Every so often I come across someone else in the Netherlands who is also quite experienced in assisting Dutch legal professionals and also quite confident of their positions on legal terminology, grammar, good legal style, and so on. They may not have the same qualifications or background that I do, but they have obviously considered some of these issues carefully and have also developed reasoned positions about them.
In this situation, comparing notes is a fascinating exercise. We seem to agree on most things — but we don’t always agree on everything. If that person also happens to be (like me) an English-speaking lawyer with decades of experience assisting Dutch lawyers in the Netherlands, it’s particularly difficult to dismiss his or her views. I listen carefully and try to understand the nature of our differences.
Everyone has been through this experience, I think. For example, despite initial doubts, I have long conceded that the best translation of artikel is “article”. However, I still regularly come across lawyers, trainers, editors and translators who prefer the more British word “section”. So in this country we find ourselves in a strange position: half of us use “article” and the other half use “section”. This is not a minor point because this word appears in almost every bit of legal work produced.
Mostly, I attribute this to the fact that English is a big messy language with a number of inherently difficult points. Even the experts don’t agree on everything. Also, translation itself is a dark art rather than an exact science.
Not just different views, but different approaches
However, I’ve also noticed that sometimes experts dont just disagree with each other; they have completely different approaches. It’s not just a technical point that we don’t agree on—our basic principles seem to differ.
For example, a basic terminology translation guideline is that a civil-law term without a common-law equivalent should be translated as a different civil-law term. However, quite a few of us do not put that into actual practice. The Dutch civil-law concept of erfpacht is often translated as “leasehold”, even though “leasehold” is a different common-law concept. The correct civil-law term emphyteusis is simply rejected by most.
The Dutch legal community is quite inconsistent about how it translates erfpacht. This Dutch legal term is consistently translated in four completely different ways—”leasehold”, “ground lease”, “long lease” and “emphyteusis”! I have occasionally presented this issue to groups of Dutch lawyers as an exercise and asked them to decide which translation should be used. Each class is divided into four camps, each preferring one of the current translations!
This preference for common-law terms is found at the highest levels and, if challenged, may even be vigorously defended. Many of us are simply uncomfortable using unfamiliar civil-law terms. Part of the problem here of course is that some Dutch lawyers think the English term used does not really matter. To them, it’s the underlying Dutch word that matters. So they would prefer to use a term that placates their English-speaking colleagues. Another part of the problem is that many English speakers working in this area are not lawyers and don’t really notice the problem.
Need for consensus in five areas
However, this is just one example of our need for common approaches. I’ve noticed that there are five areas of concern: (1) the official status of English; (2) quality control; (3) identification of the authorities that we can all rely on when it comes to the use of English in the Netherlands; (4) the infrastructure for Dutch legal work produced in English; and (5) the powerful influence of the British and American legal worlds.
- Isn’t English a de facto legal language in the Netherlands?
- When Dutch lawyers work in English, is English merely a “code” for the underlying Dutch?
- How do we maintain the quality of English used by the legal community in the Netherlands?
- What is our quality standard?
- Who is authoritative when it comes to issues relating to legal English in the Netherlands?
- To what extent can non-English-speakers (i.e. Dutch speakers) be involved in the infrastructure and quality control system for legal English in the Netherlands?
- What process is in place to deal with finding consensus on difficult terminology?
- Do we foster separate Dutch civil-law conventions or should we try to use legal language that is as close as possible to American or British legal language?
- How important is it that British or American lawyers not familiar with civil-law concepts are able to understand easily what we write?
- Do we prefer American legal English or British legal English? Or do we join in fostering a common European English?
There is a need to revisit some of these basic principles. The current system is somewhat unregulated and chaotic. While some of us can speak with more skill, experience and authority, everyone in the field is picking and choosing their own way through the rubble. As a legal community committed to working well in English, what we need is some kind of consensus on the right approaches.
Greg Korbee (Originally published July 2014. Republished March 2019.)
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