Terminology Sources: “Legal Language” by Peter M. Tiersma

For anyone interested in Legal English, Peter Tiersma’s book on “Legal Language” (University of Chicago Press, 2000) is an absolute must. After tracing the origins and development of Legal English (providing sample texts in Anglo-Saxon and Law French), he then examines the nature of legal language as used by both lawyers and in the courtroom. Another remarkable source of information on legal language is the late Professor Tiersma’s webpage, part of which is still maintained and made accessible to the general public by the Loyola Law School of Los Angeles (http://www.languageandlaw.org/).

Mistranslations? cuantía del litigio

Cuantía del litigio and similar expressions such as cuantía de la demanda denoting the valor del objeto del proceso have sometimes been translated literally as “amount of the claim,” “amount claimed in the complaint,” or “amount of the litigation.” But in US civil procedure there are specific terms that express this concept including “amount in controversy” and “jurisdictional amount,” both of which denote the monetary amount claimed in a lawsuit that often determines which court will have jurisdiction to hear a given case. In this context an expression such as competencia por razón de la cuantía refers to “jurisdiction based on the amount in controversy.” Cuantía was likewise used in this context in the former Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil de 1881) in expressions such as juicio de menor cuantía (“small claims action/proceeding”) and juicio de mayor cuantía (“large claims action/proceeding”). In British English the amount in controversy is also often referred to as the “quantum” or “amount in dispute.”

Español Jurídico: What is competencia funcional ?

Competencia funcional has sometimes been rendered as “appellate jurisdiction,” and this may be correct in many contexts. However it should be noted that this definition is incomplete and may prompt a miscue or result in a mistranslation, since competencia funcional is actually a much broader concept, denoting the court of competent jurisdiction in each step in a legal proceeding, and not only at the appellate stage. Thus competencia funcional may refer not only to a court’s jurisdiction to hear appeals arising from a specific case (i.e., its “appellate jurisdiction”), but also to its jurisdiction to hear interlocutory motions (incidentes procesales) and enforcement proceedings (ejecución de sentencias). As explained in Thompson-Aranzadi’s Diccionario Jurídico,* “las normas de competencia funcional determinan qué juez o tribunal conocerá de los incidentes que se susciten en el proceso, de los recursos que se interpongan contra las sentencias y de la eventual ejecución de esas sentencias.”

*Juan Manuel Fernández Martínez, Coord. Diccionario Jurídico. Cizur Menor (Navarra): Thompson-Aranzadi, 2004.

What is silencio administrativo ?

Silencio administrativo (whether positivo or negativo) is frequently translated literally as “administrative silence,” and this may perhaps be understood by “insiders” from civil law countries. Nevertheless, I have never been able to find this literal rendering used in any truly Anglo-American legal source (US or UK government or court websites, etc.). It’s always used in translations from Spanish or in English texts that explain what “administrative silence” is by rendering it literally. In fact, it is often obvious that many Internet articles devoted to “administrative silence” were originally written in Spanish and then simply run through Google Translate.

So what is silencio administrativo and, more importantly, how can the concept be reasonably rendered in English? Briefly, silencio administrativo denotes a governmental agency or other authority’s failure to respond to a request, petition or appeal, and that failure to respond constitutes a decision in itself: in situations governed by silencio administrativo positivo, failure to respond is deemed a positive response, while under silencio administrativo negativo failure to respond is tantamount to a “no.”

In view of the above, silencio administrativo positivo may be translated as “constructive grant/consent/approval, etc.,” while silencio administrativo negativo may be rendered as constructive denial/rejection/refusal, etc., since this is really what those expressions mean. Here’s a simple example with a possible translation: Una vez vencido el plazo de contestación que las normas establezcan para los expedientes de autorización, se entenderá otorgado el mismo por silencio administrativo positivo (Once the legally-established term for responding to applications for authorization has expired, failure to respond shall be deemed a constructive grant of authorization).

False Friends 101: A Court’s Opinion is not its Opinión

Judgments rendered by Anglo-American courts are often referred to as “opinions.” In this context “opinion” is “a court’s written statement explaining its decision in a given case, usually including the statement of facts, points of law, rationele and dicta” (Black’s Law Dictionary, 8th. ed.). I’ve recently seen several Spanish texts that used “opinión” to refer to the decision of a court that would have perhaps been better described as either its “sentencia” or “fallo.” Other related expressions worth noting include

  • separate opinion (voto particular)
  • dissenting opinion (voto particular disidente/discrepante)
  • concurring opinion (voto particular concurrente)
  • judge delivering the opinion of the Court (magistrado ponente)
  • “It is the opinion of this Court…” (“Es el parecer de esta Sala/de este Tribunal…”)

In other respects, dictamen no vinculante is an “advisory opinion” and dictamen pericial is an “expert witness opinion,” while what is widely known in civil law countries as doctrina can be appropriately rendered as “academic opinion” (or also as “legal scholarship,” “scholarly writing” or perhaps “the writings of law professors and legal scholars”).