1. INTRODUCTION
This chapter intends to explain different notions applied throughout this thesis. It is to explain the notion of legal discourse in general and then refer to particular terms related to it e.g. legal language, lawyer’s language and language of the law, which are often mixed with one another. This chapter also refers to certain characteristic features of legal discourse and legal or legislative writing, which are quire peculiar and differentiate it from all other types of special-purpose texts. Communicative purpose is emphasized and all the strange, often criticised properties are explained along with proper examples.
1.1. DEFINITION OF LEGAL DISCOURSE
Traditionally any type of discourse means a sequence of speech utterances analysed as a whole, from the point of view of their internal structure of narration or argumentation. It is a kind of interaction between two participants of the act of communication. Narration and argumentation are two basic forms of organizing language forms in a discourse. They are often present in the same discourse simultaneously. Written discourse is thus not an archaic structure, closed and autochthon one, but is seen more as a dynamic relationship, representing certain type of interactions between the receiver and the sender. From the translational point of view, it denotes the conditions of creating and perceiving them in a particular socio-cultural context. This context describes time and place, in which the translational process takes place or in which its result is being evaluated (Tomaszkiewicz 2006:35-37).
Legal discourse is a social communication event or an act of communication covering the entire act of communication i.e. verbalization of text and accompanying non-linguistic factors which are the context of usage and participants of communication. In the words of Grabias it is a ‘sequence of linguistic behaviours, whose form depends on who says what, to whom, in what situation and what is the purpose thereof” (Grabias in Kierzkowska 2006:76).
Legal discourse is usually analysed from the point of view of the theory of law rather than by means of linguistic methods. It focuses on formal logic, semiotics and philosophy. It is a language model having normative and prescriptive character. Most often, it is not based on a single but on many different language contexts and situations. It also encompasses theoretical traditions that investigate relations between language, structure and agency (Bosiacka, 2005:17).
1.2. DEFINITION OF LEGAL LANGUAGE
Legal language means language of legal act, legislation and legal deeds. The actual law is formulated in this language. All legal texts are drafted in legal language. The variety of a particular legal language (sub-language) used in legislative texts carrying legal norms, facilitates the actual process of deriving legal norms from such texts (Kierzkowska 2006:18). Here we may distinguish: the language of legal provisions and the language of legal norms (Ziembliński in Bosiacka 2005:18) e.g. constitution, statutes, decrees, ordinances (which are normative texts at the same time).
1.2.1. DEFINITION OF THE LAWYER’S LANGUAGE
Lawyer’s language means specific language used in the communication between lawyers and other members of legal society using and interpreting it. This type of language is used in ordinances and legal writings, in the addresses of barristers and in theoretical remarks concerning the law as well as many different types of this language e.g. journalistic legal language. The first one suggesting this concept was Lewandowski. Lawyer’s language may be further divided into: the language of legal practice (language used by persons applying it; lawyers) and the language of jurisprudence. In this context, jurisprudence shall denote a particular legal doctrine, whose main focus is directed towards proper interpretation of legal norms and institutions such as language of jurisprudence, legal doctrine or legal sciences. Sometimes it is referred to as ‘legalese’ in the meaning of peculiar slang or professional jargon used among lawyers (Lewandowski in Kierzkowska 2006:18).
1.2.2. DEFINITION OF THE LANGUAGE OF THE LAW
Language of the law includes both legal language and the language of the law itself. It denotes these notions in wider sense. Gizbert - Studnicki suggested such generalized term to talk about the language of the law in general without mentioning particular variety (Gizbert - Studnicki in Bosiacka 2005:18).
