AGNIESZKA KOCEL-DURAJ

AGNIESZKA KOCEL-DURAJ

Akademia Techniczno-Humanistyczna w Bielsku-Białej

Legal Language: does translation mean communication?

Key words: legal language, language of law, common law, continental/civil law, legal trans-

lation, similarities and differences in legal systems, dictionary and terminological

analysis, discourse analysis, equivalence, communication

Słowa klucze: język prawniczy, język prawny, język prawa, prawo precedensowe, prawo kon-

tynentalne, tłumaczenie prawnicze, podobieństwa i różnice w systemach praw-

nych, analiza słownikowa i terminologiczna, analiza tarczy dyskursu, ekwiwalen-

cja, komunikacja

1. Introduction

The language of law has always been perceived as a unique construct with its own char-

acteristic features originating in the culture and tradition typical of the place where it has been

used. Thinking of a definition of law, while some see it as a ‘system of rules’ (Twining –

Miers),1 others try to focus more on its ‘functions’ in the society (Llewellyn, Summers)2 or,

quite on the contrary, understand law as an ‘isolated creation’, completely separated from the

context (Austin).3 The last definition seems the most controversial, particularly in the case of

common law, which, in contrast to the civil law, for centuries has been formed by decisions of

judges influenced by circumstances in which the decision needed to be taken. According to

Beveridge,4 “the common law, unlike the civil law, was never a law of the universities nor

a law of abstract principles. Rather it is a law that was, and is, shaped by practitioners.” This

1 Twining W. and Miers D., How to Do Things with Rules. 4th ed., Butterworths, Sydney 1999. 2 Llewellyn K., The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, [in:] Yale Law

Journal, 1940; Summers R., The Technique Element in Law, [in:] 59 Calif LR, 1971. 3 Austin J., Sovereign and subject, [in:] The Politics of Jurisprudence 2nd ed., ed. Cotterrell R., LexisNexis But-

terworths, London and Edinburgh 2003. 4 Beveridge B. J., Legal English – How it developed and why it is not appropriate for international commercial

contracts, [in:] The Development of Legal Language. Papers from a Symposium on Legal Linguistics, ed. Heikki

E.S. Mattila, Finland: Kauppsakaari 2000, p. 2.

88 Agnieszka Kocel-Duraj

practical aspect of law together with the doctrine of stare decisis, under which words and

phrases once used need to preserve their primary form in order to convey their primary mean-

ing, contribute to the idea of the common law seen as inseparable from the minds of people

responsible for its creation, and therefore in order to understand this legal system, what one

should really understand is the state of mind of its creators. On the other hand, the civil law

tradition is rooted firmly in Roman law, consisting of two elements: “the first is legal science

based on Roman legal texts (Corpus Iuris Civilis) developed in the period from the late 11th

century up to the 19th century; and the second is practical experience resulting from the appli-

cation of Roman rationes decidendi,”5 which in practice has given rise to codification of legal

provisions and creation of legal codes offering the basis of today’s most European legal sys-

tems. Trying now to compare these two types of legal traditions together with their various

subtypes developed in different locations, sometimes deriving equally from both sources, may

seem not so much an excruciating challenge as an almost impossible endeavour since it re-

quires a juxtaposition of two different sources of law: a state of mind and a system of rules,

where one appears to rely heavily on individual circumstances, whereas the other stems di-

rectly from codified norms of behaviour. Such a reality brings alive the legal language which,

depending on the tradition it originates in, will differ to a considerable extent in terms of its

terminology and procedures typical of the particular location where the specific law is effec-

tive and applicable. The question now is whether that range of various legal languages from

various locations can be mutually understandable to their users and whether any form of

translation can in fact facilitate this understanding or, rather on the contrary, hinder interna-

tional and interpersonal communication, so important in the world of the 21st century. The

aim of this study is to define the legal language as such and to examine the extent to which it

may be translatable with reliable results assuring clarity and a meeting of minds in legal dis-

course among today’s various professional users.

2. Legal Language: in search of comprehensibility

Law, as has been already mentioned, can be viewed from many divergent perspectives,

and so can the language of law, providing the means of expressing legal concepts and proce-

dures. The two constructs are inseparably dependent on each other, which is observed in the

way legal thoughts shape the language and vice versa. This inseparability accounts for the

5 Dajczak W., Szwarc A. J., Wiliński P., Handbook of Polish Law, Wydawnictwo Szkolne PWN, ParkPrawo,

Warszawa-Bielsko-Biała 2011, pp. 47-48.

89 Legal language: does translation…

characteristic form of legal language, often perceived as very technical and almost elitist in

the sense of its comprehensibility limited only to professional circles. “A common theme in

the language and law literature is the lack of transparency and obscurity found in legal dis-

course, with its frequent use of formal words, deliberate use of expressions with flexible

meanings, attempts at extreme precision, and complex syntactic constructions (e.g. Melinkoff

1963, Danet 1980, Maley 1987). This is attributed to both the historical development of the

language and the desire for power.”6

The fact that one can differentiate between the common law and civil law, also referred to

as the continental law, does not necessarily mean that they can delineate a clear boundary

between the two systems in various locations, where depending on the jurisdiction, one may

find “a tremendous amount of statutory law in the various common law systems around the

world.”7 This combination of legal trends influenced also by local traditions and needs results

in a variety of differences within the common law and the continental law alike.

“Legal concepts from different countries are seldom, if ever, identical, because, firstly, the

nature of language dictates that two words are rarely identical between two languages and

even within the same language (for instance, the English legal language in the US, UK and

Australia; the Chinese legal language used in China, Hong Kong and Taiwan; German in

Germany, Austria and Switzerland, and French in France and Canada). Secondly, human so-

cieties with their own cultural, political and social conditions and circumstances are never

duplicate. Law is a human and social institution, established on the basis of the diverse moral

and cultural values of individual societies.”8

The impossibility of reduplicating those social, political and cultural circumstances cau-

ses divergence between types of law used in various locations, simultaneously triggering di-

vergent development of linguistic means necessary to express dissimilar legal concepts.

