A test passage from a court judgment
When Gabe Bokor suggested that I write an article for the Translation Journal with an analysis of a translation by some of my students, I immediately thought of the bread-and-butter translations we often discuss: divorce decrees, marriage contracts, wills, and other notarial documents. However, the tests I had kept from last year were far too simple to be of much interest to readers whose native language is English: my students (with the very rare exception) are translating out of their native language, and I don’t usually design their tests as nasty traps. So instead, I have chosen the last test of the final year, an extract from a court judgment especially chosen to give practice for the final exam.
Below, I present the German original, my suggested translation (with some variations; written in British English, although I accept US English too), and some comments.
Readers who would like to try the translation for themselves should take the German text and allow themselves up to 90 minutes to translate it into English, without consulting any reference works. It is possible that from 1998 on, bilingual and monolingual dictionaries will be permitted in the final legal or other subject matter (science, technology, economics, or humanities) translation exams, but certainly the bilingual dictionaries will not offer much help. It would be more useful to consult the German Criminal Code.
The college and the students
Some background first: the students who come to our college (Institut für Fremdsprachen und Auslandskunde bei der Universität Erlangen-Nürnberg) are aged between 18 and 65 (okay, 67). Some come straight from school. Some have worked and/or travelled. Not many have a clear idea of what translation is. Some become translators; I imagine nearly all work with English in some way after leaving us, and many do some amount of translation. The course lasts three years; some enter in the second year. It is only in the second and third years that those who choose law as their special subject do English/US law and legal translation. They may do their course in German law, given by a judge or public prosecutor, in the first or second year. Apart from that, they learn about English and U.S. law and the problems of translating legal texts in both directions, and their courses also include written and at-sight legal translation, legal and general interpreting of interviews (and some do consecutive and simultaneous interpreting too), and many general subjects, including typing, word-processing, and computer-aided translation (mainly learning to use a terminology program), general translation, essay-writing, German, and background studies, all amounting to a total of some 35 45-minute classes per week. There are many internal written and oral tests and other forms of marking. The final examination is the Staatliche Prüfung für Übersetzer und Dolmetscher set by the Bavarian Ministry of Culture and Educational Affairs, the examination qualifying translators and interpreters to be sworn at court. Such examinations exist in other German Länder (states), but Bavaria is, as far as I know, the only Land that has colleges preparing for the exam; our college is one of five Fachakademien in Bavaria.
Incidentally, in Britain and the USA, translation courses tend to be postgraduate ones, and I have often read criticism of the German system, where a student might start studying translation at the age of 18 or 19. To me too, it would seem preferable to study a language, spend time abroad, perhaps gain working experience, and ideally learn something about technology, science, economics, medicine, or law before training as a translator. I would counter this argument in two main ways: firstly, many of our students have in fact worked or studied before coming to us, and in Germany there is no tradition of postgraduate courses of this type, simply numerous courses that can be done on leaving school, perhaps one after another. Secondly, I have found equal aptitude or lack of aptitude in students whatever their age or experience. Some of those who come straight from school manage as well as any and obviously gain a great deal from the course.
In the second year, I start legal translation with work on translating fairly simple newspaper texts about criminal proceedings, and a variety of other fairly manageable texts. By the third year, this type of text can be done fluently in at-sight translation. In the third year, one written test is usually a divorce petition or decree or a marriage contract, and the second a will or contract of inheritance (Erbvertrag). It is only in the third and final test that I take something less predictable, as preparation for the final exam. I have no control over the text chosen in the final Bavarian state exam. Sometimes those texts are simple, sometimes they are very difficult, and the typical difficult text is an extract from a court judgment where the details of the events and the names of the parties are omitted and only the difficult parts are given, presumably on the principle that the text must be some form of legalese and that the sentences should present syntactical problems rather than consisting of names and addresses. A further difficulty is that in 90 minutes, the time allowed for a text of 30 lines of from 60 to 65 strokes, it is stressful to work out the details of an appeal decision, where perhaps three levels of courts are tersely referred to. I don’t really condone such a text: I would prefer to give the ‘story’ of the case, even if not requiring it to be translated. But I feel it’s my duty to prepare students for the worst. Nevertheless, I do not choose a text which I think is too hard for the students to learn anything from.
