Facets of Legal Translation Performance

Legal translation: 'the ultimate linguistic challenge'.

-Harvey (2005, p. 57)
I shall now explore the legal translator's textual agency-his or her
intervention -seen as the negotiation of a number of facets: language
aspects, legal system(s), textual genre, and text purpose; leading to
the presentation of a multidimensional model' that aims to
encapsulate the complexity of legal translation performance in
practice.
2.1. Negotiating between Languages
At a first level, the translation of a legal text involves the natural
language in which it is written. the language variant(s) should be
specified-and it is perhaps even more important in legal texts owing
to the related problems arising out of differences in legal systems,
styles, concepts, and terminology between two jurisdictions-which
appear with "similar force even when two [or more] jurisdictions
share the same language', such as German in Germany, Austria,
Switzerland, Belgium, and Italy.
2.1.1. TRANSLATION 'EQUIVALENCE
Whilst equivalence as a term applied to translation seems to have its
origins in the 1950s from various sources (Pym, 2010, pp. 9-10), in
1959, Jakobson introduced the idea of 'equivalence in meaning'
(2003, pp. 113-118). Building upon Saussure's work on the signifier
and the signified, he focuses on the gap be- tween terms and
semantic fields, based on the theory that humans' perception of and
terms for objects and concepts differ through language.
In Translation Studies, equivalence is regarded in many ways: as a
prescriptive or descriptive method for translation.
2.1.2. LEGAL LANGUAGE/DISCOURSE(S)
First and foremost, legal discourse is not singular in nature but plural.
The discourse of legislation differs from that of contracts, and from
that of court proceedings, and so on. There are also considerable
differences between spoken and written discourses in this field.
Rather than 'discourse', some scholars have used the terms 'legal
register" or "legal language' (e.g., Tiersma, 2000), as well as 'variety'
(Bhatia, 1983). Indeed, Kurzon spoke of 'a substantial amount of
terminological uncertainty' (1997, p. 119) in his detailed examination
of the various terms employed.
In most cultures, legal language is a 'language for special purposes'
that is frequently used by restricted groups of experts such as
lawyers, the judiciary, and so on, but may also be used by the
corporate world and by the general public.
2.1.3. LEGAL LINGUISTIC FEATURES
Whilst the examples of general linguistic features of legal discourse in
this section are mainly taken from English, there are parallels in other
languages...
In a number of cultures, perhaps one of the most obvious features of
legal discourse is the use of archaic language 2 A related feature, due
to the origins of many legal systems and some 'cross-fertilization', is
the presence of Latinisms," although the frequency of their use
depends on the natural language or legal culture in question.
Translation issues may also arise with terms that are monosemic," for
example, estoppel', 'tort', or 'usufruct'; and those that are polysemic,
with separate everyday meanings such as 'consideration" meaning
payment, 'construction' meaning interpretation, or "issue" meaning
heirs. Despite some authors finding evidence of a shortening in
recent years, long and complex sentences remain a prominent
feature of some legal genres, as do unusual word order, the omission
of articles, nominalization, passivization, use of 'shall, and layers of
embedded clauses.
2.1.4. THE EQUIVOCAL NATURE OF LEGAL DISCOURSE LEADING TO
LANGUAGE RISK
'Law is language and language is imprecise' (S. A. Smith, 1995, citing
Wesel, 1992). The latter phrase was not, as one might imagine,
uttered by a translator lamenting their lot, but by a law professor.
Harvey goes further-Judges, like Humpty-Dumpty, create the illusion
that words mean exactly what they want. them to say, since they are
free to define terms as they see fit' (2002, p. 183). Legislation too
may contain equivocal language. The extent of this aspect of legal
discourse is borne out by the huge body of literature and constant
debate on the interpretation or construction of the law. Apart from
the possibility of ambiguous meanings being conferred to terms by
those enunciating them, we must also add the complexity of what
those receiving them understand.