Sometimes this divergence is observed in the creation of totally new legal notions and linguis-

tic terms, non-existent in other places, which can only be interpreted through the original con-

text they originated in. More often than not, however, one may come across the same linguis-

tic terms being used in completely different settings and pointing to completely or slightly

different legal ideas, which in practice may cause false equivalency between legal concepts

6 Northcott J., Legal English, [in:] The Handbook of English for Specific Purposes Vol.1, eds. Paltridge B. and

Starfield S., Wiley Blackwell, Oxford 2012, p. 216. 7 Beveridge B. J., Legal English – How it developed and why it is not appropriate for international commercial

contracts, p. 5. 8 Cao D., Translating Law, [in:] Topics in Translation 33, Multilingual Matters Ltd., Clevedon 2007, p. 33.


where superficially similar linguistic terms are analysed out of the context, producing thus

equivalents based on logical fallacy. This frequently becomes the case in analysing work of

legal translators and international lawyers who tend to treat legal language as a uniform, sin-

gular and homogeneous creation, whereas the fact they seem to be oblivious to is that legal

language should be understood more as a polyatomic construct, comprising various types of

legal languages with their specific character and terminology strongly rooted in a particular

culture and its legal system. The above discussion appears to be confirmed by such legal phi-

losophers as Hart,9 Jackson,10 and Schauer,11 who, despite drawing comparisons between le-

gal language and an ordinary language, notice a strong interdependence of legal language on

the context and the legal system as such, whose understanding is crucial for preservation of

the original meaning of legal terms used.

This difficult aspect of comprehensibility is also embedded in the nature of the language

itself whose one of the properties is ambiguity and vagueness (see Jespersen12). There may be

two types of such ‘linguistic uncertainty’: “intralingual uncertainty, that is, uncertainty found

within a language, and interlingual uncertainty, that is, uncertainty [which] arises when two

languages are compared or when one language is translated into another language. In such

cases, words, phrases and sentences in one language may or may not be uncertain, but addi-

tional ambiguity or other uncertainty may arise when they are considered across two lan-

guages.”13 This linguistic vagueness stands in stark contrast to the rigidity, clarity and preci-

sion required by law, which often results in a situation where only a coterie of professionals,

well acquainted with the legal system, its terminology and the meaning assigned to particular

terms, may in fact decipher and use those terms correctly. Everyone outside this inner circle

and unfamiliar with the whole burden of significance attached to those terms will be striving

in vain to accommodate the new terminology to the requirements of clarity and precision pre-

sent in their own legal system and so in all likelihood will produce semi-equivalents, looking

satisfactory on paper, but causing a lot of confusion when applied in practice. According to de

Groot,14 the degree of difficulty and incomprehensibility is closely connected with the similar-

ities between legal systems and languages, with the most risky situation being certainly that of

total lack of affinity between the systems and languages. This, however, seems to be a slight

9 Hart H. L. A., Definition and Theory in Jurisprudence, [in:] The Law Quarterly Review 70, 1954. 10 Jackson B. S., Semiotics and Legal Theory, Routledge. London 1985. 11 Schauer F., Precedent, [in:] Stanford Law Review 39, 1987. 12 Jespersen O., Language: Its Nature, Development and Origin, Allen & Unwin, London 1964. 13 Cao D., Translating Law, p. 19. 14 De Groot G.-R., Problems of Legal Translation From the Point of View of a Comparative Lawyer, [in:] XIth

World Congress of FIT Proceedings: Translation – Our Future, Euroterm, Maastricht 1988, pp. 409-410.


oversimplification since even in the case of related systems and languages, such as the British

and American common law, there might be nuances of meaning reflecting different cultural

circumstances which a person tantalized by superficial similarity may overlook.

Surely, there have emerged some attempts at creating a lingua franca, a universal legal

language where all concepts and terms could be used with no extra small-print information

attached. One of such linguistic models has been suggested by the International Institute for

the Unification of Private Law (UNIDROIT),15 whose aim is to harmonise the terminology of

private and commercial law. A recent initiative by the EU working on the NEC TM data pro-

ject (2019),16 gathering translation memories for machine learning, is supposed to assist in

producing more user-friendly translations based on data sharing and open translation stand-

ards by the Member States. Another trend with a similar objective to facilitate legal discourse

is the plain legal language movement with its clear drive towards reduction in length, simpli-

fication of grammatical structures, eradication of archaic and technical jargon, and general

omission of ambiguity. All such projects remain, however, highly controversial, arousing

much resentment on the part of professionals used to traditional conventions and ‘tricks of the

trade’ who often feel that there are certain faults and inadequacies in the logic behind those

simplifications.17 Rather than changing the future of the legalese, this in fact confirms the still

high status of legal language and the existence of translatability problem among various legal

languages, which may affect not only the quality of today’s international communication but

even the degree to which such communication may be really effective and possible.

3. Legal translation: in search of legal equivalents

The problem of preserving and conveying the original message in international commu-

nication seems particularly urgent in the case of legal translation, where it may undergo a dif-

ferent degree of manipulation on the part of lawyers and translators who, very often unaware

of legal differences, may interpret the source text in a culturally biased manner, producing

a different shade of meaning and thus obscuring the original content of the primary message.