Obviously, a translator confronted with even part of a judgment would want to read the whole document and the relevant statutory provisions. (Indeed, if I were translating this text for someone unfamiliar with the case, I would add a translation of the original German statutory provisions in a footnote). One very unrealistic element of the final examination is that students must work out from a small passage what the comments on the law are without knowing the wording of that law (unless they happen to have learnt about it), and also which courts were involved in a case now under appeal without being able to scan the whole document or read its heading in a legal journal.
Background to the case
This is a case that made newspaper headlines as well as being reported in legal periodicals. Brief reports can be found at http://www.jura-intensiv.de/jurissim/oktober/ju1019.html and ttp://www.alpmann-schmidt.de/rue/straf/nindex.html#4. CompuServe members can, for a few dollars, download an article from the Frankfurter Allgemeine Zeitung (FAZ) in the Newspaper Archives (Martin W. Huff, ‘Der Labello ist keine Waffe,’ 30th or 31st July 1996).
The defendant went into a shop, and, when the sales assistant had her back turned, pressed a lipsalve stick into the latter’s back and ordered her to hand over money. The sales assistant apparently thought the lipsalve stick was a knife, and handed over DM 280. The defendant was tried before the Landgericht, the trial court which deals with more serious criminal matters, and found guilty of a number of offences, including ‘schwere räuberische Erpressung.’ She then appealed to the Bundesgerichtshof, the highest court in Germany, and the conviction was changed to one of ‘räuberische Erpressung,’ that is, a simple, not an aggravated offence.
‘Räuberische Erpressung’ is defined in s. 255 of the Criminal Code and is dealt with in more detail in the translation with commentary below. What would make this an aggravated offence would be the element of the defendant’s having with her a weapon or other instrument or means (‘eine Waffe oder sonst ein Werkzeug oder Mittel’) in order to weaken the victim’s resistance by violence or the threat of violence (this is a simplified summary of s. 250).
Is a lipsalve stick a weapon or other instrument? This seems to be a matter of interpretation. The answer to the question depends greatly on whether one considers the situation from the point of view of the defendant or from that of the victim. According to the FAZ article, volumes have been written on this very question: ‘Über die Frage, was unter einem entsprechenden “Mittel” zu verstehen ist, streiten sich die deutschen Strafrechtler schon lange, üblicherweise mit der Prüfungsfrage, ob der immer mitgeführte Zeigefinger schon das “Mittel” sein könne.’ And the article concludes with the observation that any robbers who arm themselves with a pair of scissors or a knife have only themselves to blame if they find themselves given a harsher sentence: ‘Nur der Dumme wird schärfer bestraft, wie so oft im Leben.’
Approach to translating
There are no additional instructions given with the translation in the Staatsprüfung. But details of the purpose and readership of the translation would be helpful. Is it for a client in Britain or the USA, and if so, how much does that client know about the case—is he or she familiar with the German court system? Is he or she familiar with the case so far? Or is it for an English-language legal periodical? Such information would affect the wording of the translation, the amount of explanation given, the formality of the language. As it stands, the usual practice is to translate into fairly formal legal English, but in such a way that an English reader with no knowledge of German law can understand the text (insofar, of course, as the students themselves understand it).
Original German text
Gründe:
Das Landgericht hat die Angeklagte wegen schwerer räuberischer Erpressung und wegen schweren Raubes in zwei Fällen zu einer Gesamtfreiheitsstrafe von zwei Jahren und vier Monaten verurteilt. Hiergegen wendet sich die Angeklagte mit ihrer Revision, mit der sie die Verletzung sachlichen Rechts rügt.
Das Rechtsmittel führt zur Änderung des Schuldspruchs.
1. Der Schuldspruch hält rechtlicher Prüfung insoweit nicht stand, als das Landgericht die Angeklagte der schweren räuberischen Erpressung nach § 255 i.V.m. § 250 StGB und nicht—wie es richtig gewesen wäre—der (einfachen) räuberischen Erpressung für schuldig befunden hat.
Die Angeklagte begab sich in der Absicht, einen Überfall zu verüben, in ein Geschäftslokal. Als ihr die dort tätige Verkäuferin den Rücken zuwandte, holte die Angeklagte aus ihrer Handtasche einen Lippenpflegestift (”Labello”), trat hinter die Verkäuferin und drückte ihr den Stift in den Rücken. Sie beabsichtigte, bei der Geschädigten die Vorstellung hervorzurufen, mit einer Waffe bedroht zu werden. Die Geschädigte händigte der Angeklagten auf deren Forderung hin Bargeld in Höhe von zumindest 280 DM aus.
