Here are some notes on the structure and style of English (and German) judgments. It is painted with a somewhat broad brush, and there is already a comment to the effect of ‘incorrect’. Suffice it to say that I agree the following is over-simplified – so it was intended to be – and it relates to a larger context which has not yet been revealed.
German judgments tend to be authoritative and impersonal. They also fail to name the parties (note: this means ‘name the parties’, not say ‘defendant’ and ‘claimant’), and sometimes even the judges (I speak from experience of translating many judgments). You don’t get much information on the history of the case or even the facts. (This means: ‘you don’t get much information’, not ‘you get no information at all’. The story of the case tends to be cryptic).
On the other hand, the English judgment is exemplary in style. The judge writes personally, he sets out the matter in a concrete and detailed manner, he explains what he thinks, opines, has reservations and doubts, is irritated or may retrospectively correct a witness without correcting him. The English judgment is discursive, in some ways narrative, but nonetheless human. It is to a significant extent the expression of a human interaction with the parties and also the case. It allows much more to be understood by the third party reader (and also the parties), and it should be valued for this.
Just because the German judgment is impersonal, it doesn’t mean it isn’t the judge’s personal opinion. Just because the English judgment is personal, it doesn’t mean the English judge is not bound by statutes and precedents.
Where is it laid down what form a judgment has to take?
Supposing it’s a German civil judgment, the Zivilprozessordnung (Code of Civil Procedure) contains provisions. Take section 313:
§ 313 Form und Inhalt des Urteils
(1) Das Urteil enthält:
1. die Bezeichnung der Parteien, ihrer gesetzlichen Vertreter und der Prozessbevollmächtigten;
2. die Bezeichnung des Gerichts und die Namen der Richter, die bei der Entscheidung mitgewirkt haben;
3. den Tag, an dem die mündliche Verhandlung geschlossen worden ist;
4. die Urteilsformel;
5. den Tatbestand;
6. die Entscheidungsgründe.
(2) Im Tatbestand sollen die erhobenen Ansprüche und die dazu vorgebrachten Angriffs- und Verteidigungsmittel unter Hervorhebung der gestellten Anträge nur ihrem wesentlichen Inhalt nach knapp dargestellt werden. Wegen der Einzelheiten des Sach- und Streitstandes soll auf Schriftsätze, Protokolle und andere Unterlagen verwiesen werden.
(3) Die Entscheidungsgründe enthalten eine kurze Zusammenfassung der Erwägungen, auf denen die Entscheidung in tatsächlicher und rechtlicher Hinsicht beruht.
What about the English judgment? The Civil Procedure Rules don’t go this far. Are English judges free to write as they like?
It’s true that there are no practice directions or rules that stop an English judge from choosing the structure of a judgment. But there are recommendations – admittedly fairly recent ones.
For instance, the Judicial Studies Board was only founded in 1979. It has a website and you can there download as a PDF file its Civil Bench Book. However, although this apparently used to contain advice on how to write a judgment, it was compeltely revised in 2006 and I can’t find anything.
However, there is a lot more information in the book by Andrew Goodman, How Judges Decide Cases: Reading, Writing and Analysing Judgments. My link is to the 2004 edition, but there is a 2007 one. It’s a down-to-earth, concise book covering how to read and write, and stylistic aspects of judgments. Goodman consulted and obtained information from a large number of judges of every level, nearly forty of whom are named in the preface and some more of whom preferred to remain unnamed. There are a number of notes on how to structure a judgment. The author is a barrister and a professor of conflict management and dispute resolution studies in the USA (at the mysterious Rushmore University). He was particularly influenced by a 1940 book by Mortimer Adler, How to Read a Book. I haven’t read the whole, but I have the impression that the remarks on how judges use language and linguistic analysis are a bit thin. Adn what it says about ratio and obiter is not likely to be new. But the collection of information on the structure and context of judgments is excellent.
I don’t know how interested legal translators are in judgments. But, along with statutes, they form a large part of the material that people who are writing an MA or a PhD /Dr Phil like to cite, because they are publicly available.
Translation theory is a subject I’ve only ever had time to dabble in. I think it would be interesting but probably requires a leap of faith to put the effort in before reaching that point. Academics who write about legal translation theory are few in number. In Germany, all those I can think of specialize in countries with civil-law jurisdictions, and languages such as Italian, Spanish, French and Dutch. But I have a feeling that some of these academics like to throw in a few references to the common law, because they know that common-law countries have excitingly different legal systems and they think they aren’t doing comparative law without it. And that’s where all this twaddle about the nature of English law originates, because the more outlandish the idea, the more likely it is to be true in England or the USA.