Some Problems Of Legal Language

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Ratio Juris. Vol. 4 No. 1 March 1991 (1-17) copyright © Viktor Knapp 1991

Some Problems of Legal Language VIKTOR KNAPP

Abstract. The author moves from the consideration of law as a set of rules serving as a means of socially regulating human conduct. He focuses on the fact that in order to fulfil its function, the law must be seen as a type of information. In this perspective law is a particular language and therefore gives rise to linguistic problems, linked to the technical character of juristic discourse. The author deals with some of the linguistic and sociological aspects of legal language and attempts to pinpoint some trends of interlingual development.*

I. Law and Language There are many definitions of law, sometimes considerably different from one another. In this paper I shall consider law as a set of valid legal rules in a given state serving as one of the means of social regulation of human behaviour. Consequently, the law is a set of special rules for human behaviour. However, the law not only makes men behave in a certain way, but also informs them necessarily how they shall or shall not behave, as the case may be, and informs them at the same time of the consequences of such behaviour. It follows that the law is not only a system of legal rules (a compulsory system), but also an information system (Knapp 1978, 5ff.). Men are supposed to be informed of the law (cf. the generally recognized principle of ignorantiaiuris non excusat), which necessitates communication between legislator and addressee of the legal rule. The means of this communication is always, i.e., not only in the case of written law, but also in the cases of judge-made law, customary law, etc., a certain language. It follows that the law gives rise to linguistic problems, especially those concerning the Abstract by M. La Torre.

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legal language. These problems can be studied from different points of view, viz., from the linguistic point of view, but also from the juridical, sociological, logical, mathematical ones and others. In this paper I shall deal with some legal, linguistic and sociological aspects of the legal language (cf. Batiffol 1978, 35; Bertrand 1972; Grahn 1977; Klenner 1975, 48ff.; Krecht 1976; Sourioux and Lerat 1975, 9ff.). The first question to ask, however, is whether a legal language exists, and if so, what is understood by it. As far as the first part of the question is concerned, the existence of a legal language has been denied by some authors (e.g., Batiffol 1978, 35). Notwithstanding this, it is generally recognized at present that a specific part of the national language exists and forms the necessary prerequisite for the function of the law. This has been testified to since time immemorial by legislation and legal practice. Therefore, without any detailed argument, I shall consider it proved that legal language does exist as a part of the natural national language. The problems of an artificial legal language (Buffelan 1975, 82; Knapp 1982, 2: 267ff.; Polevoy and Vitruk 1977, 188; Sildmyae and Nigol 1976, 23ff.; Zhukov 1977, 78ff.) exceed the framework of this paper and shall not be dealt with. A more complicated problem is posed by the second part of the question, viz., what is understood by the term legal language. In this respect opinions are more diverse. In the first place it is necessary to distinguish the language of legal rules, professional legal language (e.g., lawyers' language, judicial language in general, administrative language, etc.) and slang, e.g., law students' slang, etc. This gives rise to the question of whether there is in a given national language a sole legal language, comprising all the different kinds of legal speech, or whether there are different legal languages, in particular the language of legal rules, forming part of the literary language, the language of legal science which, although a part of the literary language, is also - due to the fact that it deals with the interpretation of legal rules a sort of metalanguage, as well as the legal language of judges (the judicial legal language), civil servants, lawyers, etc. (Gdmard 1981, 344ff.). In my opinion there are several legal languages in every national language, the most important of them being the language of legal rules on which I shall focus my attention and which I shall call hereafter, for the sake of brevity, simply "legal language." The question whether there is only one or whether there are several legal languages, however, has yet another aspect. There are not only several legal languages within the same national language, but there is also a legal language within every national language. Consequently, there are different national legal languages (Gutteridge 1949; Kisch 1973). From this point of view three variants should be distinguished: a) different national legal languages in different States; b) different national languages in the same multinational State, such as in the U.S.S.R., Switzerland, Belgium, Canada and Czechoslovakia, etc.; c) the same national legal language in

