Ehe für Alle/Same-sex marriage

Last Friday, June 30, the German Bundestag voted in favour of same-sex marriage, called ‘marriage for all’ (following François Hollande). The bill will no doubt be passed by the Bundesrat and signed by the President and become law in the autumn. But will there be a constitutional challenge?

June 30 was the last day of Angela Merkel’s current parliament and as there is to be a general election, the marriage-for-all bill, which had been introduced at least three years earlier, would otherwise have failed. I haven’t been following this closely and it’s a big issue, so please do further reading for details and don’t rely on me. But I believe that the Green Party applied unsuccessfully to the Federal Constitutional Court to make sure that the bill could be voted on on June 30 at the latest. (I can see the sense of the Court not intervening in the parliamentary process).

The CDU and CSU are traditionally against same-sex marriage, but on June 27 Angela Merkel permitted a free vote in the Bundestag, so suddenly it became possible for the bill to be passed, as not only some CDU and CSU members were in favour of it, but the SPD would also have been bound as part of the coalition government . The suddenness almost recalls the sudden opening of the Berlin wall in 1989.

New York Times:

Ms. Merkel, when asked Monday evening about gay adoption, cited what she said was a recent meeting with a lesbian who invited the chancellor to visit her and her partner’s home in Ms. Merkel’s parliamentary constituency in northern Germany, where the couple has raised at least eight foster children.
The chancellor said she had not had time to take up the invitation, but she used it as a way to illustrate that it may often be better for children to live permanently with a loving couple no matter what their sex, rather than moving from home to home in foster care.

Although Frau Merkel voted against the bill – she could be seen putting a red ticket into the ballot box – it’s been suggested that in acting this late before the election she was both avoiding a long discussion in the Bundestag and improving her chances in the election, since marriage for all was one of the issues on which Martin Schulz was going to campaign.

German legal bloggers disagree on what will happen next. Here is Maximilian Steinbeis at Verfassungsblog (lots of English there)Merkel’s Conscience:

In some way, the right always seems to succeed in making themselves believe that their reading of the constitution is somehow dictated by nature. They did that with the opening of the borders in 2015, and now they do the same with the opening of marriage in 2017. There will always be some constitutional law professor who certifies their constitutional interpretation with utmost authority, so they can keep on shaking their heads in a distressed and indignant way at the turpitude of these liberals that so blatantly disobey their own liberal constitution.

To not let them get away with that, to pierce their self-congratulatory constitutional certainty and force them to justify their readings of the law – this should be the task of constitutionalists.

Steinbeis goes on to link to Matthias Hong, who reads the Constitution differently Warum das Grundgesetz die Ehe für Alle verlangt.

A different view is presented by Andreas Schwartmann in Rheinrecht – Meinung: Diese “Ehe für Alle” ist verfassungswidrig.

The Trial – real lawyers and jury on BBC

People in the UK can see this 5-part serial on iPlayer – spoilers ahead.

Last week the BBC put on a program showing a fictitious murder trial but with real barristers, judge, court clerk and expert witnesses and with a jury who were randomly chosen members of the public. It reminded me of Marcel Berlin’s The Law Machine, which I watched ad nauseam with my students years ago.

The first episode I watched I thought not only the defendant and witnesses, but also the jury were actors. Not so! But those jurors were fixated on calling each others’ remarks sexist – the case involved a man charged with murdering his estranged but not quite estranged wife. For example, the relatively coherent older woman juror with experience of social services began to describe the way ‘an abusive man’ may appear amenable at first but gradually becomes domineering and controlling. She was immediately shouted down by two or three male jurors as ‘sexist’. Now this was boring if it was actors, but if it was ‘real’ people it made me worry about how one could speak about abuse and still be heard. However, I have now come to the conclusion that the jury’s remarks were tightly edited and we cannot decide from hearing a short exchange what they were like over several hours. Just like the Big Brother house and other reality TV products, you can’t trust it.

