On cats and Dogs

Let me start this lecture with a question: “What is the difference between a cat and a dog?” Yes, I know it sounds like a silly, even puerile question, but go ahead: What is the difference between a cat and a dog? Try to define it. Do you suddenly find yourself flustered and fumbling for a clear, lucid answer. Why is this silly, simple question suddenly so hard? Why is it that any 2 year old can quite easily distinguish difference between a cat and a dog. The remarkable thing is that the said two year old will be able to recognise both a Great Dane and a Chihuahua as both being dogs, even if he has never seen either of them before. This is a remarkable intellectual achievement. Yet, when we try to define the difference we suddenly find ourselves, maybe reverting to a two year old level and saying something like: “Well cats go meow and dogs bow-wow”! This by the way is incorrect. Lions, for example, belong to the cat family and they may growl or roar or even grunt (I have heard them myself on safari) but they certainly don’t meow!

Part of the problem, of course, is that we know that there is an answer. I am sure zoologists would have no problem in providing us with a lucid, clear and maybe even concise answer, however much we may fluster and fumble. Even a dictionary definition I saw is of no assistance, defining a dog as “a four legged animal of the canus family”. This is like saying a dog is a dog because it is a dog.

I am not going to even dare attempt to actually answer the question I have posed. After all I am no zoologist. However – linguistically (or even philosophically speaking) the answer is in the question itself. As complex, sophisticated and advanced as language is – maybe humankind’s most remarkable achievement – it is still an imperfect tool. However, effectively speaking, this is the only tool we have of conveying, converting, transferring and communicating of ideas, especially in the legal field.

This example of a seemingly simple and silly question clearly reveals a common human foible. We do not know everything! Even things that we assume with emphatic conviction that are known to us – become very shaky after some surface scratching. This of course has implications not only in linguistics, but also philosophy, psychology, politics, etc. In our case – the language of law. Yet of course, we cannot place ourselves in a situation where we have to examine the full and complete meaning of every word. This would drive us crazy and we would not be able to move a single step forward[1]. We are left with our ‘automatic, instinctive’ response to words and their meanings and it is only when we are forced to confront them that we discover our ‘moment of doubt.’

This is the playing field of lawyers. Where the ‘word’ which initially seemed so obvious, suddenly and unexpectedly comes into dispute. This, of course, is not only coloured by the dictionary definition (which as we have seen, even though often considered the ‘gospel truth’ can be found to be very lacking), but it is also coloured by very subjective matters – and in legal matters ‘subjective matters’ means:- On what side of the legal dispute do you stand?[2] In brief let the following be stressed about dictionary definitions: Language existed before the existence of dictionaries. All that lexicographers try to do is to divine the meaning of words as ‘generally’ used. Even though many view dictionaries as telling a ‘gospel truth’ the lexicographer themselves view it merely as being ‘descriptive’ – i.e. describing the meaning of a word as they have managed to infer from various sources and certainly not as being ‘prescriptive’ – i.e. telling you what the word should mean.

Let me give you a little example to show you how this works:

Unused Petrol

My brother hired a car. He decided to pay for a full tank of petrol (gasoline) after reading in the terms of the car hire company that any “unused petrol can be returned.”

He returned the car with half a tank of petrol and waited for his ‘return’. There was none. “Why?” – he asked bewildered.

“We never promised to pay for the returned petrol”, they answered, “merely we stated that you can return any unused petrol”. In other words – even though you paid for a full tank – you are not obligated to use the whole lot. Very nice people the car hire people! Very considerate!

Obviously what we have here is a very cynical use of language and a sudden and unexpected ambiguity in the word “return”. Any reasonable reader – in my view – would understand the word “return” to mean a “monetary return”, and not the meaning the car company gave it. I wonder, honestly, whether the car company was well aware that this would be the common understanding of the term and intentionally used this ambiguity to earn a few more cents (or dollars) through ‘hidden charges’.

***

What Makes the Legal Word Turn Around?