Some Problems of Legal Language different States, such as, e.g., English in the United Kingdom, the United States and Canada (G6mard 1981, 339) etc., Spanish in Spain and in Latin America, French in France, Belgium, Luxemburg, Switzerland and Canada, German in the Federal Republic of Germany, Austria and Switzerland, which - especially as far as German legal languages are concerned - are far from being identical. The diversity of national legal languages is important not only from the viewpoint of translations of legal texts, but also from the viewpoint of authenticity of legal texts in multinational States (especially in multinational federations); it also gives rise to several problems in the field of comparative law, some of which will be mentioned in the last section of this paper. The next question to be dealt with is the question of the place of the legal language within the literary language (Bonninger 1977; Grahn 1977; Knapp 1979, 57ff.; Knapp 1982, 276ff.; Kopylov et al. 1978, 104). We are considering legal language as one of the technical languages (Knapp 1979) which exist alongside the general basis of the literary language (hereafter "the general basis"), which we understand as that part of the literary language common to all spheres of its use. It follows that one of the important questions concerning legal language as a technical language is that of its relationship to the general basis (Knapp 1978, 1979). This problem has two facets. In the first place, whether legal language and the general basis of the literary language differ only lexically or also in other respects, and in the second place, whether the vocabulary of legal language is limited only to the so-called legal terminology (legal notions) or whether it overlaps with the vocabulary of the general basis. As to the first question, it is beyond doubt that the focal point of the difference between legal language and the general basis consists in the vocabulary. However, it would be erroneous to see the difference in the vocabulary alone. In the first place, even with respect to the vocabulary, the specificity of legal language consists not only in the selection of words or, as the case may be, compound expressions which the general basis does not use, but also in the meaning of words used, which sometimes differs from the meaning of the same words used in the general basis. Apart from that, legal language uses some compound expressions with a formalized and entirely fixed, established meaning (i.e., syntagms) the linguistic relevance of which is not merely lexical, but also syntactic (Knapp 1978, 21ff.; G6mard 1981, 346). There is moreover the question whether legal language is only a language of orders (or rules) or a language of facts (Gardies 1987, 90ff.), i.e., a language of imperatives or indicatives or both and what the mutual relation between imperatives and indicatives is, whether it is a language which has, as far as the indicative is concerned, only the past and the future tenses and their mutual relation, or whether it also uses the present tense, etc. A special problem of legal language consists in the so-called speech acts (cf., e.g., the

Viktor Knapp expressions: "I promise you" and "he who promised") and consequently in the difference between the indicative and the so-called performative moods (Gardies 1987, 67ff.) and there are many other problems which are far beyond the lexical aspect of legal language. The difference between legal language and the general basis, consequently, is not limited to the narrow lexical field; it is a general semantic difference, penetrating even into syntactics and pragmatics. Another difference can be observed in the stylistic field, particularly in the emotional sphere. Legal language is not concerned with the beauty of expression (although even this aspect is not negligible, in my opinion), but with the accuracy of expression. Thus, I agree with Grahn (1977, 86) that it is no Edelsprache (refined language), but a Zwecksprache (utility language). This aspect of legal language is also connected with the fact that it is an emotionally neutral language, that it lacks (or almost lacks) emotional elements. In this connection it is possible to make a comparison of the unemotional language of legal rules and mostly also of judges on the one hand, and the highly emotional legal language of some lawyers on the other, which has not only an informative, but also a persuasive function and forms part of legal rhetoric. II. Some Properties of Legal Language The basic properties of legal language have been known at least since Montesquieu (1979) who pointed out the "things to observe in making law." They have been elaborated in detail by modern semantics. Hereafter we shall deal with some of them. 1. Accuracy The general and most important property of legal language or, from another point of view, the general and most important postulate concerning legal language, is that of accuracy. With regard to the fact that natural language can never be entirely and absolutely accurate (unequivocal) the said property or postulate means practically that legal language should be as accurate as possible and in any case more accurate than the general basis. There are several partial properties (postulates) which aim at the achievement of the aforementioned general property of the legal language. Let us mention some of them. 2. Consistency Legal rules should be consistent, i.e., compatible in the given legal system. If two or more legal rules are inconsistent, they are logically incompatible and, from the sociological point of view, the law cannot serve as a regulator

Some Problems of Legal Language of human behaviour. This means that inconsistent legal rules no longer constitute information on how their addressee should behave. They will confuse him as to his permitted or forbidden behaviour and the law will lose its regulatory effect. In such case, consequently, it is not only the "moral" incompatibility of the legal rules, as von Wright (1951, 37) asserts, but also the complete loss of order concerning the given behaviour, that are involved. 3. Discernibility Legal rules should be drafted in such a manner as to make it possible to decide whether performance of the act in question is permitted or not permitted (i.e., whether it is forbidden). It follows that the property of discernibility of legal language is not only incompatible with the inconsistency of legal rules, but also with their obscurity, vagueness, ambiguity, etc. 4. Unemotionality It has been mentioned that unlike the language of lawyers, the language of legal rules should be entirely unemotional. Legal rules do not address themselves to the emotions (and should not give rise to emotions) of their addressees, including judges, civil servants and lawyers; they are intended for their reason and through it for their will. This means that, for instance, the legal rule communicates with the lawyer in a language different from the one the lawyer uses in court, the language in which the legal rule speaks to the judge is different from that spoken to him by the lawyer, etc. 5. Intelligibility The intelligibility of legal language (i.e., the intelligibility of legal rules) is, in the first place, its pragmatic property. It concerns communication between the legislator and the addressees of the legal rule. Consequently, the intelligibility of a legal rule consists in the fact that its addressee perceives its content in the meaning intended by the legislator. Furthermore, intelligibility is connected with the above mentioned discernibility. Generally speaking an individual understands a legal rule only if he can see unequivocally what should or should not be done according to the legal rule, i.e., analogically to Wittgenstein's (1966, 4.024) concept of understanding a sentence - if he can recognize the conditions in which his behaviour is lawful or unlawful. There is no doubt that the legal language should be intelligible in this sense. The question is, however, intelligible to whom? There is a great difference between understanding intelligibility of legal language as intelligibility to lawyers (in the broad meaning of the term, i.e., to all persons

