LEGAL TRANSLATION IN SAUDI ARABIA: A CONTRASTIVE ANALYSIS OF LINGUISTIC CHALLENGES ENCOUNTERED BY PRACTITIONERS

Transcription

1 LEGAL TRANSLATION IN SAUDI ARABIA: A CONTRASTIVE ANALYSIS OF LINGUISTIC CHALLENGES ENCOUNTERED BY PRACTITIONERS By Abdulfatah J. Bostanji A thesis presented to the University of Western Sydney In fulfillment of the requirements for the degree of Doctor of Philosophy January, 2010

2 ACKNOWLEDGEMENTS I would like to express my deep thanks and appreciation to my principal supervisor, Professor Stuart Campbell, for his great teaching, encouragement, invaluable ideas, and inspiration. He was always there for me, providing great help and support with patience throughout the years of my candidature. My sincere thanks also go to my co-supervisors, Associate Professor Sandra Hale and Dr Raymond Chakhachiro, for their constructive criticism, invaluable comments, and great support. Special thanks and gratitude go to my collegue Dr Abbas Brashi for his great and continuous support. I am also grateful to all legal translators and drafters who participated in the empirical part of this thesis. Special thanks go to the legal advisor, Abdulmuneim Zahir, for his great help in conducting the empirical study. My deep thanks also go to Dr Paul Glew for his great help in the final stage of editing some chapters of this thesis, and to Dr Stephen McLaren for his great support in proofreading. Finally, special and sincere thanks and appreciation go to my great wife and two sons for their support and patience throughout the years of their homesickness. 1

3 STATEMENT OF AUTHENTICATION The work presented in this thesis is, to the best of my knowledge and belief, original except as acknowledged in the text. I hereby declare that I have not submitted this material, either in whole or in part, for a degree at this or any other institution. Abdulfatah J. Bostanji 2

4 TABLE OF CONTENTS ACKNOWLEDGEMENTS... 1 Abstract Chapter 1: Legal translation Introduction Overview on the background of the research Research Objectives Research Questions Methodology Contrastive analysis Level 1: Analysis of syntactic and semantic features Level 2: Analysis of textualization and stylistic festures Empirical study Data set Materials Data Storage Layout of the thesis Limitations of the study Chapter 2: Legal language in English and Arabic Introduction The nature of English legal language The history of Legal English Characteristics of Legal English

5 2.1.3 Plain legal English Legal writing and legal drafting The nature of Arabic legal language Islamic law English and Arabic legal texts: A contrastive analysis Syntactic features Nominalisation Choice of tense The use of the passive Semantic features Modality Textualization and stylistic features Layout The use of long sentences The use of Complex Provisions Legal Translation Overview of Legal translation The context of legal translation in Saudi Arabia Procedures and practices Specific legal translation difficulties in the context of Saudi Arabia Collaboration between legal translators and legal drafters The prevailing language in translated contracts The prevailing language issue in various international contexts The prevailing language issue in Saudi Arabia

6 2.5 Conclusion Research questions Knowledge gaps Chapter Linguistic contrastive analysis Introduction Level 1: Analysis of syntactic and semantic features Results and Discussion of the English Version Results and Discussion of the Arabic Version A comparison of structural and stylistic features of Arabic and English language of contract The use of modals The use of perfect participles The use of the present active Level 2: Analysis of Textualization and stylistic features Cohesion The use of archaic words and expressions The use of technical terms and expressions restricted to legal language The use of collocations The use of binomials Summary Syntactic and semantic features Textualization and stylistic features Chapter

7 Empirical Study Introduction Questionnaire 1: Legal Translators Research Design Methods and Data Collection Research questions Results and Discussion Questionnaire 1: Legal Translators Results and discussion Distribution of the sample according to qualifications Descriptive statistics for the years of experience Translation of texts other than legal text The level of difficulty in the translation of legal texts compared to the translation of other text types The level of difficulty in the translation of legal texts from Arabic into English compared to the translation from English into Arabic The frequency of legal text translation, by type The level of importance given to the translation of different types of documents or agreements The level of difficulty in translating commercial contracts and agreements from English into Arabic and vice versa Contribution to the difficulty of translating commercial contracts and agreements from English into Arabic Contribution to the difficulty of translating commercial contracts and agreements from Arabic into English

8 Different methods to overcome difficulties in translating commercial contracts and agreements from English into Arabic and vice versa Collaboration between legal translators and legal drafters when translating commercial contracts and agreements The need for greater or less collaboration between legal translator and legal drafters when translating commercial contracts and agreements from English into Arabic and vice versa Summary Evaluation of the respondents sample translations English into Arabic translation A comparison of the respondents self evaluation of their competence and their actual competence from English into Arabic Arabic into English translation A comparison of the respondents self evaluation of their competence and their actual competence from Arabic into English Questionnaire 2: Legal Drafters Research Design Methods and Data Collection Research Questions Results and Discussion Questionnaire 2: Legal Drafters Description of years of experience Collaboration between legal drafters and legal translators when translating commercial contracts and agreements