This issue has also been addressed by Beveridge who has researched the legal language used

in contracts and who claims that “much of the legal English we see today in international

15 https://www.unidroit.org 16 https://www.nec-tm.eu/ 17 Ződi Z., The limits of plain legal language: understanding the comprehensible style in law, [in:] International

Journal of Law in Context 15, 2019.

https://www.unidroit.org/


commercial contracts is inappropriate in the international setting.”18 Such an approach stems

from divergent concepts present in the civil and common law, the latter traditionally based on

the already mentioned common law principle of stare decisis and parol evidence rule accord-

ing to which “if the language of the written contract is clear and unambiguous, then no addi-

tional evidence may be put before the court in an attempt to alter, very, or interpret in any way

the words used in the written contract.”19 This in practice means that items not stated in the

body of the contract cannot be invoked later on in its interpretation, which is contrary to what

is prescribed by the civil law governing the construction of contracts and the extent of their

freedom, irrespective of what is or what is not directly present in their body. Failure to under-

stand such core differences between contracts written and construed under the common law

and the civil law may results in the inappropriacy of the language used in translations, men-

tioned above by Beveridge.

The problem of equivalence analysed by Beveridge in terms of the contract law is, how-

ever, much broader as it concerns not only the verbiage and the style of contracts, but also the

understanding of particular legal concepts operating across different types of law and legal

systems. The following analysis will thus concentrate on presenting a few chosen terms from

the English common law in Australia, Great Britain and the United States,20 and from the

Polish continental law with the aim of showing some contrast in the use and legal effect such

terms may bring about. The research is based on various sources including online legal infor-

mation systems such as Legalis, LexLege, Legal Information Institute, Internetowy System

Aktów Prawnych (ISAP), various legal acts such as Child Support (Assessment) Act 1989,

Commons Act 2006, British Companies Act 1948, Journal of Laws 2019, Polish legal codes as

well as English codes and statutes, the official websites of the Family Court of Australia, the

Supreme Court of the United States, the Supreme Court of the United Kingdom, the High

Court of Australia, the official websites of a few renown legal firms from Australia, Great

Britain and the United States such as Thorntons Solicitors, Watkins Tapsell Solicitors, Bar-

tholomew & Wasznicky LLP, Bahrie Law, Watts McCray Lawyers, and Taylor and Scott

Lawyers, as well as the Encyclopaedia Britannica, Black’s Law Dictionary and the following

English-Polish dictionaries being among the sources of reference used in many online legal

18 Beveridge B. J., Legal English – How it developed and why it is not appropriate for international commercial

contracts, p. 12. 19 Ibidem, p. 7. 20 For the sake of this paper, the analysis of the English common law operating in the locations mentioned does

not take into account variations within the particular states, countries or jurisdictions present in those locations,

referring only to the general legal concepts effective in most parts of those places.

https://www.legislation.gov.au/Details/C2018C00289


information systems such as Legalis: Słownik Terminologii Gospodarczej by Iwona Kienzler,

Słownik Terminologii Prawniczej by Ewa Myrczek, Słownik Terminologii Gospodarczej

i Prawniczej by Ewa Ożga, Słownik Terminologii Biznesowej by Roman Kozierkiewicz,

Słownik Terminologii Marketingowej by Roman Kozierkiewicz, and Słownik Rachunkowości,

Audytu i Podatków by Roman Kozierkiewicz, with the last three included in the research only

where they were applicable. The analysis is focused on problems related to the degree of

equivalence between two legal concepts of Polish alimenty vs. English alimony and Polish

rozprawa vs. English hearing, which present two different types of controversy and therefore

will be analysed in two separate sections. The first section (3.1) is devoted to the problem of

equivalency observed on one level, i.e. between a single Polish term and a few corresponding

English equivalents, while the second section (3.2) is focused on the problem of equivalency

examined on two levels, i.e. first between a few Polish terms only and then between those

Polish terms and their few corresponding English equivalents. At this point, it needs to be

stated, however, that the following analysis is not aimed at criticising the content or question-

ing usefulness of the above dictionaries, but at showing certain problems which perhaps for

reasons of conciseness or practicality cannot can be dealt with by the dictionaries and which

may still cause much difficulty and pose a risk of miscomprehension to their unaware users.

3.1 Alimenty vs. alimony

One of very frequently confusing legal problems refers to Polish alimenty, świadczenie

alimentacyjne or obowiązek alimentacyjny, and their English counterparts including the fol-

lowing terms offered by the dictionaries presented below. The Polish terms are considered

synonymous in the sense of pointing to the same legal concept, while the English entries

prove to have more shades of meaning, depending on the context they appear in.

Kienzler Myrczek Ożga

Alimony alimony alimony (Br, paid to support the family)

alimony (US, paid to an ex-wife)

Maintenance maintenance maintenance

separate maintenance (paid to a wife after granting

a divorce)

child support child support

palimony (paid to

an ex-partner)

palimony (US, paid to an

ex-partner in concubinage)

estovers (paid to a widow, divorced or in separation)

estovers

Table 1. Search results for Polish alimenty


Despite a certain attempt at clarifying the English legal terms by occasionally adding ex-

tra information in the parenthesis, the definitions provided by the dictionaries prove very ge-

neral and in fact more confusing than explanatory since, contrary to what may seem, neither

are all the entries equivalent nor do they correspond correctly to the Polish continental law

concept which is much broader. Under Article 133 § 1 of the Polish Family and Guardianship

Code (FGC) and its official translation “rodzice obowiązani są do świadczeń alimentacyjnych

względem dziecka, które nie jest jeszcze w stanie utrzymać się samodzielnie, chyba że do-

chody z majątku dziecka wystarczają na pokrycie kosztów jego utrzymania i wychowania.”