Viktor Knapp with legal education) or as mass intelligibility, i.e., intelligible to anybody. The question of intelligibility has been asked in the latter meaning since long ago. Its practical impact is different depending on the extent of obligatory representation of the parties in court by a lawyer and according to the role played by the lawyer in court. In common law countries where the law suit or trial is actually a dispute between lawyers, interest in mass intelligibility of the law is considerably less than, e.g., in civil law countries and particularly in socialist countries, where as a rule, representation by a laywer is not obligatory in civil-law suits. Generally speaking, the requirement of mass intelligibility of legal language cannot be satisfied fully for the simple reason that it is a technical language, different from the common (colloquial) language. It is a language with some specific semantic and, to a certain extent, also syntactic properties, so that its reliable understanding generally requires a special education in law. Consequently, the general intelligibility of legal language can be understood as the requirement that legal language be as accessible to every individual as possible, i.e., that it should make it clear to everyman how he should and should not behave according to law, but not to such an extent as would make an education in law unnecessary. III. Some Properties of Legal Notions 1. The Notion of the "Legal Notion" (a) The question of what a legal notion is can be considered from several viewpoints. From a pragmatic viewpoint "Legal Notion" includes evidently all notions used in legal language. From the viewpoint of legal theory it includes the expressions designating legal realities. This viewpoint, however, leads us into the danger of a definition of the ignotum per ignotum type, as it is by no means entirely clear what "legal reality" is (G~mard 1981, 343). Therefore it seems that we can consider a legal notion any such expression which designates some object (thing, behaviour, etc.) in a legally binding manner. The ideal state is when the legal rule lays down bindingly such elements of the content of the notion which unequivocably and bindingly determine the extent of the notion so that it is always possible to assert truly that any "x" is an element of the extent of the respective notion or not. Such is the case when, e.g., the law provides that "he who has attained the eighteenth year of his age has reached the age of majority." This ideal state, however is not often attained by the law and, for reasons I shall mention, cannot be attained by it. If the law provides, e.g., that the perpetrator will be punished more severely if his crime caused "considerable damage," the expression "considerable damage" is a legal notion which, however, is not as accurate as the legal notion of "major."

Some Problems of Legal Language The set of legal notions forms the legal terminology (Knapp 1978, 39ff.). Thus the vocabulary of legal language comprises the legal terminology, but is not confined to it. (b) The most important properties of legal notion are, in my opinion, their unambiguity and constancy. 2. Unambiguity (a) Problems of Vagueness of Legal Notions. Legal notions are ambiguous (equivocal), if they are vague. Therefore, the legal language endeavours as far as possible to eliminate the vagueness of legal notions. Complete elimination of vagueness, however, is desirable only in the cases of considerable social interest in an entirely unequivocal definition of the notion, such as in the above-mentioned example of the notion of "major," or the notions of "immovables," "punishment," "murder," "homicide," etc. However, it is not always so. It is necessary to take into account that the legal rule is always general and is always applied to a unique case. Therefore, it is necessary that it should leave the judge, the civil servant, etc. a certain room for free consideration, so that a certain vagueness of legal notions is often necessary. It could be said that the legal language tends to attain the minimum and, at the same time, the optimum of vagueness of legal notions, the limit case of which is the complete elimination of vagueness. The attainment of the optimum-minimum of vagueness of legal notions is served particularly by the judicial precedents which exist and are used not only in common law but de facto also in the civil law countries and in the law of former socialist countries (E6rsi 1979, 552ff.). The same purpose is also served by legal writings. The complete elimination of vagueness is achieved, in the first place, by legal definitions (Knapp 1980; Knapp and Gerloch 1987, 275ff.; Materna 1959). Their effect is different. Some of them simply define bindingly the meaning of the defined notion. Such definitions are relatively frequent, e.g., in French civil law, where the Code civil of 1804 often defines bindingly the meaning of certain terms or words (see, e.g., Art. 533-539). Similar was the function of Art. 469 of the Civil Code of the former German Democratic Republic. In other cases the legal definition not only defines bindingly the meaning of the defined notion, but by defining it, simultaneously specifies more accurately its otherwise vague outlines. This is the case of the definition of the "household" in Art. 115 of the Czechoslovak Civil Code, the definition of "residence" according to Art. 23 of the Swiss Civil Code, which defines the same notion in a quite different and mutually incompatible way, the definition of "natural movables" according to Art. 528 of the French Code civil, etc. However, there are also legal definitions, which not only specify more accurately the meaning of the given notion, but also shift its meaning and afford it a partly or entirely different meaning from

