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Legal research, legal writing, and legal translation are the lights that illuminate the dark, unknown regions in the universe of law.

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Can we translate our customary methods and techniques when research transports us into another legal culture?

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Writing

Cultures and legal systems other than our own have made valuable contributions to the history of written law.

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Translation

Translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.

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LEGAL WRITING

The first known written language was the Sumerian language of Mesopotamia,[1] where writing[2] was used for the purposes of memory and bookkeeping during the fourth millennium BCE.[3]  Somewhere along the line, law discovered writing[4] and began to transform[5] into something very different from its oral tradition.[6]

A variety of cultures and legal systems have produced influential legal texts:[7]

  • the Institutes of Justinian[8] from[9] the Romans,
  • the Constitution of the United States of America,[10]
  • the Code Napoléon[11] from France,
  • the Bürgerliches Gesetzbuch[12] of Germany,
  • the Siete Partidas[13] from Spain,
  • the Ten Commandments[14] of Judaism and Christianity,
  • the Laws of Manu[15] from India,
  • the Qur’an[16] of Islam, and
  • the Qing Code from China.[17]

Today we encounter legal writing or drafting[18] in a vast collection of documents[19] that stretches from international treaties[20] to bus tickets[21] and from court opinions[22] to blogs.[23]  And in the documents of other languages and legal systems, we encounter different styles of writing.[24]

Cultures and legal systems other than our own have made valuable contributions to the history of written law.  And other cultures and legal systems continue to offer opportunities to enrich our legal writing today.[25]



[1] Sumerian is “[t]he oldest known language to be preserved in written form, spoken in southern Mesopotamia (part of modern Iraq) until the 2nd millennium BC.”  David Crystal, A Dictionary of Language, 2nd ed. (Chicago: University of Chicago Press, 2001), s.v. “Sumerian.”  The claim to “the longest literary tradition that still continues today,” however, belongs to China.  Florian Coulmas, The Blackwell Encyclopedia of Writing Systems (Oxford: Blackwell, 1999), s.v. “Chinese writing system.” 

[2] “At least four different meanings are associated with [the term ‘writing’] in non-technical usage,” one of which is “a system of recording language by means of visible or tactile marks which relate in a systematic way to units of speech.”  Coulmas, The Blackwell Encyclopedia of Writing Systems, s.v. “writing.”

[3] “[Sumerian writing] evolved gradually in the fourth millennium BCE from pictorial representations of objects which were recorded for mnemonic and bookkeeping purposes.”  Coulmas, The Blackwell Encyclopedia of Writing Systems, s.v. “Sumerian writing.”

[4] The Code of Hammurabi — which is considered to be “[t]he oldest known written legal code” — was “produced in Mesopotamia during the rule of Hammurabi (who reigned from 1792 to 1750 [BCE]).”  Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (St. Paul: West, 2009), s.v. “Code of Hammurabi.”

[5] Author Sharron Gu described the impact that “[t]he emergence of written rules” had on three legal traditions:

The various forms of legal hierarchy that developed within [the English, Arabic, and Chinese languages] determined the basic characteristics of the [English Common Law, the Islamic, and the Chinese] legal traditions at different times.  When oral justice remained indiscriminate and vague, the law constituted a habit rather than a set of rules and thus was carried out without a hierarchy of legislation. . . . The emergence of written rules led to the creation of a legal hierarchy shaped by the linguistic nature of each tradition.

Sharron Gu, The Boundaries of Meaning and the Formation of Law: Legal Concepts and Reasoning in the English, Arabic, and Chinese Traditions (Montreal: McGill-Queen’s University Press, 2006), 4.

[6] In New Caledonia, for example, the difference between written and oral law has caused complications for the French legal system:

The radically different approaches between a written positive law and an oral tradition, which is more flexible and contingent on the inclinations of the authorities, give rise to severe complications.  These complications relate as much to the issue of securing the permanence of a legal or customary norm as to the validation of these laws.

