LEGAL SPANISH AND THE PLAIN LANGUAGE MOVEMENT
LEGAL SPANISH AND THE PLAIN LANGUAGE MOVEMENT.
Adela Pérez del
Viso (**)
Abstract:
This article refers to the particularities of
legal Spanish, with special reference to its periphrastic features and need to
avoid ambiguities, due to the legal aspect that pervades the language. After a
descriptive analysis of the legal language, a thesis related to the need to
foster plain language is explained. The need of plain language is presented as
a requirement imposed by constitutional rules.
Abstract:
Este artículo explica las particularidades del idioma español legal.
En especial se explican algunas características, tales como el aspecto
perifrástico, y la necesidad de dejar de lado todo tipo de ambigüedades debido
a la exigencia de precisión que se observa todo a lo largo del lenguaje. Luego
de un análisis lingüístico descriptivo,
se expresa finalmente la tesis de que el lenguaje legal debe ser
“llano”; y ello debido a que de esa manera se cumplirá ciertos requerimientos
establecidos por la Constitución Nacional.
LEGAL SPANISH AND THE PLAIN LANGUAGE MOVEMENT.
Legal professionals, who necessarily have to deal with
different instances related to law discussions, typically use language and
argumentation as an everyday tool. Words, language, discussion, oral or written
argumentation, everything consists of instances to be use in the legal
field. As regards legal Spanish, some
authors have tackled the topic whereas from the Logic perspective [i] or taking into account Oratory and its
related abilities[ii].
Nevertheless, in the current situation lawyers and legal professionals are so
immersed in their own day-to-day plight (telephone calls, last-hour hearings,
stressful deadlines, etc) that barely can they appraise to any extent the kind
of language they use and its particularities.
Moreover, legal professionals tend to naturalize their
technical language. They, in fact, make use of a typical group of linguistic
forms which can be called legalese, and which in
present days is considered a real jargon.
Lawyers debate with clients and colleagues, draft documents, propose
them to clients –to be signed- and file them in court, in some sort of
separated language expression which might well be called “Legal Spanish”.
In this work,
some reflections on legal terms under the light of descriptive
Linguistics will be made. Our thesis implies that this newly-formed idiomatic
set of expressions conform a system,
obliges plain inhabitants to learn it or avoid understanding, and lastly
creates a frontier made up of language which might well be considered against
certain constitutional rights.
I-
Summary on Legal Spanish features:
I.1. There is a group of features present in
legal Spanish:
a)
Latin and English
borrowings.
b)
Archaic
and formal register.
c)
Periphrastic type of
language
d)
Use of expressive
redundancy.
e)
Outmost need to avoid
grammatical and semantic ambiguity.
f)
Outmost need to
clarification on deictic expressions.
g)
Outmost need to
clarify references.
I.2. Borrowings:
“One of the most
common sources in the origin of new words … is a process called Borrowing, i. e. the use of words stemming from other
languages”. [iii]
Latin Borrowings:
Our legal system
originates in the Roman administration of law. Another important contributor is
the canonical code (related to the Catholic Church). Therefore, Latin has
exerted great influence on the legal kind of language, due to its inner
prestige and its capability to be used as lingua
franca. The great majority of legal
training curricula include the study of the subject Derecho Romano for one
or two years. Therefore, Latin language, which is inevitable part of
Latin culture, ends up pervading every part of the realm of the lawyer in
Spanish – speaking countries such as Argentina.
On drafts and oral presentations, lawyers use
Latin intertwined with Spanish, in a natural way they are even not aware
of. That is mainly what happens with some utterances such as “prima facie”, “rechazo in limine”, “el quantum de la demanda” ,
“El juez A quo”, “…para que tenga efecto erga omnes”, “Petitum”, “un testigo de visu et auditu…”, “…una
sucesión ab – intestato”, “es una
presunción juris tantum”, “Ergo, lo que corresponde es…”, “i.e.”
(id est), “v.g.”