2. Auf der Grundlage dieser rechtsfehlerfrei getroffenen Feststellungen hat sich die Angeklagte insoweit der einfachen räuberischen Erpressung schuldig gemacht. Dem Landgericht ist darin zu folgen, daß in dem Vorgehen der Angeklagten gegen die Geschädigte die konkludente Drohung lag, sie niederzustechen, falls sie sich der Forderung nach Herausgabe von Geld widersetzen sollte.
Damit hat die Angeklagte die Voraussetzungen der räuberischen Erpressung erfüllt.
Dagegen trifft die Auffassung des Landgerichts nicht zu, die Angeklagte habe unter den Voraussetzungen des § 250 Abs. 1 Nr. 2 StGB gehandelt. Der von der Angeklagten verwendete Labellostift war keine “Waffe oder sonst ein Werkzeug oder Mittel” im Sinne dieser Vorschrift.
BGH, Beschluß vom 20. Juni 1996
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Suggested English translation
Grounds/reasons:
The Landgericht (Regional Court)1 found the defendant guilty of aggravated extortionary robbery2 and of two offences of aggravated robbery and sentenced her to a total of two years’ and four months’ imprisonment. In her appeal (on points of law / to the Federal Court of Justice), the defendant challenges this conviction3. She submits4 that the court of first instance /trial court made an error in substantive law5.
On appeal, the conviction6 is amended as set out below. /The appeal results in a change in the conviction.
1. The conviction does not stand up to legal examination7 insofar as8 the Landgericht found the defendant guilty of aggravated extortionary robbery under s. 255 Criminal Code9 in conjunction with10 s. 250 Criminal Code11, and not—as would have been correct—of simple12 extortionary robbery.
The defendant entered a shop/store13 with the intention of carrying out a robbery. When the sales assistant / clerk /shop assistant who was working there turned her back on the defendant, the defendant took a lipsalve stick / chap stick /lip balm stick (brand name Labello) from her handbag, walked up behind the sales assistant and pressed the stick into her back14. She intended to give the victim15 the impression that she was being threatened with a weapon16. At/upon the defendant’s request, the victim handed to the defendant cash in the amount of at least DM 280.
2. The Landgericht established these facts17 without an error of law. On the basis of these facts, the defendant committed simple extortionary robbery18. The Landgericht is correct in its conclusion that the defendant’s behaviour towards the victim implied19 a threat to stab her if she did not comply with the demand20 to hand over money.
This behaviour on the part of the defendant fulfils the elements of extortionary robbery/ By acting in this way, the defendant satisfied the definition / requirements21 of extortionary robbery.
However, the Landgericht is in error when it concludes that the defendant acted in such a way as to fulfil the elements of s. 250 (1) no. 2 Criminal Code22. The lipsalve stick used by the defendant was not a ‘weapon or other tool or means’ within the meaning of this section.
Federal Court of Justice, Decision23 of 20th June 1996
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Commentary
In the following, I comment on the students’ translation problems and problems that might be of interest to readers of this article. At the end, I summarize the students’ problems, and finally I turn to the vexed question of assessment of translation tests.
1. Landgericht: The German Bundesjustizministerium recommends translations into English, French and Spanish of the names of the most important German courts. A list can be found at Per N. Dohler’s website at http://triacom.com/archive/courtterms.de.html. That list is described as a recent one, but it bears no date; I was given a copy of it when I was sworn at the Landgericht Nürnberg-Fürth in 1987. The suggestion is made that the original German name should be given in brackets; I prefer to use the German name and give the English name in brackets. The disadvantage of the latter method is that whereas in ‘Local Court (Amtsgericht)’ the word ‘Amtsgericht’ is a full definition of the invented English label ‘Local Court,’ in ‘Amtsgericht (Local Court)’ the reverse is not true.
Does ‘Local Court’ mean anything to anybody? Well, one of its advantages is precisely that it is not the name of a real court in Britain or the USA. ‘Local court’ also sounds like the lowest level of court (although conversely one could argue that if I live in Westminster, my nearest local court may be the House of Lords).
As for ‘regional court,’ that certainly sounds like a more important court when set beside ‘local court.’