9 The need for more or less collaboration between legal translators and legal drafters when translating English into Arabic and vice versa Basis of selection of the prevailing version of a translated commercial contract Questions to legal drafters The importance of having a certain level of knowledge in legal translators The quality of commercial contract and agreement translation practice in Saudi Arabia Suggestions to improve the quality of legal translation practice in Saudi Arabia Suggestions towards qualifications of legal translators in Saudi Arabia, e.g. a system of accreditation Chapter Conclusion and Recommendations Introduction Summary of this research and its findings Summary of the research Summary of the findings The structural and stylistic features of English and Arabic legal texts The difficulties in translating legal texts The effects of collaboration between legal drafters and translators The prevailing of one language version of translated contracts

10 5.2 Recommendations SWOT analysis Stakeholders Recommendations for stakeholders Contributions of this study Directions for further research Bibliography Appendices Appendix 1. A case of translation tried in the Saudi Bureau of Grievance 232 Appendix 2. Consent forms for the empirical study 233 Appendix 3. Questionnaire for the empirical study: Legal translators 240 Appendix 4. Translation exercise: English to Arabic 245 Appendix 5. Translation exercise: Arabic to English 247 Appendix 6. Questionnaire for Legal Drafters 248 Appendix 7: SPSS Analysis 250 Appendix 8. A legal document deed dating back to the Ottoman period 262 Appendix 9. The FIDIC contract (Fédération Internationale Des Ingénieurs- Conseils) 263 Appendix 10. Industrial land lease executed in Saudi Arabia by the Royal Commission for Jubail & Yanbu and Petromin Lubricating Oil Company 302 Appendix 11. Agreement to arbitrate boundary dispute between two countries (Arbitration Compromise) 313 9

11 List of Tables Table a modal forms and their meanings 49 Table b Arabic deontic modality inflections 51 Table 3.1.1a grammatical and semantic features of the English version of the FIDIC contract Table 3.1.1b grammatical features of the English legal language of most contracts Table 3.1.2a grammatical and semantic features of the Arabic version of the FIDIC contract Table 3.1.2b grammatical and semantic features of the Arabic version of the 85 FIDIC contract Table 3.1.2c Arabic use of modals 87 Table 3.1.2d grammatical features of the Arabic legal language of most 91 contracts Table a The use of modals in English and Arabic 98 Table b exceptions to the Arabic use of modals 101 Table c additional exceptions to the Arabic use of modals 103 Table d additional exceptions to the Arabic use of modals 104 Table e additional exceptions to the Arabic use of modals 105 Table a The use of perfect participles 105 Table b exceptions to the use of perfect participles 107 Table a the use of the present active 110 Table b exceptions to the Arabic use of present active 111 Table c the use of conditional clause 112 Table 3.2.1a archaic words and expressions used in some English legal texts

12 Table 3.2.1b archaic words and expressions used in some Arabic legal texts 116 Table the use of technical terms and expressions restricted to legal 116 language Table 3.2.3a the use of collocations 118 Table 3.2.3b when Arabic collocates and its English counterpart does not 120 Table the use of binomials 121 Table methods and data collection (for legal translators) 128 Table a distribution of the sample according to qualifications 134 Table descriptive statistics for the years of experience 135 Table the level of difficulty in the translation of legal texts compared 136 to the translation of other text types Table a comparison of the perceived level of difficulty between the 137 translation of legal texts from Arabic into English and vice versa Table The frequency of legal text translation 139 Table the level of importance given to the translation of different 141 types of documents or agreements Table the level of difficulty in translating commercial contracts and 143 agreements from English into Arabic and vice versa Table contribution to the difficulty of translating commercial 144 contracts and agreements from English into Arabic Table contribution to the difficulty of translating commercial 146 contracts and agreements from Arabic into English Table different methods to overcome difficulties in translating 147 commercial contracts and agreements from English into Arabic and vice 11

13 versa Table collaboration between legal translators and legal drafters 148 when translating commercial contracts and agreements Table the need for greater or less collaboration between legal 149 translator and legal drafters when translating commercial contracts and agreements Table a an evaluation of English into Arabic translation 161 Table b an overall evaluation of the translations 164 Table a comparison of the respondents self evaluation of their 165 competence and their actual competence from English into Arabic Table an evaluation of Arabic into English translation 167 Table a comparison of the respondents self evaluation of their 172 competence and their actual competence from Arabic into English Table methods and data collection (for legal drafters) 175 Table the need for more or less collaboration between legal 178 translators and legal drafters when translating English into Arabic and vice versa Table basis of selection of the prevailing version of a translated 179 commercial contract Table SWOT analysis 201 Table an outline courses of translation