[“parents are obliged to provide maintenance to a child that cannot provide for him-

self/herself, unless the income from the child’s property is sufficient to cover his/her mainte-

nance and upbringing”.] and pursuant to Article 130 of FGC and its official translation “obo-

wiązek jednego małżonka do dostarczania środków utrzymania drugiemu małżonkowi po

rozwiązaniu lub unieważnieniu małżeństwa albo po orzeczeniu separacji wyprzedza obowią-

zek alimentacyjny krewnych tego małżonka.” [“the obligation of one spouse to maintain the

other spouse after the dissolution or annulment of a marriage, or after a separation decision,

takes priority over the maintenance obligation of the spouse’s relatives.”]. According to the

provisions above, the term alimenty (thus also obowiązek alimentacyjny and świadczenie ali-

mentacyjne) in Polish law encompasses two definitions of obligatory payments made both to

the former spouse and to the child.

On the other hand, in the common law the situation appears to be slightly more compli-

cated. Under American law alimony (in some states also known as spousal support or mainte-

nance) means a payment made solely to the former spouse in the form of financial assistance

dependent on the individual circumstances of each couple. Although widely understood, the

term is not officially used in Great Britain or Australia, where it is replaced with spousal

maintenance or spouse maintenance respectively. Additionally, in Scotland, spousal mainte-

nance is also known as aliment. Separate maintenance, listed in one of the dictionaries, is

a little different and effective mostly in the United States. It may signify either a payment dur-

ing separation, constituting a prelude to a divorce, or a payment made to the spouse on the

decision of legal separation when the couple still wish to preserve their marriage. In Great

Britain or Australia, the same concept exists but it is covered by the definition of spousal

maintenance. Additionally, however, in Australia there is also de facto partner maintenance

(known in the United States as palimony, also mentioned by two dictionaries), which involves

financial support paid to the former partner in the de facto relationship, i.e. a relationship of

an unmarried couple living together on a genuine domestic basis. Still, no payment in similar


circumstances is prescribed by British law and consequently no equivalent legal term can be

found. As has been shown, the meaning of maintenance is quite broad and apart from the

above financial means it can also involve the payment made in favour of a child, the so-called

child maintenance, used mostly in Great Britain, though. In the United States and Australia

the same payment is known as child support. The last term provided by one of the dictiona-

ries, estovers, does not seem to be of much use nowadays when applied with reference to fa-

mily law since in this sense it was generally used only historically. Currently, it is known as

referring more to the property law and law of common land especially in England and Wales

with the right of exploiting the land by for instance collecting bracken or firewood, the so-

called estovers.21

Considering the above analysis, one can clearly see that the dictionary by Kienzler pro-

vides all the terms, but with no explanation as to their meaning or the place where they are

applicable. Additionally, the definition of palimony is too broad without specifying who the

former partner is since the definition of the partner itself seems too vague to be in any way

conclusive. Neither does the dictionary by Myrczek clarify all the terms given with one ex-

ception of palimony which is correctly described as a payment made to a former partner in the

de facto relationship in the United States. The most intriguing results are found in the diction-

ary by Ożga where one may come across either no specific definitions at all or archaic, or

slightly too vague, explanations of all the terms. On the whole, neither dictionary seems to

offer any precise explanation or clear equivalents of Polish alimenty with the right back-

ground information concerning their correct usage, which may not only confuse and misin-

form the user, but also cause some miscomprehension of the general legal idea behind the

terms present in particular cultures and their legal systems. The confusion can be observed not

only when translating the concepts from Polish into English, but also when trying to under-

stand and explain the differences among the English terms used in the English-speaking coun-

tries alone such as Australia, Great Britain and the United States.

3.2 Rozprawa vs. hearing

A similar misconception refers to Polish rozprawa and the English equivalents including

the terms cited below. This time, the analysis of the dictionary entries is, however, more

complicated as it involves two categories of misconception; the first one taking place on the

level of Polish terminology only with frequently no differentiation among the terms rozprawa,

21 Commons Act 2006, par. 4.


posiedzenie and postępowanie, and the second one occurring on the level of translating those

terms into various English equivalents.

Kienzler Myrczek Ożga

Trial trial trial

Hearing hearing hearing

proceedings of the court

sitting

Table 2. Search results for Polish rozprawa

The problem with the above terms lies again in the proper understanding of terminology

specific for a particular country and the differences between the concepts used even within the

same judicial system. In Polish law, there are three terms which may seem similar and there-

fore are quite often confused: rozprawa, posiedzenie and postępowanie. These terms will be

used differently in Polish criminal law and civil law. In criminal law, the majority of cases are

heard at rozprawa, unless the statute prescribes otherwise, in which situation particular cases

are decided at posiedzenie. This, however, is strictly regulated by law so the choice of termi-

nology depends on the nature of the case and legal provisions governing it. If not stated

otherwise, posiedzenie constitutes the first step before the central stage of rozprawa (główna),

and it is during that phase that the court considers the type of evidence, the order of its presen-

tation and admissibility, schedules court meetings and generally plans the whole course of

subsequent events. On the other hand, in civil law, the court hears cases at posiedzenie, which,

depending on the nature of the case, may be divided into the following types: posiedzenie

jawne organized in the majority of cases decided “in open court”, posiedzenie niejawne taking

place, for example, in order to consider some formal issues, such as disqualification (recusa-

tion) of a judge, and posiedzenie toczące się przy drzwiach zamkniętych mostly involving

family cases. The last two types refer to cases decided “in closed court” (“in camera or cham-

bers”), the so-called “private hearings”. The choice of the type of posiedzenie depends on the

legal provisions of the Code of Civil Procedure and it is made upon verification of the type of

the case. In civil law, rozprawa is the main form of hearing cases and falls into the category

of posiedzenie jawne. It may involve one or more sessions of posiedzenie, including here the

preparatory phase of posiedzenie przygotowawcze during which the parties have a chance of

discussing and solving the dispute out of court (amicably), followed by the main rozprawa. In

other words, in both civil and criminal law, the general difference between rozprawa and

posiedzenie seems to be that of a degree of importance, with posiedzenie being perceived as


a minor session of a lesser impact than rozprawa. This is surely a little oversimplification, but

still it may clarify the difference between the above terms, particularly if one considers the

fact that both terms are very often used interchangeably, with the risk of misinterpretation of

the form and stage of the judicial process. The broadest of all three entries is postępowanie

understood as an overall legal course of action taken in court, starting with a preparatory

phase, then a hearing and ending with a judgement, so in fact also consisting of sessions of

posiedzenie and rozprawa. Depending on the nature of a legal issue, postępowanie may refer

to, for example, civil, criminal and administrative proceedings.