In the same vein, there is an opposition between the transparency of written law, which only has legal validity once an act has been publicised, and the relative confidentiality of custom, where knowledge is subordinate to the elders (and what they say) and where confidentiality can be total to ensure the secret and sacred nature of a particular tradition.

Bernard de Gouttes, “The Magistrature and Custom: Questions and Answers on Approach and Practice in New Caledonia,” in Custom and the Law, eds. Paul de Deckker and Jean-Yves Faberon, trans. Tim Curtis (Canberra: Asia Pacific Press, 2001) 135.

[7] The noun “text” is frequently used in the sense “[a]ny piece of connected language that is written or printed,” however “in linguistics the term has been extended to include self-contained pieces of spoken and signed language.”  Coulmas, The Blackwell Encyclopedia of Writing Systems, s.v. “text.”  In cybertechnology, the word “text” is also used as both a noun and a verb for “[s]ending brief messages from one cell phone to another.”  Jonathon Keats, Control + Alt + Delete: A Dictionary of Cyberslang (Guilford: Lyons Press, 2007), s.v. “texting.”  A text can be as brief as a single word or as enormous as “a novel of indefinite length.”  David Crystal, How Language Works: How Babies Babble, Words Change Meaning, and Languages Live or Die (New York: Avery, 2007), 262.

[8] The Institutes of Justinian were promulgated in the year 533 CE.  Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1995), 41.  The manner of classification of the law has endured since before the time of the Institutes:

Justinian’s Institutes declare that “the whole of our law relates either to persons or to things or to actions”.  This classification, which has coloured all subsequent legal thinking, is repeated from the Institutes of Gaius, and even there was perhaps already traditional.

Nicholas, An Introduction to Roman Law, 60 (single quotation marks changed to double). 

[9] When we translate from French or Spanish into English, both “from” and “of” are possible equivalents of the preposition de.  “Britannica World Language Dictionary,” in Webster’s Third New International Dictionary: Of the English Language Unabridged; with Seven Language Dictionary, 3:2714, 3:2734.  How does the usage of those two English prepositions differ?

[10] The present United States Constitution was signed on September 17, 1787, and became effective on June 21, 1788.  Robert F. Tedeschi Jr., The U.S. Constitution and Fascinating Facts About It, 6th ed. (Naperville: Oak Hill, 1996), 16.  U.S. Supreme Court Justice William Brennan wrote that “[t]ogether, [the United States Constitution and the Bill of Rights] constitute [the] nation’s single most important contribution to the world.”  William J. Brennan Jr., introduction to New York University School of Law, Fundamentals of American Law, ed. Alan B. Morrison (New York: Oxford University Press, 1998), 4.

[11] The Code Napoléon, which is also known as the Code civil des Français, was promulgated in 1804.  Jean-Louis Halperin, “Code Napoléon (Préparation, rédaction et évolution),” in Dictionnaire de la culture juridique, eds. Denis Alland and Stéphanie Rials (Paris: Quadrige/Lamy-Presses Universitaires de France, 2007), 200.

[12] The Bürgerliches Gesetzbuch (also known as the BGB or Civil Code) “came into force on January 1, 1900” and “is the most important source . . . of private law in Germany.”  Howard D. Fisher, The German Legal System and Legal Language: A General Survey together with Notes and German Vocabulary, 4th ed. (London: Routledge-Cavendish, 2009), 31 (emphasis and reference omitted).

[13] The Siete Partidas was one of “a series of legal works” that were published by King Alfonso X el Sabio of Castile, who ruled during the thirteenth century CE and was “a key founder of Spanish culture.”  Robert I. Burns, “The Partidas: Introduction,” in Alfonso X el Sabio, Las Siete Partidas, ed. Robert I. Burns, trans. Samuel Parsons Scott (Philadelphia: University of Pennsylvania Press, 2001), 1:xi.  The influence of the Siete Partidas has touched many parts of our world:

In time, the Siete Partidas came to be the foundation of the legal system of the medieval kingdom of Castile-León, and later of modern Spain and of all the countries of the Spanish-speaking world colonized by Spain from the sixteenth century onward.  The Partidas also had a profound impact on the other peninsular kingdoms in the Middle Ages as a result of translations into Portuguese, Catalan, and Galician.

