English and German judgments/Englische und deutsche Entscheidungen

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).

Quoting Intellectual property in the new millennium: essays in honour of William R. Cornish (quoted from Google Books):

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.

ProZ offer/Angebot von ProZ

I just received an exclusive offer from ProZ.com:

Exclusive offer on Whitesmoke grammer and writting software for ProZ.com users

At least Whitesmoke themselves seem to spell OK. Mind you, they are actually WhiteSmoke, I see.

Is there a term for not remembering which internal letters are capitalized in words like this (PrOz, WhitEsmoke, WorDpeRfect)?

EU terminology searches online/EU-Terminologiesuche online

When the Directorate-General for Translation made the translation memory of the acquis communautaire available, I didn’t download it because I was about to move to another computer. Meanwhile, I haven’t needed the material. But now it appears that sites like www.linguee.de incorporate this material among others. It’s natural to do this, and it is quicker to search online than on one’s own computer, probably.

I did enquire on Twitter what other sites do this, but I didn’t get an answer. Now I have found a list of several sites on Fabio Said’s weblog (Portuguese). One that looks particularly interesting is OPUS, an open source parallel corpus.

MDÜ legal terminology/Rechtsterminologie 2

Continuing from yesterday: article in MDÜ:
Stefan Bonath: Herausforderung Rechtstexte.

There’s a brief summary of this in English and French in the MDÜ (print copies of each issue can be ordered for 15 euros)

Stefan Bonath did the first part of German law studies, then changed to translation at the Fachhochschule in Cologne – as far as I know, this is the highest-level institution in Germany offering a reasonable study of legal translation, for unless things have changed a lot, the universities that teach translation just dip a toe in the subject. He has worked as an in-house legal translator for a law firm and for a translation agency, but mainly freelance.

This is a sound basic introduction to the problems of legal translation. For example, it explains the particular problem that each legal term is embedded in a system, so it carries a lot more baggage with it than some people realize. Bonath finds it particularly problematic than many legal terms are also terms of the general language – for example ownership and possession. He emphasizes the importanbce of comparative law and suggests it might be a good idea for legal translators to specialize more narrowly ‘sodass sich sein Rechercheaufwand mit wachsender Erfahrung verringert und die Arbeit wirtschaftlich rechnet’ (perhaps I would say: to improve the quality of the translator’s work).

The article also quotes its sources (something I missed in the second article). I haven’t read Arntz, Fachbezogene Mehrsprachigkeit in Recht und Technik (I only have his co-authored book on terminology), but Sandrini on legal translation in Übersetzen von Rechtstexten. Fachkommunikation im Spannungsfeld zwischen Rechtsordnung und Sprache, and Gérard-René de Groot on translating legal terminology in Recht und Übersetzen are both familiar. I see on looking at them again that both point out that legal terminology work cannot be done in the same way as that for other subjects (a topic I need to come back to). I can’t accept the standard recommendation of Black’s Law Dictionary as the English-language equivalent of Creifelds, Rechtswörterbuch: there is none.

One thing I found a bit odd in the article may have resulted from the lack of a concrete example. Bonath writes that it might be wrong to translate owner as Eigentümer, because in English and US law, an owner could even have acquired the property by theft.

So triff die Eigenschaft eines owner im angloamerikanischen Recht auf eine Person zu, die infolge Kauf, Schenkung oder Herstellung usw., aber auch durch Besitzergreifung oder Diebstahl das Eigentum an einer Sache oder sogar an einem Recht erlangt.

But if the English text says that someone is an owner, I would want to write Eigentümer in German, since the text is not about German law. It would be twisting the meaning of law to change it to Besitzer. However, I suspect Bonath was thinking of a different situation when he wrote this.

I see that Dieter Henrich, in Einführung in das englische Privatrecht, writes

Eine etwas merkwürdige Regelung enthielt Sec. 24 (1) Sale of Goods Act 1891: Auch an gestohlenen Waren kann gutgläubig Eigentum erworben werden (nämlich bei einem Erwerb in market overt).