It is customary to write ‘Federal Court of Justice’ without giving the German ‘Bundesgerichtshof.’ The word ‘federal’ here means that there is only one such court in the Federal Republic of Germany; but American readers might read ‘federal’ differently, as implying that, just as in the USA, there are federal and state laws in Germany: is that a problem? These are all decisions for the translator, and I try to bring the students to make their own decisions, though sometimes I feel they want to be told there is a black-and-white answer. The Bundesgerichtshof is sometimes translated as ‘German Supreme Court,’ but I object to this because it overlooks the existence of the Bundesverfassungsgericht (which I call the Federal Constitutional Court, not usually bothering to add the German), the court that deals with judicial review under the Basic Law.
I do use the terms recommended by the Bundesjustizministerium myself, since I find them the least of a number of evils. I would accept alternatives too, for instance in US English ‘Superior Court’ or ‘District Court.’ I would accept ‘court of first instance’ and ‘trial court’ too, in the current context. A more precise generic term, such as ‘court of first instance for more serious offences (and civil disputes with a higher amount in controversy)’ would be rather long-winded. As for the equivalent in England and Wales (the term ‘English’ in the following is an abbreviation for ‘English and Welsh,’ referring to the jurisdiction where I trained as a lawyer), ‘Crown Court,’ I would accept it, but with strong reservations: for one thing, I don’t like to use the term ‘crown’ when translating from German.
2. ‘Räuberische Erpressung’ is difficult to translate. The system of the Criminal Code is as follows: Section 20 of the Criminal Code is headed ‘Raub und Erpressung,’ and the individual offences are ‘Raub,’ ‘Schwerer Raub,’ ‘Raub mit Todesfolge,’ ‘Räuberischer Diebstahl,’ ‘Erpressung’ and ‘Räuberische Erpressung.’ The sentence for the last offence, depending on whether it is a simple or an aggravated case, is the same as that for robbery and aggravated robbery, and what distinguishes the ‘schwere räuberische Erpressung’ in this text from ‘räuberische Erpressung’ is what distinguishes ‘schwerer Raub’ from ‘Raub’: whether ‘der Täter...eine Waffe oder sonst ein Werkzeug oder Mittel bei sich führt, um den Widerstand eines anderen durch Gewalt oder Drohung mit Gewalt zu verhindern oder zu überwinden.’ ‘Räuberischer Diebstahl,’ incidentally, is committed by using violence to keep hold of property one has just stolen. What makes this act by the defendant ‘räuberische Erpressung’ rather than ‘Raub’ is the fact that, rather than taking the money, she forced the victim to hand over the money. ‘Räuberische Erpressung’ also covers acts such as obtaining ransom money after a kidnapping.
Of course, to the common-law mind, the situation sounds like robbery rather than extortion. Still, I would prefer to translate a criminal offence by a term that is appropriate for the German definition of the offence and is also comprehensible to an English reader. Occasionally, when the translator is confronted with such an unfamiliar term, it will seem more appropriate to translate it in various ways depending on the context (the various forms of ‘Beleidigung’ are an example of this).
I have chosen ‘extortionary robbery’ here. That does actually sound better to my ears in English, although it is not satisfactory, since the German offence emphasizes extortion rather than robbery. But in any case, we have no adjective from ‘robbery,’ so the option of writing ‘robberlike extortion’ seems excluded (I reject the word ‘robberlike’ on stylistic grounds). I would be very generous in what I accept from the students in a situation like this, where they do not even have the Criminal Code to consult. But what do dictionaries and other sources suggest? Romain gives ‘robbery by blackmail, larceny by extortion (threatening to inflict bodily harm), demanding with menaces (involving danger to life and limb).’ Dietl does not have the term, at least in the edition I have. Von Beseler/Jakobs-Wüstefeld has ‘extortionary robbery, larceny by intimidation.’ The US Forces translation of the Criminal Code does in fact have ‘robberlike extortion.’ The Harfst translation of the Criminal Code has ‘extortionary robbery.’
Why do I not like the word ‘blackmail,’ although I would accept it in a student’s translation? I am obviously not alone in this preference. Its definition in current English law certainly involves financial gain or loss, just as that of extortion does, or that of ‘Erpressung’ in German. I think the reason is that, in everyday English, ‘blackmail’ is commonly used to refer to getting payment from someone under threat of revealing nasty secrets about that person. The word ‘extortion’ is less often encountered outside legal texts. (The original meaning of blackmail was rent paid in the form of work, cattle, or money other than silver, silver being ‘white’ money).
Students had ‘blackmailing robbery,’ ‘blackmail for money’ (the idea of robbery is missing there), and ‘blackmail with the intent to robbery’ (I don’t like the ‘intent’).
