21.4901, Review: Discourse Analysis; Pragmatics; Socioling: Bhatia et al. (2008)

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Subject: 21.4901, Review: Discourse Analysis; Pragmatics; Socioling: Bhatia et al. (2008)

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1)
Date: 05-Dec-2010
From: Leonhard Voltmer [L.Voltmer at yahoo.it]
Subject: Language, Culture and the Law

-------------------------Message 1 ---------------------------------- 
Date: Sun, 05 Dec 2010 13:40:12
From: Leonhard Voltmer [L.Voltmer at yahoo.it]
Subject: Language, Culture and the Law

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Announced at http://linguistlist.org/issues/20/20-447.html 

EDITORS: Vijay K. Bhatia, Christopher N. Candlin, Paola Evangelisti Allori 
TITLE: Language, Culture and the Law
SUBTITLE: The Formulation of Legal Concepts across Systems and Cultures
PUBLISHER: Peter Lang AG
YEAR: 2008

Leonhard A.G. Voltmer, lecturer and legal translator

SUMMARY

The book contains 15 papers of legal discourse analyses. They are divided into
three chapters, one on international legal language, one on EU language and one
translating legal discourse. 

Part 1:  International Arbitration and Trade Law

M. Gotti investigates the difference in legal drafting across legal cultures. He
sees a big difference between Civil and Common Law conventions, in textual
schematization, in clarity and in expression. According to Gotti, Common Law is
more structured and clearer in expression. Gotti's judgment is based on a
comparison of the type-token ratio between the Italian Code of Civil Procedure
(type/token ratio 20) and the Model Law on International Commercial Arbitration
(ratio 14). For Gotti, the higher ratio shows that the domestic law is more
polysemous, whereas the English legal discourse is more lexically structured and
specific.

The comparison involves two texts which are different in length, style, purpose,
subject and date of origin. It is unclear how the influence of these factors on
the type-token ratio has been normalized. For example, the second text is more
structured than the first and therefore more repetitive. Moreover, high
type-token ratio is usually not taken as a sign of imprecision, but as a sign of
high information flow (low ratio hints instead at high redundancy), cf.
http://www.glottopedia.de/index.php/Type-Token-Relation#Interpretation_der_Ergebnisse.

The article mentions that there are explicit codes of conduct for arbitrators in
Italy and China, but not in the text of the United Nations Commission on
International Trade Law. The reason is, according to the author, the greater
autonomy of the judge in Common Law. Further reasons for drafting differently
are due to different addressees, for example the Arbitration rules of Milan and
Bergamo are written for small and medium businesses and therefore use shorter
words and sentences and avoid Latinisms or archaic words.

Gotti's findings are not put forward beyond all reasonable doubt, because the
described phenomena can find alternative explanations: The four occurrences of
the word ''therefore'', taken by Gotti as a hint to an archaic text, seems to me a
very standard word for argumentative texts. Other words taken as ''archaic'' are
probably due to the translation, and to the fact that the arbitration rules of
the United Nations Commission on International Trade Law are more than 30 years
old. Gotti notices also a high average sentence length, but this might come from
the use of lists, so that this kind of long sentence is not more difficult, but
explicitly reader-friendly.

Nevertheless Gotti's conclusion that normative texts also take into account
their readers, their legal culture and professional expectations, may easily be
conceded.

G. Garzone examines arbitration rules in Italian, French and English to verify
some claims of translation theory. She finds expected effects such as
simplification and ''explicitation'' [sic], but against the general rule, she
finds the English target texts to contain more words than the Italian or French
source texts. Garzone explains this with the aspiration to clarity in English
legal texts. She does not consider the higher average word length in Italian and
French, so that the English texts are not longer in characters than the source
texts. Checking the latest version (2004) of the arbitration rules of the
Chamber of Commerce of Milan, the Italian and English texts contain the same
number of words, but the English text uses about 14% less characters.  This
example shows that the corpora used by Garzone and many other authors in this
volume are simply too small to be generalized or to allow valid quantitative
statements.