14 TRANSLITERATION SYSTEM The transliteration system of Arabic used in this study is selected from the system adopted by Campbell (1998). Arabic letters Arabic letters name Transliteration ء hamza? أ alif a ب baa? b ت taa? t ث thaa? th ج jiim j ح Haa? H خ khaa? kh د daal d ذ dhal dh ر raa? r ز zaay z س siin s ش shiin sh ص Saad S ض Daad D 13

15 ط Taa? T ظ Zaa? Z ع ayn 3 غ ghayn gh ف faa? f ق qaaf q ك kaaf k ل laam l م miim m ن nuun n haa? h و waaw w ي yaa? Y Arabic vowels Transliteration and diphthongs fathah أ kasrah ي Dammah و أي أو a aa i iy u uw ay aw 14

16 Abstract This study investigates the differences and similarities between Arabic and English legal texts in terms of structure and stylistic features. It also tackles the difficulties involved in legal translation practice in Saudi Arabia, as well as the effects on legal translation that result from legal translators consulting with legal drafters. All these areas are explored by two methods; first, through a contrastive linguistic analysis of both Arabic and English legal texts in general and contracts and agreements in particular; second, through an empirical study conducted on two professional categories: that is, legal translators and lawyers specializing in legal drafting in Saudi Arabia. The results confirmed that translating legal texts is far more difficult compared to the translation of other texts, the majority of legal translators find translation of legal texts from Arabic into English is more difficult than the translation from English into Arabic, and translation of commercial contracts and agreements from Arabic into English is more difficult than translation from English into Arabic. The main reasons for this might be that the native language of the translators is Arabic, the lack of sufficient second language acquisition in general and legal language in particular, and less consultation with legal English experts. Furthermore, this study revealed that the translation of culture-specific legal terms constitutes a significant difficulty for legal translators in translating commercial contracts and agreements from Arabic into English and vice versa, followed by general legal terminology, text layout, and finally tense, modals, punctuation, capitalization, and sentence structure. It also confirmed that the majority of legal 15

17 translators in Saudi Arabia found collaboration between legal translators and legal drafters when translating commercial contracts and agreements very important. 16

18 Chapter 1: Legal translation 1. Introduction This thesis explores legal translation in general and the linguistic difficulties encountered by legal translators in particular. However, prior to this exploration, it is essential to investigate the nature of legal language in terms of structure and style. Knowledge of the nature of legal language provides the translator with the right tools to perform their task accurately. According to Hatim (1997: 14) Each section of the legal document has a language of its own which is essentially of a formulaic nature. The translator must therefore be acquainted with these conventions in both English and Arabic. Therefore, this research attempts: first, to provide such knowledge in a form of linguistic contrastive analysis of English and Arabic legal language (see Chapter 3); second, to tackle the practical side of legal translation: that is, to give a real insight into the actual linguistic challenges encountered by legal translators, by means of a form of empirical study (see Chapter 4). 1.1 Overview on the background of the research By the late seventies, an economic boom hit the markets of Saudi Arabia due to the dramatic increase in oil prices. According to the Saudi Arabian Monetary Annual Reports, the total revenue increased from US $ 4.34 billion in 1973 to US $ 101 billion in 1981(Wilson and Graham 1994: 177). This revenue led to another boom 17

19 through government expenditure in construction projects oil plants, refineries, and factories and also the construction of two industrial cities, named Aljubail and Yanbu. These establishments began trading with overseas companies and organizations, and these trading relations and transactions, conducted via contracts and agreements, have led to the need for legal translation. Among the reasons behind such a need are the regulations of the Saudi Ministry of Finance, which stipulate translation of any contract or agreement made between Saudi and overseas organizations and companies, for the purposes of auditing and settlement of disputes. This is in accordance with the Saudi Royal Decree No. M/58 dated 4/9/1427H corresponding to 27/9/2006, which states that all governmental contracts, documents and appendices thereof shall be in Arabic, but that it is permissible also to use another language. Over the years, cases of dispute have increased. Unfortunately, this increase has been caused not only by failures of execution of the terms and conditions of contracts, but also by translational inaccuracies. A number of legal cases have been filed on the grounds of inaccurate legal translations, causing large financial and business losses among parties. These losses may gradually have a negative impact on the economy as well as on the labour market. Due to privacy laws, these cases can not be publicly revealed. However, an example case which was dealt with by the Saudi Bureau of Grievance is available (see Appendix 1). Some of the principal reasons for inaccurate legal translation may include the following: a. The lack of legal background for most translators of legal documents. b. The lack of systematic analysis of problems involved in the translation of legal texts in general, and agreements and commercial contracts in particular. 18