This is the old edition of Henrich – the newer one is hiding – and I know that market overt has been removed from the law now, following a rather amusing case a few years ago. (This isn’t relevant to the general point under discussion). Anyway, Henrich has to use the term Eigentum here.

The other question that occurs to me, which is not intended as a criticism, is: who is going to read this article? Presumably to students of translation – although, as I said, the most academic of those are not likely to be studying legal translation, at least not in any depth. Legal translators are going to be aware of the points made. The article provides information about legal translation perhaps to those thinking about a future career, and to non-legal translators.

LATER NOTE: The comments attached to this post seem to belong to a post about Lena at Eurovision. Something must have gone wrong in the import from Serendipity. What is the opposite of serendipity?

Jesse Owens

As Usain Bolt wins in Berlin, ‘the fastest man planet Earth has seen‘, we recall Jesse Owens’ triumphs in 1936.

It was before my time, but I’ve grown up with Jesse Owens being referred to regularly in conversation.

Wikipedia (inter alia) reports that Owens was not insulted by Hitler. Hitler was privately annoyed that he was doing so well, but he was not rude to him in public. Owens got no acknowledgement from the US President, however

He also stated: [12] “Hitler didn’t snub me—it was FDR who snubbed me. The president didn’t even send me a telegram.” Jesse Owens was never invited to the White House nor bestowed any honors by Presidents Franklin D. Roosevelt (FDR) or Harry S. Truman during their terms. In 1955, President Dwight D. Eisenhower acknowledged Owens’ accomplishments, naming him an “Ambassador of Sports.”

Despite Hitler’s feelings, Owens was cheered enthusiastically by 110,000 people in Berlin’s Olympic Stadium and later ordinary Germans sought his autograph when they saw him in the streets. Owens was allowed to travel with and stay in the same hotels as whites, an irony at the time given that blacks in the United States were denied equal rights. After a New York ticker-tape parade in his honor, Owens had to ride the freight elevator to attend his own reception at the Waldorf-Astoria.[7]

Hitler apparently told Speer that those whose antecedents came from the jungle were primitive and had a better physique, and they ought to be excluded from future games.

MDÜ on terminology and law/MDÜ zu Terminologie und Recht

The MDÜ, the journal of the BDÜ. always takes one special topic, and the issue 3/09 takes terminology and law.

I hope I’m not too rude about it in coming entries. I mean, I don’t know any translators’ periodical that has good graphics:

No need to comment on the laptop with no number keypad and no second monitor attached, or the attack by the large shiny paragraph sign. These covers aren’t supposed to mean anything, just to add a bit of colour and interest.

I’ve read the three title articles and will come back to them. They are:
Demands on legal translators – about the difficulties of legal translation in general
Legal language in Germany, Sweden and England
Terminology, law and justice in South Africa

I’ll turn first to Barbara Kochhan’s review of the volume in the series German Law Accessible (nomen ist omen): Employment and Labor Law in Germany, by Lingemann, Steinau-Steinrück and Mengel, 2nd ed., price 98 euros.

I am particularly interested in this because I translate a fair amount of employment and labour law. This is a problem area when one is translating for Britain and the USA, because their employment law differs so greatly.

I also have a similar volume that I got last year: Labour Law and Industrial Relations in Germany, by Manfred Weiss and Marlene Schmidt, 4th ed., Wolters Kluwer, price 55 pounds at that time. Originally published as a monograph in the International Encyclopaedia of Laws/Labour Law and Industrial Relations. This book is well organized. It has a reasonable English index, but a German one would be excellent, as it gives the German terms in brackets. It’s in good English, but it reads a bit heavily, like a rather close translation.

I have seen other books in the series German Law Accessible, but not this one. The one I have on Family & Succession Law is in somewhat non-native English and its main use would be to compare terminology suggestions. These books written first in German and expounding German law, then translated into English, may be of some use for those who don’t speak German. For me, a comparative approach would be more useful, but it would have to compare the situation with that in England and Wales, or at least with the USA.

