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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 com-
munication 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.
2 Viktor Knapp

legal language. These problems can be studied from different points of view,
viz., from the linguistic point of view, but also from the juridical, socio-
logical, 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 con-
cerned, 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 lan-
guage, 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 con-
stitute 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 them-
selves 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 intelli-
gibility of a legal rule consists in the fact that its addressee perceives its
content in the meaning intended by the legislator. Furthermore, intelligi-
bility is connected with the above mentioned discernibility. Generally speak-
ing 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, simultan-
eously 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 mean-
ing 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 dif-
ferentiated 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 accord-
ance 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 individ-
ual 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 per-
taining 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 afore-
mentioned meaning (see supra section Il) and consider their sum as the
vocabulary of legal language (Grahn 1977, 86), or whether we should con-
sider 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 appli-
cation 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 fre-
quent. 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 "con-
sideration," "fee," etc.).
The experience of legal practice, the experience of the creation of com-
puterized 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, meta-
phors, 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 afore-
mentioned German words Einwilligung and Genehmigung and, conse-
quently, 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 Sachen-
rechte (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 inter-
lingual 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 Anglo-
American (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 multi-
lingual 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 pains-
taking 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

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