I think that the first thing someone notices when entering the world of legal translation is the ‘weight’ of the word. Suddenly the Geomatria[3] of Hebrew mystics seems to take on new meaning and become much clearer. This is because legal translation is primarily concerned with the meaning of the word and nothing else. Thus the meaning of a word, its scope, variety and context take on added, more urgent import. In this sense it may be said that legal translation stands in diametric opposition to literary translation. The sound of a word tends to be of no importance whatsoever. The historical, emotional charges, rhythms, rhymes, etc. mean very little if anything at all.

In her book “Translating Law (Topics in Translation)”[4] Deborah Cao states that predominantly the language of law is written to “convey knowledge and information….direct, influence of modify people’s behaviour” and hence is written in language which is mainly “prescriptive, directive and imperative”.

The Different Types of Legal Translation

This of course is not to intimate that legal language is always and purely dry stuff. In accordance with my experience I would divide legal translation into three main areas[5]:

• ‘Boilerplaters’: The term ‘boilerplate’ refers to standardised text^[6], such as is to be found in contracts, wills, prospectuses etc. Here the language aims to be as clear as possible, so as to avoid possible confusion and uncomplicated performance of legal obligations. The nature of the language tends to be descriptive and directive. The tendency to use the repetitive language of the boilerplates is an attempt at certainty – not to mention to make life much easier for the lawyer, and also, it ought to be said, ultimately cheaper for the client where billed by the hour. In other words – someone else has already put in the effort so it ‘must be ok’. For example text taken from sample contracts. A lot of ‘copy and paste’. A paradise for legal translators. Of course there are serious problems with this approach: The wording in one case might not necessarily be appropriate in another case. There is another important element which comes into play – lawyers are always pressed for time often leading to sloppy wording. This of course is only even more so when the ‘copy and paste’ culture comes into play. Oftentimes the result of this (as we will see further below in this article) is that the language becomes tautologous, verbose and – counter intuitively – unclear.
• Case Law: Here there is an added dimension in the attempt of the judge to be persuasive. Often philosophical or political/ideological elements enter into the fray. Frequent use of literary language and Aramaic/ Talmudic terms (in Hebrew) or other foreign language sources (in English language judgments), such as French and Latin (and in South Africa Afrikaans or Dutch). In Israeli law – as in common law countries – case law is binding (the ‘stare decisis’ rule). As the judges writing the judgements know that the judgement may be scrutinised in the future in other similar – but not exactly the same – cases, they must aim for language which is at once lucid, unambiguous (unless they seek ambiguity) and persuasive. It may be said that it is an attempt at combining the opposite poles of sparse legislative language with the more colourful world of the language of literature or philosophy.
• Academic Work: Here – fortunately – the work usually tends to be clear. No typos, no fuzzy wording. Academics tend to have a luxury that is not afforded most in the legal profession – time. This allows for much clearer, precise language. Word use is carefully executed. This can cause difficulties for a translator, because the translator may not always be aware of the multiple considerations the academic took into account when choosing a specific word. Also, those considerations may be valid for language A’ but not necessarily for language B’.

The Car Accident

I doubt that there are many lawyers who, at some early stage of their career, did not hear the story of the car accident. A simple story. Some lawyers are returning to their office near the court accompanied by their juniors and articled clerk. On their way they witness a car accident. One of the senior lawyers then asks – not “who is to blame?” but rather “what happened”? Surprisingly or not, each one of the witnesses has a very different version of events. Yet – of course – it is still the self-same event. Of course our attitude to language, to words and their meaning is exactly the same. We tend to think of legal language as being ‘precise’, yet if we look at dictionary definitions we see that different dictionaries have different meanings. So how precise can language be?