Viktor Knapp the one it has in the general basis. By way of example let me mention the definition of "thing" according to Art. 285 of the Austrian Civil Code (ABGB), the definition of half a month according to Art. 121 par.1 of the Czechoslovak Civil Code, according to which half-a-month is understood as 15 days, etc. This group of definitions also includes the interesting definition contained in Art. 182ff. of the BGB, defining an artificial difference between the meaning of the synonyms Einwilligungand Genehmigungand formalizing it in a binding manner. Legislation often uses the so-called definitions in use to define the meaning of legal notions, such as the definition of kinship in Art. 20 of the Swiss Civil Code. Such definitions are frequent particularly in penal codes, which define crime, as a rule, by describing the respective criminal activity under the appropriate heading; thus the crime of murder is defined by providing under the heading of "Murder" that "he who wilfully kills another person shall be punished. . ., " etc. A fairly frequent method of defining the meaning of a legal notion is an exhaustive enumeration of the elements of its extent. For instance, the meaning of the word "punishment" which is rather wide and vague in the general basis of literary language, is usually defined in penal law, on the basis of the principle nulla poena sine lege, by an exhaustive enumeration of punishments. A similar example is afforded by Art. 529 of the French Code civil, which defines by an exhaustive enumeration the notion of "movables according to legal destination". A legal notion may also be defined per eliminationem. For instance, if a legal rule defines the notions of "major," "movables," etc., it need not define the notions of "minor," "immovables," etc.; it would not even be desirable to define them, since they are defined implicitly per eliminationem.

(b) Homonymy. Another cause of ambiguity of legal notions is homonymy. For instance, the English word "law" is a typical homonym of legal language, as it means both droit and loi in French or diritto and legge in Italian, etc. Similar homonyms are the French word ordonnance or the Russian word litso which, apart from the meaning of "person" also has other meanings, etc. Homonyms are undesirable in the legal language and must be eliminated, if they lend themselves to elimination. (In Czechoslovak law, for instance, there is an unnecessary homonym of "juvenile" which has a different meaning in criminal law and in labour law.) Sometimes, however, it is impossible to eliminate the homonym. In such a case the unambiguity of legal notions requires that the meaning of the homonym be distinctly differentiated by context, a legal definition, etc.

Some Problems of Legal Language 3. Constancy (a) The requirement of constancy of use of legal notions means, in the first place, that the same expression used in the legal language must always have the same meaning from which it follows, secondly, that if the legal language uses different expressions, they are not supposed to have the same meaning. Thus the requirement of constancy is connected with the aforementioned problem of homonymy as well as with the problem of synonymy. It has already been noted that the legal language cannot eliminate homonymy entirely. With reference to the constancy of legal terminology it is necessary not only to differentiate distinctly the different meanings of homonyms, but also to observe this differentiation consistently. (b) Let us deal in some detail with the problems of synonymy, with particular reference to the requirement of constancy of legal notions. Here we encounter a theoretical difficulty, consisting in the fact that the notion of synonymy is not entirely clear and uniform. There are extreme opinions which deny altogether the existence of synonyms in natural language or are at least very reserved as to their existence (Bertrand 1972, 433ff.); in other opinions only the expression of absolutely the same (identical) meaning and, consequently, interchangeable words can be considered synonyms. Finally there are opinions that not only the expressions of identical meaning, but also those of very similar meaning (paronyms) can be considered synonyms. The existence of full, entire and perfect synonymy in the general basis of a natural language is, particularly with respect to one-word expressions, doubtful. It is however without doubt that such synonyms exist in the legal language. (Examples will be given further on, sub c). Therefore, in accordance with the majority of authors concerned with these problems, we shall base our consideration on the fact that there are synonyms in the legal language; we shall consider them in the legal language and we shall take them in the above-mentioned broader meaning. (c) Unlike homonymy, legal language is capable of eliminating synonymy, and it is desirable to do so. Actually, however, this is not so as testified to even by a code of such historical significance as the French Code civil which uses, for instance, quite unnecessarily, three different expressions in Art. 767ff. to denote the surviving husband or wife, viz., conjoint qui survit, conjoint survivant and Ooux survivant. The same code denotes easements expressly synonymically as servitudes or services fonciers, etc., reaching the peak of its predilection for synonyms in the denomination of immovables, for which it has four synonymous expressions, e.g., meubles, biens meubles, mobiliers and effets mobiliers, declaring the last three expressly and bindingly synonyms in Art. 533. There are also cases on the boundary between synonymy and vagueness, viz., cases of paronymy. For instance, the English expressions "law,"

