Legal Translation Explained

Enrique Alcaraz, Brian Hughes, Anthony Pym, Anthony Pym

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317641889
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

Focusing on the problems of translating English legal language, Alcaraz and Hughes offer a wide-ranging view of one of the most demanding and vital areas of contemporary translation practice. Individual chapters deal with legal English as a linguistic system, special concepts in the translation of legal English, the genres of legal translation, and offer a series of practical problems together with discussions of proposed solutions, as well as insight into the pragmatic ways translators go about finding solutions.

The numerous examples and discussions of specific terms make the book useful both as a manual in the translation class and as an invaluable reference work for students, teachers, self-learners and professional translators.

1. Some Pointers to the Linguistics of Legal English

1. Introduction: Legal English and the rise of English for professional purposes

A few decades ago, any non-native speaker of English who progressed beyond training in basic ‘communicative English’ would probably have been offered a course on advanced grammar, vocabulary building and an introduction to some at least of the classic authors of English and American literature. In the universities, the concentration on historical and cultural aspects of English would be even greater, and most specialists would complete their degrees without having taken much, or perhaps any, notice of the major role of English as the international language of trade, marketing, tourism, legislation and policy-making. There was even a certain consensus in academic circles that such matters were beneath the notice of teachers of English in institutions of higher learning, or that they could be learned later if at all.

It would be easy to criticize this attitude as snobbish, impractical or misguided, but to do so would be to overlook the radical change that has occurred in very recent times in the role of universities. When the lines of demarcation between the academy and the market were relatively clear, and the prospects of long-term unemployment were, at least for graduates, comparatively rare, it was natural enough that the people responsible for planning the syllabus of university courses should place the stress on the study of English, or any other subject, for its own sake. Indeed, many teachers express concern at what looks like the increasing Philistinism of the market-driven ‘global village’ so dear to entrepreneurs and university managers alike. To them, it seems more important than ever that universities should continue to offer degree courses in modern languages that place the systematic study of the works of the great authors and of the history of language at the core of the curriculum. All business and no cultural awareness makes Jack a bore as well as a dull boy.

Nevertheless, there is ample scope for developing courses catering for either emphasis, as the recent phenomenal expansion of Applied Languages degrees has shown. It is time to move on from the debate over Shakespeare or shipping documents, Tennyson or technology, Chaucer or the cheese industry, Langland or legal English. The modern world emphatically needs both. The enhanced status of English as the dominant world language has led to an increased demand for the training of competent specialists able to mediate between it and other languages in a wide variety of fields. It is in this context that the prominence recently given in the universities to Translation Studies is best understood.

Over the past two decades, courses in Applied Languages have become increasingly popular in universities. Here in Europe, as the impact of the institutions of the European Union makes itself increasingly felt, universities offer an ever-growing number of degree courses combining the study of modern languages with modules on business studies, economic history, politics and European law. At the same time, universities everywhere have been developing international relations both as a subject area and as a focus for student exchange and recruitment. This has meant an increasing tendency to offer places both to overseas students specializing in combined courses of this type and to those whose area of specialization requires a Modern Languages component.

Naturally enough, given the prominence of English as the world language of contemporary communication and trade, there has been a phenomenal increase in the teaching of ‘the other Englishes’, i.e. ‘English for special (or specific) purposes’ (ESP), or ‘English for professional purposes’, as some prefer to call it. Inevitably, this tendency toward greater specialization in the teaching of English, together with the widespread adoption of modularization in the institutions of higher education, has had an enormous impact on Translation Studies, which has blossomed over the same period. General and literary translation remain key areas of these studies, but among students and teachers there is a perception that professional openings for translators are increasingly conditioned by market trends. International organizations and institutions, government departments and agencies, multinational corporations, import-export firms, the media, the film and tourist industries, information technology and the vast web of activities of every kind spun by the Internet all provide opportunities for translators. However, more often than not candidates for jobs in the field are expected to have received training in one or more specialist areas (commercial translation, medical translation, scientific and technical translation, legal translation, and so on).

The legal profession has played an undeniably significant role in the advances made in international cooperation and business. When money moves, lawyers move with it. But that is not all. The drafting and continual modification of international treaties such as those that underlie the European Union provide legal work with obvious multilingual implications. And contemporary protocols governing international cooperation in the clampdown against organized terrorism, drug-smuggling and the impunity of dictators depend to a very large extent on coordinating the efforts of administrative bodies, courts, police forces and lawyers, all of whom depend inevitably on the assistance of competent translators. At this early stage of the new millennium, legal translation is thus a basic requirement in both the public and private sectors of the international community. Further, this international community accords an important place to the English-speaking countries and their systems of law.

2. The aims of this book

Legal Translation Explained has been written with the above international context in mind. Our aims are to identify some of the common problems faced by translators of English legal texts into other languages and, where possible, to suggest ways round these difficulties. Chapters 7 and 8 in particular provide detailed guidance on linguistic questions raised by the possible translations of terms of English law.