1.3. LAWYER’S AND LEGAL LANGUAGE VS. GENERAL LANGUAGE
Neither lawyer’s nor legal language constitutes a separate linguistic category of its own, as it does not include grammar or strict rules but only certain characteristic terminology and phraseology (Jadacka in Bosiacka 2005:20). In fact, it is based on general language as it is using the same terms in the same meanings. It does not have separate syntax or grammar (Zieliński in Bosiacka 2005:30). One of the differences is that it has developed a set of specific vocabulary, certain phrases, syntactical differences or peculiar stylistic features of phrases and expressions. Another difference between these two languages is the fact that legal language has certain terms, which are, absent from general language e.g. pleadings (‘pozew’). Some terms of legal language are based on general language but are ascribed with much wider scope of meaning. The last difference is the presence of legal definitions intended to explain particular terms of general language. Legal language is more autonomous that any other specialized discourse. Apart from legal language or language of legislation we may say about socio-operative specialist language (record from a hearing) or “legalese”; “injunction”- “proceedings” (Wojtak in Bosiacka 2005:21), Some theorists suggest that we should refer to it as to specialist terminology relating to the field of law (Pieńkos 1993:302).
1.4. LEGAL TERMS VS. LEGAL TERMINOLOGY
Legal term refers to the name of a particular notion of legal institution constituting a part of the already determined legal system. A definition of legal institution usually denotes a legal person, legal institution, legal relationship, legal action or mode of legal proceedings. In order to be precise and unambiguous legal terms have to be consequently used as in legal language their role is more significant that in other SP texts. We have to use the same term to denote the same concept within a given type(s) of text(s). It is called the notion of semantic fidelity in legal discourse. It is stated that: ‘the same term is used to denote the same concept, different terms may not be described with the same term’ (Kierzkowska 2006:21).
Legal terminology is quite peculiar due to its high level of unification and phraseology. As a result thereof, the process of drafting legal texts is more or less formulaic as it is generally prescribed by certain rules. It allows preserving the form of legal language, so that its actual legislators (legal institutions, social institutions, authoritative organs), as well as other initiators, co-determiners and individual users (lawyers or non-lawyers) could actually use it (Kierzkowska 2006:18).
1.5. DEFINITION AND CHARACTERISTICS OF LEGAL TEXTS
Legal texts are normative texts, expressing command or prohibition. Typically, these documents are issued by the state organ of authority for the purpose of further interpretation. Legal texts have their origin in the notion of legal discourse. In order to interpret them one needs to have certain specialist knowledge, ability to interpret legal norms and has to know the legal context. Legal texts are also normative or any types of legal acts expressed in words, formulated in legal language as opposed to lawyers’ language. They are characterized by economic form and condensed construction so as to determine the norms of conduct for as many theoretical situations as possible (Bosiacka 2005:24, Kierzkowska 2006: 19).
1.6. DISTINGUISHING FEATURES OF LEGAL TEXTS
Nowadays we may distinguish between 3 categories of features of legal texts:
a) communicative features - precision (Wojtak in Bosiacka 2005:2), clarity, logical and adequate to the object of description (Jadacka in Bosiacka 2005:21);
b) linguistic features - precision (Wojtak in Bosiacka 2005:21), categorization, standardization, terminological (Halas in Bosiacka 1995:21); and
c) stylistic features - they are dependent of the type of speech act and individual features, impersonal, too shortened in order to be precise, e.g. Murder- forbidden act subject to penalty (Bosiacka, 2005:21).
Incomprehensibility and obscurity connected with the language of the law as a whole is often reported as its serious drawback. However, it is so widespread that some people have already started to treat it as some kind of additional linguistic characteristics of texts dealing with law (Bosiacka, 2005:23).
Apart from all the features mentioned above, legal texts using legal language or lawyer’s language are distinguishing themselves from a various group of other special – purpose texts. The reason for that are certain language rules along with rules and instructions governing the interpretation process thereof. Not knowing these rules might have serious consequences e.g. not understanding or completely misunderstanding a particular legal text or legal communicative occurrence e.g.
• “The minister shall publish the list” (“Minister wyda wykaz”) meaning that the Minister is obliged to issue and also that he has competence to do it
• “The list shall be published by the minister” (“Wykaz wyda minister”) – only the minister is authorized to do it, no other person has such competences (Zieliński in Bosiacka 2005:22).
1.7. DIFFERENT TEXT TYPOLOGIES
Text typology means a classification of a particular text or a group of texts from the point of view of a particular branch they belong to, based on their type, purposes they are intended to fulfil and on the type of discourse they realize (Tomaszkiewocz 2006:112).