3. One student translated ‘hiergegen’ as ‘thereupon.’ Even if this were the correct word, I would avoid this kind of usage in a translation, and in a judgment. Words such as ‘wherein,’ ‘hereto,’ and ‘hereinafter’ perhaps have their place in contracts or deeds.
4. The students were not familiar with ‘rügen.’ One translated it as ‘reprimand.’ I don’t think there’s any given term of art in English law that corresponds to it. Leaving aside the ‘Mängelrüge’ in sales of goods, the term ‘Rüge’ normally means a point on which an appeal is based. In any case, this is clear from the context here. Of course, ‘eine Verletzung sachlichen Rechts rügen’ means the same as the more commonly encountered ‘eine Sachrüge.’ Incidentally, this is one of those words where the bilingual dictionaries are not helpful. At least Romain has it (‘assignment of error concerning substantive law’), but his suggestion is rather clumsy. ‘Sachrüge’ could also be translated as ‘point of law appealed against’ (US ‘point of law appealed’). A variation for the present text might be: ‘The defendant’s appeal is based on an error in substantive law that she claims was made by the Landgericht.’
5. Substantive law is usually ‘materielles Recht’ in German. The students are familiar with a party winning a case ‘in der Sache’ meaning ‘on the merits,’ as opposed to on a technicality. However, three of them translated this as ‘material law,’ and one as ‘formal law,’ that is, using a false friend for the other German term, and two omitted it altogether.
6. What was altered on appeal was the offence of which the defendant (or appellant) was convicted. I never like ‘verdict,’ which one student used, as a translation from the German, since a verdict means the decision of a jury, which may be a conviction, a sentence, an award of damages, or something else. And to write ‘the judgment is amended’ misses some of the meaning, although of course that meaning is filled in by the rest of the text.
7. This proved difficult. I did not accept ‘the judgment is unlawful,’ nor ‘did not stand up to judicial review.’ The latter is almost acceptable, but I fear that in US readers it evokes the suggestion of the review of administrative action in the light of the Constitution, and in England and Wales it recalls the prerogative orders applied for at the Divisional Court of the Queen’s Bench Division. So this is an example of the need to know the legal terminology of both the source and the target jurisdictions, to avoid using a term that is already a term of art in the target language.
8. ‘Insoweit’ carries the meaning that the judgment was satisfactory except in this one respect. One student rendered ‘insoweit’ as ‘as,’ possibly not even intending to evoke the idea of causation automatically given.
9. In the USA, one would write ‘under § 255 Criminal Code,’ reading the § symbol as ‘section,’ rather than the German ‘Paragraph.’ The § symbol is not used in British English. I prefer ‘under’ for ‘nach’ here. There is a tendency for students to write ‘in accordance with.’ This might be used if a particular series of actions are to be carried out as laid down by a statute, but often, as here, that is not the case. As for the almost more popular ‘according to,’ I reject this altogether. Other possibilities are ‘within the meaning of’ and ‘as defined by.’ There are occasions in criminal law where ‘nach’ can be rendered by ‘in contravention of (s. 250)’: this would work here too.
10. ‘i.V. m.’ stands for ‘in Verbindung mit.’ The reason for this, unknown to the students, is that ‘räuberische Erpressung’ is defined in conjunction with ‘Raub,’ and ‘schwere räuberische Erpressung’ with ‘schwerer Raub.’ Two unsatisfactory student versions were ‘in comparison with’ (which should be ‘im Vergleich zu,’ not ‘mit’) and ‘in accordance with.’ Several students were therefore unable to guess what should from the context be a fairly straightforward abbreviation.
11. I would write ‘Criminal Code’ for StGB. If the abbreviation is to be repeated hundreds of times in a text, I would use the German abbreviation, but on its first occurrence I would add the full German form in brackets: ‘Strafgesetzbuch,’ thus explaining how the abbreviation is formed. I do not like to see the bare ‘StGB’ in the middle of an English text. Nor do I like an abbreviation such as ‘CC’ or ‘CrimC,’ which I have seen in print. In the last instance, it is to the German Code that the reader must turn, so the German abbreviation is the right one. It doesn’t help anyone if the translator invents an English abbreviation.
12. As it happens, we do say ‘simple’ for ‘einfach’ here. The context should make it quite clear to a reader of the German text that the contrast is between an offence and an aggravated offence. One student rendered it as ‘in one case,’ but again, a reading of the text shows that cannot be the meaning.