Prof.  Ellen P. Aprill of the Loyola Law School of Los Angeles, California in her paper: “The Law of the Word: Dictionary Shopping in the Supreme Court”[7] drew attention to her research by showing that the commonly used Webster’s Dictionary of US English makes excessive use of the New York Times as a lexical source for providing word definitions. This is problematic in at least two ways: Firstly, like it or not, there are those who tend to view a dictionary as being prescriptive. That is to say – as being the authority for the meaning of a word. This includes, oftentimes, judges. This is despite the fact that English is a very wide spread global language, with endless variations – even in the USA. Making the New York times – as respectful a newspaper as it may be, the arbiter of word meaning is an inaccurate and incomplete reflection of “English as she is spoken’. Even in its descriptive role, as intended by the lexicographers themselves, how descriptive of the use of the (US) English language can the dictionary be when relying so heavily on one particular source? Moreover, many dictionaries simply rely on other dictionaries, thus ignoring the constant changes in language and possible errors in the original?[8]

Thus, with dictionaries not been able to provide full, precise, comprehensive and constantly accurate definitions of words, especially in a world of constantly changing language, how insistent then, can we be that the meaning we attribute to a single word is the same as attributed by the listener, especially when we add to this the interplay of the word in a sentences, paragraph, document?…

A nice example of this can be seen in the case of the case of Nix v. Hedden[9] on a customs and excise case where the question in issue was whether a tomato is a fruit or a vegetable. In rejecting the dictionary definition of tomatoes as a fruit the court stated “in the common language of the people” tomatoes would be “vegetables which are grown in a kitchen garden and …not served, like fruits, generally as a desert…”. It is also interesting to note that the court held, as a point of law, that where words have not “acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that  meaning the court is bound to take judicial notice, …; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.” In other words the courts (in the USA) have taken cognizance of the descriptive (as opposed to the prescriptive) nature of dictionaries. I.E. – even if a dictionary states that a tomato is a fruit, because in common parlance it is considered to be a vegetable – it is that common (and usual) meaning which will be considered by the court. The use of dictionaries as “aids” by the court is also recognition, at once, both of the useful but limited nature of dictionaries.

Language is the only tool lawyers have  to ‘present their case’, yet –to quote David Melinkoff in his seminal work “The Language of Law[10]”  “The law is a profession of words. Yet in a vast legal literature the portion devoted to the language of law is a single grain of sand at the bottom of a great sea.”

On Fried Onions

In Primo Levy’s book of short stories, translated into English as the Periodic Table there is a story entitled “Chromium” which is a kind of scientific detective tale. Without giving away the ‘spoiler’ (you MUST read the book), he tells of a visit he makes to a paint factory where he had worked many years before. He was surprised to discover that the paints were still made very much the same way they had been made dozens of years earlier when he had worked there including the insertion of an onion into the vat. Intrigued as to the fact that this system was still used he enquired as to its purpose, only to be met with vague responses intimating at mystic powers imparted on the somewhat eccentric process. He then explained to his hosts that it was he himself who had introduced the onion into the vat as an indicator that the mixtures being heated had reached the right temperature – i.e. the temperature at which an onion begins to fry, because at that time sufficiently sophisticated thermometers did not exist.

The fact that in the interim such sophisticated thermometers had been developed made the use of the onion now superfluous. However, its use had remained as the original reason for its instigation was now lost in the mists of time. The original reason now being long forgotten, its purpose – its now superfluous purpose– became imbued with mystical purport.

Legal language, especially English legal language, is full of onions in the vat:

Formalism (or Formulism) in the Law

“In the beginning, the letter, the word was the law, for it was the magic that worked. The oath-swearing man who stumbled over the words of an oath was a gone soul. …. The lawyer who lost a syllable had lost his cause. ……. The judge who departed from the letter of the law had ceased to be a judge, and had become a legislator…… So the word law, which meant something fixed …… and the law words which made up the law must them­selves be enduring if the law were to endure. If the law were to re­main unchanged, then — in Coke’s words — “neither ought legal terms to be changed.” ….. Change the words; you lose the law. This was the fear, and this the urge to make the language of law durable.”[11] Thus we see that whether the law was deemed to be fixed and unchanging because of religious or mystical reasons (such as biblical dictates) or due to the need for certainty, the result was a strict rigidity in form and procedure. If the exact wording of a legal document, or the exact legal procedure, was not followed to the letter, the document, case, etc. was thrown out and discarded, not on its merits but rather on its form. Rigidity and formulism still exists in a lesser form in many legal systems, some stricter some less so. This rigidity and formulism therefore meant the precise drafting of documents was of the utmost importance. “Deviate on millimeter and you are dead” – maybe even quite literally. This necessitated a medieval culture of copy and paste which lives on to the present day, resulting in an ingraining of terms and expressions which persist to the present time, even though we may have well forgotten the origins or indeed even the need[12].  This ‘copy and paste’ culture (or ‘boilerplatism’) and persistent use of the selfsame words and phrases, has led to a perception, still persisting, amongst many lawyers that if a specific term, phrase, wording is not used, the document in question will somehow be ‘faulty’ even though in essence the substance of the matter may be stated in other, no less valid, ways.