Viktor Knapp

"statute," "act," "bill." This example is also interesting in that all these words are simultaneously homonyms and only one of their meanings puts them into a paronymic or synonymic relation. An analogous case is represented by the relation of the German terms of unbewegliche Sachen and Liegenschaften which obviously do not have the same meaning in the individual codes written in German, but whose scope overlaps to such an extent that their mutual relation is not entirely clear. In this case the problem of paronymy overlaps with the problems of vagueness and/or ambiguity of legal notions. Of considerable significance for the solution of the problems of synonymy of legal notions is also the relation between the vocabularies of legal language and of the general basis with which we shall deal in the next section. IV. Vocabulary of the Legal Language

Legal rules use both the expressions specific to law and expressions pertaining to the general basis as well as the expressions which are specific to other technical languages (particularly specific political, economic, but also medical, technical and other special terms). The problem is whether we should excerpt from the literary language only legal notions in the aforementioned meaning (see supra section Il) and consider their sum as the vocabulary of legal language (Grahn 1977, 86), or whether we should consider legal language lexically as the set of all words or expressions used in legal rules, i.e., the set of expressions overlapping or intersecting the set of the general basis or other specific literary languages. Experience supports the latter (Polevoy and Vitruk 1977, 196; Pescatore 1960, 223). The application of the former attitude, limiting the vocabulary of legal language only to the so-called legal terminology would cause numerous and entirely unnecessary complications in the solution to the problems of legal language. We shall demonstrate this opinion in some detail. For the sake of simplicity we shall disregard the overlapping of legal language with other technical languages and shall concentrate on the relation of the vocabularies of legal language and the general basis. We shall first demonstrate this relation by means of Euler's circles which, in the given case, will have the following mutual position: A

C

B

The circles represent two sets, of which (A + C) represents the sum of all expressions used in the general basis, and (B + C) the sum of expressions used in the legal language; moreover, there are three subsets of which A represents the expressions used in the general basis only and unknown in

Some Problemsof Legal Language the legal language (e.g., poem, firmament, joy, good, hate, etc.), B the expressions used only in the legal language (e.g., estoppel, leasehold, subpoena, conflict criterion, body corporate, intestate, etc.), and finally C the expressions used, albeit not always with the same meaning, both in the general basis and in the legal language, e.g., law, court, treaty, heir, etc., and many other words which could be called "neutral," such as day, money, soil, transport, etc. and innumerable verbs and adjectives. The demonstrated sets and subsets are open, their mutual boundaries are variable in historical development and even in a certain given period their boundaries are continuous and sometimes indistinct. The legal language is enriched with new lexical and semantic expressions (e.g., telex, self-service, know-how, etc.), and with general expressions which have not represented legal notions and only in legal language acquire accurate meaning (e.g., "services" and "corrective measures" in the law of some former socialist countries). On the other hand, some expressions are disappearing from the legal language and either remain part of the living general basis of the literary language (spouse, betrothal, illegitimate child, jail, head of family, etc.) or disappear from the vocabularly of the living language altogether and become archaisms or expressions belonging to historical vocabulary alone. The classification of the vocabulary of the literary language into subsets A,B,C on the basis of the differentiation of legal language and the general basis is of importance also from a semantic point of view. The cases in which the same word has a different meaning as a legal term or as a general expression, both meanings often being considerably distant, are fairly frequent. Major practical problems are caused by this fact in the case of words forming part of subset C, where it often happens that the same expression means something else, when used in the legal language, than when used in a "neutral," i.e., not specifically legal meaning (cf., e.g., the words "consideration," "fee," etc.). The experience of legal practice, the experience of the creation of computerized legal information systems as well as literature (Batiffol 1978, 38; Bertrand 1972, 419; Pescatore 1960, 223) make it possible to formulate a general rule that legal language is more accurate in meaning and much more formalized than the general basis. While the wealth of the language consists, inter alia, in the fact that it often affords the words broad and not entirely distinct contours of meaning, frequently permits metaphors and metonymies, etc., legal language, on the other hand, endeavours to be as unequivocal as possible, it sometimes defines quite accurately the meaning of the individual words and expressions, does not use metonymies, metaphors, etc. The mutual relation between the legal language and the general basis, as we have already noted, is significant also with reference to the solution to the problem of synonymy in legal language, i.e., in concreto its suppression. The relation between the legal language and the general basis, expressed by

