The special use of “shall” in legal texts

Translating legal texts is challenging for a number of reasons. Cao (2007) explains that in general, the complexity and difficulty of legal translation is attributable to the nature of law and the language that law uses, and the associated differences found in intercultural and inter-lingual communication in translating legal texts.

Long and complex sentences as part of legal texts’ characteristics require deep understanding and analysis. Misinterpretation may lead to a fatal error in legal translation. Knowledge and experience in translating legal texts are greatly needed to produce the best results. In translating legal documents, the translator should understand the characteristics of legal texts as well as be able to adapt the legal style in translations into English of legal documents.

Apart from the grammatical and syntactical difficulties, the translation of modality is very important. One of the special modality markers in legal texts is “shall”. This modal is widely used in legal texts and pure statistics show the significance of ‘shall’ as a marker of legal language.  The infrequency of ‘shall’ in ordinary language is owing to the fact that ‘shall’ is considered a now unpopular word or old-fashion in modern English. However, its abundant occurrences in legal genre indicate that this modal is a favourite of legislators and lawyers. The special use of ‘shall’ in legal texts is to express the imperative. It is not used to denote future tense but rather to impose rights and obligations. Look at the following example, the word ‘harus’ may be translated into ‘shall’ which functions to impose rights and obligation.

Bahasa Indonesia (SL)

English (TL)

Direksi harus menentukan harga saham-saham yang akan dikeluarkan serta syarat-syarat Iainnya yang dianggap perlu.  The Board of Directors shall determine the price of the shares to be issued and other terms deemed necessary. 

 However, in the following example, using the simple present tense instead of a modal verb structure would change nothing, apart from the “legalistic flavour” of the text.

Bahasa Indonesia (SL)

English (TL)

Perseroan berkewajiban untuk mengadakan dan menyimpan Daftar Pemegang Saham dan Daftar Khusus di tempat kedudukan Perseroan. The Company shall keep and maintain a Shareholder Register and Special Register at the domicile of the Company. 
Perseroan berkewajiban untuk mengadakan dan menyimpan Daftar Pemegang Saham dan Daftar Khusus di tempat kedudukan Perseroan. The Company is obligated to keep and maintain a Shareholder Register and Special Register at the domicile of the Company.

Hovels (2004) states that whether or not the “shall” should be used in legal style, is probably a matter of taste.  Following recommendations on how to use ‘shall’ in legal contexts by Dick (1985) are very helpful for translators. Dick (1985) recommends that the following rules be followed in this context:

1.     Use the present tense after the word “if”.

       Do not write: “If it should appear to the tribunal.”

       Write instead: “If it appears to the tribunal.”

       Do not write: “If the basis of computation of the said index shall have changed…”

       Write instead: “If the basis of computation of the said index has changed…”

2.       Use “shall” only for the imperative and use “may” as permissive.

“The directors may call general meetings and, on the requisition of members pursuant to the provisions of the Act, shall forthwith proceed to convene an extraordinary general meeting for a date no later than eight weeks after receipt of the requisition.”

3.     Use present tense in definitions instead of “shall”

Do not write: “Death taxes shall mean taxes imposed on….”

      Write instead: “Death taxes mean taxes imposed on….”

      Do not write: “In this contract the Territory shall mean…..”

      Write instead: “In this contract the Territory means…..”

4.     Avoid using a negative subject with an affirmative “shall”  

           Do not write: “No executor shall dispose of….”

          Write instead: “No executor may dispose of …..”

Finally, we hope that this article is helpful for translators, especially new legal translators.

Article by Luh Windiari

P.S. This articled is also posted on http://www.translationpapers.com

References

Cao, Deborah. 2007. Translating Law. Toronto: Multilingual Matters. Ltd.

Hovels, Jens Peter. 2004. Characteristics of English Legal Language.

Windiari, Luh. 2012. Modalities in Indonesian Legal Texts and their Translation into English.

Contact us at: info@translationpapersbali.com

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