Chapter 4 Legal Translation and Terminology

Preview Importance of legal translation Legal translation and comparative law Types and status of legal texts Goal of legal translation Legal translator’s competences Drafting rules

Legal translation (S. Šarčević) Legal translators – in high demand today due to globalization, regionalism and increased translation at national level

High demand for legal translators Globalization – increased mobility of people, goods, services and capital International law and international organizations International trade law International dispute resolution

High demand for legal translators on the regional and national level Regionalism – development of regional markets and harmonization of national laws EU law National level - translation in bilingual and multilingual states Right to use one’s langage before the courts

Specialized translation Transfer of specialist knowledge from a source text into a target text by a translator who ideally has “the knowledge, the competence and the recognized status of an expert”

Legal translation More than the “transfer of specialist knowledge” Most legal texts produce legal effects The success of legal translations – measured by their interpretation and application in practice, esp. by the courts A translation – successful only if it accurately conveys the specialist knowledge in the source text and produces the intended legal effects in practice

Goal of legal translation To produce a text that will preserve the unity of the single instrument by guaranteeing uniform interpretation and application A reliable translation is one that expresses the intended meaning and leads to the intended results

Legal translation as approximation Unlike texts of natural sciences, legal texts are not based on a universal system of knowledge but derive their meaning from a particular national legal system – the source legal system The product of a different history, cultural and lagal tradition, every legal system has its own sources of law, classification, institutions and conceptual system and thus its own language and knowledge structure Due to incongruity of legal systems, legal translation is often said to be “approximation”

Legal translation and comparative law Legal translation consists of both legal and interlingual transfer Translator – concerned not only with interlingual transfer from a source language into a target language but also with legal transfer between legal systems The target legal system – the system to which the target receivers belong and is determined by the language of the target text

Roles of legal translator A double role: receiver of the source text and producer of the target text A translator has no authority to resolve an ambiguity in the source text as this would be an act of interpretation

The role of comparative law The success of a legal translation depends on the degree of similarity of the source and target legal system and on the affinity of the source and target languages

Types of legal texts PrescriptiveDescriptive/prescriptivedescriptive Legislation, delegated legislation Codifications Treaties and conventions Contracts Judgments Wills Documents used for judicial proceedings (appeals, requests) Academic textbooks Commentaries Scholarly articles Legal opinions

Legal translation as communication Factors that have an impact on translation strategy: Type of text Communicative function or purpose (skopos) Legal factors: source legal system, legal receivers and target legal systems, how many legal systems are involved, drafting techniques, rules of interpretation

Status of legal translations The communicative purpose – determined by its status, i.e. whether it is authentic or non-authentic Authenticated translations – legally binding (e.g. EU legislation, UN conventions) Non-authentic translations – for information purposes

Target receivers in legal translation Indirect receivers – all persons affected by the particular instrument, including the general public Direct receivers – specialists empowered to interpret and apply the insturment: public officers in government and administrative agencies, the judiciary

The goal of legal translation To produce a target text which conveys the content of the source text as accurately as possible and leads to the same legal effects (legal equivalence) The success of authenticated translations – measured by their interpretation and application in practice The goal of multilingual legal communication – to achieve equality before the law in all language versions; to produce a target text that will be interpreted and applied by the courts in the same way ( uniform interpretation and application of all texts)

Co-drafting While it is traditionally presumed that source text and target text are produced at a different time, the goal of bilingual drafting is to coordinate the time and place of the production of parallel texts to the greatest extent possible Legal translators have gradually become text producers with drafting responsibilities, thus decreasing their dependence on the source text; wider decision-making powers; permitted to make legal as well as linguistic decisions First consideration – no longer fidelity to the source text but rather fidelity to the uniform intent of the single instrument, i.e. what the legislator or negotiatiors intended to say

Competences of legal translators Must be able “to understand not only what the words mean and what a sentence means, but also what legal effect it is supposed to have” and possess the drafting skills “to achieve that legal effect in the other language” Considerable language and legal competence Must produce a target text that is legally reliable and of high language quality

Competences of legal translators Not only in-depth knowledge of legal terminology, but also a thorough understanding of legal reasoning and the ability to solve legal problems, to analyze legal texts, and to foresee how a text will be interpreted and applied by the courts Extensive knowledge of the target legal system and the source legal system Drafting skills are required and a basic knowledge of comparative law and comparative methods

Lawyer-linguists in the EU Responsible for revising, harmonizing, and coordinating all language versions to ensure that each text expresses the uniform intent The Jurist/Linguist Service – established in 1966 ‘to compare the language versions of a legal text, to arrive at a uniform interpretation and to ensure that each version faithfully reflected that interpretation Lawyer-linguists: a law degree, good knowledge of their national law, EU law, public international law, a good command of several EU languages; translate only into their own language

