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| | | -- By NoahJoseph - 24 Feb 2021 | |
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< | Introduction | >
> | Introduction | | | | |
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< | Law is the use of language to regulate and change society. In the United States, the specific language by which the law operates is English. More specifically, the American legal system exists within the constraints of a particular register of English that has evolved through centuries of British and American legal developments. This legal register of English is not generally understood by the average American English speaker. In fact, American law students spend their entire first semester of law school acquiring the basic framework of this register, and then spend the rest of their legal careers practicing its use. By and large, these law students are selected based on their mastery of the so-called “standard” dialect of English, upon which the legal register is based. However, many Americans have a limited understanding of standard English, and as a result have little to no grasp of Legal English. As such, vast numbers of Americans are linguistically excluded from the legal system by which their society is organized. | >
> | Law is the use of language to regulate and change society. In the United States, the specific language by which the law operates is primarily English. More specifically, the American legal system exists within the constraints of a particular register of English that has evolved through centuries of British and American legal developments. This legal register of English is not generally understood by the average American English speaker. In fact, American law students spend their entire first semester of law school acquiring the basic framework of this register, and then spend the rest of their legal careers practicing its use. As such, the average American English speaker needs the assistance of a lawyer in order to understand the procedures and actions of a court. Moreover, many Americans have a limited understanding of standard English, and must therefore rely not only on a lawyer, but also on an interpreter, whose job is to translate court proceedings from English into languages spoken by these individuals. However, since translation can never be perfect, this process hinders the ability of a vast number of Americans to participate in the legal system by which their society is organized. | | | | |
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< | Non-English Speakers | >
> | Language in American Courts | | | | |
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< | Americans who have limited understanding of any dialect of English are the ones who face the greatest linguistic exclusion from the legal system. According to the U.S. Census, over 25 million U.S. residents over the age of 5 speak English “less than very well.” (https://www.census.gov/data/tables/2013/demo/2009-2013-lang-tables.html). This accounts for almost 9% of the population within this age range. This entire segment of the U.S. population cannot participate in the legal system in the way that it was designed. Much of the premise of our current legal system is based on the assumption that the people who are governed by this system are aware of its rules. This idea is encapsulated by the well-known maxim: “Ignorance of the law is no excuse.” But how can someone know the law if they do not know the language in which it is written? This issue is especially disheartening in light of the legal system’s inhumane treatment of immigrants, who make up a significant portion of foreign language speakers in the United States. Ironically, those who are most frequently subjected to Immigration and Customs Enforcement’s brutality are also those who are in the worst linguistic position to understand ICE’s policies and procedures. | >
> | According to the U.S. Census, over 25 million U.S. residents over the age of 5 speak English “less than very well.” (https://www.census.gov/data/tables/2013/demo/2009-2013-lang-tables.html). This accounts for almost 9% of the population within this age range. This entire segment of the U.S. population cannot participate in the legal system in the way that it was designed. This issue is especially disheartening in light of the legal system’s inhumane treatment of immigrants, who make up a significant portion of foreign language speakers in the United States. Ironically, those who are most frequently subjected to Immigration and Customs Enforcement’s brutality are also those who are in the worst linguistic position to understand ICE’s policies and procedures. | | | | |
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< | Translation | >
> | Furthermore, much of our current legal system is based on the assumption that the people who are governed by this system are aware of its rules. This idea is encapsulated by the well-known maxim: “Ignorance of the law is no excuse.” But how can someone know the law if they do not know the language in which it is written? The current solution to this problem is for courts to employ interpreters to translate between English and the languages spoken by non-English speakers who appear in court. However, this solution is imperfect for a variety of reasons. Even if translation were an exact science, there is an increasing number of languages for which qualified court interpreters are needed, but none can be found. (https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html). This is particularly true for indigenous languages spoken in Central America. Furthermore, a deeper and more pervasive issue is that translation is not an exact science, and can never perfectly convey a phrase from one language into another. | | | | |
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< | One seeming solution to this problem would be to translate statutes and judicial opinions into non-English languages that are commonly spoken in the U.S. However, there are two major problems with this solution. The first is practical: there are too many languages spoken in the U.S. for translations of all statutes and judicial opinions to be made in all of them. Many other practical issues stem from this, including the lack of widespread literacy in many languages’ speaking communities. | >
> | Imperfect Translation | | | | |
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< | The other major problem related to translation is that no two terms are completely equivalent between languages. Even the simplest nouns in any language have innumerable layers of meaning built into them. The word “dog” in English can refer to an animal, or it can be used to refer to humans in ways that range from slightly derogatory to friendly. The so-called translation for dog in Malayalam can also refer to the same animal as in English, but when this word is used to refer to a human, it has a much more emotionally-charged derogatory meaning. If such divergent shades of meaning can be found for seemingly equivalent terms in two languages that supposedly refer to the same common noun, one can imagine that increasingly divergent meanings would be attributed to the “equivalent terms” for esoteric legal concepts in two different languages. Given that legal decisions often turn on the nuances of terms like “reckless” and “willful,” the translation of statutes or judicial opinions into another language would therefore be ineffective in ensuring that non-English speakers know the law. | >
