Legal Translation and Plain Language Part 1: What Translators Can Learn from Judges

I. The Case for Plain Language

In “The Public Speaks, Again: An International Study of Legal Communication” published in the University of Arkansas Little Rock Law Review (2017), Law Professor Chris Trudeau and co-author Christine Cawthorne took a look at the public’s preferences for legal communication across five major English-speaking countries (the U.S., England, Canada, Australia, and New Zealand) and found that people in those countries overwhelmingly preferred plain language when given the choice between alternatives.

The study also claims to be the first to measure the impact that traditional legal communication has on the workplace, revealing that, regardless of the sector (government, business, healthcare, or law), both lawyers and laymen alike very often struggle to interpret legal information to do their jobs, thus hurting productivity. In light of that, the authors ultimately concluded that: “using plain language is not only what people want — it’s what workplaces need to be more productive” (Trudeau and Cawthorne 2017).

But productivity is just one of many arguments in favor of plain language and it is not likely to be the number one thing on the legal community’s mind when pondering over the use of plain language. Different legal actors may have different reasons to support plain language in legal texts, but what’s undeniable is that plain language is gaining momentum in the legal world and legal translators need to catch up to the changing times, even if that means that we will not always use plain language in our translations.

II. So, What Else is New?

In April 2017, the United States Supreme Court’s then-newest Justice, Neil Gorsuch, made headlines for consistently “sticking to plain language” in his decisions (Wolf 2017). And only a year later, in March 2018, the Supreme Court of Canada began publishing plain language Cases in Brief, a decision that, according to Chief Justice Wagner, was made partly out of necessity: “We’re doing this because we want to be more transparent and accessible to Canadians—but we’re also doing it because we must. The reality is that there are fewer journalists covering the Court than ever, and those who remain are pulled in many different directions. This is an attempt to fill the gap” (Sheppard 2018).

But plain language in the courts is not such a new phenomenon. Already in 1990, the U.S. Supreme Court had held that: “In determining the scope of a statute, we look first to its language, giving the words used their ordinary meaning” (Moskal v. United States, 498 U.S. 103, 108 (1990)). And SCOTUS has confirmed this position time and again in cases involving the interpretation of statutes (see, for example, Ingalls Shipbuilding, Inc. v. Director, Office of Workers Compensation Programs, Dep’t of Labor, 117 S. Ct. 796, 801 (1997)). In fact, both the Rehnquist and the Roberts Courts have consistently argued in favor of a plain language interpretation of a statute with very little dissent since the 1990s (Strauss 2016).

 III. A Little Rationality Goes a Long Way

The question of plain language is pretty much everywhere: from how to draft laymen-facing documents like consumer contracts to how lawyers ought to address the courts and how the courts should interpret the law. They are not easy questions. And, while some plain language advocates will argue that plain language is appropriate in every legal setting, not everyone’s on board, counterarguing instead that plain language impoverishes or “dumbs down” legal language.

Regardless of whether you’re a plain language advocate or not, the most rational take on the matter of plain language probably lies somewhere in the middle. While there is merit to the argument that not everything needs to be spelled out in laymen’s terms, there is equal merit to the argument that at least laymen-facing documents need to be drafted in terms the average person can understand.

Additionally, it’s simply good legal practice not to leave any of our legal drafting open to the interpretation of the courts. If we don’t want the courts to breathe meaning into our texts, then we must draft them clearly enough to prevent, within reason, any possible dispute. To achieve that, lawyers are trained to understand how exactly courts interpret legal texts. And, as drafters, we always have the question of court interpretation in the back of our minds. But we know this question doesn’t have a surefire answer. Whether interpreting a contract or a statute, different courts will have equally different approaches to interpreting legal texts:

“Some judges believe that their duty is quite simply to give the text its most natural meaning—in the context of related provisions, of course, and applying the usual canons of textual interpretation—without assessing the desirability of the consequences that meaning produces. At the other extreme are those judges who believe it their duty to give the text whatever permissible meaning will produce the most desirable results. Most judges probably fall somewhere between these two extremes, perhaps adopting the most natural meaning except when policy consequences affect an area that they consider particularly important (e.g. environmental protection or sex discrimination), or perhaps consulting policy consequences only when the most natural meaning is not entirely clear. Unless you know for sure what sort of judge you’re dealing with, you’re well advised to argue (if possible) both most-natural-meaning and policy-consequences-cum-permissible-meaning” (Scalia and Garner 2008).

IV. What Translators Can Learn from Judges                                                                    

A common misconception in legal translation is that when in doubt, fidelity to source compels literality. “Translate it literally, word for word, and you can’t miss,” a fellow legal translator recently said to me at a professional conference. In fact, some translators argue that literal translation is practically mandatory when translating any kind of legal document, especially discovery documents. However, I would like to challenge that notion. Instead, I argue that literality is never an option. If language professionals in general, and legal translators in particular, applied the same method of interpretation to the translation at hand as the courts apply to the texts brought to them in legal disputes, translation quality would significantly improve without sacrificing fidelity (Lessig 1993).