P.E. Allori examines Italian and international sports arbitration rules. She
finds that the kind of acts and the modals addressing the single actors are
indicative of their power. To confirm this claim, a legal analysis would be
necessary.

M. Menghini presents her work on an electronic glossary based on a corpus of two
sports arbitration texts. She describes the technical details and gives examples
of some cross-language ''correspondences and equivalences'' (p. 106). The
terminology would be a useful addition to a translation memory or a more
comprehensive dictionary, as has been done with a much larger project such as
LexALP (Voltmer 2008).

T. Salmi-Tolonen refers, among others, to students' writing for a moot court
contest as a sample for transactional law. Her point is that the text-centered
approach is misleading, because only the integration of the sender and receiver
perspective can establish meaning.

M. Solly poses a challenge to Salmi-Tolonen, because he praises the quality
''embodied in the language of the UK Marine Insurance Act'' (p. 141) across all
national legal cultures and more than a century. Solly argues that the text even
resists change because of worries that any new version would be less effective.

Part 2: European Legal and Institutional Language

G.S. Mariani criticises the EU Constitution at length, quoting from it
extensively in English, French and Italian. His criticism of the subsidiarity
principle is that the formulation ''only if and insofar the objectives ... can
... be better achieved at Union level'' would implicitly define the EU as
''superior to the Member States'' (p. 180). Mariani ignores the very strict
conditioning (''only if and insofar''), and he ignores the fact that the sentence
does not judge the quality or effectiveness of EU norms as generally higher, but
is referring only to the achievement of specific objectives in the exclusive
competence of the EU. The subsidiarity principle, rather than stating EU
superiority, establishes that the Member States are considered capable to rule
on any area of EU competence. The EU has to show that the default rule does not
apply before acting.

M. Dossena examines the popularization strategy of law firms in reaction to the
Abolition of Feudal Tenure (Scotland) Act. The law firms use paraphrases,
examples and clear textual organization as well as references to everyday life
of the citizens.

G. Caliendo and M. Venuti analyze the language used by the EU Commission and the
EU Council during the process of Turkey's accession to the EU. They detect an
overuse of downtoners, modals and contrast/concessive adverbials compared to the
Brown Corpus and reveal the linguistic means by which the Commission speaks in
favour of accession and the Council tries to gain time.

C. Pennarola tries to show through linguistic analysis of EU humanitarian aid
policies that the EU enacts an ''imperialism-grounded humanitarian assistance'',
''based on political and economic asymmetry, geographical and cultural distance
and on benevolent if not patronising concessions'' (p. 239). For example, the
term ''Community assistance'' is taken to be patronising, because it implicitly
expresses the subordinate status of the recipient countries, in contrast to the
term ''Community programme'' used for actions inside the EU. Actually, it might
also be perceived the other way round: the EU is not ''master of the programme'',
but only ''assistant'' when acting abroad, and putting itself into an inferior
position. A neutral, non-ideologic reading would perceive the wording as
accurate: EU actions inside its own area are quite complex and programme-like,
whereas humanitarian aid is usually ad hoc, less articulated in goals and
time-frame, and usually in cooperation with the recipient country.

M. Volini examines phrasemes, i.e. set expressions, in English and Italian used
by the EU. She assumes that all Italian texts are translated versions of the
English original and concludes that the translation has led to the overuse of
certain phrasemes.

P. Catenaccio notes that the integral adoption of the European Directive on
Unfair Terms in Consumer Contracts in 1999 in the UK introduced ''false friends''
and formerly unknown legal concepts like ''good faith''. The EU bypasses the UK
gatekeepers of legal discourse, but for Catenaccio '''translating' European
Directives into local languages will not be an option for much longer'' (pp.
276-277).

>From a legal point of view, the UK can very well adopt the content of directives
by using domestic legal concepts and avoiding ''false friends''. The UK
gatekeepers didn't close their gate, probably because they underestimated the
legal and linguistic impact of EU statute law on their legal system.