As regards legal translation, as well as any other translation process, there was a belief that translation should be either free or literal and the decisive in determining the strategy was the text itself. The results were numerous text typologies based on subject matter. Formerly, almost none of the existing text typologies included legal texts (Kloepfer in Sarcevic 1997:5).
The first one who dealt with scientific translation was Pierre-Daneil Huet in his work “De Interpretatione”. He noticed the fact that scientific translation posed special difficulties and he was concerned about the state of affairs, where although many scientific texts were important, they were completely neglected without any particular reason (Huet in Sarcevic 1997:6).
In the XIX century Schleiermacher noticed the translation of works of art, including literary and scientific texts and translation of worldly texts concerning usual matters from business to everyday life. The first type was referred to as Ubersetzen and the latter as Dolmetschen. Schleimacher believed that the terminology of such texts was similar in almost all languages he concluded that these texts could be translated by a mechanical process of inter-lingual substitution. According to Schleiermacher scientific texts included philosophical texts, texts of the humanities and texts of natural sciences. Later there was a clear distinction between literary texts (philosophical, texts of humanities) as opposed to technical and scientific ones (technical texts and texts of natural sciences). After Schleiermacher critics started to call the translation of literary texts “Ubersetzen” and the translation of any other texts was called “Dolmetschen”. This distinction placed technical and scientific texts on the same level with Schleiermacher’s worldly texts. These two groups were further transformed into the modern special -purpose texts (Schleiermacher in Sarcevic 1997:6).
After the Second World War, Andrei Fedrov included commercial texts and official documents together with technical and scientific texts in the group of the so-called special-purpose texts. He rejected the idea that this type of translation is inferior. He claimed that a translator can do his job correct only when he possesses great degree of knowledge of this particular subject matter (Fedorov in Sarcevic 1997:6).
More or less at the same time Casagrande talked about four text types as follows: special-purpose or pragmatic texts (referred to as aesthetic-poetic texts, religious texts and ethnographic texts (Casagrande in Sarcevic 1997:6).
On the basis of this typology Jumpelt created his own version entitled “Die Ubersetzung naturwissenschaftlicher und technischer Literatur”. This work is of great importance as it is one of the first post-war works devoted to specialized translation. He classified all special-purpose texts as pragmatic he distinguished four text types:
- technical texts;
- texts of the natural sciences;
- texts of the social sciences (including sociology, economics, politics, finance and law) and;
- other texts.
Jumpelt focused his studies on ‘exact’ sciences like technology or natural sciences, however he admitted that translation techniques in case of different text types have to be different. He made a conclusion that all special-purpose texts have an informative function (Jumpelt in Sarcevic 1997:7).
In 1971, Katherina Reiss proposed a translation-oriented text typology based on the subject matter and what is more important on the function of a given text. She classified texts as expressive, conative and informative. According to Reiss, literary texts were expressive, where some were addressee-oriented or persuasive; texts such as propaganda were classified as conativeand objective. Finally she indicated texts used to transfer information and deemed them purely informative. Her thesis that all special - purpose texts had only informative function was wrong. She based this assumption on Karl Buhler’s tripartite classification of language functions from 1934. On the basis thereof Reiss classified all special – purpose texts as follows:
a) expressive texts
b) conative texts
c) informative texts (Reiss in Sarcevic 1997:9).
Reiss’ typology caused that functions and pragmatic aspects of such texts started to be emphasized. Some scholars still denied the role of pragmatic factors in case of special-purpose texts. When it came to creative writing, Reiss deemed it subjective, focusing on the author. Here she meant editorials, polemics, propaganda or purpose novels. She classified these texts as conative. As for objective texts, intended to convey information she denoted them as informative texts, including notices, reports laws and contracts (emphasized) or treaties.
