Traditionally, legal language has two purposes: to provide
a precise term and to prevent the uninitiated from understanding. The Plain Language
movement, at least in English-speaking countries, has somewhat diminished the second tendency to want to confuse the person on the street but that change is far
from universal or consistent. As a case in point, Tom West, in his outstanding
webinar for the ATA discussed recent changes to the French codes of law, emphasizing
terminology. First, I would recommend
watching his webinar (through the ATA) if you do legal translation or
interpretation in the French/English language pair. On the linguistic front, it
was fascinating how the French legal language achieves the desired level of encryption,
notably applying vagueness, generality and sheer misleading. Granted, the code
reforms have improved the situation in some cases but the examples shed light
on the codification of law in both senses of the word.
The first technique is using a general term to
describe a specific action. It is similar to saying “kitchen” when you mean to
ask someone to turn off the light in the kitchen. One example in French legal
terminology is imprévision, which means something unforeseen. In
legal language, it refers to the damage caused by an unexpected event not
specified in the contract or list of force majeure cases. The English translation
is hardship. Another example is that, traditionally, French laws had to
meet the standard of bonnes moeurs, literally “good morals”. The new
term is ordre public but the
English term is public policy. Finally, the French equivalent of the
famous standard of the reasonable person (previously man) is pėre de
famille, taken from the Latin term. The term suggests a test of whether a proper father of a family would take a given action. The French have quite reasonably
replaced it with reasonable, apparently because the mothers of the
family had had enough of this sexism. In all these cases, it is possible to guess
the meaning of the word but it takes a bit of imagination.
A second technique is to take a general word and give
it a specific meaning, creating the false impression that the reader actually
understands the significance. A prime example is the word crime.
Contrary to appearance, the term in French law only refers to the most serious
of all offenses, murder, rape and the like, with délit referring
to lesser crimes and contravention applying to a misdemeanor. I imagine that
a French lawyer would not fully understand the name of the movie Crimes and Misdemeanors.
Likewise, a jurisdiction d’exception actually refers to courts with specialized
but limited areas of jurisdiction, such as the Commercial Court. Jurisdiction
actually refers to a court while exception relates to a specialty. A
final example is the common French word proximité, which
sounds like and generally means nearness. Alas, in legal French, it
would refer to a local or district court. Knowledge is the key.
Finally, some terms are simply misleading. The reformed
code replaces the traditional French legal répétition with restitution.
The previously used chambre de l’instruction is now honestly called a chambre des
investigations and libertés. At least the first term is clear. Finally, the appel public à l’éparge,
which had nothing to do with savings (the last word), is now an offre au
public des titres financiers. That is a public share offering to
English speakers. At least, someone in the French Parliament cared about plain
language.
Legal language has always served as a way of allowing or preventing
entrance, a shibboleth. To its credit, the French government is working on reducing its level of encoding. I suppose that French will always be more ambiguous than
English for better or worse. A word (or two) to the wise, including those in
the webinar, prevents some serious misunderstandings for lawyers and translators.
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