Viktor Knapp the subsets A,B,C, may have - in respect of synonyms - the following variants: (a) both synonyms form part of subset B; these cases are rare, but they exist; (b) both synonyms form part of subset C; by way of example let us recall the aforementioned synonyms of gpoux survivant (surviving spouse) and conjoint survivant (surviving partner); (c) one synonym forms part of subset B, the other of subset C; (d) one synonym forms part of subset B or C, the other of subset A; the words "consideration" or "interest" are their examples; (e) both synonyms form part of subset A. The above variants show that the number of synonyms in the natural legal language includes only the expressions mentioned sub (a)-(c) above, while the expressions mentioned sub (d) are synonyms in the general meaning of the term, but cease being so in the legal language. In the case of two or more synonyms, the expressions may also remain synonymous in legal language, but will be fewer. This is the case, when at least two of a major number of synonyms are used as synonyms in legal language, while others are not. The expressions mentioned sub (e) are not synonyms of legal language at all. There are several methods of synonym elimination in legal language. The simplest method can be applied in the case of two or more synonymous expressions, all of which can represent legal notions in the aforementioned meaning, i.e., do not belong to the groups mentioned sub (e) above. In that case it is possible to retain only one in legal language and to exclude all others, i.e., to convert the situation to the state mentioned sub (d) above. By way of example it is possible to use a comparison of the French and Belgian civil codes which were almost identical initially. However, let us compare the aforementioned Art. 767ff. of the French Code civil with Art. 745bis ff. of the Belgian Code civil. We find that the Belgian Code has eliminated the synonymy of the notions conjoint survivant and gpoux survivant simply by eliminating the expression of 6poux survivant (and 6poux in general) from its language, so that only the expression conjointhas remained as a legal notion, while the expression 6poux has been "moved" to subset A. Another method of liquidation of synonymy is the differentiation of the meaning of synonyms in the legal language, as is the case of the two aforementioned German words Einwilligung and Genehmigung and, consequently, of the word Zustimmung which has become a broader term, including both preceding terms. Similarly, this time by means of a definition in use, the Austrian ABGB has differentiated the meaning of the synonyms Sache and Ding, both of which mean a "thing." In Art. 307 the Austrian ABGB uses the expression dingliche Sachenrechte (real rights in rem), which is a tautology in the general basis. However, since the ABGB makes use of this expression as a paired expression with the expression of persdnliche Sachenrechte (personal rights in rem), it abolishes the synonymy of both notions in the relation and thus sets aside also the tautology.

Some Problems of Legal Language V. Interlingual Problems of the Legal Language 1. The Basis of InterlingualProblems The principal interlingual problems of legal language are linked with interlingual synonyms and homonyms (Gutteridge 1949; Kisch 1973). On the one hand, these problems involve the relations between the legal language of different natural languages, e.g., the English, French, Russian, etc. legal languages; on the other, they derive from the different legal languages within one natural language, such as the English, French, German, Spanish and other natural languages. These problems were briefly mentioned above sub 1.3. The fundamental interlingual problem of legal language is determined by the very substance of legal notions (and notions in general), consisting in the fact that the notion is a relation of the expression (word, combination of words) and its denotation, i.e., that which the word denotes. In various languages there are entirely different words denoting identical reality, i.e., in concreto the same or at least a very similar legal institution; however, there are also words denoting an institution unknown in another legal language, and there are also words which are interlingual homographs (or nearly homographs) which however do not always denote the same legal institution but sometimes denote a quite different one, etc. As we have already noted, these problems are highly important for the translation of the texts of legal rules and legal writings. 2. Interlingual Synonyms (a) The simplest case is that of full interlingual synonyms, i.e., words of different languages of identical or almost identical denotations. This is the case, e.g., of the English word "negligence," the French ndgligeance, and the German Fahrlassigkeit, or the French word rdservataire,the Spanish heredero forzoso and the German Pflichtteilsberechtiger. However, there are cases in which the synonymy is only partial. These involve interlingual paronymy rather than synonymy as in the case of the relations between the English word "easement," the French servitude, and the German Dienstbarkeit, where the last two terms are synonyms, but the meaning of the English term is merely similar. Moreover, there are cases in which the legal notion of one language can be literally translated into another language, but does not denote any legal institution in it and does not form part of its legal language. For instance, the easily translatable French expression mise en demeure or the German expression of the Swiss law Schuldbrief and Pfandbrief do not denote any legal institution in the legal language of numerous countries, which means that the law of numerous other countries does not know any such legal institution.

