referent to prevent ambiguity.
Mode maximum
This principle underscores the importance of clear and precise communication. To adhere to this principle, statements must be free of ambiguity and vague terms.
Legal writing places great emphasis on adhering to the principle of specificity; it is even permissible to expand the length of the text and use more complex sentence structures in order to avoid vague language, as such language can lead to legal disputes and long-term problems. }
As we have seen, linguistics is not just an abstract theory studied in universities and philosophical texts; it also has real-world applications in a wide range of disciplines, including legal translation. So, the next time you come across a legal text, consider applying these theories to make it easier to understand and translate.
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