(verbi gratia) , etc.-
Sometimes
lawyers do not use a sole Latin word, but a whole Latin aphorism. They do that
when they try to support one or more theories in process of verification. This usage has
receded in the past decades, but it still remains in fashion, due to the
strength and synthesis these expressions bare.
That is what happens with some aphorisms such as “Tantum apellatum
quantum devolutum”, which can be more tan successfully used in order to plea the appellate court to dismiss
an appeal filed by the opponent, whenever it is not sufficiently thorough.
The same
situation is present in the case of the phrase “Suum qui que tribuere”, (Give
everyone what they deserve) Another case could be the motto “in dubio
pro…” In dubio pro reo, In dubio pro
operario. Other examples being “onus probandi” or “reformatio in pejus”. The list is endless.
English borrowings:
The
well-known globalization process has created a need to express ideas and
concepts originated in the English-speaking world. Therefore, when dealing with
this material, English is the kind of language that is going to be instilled in
legal Spanish. These borrowings appear when the law regulates the realm related
to companies, exchange and commerce.
Sometimes, legal
Spanish will take the term and the concept altogether. Therefore, Franchising
will mean exactly that: the Franchising
contract. As it has happened with Latin,
the terms end up naturalizing inside Spanish, and lawyers barely note that they
are English terms.
There
are other instances when the term reaches legal Spanish, but as a mere sound, a
term in a different language, but with a different meaning. That is what occurs
with the expression “Mobbing”.
“Mobbing” as a
whole array of rules and recommendations related to a situation that happens in
the workplace, is an institution under
study since the 1980 decade, approximately.
Nevertheless, “Mobbing” is defined as “any repetitive, systematic and abusive
behaviour which represents a threaten against the dignity or against the
integrity of the people in the workplace. A Mobbing process whereas tends to
put in danger the employment relationship or somehow degrades the work
environment, implying a moral or
physical harassment against a person in the workplace.” [iv]
It is clear that
a more correct English term to head this
definition would be “harassment” or “stalking”, and not mobbing, because not
all “mobbing” situations will be developed by a mob. On the contrary, the
typical kind of mobbing situation is the one performed by a sole person, and
–if possible- not in front of others.
All in all, the
term Mobbing is nowadays part of our legal every-day language, even though
lawyers in Argentina tend to pronounce it the wrong way (using a sound of “u”
instead of an “o”).
I-3 Archaic register:
The linguist and legal writer Enrique Alcaraz Varó
considers that one of the features of legal English implies that it bares an
extremely archaic form [v] In fact, this archaic register also pervades
legal Spanish. Most probably the cause
of this fossilizing process resides in the lack of “productivity” or creativity
in the language related to law. In fact,
Productivity is one of the characteristics of every language system. Inside
every language, continually new terms and expressions are created, changed and
even discarded. Language users tend to manipulate their linguistic sources in
order to produce new terms and expressions. This property is called
“productivity” of language [vi].
This feature can be found in legal Spanish, but to a much lesser extent. In
legal drafts and oral expressions, lawyers use expressions that irrefragably
belong to Old Spanish. Some examples of
the latter are the expressions “Dios guarde a Vuestra Señoría”, or the term “Usía”
or “Vuestra Señoría” (V.S.). In
fact, the expression “Vuestra Señoría” could very well be considered against
our Carta Magna, since Section 16 of the National Constitution states: “La Nación Argentina no admite
prerrogativas de sangre, ni de nacimiento: no hay en ella fueros personales ni
títulos de nobleza. Todos sus habitantes son iguales ante la ley, y admisibles
en los empleos sin otra condición que la idoneidad. La igualdad es la base del
impuesto y de las cargas públicas.”. In other words, Section 16 implies that no blood or title prerogatives
should be in fashion under the current law. Thus, the sole idea of the
existence of a “Señoría” implies an odd remnant of Old Spanish.
Other expressions related to Old Spanish are as
follows: “Fecho”, “el encartado”, “se ha incoado….