20 1.2 Research Objectives This study aims to investigate the following areas: 1. The differences and similarities between Arabic and English legal texts in terms of structure and stylistic features, with special reference to translation practice in Saudi Arabia. 2. The linguistic challenges encountered by legal translators throughout the process of legal document translation. 3. The effects of collaboration between legal drafters and translators on legal translation and various stages of contract translation, that is, from drafting to acceptance of the translation as legally valid. 4. The reasons why one language version of a translated commercial contract becomes the prevailing version, instead of both versions being accepted as legally valid in a court of law. 1.3 Research Questions The following questions are raised, to be answered by this study: 1. What are the differences and similarities between Arabic and English legal texts, in terms of structural and stylistic features? 19

21 2. What are the difficulties involved in the translation of legal texts in general and contracts in particular, including the translation of culture-specific legal terms? 3. What are the effects of working with legal drafters on legal translation? 4. What are the criteria for selecting the prevailing version of a contract, or on what basis are such decisions made? 1.4 Methodology The research methodology consists of the following two parts: Contrastive analysis In the first part, a contrastive linguistic analysis of Arabic and English legal texts is conducted on various types of legal texts in general and on commercial contracts and agreements in particular. This method provides answers for the following research question: 1. What are the differences and similarities between Arabic and English legal texts, in terms of syntactic, semantic, textual and stylistic features? The analysis concentrates on the various levels of linguistic features mentioned above. The method of analysis involves heuristic procedures. Hatim and Mason (1997:14) argue that: It would be desirable to proceed by observation based solely on sound empirical evidence. But, texts being what they are an imperfect record of communicative events we sometimes find it necessary to settle for what may be described as heuristic procedures. Interaction makes its own rules, a 20

22 process in which entire conceptual systems are involved, including those which have developed through our own experience with texts Level 1: Analysis of syntactic and semantic features The selected texts are analysed quantitatively and qualitatively by studying the specific syntactic and semantic features of language that are predominantly used in various contracts. This is done by undertaking analysis of the frequency of grammatical properties such as the use of tenses for various verb phrase groups as well as the use of the passive voice, and the use of modality in both Arabic and English legal texts Level 2: Analysis of textualization and Stylistic features This level of linguistic analysis highlights the tactical aspect of legal language use, specifying the way legal drafters assign restricted values to legal texts (these may be features of lexis, syntax, or even discourse). This is done by analysis of various legal text samples in both English and Arabic language. In legal language, drafters have developed marked preferences in their choice of words. Some legal texts are decorated with archaic words and expressions of a kind that could be used only by lawyers. These words or phrases may give anyone a reliable guide to identifying the language of a legal document since these words such as aforesaid, hereinafter, and witnesseth are used by lawyers as a matter of tradition (Crystal & Davy 1969: 207). Nevertheless, legal language possesses its own technical terms and expressions restricted to the legal field such as ( ا ر ان رى ا / أ رب (أ ه ا or used with a 21

23 specialised sense in the legal domain (resolutions:.( رارات There are also some collocations, such as the competent authority ا ة) (ا هات and the contracting.(ا ر ان ا ا دان) parties This analysis also sheds some light on binomials, pairs of synonyms or nearsynonyms, which are a feature of English legal texts. The motivation for using pairs of synonyms is to rely on inclusiveness as compensation for lack of precision (Crystal & Davy 1969: 208). This may or may not be the reason for using binomials in modern legal Arabic. Sometimes, binomials can be seen in Arabic. For example: This agreement shall be binding on the parties ( ر و ز ة ا ذة ا ا ة هذ.( د If the words و ز ة ا ذة are literally translated into English, they read as effective and obligatory. Other examples: under the supervision and control of ( إ راف.(ا ة وا وا rules and regulations (,(و را ة Empirical study In the second part, an empirical study was conducted in the form of questionnaire surveys of two professional categories; legal translators and specialized legal drafting lawyers located in Saudi Arabia, according to the following method: a. The first questionnaire consisted of 15 questions given to 24 professional legal translators, concerning the difficulties in translating legal texts in general and culture-bound legal terms in particular, the impact of new trends and changes in legal language on legal translation, and the importance of consulting legal drafters (lawyers). Also, two text samples taken from Arabic and English 22