If one wanted to see the law in action, I would strongly recommend the way the barristers appeared. I particularly enjoyed the bit of bickering between them: it seemed authentic and matched my own memories.

It was odd that the judge’s closing speech was not given.

And then, in the last programme, at great length, the ‘true story’ was shown and we saw that the defendant really did kill his wife. I think it was a massive mistake to show what really happened. And above all, the way the jury’s individual votes were shown, showing that it was the women who voted guilty, and the details on how much domestic violence is not reported. An important issue, but we were to be manipulated.

This case should have ended in a not guilty verdict, not guilty for lack of evidence, but it resulted in a hung jury. Of course the jurors knew they were on TV, and that might have influenced their demeanour.

The whole thing has been well taken apart by The Secret Barrister: In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last:

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

As the Secret Barrister says, the jury trial is not about discovering the truth – but the programme behaved as though it was.

Obiter J also has a useful post on the programme, more about legal details and less about criticizing.

Jurtrans blog

In connection with the Words to Deeds Conference 2017 I discovered a legal translation blog by John O’Shea, who does Greek to English translation. The latest post lists upcoming legal translation conferences, of which there are a few:
Round-up of forthcoming legal translation events
There are interesting links on the site too.

Also a fuller report on the conference by Jennifer Whitely on her blog Lakesidelinguist’s Blog. This probably does not refer to our local Lakeside Thurrock though:
Reflections on theWords to Deed Conference #W2D2017

Universities and translators

At the Words to Deeds Conference it struck me how many academics are writing about legal translation nowadays, and the texts they sometimes deal with are more what I think of as real-world translation texts, rather than bilingual Canadian statutes, for example. These texts sometimes even have the names of the parties blacked out, just the way I used to use real divorce documents with blacked-out names with my students in 1982 (before legal translation was a thing).

I chose a table workshop entitled Managing conceptual differences across legal systems. Our discussion made me think of Juliette’s mantra Building Bridges Between Academia and Practice, which I see has now been extended to include & Between Translation, Interpreting, and Legal Practitioners. Academics actually need non-university legal translators, and non-university legal translators would like to see their research. But maybe academics are mainly interested in building up their list of publications, and those publications appear online on sites which are very expensive to access – unless your university provides them. So that is my first problem about building bridges: what is the toll charge?

The day before the conference I was looking at the speakers’ bios and I found an article, just published online and downloadable free of charge, by Dr. Paulina E. Wilson, one of the speakers and heading our table. This is where I got it: Interjural incommensurability in criminal law. I just skimmed it – I don’t do Polish – and found it clear, comprehensible and containing a nice diagram of the definition of going equipped in English law. Now as some of us agreed on the table, it would be great to have access to all the material on comparative law being produced with translation in mind. Because a difficult legal translation requires more hours of research than a client is likely to pay, we are keen to at least see the work done by others. I could imagine collecting a database of articles, not even book chapters necessarily, that I could mine when I needed it. But there is a paywall around a lot of academic research.

Is there a list somewhere of all the sites which charge high fees for downloading? I am sure I’m being naive, because copyright and research funding require materials to be protected. But then what bridges are we going to build?

Words to Deeds Conference 2017

The Words to Deeds Conference, subtitled Legal Translation to the Next Level, was held in Gray’s Inn last Saturday. Many thanks to Juliette Scott for organizing the whole thing so elegantly and thoughtfully.
I have no intention of reviewing the conference. I did, when I first started this blog, review the ATA legal conference in New York, and I realized afterwards that it was a bad idea – you would never have time to analyse and describe all the contributions, you would be bound to leave something important out, and if you did produce something of the appropriate detail, it would be so long that nobody would read it.

Please note in my photo how tasteful the stationery was, and what you probably can’t see: all the pencils were sharpened by hand. You will find video clips on Youtube on how to sharpen a pencil by knife.