In the Anglo-American judiciary systems, the lawsuit is substantially divided into two

stages: a pre-trial stage and a trial, with the first one being a moment when the judge consi-

ders admissibility of the case and tries to solve the problem amicably, and the second one in-

volving witnesses’ testimony and decisions made by the judge and/or jury. Trials may take

place both in civil and criminal cases as the core of the proceedings with the pre-trial stage

very often involving the so-called hearings, constituting a preparatory phase in the procedure

or a “mini-trial” in less formal or minor issues. It should be borne in mind, however that the

terminology may differ, depending on a particular common law system. In Australian crimi-

nal law, there are three processes, including hearings, committals, and trials. Hearings, or

summary hearings, are held in magistrates’ courts, while more serious cases are decided at

committal hearings (committals) in the Local Court, with the most serious ones being sent to

trials in the District Court. In civil law, hearings, or directions hearings, form the preparatory

stage, during which all organizational issues are decided, before the main trial starts. A very

similar civil procedure may be observed in Britain, where civil hearings also constitute the

first phase of the proceedings, leading later on to the main trial. In criminal law, hearings are

generally held in magistrates’ courts, from where they might be referred further to the Crown

Court for the Plea and Trial Preparation Hearing. In case the defendant pleads no guilty, the

case goes to a trial. Occasionally, the magistrates’ court holds a summary trial during which

the court convenes sessions, the so-called hearings, including the preliminary stage at the be-

ginning of the whole process. On the other hand, in the United States, criminal cases mostly

start with preliminary hearings, often compared to mini-trials, and if the fact of committing

a crime has been established, the case is moved on to a trial. In civil cases, the case first un-

dergoes the pre-trial phase, comprising presentation of evidence, witnesses, depositions, mo-

tions, etc., the so-called discovery, which may end the dispute or, if not, may lead to a trial.

Considering the above analysis, one may come to a conclusion that, similarly to the

Polish categorization, the general, if not a little oversimplified, difference between trials and


hearings is to be found again in the degree of importance, with trials forming a more

advanced and major part of the procedure, and hearings constituting its preliminary stage.

This distinction is quite alluring particularly for legal translators and lawyers who may feel

enticed to translate a trial as rozprawa, a hearing as posiedzenie and proceedings as po-

stępowanie, and it might work in many cases, providing that one always verifies the termino-

logy chosen against the type of lawsuit and jurisdiction where the lawsuit takes place. In this

sense, the terminology provided by the dictionaries again proves not to be too precise a source

of reference, listing all the terms as if they were synonymous to each other, with no additional

explanation or definition. The dictionary by Ożga provides also one more entry, i.e. sitting,

which in all three common law systems in Australia, Britain, the United States symbolizes

working days (sitting days) of the court during which a number of cases can be heard as

opposed to intervening recesses when judges analyse the already argued and subsequent ca-

ses, and work on their opinions. It seems, then, that it would be more suitable to translate

a court sitting as sesja (and dzień sesyjny), which pursuant to the Regulation of the Minister of

Justice as of 18th June 2019 on the Rules of Procedure of Common Courts22 means the total

number of cases heard by the same judge/judges on the same day, thus providing a quite close

definition to the one used by, for example, the Supreme Court in Britain and the United

States, and the High Court in Australia.

The Encyclopaedia Britannica seems to confuse the terminology even further, making

a clear terminological distinction between the Anglo-American procedure and civil-law coun-

tries, where in the former, there are supposed to be two stages distinguished: the pre-trial

stage and the trial stage, while in the latter, there is a series of hearings, including the prelimi-

nary hearing and the main hearing. Yet, this differentiation does not take into account the

character of cases or court proceedings, which again, although very neat and simple, sounds

a little too simple to be applicable in specific circumstances without any fear of risking mis-

understanding about the status of a particular stage in the court procedure.

In order to verify the consistency in the terminology suggested by the same dictionaries,

it would be advisable also to look up the other often confused terms of Polish posiedzenie

(Table 3) and postępowanie (Table 4) cited below, this time also using some extra sources:

22 Journal of Laws 2019, item 1141.


Kiezler Myrczek Ożga Kozierkiewicz

closed session session (closed/closing/open/full/public/closed-

door) session (in camera)

open session

open court

sitting

(in chambers)

(open) sitting public sitting

hearing

Table 3. Search results for Polish posiedzenie

Kiezler Myrczek Ożga Kozierkiewicz

Procedure procedure procedure(s)

proceedings proceedings proceeding(s)

Table 4. Search results for Polish postępowanie

The entries for Polish postępowanie collated in Table 4 seem more uniform in terms of

their usage by the dictionaries, oscillating mainly between two terms of proceedings and pro-

cedure, and they are very often treated synonymously (e.g. bankruptcy procedure vs. recovery

proceedings). Although this may appear to be an insignificant differentiation, most American,

Australian, and British jurisdictions do make a distinction between these two terms, using

proceedings understood as “the regular and orderly progression of a lawsuit, including all acts

and events between the time of commencement and the judgment”, a definition provided on

the official website of the Federal Court of Australia.23 A similar meaning may also be found

in the British Companies Act 1948 c38 Part XIII Legal Proceedings,24 and on the official

website of American Legal Information Institute.25 On the other hand, procedure is used more

in the context of a method or specific rules such as Australian Civil Procedure, British Civil

Procedure Rules, or American Federal Rules of Civil Procedure, in which case it seems more

appropriate to analyse these two concepts as particular procedures, for example pre-trial, trial,

hearing and sentencing procedures, for general judicial/legal proceedings, for example civil

or criminal proceedings.

