Letter of the law

On Wednesday 29 June, various lawyers and linguists met at the Institute of Advanced Legal Studies (IALS) in Russell Square, London to attend the fourth annual workshop on legislative drafting and linguistics organised by the IALS and the University of Palermo. The subject of this year’s workshop was why laws are so complicated and how linguistics can help the legislative drafters in making legislative texts easier to understand for their readers.

Challenges faced by national legislators.

Hayley Rogers, from the Office of Parliamentary Counsel in London, compared the process of drafting legislation to the challenge of fixing a leaking roof. The cause of the leak is detected, repairs are carried out until another leak occurs which requires further roof repairs. This can continue until the whole roof ultimately collapses. While the aim of the legislative drafters is to achieve effective and coherent language, there are three principal factors that prevent them from reaching this goal:

  • National laws deal with detailed issues and therefore Acts are subject to frequent amendments. These amendments disrupt the original structure of an Act and make it increasingly complicated. Sometimes, instead of repealing an existing Act (which could be bad press), drafters are asked to amend it so as to delete most previous sections, create new ones with complicated numbering (such as ZA1) and even change the name of the Act.
  • Laws are often the result of political context and result from the need to address high profile issues at a certain time. Priority may not be given to areas of law that do need maintenance.
  • There are complex policies at stake and there are insufficient resources at the disposal of legislative drafters.

Challenges faced by European legislators

William Robinson, Associate Fellow at IALS and former legal reviser at the European Commission, explored the reasons as to why EU legislation is particularly complex. His main points were the following:

  • Most EU laws are drafted in 24 languages to create 24 equally authentic texts. Translation is required at various stages of the drafting process and it is the lawyer-linguists who must ensure that the texts have the same legal effect in the various Member States. This can prove difficult in the light of different practices, traditions and interests.
  • Fuzzy drafting is encouraged so that only general principles are set out and it is then up to each Member State to adapt the general aims into their own internal system.
  • Derogations to the general rules are often requested from Member States. For example, the EU legislation on the traceability of animals and meat products led to derogations for Spain (bullfights), Nordic countries (show-farm tradition) or countries allowing wild to semi-wild cattle.
  • Legislation has to be acceptable to authorities (politicians, diplomats, ministers). As a result, it needs ambiguity (“to leave room for interesting or promising contradictions”), omissions (like the scope of definitions), declarations or statements and recitals (setting out the aims of the law). As a result, over the years, the number of articles has decreased while the number of recitals has increased to reach of around 6 recitals to 1 article.

Keys to understanding and reducing complexity

Maria de Benedetto from Roma Tre University in Italy looked at the Italian legal system and offered ideas of how to reduce the complexity of laws, which could lead to better enforcement and a reduction in litigation created by misinterpretation. Her proposed tools were:

  • Improving the drafting by using simpler language (active voice, present tense, avoiding redundancies);
  • Increased transparency in the legislative process (such as the EU legislative footprint);
  • Maintenance of legislation to ensure continuous adequacy;
  • Strengthening the “nomofilachia” (uniform application of the law); and
  • Reducing the administrative burdens and mediation in enforcement proceedings.

Academic opinions

The other three speakers approached the question from a more academic standpoint.  James Hadley, from IALS, presented the early stages of his research on equivalence and legal translation. He sought to demonstrate that if relationships between people are reproduced in different countries, equivalence could be reached in legal translation despite the differences in legal systems and concepts. Stephen Neale from CUNY Graduate Centre in New York looked at various types of determination (constitutive, epistemic, aetiological and stipulative) to show that greater simplicity can produce considerably greater precision and, to this extent, legal language can and should be made less complex in order to achieve more predictable behaviour from language users. The final speaker, Jerome Tessuto from the University of Naples Federico II, Italy, looked at arbitration laws, in Singapore where eastern and western traditions meet.

All these discussions emphasized the complexity of legal texts and the problems faced by legal translators who not only need to translate words and meaning but also to transpose legal concepts that may not exist in the target language. Hence why it is of the utmost importance to approach legal translation carefully and to gain the required training and knowledge.

Click here to download a pdf of the article as published in the ITI Bulletin.

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