Joseph F. O’Callaghan, “Alfonso X and the Partidas,” in Alfonso X el Sabio, Las Siete Partidas, 1:xxx (references omitted).

[14] The Ten Commandments “embody ethical and social injunctions which subsequent legislation has sought to implement.”  Max Gray Rogers, “Ten Commandments,” in Abingdon Dictionary of Living Religions, ed. Keith Crim, with the assistance of Roger A. Bullard and Larry D. Shinn (Nashville: Abingdon, 1981), 750.  The Greek term for the Ten Commandments is “Decalogue.”  Gerald Benedict, The Watkins Dictionary of Religions and Secular Faiths (London: Watkins, 2008), s.v. “Decalogue.”

[15] Professor Patrick Olivelle noted that “[t]he Law Code of Manu or Mānava Dharmaśāstra . . . is undoubtedly the most celebrated and the best known legal text from ancient India.”  Patrick Olivelle, introduction to to The Law Code of Manu, trans. Patrick Olivelle (New York: Oxford University Press, 2009), xvi (emphasis omitted).  The Law Code of Manu “was also one of the most important, perhaps the most important element of Indian civilization translated to the states of South-East Asia.”  M.B. Hooker, A Concise Legal History of South-East Asia (Oxford: Clarendon Press, 1978), 99.

[16] The Qur’an is “the first source of the Sharī⁽ah.”  Mohammad Hashim Kamali, Principles of Islamic Jurispruden ce, 3rded. (Cambridge: Islamic Texts Society, 2008), 16.  The term Sharī⁽ah or Sharī⁽a is used for “the divine law of Islam” or “Islamic law, including legal doctrine and the judiciary.”  Šukrija Husejn Ramić, Language and the Interpretation of Islamic Law (Cambridge: Islamic Texts Society, 2003), 224; Wael B. Hallaq, The Origins and Evolution of Islamic Law, Themes in Islamic Law 1 (New York: Cambridge University Press, 2008), 209.

[17] Several Chinese dynasties promulgated legal codes; the last of those dynasties was the Qing dynasty, which issued the first version of the Qing Code (or Great Ching Code) in 1646 CE.  John W. Head and Yanping Wang, Law Codes in Dynastic China: A Synopsis of Chinese Legal History in the Thirty Centuries from Zhou to Qing (Durham: Carolina Academic Press, 2005), 15-16, 200 (reference omitted).  The influence of Chinese law has been compared to that of the Civil Law and Common Law traditions:

In terms of its history and influence, Chinese law is fully as important as the two legal traditions that originated in Europe and were then transplanted elsewhere — the civil law and the common law. . . . Indeed, in addition to governing China itself, China’s legal system formed the basis of the legal systems of several nearby nations that were subject to its influences, including Korea, Japan, and Vietnam.

Head and Wang, Law Codes in Dynastic China, 3-4 (references omitted).

[18] “Drafting denotes the specific type of legal writing dealing with legislation, instruments, or other legal documents that are to be construed by others.  Statutes, rules, regulations, contracts, and wills are examples.  The style is considerably different from that of other legal writing, such as judicial opinions and legal commentary.”  Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. (New York: Oxford University Press, 2011), s.v. “legislative drafting.”

[19] The noun “document” is one of the synonyms of “text.”  Christine A. Lindberg, comp., Oxford American Writer’s Thesaurus, 2nd ed. (New York: Oxford University Press, 2008), s.v. “text.”

[20] Here is one definition of the term “treaty” in international law:

For the purposes of the Vienna Convention on the Law of Treaties of 23 May 1969 (1155 U.N.T.S. 331), “‘treaty’ means an international agreement concluded between two or more States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”: art 2(1)(a).

John P. Grant and J. Craig Barker, Parry & Grant Encyclopædic Dictionary of International Law, 3rd ed. (New York: Oxford University Press, 2009), s.v. “treaties, definition” (single quotation marks changed to double and vice versa).