However, I will write something about some thoughts I had in discussions, in a following post.

Legal translation hub to be launched

Legal Translation hub

Institute of Modern Languages Research
and
Institute of Advanced Legal Studies

An array of activities in the next few days will launch the Legal
Translation hub – a cross-institute initiative by the Institute of
Advanced Legal Studies (IALS) in collaboration with the Institute of
Modern Languages Research at the School of Advanced Study.
The hub will host regular events such as seminars and discussion panels,
and an annual Legal Translation Day. A unique LLM in Legal Translation
is launching in October 2017, and a dedicated library section has been
established within the IALS library.
The hub engages with practice – both legal translators and lawyers – and
with professional bodies and institutions. Additionally, it undertakes
outreach projects.
The inaugural events include three talks at the Russell Square
headquarters of the Institute of Advanced Legal Studies on 3 February:

* Machine translation and national
security (3 February, 2–3 pm):
Dr Henry Liu, president of the International Federation of Translators,
based in New Zealand and a leading interpreter in English, Chinese and
French, will discuss issues that have implications for UK’s
international reputation and domestic security. He believes British
citizens are being placed at unnecessary risk by a lack of
accountability and absence of quality control in intelligence gathering
operations.
* A practical workshop: using Corpus Linguistics for
Law (3 February, 3.30–5.30pm):
Dr Gianluca Pontrandolfo, a Trieste-based practising legal translator
and academic, will use examples to explain how new technologies can be
used to gain insights into the language of legal texts. Dr Pontrandolfo
worked on the English translation of The Italian Code of Criminal
Procedure and is also the author of a groundbreaking work on compound
terms in criminal law.
* EU legal translation: past, present and
future? (3 February,
5.30–7.30pm): Professor Łucja Biel, from the Institute of Applied
Linguistics, University of Warsaw, Poland and leader of several
international language projects will provide a practically oriented
overview of major challenges and quality parameters in institutional
legal translation in EU institutions.

The launch programme concludes on 6 February at the Québec Government
Office, 12.30–2.30pm, with Louis
Beaudoin, an eminent jurilinguist from Canada, who will explain Québec’s
unique ‘co-drafting’ model to an international audience of legal
translation practitioners, representatives of leading law firms based in
London, researchers and members of the public.

See also at IALS.

obiter dictum

I see that Obiter Dictum, das is now in the Duden.

(in einem Urteil eines obersten Gerichts) rechtliche Ausführungen zur Urteilsfindung, die über das Erforderliche hinausgehen und auf denen das Urteil dementsprechend nicht beruht

This had passed me by. And strictly speaking there is no hierarchy of binding decisions in case law in Germany, although it’s clear that some decisions are treated as binding the lower courts.

So here’s a quote from a decision of a Higher Administrative Court:
Oberverwaltungsgericht NRW, 16 E 648/15 (at marginal number 19!):

Denn der Beschluss des Bundesverfassungsgericht beschränkt sich auf ein obiter dictum, ohne die Bedenken näher zu begründen und ohne sich mit der seit langem gefestigten Rechtsprechung auseinanderzusetzen, die u. a. von verschiedenen Obergerichten eingehend mit der allgemeinen Bedeutung von Beweisverwertungsverboten im Gefahrenabwehrrecht begründet wird.

I don’t know if one would translate English obiter dictum as German Obiter Dictum – that depends on how familiar it has become and how much explanation the user of the translation needs.

The latest edition of Dietl/Lorenz EN-DE (7th) has the following – first you look under obiter and are sent to dictum – reminds me why paper bilingual law dictionaries are dreadful – I think Romain is even worse. Under dictum:

obiter dictum Lat (a saying by the way) gelegentliche Äußerung f, beiläufige Bemerkung f (e-r Rechtsansicht in den Entscheidungsgründen, auf der die Entscheidung selbst nicht beruht. Im Ggs. zu ratio decidendi nicht bindend).