Obviously the first stage in successful translation is to understand the source text fully. This is then followed by the production of a target text. In practice, many kinds of target texts are possible, ranging from a summary to a word-forword gloss for philological purposes. In this book, however, we shall make the normalizing assumption that the translator is looking for an equivalent for each part of the source text, word for word, phrase for phrase or concept for concept. We shall also assume that the translation is to be of the ‘domesticating’ kind, designed to sound as natural as possible to the target-culture reader, even though there are clearly situations and clients that require alternatives such as the use of loan words or the invention of neologisms. For example, the phrase ‘judgement for the plaintiff’ is to be understood as conveying the idea that the court’s decision favours the party who brought the suit, and the translation should be in the standard form of words that indicates that the plaintiff wins and/or the defendant loses. In Spanish this would give fallo estimatorio de la demanda or fallo condenatorio; in French we might say jugement donnant gain de cause au demandeur; and in German ein Urteil im Sinne des Klägers, among other possibilities. Throughout this book, such English terms are glossed either in English or in these other languages (more in Spanish, since that is the authors’ immediate context). It should be clear, however, that there is rarely one-to-one correspondence in such matters, and that the one idea can often be expressed in several different terms or phrases in the one language. For reasons of space, our glosses cannot present this true variety; they should be taken as no more than suggestions or quick aids to comprehension. For further equivalents, students are advised to consult standard reference works in their language or, better, to locate official parallel texts (texts on the same topic and in the same genre, but in the language into which one is translating). Many good parallel texts can be located on the Internet, and in many cases they will be a more reliable guide to standard functional equivalents than will the simple terms given in this book.

The need to use the standard target-language terms means that translators must familiarize themselves with the somewhat arcane vocabulary of the law. This is more easily achieved when they know what to expect of legal texts in general. We suggest three steps in this process: the study of the legal systems, bottom-up linguistic processing, and top-down linguistic processing.

(a) The legal systems

Clearly there is no requirement for translators to be experts in the law, but equally obviously they need a good working knowledge of the main outlines of both the Anglo-American system of law and the legal system of the other language in play. In Chapters 3 and 4 we examine the leading features of the British system, particularly in relation to the three major sources of English law (common law, equity and statute law).

(b) Bottom-up linguistic processing

By this we mean the process of understanding a text starting with the smallest units of meaning (phonemes and morphemes) and gradually relating them to the units situated above them on the scale until the entire text has been comprehended. From this point of view, full understanding of the text is the last link in a long chain of partial meanings gradually increasing in length and complexity as the decoding process advances. These issues are dealt with in this chapter and the following one.

(c) Top-down linguistic processing

This model is the corollary of the previous strategy of text interpretation. In this case, the process of understanding begins with the identification of large blocks of text viewed not as piecemeal chunks of meaning, but as instances of text types or genres – in our case, legal genres, such as contracts, judgements and statutes. The advantage of this approach is that translators can operate half-intuitively on the basis of pragmatic expectations as to the likely function and meaning of the text. The final version emerges from a gradual process of confirmation or elimination until uncertainty ideally disappears. This model assumes that the native speaker of a language brings their previous knowledge and experience to bear on the original text as a grid or framework into which the actual linguistic content is to be fitted. Familiarity with the legal genres provides the translator with a handy tool for rough-hewing the original, and the translation can then be shaped and refined on. A detailed study of this process will be found in Chapters 5 and 6.

3. The leading features of legal English

Like its counterparts in other languages, legal English is a complex type of discourse. As we shall see in section 4, native speakers of English have recently reacted against the perceived obscurity of the language of the law. The ‘Plain English Campaign’ has had some effect on the legislature and the judiciary, which have been forced to clarify and simplify legal language, or at least those parts of it that ordinary people need to understand in order to use the system to defend their rights and settle their differences. However, many lawyers continue to argue, with some justification, that technical accuracy is an essential prerequisite of good justice, and that if linguistic precision is watered down to suit the demands of an uncomprehending majority, legal certainty will all but disappear. There is a danger, in other words, of throwing out the baby with the bath-water. For this reason, it is unlikely that the ‘Plain English Campaign’ can go much further than ensuring that the court forms used by prospective litigants, or the style used by judges in explaining technical matters to the parties, are phrased as simply as is compatible with good law. Generally speaking, translators should expect to face some quite daunting linguistic tasks in preparing their versions of legal originals.

The following is an overview of some of the main features of legal English:

(a) Latinisms

Despite the native origins of many of its most characteristic terms, legal English has not entirely escaped the influence of Roman law and the Latin in which it was administered. It is not difficult to see why. In the first place, English law grew out of a system that evolved in the Middle Ages when Latin, bolstered by the power and prestige of the Roman Church, was the lingua franca throughout Europe for written texts and for intellectual exchanges. Secondly, Roman law was a coherent written system that, for centuries, had been developing over a wide area of Europe and had the force of an institution. It was inevitable, therefore, that some of its precepts and formulations should become enshrined in the texts and the professional speech of English lawgivers who shared a common culture with their colleagues elsewhere. Even today the famous tag Nulla poena sine lege (‘No punishment except in accordance with the law’) is found in the writings of British lawyers as well as in those of their Continental colleagues. Among hundreds of Latin phrases in common legal use, we have selected the following examples as a reminder that translators cannot always assume that Latin can be left untranslated. The decision as to whether to translate or not must be made in accordance with standard practice among the members of the legal community in the target-language system:

writ of fieri facias [fi. fa.] ‘you may cause it to be done’ (auto de ejecución de una sentencia, perhaps bref de fieri facias, Pfändungsanordung, Vollstreckungsbefehl)

prima facie “at first sight” (a primera vista, légitime, beim ersten Anschein)

bon...