2.1.5. THE POTENTIAL RISKS OF PLAIN LANGUAGE
For some years now, plain language movements," the impetus for
which came, in English-speaking jurisdictions, to a large extent from
Mellinkoff (1963), have been campaigning to 'simplify' legal language-
often referred to in that context as legalese-and, inter alia, to render
it more accessible to the general public. However, some legal
scholars such as Phillips hold that 'on the contrary, the development
and maintenance of the law's special language can be justified' (2003,
preface). Offering a wide range of suggestions for the improvement
of legal drafting.
2.2 Negotiating between Legal Systems
2.2.1. ASYMMETRY BETWEEN LEGAL SYSTEMS, AREAS OF LAW, LEGAL
CONCEPTS, AND TERMS Unfortunately for legal translators, the world
does not have a unique legal system. Experts cannot even agree on a
single classification of the world's systems into families (eg., Hertel,
2009; Monjean-Decaudin, 2010b; Samuel, 2014). In fact, '[a] legal
order may, for example, be allocated to a different legal family as
regards civil law than as regards administrative law. Even the law of
companies may be characterized differently from the general civil
law' (Hertel, 2009, p. 2). Thus in addition to the asymmetry of legal
systems', there may be inconsistency between 'different branches
and fields of law' (Pommer, 2008, p. 18).
2.2.2. CONVEYING APPROPRIATE LEVELS OF LEGAL EQUIVALENCE
Several translation scholars have called upon the field of comparative
law to advise how legal translators should negotiate differences
between systems and concepts. A number of projects are currently
being developed in this regard, not all of which, sadly, are accessible
to practitioners who work outside institutions. Scholars have also
made efforts to categorize types of terminological equivalence across
legal systems. Šarčević suggests the following three categories: 'near
equivalence', 'partial equivalence', and 'non-equivalence', and holds
that the preceding enable categories to be changed 'depending on
the use of the term in context' (1997, p. 237). Referring to a
projected bilingual dictionary of contract law. In most countries,
there are no legislative guidelines providing for differences between
legal systems or concepts. Some efforts are being made in this
regard, for example as part of the harmonization and approximation"
of European legislation, and at the global level by UNIDROIT (the
International Institute for the Unification of Private Law). In any
event, the foregoing is in- tended to demonstrate the importance of
making the translator aware, before translation begins, of the legal
system applying to the text in question.
2.3. Negotiating between Genres and Subgenres Having discussed
how language and legal systems need to be taken into account in
legal translation performance, the third facet of my model concerns
genre. I shall begin with a brief review of the contribution to be made
by an awareness of and reference to both source and target
genres/subgenres when translating. and then explore their
classification, which constitutes an important part of scholarly work
in this field.
2.3.1. GENRE-AWARE TRANSLATION PERFORMANCE Genre is defined
by Swales as a 'class of communicative events [sharing a] set of
communicative purposes', forming the 'rationale for the genre'
(1990, p. 58).
2.3.2. CLASSIFICATIONS/TAXONOMIES OF THE LEGAL MACROGENRE
I shall now give an overview of the numerous ways in which scholars
have classified legal genres", before examining their categorization
from a market perspective. Bhatia (1987, p. 227) outlines a structure
differentiating the main legal genres by their 'communicative
purposes' and the "lexico-grammatical,semantico-pragmatic, and
discoursal resources' used in varying legal contexts. Regarding
written genres, he distinguishes between 'frozen legal documents like
contracts, agreements, insurance policies, etc.' and 'formal'
documents such as 'legislation, rules and regulations, etc.'; classifying
them both under the term 'legislative', leading to a somewhat
equivocal subsidiary connection between 'legislative' and 'contracts'
(1987). The focus of this taxonomy on communicative purpose is
highly pertinent in its implications for the study of translation and the
intended user of a target text.
2.4. Addressing Purpose
2.4.1. THE SUITABILITY OF A FUNCTIONALIST APPROACH TO LEGAL
TRANSLATION PERFORMANCE
The fourth and final aspect of the legal translator's textual agency
that I shall analyse is the task of addressing the purpose of the target
text. In parallel to the goal-based approach outlined in section 1.2.3
(Chapter 1) with regard to the optimization of outsourcing
relationships between principals and translation practitioners, my
discussion also takes a functional stance on translation performance.