Of course this rigidity and extreme form of formulism could not hold water for ever and certainly not in our day and age. Law is a social convention. So too – as we shall see – is language. Conventions change (constantly) and with it the law and language.

Is it so strange that language too is perceived by many (as the law perceived) to be unchanging and that is how it should stay? Does it surprise us when querying court – that we should rush off to the nearest dictionary for the ‘official’ definition of a word? “Ahh…., the O.E.D. (Oxford English Dictionary) says…..!!” This view, whereby a dictionary is deemed to be prescriptive[13] is a commonly held cause. Recently an editor at the BBC (a so called ‘style chief’) was reported as berating the fact that reporters and news presenters “often confuse the words ‘historic’ with ‘historical’”[14] and I found myself in an argument over dinning with a fellow lawyer stating that ‘people don’t use the word ‘reticent’ correctly” – i.e. they don’t use it as defined in the dictionary. However, is it possible that the meanings of words have changed over time? As adults we know this to be true and of course linguists don’t have to delve too far to prove it is indeed so. Indeed, the Oxford English Dictionary never purported to be the bastion of what is (and what isn’t) good English but rather as reflecting how the English language is used throughout the English speaking world. After all the English language existed before Professor Murray, the first editor of the OED, and his team of staff and volunteers started documenting it. Therefore it is clear that, despite the commonly-held belief that the OED is the ‘official’ version of what “is and isn’t English”, this simply is not the case. It is merely a ‘best –effort’ attempt at documenting, recording and defining the English language as the OED staff found it. Professor James Murray attempted to provide up to a dozen uses of each word from its first recorded use and up to the time of the writing of the first dictionary[15]. Thus it is clear that he was acutely aware of the ever changing nuances in the English language and the meanings and uses of its words.

However, as flexible as words may be, as human beings we have a tendency to be rigid in our use and understanding of words. Thus if we – for example – if you have never heard the phrase “to cure a breach”(as opposed, say, to “remedy a breach”), or the word “delict” (instead of ‘tort’) it sounds odd, awkward and downright wrong, even if the said phrase is commonly used in a certain sphere of operations.

It cannot be stressed enough that language is a convention. We call a ‘dog’ a dog’ because that is what we – in the English speaking world – have decided to do. This, like any convention, may shift and change[16] in either sound or meaning. Moreover, a convention being a convention, our individual perception and understanding of the meaning, use and import of a word may vary from individual to individual or from group to group.

Boilerplatism

As has been stated above, both an over reliance on the tried and trusted formulae (for whatever reason) and ease of use (especially in the present day and age) of cut and paste techniques have led to use of pre-set forms, wording and phrasing. This of course may be problematic on a number of levels. Firstly, one case may not be suitable or relevant in another case. Secondly, the ‘dragging’ of material from one document to the next often leads to inconsistencies and even glaring errors such as typos or truncated sentences.

Google Translate may be considered as a good friend of boilerplatism. Without going into too much detail about the intricacies of the Google Translate system let it be said that Google Translate relies heavily on an extensive data base of translated sentences, terms, words and terminology. This is to be differentiated from ‘machine translation’ where computer software is employed to analyse sentence structure and grammar in language A’ in order to render it into language B’. For the most part Google Translate uses sentences that have already been translated by humans and then in the blink of an eye tries to find the closest match to the input sentence as a basis for the translation. Indeed the developers of Google Translate began working the laws of Canada which, as a bilingual country, appear in English and in French. These languages are then used as ‘pivot’ languages through which the text can be translated into any one of the 80 languages (at last count)[17] into which Google Translate can translate. Thus, it is manifest how useful standardised texts can be for an instrument such as Google Translate. The more stable the original source text the more stable the target translation.