In 1970s the LSP (languages for special purposes) research gained pragmatic orientation i.e. started to notice pragmatic factors important for particular type of translation (Mohn and Pelka in Sarcevic 1997:7). Subsequently, many theoretics tried to create new text typologies e.g. Weber (Weber in Sarcevic 1997:8) tried to prove that the formal-linguistic characteristics of special-purpose texts are determined by the function of the particular texts. He proposed a typology, where texts would be classified according to Halliday’s functional categories as ‘predominantly instrumental, regulatory, interactional, personal, heuristic, imaginative or representational’. He was convinced that special-purpose texts have a single function i.e. representational. Schroeder emphasizes the fact that extra linguistic factors should be analysed as they affect forms of social action in special-purpose communication (Schroeder in Sarcevic 1997:8)
A typology of LSP can be adequate and consistent only when applicable to all special-purpose texts. Sager emphasizes the importance of communicative function. However, he recognizes two other secondary communicative functions: interrogative and directive. The interrogative function ‘requires a reversal of roles so that the sender seeks information from, rather than offers information to the recipient.’ whereas the directive one is ‘an attempt to elicit modification of behaviour via an effect on knowledge’. He acknowledges the importance of communicative function in these texts. He claims that the sender’s intention is to inform the recipient and argument to a certain degree. He also distinguishes two secondary communicative functions: interrogative and directive. Interrogative one means that the sender seeks information form the receiver, instead of giving it, the directive one denotes an attempt to elicit certain change of behaviour by means of affecting the level of knowledge (Sager in Sarcevic 1997:9).
Subsequently there were some attempts to sub divide the language of the law. Jean-Claude Gemar made one of such attempts, where he identified six subdivisions of the language of the law: (Lerat in Sarcevic 1997:8)
- the language of the legislator
- the language of judges
- the language of administration
- the language of commerce
- the language of private law
- the language of scholarly writings (Gemar in Kierzkowska 2006:18).
Regarding legal texts formulated in the language of the law, Gemar divides such texts into three different group groups:
a) the first group: laws, regulations, judgments, international treaties;
b) the second group: contracts, administrative or commercial forms;
c) the third group, which consists of scholarly work (doctrine), which he deems the most difficult to translate. His criterion is not the function, but the subject matter i.e. whether particular text regulates public or private affairs. As for translation techniques he mentions literal translation, functional equivalence and interpretative translation. Since functional equivalence is not a translation technique he must be referring to what is known today as functional approach to legal translation (Gemar in Sarcevic 1997:17).
It seems that not only are there some further subdivisions, but also that each legal systems has in fact different language of the law. The language of the law is bound to such legal system; thus being a product of a particular country’s specific culture, history and even religion. The main point is not to study the features of such languages but their usage in various contexts of legal texts. As a result thereof, translator’s task is to use such features efficiently as to help him express legal actions evoking desirable legal effects. If he managed to do so by creating a translation with the same legal effects as the original text, then we may call it successful translation.
1.8. DIFFERENT FUNCTIONS OF LEGAL TEXTS
Like all other texts, legal texts denote a ‘communicative occurrence produced at particular time and place, intended to serve a specific function’ (de Beaugrande and Dressler in Sarcevic 1997:9). Despite the fact that it is the function of legal texts that makes them special, translation theorists still fail to recognize their primary function treating them like all the rest of special – purpose texts.
According to Karl Buhler’s tripartite classification of text functions, the informative function predominates the texts focusing on objects and/or facts as they describe some state of affairs observed in the ‘real’ world, the expressive function is characterized and realized through sender-oriented texts with the intention of ‘enriching’ the world and the conative function is addressee-oriented and dominating texts created for the purpose of ‘changing’ the world by provoking a particular addressee to perform certain actions or imposing some norms of conduct.
Legal instruments are regulatory in nature are most often prescribe rules of conduct or social regulations, whereas contracts regulate the conduct of the parties therein. Regulatory instruments are realized through conative texts and should be characterized by frequent use of the imperative. Buhler himself claimed that most legal texts are imperative or conative. Conative texts are not only persuasive but also regulatory to a certain extent (Sarcevic 1997:11).