The review briefly describes the field and the structure of the book (94 pages general, 486 pages synoptic presentation of various legislation. It is critical of the lack of detail about the translator, Bedene Greenspan (Google indicates she translates in-house for a big law firm in Berlin). It comments on inconsistencies in spelling and translation.

I don’t agree with the reviewer on all the translations into English. I do agree that to use service agreement for Anstellungsvertrag and then contract of service is not a good idea. I would avoid the terms service and services altogether, because they are confusing – and service agreement can have a completely different meaning too. Contract of employment seems better.

But when it comes to criticizing the reference to Aktiengesellschaft as company (‘Company lässt an die limited liability company denken, um die es ja hier gerade nicht geht’), I can’t see the problem. Or at least, apparently the book is mainly in American English, and then there really is a problem. One could say corporation in American English, true.

Apparently the term Scheinselbständigkeit (a freelance does so much work for one client that it is effectively employment) is translated as pseudo-independence. The reviewer suggests pretended self-employment and bogus self-employment. Well, this is a tough term to judge a book on. I dislike all suggestions! I even recorded a long note by Beate Lutzebaeck, who is usually very good, on ProZ, who says that sham and bogus imply intent on the part of the person (right) and prefers fictitious self-employment (but to me that also suggests a construction selected by the person). I would say ostensible self-employment is the way to go. But it’s out of the news now, fortunately.

The reviewer concludes that the book might be of use to translators and interpreters, but is probably better for its intended readers, international lawyers, accountants and so on.

English football/Englischer Fußball

Englischer Fußball: A German View of Our Beautiful Game is the English title of a book whose German title, when it appeared a couple of years ago, was Harder, better, faster, stronger: Die geheime Geschichte des englischen Fußballs

The author, Raphael Honigstein, studied law in London and is a football reporter, inter alia for the Guardian.

I don’t think I’ll get round to reading this, for lack of time (I did read Tim Parks on following Verona). Honigstein apparently links English football with the British class system.

I don’t know if translators were involved – probably unnamed ones, I suppose.

Review in today’s Observer:

He is rarely kind to the English in this curious book – first written by Honigstein, who was part-educated in London, for a German readership in 2006 – and he is often absurd (“Let us recall the Reverend Edward Thring and the Victorian fear of masturbation … “). But he offers a perspective on England’s football and its culture that is stimulating and rather fascinating in its peculiarity.

The review mentions two things that seem odd to me:

Thus vile tower blocks from the post-war era are called ‘courts’. Victorian ‘mansions’ are not villas on the edge of town but apartment blocks.”

Perhaps Honigstein hasn’t lived in Germany enough? There are plazas being built here, and areas of rough ground become parks. That is typical estate agents’ language, or language coined with selling/letting in mind.

But it is England, “the place where they codify everything, from human rights to cricket”, that is Honigstein’s subject for earnest translation.

‘The place where they codify everything’ somewhat contrasts with an article I just read in the MDÜ according to which all English law is ‘spoken law’. Of that, more anon.

But it’s always interesting to read others’ views of national character.

Article by Honigstein in German on German football players being introduced to English football rituals – for instance, when all new players for Chelsea had to stand on a chair and sing a song of their choice to the rest.

Interview with Ralph Honigstein in German

Fürth streets/Straßen in Fürth

Views of two ends of this street in recent weeks. Replacing the cobbles

Mending the new pedestrian zone so fewer people in high heels come to grief (note plaque for famous Fürth person in foreground):

Meanwhile, the Oberbürgermeister has had the originally green ticket machine touched up in bronze and refurbished bronze rubbish bins and seats reinstalled, and this lighting is appearing everywhere, though not yet functional – note the huge length of cable on this one:

And here is what has to be done to conceal the cables:

Unfortunately, one of these lamps has been placed directly beneath and in front of the Hirsch Apotheke webcam. It can, today, be seen at the bottom of the picture, but when it is lit it may obscure a lot of the picture. Webcam.