> | No two utterances in different languages are ever completely equivalent. Although translations between languages are based on the premise that these languages have terms that are similar enough to be practically the same, this sameness is never complete. Each word in each language has its own particular history, rules of usage, and shades of meaning. For example, the Malayalam terms തോന്നുക (thonnuka), ആലോചിക്കുക (aalochikkuka), ചിന്തിക്കുക (chinthikkuka), വിചാരിക്കുക (vichaarikkuka), ധരിക്കുക (dharikkuka) and കരുതുക (karuthuka) can all be translated as the English verb “to think.” Each of these Malayalam words conveys a slightly different meaning, and the differences between the terms are often very subtle. Thus, in a criminal trial with a Malayalam-speaking defendant, the particular word that an interpreter chooses to translate “to think” would likely have a significant impact on whether the court finds that the mens rea requirements for a particular offense have been met. This could then play a critical role in whether the defendant is found guilty. | | | | |
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< | Non-Standard English Speakers | >
> | Even beyond the lexical level, the issue of translation is further complicated by the differences in various languages’ grammatical structures. Certain languages have particular sentence structures that simply do not occur in other languages. For example, English verbs can exist in the present perfect tense (eg. “I have eaten”) and the past perfect tense (eg. “I had eaten”), both of which indicate that a particular action had already been completed prior to the time frame being referenced. However, neither of these tenses exist in Arabic. If a court interpreter were trying to translate English sentences that contained these tenses into Arabic, the interpreter would either use an Arabic past tense that does not fully convey the nuances of the present perfect or past perfect tense, or the interpreter would need to introduce details that did not exist in the original English sentence. In such a situation, the court may misunderstand an Arabic speaker’s narration of a particular sequence of events, which may then affect the court’s ultimate decision in that case. | | | | |
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< | People who do not speak English are not the only ones who are disadvantaged by the language of the American legal system. There are many Americans who speak non-standard dialects of English that have grammatical and lexical systems that are significantly different from those of standard English. Especially considering the fact that speakers of standard English must go to law school in order to understand Legal English, understanding the language of the courts is even more difficult for speakers of non-standard dialects of English, like African American Vernacular English (AAVE). | >
> | Conclusion | | | | |
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< | Rachel Jeantel | >
> | As the United States continues to become more linguistically diverse, the imperfect nature of translation will increasingly disadvantage Americans who do not speak English. Although there may be no comprehensive solution to this issue in sight, it is imperative that everyone who practices the law, including lawyers and judges, be aware that the issue exists. Hopefully, by recognizing the problems that imperfect translation poses, we can more closely perceive the ways in which our current system disadvantages non-English speakers, and we can work towards a better solution in the future. | | | | |
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< | Moreover, this problem can actually go both ways. Just as speakers of AAVE may have additional trouble communicating in the arcane legal register based on standard English, speakers of standard English have also had trouble understanding speakers of AAVE in legal contexts. A troubling example of this was the testimony of Rachel Jeantel during the trial of George Zimmerman for the killing of Trayvon Martin in 2012. (https://news.stanford.edu/news/2014/december/vernacular-trial-testimony-120214.html) Jeantel was a friend of Martin’s and the two had been speaking on the phone before and during the altercation between Zimmerman and Martin. However, the transcribers, attorneys, and jury members involved in this trial had notable difficulty understanding the nuances of Jantel’s AAVE. This lack of understanding, along with centuries of racial prejudice towards speakers of AAVE, may have played a significant role in the jury’s assessment of Jeantel’s testimony, and ultimately in Zimmerman’s acquittal. | | | | |
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< | Conclusion
As the United States continues to become more linguistically diverse, the problem of Legal English will increasingly disadvantage Americans who do not speak standard English. Although translation may provide a partial remedy to this problem in certain situations, it has numerous drawbacks. Hopefully, by recognizing the issues that Legal English poses, we can work towards a more comprehensive solution in the future.
I don't understand the idea behind this draft. Lawyers are the translators between clients and the specialized language and procedures of the legal system. Due process requires the availability of simultaneous translators for criminal defendants who don't speak English, and the US state and federal governments maintain a large service of independent court translators, unique in the world, which you don't mention. US state and federal governments make documents intended to advise or be used by citizens to communicate available in many languages; voting-related materials, for example, are made available in almost 20 languages in NYC. What proportion of the society, regardless of language, could successfully read and comprehend a building code, or the IRC, or a credit card agreement, or the terms of service of a typical social media platform? Linguistic diversity is hardly a new phenomenon in the US, and English is not now, nor has it ever been, the only language used in judicial proceedings here, unlike in most countries where there is an official language. I don't understand why a merely speculative claim that one particular witness in one particular trial "may have" been misunderstood by the jury stands for some larger problem, for which no further evidence whatever is offered. Have we, for example, more reason to believe that jury misunderstanding of local or regional patois is a more frequent problem that misunderstanding of technical language used by witnesses in accident cases, patent cases, medical malpractice cases, air crash litigation, etc?
What would a "comprehensive solution" to the facts of cultural and cognitive diversity in a democracy of 340 million people be based on?
So probably the best route to improvement is to put the next draft in contact with the literature. I'm happy to discuss further particular areas of reading in whatever way is convenient to you; I feel handicapped in making suggestions without more direct conversation.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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