24 contracts were translated by these translators. This questionnaire provides answers to the following research questions: - What are the difficulties involved in the translation of legal texts in general and contracts in particular, including the translation of culture-specific legal terms? - What are the effects of working with legal drafters on legal translation? b. The second questionnaire consisted of eight questions given to five legal drafters (lawyers), concerning the drafting of legal documents in general and commercial contracts in particular, the criteria for or basis of selecting one language version of a translated contract as the prevailing version rather than accepting both versions as legally valid documents in a court of law, and the importance of collaboration between legal drafters and translators throughout the process of legal translation. This questionnaire provides answers for the following research questions: - What are the effects of working with legal drafters on legal translation? - What are the criteria or basis of selecting the prevailing version of a contract? 1.5 Data set Materials The materials used in this study consisted of the following: 1. The empirical part was conducted in the form of two questionnaires, which were completed by two categories of profession: legal translators and specialized legal drafting lawyers located in Saudi Arabia. The questionnaire consisted of the following: 23

25 a. A first questionnaire consisting of 15 questions and 2 appendices. The first appendix contained a text sample of an English contract to be translated into Arabic by the participants. The second appendix contained a text sample of an Arabic contract to be translated into English by the participants. The total number of respondents was 24 professional translators. b. The second questionnaire consisted of 8 questions. The total number of respondents was 5 legal drafters. 2. The FIDIC contract (Fédération Internationale Des Ingénieurs-Conseils). This is in the form of a book that contains conditions of contract for works of civil engineering construction. It has a bilingual layout in English and Arabic and consists of 17,750 Arabic words and 21,300 English words. The reason for selecting such a legal instrument is that it has been used widely by most construction companies in some Arab countries such as Saudi Arabia, Jordan, and Egypt, as a standard contract. It contains general terms and conditions: that is, there is no personal information, no identities, nor numerical figures. Both the Arabic and the English versions of this contract are widely used as one-language contracts; they are not necessarily used as translated contracts. Samples were taken from this book to be used for the purpose of contrastive analysis only. 3. An Industrial land lease executed in Saudi Arabia by the Royal Commission for Jubail & Yanbu and Petromin Lubricating Oil Company. It has a bilingual layout and consists of 4,000 Arabic words and 4,500 English words. The reason for selecting this document is for exposure to another type of contract: a lease contract. All private information and figures were removed and 24

26 4. An agreement to arbitrate a boundary dispute between two countries (Arbitration Compromise). This does not have a bilingual layout. The English is the source language and the Arabic is the target. It consists of 500 Arabic words and 570 English words. The reason for selecting this document is exposure to a different type of legal text. All private information was deleted and it was used as a sample for my linguistic analysis only. I obtained this document from a book titled Taba by Rizq (1989). 5. An old legal document from the Ottoman period (a sample property deed) selected from a book titled Some Arabic Legal Documents of the Ottoman Period by Ebied & Young (1975). It consists of 180 Arabic words. A counter-part contemporary deed is my own property deed, which consists of 80 Arabic words. The reason for selecting these instruments is to investigate the changes in and development of these types of legal text in terms of structure and style. All private information was deleted and the samples were used for the purpose of contrastive analysis only Data Storage All materials were hard copies. They were scanned into an electronic archive. Each document was stored in a separate text file. 1.6 Layout of the thesis This thesis is divided into five chapters. Each deals with a particular topic that contributes to the overall discussion and leads to the conclusion. 25

27 Chapter 1 sheds some light on the background of this research, the objectives, research questions, methodology, the data set, and its structure. In Chapter 2, theoretical and practical studies are reviewed based on their contributions to this field. They shed some light on the distinctive features of English and Arabic legal language as well as affording a brief summary of their development throughout the years. Then, differences and similarities between English and Arabic legal texts in general and contracts and agreements in particular, are investigated in terms of syntactic, semantic and stylistic features. Then, the influence of English legal texts on Arabic legal texts and vice-versa is discussed, in the Arab world in general, and in Saudi Arabia in particular, where most Arabic language contracts and agreements, especially those of construction and multinational companies, are influenced by the language of legal English contracts. Then, legal translation difficulties and practice are investigated, including the international practice of legal translation compared to the practice in Saudi Arabia. In Chapter 3, the results of the questionnaires study are analysed and discussed. In Chapter 4, a contrastive analysis of Arabic and English commercial contracts is conducted in terms of structure and style. Also, the translation of legal texts is discussed in terms of the difficulties encountered by translators as well as the appropriate methods and procedures of translation adopted by legal translators. Then, the discussion considers problems in translating culture-bound legal terms, and provides solutions for legal translators. In Chapter 5, the conclusion is presented, together with the recommendations of this thesis. 26

28 1.7 Limitations of the study This study only concentrates on the written form of legal language. It sheds some light on English and Arabic legal language and covers legal translation in general, but its main focus is on legal translation practice in Saudi Arabia in terms of the linguistic challenges encountered by professional translators located in Jeddah, Saudi Arabia. 27