Peter Newmark also based his text-typology on Buhler’s tripartite model of language functions. He claimed that laws and regulations should be deemed conative in nature i.e. vocative texts (he referred to them as ‘directive’ and ‘imperative’. However, later he changes his mind and reclassified these texts as ‘expressive’ (Newmark in Sarcevic 1997:10-11).
Katherina Reiss acknowledges Buhler’s statement but fails to recognize the special function of the imperative in such texts. She believes that the use of the imperative is characteristic for informative texts e.g. instructions for use (Gebrauchanweisungen) (Reiss in Sarcevic 1997:10).
Jurgen Habermas, a philosopher and a linguist in his word entitled ‘Theorie des komunikativen Handelns’ claims that legal texts, similar to laws or contracts have a regulatory function and as a result they are falling under Buhler’s category of conative texts (Sarcevic 1997:10).
Sager makes a different assumption i.e. that laws and regulations have various functions depending on various readers. Law and regulations have informative purpose for a general reader and a directive one for a group of people it applies to i.e. for those affected by this text. He defines the character of “specialist communication” as a transfer of knowledge between a sender and a receiver, who actually communicate within the same scope of knowledge (Sager in Sarcevic 1997:9). Sager points out that although all legislative texts are addressed to the ordinary public in the first place, they require certain level of knowledge how to move within a particular legal system. In such cases education has nothing to do with it, what is indispensable here is the ability to understand and communicate legal provisions in the context of this legal system and the ability to understand the consequences thereof. The receiver and the sender ought to share at least basic situational knowledge meaning that both the author and the receiver of a particular text. Situational knowledge shall be the information concerning the author and
1.9. BIPARTITE CLASSIFICATION OF LEGAL TEXTS FUNCTIONS
Theorists tried to apply general translation theories to legal translation without recognizing its primary function i.e. communicative function. However, this attempt brought no results. Lawyers, on the other hand tend to deal with legal terminology taken out of the context, irrespective of the text and its linguistic characteristics. In legal translation the fetter of the law needs to be without failing to recognize the text alone. Legal translation is not a separate branch of translation. Like in any other translation processes, the text, not the isolated words constitute the basic unit of translation. However, this type of special purpose communication has to take legal criteria into account, as texts produced by translators are subject both to legal criteria and legal provisions. The best way to determine the appropriate translation strategy is to take some pragmatic considerations into account (Sarcevic 1997:16).
In case of legal texts the former tripartite text classification system has been replaced with a bipartite. According to the new system legal texts, which are formulated in legal language have only two functions i.e. regulatory and informative function (Sarcevic 1997:12). In legal terminology they are referred to as prescriptive and descriptive function of legal texts (Kelsen in Sarcevic 1997:11). In general, legal texts can be divided into three major groups, depending on their function i.e.:
- primarily prescriptive texts
- primarily descriptive texts with some prescriptive characteristics as well
- purely descriptive texts
Legal texts with primarily prescriptive purpose are for example: laws, regulations, codes, contracts, constitutions, statutes, treaties and international conventions. They are regulatory instruments providing rules of conduct or a set of norms. These are also normative texts prescribing a particular course of action, advice a type of human behaviour, which is believed to be appropriate. All individuals are required to follow norms and rules provided for in such texts, otherwise he/she would be subject to sanctions. Nowadays normative type of texts have the following functions: they advise people how to act and behave (in other words they commands something), they may retain somebody from doing something (serve as prohibition), they inform what type of actions is permitted (permission) or inform which actions are authorized and sometimes inform whether a given individual is explicitly authorized to act (authorization) (Kelsen in Sarcevic 1997:11).
Susan Sarcevic claims that legal language is special-purpose communication between specialists. This definition excludes communication between lawyers and non-lawyers. Due to the fact that legal texts are formed in legal language her definition does not include several text types such as contracts or judgements. Sarcevic does not support the statement that legal texts only serve as a communicative event and that are barely informative. She determines legal texts as normative. Sarcevic differentiates between three groups of legal texts based on the function they are intended to fulfil. The first group of legal texts includes normative texts, all of which are at the same legal texts. Legal commands are different from other commands, for instance religious ones in a way that they are vested with the force of law and are coercive in the sense that violations are subjected to sanctions and punishments and punishable by law (Sarcevic 1997:9).
