Translating Law

Deborah Cao

• Publisher: Multilingual Matters
• Year: 2007
• ISBN:
  9781847695376
• Topic: Lingue e linguistica
• Subtopic: Traduzione e interpretariato

The translation of law has played an integral part in the interaction among nations in history and is playing a greater role in our increasingly interconnected world today. The book investigates legal translation in its many facets as an intellectual pursuit and a profession. It examines legal translation from an interdisciplinary perspective, covering theoretical and practical grounds and linguistic as well as legal issues. It analyses legal translation competence and various types of legal texts including contracts, statutes and multilateral legal instruments, presents a comparative analysis of the Common Law and the Civil Law and examines the case law from Canada, Hong Kong and the European Court of Justice. It attempts to demonstrate that translating law is a complex act that can enrich law, culture and human experience as a whole.

Chapter 1

Introduction

Yan Fu (1854–1921), one of the most influential Chinese modern thinkers and a leading translator, in his Chinese translation of Montesquieu’s De l’esprit des lois published in 1913, warned his readers about the difference between the Chinese fa (law) and Western ‘law’ this way:

In the Chinese language, objects exist or do not exist, and this is called li [order in nature, things as they are, or the law of nature]. The prohibitions and decrees that a country has are called fa [human-made laws]. However, Western people call both of these ‘law’. Westerners accordingly see order in nature and human-made laws as if they were the same. But, by definition, human affairs are not a matter of natural order in terms of existence or non-existence, so the use of the word ‘law’ for what is permitted and what is prohibited as a matter of law of nature is a case in which several ideas are conveyed by one word. The Chinese language has the most instances in which several ideas are expressed by one word, but in this particular case the Chinese language has an advantage over Western languages. The word ‘law’ in Western languages has four different interpretations in Chinese as in li [order], li [rites, rules of propriety], fa [human-made laws] and zhi [control]. Scholars should take careful note.¹

Yan Fu was not the only person who saw the linguistic difficulty and complication in translating legal terminology between English and Chinese. For more than the past century, both translators and legal scholars have been pondering over the question of whether fa is indeed the equivalent of ‘law’. Furthermore, Chinese is certainly not the only language that presents a dilemma and challenge in translation. Examples of similar difficulties abound in the translation of basic legal concepts between most languages. For instance, one may ask: are the English ‘Rule of Law’, the French État de droit and the German Rechtsstaat equivalent? Or can the English ‘law’ reflect the German words Gesetz (concrete-specific law) and Recht (general-abstract law)? Is the French droit conceptually the same as ‘law’? Similarly, in Hebrew, hazakah in Jewish law has at least four meanings when translated into English: a form of acquisition, a praesumptio juris, possession, and a rule of procedure and evidence in real property (Elon 1985: 242). Conversely, the English term ‘contract’ is translated into modern legal Hebrew as hozeh (agreement), but it also has various corresponding or related terms in Jewish law including hiyuv (non-contractual obligation) and shetar (an evidentiary document) (Elon 1985: 242).

It is a fact that translating law between any languages is not a straightforward affair. Notwithstanding, the translation of law has played a very important part in the contact between different peoples and different cultures in history, and is playing an even more important role in our increasingly globalised world. This fact, unfortunately, is not often acknowledged, in particular in the development of law and legal studies. A good illustration of the increasing role that legal translation plays is found in the European Union (EU). Multilingualism and linguistic equality among its Member States has been one of the foundational principles and practices since the inception of the EU. Linguistic and cultural diversity is what gives the EU its specific character (Wilson 2003: 2). The European Parliament, as the legislature, makes laws that become national laws and have direct binding force on the citizens of the Member States. EU laws are translated and published in its Member States’ official languages. Thus, translation is indispensable for the functioning of the European Parliament. As pointed out, EU laws are inconceivable without translation (Correia 2003: 40).

At another level, the demand for legal translation is on the increase around the world owing to globalisation and the increased contact and exchange between peoples and states. For example, the EU now has twenty official languages and the demand for translation in the EU is growing with the addition of new Member States and with the preparation for accession (see Wagner et al. 2002). In the national arena, in bilingual and multilingual jurisdictions such as Canada and Switzerland, there is the constant demand and legal requirement for bilingual or multilingual drafting and translation. In the more recent past, Hong Kong, following the change of sovereignty in 1997, became a bilingual jurisdiction where bilingual legislative drafting and bilingual laws have now become the norm heavily involving translation. There are new challenges and demands that have not been experienced before in other traditional bilingual or multilingual jurisdictions. Separately, in monolingual countries, the demand for translation of legal texts has also risen in recent years. For instance, in China, with the flood of legislation came a multitude of English and other European language translations of Chinese laws. Apart from the traditional printed translations with a limited audience of academics and lawyers, a large number of Internet sites now offer English translations of Chinese laws, accessible to a worldwide audience for anyone with an interest in China. Most of the foreign law firms in China employ translators, and translating legal documents such as contracts is a substantial workload of these firms. However, currently the quality of many translations leaves much room for improvement. For instance, at the time of China’s accession to the World Trade Organisation (WTO) in 2001, the Chinese government had to declare some Chinese translations of the WTO legal instruments unacceptable due to translation errors. It has since published officially sanctioned Chinese translation, although only the WTO legal instruments in its official languages (English, French and Spanish), not their Chinese translation, have legal force.

