Although our daily lives seem so far away from the high echelons of judicial courts, laws are still very much an integral part of our laws. From the moment we are born, our existence is documented, legalized, and codified by the laws of our country. Our daily interactions all take place under the regulations of a pre-existing law. Buying a drink from a local cafe? We have zoning laws, business regulations, and laws on commercial transactions to thank. Getting married? Nuptial law’s got your back.
When these laws and regulations exist within a country in which a single, de facto or “official” language is spoken, not many problems exist—of course, aside from the difficulties of interpreting the notoriously difficult language of laws, complex and illegible in all languages. However, in countries that have more than one spoken/written languages or in cross-linguistic interactions, these legal texts must be translated. In today’s globalized world, legal translation is more needed than ever so as to facilitate the very legal actions that we partake in every day. This is all the more true for businesses, governments, and other entities that deal with international commerce, trade, and other forms of interactions.
Like any other form of specialized translation, legal translation is difficult and faces its own unique set of challenges. From traditional modes of writing to cultural differences in legal procedures, legal translation is one of the most difficult specialized modes of translation, as it requires thorough understanding of the legal systems of not only the country of the source text but also that of the target language. This blog post seeks to explain the features, challenges, and methods of legal translation as it is used in the world today.
What is legal translation?
Legal translation is, in the barest of terms, the translation of one legal text from one language to another. It sounds simple, but nothing about the process is simple. For one, language used in legal texts are highly specialized forms of languages that require in-depth understanding of the legal system. In that sense, legal translation is not only a word-by-word, sentence-by-sentence rendering of the source text, but essentially a transposition of the structure of the legal text into a wholly different legal structure. Many factors, such as cultural differences in legal proceedings and linguistic differences in terminology, inhibit translators from carrying out straightforward translations, as would be expected from other forms of translation.
What are the features of legal texts?
Before understanding the specific challenges of legal translation, we must first understand how exactly difficult legal texts are, as well as the specific features of legal texts that make them so difficult to translate. In his comprehensive article, “Linguistic Features of Legal Texts: Translation Issues,” linguistics scholar Maurizio Gotti explores the treacherous depths of legal texts and the various ways they confound readers.
For starters, legal texts must maintain an “avoidance of ambiguity and precision of interpretation.” It is critical that legal texts be as concise and accurate as possible so as to minimize misunderstandings, which have detrimental effects on those affected by such failures. How such ambiguity is prevented, however, is the main problem; Gotti writes that, in legal texts, “old formulae are preferred to newly coined words because of their centuries-old history and highly codified, universally accepted interpretations”. Hence, the fancy, uptight words we find in legal texts: hereto, in forma pauperis, etc. Such a strict adherence to tradition, Gotti notes, “also reflects [the legal texts’] close link with the ancient practice of using special formulae for oaths or appointments, for drafting edicts and statutes, for issuing laws, conferring honours, or assigning property”. Gotti provides two examples of how such old-fashioned language exists in legal texts, both in English and Italian:
salvo che la legge disponga altrimenti > unless otherwise provided by law
salvo quanto previsto dall’art. […] > without prejudice to the provisions of Article […]
As a result of this adherence to tradition, legal texts suffer from a “high level of redundancy” in the form of long-winded, pleonastic descriptions and “use of lexical items.” Here, we come to a paradox: legal texts are supposed to be as concise and precise as possible so as to avoid misunderstanding, but in doing so, legal texts resort to difficult linguistic structures and phrases that end up befuddling readers. Gotti explains how, specifically in English, “legal drafters often employ two interchangeable terms for the same concept”, examples being “new and novel, false and untrue, made and signed, terms and conditions, able and willing”. Such usage derives from the age of the Norman Invasion, a period in English history where both English and Norman French were spoken on the island. Such linguistic obstacles make it difficult for translators to properly translate between English and other languages.