And Romain EN-DE, 5th ed.

obiter dictum, dicta pl, lat Urteil Nebenbemerkung, nicht tragender Entscheidungsgrund

I don’t think Dietl is right to say that the obiter is found in the grounds for the decision. It is found somewhere in the text of the decision. Were it actually in the grounds, I wonder how obiter it would be?

via Burhoff Online

Various links, including IALS and statute translations

1. The Institute of Advanced Legal Studies in Russell Square has occasional meetings with talks by lawyers and others. The meetings are free but you need to register – you can join their mailing list for information. Although the target audience are lawyers rather than translators, they can be very useful.

There has just been a meeting on Why is legal language so complicated? and on the From Words to Deeds blog there is a guest post by Danaë Hosek-Ugolini with a report on the event, a very useful warning as to the mental stamina you need to attend such an event. I must say I would not have expected so much on the problems of EU legislation, which are a field of their own because of the language problems and are already fairly familiar to me. I do like the term ‘the EU legislative footprint’, though!

I am curious about the work of Dr James Hadley, which (understandably) is not reported in detail :

Dr James Hadley, from the School of Advanced Study, presented the early stages of his research on equivalence and legal translation. He sought to demonstrate that if relationships between people are reproduced in different countries, equivalence could be reached in legal translation despite the differences in legal systems and concepts.

His research profile reveals little in this connection.

2. Buying essays online. Some time ago (thanks, Barbara!) the Guardian published an article with the heading An essay I bought online was so bad I want a refund – but the firm won’t pay up . The article is curiously illustrated with a full-bottomed wig shown from the back. I can’t say what exam you have to cheat in to get a full-bottomed wig.

The Guardian was, unsurprisingly, rather po-faced about this.

We phoned the website (apparently not the only one reached by the phone number) and a spokesman said he had no record of any account in your name. He also insisted the essay-writing done for students like you was “within the law”. Universities are having to invest in internet plagiarism filters to detect fake work such as this. Students, avoid these websites – you will not only lose money but could also jeopardise your academic career. You have been warned.

Plagiarism filters have been around for ages.

I wonder how this works in Germany, where so many courses are now run and tested in (global) English, which seems to be a case of the blind leading the blind. Could one get better English by using an English online service, and if so would one be marked down for using good English which was not recognized as such?

It seems that cheating may be on the increase since the increase in numbers of universities in the UK.

3. English translations of German statutes.

I’m not saying anything new when I list the ways of finding translations online, but here is a refresher (and I don’t mean the refresher you pay a barrister for a further day’s work in court).

Firstly, if it’s ‘officially’ translated you can find it under ‘Translations’ on the left-hand side on the online site run by juris (juris is a proper name and does not get translated – it confuses some non-legal translators when they first encounter it in a text, but you have to realize that many Germans love to use small letters in proper names).

I believe that to be ‘official’ a translation has to be vetted by a qualified German lawyer. Unfortunately not all these translations are wonderful, though many are.

Secondly, there is the Centre for German Legal Information site which collects translations from all over the Web. It is a fantastic collection and you can click through to search for a statute by its German name, which clearly may be what you have.

However, the cgerli site does not keep outdated statutes, even though you might still have to translate them. It also never has everything. You can inform it of dead links and new links and you should do that.

There is also the German Law Archive site. originally at Oxford University, run by Gerhard Dannemann, which is in the process of being upgraded. There are a lot of statute links there.

If this all fails, translations can often be found elsewhere by any internet search. They all have to be taken with a pinch of salt. But they can be very useful.

Here’s an example of a curiosity I found recently when I was translating something about assembly rights. The police in Frankfurt am Main have a page all about assembly rights. It even contains a translation of the German assembly Act, albeit into Denglish:

Dictate of peacefulness

Regarding the Constitution, every assembly deserves protection as long as it is peaceful (means nonviolent), and carried out without weapons. In this connection you have to bear in mind that an assembly in its totality (means majority) has to be violent to be called “non-peaceful”.

