The legal Drafter is a Layperson or a Lawyer? Does it Matter?
Fathi M. A. Ahmed
The article, originally written in Arabic, delves into the unique linguistic intricacies of legal terminology, exploring how certain words or phrases take on specific meanings within the legal field. It draws attention to how these meanings may differ from their use in other contexts, exemplified by the English word "assignment." In common usage, "assignment" might refer to a task, particularly in an educational setting, but within the legal domain, it signifies "transfer of rights or property to another party." This distinction illustrates the challenges faced by translators and legal professionals when interpreting and using such terms. In Arabic legal language, similar issues arise, such as the term "أجنبي" ("ajnabi"), which carries a different connotation in Islamic law compared to its general legal meaning.
Two Types of Legal Terminology
The article classifies legal terminology into two categories:
Commonly Known Terms: Words like "lease," "owner," "tenant," and "court" are easily understood by the general public.
Specialized Terms: Terms such as "عارية الاستعمال" (loan for use) are more complex and are typically only comprehensible to legal professionals.
This classification underscores the importance of understanding and accurately interpreting legal terms to ensure clarity and precision in legal documents.
Interpretation of Legal Terminology
The article emphasizes the distinction between lexical meaning and technical meaning. In academic and legal writings, it is common to differentiate between these meanings before discussing a topic, particularly in fields like jurisprudence, where the technical meaning often dictates the interpretation of legal rules. This distinction is vital because it ensures that the legal terms are understood within their proper context, avoiding misinterpretations that could lead to significant legal consequences.
Challenges in the Use of Legal Terminology
The article discusses how legal professionals often use terms with specific legal definitions, while non-lawyers may use these terms based on their common, non-technical meanings. A significant example is cited from the 1881 British court case Holt v. Collier, where it was ruled that when a word with a legal meaning is used in a legal document, it should be interpreted according to its legal definition, provided that the document's drafter is a legal professional. If the drafter is not a legal professional, the court might interpret the term differently.
The article also provides an example from Egyptian civil law, where the term "عقار" (real estate) might be interpreted differently depending on the drafter's expertise. For instance, in a will, if the drafter uses "عقار" to refer to buildings alone and not land, and it is clear that the drafter is not a legal professional, the court might limit the interpretation to buildings only.
Translation of Legal Terms Based on the Drafter’s Expertise
The article outlines a general rule in legal translation: legal terms should be translated as they appear in the source text unless there is a clear linguistic error. However, if the translator knows that the document was drafted by a non-specialist, the translation might need to reflect that context. For example, in the case of "personal estate," if the drafter is not a legal professional, translating it as "أموال شخصية" (personal property) might be more appropriate than "أموال منقولة" (movable property).
The translator is advised to assume that the drafter is a legal professional unless proven otherwise. The article suggests that if the translator is uncertain, consulting specialized legal dictionaries, such as Black’s Law Dictionary, is essential to ensure the accuracy and appropriateness of the translation. This approach provides the translator with a robust defense against potential legal or professional challenges.
Conclusion
The article effectively highlights the complexities involved in the use and translation of legal terminology. By providing concrete examples and detailed analysis, it underscores the importance of understanding the context in which legal terms are used. This ensures that both legal professionals and translators can accurately interpret and convey the intended meaning, maintaining the integrity of legal documents.
Disclaimer: This analysis has been generated by an AI tool and has undergone light revision. While efforts have been made to ensure accuracy and coherence, it is recommended to independently verify any critical information or insights before relying on this analysis of the original Arabic article.