All this leads to the notoriety of legal texts, of their “great length and complexity.” Gotti provides the following examples:
This Agreement, effective as of the first day of April 2011 between Dale Johnson Ryder Warren, an Association organized and existing under the laws of Switzerland (‘Grantor’), its successors and assigns, and DJRW Johnson Ryder Simpson & C., its successors and assigns (‘Member Firm’) […]
The Tenant will […] pay for all gas and electric light and power which shall be consumed or supplied on or to the Property during the tenancy and the amount of the water rate charged in respect of the Property during the tenancy and the amount of all charges made for the use of the telephone on the Property during the tenancy or a proper proportion of the rental or other recurring charges to be assessed according to the duration of the tenancy
In the first example, a single noun phrase (this agreement) is “specified by 42 other words providing information about its validity, the names of parties involved, their legal address, the names assigned to them later in the contract and mention of the successors to the two signatories”. The second example show cases how legal texts “exhibit a high number of postmodifiers and relative clauses, in contrast to other kinds of specialized discourse, which instead prefer pre-modification.” If you have read our previous post on technical translation, you will know that technical texts exhibit a tendency to utilize pre-modifying nominalization to elaborate and specify, such as in the example depth-control drill operation. All this is to say that legal texts do not grant the benefit of the doubt; everything must be expressed in full so as to avoid ambiguity, and in doing so, legal texts are laden with modifying clauses.
In the end, despite the legal systems’ need to be both unambiguous and precise, “compliance with tradition is stronger in legal discourse than is the search for conciseness.” Legal drafters forgo precision, rather sticking to formal, antiquated writing. However, there are some ways that legal drafters work around this tendency, namely by using adverbials to refer to parts of the text itself. Gotti notes how, in the following example provided, “textual-mapping” adverbials “hereto, herein, hereof, and thereto” are used for clarification:
Whereas, Johnson Ryder Archer & C., Johnson Ryder Chester & C., Dale Johnson Nelson & C., Dale Johnson Stokes & C., Grantor, Johnson Ryder International a partnership, and Dale Ryder Warren an association, have entered into the Component License Agreement, effective as of 1 April 2011 (‘Component License Agreement’), a copy of which is attached hereto as Appendix B (without Appendices A and B attached thereto which are Appendix A hereto and a form of this Agreement) and made a part hereof as if fully recited herein and to which the Member Firm agrees to be fully bound as if originally a party thereto […]
Challenges of legal translation
Gotti notes how recent decades have seen a great demand for legal translation due to “globalization and increased contact and exchange between people and states.” To facilitate the ever-growing need for accurate legal translation, legal entities and drafters have come up with the “principle of legal equivalence… which underlines the consideration of the legal effects that a translated text will have in the target culture.”
Why is equivalence important in legal translation? It’s because legal discourse is so “culture-laden” and because there must exist some “formal correspondence between equally authoritative versions of the same text.” Not only must the target text be as equally authoritative in nature, but it must also be accurate and abide by the legal infrastructure of the target culture and government. This requires the legal translator to “undertake a process of conceptual analysis by means of which he is able to identify and assess the most important differences between the source and target legal systems as they are expressed in the text to be translated.” In simpler words: translators not only translate, but assess the most important parts of the source text and transpose it into pre-existing (or not) terms and concepts in the target language.
However, there are numerous difficulties that lie in achieving these goals in legal translation. Firstly, there are linguistic constraints; the sheer differences between language inhibit translators from easily making a transposition of one word/concept/sentence to another. Gotti provides a particularly illuminating example of such difficulties when translating between Chinese and English. Mandarin Chinese, like many languages, do not make clear distinctions in inflection (singular/plural nouns and verbs, for example) and grammatically significant elements (such as definite and indefinite articles).
According to Gotti, a literally translated Chinese phrase might look like this: “cause serious environmental pollution accident.” This can be translated into either
- cause a serious environmental pollution accident
- cause serious environmental pollution accidents
Such ambiguity in linguistic differences poses problems: “does a person have to cause more than one such accident to be criminally liable, or just one accident is sufficient?”
Another example is Mandarin Chinese’s omission of certain conjuctions, such as the literally translated phrase “resulting in serious loss to public private property.” Does this mean “to public and private property” or “to public or private property?” The same applies to “personal injury and death or personal injury or death” both of which are rendered as “personal injury death” in the transliterated Mandarin original.
Another difficulty of legal translation is the “drafting traditional and… stylistic conventions” of a particular legal system. The legal systems of different countries have very different backgrounds, traditions, and methodologies in dealing with legal issues. One of the most notable distinctions within legal systems are the differences between systems based on civil law and those based on common law, the former used more around the world and the latter used mostly in Anglophone nations.