13. The word ‘Geschäftslokal’ is not a common German word. It appears to mean a shop, which is normally ‘Geschäft’ (‘Lokal’ on its own is a pub, bar or restaurant). The summaries of the case and newspaper reports almost exclusively take this rare word from the judges, but one of them does use the word ‘Ladengeschäft.’ The students were excessively irritated by this term, and it was one of the reasons why they didn’t like the text. But it is a truism to say that original texts are often odd, and translators have to learn this fact of life.
14. This passage was hard for those without absolutely fluent English to render. Suggestions included ‘She pushed her the lipstick into the back,’ and ‘she put a lipcare stick out of her handbag.’ The word ‘Lippenpflegestift’ was perhaps too long for the judges or too unfamiliar to them, and they decided to use the brand name ‘Labello’ throughout. I would not be inclined to use the British equivalent (‘Lipsyl’), which is inaccurate, since we are in Germany, but I wouldn’t mark it as a mistake. The German word ‘Labello’ does not help the English reader particularly. Incidentally, care must be taken to distinguish the two women. Rather than writing ‘she’ and ‘her’ all the time, the noun ‘shop assistant’ or ‘victim’ or ‘defendant’ can be repeated. In legal texts, the need for clarity overrides the need to avoid repetition.
15. ‘Die Geschädigte’ is one of those flexible German words so common in legal texts, like ‘der Täter,’ that need careful handling in English. I had often pointed out in class that an English book might write ‘the defendant’ or ‘the plaintiff,’ as the case might be. In this case, one might well say ‘the shop assistant.’ One person actually wrote ‘the defendant,’ but then, realizing her mistake, altered it to ‘the prosecutor,’ which was perhaps the most egregious mistake of all. I did not like ‘the injured woman.’ It is not natural English, and I prefer to reserve ‘injured’ for someone who has been physically injured or whose reputation has been harmed. (In the case of a car accident, the translation might be ‘the person who suffered loss and/or damage.’) But it’s more natural to write ‘the shop assistant.’ In addition, the woman had not yet been ‘injured’ in any way at the moment referred to: whereas in English we accept ‘the defendant went into the shop,’ although at that moment in time she was not yet a defendant, it sounds odd to say ‘the injured woman was hit by a car.’ Another problem word in some cases, by the way, is ‘der Gegner’ in a car accident (‘the other driver’ rather than ‘the opponent’).
16. One student translated ‘Waffe’ as ‘firearm,’ which doesn’t make sense in the context of the victim’s fear that she might be stabbed, mentioned later in the text.
17. Most students did not realize that what was being referred to here was facts. The suggestions ‘decisions,’ ‘conclusions,’ and ‘statements,’ however, make little sense in context.
18. I could have left the sentence as one rather than splitting it and using the unsatisfactory repetition of ‘these facts,’ but I think ‘The Landgericht established these facts’ is how an English text would be worded.
19. The students should have been familiar with the word ‘konkludent’ from contract law, where it is one of the ways of referring to implied terms. It is rather like the English legal word ‘constructive’ in some ways. This is another example of a case where the students do not have enough practice with German legal terms, unless they come up in English-German legal translation classes. They are taught German law by a German lawyer, and they do not think enough about the language aspect. I have resolved to have a ‘word of the week’ in future, after experiencing their confusion in a previous exam about ‘Rechtsprechung’ (even a dictionary suggests ‘jurisdiction’ as a translation; the main problem, however, is that the word is not really familiar to them in German). ‘Concludent’ is a very optimistic translation encountered here.
20. One student translated ‘Forderung’ as claim, which probably indicates lack of easy familiarity with German as well as English legal terminology.
21. In English, we speak of the elements or definition of a criminal offence. I am not quite happy myself with ‘fulfilled the elements.’ To write of satisfying the ‘provisions’ is not correct, in my view.
22. There is an argument for leaving the full citation of the Code in German, so that it can be looked up in a German copy. I don’t usually do this. For one thing, the cite is in the body of the text, not in a footnote; in addition, even in a footnote, no-one is going to have great difficulties identifying the Code or the part of the text referred to, and in any case, there are English-language versions of the Criminal Code to which the reader might theoretically turn.
23. ‘Beschluß’ is often translated as ‘order.’ The difference between ‘Urteil’ (judgment) and ‘Beschluß’ is that the latter is simpler and briefer. Since this particular text is from a final decision of the highest court in Germany, I think that ‘decision’ is the right choice. However, I accepted ‘order’ from the students.