So how do courts interpret legal texts? Of course, there is no single answer to that question. Interpretation will vary across legal traditions and cultures. Civil Law countries will tend to have rules of interpretation somewhere in their codes. Common Law countries have them elsewhere. But jurisprudence crosses borders and ever since H.L.A. Hart foregrounded the question of interpretation in 1961, judges have gone out of their way to back their decisions with solid interpretation theory, lest it be said that they legislate (Hart 1961).

These theories usually operate at three levels: i. communicative; ii. normative; and iii. methodological. My position here is that, at least at a methodological level, translators can benefit from plain meaning interpretation, even if fidelity to source does not allow for the use of plain language in the target text. But translators must first familiarize themselves with interpretation theory—at least the theories described below.

a) Textualism (a.k.a. Plain Meaning Textualism)

Not to be confused with originalism, textualism is the view that what legal texts really mean is their plain meaning. From there it follows that legal interpreters (i.e. judges) must adopt constructions of legal texts that correspond to their plain meaning, regardless of whether or not that corresponds to the linguistic meaning or communicative content of the text. Under the textualist theory, the plain meaning of a legal text is whatever meaning meets two requirements: i. whatever an ordinary person who is a competent speaker of the language would understand and ii. that (theoretical) person has to know that what he or she is reading is a legal text (statute, contract, etc.). Though simple, plain meaning is often confused with literal meaning, purposive meaning, and reasonable meaning.

b) Intentionalism

Intentionalism aims for a construction of the statute that accords with legislative intent (in the broad sense). Intentionalism parts from the premise that intentions are mental states and legislators can have many different mental states relevant to statutory interpretation and construction. It stems from two kinds of intent: communicative and legislative. Legislators may intend to communicate the content that they wanted the public to grasp or they may intend for a statute to produce certain effects, to be applied in certain ways, or to achieve certain goals. These intentions are all subjective and may be reflected in the legislative history of a statute. They can then be used to guide the process of statutory construction, determining the legal effect that courts will give the statutory text. Intentionalism can be extrapolated to any form of legal interpretation, including even something as mundane as a contract.

c) Purposivism

Unlike intentionalism, which focuses on the subjective intentions of the legislator, purposivism aspires to be objective. Instead of looking toward the purpose the legislator had in mind when drafting, it looks to the purpose a reasonable legislator should have had in mind. In other words, purposivism postulates that statutes should be interpreted on the basis of their reasonable meaning, even if that meaning digresses from the plain meaning of the text or the subjective intentions of the legislator. Like intentionalism, purposivism can be extrapolated to the interpretation of any kind of legal text.

V. The Takeaway

Textualism, intentionalism, and purposivism are not the only interpretation theories out there, but they are arguably the most prominent. Applied to translation, textualism is analogous to asking ourselves what a competent source language speaker would understand if aware of the fact that the text at hand is a legal text. Intentionalism is analogous to asking ourselves what the drafter of the source text subjectively intended to convey. And purposivism is analogous to asking ourselves what the reasonable objective meaning of the source text is, even if that means digressing from the plain meaning of the text.

None of these involve literality, yet applied methodologically to translation, all can result in high degrees of fidelity to source and, more importantly, help translators construct objective criteria when interpreting a text. However, unlike judges, translators don’t always have access to sufficient background information to identify the intention of the drafter, be it subjective or objective. And, unlike the drafter, translators don’t have the power to decide whether the target text should be written in plain language or not. That is, of course, up to the drafter or client.

What translators can do, instead, is adopt a more methodological approach to interpretation—one that, to some extent, emulates how judges approach legal texts and helps unravel the meaning that needs to be captured from the source text and conveyed in the target text. That, however, involves being able to extract the plain meaning of a text, which in turn, also involves understanding what plain language is and how it can be helpful.

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If you liked this post, look for Part 2 next week: Demystifying Plain Language, available at www.translatinglawyers.com or get it directly to your inbox by signing up to our newsletter.

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Works Cited in this Post

Hart, H.L.A. 1961. The Concept of Law. Oxford: Oxford University Press.

Lessig, Lawrence. 1993. “Fidelity in Translation.” Texas Law Review 1165-1268.

Scalia, Antonin, and Bryan Garner. 2008. Making Your Case: The Art of Persuading Judges. St. Paul: Thomson/West.

Sheppard, Michel-Adrien. 2018. Slaw: Canada’s online legal magazine. March 22. Accessed November 4, 2018. http://www.slaw.ca/2018/03/22/tomorrow-the-supreme-court-of-canada-will-start-publishing-plain-language-case-summaries/.

Strauss, David A. 2016. “The Plain Language Court.” Cardozo Law Review 651-670.

Trudeau, Christopher, and Christine Cawthorne. 2017. “The Public Speaks, Again: An International Study of Legal Communication.” University of Arkansas Little Rock Law Review 249 – 282.

Wolf, Richard. 2017. USA Today. April 28. Accessed November 2, 2018. https://www.usatoday.com/story/news/politics/2017/04/28/supreme-court-newest-justice-sticks-plain-language/100950306/.