It is obvious that translation is integral to the interaction in law and other spheres between different peoples and cultures. Given its important role in the intellectual and institutional development in different countries and its pragmatic value in economic arenas, legal translation deserves close scrutiny. This study attempts to make modest contributions in this regard. It has the major objective of studying legal translation as an intellectual pursuit and a profession in our increasingly interconnected world.

It is commonly acknowledged that legal translation is complex, and it requires special skills, knowledge and experience on the part of the translator to produce such translation. As has been pointed out, bold claims have been made about legal translation (Harvey 2002: 177). It has been described as a category in its own right, and as ‘the ultimate linguistic challenge’, combining the inventiveness of literary translation with the terminological precision of technical translation (Cairns and McKeon 1995, Gémar 1995, Pelage 2000, all cited in Harvey 2002). Then, what is so special about legal translation? Or is it just an excuse or exaggeration that legal translation is seen as being special, and more complex, requiring more time and skills than other types of translation so that legal translators would be better remunerated (Harvey 2002)? So, for practising legal translators, aspiring legal translators and translation researchers and teachers of both the general and legal kind, it is necessary to understand legal translation as a linguistic and translation phenomenon, if indeed it is special. At the same time, we also need to demystify legal translation without oversimplifying the complex and interdisciplinary nature of the problems involved.

Then, what are the major sources of difficulty in legal translation? What makes legal translation special and challenging? What is required of the legal translator? What are the linguistic features of different legal text types and the challenges they pose to the translator and why are legal texts written the way they are? These are some of the issues that this book attempts to address.

The examination of legal translation in this book is not language specific in the sense that it is not exclusively or predominantly targeted at one specific language pair. English is cited in most instances. This is because the English language is now the dominant language in many translations of law, as in the case of multilingual international instruments such as those formulated under the auspices of the United Nations (UN) and also in bilateral agreements. In the latter case, even when the official languages of the two countries concerned do not include English, in many bilateral agreements, the English text is often included as an authentic text. English is also the language used in most international trade documents. Besides, English is the language of the Common Law. Legislative drafting in English has also had a major influence over the drafting of multilateral instruments today.

This book explores the important aspects of legal translation, and provides a theoretical and practical guidance for the study and practice of legal translation. It adopts an interdisciplinary approach combining linguistic and legal theories with translation practice. The first part of the book presents the theoretical aspects related to legal translation, such as the nature of legal language, the relationships between law and language and their implications for legal translation, and the perennial question of equivalence and the possibility and impossibility of legal translation. It defines and characterises legal translation competence. The second part of the book is practice oriented, focusing on the practical aspects of legal translation, particularly the different types of legal texts. Whenever possible, case law related to language issues and linguistic disputes from various jurisdictions are cited and discussed, prominently the bilingual jurisdictions of Canada and Hong Kong and the multilingual jurisdiction of the European Court of Justice (ECJ). It is important for us to see the different effects and consequences that translation can have on the working and development of law. The choice of words and different methods of translation of law can have a long-lasting impact on law. It also shows that translation enriches the law, cultures and human experience as a whole.

This book can be used by both general translators to be trained to become legal translators, and lawyers or people with legal training intending to become legal translators. It is important to bear in mind that legal translators are not lawyers. Likewise, bilingual lawyers are not automatically translators. The legal translator’s job is not to provide legal advice and solve legal problems, but to translate and facilitate communication across linguistic, cultural and legal barriers through the medium of language. The legal translator’s skills and tasks are very different from the lawyer’s. The legal translator does not read and interpret the law the way a lawyer does. The legal translator does not write the law either. However, the legal translator needs to know how lawyers, including judges and lawmakers, think and write and why they write the way they do, and at the same time, to be sensitive to the intricacy, diversity and creativity of language, as well as its limits and power.

In short, in this book, legal translation is analysed and discussed in terms of cross-cultural and interlingual communicative act and as a complex human and social behaviour. On the one hand, legal translation is constrained by the nature of law and legal language, of the source language (SL) and the target language (TL). On the other hand, legal translation is a product of a human process with the translator working in particular situations and contexts under an array of legal and other constraints. Thus, the different variables involved in the act of translation, linguistic and legal, need to be properly understood for the performance of the task. An underlying argument of the book is that law is translatable despite the various inherent difficulties, and despite the often-heard claims to the contrary. Furthermore, translating law is a challenging interdisciplinary endeavour, the skills of which can be learned and developed. It is nevertheless special, different from other types of translation.