As long as it’s comprehensible, this can be useful for clients.

Internet resources for English law

At the very bottom of the homepage of this blog, there are links on English law, including Delia Venables‘ site.

Note also the Internet Newsletter for Lawyers, edited by Nick Holmes and Delia Venables. (I’m not sure I realized this had a website). Both Delia Venables and Nick Holmes can be followed on Twitter, and Delia yesterday tweeted links to two articles by her:
Free case law resources online
Free current awareness legal resources
For example, there is Current Awareness from the Inner Temple Library, and Halsbury’s Law Exchange:

Halsbury’s Law Exchange is a legal think tank, hosted by LexisNexis. It aims to communicate ideas on reform or legal direction to decision makers and the legal sector and promote debate through papers, reports, events and media pieces.

Current awareness is obviously a thing.

An article by David Allan Green (who blogs as Jack of Kent) in the Solicitors Journal on The revival of legal blogging, in which he points out how many barristers blog, and how few solicitors.

A new resource to me is Lawbore, a resource site for law students created and maintained by Emily Allbon, who is a lecturer at the City Law School, City University, London. She writes about it in Lawbore: legal education made fun. One item on Lawbore is a guide to reading a law report: Anatomy of a Law Report:

Paul Magrath talks us through Hunter v Canary Wharf Ltd [1997] AC 655 providing us with pointers throughout. We also have a copy of the case in full, with no audio.

There’s also a guide to blogging lawyers.

David Bowie as a paralegal

It’s been reported that David Bowie used to work as a paralegal at Legastat, the legal copying service in Carey Street.

Legastat

From the Jack of Kent blog:

Of course, a co-worker will have then dismissed Bowie’s dream with “there is no future in dressing funny”.

And outside, a judge and barrister would walk past…

I knew Legastat specialized in big photocopies – some old legal documents are bigger than foolscap – but they obviously do more. They describe their work as ‘paralegal services’, and they also do digital archiving:

If you don’t have the time and resources to prepare your bundles or hire paralegals in-house we can help.

Use our paralegal and document review services for:

ordering documents chronologically
creating disclosure lists and indexes
paginating and cross referencing
first stage privilege review

That just leaves the question of what exactly a paralegal is, in the UK. I thought of it as a broad term covering people who help lawyers in their work but are not fully qualified in any particular way. But actually there are qualifications. In fact the situation of paralegals seems to be in the process of changing. When I trained in a firm of solicitors in the late 1970s, the employees were mainly solicitors and articled clerks, legal executives and trainee legal executives and legal secretaries. There were ‘boys’ of a range of ages delivering and sorting post and files too. But nowadays the Chartered Institute of Legal Executives, CILEx, does give paralegals some training:

What is a paralegal?

A member of staff who has completed some legal training, but is not qualified as a solicitor or Chartered Legal Executive, is usually referred to as a paralegal. The term applies to any member of staff progressing files under supervision – from legal secretaries who have gained the necessary knowledge to carry out specific practical tasks, to law graduates who progress a heavy caseload of files from start to finish.

Paralegals are very commonly employed in the fields of residential conveyancing, personal injury or debt recovery where roles might be advertised as ‘Conveyancing Assistant’, ‘Claims Handler’ or ‘Litigation Assistant’ respectively. A paralegal might be known as a ‘Legal Assistant’ in family or employment law departments.

As the role of the paralegal varies greatly between organisation and different areas of legal practice, so do our courses. Courses start at Level 2 (GCSE-level) training for legal secretaries who wish to move into paralegal work and have not studied for a long time, through to Level 6 (honours-degree level) courses for law graduates to acquire high-level legal practice skills.

There is also an Institute of Paralegals and a National Association of Licensed Paralegals. The Wikipedia article on Paralegal also has a UK section.