Translating “verdedigbaar”

In this post, we look at how verdedigbaar can be properly expressed in English, especially in the phrase “het is verdedigbaar dat“.

Example of a statement that a lawyer may wish to hedge

When a lawyer discusses a possible position or argument, one problem that arises is that, merely by stating it, the lawyer appears to be stating it as a fact or agreeing with it. Example:

 Complete government access to telephone records is in the public’s interest.

Lawyers often wish to avoid making direct statements like this. There could be several reasons for wanting to hedge the statement. It could be that a lawyer wishes to present the statement merely as an argument rather than as a statement of fact. Perhaps a direct statement strikes the wrong tone. A lawyer may want to avoid giving the impression that the statement is an expression of his or her opinion.

Hedging language

To get around this, lawyers use hedges to mitigate or qualify the statement of a position or argument. A “hedge” is a word or phrase used to avoid over-precise commitment. Just a few examples:

        • A case could be made that complete government access to telephone records is in the public’s interest.
        • One could make the case that complete government access to telephone records is in the public’s interest.
        • One argument is that complete government access to telephone records is in the public’s interest.
        • It could be argued that complete government access to telephone records is in the public’s interest.
        • The argument could be made that complete government access to telephone records is in the public’s interest.
        • Some would argue that complete government access to telephone records is in the public’s interest.
        • Arguably, complete government access to telephone records is in the public’s interest.
        • Complete government access to telephone records is arguably in the public’s interest.

(In the above examples, “could” can be replaced by “can” or “might”.)

Supporting language

However, sometimes lawyers do want to indicate that they support a position or argument. When discussing it, they use another set of wording to indicate their support. “Justifiable“, “sustainable” and “defensible” are often used in this context. These words are similar in meaning, and sometimes appear in dictionaries as synonyms of each other. A few example phrases:

    • The government justifiably has complete access to our phone records because it is in the public’s interest.
    • It is justifiable that the government has complete access to our phone records because it is in the public’s interest.
    • One justifiable/sustainable/defensible/valid argument is that complete government access to our phone records is in the public’s interest.
    • It could justifiably/defensibly/sustainably be argued that complete government access to our phone records is in the public’s interest.

The phrase “it is justifiable that” is preferable over “it is sustainable that” and “it is defensible that”. Indeed, it appears these last two are barely used at all in either British English or American English.

A “defensible” option might appeal to Dutch lawyers because this seems to be similar to the Dutch word verdedigbaar. A few options that don’t entail the use of the phrase “it is defensible that”:

  • A defensible argument is that complete government access to our phone records is in the public’s interest.
  • It could defensibly be argued that complete government access to our phone records is in the public’s interest.

While it is possible to say this in English, it is not the most common phrasing. Remember that “defensible” is ordinarily used in English as supporting language, not as a hedge. “Defensible” means “justifiable by argument” (Oxford). It is used in the same context as “justifiable” or “sustainable”.

“Arguable”

You may be surprised to see that there are no “arguable” expressions in the examples listed above. This is because “arguable”, which can be used as either hedging language or as supporting language, is too unclear to be recommended for use in an international legal environment. This is explained further here.

A translation problem: “verdedigbaar”

Verdedigbaar is used by Dutch lawyers to indicate that a position or argument could be accepted by the reader or listener as a valid argument. There are valid reasons to support it. Verdedigbaar implies that the argument being presented is reasonable, logical and legally supportable enough for the lawyer to present it as a possible argument, although the lawyer herself may not personally support it. The word is used primarily in the context of arguing a position.

Dutch-English dictionaries suggest that verdedigbaar is translatable in a variety of different ways. Van Dale suggests that, when the word is used in the sense of houdbaar, the translations are “defensible” or “tenable”. When verdedigbaar is used in the sense of te rechtvaardigen, the suggested translations are “justifiable”, “valid”, “arguable” and (in a legal context) “sustainable”. However, this is not really helpful enough.

Many legal professionals routinely translate verdedigbaar in one of three ways:  “defendable”, “defensible” or “arguable”. All of these are problematic. Other wording is better.

  • “Defendable” is problematic because the word used is “defensible” in both British English and American English.
  • Defensible” is problematic because it only indicates support for the argument (in the sense of “justifiable” or “sustainable”). Another serious issue is that the phrase “it is defensible that” is quite unusual. It is not listed at all in Google’s corpus of British English.
  • “Arguable” is problematic because, as described above, “arguable” is unclear and may be interpreted as having the exact opposite meaning intended. But even if one looks only at the positive usage, “arguable” is still used more in the sense of aantoonbaar or aannemelijk than verdedigbaar.

It seems that the Dutch phrase verdedigbaar may be used rather broadly and vaguely in both hedging and supporting situations. But, in English, careful legal writers distinguish between hedging an argument and supporting an argument. This means that there is no single English translation of verdedigbaar that will serve in every situation.

Guidelines for translating “verdedigbaar”

  1. There is no single English translation of verdedigbaar. The translation depends on how you’re using the word.
  2. Don’t use a literal translation of verdedigbaar unless you’re sure the meaning is clearly and accurately conveyed.
  3. Don’t use “defendable” at all.
  4. Avoid the unusual wording “it is defensible that”.
  5. “Arguable” has two opposite meanings, so it’s best to avoid it altogether. If regardless you do use it in the sense of “able to plausibly argue”, ensure there is no risk of an alternative interpretation that is the opposite of what you intended.
  6. If verdedigbaar is used as a hedge (i.e. to indicate an argument that is not necessarily supported by the lawyer), use one of the standard English hedging phrases. See the above examples. In particular, consider this one: “A case could be made that…”.
  7. If verdedigbaar is used as supporting language (i.e. to indicate an argument that is supported by the lawyer), use one of the standard English supporting phrases. In particular, consider this one: “A justifiable argument is that…”

In this post, I give examples of mistranslations of verdedigbaar and how to repair them.

Greg Korbee (March 2015)

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