However, there are two serious problems with Google Translate. One is a substantive issue relating to the quality of the translated text. In short – the translation cannot be relied upon. Even though Google Translate can be a lot of fun and often even very useful (for example when reading a foreign language website), it can simply not be trusted as a true and reliable translation. The translations may vary from the ridiculous, which are legendry amongst the translator community, to the absolute accurate (for example, a perfect hit with sentences previously translated by humans[18]). What may be even a worse situation are the near hits. This is what I call the “Duck Rule” – it may look like a duck, it may walk like a duck and it may quack like a duck – but it’s a goose! That is to say it may look like English, it may even sound and feel like English, but in some subtle way it ‘just aint English’.

The second issue is the legal issue when using Google Translate. This is a tool available to the public and in effect it is the public who contribute to its data base by constant use of the tool. In other words, sentences (or segments) input into Google Translate become the property of Google Translate. This essay is not intended as a legal analysis of the use of Google Translate however the risks of loss of confidentiality in providing information which may be private or confidential (or even subject to attorney- client privilege) should be apparent. Admittedly this risk is reduced somewhat because the information is saved in individual segments, however this author believes that nevertheless the risk remains.

Legal Couplets – or – Synonyms are Word Spices

Melinkoff[19]: “Sometimes for clarity, sometimes for emphasis and sometimes in keeping with the bilingual fashion of the day, [use was made of]… joined synonyms. And what they did not join – their successors did”.

It must be remembered that, very roughly put, the English language is made up of three main language ‘blocks’.  Old English (or Anglo-Saxon if you will), a Germanic based language; Old French ( A Romance language) and Latin. English is a language that easily borrows from other languages and makes ready use of synonyms. The readiest source are the three ‘core’ languages of English (Old English, Old French and Latin). Thus, we have the words “kingly” (Old English) “royal” (Old French) and “regal” (Latin), which all essentially mean the same thing. However, to a native English speaker these words do have a different timbre or feel. A different register.

Without going into any detail on the history of legal English it must be remembered, pleadings and court documents were drafted at one point only in Latin, and at a later point in French, before the use of English becoming the ‘legal language currency’. Thus, when moving from one language to another, the lawyers wanted to be sure not to “miss a beat” fearing that a word from one form of legal language might not have exactly the same meaning as another form. Thus a tradition of doubling up developed, into what have become known, inter alia, as ‘legal couplets’. In today’s English, for the most part, these doubling up (or sometimes tripling up – or more) of words is tautological yet the tradition stands. Who is willing to forego the sonorous “last will and testament” for the dull “will”? Who wants to waive the right to “tell the truth, the whole and nothing but the truth”, for the simpler, but no less accurate “truth”?

Examples:

OLD ENGLISH                                                                          OLD FRENCH

Give, Devise                                                                           bequeath

Acknowledge                                                                         confess

Breaking                                                                                   entering

Deem                                                                                        consider

Final                                                                                           conclusive

Will                                                                                             testament

This habit permeates other areas of the English language: peace and quiet, null and void, let and lease, etc.

Long Sentences and Verbosity

If there is a hallmark of that makes legal English stand out in the eyes of the generality public it is its verbosity. This has roots in a number of causes not least amongst them simple pomposity. Language was used as a barrier between the learned gentry and the common folk. Initially Latin and French which then gave its way to English. As English was the common tongue the only way to keep it as the ‘secretive code of those-in-the know’ was to employ extensive use of highfalutin language, jargon, complex and unnecessary terminology, etc.

Another reason lies in a traditional belief in English drafting that punctuation may hinder rather than assist the reading and understanding of a text. This tradition may have its roots in the move from an oral tradition of law giving to a written one, or in the move from Latin to English, or mere ‘onions in the vat.’ However – this ‘tradition’ lent itself to lengthy – sometimes inordinately lengthy sentences, and our proverbial onion is still sizzling in the vat.