The main problem with the students’ translations was their concentration on individual items of vocabulary, rather than on the text as a whole. Of course, it can be difficult in an exam situation to read a text attentively and derive all the possible aid from the context, but this is an important part of what is tested.
Problems of assessment
Having considered a text that was used as a test, I want to make a few final remarks about marking, which is a huge and complex matter.
Some translators believe that it is impossible to judge a translation objectively, and I agree with them. I have few problems marking a school test, but I know my marking is quite subjective, and I also know that students might do much better (even by my subjective standards) in other circumstances: with reference works, at home, for monetary reward, so I may be giving low marks to someone who is a promising translator.
However, it is part of my job to mark tests, and I do so.
What kinds of ‘errors’ (I put the word in inverted commas to indicate it is problematic) arise?
Firstly, nearly all my students are native speakers of German - all were, in this case. They make grammatical and vocabulary errors. Thus, the present perfect was used by some at the beginning of the text (although I do make a point of discussing the tenses used in judgments, and they should know that the decision of the lower court is normally in the simple past tense). I have already given some examples of bad translations of the part of the text where the defendant pushed the lipsalve stick into the victim’s back. Other general English errors: ‘It can be agreed with the court that...,’ and ‘as it would have been right’ (for ‘as would have been right’). I use a red pen on all these mistakes, but I do not take them much into account when giving a final grade unless they confuse the reader or unless there are a great number of them.
A second type of problem is omission of a word or sentence. Sometimes a good translation really should omit something from the source text, but sometimes not. For example, I regard the omission of ‘sachlichen Rechts’ for ‘substantive law’ as an omission of part of the meaning. Even if it becomes clear later in the text that the appeal was based on a point of substantive law, there has still been an omission of something that would help the reader at that earlier point. I also regard the loose translation of ‘Schuldspruch’ as ‘decision’ as an omission of part of the content. Other phrases might well be missed out: ‘hiergegen wendet sich,’ ‘dort tätige,’ or ‘insoweit’ (on its second occurrence, in the fifth paragraph), for instance. I have no qualms in calling the first kind of omission an error. But it is a subjective judgment as to what should be missed out and what not. However, it is my right as a teacher to mark according to my own notions, and I have many colleagues who all mark according to their notions: perhaps this may be considered as evening out the chances. I recall a big problem with a colleague who required ‘Ärztin’ to be translated as ‘female / woman doctor’ in a text where there was no other information to indicate the doctor’s sex. She took marks off for an omission, and the class objected. I disagree with this colleague’s judgment: ‘woman doctor’ in that context was not natural English, so calling this a mistake goes against everything I think translators should learn. Nevertheless, the system we have gives the individual teacher the right to mark as she wishes. Nor is there any objective standard to say my colleague was wrong and I am right.
Again, students sometimes miscopy figures or dates. I regard this as a serious mistake, and I think it is very fair marking policy to take one or two points off for this. But at a marking discussion we had a few years ago, it was suggested that a mistake in a translation should be defined as serious only if it prevented the reader from understanding something. At least one of my colleagues suggested that if a student writes ‘Mrs. Smith is now 40. She was born on 23rd December 1997,’ the date ‘1997’ should not be treated as a serious mistake, since the reader can tell immediately that it was a slip. However, I prefer to punish the student who seems unreliable. Nevertheless, I know from my own experience that I make mistakes myself, and so it could be argued that I should not treat so harshly a matter that would be corrected in good translation practice when the text was copy-edited by a second translator. (We discourage our students from copy-editing each other’s work in tests, although they have a healthy desire to assist each other - and to be assisted).
My grades were largely based on the number of mistakes in the use of legal language, or on mistakes that meant the text would not be understood by the reader. I put crosses in the margin to indicate these. Thus, looking at the ‘best’ piece of work, I find it has three little crosses in the margin: ‘judgment’ instead of ‘conviction,’ ‘injured woman’ for ‘Geschädigte’ (after all, we had discussed this more than once in class), and ‘claim for money’ instead of ‘demand for money’ (which is quite comprehensible to a reader, but displays misuse of legal terminology). Looking at one of the less successful translations, I find eight crosses: ‘a total life imprisonment of two years and four months,’ ‘judgment’ for ‘conviction,’ ‘according to s. 255 in accordance with s. 250,’ ‘injured person’ for ‘Geschädigte,’ ‘concludent’ for ‘konkludent,’ ‘under the conditions of s. 250’ instead of ‘elements,’ ‘s. 250 article 1 number 2,’ and ‘regulation’ for ‘Vorschrift.’
