Many Dutch belastingadviseurs and other legal professionals already seem to know that fiscaal means “tax”. One cannot help but wonder, therefore, why so many keep using “fiscal” in the sense of “tax” when they know it is wrong.
There are a number of poor translations of Dutch legal terms that seem…firmly rooted. I’ve dubbed this the “Persistence of Poor Translation Phenomenon”. It’s as if the Dutch legal community has somehow collectively decided to retain a false friend as their preferred word choice, even though they know it is not regular English.
I’ve not come across a scholarly explanation of this phenomenon and its cause, but I’d like to take a few minutes to look at it. What process is at work here?
Of course, there are lawyers who are not yet aware of the problem at all. They assume the word or phrase is being used correctly because everyone around them is using it. They’ve never looked it up or discussed it with anyone.
This could also be a manifestation of something I’ve dubbed the “Translation Uncertainty Phenomenon”. Perhaps some Dutch lawyers are just not convinced that English speakers do not use “fiscal” in the sense of “tax”. The poor translation seems so right to them. No one has convinced them that it is incorrect. “It could be correct”, they think—and that’s good enough.
The power of convention
When I’ve pointed out this problem in legal English classes given to Dutch legal professionals, one common response is that “everyone says this. How can it be wrong?” This problem arises in particular with technical jargon that everyone seems to be using, e.g. “fiscal unity”. Convention is a powerful force.
Some Dutch legal professionals express the view that “in the Netherlands we use the word differently.” They seem to be claiming the right to use the English language in a way they feel comfortable with.
This is not necessarily an invalid point. If Dutch legal professionals are taking this approach, English speakers themselves will readily go along with it. English is not a regulated language and it’s not unusual for local usages to arise.
However, the senior Dutch lawyers with whom I’ve discussed this concept reject it. They prefer standard English. Following their lead, it may be better not to take this approach. The Dutch may find themselves painted into a corner, stuck with a quasi-official usage that no-one else in the world has. This has already happened with a few legal terms, “civil-law notary” coming to mind in particular. Insisting that “this is how we say it in the Netherlands” has a downside.
Dealing with the problem
There are not many poor translations of legal phrases that persist like this. It is a manageable problem.
What is needed is a knowledgeable authority willing to identify these words and to issue guidelines on preferred translations and usage. Until this happens, this phenomenon is not going to disappear. (However, is there any authority in the Netherlands that can set Dutch legal professionals back on track with regard to the use of a word? Not yet, unfortunately.)
It doesn’t help that there are no “official” translations of Dutch legal terms and that Dutch-English dictionaries are not saying clearly enough what the right translation or usage of a word is. The “problem terms” require more attention in these resources.
Another way to deal with this is for English speakers working with this community to speak firmly and with a single voice about these word choices. This is also not so easy, however. Apart from dictionaries, there is little coordination.
Also, English speakers can actually be part of the problem. English speakers working with Dutch legal professionals notice how they are using a legal word or phrase, so they start using the word in the same way, even though it is incorrect. They might do this out of deference to their Dutch colleagues. Dutch lawyers notice this and then assume the term is being used correctly because, after all, the English speakers they are dealing with are using it in this way too. It is important for English speakers to get it right themselves.
In conclusion, what we need to deal with this problem is a knowledgeable authority to issue official or quasi-official guidelines regarding the more difficult terms and clearer explanations by those providing language assistance to the Dutch legal community. Is that so hard?
Greg Korbee (April 2015)
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