The equivalents of Polish posiedzenie suggested in Table 3 are a little more varied, rang-

ing from different types of sessions, sittings to open/closed court and hearings. As already

mentioned, sittings are understood as court working (sitting) hours/days which may be looked

up on official websites of American (e.g. the Supreme Court of the United States), Australian

23 https://www.fedcourt.gov.au/digital-law-library/glossary-of-legal-terms 24 https://www.legislation.gov.uk/ukpga/1948/38/part/XIII/crossheading/legal-proceedings/enacted 25 https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-18/courts-and-judicial-proceedings

https://www.fedcourt.gov.au/digital-law-library/glossary-of-legal-terms


(e.g. the High Court of Australia), or British (e.g. Courts and Tribunals) courts for their spe-

cific court sittings calendars. Sessions, which sometimes may be seen as synonyms to sittings,

are quite rare in Australia, appearing mostly in collocations such as “a courtroom in session”

and “the court is in session”, and proper names of courts like Norfolk Island Court of Petty

Sessions. A similar situation can be observed in Great Britain where the term appears mostly

in the proper name of Scottish Court of Session, being Scotland’s supreme civil court. On the

other hand, sessions are quite popular in American courts, where apart from such collocations

as “the court is in session” and proper names as the General Sessions Court, one can also

come across public sessions, afternoon sessions, grand jury sessions, court sessions, CVB

sessions, etc., with the context much resembling Polish posiedzenie. It seems then that while

sitting will be far better translated as Polish sesja/dzień sesyjny, the use of session with refe-

rence to the Polish notion of posiedzenie always needs to be verified against the location

where the term is to be used since not in all English-speaking jurisdictions it will be assigned

the same semantic properties. On the other hand, the third term, hearing, listed by one dic-

tionary, seems a safer option as has been proved earlier, although again its application has to

be invariably checked against the customary terminology adopted in a particular place. The

last equivalent suggested in the table, open/closed court, refers more to the type of a hearing

which may be open or closed to the public, and it is mostly used in the form of an attribute to

the manner of conduct of judicial proceedings as in “proceedings are held in open court”,

“close court hearing”, “the case is heard in open court”, etc.; therefore, rather than being

treated as an equivalent, it will be used more as an attribute in the translation of specific types

of posiedzenie, be it “jawne”, “niejawne”, or “przy drzwiach zamkniętych”.

Interestingly, the dictionaries do not seem to take into account the differentiation among

the terms, considering them all as synonyms. Truly, in some instances, Kienzler and Ożga

provide an optional translation of sitting as sesja sądowa, but in both cases it is treated on

a par with posiedzenie, with no reference to differences in meaning between these two terms

or their actual places of use.

4. Legal translation: in search of equivalence, role of a translator and communication

As has been proved above, the search for legal equivalents, however long and extensive,

may often seem quite fruitless, considering the number of options and differences the transla-

tor needs to take into account before making a choice. The decision is even harder if one tries

to understand what legal translation really amounts to. Broadly speaking, it is said that

“[l]egal translation is used as a general term to cover both the translation of law and other


communications in the legal setting.”26 This involves determining the purpose, i.e. skopos, of

the source and target text, which may be done through the analysis of translation discourse

illustrating the translation process in the form of a communication act and presenting particu-

lar options the translator needs to choose when performing this act.27 Such an approach con-

stitutes the foundation of a pragmatic model of translation in which the communication act

begins with the author of the source text (ST). Then, ST is processed through a series of sta-

ges dependent on the purpose (skopos) of the discourse and depicted in the discourse analysis

on eight levels corresponding to the analysis of the status, place, time and environment of the

discourse (level one), the source text with its language and function (level two), the role of

translator (level three), the relation between the original and translation (level four), re-

strictions (level five), the choice of the type of translation and strategy (level six), the princi-

ples of translation (level seven), and the techniques of translation (level eight). In Kierzkow-

ska’s model, the purpose (skopos) of legal translation corresponds specifically to the follow-

ing options chosen from the discourse analysis: the status of the discourse (level one), pre-

scriptive function of ST (level two), a translator as a specialist in the field (level three),

preservation of the character of ST (level four), institutional restrictions (level five), idiomatic

translation (level six), professional principles (level seven), and compensation and annotation

(level eight). The communication act ends with the target text (TT) intended for the recipient

who belongs to the same discourse environment as the author.28 The analysis of legal transla-

tion according to the above model should also be complemented by the comparative analysis

of parallel legal texts present in the source and target culture, which constitute an invaluable

source of information when building the terminological database needed to complete the pro-

cess of translation.

The combination of all these elements is crucial to ensure a successful communication

act, with the choice of proper terminology depending on the proper decisions made by the

translator with respect to the whole discourse. This also refers to the type of recipient (close,

distant, or self-defined) and terminological usage, i.e. usus (international, national, local, or

specific for the party ordering translation), which will affect the translation strategy and con-

sequently the type of equivalence in terminology between ST and TT, ranging from denota-

tive equivalence in the case of a close recipient and legislative texts, connotative equivalence

in the case of a distant recipient and legal texts, pragmatic equivalence in the case of a self-

26 Cao D., Translating Law, p. 12. 27 Kierzkowska D., Tłumaczenie Prawnicze, Translegis, Warszawa 2007, pp. 73-74. 28 Ibidem, p. 75.


defined recipient and both legislative and legal texts, to text-normative equivalence in the case

of all recipients and all texts. Kierzkowska presents this correlation schematically in the form

of a three-stage procedure in which first the translator needs to determine the type of reci-

pient, then the type of usus, and finally the type of strategy and equivalence.29