For:

Annul                                                                   Say                                                        annul and set aside

Remove                                                              Say                                                        entirely and completely remove

Will                                                                       Say                                                        Last Will and Testament

Void                                                                     Say                                                        Totally null and void

Without hindrance                                         Say                                                        Without let and hindrance

Document                                                         Say                                                        Written document

Instrument                                                        Say                                                        written instrument

[1]     See Daniel Kahneman: Thinking, Fast and Slow (Kindle Edition 2011). Kahneman refers to what he terms “System 1” and “System 2”. Briefly put, differentiating between rapid or immediate – ‘non-thinking’ response to problem solving. For example the difference between solving the problem 2+2 = ? and 34X 14 =?. This also applies to verbal skills as in the question raised above. We could not hold even the most basic conversation if we had to define – or think about the proper – definition of every word – or even only some of them.

[2]     For more on this see my article through my website: search for “Frozen in Ink Frank Mayers” on Google and download or at: http://www.frank-mayers.com/en/advocate-notary/articles/9-frozen-in-ink.

^[3]        A cryptograph in the form of a word whose letters have the numerical values of a word taken as the hidden meaning. (http://www.merriam-webster.com/dictionary/gematria)

[4]     Deborah Cao (ISBN: 9781853599545) (Kindle edition, downloaded 2014).

[5]     Obviously this division is a merely personal one and there are endless divisions which may be made. Mine is simply based on my own personal needs and work classifications.

[6]     Printing plates of text for widespread reproduction such as advertisements or syndicated columns were cast or stamped in steel (instead of the much softer and less durable lead alloys used otherwise) ready for the printing press and distributed to newspapers around the United States. By analogy, they came to be known as ‘boilerplates’. (Wikipedia, Accessed November 30, 2014)

[7]     Legal Studies Paper No. 2006-12, 1998, downloaded from the following site: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888915 on September 8^th, 2011.

[8]     In his book, The Meaning of Everything – The Story of the Oxford English Dictionary by Simon Winchester (Oxford University Press) (Kindle Edition – 2014), Winchester provides a detailed explanation of the method employed by the first editor of the Oxford dictionary, Prof. Sir James Murray, in divining and defining the words of the English language. The method, still in use today and employed by lexicographers world-wide is to have numerous volunteers send in words, providing the sources for the words. In other words, Murray tried where possible to define the meaning of words using sources within the context they were used and where possible to provide up to a dozen sources for each definition. This did not prevent the occasional (very occasional) slip-up such as the introduction of the word “syllabus” into the dictionary without appropriate sources. Once introduced into the dictionary the word became a firm and fast part of the English language (and other languages – such as Hebrew) even though its origins lie in an error. A case – in a sense- of the descriptive becoming prescriptive?

[9]     149 U.S. 304 (1893) NIX v. HEDDEN. No. 137. Supreme Court of United States.. See:  http://scholar.google.co.uk/scholar_case?case=8906408028119690393&hl=en&as_sdt=6&as_vis=1&oi=scholarr&sa=X&ei=NI6SVMOfFdPkav3sgpgE&ved=0CCEQgAMoADAA

[10]    David Mellinkoff, The Language of the Law (Little, Brown and Company, 1963) Preface.

[11]    Mellinkoff Ibid, page 437.

[12]    Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason. Fortescue, C.J. Cited in Mellinkoff, ibid, page v.

[13]    I.E. purportedly dictating what a word should mean and how it should be understood and used.

[14]    http://www.dailymail.co.uk/news/article-2827798/Don-t-tune-good-grammar-says-BBC-Broadcaster-no-longer-bastion-correct-English-insider-admits.html   Accessed on November 23, 2014

[15]    The late 19^th to the early 20^th century.

[16]    For example, the Latin canus which became the Italian cane.

[17]    https://translate.google.com/ accessed on November 24, 2014. (manual language count).

[18]    For examples of sentences translated well (or even perfectly) by Google Translate try running the terms and conditions for Google Translate through the various languages with which you are familiar. You will find that almost invariably you will come up with good to very good hits.

[19]    Ibid, page 121.