This is just to illustrate how I marked. Others may well disagree with me. But some of the lesser problems, such as ‘regulation,’ were matters we had discussed in class. I am therefore requiring students to learn something from lessons. I wouldn’t call ‘regulation’ a big mistake if it hadn’t come up in class several times, nor would it affect the grade if it were an isolated mistake in an otherwise very good piece of work.
Another problem with marking is that I have tended to give the highest marks to the work with fewest errors. I would probably have achieved the same result had I given plus points for good ideas, and that sounds like better teaching practice from a psychological point of view. I have to admit I find it very difficult to work out a full set of plus points for a given text. I sometimes try to change my marking in this direction, but I am never satisfied. Possibly there is some simple solution to the problems raised by setting off minus points against plus points which has so far escaped me.
However much people disagree about how to mark a student’s work, it tends to be easier to make a decision when confronted with a pile of translations. Take a piece of work in fluent English with few non-native expressions and showing knowledge of legal terminology, and put it beside one with numerous errors in grammar and syntax and three or four omissions, and it is not hard to choose one as better (always in my own subjective opinion) than the other. There are also students who fail to understand nuances of the source text which most of the rest did understand.
However, this discussion barely scratches the surface of marking problems and the teacher’s subjectivity. Most of my tests are easier to prepare for than this, because the subject matter is known to be marriage and divorce, or wills and succession, and we have practised in class. I hope that students can obtain reasonable marks when they translate out of their native language, and that they enjoy the classes and learn from them. It is also necessary for the marking system to be accepted by the class as broadly fair, and I find that is the case with my emphasis on legal terminology.
Then again, the ‘best’ students, who are able to draw conclusions as to the meaning of ‘Feststellungen,’ have derived this ability from translating earlier legal texts (in fact, it is interesting how good they become after relatively few tests or homework assignments), but they have not learnt it from me. At most I may have suggested to them ways of thinking that made sense to them at that particular time. What about the student who works very hard, learns everything, and still fails to apply it because she lacks some sense of what translation is about? The answer is: that student doesn’t get a very good mark. Is this fair? Is life fair?
Legal translation is a fascinating school subject, despite or perhaps because of the basic untranslatability of legal texts (the legal concepts of one jurisdiction do not correspond to those of another), because nearly every suggestion of a better version is based on considerations of meaning rather than style. We are not saying ‘You need a slightly different shade of meaning in this adjective,’ but ‘You shouldn’t translate “Urteil” as verdict here, because there is no jury /you shouldn’t translate it as “conviction,” because this is referring to a prison sentence / divorce decree / a judgment.’ Thus in my experience, we get to grips fairly early with some of the fundamental questions that ‘real’ translators grapple with every working day of their lives.
WWW links
There are links to various US judgments inter alia at http://www.ljx.com, and to House of Lords judgments at http://www.parliament.the-stationery-office.co.uk/.
There is a copy of the German Criminal Code (in German) at http://sunsite.informatik.rwth-aachen.de/Knowledge/germlaws/index.html
Bibliography
Here are two translations of the Criminal Code to which I refer, and the latest editions of the German-English legal dictionaries I mention (although my edition of Dietl is not the latest).
USAREUR Pamphlet 550-19/USAFE Pamphlet 3-16, 7 March 1985 (further details unknown).
Harfst, Gerold and Schmidt, Otto A., German Criminal Law. The Criminal Code. The Narcotics Law, Harfst Verlag Würzburg 1989 (ISBN unknown).
Romain, Wörterbuch der Rechts- und Wirtschaftssprache Teil II Deutsch-Englisch, Beck Verlag Munich 1994, ISBN 3-406-35826-5.
Dietl/Lorenz, Wörterbuch für Recht, Wirtschaft und Politik Teil II Deutsch-Englisch, Beck Verlag Munich 1992, 3-406-36654-6.
von Beseler/Jacobs-Wüstefeld, Law Dictionary, German-English, Walter de Gruyter 1991, ISBN 3-11-010716-3.
© Margaret Marks 1997
The author can be reached at
100073.2047@compuserve.com or
margaret.marks@rzmail.uni-erlangen.de
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