Concerning the suitability of this approach to legal translation,"
2.4.2. DIFFERENTIATION OF RECEIVERSHIP AND DIFFERENTIATION OF
STATUS
The end-user of a target text is closely related to its intended
purpose, and needs to be taken into consideration, as asserted by
Reiss and Vermeer: 'information about the target-text addressee [...]
is of crucial importance for the translator' (1984, p. 101, cited from
the German by Nord, 1997, p. 22). Despite her 1997 criticisms of
Skopostheorie, and whilst maintaining them, Sarčević entitled her
2000 paper Legal Translation and Translation Theory, A Receiver-
Oriented Approach, and in that paper unambiguously claims, like
other areas of translation, the translation of legal texts is (or ought to
be) receiver oriented" (p. 1). She broaches the differentiation of
readership and a corresponding variation in translation strategies,
and uses the terms 'addressees' and 'receivers synonymously, Citing
Kelsen (1979, in the German), she distinguishes between direct
addressees (specialists) or indirect addressees (including the public).
2.4.3. SPECIFYING LEVELS OF COVERTNESS FOR LEGAL TRANSLATIONS
In order to further elucidate receivers' expectations, we may adopt
the distinction between covert and overt translations first highlighted
by House (1977)— where by 'an overt translation is one which must
overtly be a translation' (p. 106) and 'a covert translation [...] enjoys
or enjoyed the status of an original ST in the target culture' [...] ST
and its covert TT have equivalent purposes" (p. 107). In this regard,
Chesterman holds that [w]hether a translation is expected to be
covert or overt, and how this expectation then affects the translation
itself, will be determined partly by the translation tradition in the
target culture' (1993, p. 9). In the field of legal translation, I suggest
that commissioners' expectations are governed rather by matters
relating to generic integrity and the intended purpose of the text
than by translation tradition. Whatever determines their choice, the
commissioner's wish to receive either a covert or an overt translation
should be explicitly stated in the legal translation brief. As a way of
distinguishing between expectations, the terms 'covert' and 'overt"
might speak more clearly to the legal translation market than other
terms employed in Translation Studies, such as 'documentary' and
'instrumental' (e.g. Nord, 1997), which, as substantives, are almost
synonymous from a lawyer's perspective.
2.5. The Tesseract of the Legal Translator's Textual Agency As I have
illustrated in the foregoing sections, the legal translator's agency as it
relates to the text is highly complex. At a first level, that of source
and target language, the legal translator's task is analogous to that of
translators in other domains, although situated within a specific
segment of general language: legal discourse. At a second level, the
work of the legal translator becomes even more complex, to
'negotiate' solutions between source and target legal system(s). On
some occasions, despite being translated into a different language,
texts may not traverse legal families-for example, certain texts
translated from French to Italian may both be located in code-based,
civil law systems. Third, the legal translator must ensure that the
given genre or subgenre is appropriately trans- posed into the target
genre, for example, using the relevant sublanguage and, where
necessary, macrostructure and/or layout. The fourth and final layer
to the legal translator's work is to ensure that the purpose of the
source text is correctly reflected in the target text, if such a reflection
has been requested by the client. Alternatively, the target text may
serve a different purpose. For example, if the source text is binding
legislation, its translation may be requested for a public website.
as they are unwrapped and wrapped, constantly interacting with and
map- ping onto one another, could be a convenient way to view the
legal translator's mental processes and the indissociable and
synchronous nature of the fields of their textual agency, I must
emphasise, however, that in this case the tesseract is used purely to
model complex cognitive activity, and takes no account of the
mathematical arguments involved. Figure 2.3 is a simplified
representation of that polytope. The flows represented by the
arrowheads may be understood to correspond to the evolving quest
for linguistic and/or legal systemic and/or generic equivalence, and
the quest to transpose the source text purpose or to fulfil the target
text's intended purpose. This multidimensional view of the
translator's agency allows such equivalences to be free from duality
To summarize my proposed model of the legal translator's textual
agency: i) 'General' translation techniques transferring one language
to another are already not an easy task; ii) In negotiating solutions
between different systems, the legal translator enters the domain of
comparative law; iii) Genre and/or subgenre compliance must also be
respected; iv) In order to adhere to the purpose of the text, first and
foremost the legal translator needs to be aware of that purpose.