Depending on the translator’s approach placing either ST or TT in the centre of attention,

equivalence may be understood in various ways, giving rise to different theories which for

years have preoccupied linguists interested in finding answers as to whether true translation is

really possible. In spite of its imperfections, “it should be stressed that equivalence is still one

of the pivotal definitory axes of translation since it functions as a reminder of the central prob-

lems a translator encounters during the translation process.”30 Among the most influential

theories in this respect, one may distinguish among Nida’s formal and dynamic equivalence,

Koller’s denotative, connotative, text-normative, pragmatic and formal equivalence, New-

mark’s semantic and communicative translation, Baker’s grammatical, textual and pragmatic

equivalence, and Pym’s natural and directional equivalence. There are certain features shared

by these contrasting concepts, focusing on either the form or function of the text, the im-

portance of ST or TT, the author or the recipient, and on the role of translator in the whole

process. Kierzkowska’s model is partially based on these concepts, referring mostly to

Koller’s division of equivalence, but at the same time focusing strongly on the theory of

skopos, originally created by Reiss and Vermeer.31 It is this element which very often seems

to be neglected in the analysis of equivalence and terminological equivalents provided by

many dictionaries whose main aim should be provision of equivalents in a foreign language,

assistance in translation and interpretation, facilitation of interpersonal communication, con-

firmation of the state-of-the-art field knowledge, generation of new ways of scientific and

linguistic research, and terminological analysis.32 As has been proved in the previous chapter

with the terminological analysis, most dictionaries, however, do not specify the reasons for

choosing particular equivalents other than invoking the idea of their frequency of use in va-

rious texts regardless of where these texts come from and what legal concepts they really refer

to. The majority of dictionaries provide merely lists of entries, occasionally in collocations,

treating them interchangeably and neglecting the legal systems they originate from, their place

29 Ibidem, pp. 87-101. 30 Panou D., Equivalence in Translation Therories: A Critical Evaluation. Theory and Practice, [in:] Language

Studies. Vol. 3, No. 1, 2013, p. 5. 31 Reiss K. and Vermeer H. J., Grundlegung einer allgemeinen Translationstheorie, Niemeyer, Tübingen 1984. 32 Lendzion M., W kwestii prakseologii tłumaczeniowej: terminologiczne słowniki przekładowe, [in:] Studia

Germanica Gedanensia 16, 2008, p. 67.


of use, and legal implications of their choice. In other words, what most dictionaries overlook

is the nature of legal texts and legal language itself which very often defies equivalence, re-

sulting more in Pym’s assumed equivalence and a conclusion “pointing out that there is no

such thing as perfect equivalence between languages.”33

Nowadays, linguists agree that legal texts are polysemic and this polysemy is reflected in

the character of legal terminology being dependent on the context which in turn determines

the intended meaning of each term. According to Jopek-Bosiacka:34

“The multitude of legal systems often results in a lack of equivalency between concepts or

lack of overlapping between their semantic ranges. Thus, the inadequacy of equivalents or

their lack together with the polysemy may be one of the main obstacles in achieving preci-

sion in legal language, particularly in the case of translating texts or creating terminological

databases.” (transl. AKD)

Ironically, this precision in translation is needed now more than ever, considering fast

coming changes all around the world, growing international cooperation and all the political

and economic events taking place each day. This is a new reality for lawyers, legal translators

and interpreters, where the direct and clear-cut communication is the key to ensure the success

of many transactions and business initiatives. The imprecision mentioned above seems un-

acceptable in this context and still it seems so much omnipresent in translators’ work. Šar-

čević35 underlines the fact that the lack of equivalency is an integral feature of terminology in

different legal systems and that translators cannot be expected to use natural equivalents from

the target language system with the same meaning in the source language system. Instead, she

suggests using the closest natural equivalents possible from the target system which would

render the meaning and effects of the source language concept. At the same time she adds,

though, that occasionally this endeavour may prove an unworkable and impossible task. The

infeasibility of translators’ mission is also underlined by Chaffey36 who claims that the fact

that the majority of words do not have equivalents renders legal translation impossible. This

blight seems to call for much creativeness on the part of translators who in order to complete

their mission impossible, according to Grucza,37 are forced to carry out work of a highly im-

33 Pym A., Exploring Translation Theories, Routledge, London and New York 2010, p. 37. 34 Jopek-Bosiacka A., Przekład prawny i sądowy, Wydawnictwo Naukowe PWN, Warszawa 2006, p. 47. 35 Šarčević S., New Approach to Legal Translation, Kluwer Law International, The Hague 1997, p. 235. 36 Chaffey P. N., Language, Law and Reality, [in:] On the Practice of Legal and Specialised Translation, TEPIS

Publishing House, Warszawa 1997. 37 Grucza F., Translacja a kreatywność, [in:] Lingua Legis 7, 1999.


aginative character. In this respect, legal translators need to possess a broad range of skills

among which the perfect command of two languages is only one of many considered neces-

sary to provide a good translation. Kubacki38 tries to identify those skills and thus produces

a profile of a successful sworn translator. He claims that:

“The sworn translator’s competences include not only the linguistic competence, but also

the cultural competence, the competences of an interpreter and translator together with an

ability to use appropriate techniques, the professional competence embracing specialist ter-

minology and knowledge in the area of law, medicine, technology, etc., as well as the trans-

lation competence and ethical competence.” (trans. AKD)

In other words, a sworn/legal translator should be an all-round and versatile professional,

aware of all the elements present in the communication, including the type of recipient, sko-

pos, usus, strategy and equivalence. This is confirmed by Kielar39 who states that:

“Only broad and in-depth specialist knowledge enables the translator to freely produce such

a translation which can optimally fulfil the communication goals intended by the author in

the L2 community. Specialist texts of a given type involve the use of specialist terms, specia-

list phraseology, conventional phrases and specific rules of syntax and text composition. The

wider the professional and linguistic knowledge of the translator, the more adequate transla-

tion they are able to produce, applying the text conventions of L2.” (trans. AKD)

Taking into account the worldwide tendencies where languages are both a mirror reflec-

tion of various cultures and a means of communication across those different cultures, transla-

tors are no longer just linguistic decoders, but they are to perform a much more prominent

role in facilitating and ensuring an international dialogue. The above analysis together with

the preceding study of a few legal concepts with their dictionary equivalents proves that in

such a context the sheer dictionary work relied on by so many translators and lawyers is now

not enough to ensure the success of today’s communication process. The differences observed

in various legal systems, such as the continental law and the common law, doom such a dia-

logue to immediate failure and the reason for it is that ignorance of those differences equals in

fact ignorance of the intrinsic part of the culture and language one uses in translation. These

are the elements constituting the cultural heritage and forming the identity of each communi-

38 Kubacki A. D., Tłumaczenie Poświadczone. Status, kształcenie, warsztat i odpowiedzialność tłumacza przy-

sięgłego, LEX a Wolters Kluwer business, Warszawa 2012, p. 265. 39 Kielar B. Z., Zarys Translatoryki, Katedra Języków Specjalistycznych UW, Warszawa 2003, p. 152.


ty, and without acknowledging their importance, one will never be able to ensure a successful

interaction or international communication, let alone interpersonal understanding which

should be the core of any translation.

5. Conclusions

The 21st century seems to be the time of intensive changes which are reflected in a con-

tinuing intercultural dialogue, for various reasons engaging people from even far corners of

the world. Language being a common medium of such a dialogue conveys not only the mes-

sage but also any subjective shades of meaning and culturally-oriented values, typical of the

place where the dialogue is being held. Law and the language of law are permanently con-

nected with such meanings and values since they lie at the foot of the legal system governing

particular locations and much as it seems tempting to standardize such a language and to

make it more convenient in use around the world’s global village, one cannot overlook the

multitude of differences existing in the legal systems of various parts of that village, intrinsi-

cally mirrored in their legal languages. As has been mentioned at the beginning of this study,

law and its language are constructs relying heavily on the culture and tradition, are often char-

acterized by lack of transparency and obscurity, with intralingual and interlingual uncertainty,

dependence on the context and specific environment, and at the same time they are aimed at

the utmost precision and practicality, which makes them quite unique in terms of the dialogue

analysis. The examination of a few chosen legal terms has shown to what extent this dialogue

is culturally dependent and how far one is likely to be misunderstood, taking the seemingly

identical concepts as face value. The dictionary work appears to be of little assistance, provid-

ing merely lists of entries without any information as to their cultural background so insepa-

rably connected with the meaning and use, which may serve more as guidance than a take-

away “recipe”. This is by no means an intended criticism of the dictionaries and their useful-

ness which from various perspectives cannot be denied. Yet, the analysis has proved that,

looking for the actual equivalence, the translator needs to fall back on their own competences

and field of expertise in order to verify the appropriacy of the terms suggested by the dictio-

naries against all the elements of translation discourse including the context, the source and

target text, the type of recipient, the environment shared by the recipient and translator, as

well as usus and skopos of the translation. From the pragmatic point of view, this type of in-

terpersonal communication may be analysed according to a few levels of discourse corre-

sponding to the above elements, and only fulfilling the requirements of each of them may

ensure the successful interpersonal dialogue and mutual understanding. This is particularly


visible in the case of legal translation where the mere command of language is not enough to

comprehend the legal language, by nature so full of uncertainty and obscurity. The endeavour

may remain fruitless for ever if the translator fails to take into account the intercultural differ-

ences underlying the particular legal system and its language, overlooking thus the very

essence of the message they are translating. Such negligence not only challenges the idea of

sheer translation, but even more so disrupts and hinders the act of communication without

which the intercultural dialogue of the 21st century becomes in fact a true mission impossible.

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Język prawniczy: czy tłumaczenie oznacza zrozumienie?

Na specyfikę języka wpływają różne czynniki społeczne, co jest szczególnie widoczne w przypadku języków

wykorzystywanych przez grupy zawodowe i stanowiących część ich kultury korporacyjnej. Język prawniczy jest

pod tym względem dość unikalny, będąc produktem nie tylko zmieniających się czasów, ale także historii, tra-

dycji oraz wymagań stawianych przez środowisko prawne. Fakt, iż państwa posługują się systemami prawnymi

opartymi na rozbieżnych konwencjach kształtuje formę przekazu o charakterze prawnym, co odzwierciedlają

różnice widoczne w języku prawnym i prawniczym stosowanym w poszczególnych miejscach. Kontrast po-

między prawem kontynentalnym a prawem precedensowym, tzw. common law, ulega jeszcze większemu za-

tarciu w momencie, gdy systemy prawne zaczynają na siebie nawzajem oddziaływać, częściowo się pokrywając,

częściowo się rozchodząc, a w rezultacie skutkując powstaniem i podobieństw, i różnic, co może zakłócić albo

nawet wstrzymać całkowicie międzykulturową komunikację. Celem niniejszego artykułu jest ukazanie, w jaki

sposób takie różnice mogą wpływać na dialog pomiędzy ludźmi i w jakim stopniu tłumaczenie konkretnych

zagadnień prawnych może w rzeczywistości utrudnić zrozumienie i wywołać inne skutki uboczne. Zakres bada-

nia obejmie analizę kilku przykładowych pojęć stosowanych w Polsce i różnych krajach anglojęzycznych

w zestawieniu z powszechnie rekomendowanymi tłumaczeniami prawniczymi znajdującymi się w oficjalnych

słownikach.

AGNIESZKA KOCEL-DURAJ

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