Viktor Knapp Last but not least, there are - especially in the relation between AngloAmerican (but also Islamic) law and civil law - expressions which defy translation. Their number includes, for instance, the English terms of "trespass," "frustration," "fee simple," and many others, the German expression of the Swiss law Guilt, etc. On the other hand, various legal notions of continental law cannot be translated into English, such as the French expression personnemorale or its German equivalent juristischePerson. For these notions there are no corresponding legal institutions or adequate linguistic expression, so that their translation into a foreign language is not actually a translation, but rather an explication. This is testified to, for instance, by the English version of the civil code of the Canadian province of Quebec, which originated as an authentic and equivalent version of this code on the basis of its French text. We should mention also apparent synonyms, such as the expressions of "personal property" in English law and lichnaya sobstvennost in Soviet law, which are exact translations of each other but denote legal institutions which are entirely different and mutually incomparable. The number of apparent synonyms also includes paradoxical synonyms, i.e., such expressions of one legal language whose literal translation into another legal language means their opposite. For instance, the German term of Bezirk fully corresponds with the Czech word okres and the English "district," and the German Kreis fully corresponds with the Czech kraj and the English "region." However, in the legal language of the former German Democratic Republic the term Kreis (region) denoted a lower level of administrative territorial system of the country, and the word Bezirk (district) its higher level; in the Czech legal language their meaning is quite the opposite. Thus only the terms Kreis (region) and okres (district) on the one hand, and Bezirk (district) and kraj (region) can be considered by right as interlingual synonyms. (b) Of specific character is the problem of interlingual synonymy in multilingual states, where legal rules are issued in two or more authentic national versions. In such cases it may (and does) happen that even the most painstaking translation cannot achieve, for the above reasons, an unambiguous relation of all language versions of the legal rule. Nothing remains in such cases but to eliminate obscure points and unify the individual linguistic versions by interpretation. This is expressly provided by the Belgian law of December 30, 1961, in which we read that "contentious problems based on the divergence of the French and Dutch texts shall be settled in accordance with the legislator's will ascertained in accordance with the usual rules of interpretation without preference for one or the other text." (c) A case apart consists in interlingual synonyms in various legal languages within one national language. We shall mention some examples from the German legal languages. For instance, the aforementioned notion of Pflichtteilsberechtiger,i.e., the notion, unknown to English law denoting the

Some Problems of Legal Language heir who cannot be excluded from inheriting by testament, occurs literally in the law of the Federal Republic of Germany and is also implicit in Swiss law. In Austrian law this heir is called Noterbe. It follows from the character of both words that the expression Pflichtteilberechtigerwill be intelligible to a Swiss lawyer, even if he is ignorant of the law of the Federal Republic of Germany, while the lawyer from these two countries, ignorant of Austrian law, may be puzzled by the expression "Noterbe" which may have quite a different connotation for him. A similar example is represented by the expression Niessbrauch (the law of the F.R.G.), Nutzniessung (Swiss law) and Fruchtniessung(Austrian law). These expressions denote usufructus, which was unknown in the law of the former G.D.R., so that the legal language of the G.D.R. did not have any analogous expression. 3. Interlingual Homonyms Interlingual homonyms are the expressions written identically (or approximately identically) in various languages (homographs) and/or are identically or approximately identically pronounced (homophones). In contradistinction to other homonyms in the same language they need not be ambiguous. A good example is the aforementioned pair of the English word negligence (meaning one of the forms of fault) and the French ndgligeance, but also the Spanish negligencia, the Italian negligenza etc., which have the same meaning. However, there are a number of interlingual homonyms which mean something entirely or at least partly different, i.e., which are ambiguous in the same way as the homonyms in the same national language (G~mard 1981, 346ff.). By way of example we can mention the English words "property," "justice" (meaning "judge"), "prescription," "evidence" on the one hand, and the French words proprigtg, justice, prescription, 6vidence on the other (all in their legal meaning), the American word "counselor," the English "counsellor" (cf. also "counsel") and French conseiller, conseilleur and conseil, the English term "trust" and the Russian trest, which developed etymologically from the English "trust," but mean something entirely different, the English "magistrate" and the French magistrat on the one hand, and the word magistrdt (city administration) in my mother-tongue, Czech, etc. 4. Trends of Development Interlingual problems have their practical impact particularly in the cases requiring the accurate understanding of partners from different States, and in the cases when the judge, following the conflicts of law rules, applies foreign law, i.e., in the field of foreign trade and in the field of international private law. The solution to these problems contributes to the rapprochement of the law of different countries and, possibly, to its unification. The idea of

Viktor Knapp universal unification of the law on the principle lex multiplex ius unum, which originated more than a century ago is of course impracticable and, because of the determination of the law by economic and social conditions of the given country in general, also theoretically unfeasible. However, territorial unification of law is not impossible (and is testified to by contemporary developments in the world). The same also applies to partial unification particularly in the field of foreign trade, where the unification of the law may assist the solution of the aforementioned problems. Charles University Ndrodni 18 11691 Prague1 Czechoslovakia

References Batiffol, Henri. 1978. Observations sur la sp~cificit6 du vocabulaire juridique. In M9langes dddigs a Gabriel Marty. Toulouse: Universit6 des sciences sociales de Toulouse. Bertrand, E. 1972. L'informatique et les difficult~s du vocabulaire juridique.

