In this post, we look at how verdedigbaar can be properly expressed in English, especially in the phrase “het is verdedigbaar dat“.
When a lawyer discusses a possible position or argument, one problem that arises is that, merely by stating it, the lawyer appears to be agreeing with it. Example:
Complete government access to our phone records is in the public’s interest.
Lawyers often wish to avoid making direct statements like this. They want to avoid giving the impression that the statement is an expression of their personal 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 our phone records is in the public’s interest.
- One could make the case that complete government access to our phone records is in the public’s interest.
- One argument is that complete government access to our phone records is in the public’s interest.
- It could be argued that complete government access to our phone records is in the public’s interest.
- The argument could be made that complete government access to our phone records is in the public’s interest.
- Some would argue that complete government access to our phone records is in the public’s interest.
- Arguably, complete government access to our phone records is in the public’s interest.
- Complete government access to our phone 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” means two different things
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.
“Arguable” is one of those strange and unclear English words that not only have two different meanings, but two meanings that are the opposite of each other. (Other such words include “sanction”, “literally” and “oversight”. ) So the following sentence could have two different interpretations:
? It is arguable that complete government access to our phone records is in the public’s interest.
= It can be plausibly argued that complete government access to our phone records is in the public’s interest.
= It is doubtful that complete government access to our phone records is in the public’s interest.
(This ambiguity doesn’t apply to “arguably”, a hedge with only one usage.)
First meaning of “arguable” = “able to be asserted”; “plausible” (kan worden gesteld; aannemelijk; aantoonbaar)
One meaning of “arguable” is “able to be argued or asserted” (Oxford) or “capable of being supported by argument” (Collins).
But the word “arguable” also carries the meaning “can be plausibly or convincingly argued” (Merriam-Webster) or “plausible” (Collins). Van Dale suggests aantoonbaar or aanwijsbaar as translations for “arguable”, not verdedigbaar.
“Arguable” and “defensible” are not synonymous. “Justifiable”, “sustainable” and “defensible” are used for arguments that are stronger than those that are just “arguable”. One example of this is found in the case of Collier v P& M.J. Wright (Holdings) Limited [2007]. In this case, Arden LJ stated this:
In my judgment, the requirements of substantiality or (if different) genuineness would not be met simply by showing that the dispute is arguable. There has to be something to suggest that the assertion is sustainable.
Second meaning of “arguable” = “doubtful” (betwistbaar; twijfelachtig)
“Arguable” could also mean “open to disagreement; not obviously correct” (Oxford), “open to argument, dispute, or question” (Merriam-Webster) or “capable of being disputed; doubtful” (Collins). Example of usage with possible Dutch translation:
Thus, it is arguable whether criteria such as “hazardous materials” should even be included on an ecolabel at all
Het is dan ook discutabel/betwistbaar of criteria als “gevaarlijke stoffen” überhaupt wel op een milieukeur thuishoren.
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.
First example: an unclear “verdedigbaar” translation
The unclear use of a verdedigbaar mistranslation arises from time to time in the English writing of Dutch lawyers. 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, it should have been “defensible” not “defendable”. Second, “it is defensible that” and “it is defendable that” are unusual in both British and American English.
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. The literal translation used for verdedigbaar (“defendable”) 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]
There seem to be quite a few examples of verdedigbaar being used by Dutch legal writers in an unclear context. 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 (“a case could be made that”) or as supporting language (“a justifiable argument is that”).
Second example: “verdedigbaar” 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” as a hedge
This statement written by a Dutch legal writer (and taken randomly from the internet) includes a verdedigbaar mistranslation:
Secondly, 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.
So, if “arguable” is unclear, what should have been used? It is unlikely that the writer would support the position that something has failed 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.
Guidelines for translating “verdedigbaar”
- There is no single English translation of verdedigbaar. The translation depends on how you’re using the word.
- Don’t use a literal translation of verdedigbaar unless you’re sure the meaning is clearly and accurately conveyed.
- Don’t use “defendable” at all.
- Avoid the unusual wording “it is defensible that”.
- “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.
- 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…”.
- 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…”
Greg Korbee (March 2015)
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