Legal English and Non-Speakers of Standard English

-- By NoahJoseph - 24 Feb 2021

Introduction

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.

Language in American Courts

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.

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.

Imperfect Translation

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.

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.

Conclusion

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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