Zeitschrift fiir schweizerisches Recht 3: 419-31. Bonninger, Karl. 1977. Zur Begriffsbildung und zur Definition rechtlicher Kategorien, dargestellt am Staats- und Verwaltungsrecht. In Schriftenreihe Methodologie der marxistisch-leninistischen Rechtswissenschaft. Heft 4. Leipzig: Karl-Marx-Universitat, Sektion Rechtswissenschaft. Buffelan, Jean-Paul. 1975. Introduction t V'informatique juridique. Paris: Librairie du Journal des Notaires et des Avocats. Eirsi, Gyula. 1979. Comparative Civil (Private)Law. Budapest: Akad6miai kiad6. Gardies, Jean-Louis. 1987. L'erreurde Hume. Paris: Presses Universitaires de France. G~mar, Jean-Claude. 1981. R~flexions sur le langage du droit. Problmesde langue et de style 26: 338-49. Grahn, Werner. 1977. Bemerkungen zur Rechtssprache. In Schriftenreihe

Methodologie der marxistisch-teninistischenRechtswissenschaf. Heft 4. Leipzig: KarlMarx-Universitat, Sektion Rechtswissenschaft. Gutteridge, Harold C. 1949. Comparative Law. 2nd ed. Cambridge: Cambridge University Press. Kisch, Isaac. 1973. Droit compar6 et terminologie juridique. In Buts et mthodes du droit compar. Ed. Mario Rotondi. Padua: CEDAM. Klenner, Herrmann. 1975. Zur Juristensprache. In Sitzungsberichte der Akadamie der Wissenschaften der DDR: 18. Berlin: Akademie der Wissenschaften der DDR. Knapp, Viktor. 1978. Privni pojmy a prdvnf terminologie. Stdtni sprdva 4: 5-68. --. 1979. Alcuni problemi relativi alla costruzione di un thesaurus giuridico.

Informatica e Diritto1: 175-97. --.

1980. Einige Fragen der Legaldefinitionen. Archiv ffir Rechts- und Sozial-

philosophie 4: 511-33. -. 1982. Legal Thesauri. In Deontic Logic, Computational Linguistics and Legal Information Systems. Ed. Antonio A. Martino. Amsterdam: North Holland.

Some Problems of Legal Language Knapp, Viktor and Aleg, Gerloch. 1987. Logika v pravovom soznanii. Moscow: Progress. Kopylov, Vladimir, Revel Romanov and Simon Yussupov. 1978. Les syst~mes authomatis~s d'information et le droit compare. In Developpement du droit et de la science juridiqueen U.R.S.S. Ed. Vladimir Kudryavtsev. Moscow: Acad6mie des Sciences de I'U.R.S.S. Krecht, Jaroslav. 1976. Struktura pr~vniei. Prdvnik 11: 1035-43. Materna, Pavel. 1959. Zu einigen Fragen der modernen Definitionslehre. Prague: Academia. Montesquieu, Charles-Louis de. 1979. De l'esprit des lois. 2 vols. Paris: Flammarion. Pescatore, Pierre. 1960. Introduction 4 la science du droit. Luxembourg: Offices des Imprim6s de l'Etat. Polevoy, N.S. and N.V. Vitruk. 1977. Osnovy primenenya kibernetiki v pravovedenii. Moscow: Yuridicheskaya literatura. Sildmyae, I.Ya. and R.P. Nigol. 1976. Yuridicheskyi tezaurus. Sovetskoe gossudarstvo i pravo 3: 23-29. Sourioux, Jean-Louis and Pierre Lerat. 1975. Le langage du droit. Paris: Presses Universitaires de France. Wittgenstein, Ludwig. 1966. Tractatus Logico-Philosophicus.London: Routledge and Kegan. Wright, Georg H. von. 1951. An Essay in Modal Logic. Amsterdam: North-Holland. Zivs, Samuil L. 1981. Istochniki prava. Moscow: Nauka. Zhukov, V.J. 1977. 0 lingvisticheskom obespechenii obshchegossudarstvennoy pravovoy AIPS. Sovetskoe gossudarstvo i pravo 10: 70-82.