Part 3: Translating Legal Discourse

G. Tessuto discusses legal concepts and their socio-cultural imbeddedness as
arguments for his terminographical standard. Tessuto's idea of ''meaning'' is that
it is more than the ''ordinary meaning'' because it includes ''subtle meaning''.
Therefore, meaning should be described not only by ''a set of sufficient semantic
features'' (p. 285), but by further information such as the concept's
presuppositions and use, its ''descriptive meaning'' (quality, intensity and
specificity), as well as the position in a concept map (hypernym, hyponym and
meronym).

Tessuto mixes lexicography into terminography and criticizes the first with the
strengths of the latter. The ''less evident'' nature of legal concepts is,
according to Tessuto, that legal concepts are ''continually redefined'' and they
become therefore ambiguous and inconsistent (while most writers claim that legal
language is rather conservative and precise, for example Chromá in the same
publication). Tessuto's ''standardised data entry for terminography'' does not
resolve any of the identified problems. The given ideal entry (p. 294-296)
contains not only ambiguous data (a very confusing ''context example'' and a ''low
chart'' without indication if the criteria are cumulative or alternative),
inconsistent data (different source indications on p. 295), non-standard data
(source directly included the context field itself, instead of a separate field)
and non-standard field names, but also wrong data (''specific intent'' is not a
homonym for ''recklessness''). In Tessuto's entry, the equivalent concept in the
Italian legal system comes between the English definition and the English
synonyms and consists of a field without a field name which contains a nine-line
quote - but no other ''subtle meaning''. To compare, the data-base BISTRO
(www.eurac.edu/bistro) has a standard entry for ''dolo eventuale'', which has not
changed for ten years, but is still up to date. Tessuto makes rather a point for
context intensive teaching.

M. Chromá sums up what legal translation means and gives advice to English-Czech
translators. She explains how Charles University Law School teaches legal
English, German, French and Russian.

S. Marrone gives examples of the translation of the Rules of Procedure from
Italian to English.

EVALUATION

The authors in this book use statistical tools to make ''findings'' which always
support the author's hypotheses - and not a single falsification. Some authors
compare apples and oranges, some operate with zero frequencies, and throughout
the book small sample texts and infrequent phenomena render the ''results''
insignificant. It is safe to state that the word ''significance'' is
underrepresented in a book on quantitative linguistic research. Reading the
contributions as qualitative research (just skip the statistical part), you can
find interesting, sometimes contradictory hypotheses (law is precise vs. law is
imprecise). Reading the book, I have the impression that the current research
activities in linguistics on law do not yet have a common agenda or a lesson for
other fields. 

REFERENCES

Voltmer, Leonhard, Experiences in Harmonising, in: Chiocchetti, Elena & Voltmer,
Leonhard, eds. (2008), Harmonising Legal Terminology, EURAC Bolzano/Bozen 2008. 

http://www.glottopedia.de/index.php/Type-Token-Relation#Interpretation_der_Ergebnisse:
3.7.2009. 

ABOUT THE REVIEWER 

Leonhard A. G. Voltmer is jurilinguist. He studied law in Munich and Paris,
Legal Theory in Brussels and Lund, and Romance Languages in Salzburg and
Munich. From 2001 to 2009 he worked for the European Academy of Bolzano
(Italy) in terminology, translation and language normation. His experiences
in the computational linguistic treatment of multilingual legal data have
become a Ph.D. thesis at the University of Munich
(http://edoc.ub.uni-muenchen.de/archive/00003716/). Dr. Voltmer was
lecturer for Translators and Interpreters at SSLMIT (Italy) and SDI
(Germany), and was teaching Intercultural Mediation in Degree and Master
Courses at the University of Trento. Dr. Voltmer's research agenda focuses
on the combination of disciplines: The dialogue between cultures
(Intercultural Communication/Mediation), between lawyers and laymen,
between computational linguists and language practitioners, and between the
different scientific disciplines in Legal Theory. 

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