29 Chapter 2: Legal language in English and Arabic Introduction This chapter investigates only the written form of legal language. Theoretical and practical studies are reviewed based on their contributions to this field. This sheds some light on both English and Arabic legal language, as well as on their development throughout the years. Then, differences and similarities between English and Arabic legal texts in general and contracts and agreements in particular, are investigated in terms of syntactic, semantic and stylistic features. Finally, legal translation in general is overviewed, including the practice in Saudi Arabia. 2.1 The nature of English legal language The history of Legal English The legal language of English has been comprehensively researched. This section summarises the key findings. According to Melinkoff (1963: 34), the word law itself is of Scandinavian origin. It came into old English about 1000 A.D. from prehistoric Old Norse. This in turn derived from the old Icelandic word meaning something laid or fixed. Tiersma (1999: 16) states that a significant event for the language and the law of England was the spread of Christianity in 597, since it promoted the use of Latin for written law. Through the Roman Catholic Church, Latin once again had a major presence in England. Its influence extended to legal matters, particularly by means of 28

30 the Canon Law, through which the Church regulated religious matters such as marriage and family. The use of Latin as a legal language introduced terms like client and mediate. From 1310, the language of statutes was French (Tiersma 1999: 20 23); however, Norman French and Latin had been used together since As a result, many French terms, such as attorney general and Force majeure are used in legal English. In 1731, the English Parliament permanently ended the use of Latin and French in legal proceedings; however, it became difficult to translate many French and Latin terms into English. With another statute, it was provided that the traditional names of writs and technical words would continue to be in the original language (Tiersma, 1999: 36) Characteristics of Legal English Melinkoff (1963: 11) describes the language of the law as the customary language used by lawyers in those Common Law jurisdictions where English is the official language. He states that there are nine distinctive characteristics of legal English: 1. Frequent use of common words with uncommon meanings. 2. Frequent use of Old English. 3. Frequent use of Latin words and phrases. 4. Frequent use of old French and Anglo-Norman words. 5. Use of terms of art. 6. Use of argot. 29

31 7. Frequent use of formal words. 8. Deliberate use of words and expressions with flexible meanings. 9. Attempting extreme precision of expression. Maley (1994) indicates that present day legal discourse retains its identity as a highly specialised and distinctive discourse type or genre of English. The discourse of the legal systems of England, Canada, the United States of America, Australia, and New Zealand, derives from the English Common law system, and is manifestly very similar. Tiersma (1999: 40) adds that English colonizers transported legal English throughout the British Empire, including North America. Despite antipathy towards lawyers and the English, the Americans maintained the English legal language. The Articles of Confederation linguistically were very convoluted and full of legalese. According to Mattila & Goddard (2006: 3), legal language does not qualify as a language in the same way as French, Finnish, or Arabic, for example. It operates as a functional variant of a natural language, with its own domain of use and particular linguistic norms. Maley (1994: 11) states that language is medium, process and product in various areas of the law where legal texts, spoken or written, are generated in the service of regulating social behaviour. Particularly in literate cultures, once norms and proceedings are recorded, standardized and institutionalized, a special legal language develops, representing a predictable process and pattern of functional specialization. 30

32 Tiersma (1989) demonstrates that legal language developed naturally, under the influence of diverse languages and cultures, as well as the growing complexity of the legal system and the shift from predominantly oral to mainly written communication. However, observing any form of discourse, one can evidently decide if it is of a legal nature or not. There is a clear distinction between the language of everyday conversation and the language of the law, such as legal documents. Gibbons (2004: 2) points out that everyday conversation, which most linguists believe to be the most fundamental form of language, is often contextualized, referring to participants and actions around the speakers. Legal documents, however, are mostly decontextualized, attempting through various means to encompass linguistically general classes of events and participants. Legal language plays an important role in the construction, interpretation, negotiation and implementation of legal justice. Through a limited set of legal genres an attempt is made to create and maintain a model world of rights and obligations, permissions and prohibitions (Bhatia, Candlin and Engberg, 2008: 9). Legal language has a distinctive terminology or, according to Gibbons (2004: 2), is full of technical jargon, much of it incomprehensible to lay people who may not know the underlying legal concepts to which the jargon refers. For example, expressions such as Force majeure, liquidated damages, or for the benefit of doubt occur only in legal discourse. These legal concepts require appropriate terms to express them, as Maley (1994) indicates that the law consists to some degree of legal concepts, and therefore the words to express these concepts are essential. This is always the case with the discourse of different fields, such as science and literature, where one can find certain specialised terms or words expressing 31

