The unclear use of a verdedigbaar mistranslation arises from time to time in the English writing of Dutch lawyers. In an earlier post, we looked at this problem in detail. Here we continue by looking at a few examples of mistranslations of verdedigbaar and how to repair them.
First example (unclear whether “verdedigbaar” meant as hedging or supporting language)
Here is an example (taken randomly from the internet):
This practical notice leads to some unsolved legal issues. If an entry ban must, in order to be effective in “the Member States” always be accompanied by a Schengen Information System (SIS) alert, the criteria for both measures should also be applied in combination.
It is defendable that this should mean a mutual limitation of applicability: if a SIS alert is not allowed, an entry ban cannot be allowed either, and vice versa. But there is a risk that Member States argue that they should have a cumulative scope, according to which one provision may offer options in which the other does not foresee. The Meijers Committee is of the opinion that this issue should be settled in a clear and unambiguous text.
The Dutch author of this legal text is presumably using the “defendable” phrase as a literal translation of verdedigbaar. Two immediate problems arise. First, the correct word is “defensible” not “defendable”. Second, “it is defensible that” is an unusual phrase in both British and American English. (Of course, this also applies to “it is defendable that”.) Both of these points are explained further here.
Taking a close look at the context, another problem is that it is not clear whether “defendable” was meant in this text to be used as hedging language or as supporting language. An explanation of hedging wording and supporting wording is found here.
The literal translation used for verdedigbaar makes the wording look like supporting language. Is that what the Dutch legal writer intended? It’s difficult to say but it seems at least possible that supporting language was not intended at all.
In other words, what the Dutch writer probably meant to say was one of these two (depending on what was meant):
It is defendable that this should mean a mutual limitation of applicability:
A case could be made that this should mean a mutual limitation of applicability. [hedging wording]
A justifiable/defensible argument is that this should mean a mutual limitation of applicability. [supporting wording]
Dutch legal writers often use verdedigbaar ambiguously. This presents a particular challenge to legal translators. They should not be guessing at what the legal writer meant. They may need to contact the author and determine how the word is being used exactly: as a hedge (e.g. “a case could be made that”) or as supporting language (e.g. “justifiably”).
Second example (“verdedigbaar” meant as supporting language)
Here is another statement written by a Dutch writer and taken randomly from the internet:
It is defensible that organizations and especially direct supervisors feel the need to track the social media behavior from their employees on Facebook or Twitter.
Again, this phrase is unusual in English. Something else would be better. Although it is not clear from the wording itself, the context and wording in this sentence seem to indicate that the writer is supporting the statement. If so, supporting wording can be used to make this clearer:
Organisations (especially direct supervisors) justifiably feel the need to track the social media behaviour of their employees on Facebook and Twitter.
Third example (“verdedigbaar” meant as a hedge)
This statement written by a Dutch legal writer (and taken randomly from the internet) includes a verdedigbaar mistranslation:
it is arguable that the proposed specific exemption for education and research is not geared for the future. It seems that the government assumes that most universities almost exclusively undertake publicly-funded activities. After all, one of the goals of the exception is to limit the administrative burden for universities. However, sociological and policy literature suggests that universities increasingly have to rely on private funds and therefore undertake many private activities. It is therefore unsure whether the 90%-norm is attainable by most universities.
The main problem with using “arguable” here is that it is not clear what the writer actually means by it. Is the writer saying he thinks the exemption is not geared for the future (i.e. “there is a plausible argument that it is not geared”) or is he saying that he thinks the exemption is geared for the future (i.e. “it is doubtful that it is not geared”). Two interpretations are possible. The inherent ambiguity of “arguable” is explained further here.
So, if “arguable” is unclear, what should have been used? It is unlikely that the writer would support the failure to take the future into account. So this wording appears from the context to be a hedge. Standard hedging language is best here, not supporting language like “defensible”. A few possible examples:
Secondly, a case could be made that the proposed specific exemption for education and research is not geared for the future.
Secondly, it could be argued that the proposed specific exemption for education and research is not geared for the future.
Secondly, the proposed specific exemption for education and research is arguably not geared for the future.
When expressing verdedigbaar in English, ascertain whether the wording is meant to be hedging language or supporting language, and then use the appropriate English wording.
Greg Korbee (June 2015)
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