The second group of legal texts includes all hybrid texts, whose function is primarily prescriptive. However, such texts include certain prescriptive parts as well. Among the examples of such texts we may enumerate judicial decisions and judicial instruments, which are used to conduct judicial or administrative proceedings such as pleadings or petitions. The first two groups of texts mentioned hereinabove include legal instruments used in the mechanisms of law (Sarcevic 1997:12).
The third group of texts does not constitute a group of legal instruments at all. However, they may have an indirect impact on law. This group includes among others purely descriptive texts e.g. texts written by legal scholars, legal opinions, textbooks or articles related to the field of law. These textx constitute the essence of legal scholarship or legal doctrine. Yet, there is one important difference here. The authority of such texts remains different in different countries with different legal systems. It may be explained by the fact that these two groups constitute documentary sources of law, which means the primary origin of a particular legal system, its authority and coercive force (Sarcevic 1997:12).
1.9.1. LEGISLATIVE TEXTS
A legislative text provides rules, guidelines or norms of conduct. It is intended to impose duties i.e. how to act under given circumstances relating to particular matter. Any failure to do as imposed is deemed violation of law and subsequently subject to punishment. Such prescribed rule of conduct punishable in case of violation is called a legal norm. In contrast, another element present in such texts is legal provision which is intended to express orders or prohibitions i.e. prescribing the addressees to act in a certain way act, prohibit or refrain them from certain acts. Besides duties and prohibitions such texts confer rights, privileges and powers, which are granted to particular subjects in the form of permission and authorization. In a way it secures a benefit of a person on whom the obligation is imposed or on whom the right, privilege or power is imposed. Legislative texts always include legal provisions of normative character, which result out of legislative activities whereas legal provisions are used to encode legal norms. It may be issued by state governing body or other authorized entity e.g. local authorities, according to rights conferred in constitution or under statutory rights. Legislative texts make up legislation issued by the English Parliament. As regards legislation itself, for the purposes of this thesis it will denote a set of written laws passed by a legislative body. In fact, the Parliament in England is the only organ granted with such broad rights. All legislative power is in fact either vested in or deprived from the Parliament i.e. the House of Commons, the House of Lords and the Crown. As being a part of legislation, legislative texts are addressed towards a particular group of recipients e.g. statute, code, decree, ordinance, constitution, resolutions, deeds, statute, order or even act of local law. An act is a piece of legislation passed by roper legislative organ. In England a typical Act of Parliament may be divided into parts, sections, sub-sections, paragraphs and at the end annexed with a schedule. All those divisions are to facilitate comprehensiveness and clarity of such legal texts. A legislative text is legally binding if it was issued and published according to respective rules or procedure. Only after the application of such prescribed procedure a given text will have legal force and as a result thereof, it will be applied and continue in force (Sarcevic 1997:127; www.student.lex.pl/bazy/zbior/opr_krak_011108.doc; Gubby 2004:16).
Although legislative texts are classified as legal texts expressed in legal language they are untypical in respect of legal effects. Legislative texts include normative and authoritative sections. Normative or substantive sections i.e. normative provisions, express the content of legal norms in a way that they set forth rights and obligations. Those sections, which are not normative in nature i.e. administrative parts, do not impose obligations at all. They simply regulate legal machinery used to declare and enforce obligations or rights contained in legal provisions. Finally, there are procedural provisions usually expressed by standard, formulaic expression. This is untypical for all remaining legal texts, which are legally binding, and at all times and are never devoid of legal effect whatsoever (Sarcevic 1997:128).
1.9.2. INSTITUTIONAL TEXTS
Legislative texts are parallel texts or sources of law produced and used by national, supranational (EU) and international institutions. The communicative function of institutional texts is standardized, which means that all parallel texts of a single instrument always have the same communicative function. According to Vermeer’s Skopos theory there is no shift in function. Apart from the fact that each institution individually prescribes the required format and style for written types of texts, it also has a set of its own ‘unwritten’ guidelines. Various texts are translated differently at different institutions. In legal translation text function plays a significant role because it is one of the criteria on determining the appropriate translation strategy (Sarcevic 1997:21).
