The Role of SHALL and SHOULD in Two International Treaties
Germana D'Aacquisto (Università degli Studi di Napoli Federico II) and Stefania D'Avanzo (Università degli Studi di Napoli Federico II)
Volume 3, Issue 1
Abstract
The aim of this study is to analyse the language of two international treaties, the United Nations Charter (1945) and the European Convention on Human Rights (1950). As a work in progress it investigates the role of SHALL and SHOULD in the institutional language of the United Nations and of the Council of Europe through a comparison between the English versions of the documents and their Italian translations. It also will take into account the ambiguity and vagueness of some English central modals in legal texts and the difficulty in translating them into a different language (Gotti 2005, Williams 2007, Bybee 1985, Trosborg 1997, Palmer 2004). The analysis is based on Halliday's (1994) ideational and interpersonal functions focusing on the concept of tenor, field and mode. The study will take into account van Dijk's claim (1993) about the concepts of ‘dominance' defined as ‘[...] the exercise of social power by elites, institutions or groups that results in social equality [...] directive speech acts such as commands or orders may be used to enact power and hence also to exercise and to reproduce dominance'.
Since translation is a complex process involving two different semiotic systems in a context of diverse cultures it means that we usually have expectations about the way in which language operates in legal contexts although they are not clearly stated anywhere but in legal culture. Moreover, archaisms and ambiguous verbal forms may create barriers to an effective understanding of legal issues. Due to all these reasons, a process of modernization in drafting texts is crucial, to make them accessible from one audience to another and from one language to another as well. Thus, our study will investigate ambiguity originated from verbs and phrases that can be found in international legal texts and consequent difficulties in translating them. More specifically, our attention will be focused on the modals SHALL and SHOULD, translated into Italian in some very different ways. In particular, SHALL has been considered ‘ubiquitous' in legal texts since it expresses a deontic modality intrinsically projected towards situations and behaviour located in the future (Williams 2007: 116). The contrastive analysis of the documents will provide evidence of difficulties encountered in the interpretation of the value and of the meaning of modal auxiliary verbs in different languages. Thus, in the translation process, understanding the pragmatic values in the communicative interaction between the legal authority and the addressees is crucial. As Williams (2007: 11) asserts: ‘Interpreting the intention of the lawmakers and those who drafted a particular law inevitably entails a detailed scrutiny of the language and prolonged interpretative debate'. A contrastive analysis of the English and the Italian versions of international treaties will also provide evidence of difficulties in mediating between two languages and cultures.
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