Legal translators in the EU When selecting equivalents, translators must take account of terminology used in other instruments already in force Since authenticated texts are considered final and definite, the language therein has the status of a precedent Once an equivalent has been used for a particular concept in any authentic text, other translators are obliged to use the same equivalent, even if they consider it inadequate Authenticated translations – a source of law

Legal translators Like legal drafters, translators must be thoroughly acquainted with the format of a legal text and understand the function of each of its parts in order to be effective text producers

Consistency requirements Use of official titles Citations from prior translations Consistency of terminology Use of official translation equivalents

Standard forms Clauses and entire provisions expressing repetitive actions – standardized for use in translations and published in drafting manuals

Commercial contracts: common clauses Names and addresses of the parties Rights, obligations and liabilities of the parties Force majeure clause Termination Dispute resolution Warranty and exclusion Entire agreement clause Governing law Signature, date and execution

Commercial contracts The source legal system is the law governing the contract regardless of the language of the contract; many contracts – drafted in English but governed by a different law Target receivers – contracting parties identified in the first clause and ultimately the courts specified in the forum clause in the part on dispute resolution

Commercial contracts Civil law lawyers should not use model forms of commom law contracts because they contain technical common law terms which appear to be easily translatable but the literal translations often mean sth very different to civil law lawyers International commercial contracts should be drafted in neutral terms that are easily translatable and will be understood by both parties and the competent courts

Drafting legal rules in legislative texts Legal rules specify the subject matter and scope of application, set forth definitions and prescribe the rights, obligations and liabilities Translation competence presupposes that translators are able to understand legal rules in the source text and “draft” them correctly in the target language. They should not be translated literally because drafting techniques differ from jurisdiction to jurisdiction

Main elements of legal rules The fact-situation expressing the conditions that must be fulfilled in order for the rule to operate The statement of law which prescribes the legal action to be performed when the rule becomes operative

Implications for translators Translators – generally permitted to select the syntax and word order that expresses a legal rule most clearly in the target language, provided the content remains unchanged

Regulatory speech acts Some of the major decisions made by legal translators involve regulatory speech acts Translators must be able to recognize and formulate commands, prohibitions, permissions, and authorizations

Using language to achieve the desired legal effects in legal rules The statement of law contains the normative content of legal rules expressing the legal action prescribing how the addressee: Shall act (commands), Refrain from acting (prohibitions) May act (permissions) or Is authorized to act (authorizations)

Formulating legal commands Legal commands express obligations Shall – in legal English used to express the legal imperative; it imposes obligations

Formulating requirements Requirements express the existence of an obligation that is usually procedural. Such provisions often require that certain conditions be satisfied and the subject is not a human being. They are formulated in English with must Securities must fulfill the following essential requirements

The use of “should” in legal English Should does not express a binding obligation and is therefore not used in the substantive provisions of legislation and treaties, including the enacting terms of EU regulations, directives and decisions (binding) Should means “it is recommended” it is used in the preamble of treaties and legislation, in the recitals of binding EU legislation and in EU recommendations and opinions (non- binding)

Formulating prohibitions in English Prohibitions are provisions forbidding persons and authorities to perform certain acts and whose performance is punishable by sanction. As negative commands, they are expressed with: SHALL NOT By negating the subject or With the expression IT IS PROHIBITED Weaker prohibitions with MAY NOT express the cancellation of a permission or exception to a general permission. The expressions IS NOT PERMITTED and IS NOT ALLOWED are not used to exress prohibitions in English

Formulating permissions Exspressed with MAY; NEVER use CAN Do not use the expressions “it is permitted” and “it is allowed” IT IS ADMISSIBLE is used in procedural provisions

Formulating authorizations Authorizations confer power upon some person or authority to perform an act Expressed with MAY, IS AUTHORIZED TO or IS EMPOWERED TO

Structure of judgments After identifying the issues or questions of law (major premise) and establishing the facts of the case (minor premise), the judge applies the law to the facts, reaching a conclusion of law on which the final decision is based

Judgments of the ECJ Since 1984, the body of the judgment consists of two parts: the recital of the parties and the decision (reasons + operative part), while the introductory materials include the summary (key words + synopsis), report for the hearing (facts and issues), and the non-binding opinion of the advocate general

Structure of legislative texts Preliminary, principal, and final provisions Arrangement of provisions should be logical and clear language should be used to mark the transitions

Structure of treaties A title, a preamble, main part, final clauses Title – means of identification Preamble – the purpose of the treaty, often mentioning international obligations, or explaining reasons for adopting the treaty Substantive provisions: legal rules setting forth the legal obligations, prohibitions, and rights of the parties Final provisions: provisions on ratification, depositary, amendments, revisions, repeals, reservations, period of validity, entry into force, language, place and date of signature