1.9.3. AUTHORITATIVE TRANSLATION
This type of translation enables the mechanisms of law to function in more than one language. Translations of normative legal instruments are authoritative if they are approved and/or adopted in the manner prescribed by law. Once they were adopted, they become the law. Legally binding instruments including authoritative translations are also described as authentic texts. A text can become authentic only after being adopted or authenticated in a different manner. Apart from these texts there are also official texts, translations of which are signed but not adopted by the member countries and official translations - prepared by the government or international organization on its own responsibility. International lawyers distinguish between texts, which include language versions designated as authentic and other versions applying to any other language versions. Once the translation has been authenticated, it is vested with the power of law. Theory of original texts assumes that lawyers regard all authenticated texts as originals. Equally authentic texts existing in two or more languages are referred to as parallel texts, which constitute a point of reference for translators (Sarcevic 1997:19).
1.10. RULES GOVERNING THE INTERPRETATION OF LEGAL TEXTS
There are two levels of interpreting legal texts. For the purposes of this thesis, legal texts shall cover all documents issued by the court, lawyers and all persons included in the specialist circle of legal communication (e.g. judgments, wills, contracts etc). They are the most important factor in differentiating between the lawyers’ language and the legal language. Legal language i.e. the language used in legislative provisions, is prescriptive. Legal provisions i.e. where “A makes C” should be in fact interpreted as “A should make C”. In this case it expresses the notion of legal norm. On the other hand, lawyers’ language in relation to legal language serves as meta-language. In such situation the lawyers’ language has certain descriptive characteristics. “A should make C” would be interpreted as a legal norm from a point of view of the legal language, whereas in lawyers’ language it is merely a description of particular legal norm that is in force within a particular legal system. Thus, from a directive point of view the legislator imposes certain prohibitions and orders to punish an act of murder. It is the level where legal text is being interpreted and it requires having certain degree of extra-linguistic competence (Bosiacka 2005:24).
This method of prescriptive drafting of legal texts has a long-standing tradition. Zieliński believes that it s connected with the condensed form and telegraphic style of a given text. Only such form enables to determine and establish certain norms of conduct for as many factual situations as possible. It is also the all-inclusiveness of legal language meaning it intends to predict all the possible situations and behaviour in order to protect the letter of the law (Zieliński in Bosiacka 2005:25).
1.11. CONCLUDING REMARKS
It results from the analysis above that legal discourse, which is a wide concept denoting social communicative events i.e. the entire act of communication. It is a complicated language model including norms and provisions based on different situations. It comprises many other concepts such as legal language, the lawyer’s language or the language of the law. At first they seem to be synonyms. In fact, they are far from being synonymous expressions. These notions differ in terms of general characteristics and function they are to fulfil. As stated above legal language does not constitute a separate language, as some people would claim. However, it includes certain areas that may case such difficulties. Interpretation and translation of legal texts requires special knowledge. Translators have to be aware of general differences; otherwise they could misinterpret the whole substance of particular text. The notion of legal discourse is very wide and is inseparable from the notion of legal text, legal language, legal document, legal terminology or even text typology and classification of legal functions. Text functions is important as legal discourse itself is a communicative event, so in order to be effective we have to transfer the actual intention of the text producer addressed towards particular class of receivers.
Another pitfall of legal translation is the content of legal texts, which entails dealing with legal norms and legal provision, which are difficult to follow, not to mention creating legal effects identical to those prescribed by those norms. Here, translation goes way beyond the text itself. The role of translator shifted to a text producer, as he/she must translate the actual legal essence of the original. First, he/she has to know certain characteristics of legal texts. Later, in the course of work he/she has to identify proper text type or legal genre and then focus on functions, which are to be transferred. This involves understanding all types of legal discourse, legal norms and provisions as well as having certain amount of knowledge on two legal systems, which are very often incongruent.