Chapter 2 presents the different views and arguments on law and language. It addresses the relationships between language and law and the nature of legal language. It attempts to answer the often-asked question of why legal translation is difficult, and identifies the sources of such difficulty. It also touches on the question of equivalence and the possibility and impossibility of legal translation. The chapter provides a comparative analysis of the two most important legal systems in the world, the Common Law and the Civil Law.

Chapter 3 investigates translation competence of the legal translator. It proposes that translation competence is identifiable and describable, and that there exists an underlying general competence that applies to all translators including specialist translators such as the legal translator. The chapter proceeds to identify and describe translation competence and its componential variables, including translational language competence, translational knowledge structures and translational strategic competence. It argues that translation is the product of a total act of interlingual and intercultural mediation involving the interactions of different variables in situational contexts.

Chapter 4 examines legal terminological issues. It discusses the major lexical features and difficulties in translation, with illustrations from various languages and jurisdictions. The focus is on the lexical characteristics of legal language in general covering legal conceptual issues, system-bound legal terms and the issue of linguistic uncertainty.

Chapter 5 explores the translation of private legal documents. Private legal documents mainly refer to contracts, agreements, wills and other legal documents. The translation of these documents constitutes the bulk of actual work in real life for many legal translation practitioners. In this chapter, the legal and linguistic features of major private legal documents in English are examined.

Chapter 6 addresses the translation of domestic legislation. It begins with an outline of the two types of translated statutes. This is followed by a comparative description of the various linguistic features of statutes. It proceeds to examine the pragmatic features of statutes in English and their relevance to translation. It lastly discusses the case law on linguistic uncertainty in bilingual legislation in Canada and Hong Kong, and examines how the courts deal with such uncertainties and the relevant rules developed for such a purpose.

Chapter 7 focuses on the translation of international legal instruments, both bilateral and multilateral, and the various legal and translational aspects involved. It explains the basic concepts of international law and international legal instruments, and describes the legal and linguistic features of such instruments. The chapter proceeds to outline the process of bilateral treaty negotiation involving translation as an example for an insight into the treaty making process involving two languages. It then explores the various aspects associated with translating multilingual instruments and the judicial interpretive rules for construing multilingual legal texts in the ECJ. It lastly touches on the use of computer aided or assisted translation (CAT) technology at the UN and the EU.

Note

1. From Yan Fu’s translation of Montesquieu’s De l’esprit des lois, and the English translation of Yan Fu’s words is my own.

Chapter 2

Law, Language and Translation

Legal translation is a special and specialised area of translational activity. This is due to the fact that legal translation involves law, and such translation can and often does produce not just linguistic but also legal impact and consequence, and because of the special nature of law and legal language. Moreover, as is noted, the translation of legal texts of any kind, from statute laws to contracts to courtroom testimony, is a practice that stands at the crossroads of legal theory, language theory and translation theory (Joseph 1995: 14). Therefore, it is essential that the legal translator have a basic understanding of the nature of law and legal language and the impact it has on legal translation.

This chapter begins with a classification of legal translation. This is followed by an analysis of the nature of legal language in terms of its normative, performative and technical character and the tension between legal certainty and linguistic indeterminacy. A characterisation of legal language is also proposed in terms of legal lexicon, syntax, pragmatics and style. Then, the chapter elaborates on the three major sources of difficulty in legal translation, that is, the legal, linguistic and cultural complications. In particular, it offers a comparative analysis of the two major legal systems: the Common Law and the Civil Law. Lastly, the chapter contemplates the possibility and impossibility of legal translational equivalence and whether it is indeed achievable.

Legal Translation Typology

Translation is classifiable into various categories. It can be divided into two general categories of literary and non-literary translation or the categories of ideational (technical and non-technical) and interpersonal (non-fictional and fictional) translation (House 1977), and the translation of pragmatic texts and literary or artistic texts (Delisle 1988). Translation can also be classified according to the division of natural and artificial language based on language use, and on the types of translation activities, literary or industrial (Sager 1993).¹ A commonly used typology is the classification of translation into general, literary and specialist or technical translation.

Relevant to translation typology is how we view the differences and similarities among the different types of translation. In this connection, the prototypology proposed by Snell-Hornby (1988: 27–36) is particularly constructive.² This is the so-called ‘natural categorisation’, that is, in the form of prototypes that have a hard core and blurred edges (Snell-Hornby 1988: 27). The prototypology is a dynamic, gestalt-like system of relationships that covers various types of translation ranging from literary to technical (Snell-Hornby 1988: 31). In the classification of general, specialist and literary translation, we need to recognise that these categories of translation involve different language uses that have their own peculiarities, but they also share common grounds. As Vermeer (1986: 35, cited in Snell-Hornby 1988: 51) points out, for instance, the differences between general and literary...