“, “en autoridad de”, “So pretexto de”, “Estese a”, “Va de suyo que…”.
I-4) Periphrasis:
Piero Calamandrei used to say that shortness and
conciseness were certainly virtues that lawyers should apply in their
presentations. [vii]
In present days, the Supreme Court of Argentina has
issued a resolution that every “Recurso Extraordinario” should be drafted in a
short document (no more than forty pages, twenty six lines each); implying that
conciseness is a requirement to admit the filing of this utter plea. [viii]
. Conciseness is a rare ability to be developed in legal Spanish, due to the
periphrastic characteristics of this language.
**Circumlocution:
A circumlocution is a figure which consists in
“expressing an idea by way of a diversion of words, in order to say it in a
more beautiful and powerful way” [ix]
There are instances in which the circumlocution is
extremely necessary in legal Spanish. The author Alcaraz Varó states
that legal Spanish uses the double of words to utter the same idea in English. For instance, Insider Trading is currently translated into “Contratación en bolsa por quien posee
información privilegiada”…. and Escape
Liability in Damages is meant for “Eludir
la responsabilidad de indemnizar por daños y perjuicios”. [x]
**Periphrasis:
Legal Spanish makes use of different verbal periphrasis in order to
reach precision and accuracy
Periphrasis are “syntactic combinations in which an auxiliary verb is
used along with the main verb (whereas as infinitive, gerund or in a conjugated
form). E.g.: “No puedo
entrar; Iremos considerando cada
caso..; Llevo escritas diez páginas. (…)” Many auxiliary verbs are the result of a grammar
process, and they have been modified in their meaning and form.” [xi]
In the case of legal Spanish, the periphrastic aspect aggravates, due to
the urgent need of precision and accurate identification of subjects and
objects in order to determine rights and obligation in drafts and depositions.
**Expressive redundancy:
As Alcaraz Varó
([xii]) has stated,
many repetitive constructions are present in the legal language, which imply
the use of two or more synonyms.
In legal Spanish, some cases are as follows:
Formal recibo y carta de pago.
Vende, cede y transfiere.
Todas y cada una de . . .
Nulo y sin efecto.
Niego y desconozco.
Hábil y en uso de mis facultades mentales.
Visto y considerando.
Dado, sellado y firmado
De uso y conservación.
Daños y perjuicios.
Lo plantado, clavado y edificado.
Some of these expressions are used as idioms due to
the transmission between one generation and the next.
Another possible cause for the use of these twin
expressions implies that they are just idioms, or fixed expressions, which have certain meaning that would be
considered different had the terms been used in other way.
*** Extreme need to avoid ambiguity:
Lawyers and judges need to be precise at the moment to
designate people and things. Therefore, instances of ambiguity must be
suppressed for the sake of legal Security.
One of the manifestations of this need to avoid ambiguity
is the insistence to clarify every deictic utterances in use during hearings
and oral instances.
““Deixis” is a Greek term which means “pointing with
the finger through language”. [xiii]
When facing a witness in court, lawyers will fixate in
asking “Which door did you refer to when you said “that” door”. “Which place are you referring to when you say
“there”?”
That situation happens because the terms “this”,
“that”, “there”, purport to point with an imaginary finger to certain places or
things, that later on the judge (in reading the transcription) will not be able
to visualize. Words such as “yesterday”, “tomorrow” are also intrinsically
deictic, and the context of pronunciation will show if they present ambiguity
as to the message or not. Lawyers must be well aware of that as well.
II-
The
plain language movement:
Legal Spanish is a complex language, hard to
understand and apprehend even for native Spanish speakers. It could be understand as a kind of jargon,
with expressions extra-large that perhaps could be summarized or simplified.
This jargon feature is in fact shared with other
particularized languages, such as Medical Spanish, Spanish language for
business, Spanish for journalism and other professions.