An example of such differences in tradition is, Gotti notes, the way the English legal system utilizes the modal “shall,” whose purpose is to signal juridical obligation. The following example shows this in action:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimina- tion of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Gotti notes that, in other languages such as French and Italian, “legal discourse often adopts a present indicative to state legal provisions.” Here is an example:
Gli Stati parti si impegnanoa rispettare i diritti enunciati nella presente Convenzione ed a garantirli ad ogni fanciullo che dipende dalla loro giurisdizione, senza distinzione di sorta ed a prescindere da ogni consid- erazione di razza, di colore, di sesso, di lingua, di religione, di opinione politica o altra del fanciullo o dei suoi genitori o rappresentanti legali, dalla loro origine nazionale, etnica o sociale, dalla loro situazione finanzi- aria, dalla loro incapacità, dalla loro nascita o da ogni altra circostanza.
The effect of the present indicative is that it “emphasiz[es] the actuallity and applicability of the legal provision and also impl[ies] that the law draws its force from the natural order of things rather than expressing an order imposed by human agents.” Such differences already show widely varying perspectives as to how each tradition treats and thinks of the power and position of their own legal systems.
Finally, the last challenge faced by legal translators is the difficulty of translating legal terminology. Gotti quotes René David, who writes:
To translate into English technical words used by lawyers in France, in Spain, or in Germany is in many cases an impossible task, and conversely there are no words in the languages of the continent to express the most elementary notions of English law. The words common law and equity are the best examples thereof; we have to keep the English words […] because no words in French or in any other language are adequate to convey the meaning of these words, clearly linked as they are to the specific history of English law alone.
In other words, there really isn’t a one-on-one correspondence between legal terminology across languages. Gotti notes that, “even in legal systems that are closely related and even share the same language, such as Austria and Germany,” one concept is not necessarily recognized as its exact equivalent in another language.
Gotti provides a number of examples. For one, English legal discourse loves to use the adjective “reasonable,” found in phrases such as “reasonable steps, reasonable measures, reasonable person, and proof beyond a reasonable doubt.” The word “reasonable” itself, however, can’t just be translated into its counterparts, such as “ragionevole” (Italian), “raisonnable” (French), or “vernünftig” (German). Or take the “culturally specific French collocations” such as “acteurs sociaux, acteurs économiques, acteurs institutionnels, acteurs publics, acteurs politiques” none of which have direct translations in English.
As a result, legal translators must be equipped with ample knowledge of the legal systems in both the languages of their source text and target text. Gotti cites Marta Chromá, who illustrates how translators must find the legal equivalents despite seemingly different structures and concepts. For example, the “arraignment” in English legal discourse is translated into the Czech phrase zahájení hlavního líčení, which means “commencement of criminal trial.” In reverse, the Czech phrase hmotná odpovědnost, meaning “to be found in employment law” is equivalent to the English legal phrase “liability to indemnify.”
Translation methods and strategies
As in the example above, translators either find linguistic/legal equivalents or resort to other methods so as to retain the unambiguity, precision, and authority of the source text in the target text. This requires legal translators to be creative, resourceful, and cunning. One method is the usage of calques, or loan words, in which translators borrow directly from the source text. For example, the phrase visible minorities (minorités visibles), found commonly in Canadian political discourse, has been borrowed into the Italian language as minoranze visibili, referring to minority groups whose traits are visually identifiable (skin color, etc.)
Another method is explication, such as the French word âgism, corresponding with the English word ageism. Due to the fact that the word for “age” is different in other languages—not to mention different linguistic constructions of nouns—the Italian translation explains the concept (la discriminzione per età).
There are a number of other translation methods and strategies available to the most proficient, experienced legal translators. A single word may be translated into very different words depending on the context, for example. Whatever the case may be, legal translators must be prepared to handle any and all linguistic, legal, and cultural differences that exist between the source and target languages.
Gotti, M. (2014). Linguistic Features of Legal Texts: Translation Issues. Statute Law Review, 37(2), 144–155. doi:10.1093/slr/hmu027