33 underlying concepts. Therefore, legal language is a language for special purposes, which means that there are varieties of legal terms used according to their function. Mattila and Goddard (2006: 3) point out that legal language is often characterised as a technical language or technolect, which is to say a language used by a specialised professional. Maley (1994: 13) also indicates that there is not one legal discourse but a set of related legal discourses. Each has a characteristic flavour, but each differs according to the situation in which it is used. These discourses are: 1. Judicial discourse: the language of judicial decisions, spoken or written. 2. Courtroom discourse: used by judges, counsel, court officials, witnesses, and other participants. 3. The language of legal documents: contracts, regulations, deeds, wills, Acts of Parliament, or statutes. 4. The discourse of legal consultation: between lawyer and lawyer, lawyer and client. There is also a police discourse, in the form of police records of interview, and statements. According to Bhatia (1987: 227), there are three main types of legal writing: 1. Academic legal writing. 32

34 2. Judicial writing. 3. Legislative writing. These types include the following: - Memos, petitions, and legal proceedings. - Legislation, constitutions, and various regulations. - Academic writing and law textbooks. - Contracts, agreements, and wills. However, legal English has recently created a variety of new forms. Tiersma (2007: 97) notes some examples of creative new legal language dealing with new ways of forming agreements or licenses relating to software and other computer-related activities, as shown in the examples below: shrink wrap license (where the user assents to terms contained in software itself in a user s manual by opening the box) click wrap licenses (where user clicks on a box or icon manifesting assent to the terms of the license) browse wrap licenses (where a user on the Internet clicks on a notice that takes him to a separate web page. English legal language has developed throughout the years, and the so-called Plain English is one of these developments. It is used, nowadays, in some countries such as the United States, Australia and The United Kingdom (Tiersma 2007: 97). 33

35 2.1.3 Plain legal English The plain English legal language movement started in the 1970s in the United States to make legal language more accessible to average people. By the 80s and 90s, the movement reached other English-speaking countries such as Australia and The United Kingdom. The aim of this plain English campaign is the use of simple and clear legal language in the legal profession. The tools to achieve the aim, according to CLARITY (an international association promoting plain legal language) are: avoiding archaic, obscure, and over-elaborate language in legal work; drafting legal documents in language that is both certain in meaning and easily understandable; exchanging ideas and precedents, not to be followed slavishly but to give guidance in producing good written and spoken legal language; exerting a firm, responsible influence on the style of legal language, with the hope of achieving a change in fashion. (CLARITY 2009). Thus, words and expressions such as aforesaid, henceforward, hereinbefore, and hereinafter must be avoided according to the rules of plain English. However, these words and expressions are still used in contracts in some parts of the world, such as Saudi Arabia, and sometimes can be problematic when translated into Arabic. 34

36 2.1.4 Legal writing and legal drafting According to Costanzo (1995), legal writing provides practical solutions and suggestions for certain problems, but legal drafting determines relations among parties and clarifies procedures agreed upon by such parties. Where most legal drafting is based on what has previously been drafted, legal writing is considered to be creative. Legal drafting, in general, deals with both format and style. The formats of legal documents vary according to their organization of contents; for instance, a marriage contract format is different from that of a commercial contract in terms of division and organization of contents. As to the style, most legal documents use the same style in terms of terminology and sentence structure. According to Sabra (2001) legal drafting can be divided into two main branches: a) drafting of legal documents such as rules, contracts and wills, b) drafting of pleadings such as statements of action or statements of defence. There is a difference between legislative drafting and legal writing formats. The former formulates preventive law by adopting descriptive as well as prescriptive styles to set rules and orders, while the latter adopts a persuasive style in legal writing of pleadings and claims The nature of Arabic legal language Legal language in Arabic has two principal foundations: Islamic Law, and Roman or Common Law. After the fall of the Ottoman Empire, which ruled the Arab countries, most of these countries began to develop new laws. According to Rayner (1991: 48), 35

37 the Lebanese Law of Obligation and Contracts of 1932 was based squarely on French law, and the Egyptian 1949 law, and therefore the Iraqi and Syrian laws which developed from it, were derived from the French model. In some Gulf States such as Kuwait, Bahrain, Qatar, and Saudi Arabia, the case varies from one state to the other. According to Ballantyne (1986: 4) Kuwait, having reviewed the laws in the light of Islamic law, established two new Civil and Commercial Codes, which took effect in The Bahrain s Constitution prescribed the Sharia as a principal source of law, and the Qatari Law of Civil and Commercial Matters is a truncated version of the old 1961 Kuwait Commercial Code. Mallat (2000: 3) points out that in the contemporary civil law of obligations, a Middle Eastern style could perhaps be identified as a patchwork of European and local traditions, with a language and a terminology sometimes derived from classical Islamic law. In Saudi Arabia, which is the main target of this study, Sharia is the law of the land. Although it is considered as the most traditionalist Islamic legal system in the world today, it has created legal institutions that appear modern and western, and these include laws on labour relations, commercial papers, traffic rules, social security, and government tenders as well as relevant judicial bodies (Vogel 2000: xiv). However, the legal language of the documents issued by the Saudi courts of law is different from the language used in contemporary commercial contracts. The former uses a style and terminology derived from classical Islamic law, but the latter uses an influenced style and terminology as a result of the translation of foreign language contracts. 36