[21] Black’s Law Dictionary uses a bus ticket as an example of “[a] certificate indicating that the person to whom it is issued, or the holder, is entitled to some right or privilege.”  Garner, Black’s Law Dictionary, s.v. “ticket.”

[22] In the United States, “[c]ourt opinions are the primary source of decisional (case) law,” and the nine [justices of the United States Supreme Court] write opinions that cover diverse areas of [social life].”  Dana Neacşu, Introduction to U.S. Law and Legal Research (Ardsley: Transnational Publishers, [2005]) 125, 171.

[23] “[A] new avenue for keeping up with current legal thinking is with blogs or, as law blogs are often called, ‘blawgs.’”  J. Paul Lomio and Henrik Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 2nd ed. (Copenhagen: DJØF, 2009), 27 (italics changed to single quotation marks).

[24] The style of legal writing is influenced by “legal traditions, thought and culture” and varies from one legal language to another.  Deborah Cao, Translating Law, Topics in Translation 33 (Clevedon: Multilingual Matters, 2007), 22 (reference omitted).  However, such variation is not limited to legal writing:

What counts as good writing varies from culture to culture and even among groups within cultures.  In some situations, you will need to become familiar with the writing styles . . . that are valued by the culture or discourse community for which you are writing.

Diana Hacker, Rules for Writers, with contributions by Nancy Sommers, Tom Jehn, Jane Rosenzweig, and Marcy Carbajal Van Horn, 6th ed. (Boston: Bedford/St. Martin’s, 2009), 2.

In what sorts of ways does writing differ from one culture to another?   One obvious example is that “languages vary in the direction in which they are written — left-to-right, right-to-left (e.g. Arabic), top-to-bottom (e.g. traditional Japanese), and the uncommon bottom-to-top (e.g. some forms of Ancient Greek).”  Crystal, How Language Works, 98.

[25] U.S. lawyer Preston M. Torbert concluded that “we must welcome the inconvenient challenges that a foreign culture, language, or legal system presents: they lead us to see the familiar in a new light and can help us improve our own system.”  Preston M. Torbert, “Globalizing Legal Drafting: What the Chinese Can Teach Us about Ejusdem Generis and All That,” The Scribes Journal of Legal Writing 11 (2007):48.  He used the example of a rule of interpretation (ejusdem generis) to demonstrate how a foreign legal system, the Chinese legal system in that instance, can teach us how to communicate better in our own language:

[A]s law practice becomes ever more globalized, we should accept — no, welcome — the differences and insights that a foreign culture, language, or legal system can offer us.  And if we can gather together these insights and suggestions, we can make not merely small, incremental improvements to our English drafting.  Rather, we will have the critical mass to create a new English global drafting style that will have several benefits.

Torbert, “Globalizing Legal Drafting,” 50 (emphasis omitted).

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Data
Title of page Legal Writing
Address of page http://lawexplorers.com/legal-writing.html
Geographic areas Mesopotamia; Roman Empire; United States of America; France; Germany; Spain; India; China; New Caledonia; Castile
Languages Sumerian; Chinese; English; Arabic; French; Spanish
Terms and phrases language; writing; oral tradition; legal system; culture; legal writing; drafting; treaty; bus ticket; court opinion; blog; written law; text; legal code; style; foreign
Proverbs, maxims, and canons ejusdem generis
Events Institutes of Justinian; Constitution of the United States of America; Code civil (France); Burgerliches Gesetzbuch (Germany); Siete Partidas; Ten Commandments; Laws of Manu; Quran; Qing Code; Code of Hammurabi
Publications Custom and the Law; The German Legal System and Legal Language; Concise Legal History of South-East Asia; Language and the Interpretation of Islamic Law; Law Codes in Dynastic China; Legal Research Methods in the U.S. and Europe
Authors David Crystal; Florian Coulmas; Bryan Garner; Sharron Gu; Barry Nicholas; Patrick Olivelle; Mohammad Hashim Kamali; Deborah Cao; Diana Hacker
Individuals Hammurabi; William Brennan; Alfonso X el Sabio
Organizations United States Supreme Court