Contrary to that, some authors like Jurgen Habermas
attain that all Social change must be achieved through a process inside the
symbolic realm of communication and understanding among subjects. Habermas
states that language and communication are intrinsically linked to man-work,
and that they allow developing some kind of social action to enhance cooperation in Society and Democracy. ([xiv]
Following that idea, in English-speaking countries the
“ Plain language movement” has started, in search for simplicity in
documents. The main idea states that
legal language should be this way:
a)
Relevant
b)
Short and concise.
c)
Easy to follow and to
be understood.
d)
Direct and not on
circumlocutions.
e)
Friendly expressions
for the reader.[xv]
Members of this think- tank state that it is necessary
to simplify the legal language to be used in contracts or any other legal
manifestation.
Some law specialists state that by this means,
Security (as a value) and Accuracy could be put in danger ([xvi]
Nevertheless, the fact that legal Spanish is obscure
and hard to understand is something undeniable. People are lost when facing any
legal document, and in a desperate need to hire a lawyer. This situation could
be considered a threaten to the RIGHT OF DEFENSE, ruled by Section 18 National Constitution (of
Argentina) and a breach of EQUALITY,
protected by Section 16 of the same legal document.
In the XXI Century, there are film-graphic recordings
of hearings, web pages for the activity of the courts, press offices for the
judicial authorities, etc. The question
arises as to which kind of language those media entities are going to use. Are
they going to make use of the complex “legal Spanish” or of a simpler one? The answers must be clear: they will need to use PLAIN LANGUAGE.
By the means of avoiding jargon and complex
expressions and adopting a plain language, authorities will begin to include
more people and discard privileges. Language will become a powerfully
democratic way of interaction and communication, even in the legal field.
NOTES:
[iii] Yule George,
op. cit, P. 65.
[v] Alcaraz Varó, Enrique: “El Inglés Jurídico Textos y documentos”.
Ariel/ Derecho. 6ta. Edición. Barcelona
[vi]. Yule, George: Op. Cit. pg. 23.
[vii]Calamandrei,
Piero: “Elogio de los jueces, escrito por un abogado”. Ediciones Jurídica
Europa- America. Bs.As. 1969. Pg. 93.-
[viii] Reglas para la interposición del Recurso Extraordinario, Acordada nro.
4/2007 de la C.S.J.N., B.O.: 21/3/2007)
[ix] Diccionario de la Real Academia Española. Voz
Circunlocución.
[x]
Alcaraz Varó, Enrique: op cit. pg. 92.-
[xi] Real Academia Española, “Nueva gramática de la lengua española-
Manual” Asociación de academias de la lengua española. Editorial Planeta. Buenos Aires. 2010. P. 529
[xii] Alcaraz Varó, Enrique: op cit P.76.
[xiii] Yule, George: “Pragmatics” Oxford University Press. Oxford Introductions to Language Study. 5ta impresión. 2000. Hong Kong. Pg. 9.
[xiv] Habermas, Jurgen: “Teoría de la acción
comunicativa. Complementos y estudios previos.” Madrid, Ed. Cátedra. 1989.
[xvi] After argumentation of ALVAREZ VARÓ,
Enrique: “El Inglés Jurídico”
Ariel-Derecho, 6ta edición, Bs.As., 2007, pg. 73.
ABOUT THE AUTHOR:
Adela Pérez del Viso is a lawyer (Universidad
Nacional del Litoral 1986). Other certificates:
Mediación en ámbitos comunitarios (Flacso/ UNSL 1997). Notaria (UNL
1988). The autor is a member of Equipo
Federal de Trabajo, and ex member of the Observatorio de Derechos Humanos de San Luis; FCE 1997, CAE 2007,
ILEC 2009; ex Labour-Law teacher at
Universidad Católica de Cuyo (San Luis); trainee teacher at I.F.D.C San Luis (currently
studying last year subjects) Profesorado
de Inglés. Legal Law teacher
(level I and II) at Colegio de Abogados de San Luis. The author was awarded
with the Yad Vashem scholarship in January 2008.
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