38 Islamic law The primary sources of Islamic law are the Holy Quran (the holy book for Muslims), and the Sunna (The Prophet Muhammad s legal decisions, deeds, and utterances). Together, they form what is called in Arabic, Sharia. The Sharia governs every aspect of a Muslim s life, including economic and social contracts. There is no doubt that there were pre-islamic commercial laws in the Arab regions controlling the trades between Makkah and some other regions such as Ash-Sham (Syria) and Yemen, which are mentioned in the Quran as the Journey of winter and summer. But those trade laws were conventions rather than well established laws. The following is a clear example of a contract formation including period of time, writing of contract and liabilities, as understood from a Quranic verse: O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing, let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah has taught him so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish naught of what he owes. (Yusuf Ali s translation of the meanings of Al-Baqara [The Cow] Surah verse: 282). The mode of command used in this verse is characteristic of the Quranic approach. Here is another example of the establishment of Islamic laws: the following verse provides a detailed legal order of inheritance: 37

39 And unto you belongeth a half of that which your wives leave, if they leave no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother s side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be shares in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is knower, Indulgent. (Pickthal s translation of An-Nissa (Women) Surah verse 12). This verse urged the establishment of a new legal discourse, principled written laws, that were substantially different from the then prevailing laws in the Arabian Peninsula. According to Coulson (1964: 9): The Quranic legislation and the Islamic law of inheritance are best viewed against the background of the tribal customary law of pre-islamic Arabia, that is, the customary inheritance practices of the nomadic Arabs living in the Hijaz (west of Saudi Arabia) prior to the rise of Islam. This tribal society was patrilineal in its structure and patriarchal in its ethos; individual tribes were formed of adult males who traced their descent from a common ancestor 38

40 through exclusively male links. The tribe was bound by the body of unwritten rules that had developed as a manifestation of its spirit and character. However, these laws were vastly developed by jurisprudence, due to the further expansion of Islam and its economic boom throughout the years. Devoted juristic scholars works have played a very important role in such development through derivation, analogy, and other methods of Islamic studies. There are four principal schools of jurisprudence: Maliki, Hanafi, Shafii and Hanbali. Each of these schools is named after its founder. Rayner (1991: 2) indicates that the classical theory of the sources of the Islamic law was formulated by Muhammad Ibn Idris al-shafii (d.822). Al-shafii was the first to establish the precedence of the Prophet as the second source of the law; this he derived from the Quranic injunction to obey God and his Prophet. However, in a few centuries after the era of the Prophet, Islam expanded into countries beyond the Arabian Peninsula. It reached Yemen, Syria, Persia, Egypt, North Africa, Spain, France, and Central Asia. This led to new legal problems for the Arab rulers. According to Khadduri (1953: 11), the development of Islamic law would have been less complex and the differences among jurists probably less controversial and confusing if the Muslim community had remained confined to Arabia. Nevertheless, Rayner (1991: 22) adds that the law therefore continued to develop through the next centuries by means of an independent arrangement of doctrine, an originality of argument and an evolving use of legal terminology. 39

41 2. 3 English and Arabic legal texts: A contrastive analysis While legal language covers a wide variety of oral and written legal forms, this study investigates only written English and Arabic legal texts in general, and contracts and agreements in particular. As one of the main objectives of this study is to investigate the differences and similarities between Arabic and English legal texts in general and contract language in particular, this section investigates: firstly, the syntactic features in terms of the use of nominalisation, choice of tense, and the use of passive: secondly, the stylistic features in terms of structure, the use of long sentences, and the use of complex provision: thirdly, semantic features in terms of modality, the words of authority; that is, modals such as shall, must, may, and will that a legal document requires to express precisely the purpose, right, or duty of the parties involved in such documents. This includes some of my data analysis. The framework of analysis used is heuristic, as proposed by Hatim & Mason (1997: 14): it would be desirable to proceed by observation based solely on sound empirical evidence. But, texts being what they are an imperfect record of communicative events we sometimes find it necessary to settle for what may be described as heuristic procedures Syntactic features Nominalisation In this subsection, both Arabic and English samples of data are simultaneously analysed to reveal the similarities and differences between both texts. According to Crystal & Davy (1996) legal English sentences are, almost without exception, complex, typically consisting of adverbial, conditional, concessive, or purposive 40