Issues
in Legal Translation
Steven Kahaner
“(...)
not every man is able to give a name, but only a maker of
names; and this is the legislator, who of all skilled artisans
in the world is the rarest (...)
But (...) the knowledge of things is not to be derived from
names. No; they must be studied and investigated in themselves
(...) and no man of sense will like to put himself or the
education of his mind in the power of names; neither will
he so far trust names or the givers of names as to be confident
in any knowledge which condemns himself and other existences
to an unhealthy state of unreality (...)”
Plato, Cratylus (Jowett translation)
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to Plato, words are unreliable guides to the ideal (the
goal of all knowledge) because one cannot know how good
a job the lawgiver did in making them, and because they
have subsequently been subject to change by “people
who care nothing for the truth, but only for the shape
of their mouths.” ¹
Likewise,
lawyers must often face a contrast between an ideal
vision of “the law” and the reality of legal
life, which is made up more by precedents subject to
interpretation than by statutes carved in stone. These
difficulties are compounded in the cross-border context
due to the additional complexities of different languages
as well as different legal systems.
In
solving international legal problems, a lawyer will
be dealing with words, and the accuracy of a written
legal document depends largely on word selection, syntax
and good sentence structure. According to A. Samuel
Adelo, “the lawyer must then depend on a translator
to render the words he uses in a legal document into
another language.” Conversely, a lawyer in international
practice will often require the services of a translator
to render foreign documents (usually drafted by an attorney
subject to equally demanding requirements relating to
word selection, syntax and sentence structure) into
the lawyer’s native language. Unfortunately, lawyers
often underrate the importance of selecting a good translator
to accomplish these important tasks.
Legal
translation is often more difficult than other types
of technical translation because of the system-bound
nature of legal terminology. Unlike scientific or other
technical terminology, each country has its own legal
terminology (based on the particular legal system
of that country), which will often be quite different
even from the legal terminology of another country with
the same language.
In
“Culture Clash: Anglo-American Case Law and German
Civil Law in Translation,” Sylvia A. Smith explains
that the system-bound nature of legal text means that
successful translation into another language requires
competency in at least three separate areas: first,
a basic knowledge of the legal systems, both of the
source and target languages; second, familiarity with
the relevant terminology; and third, competency in the
specific legal writing style of the target language.
Without these competencies, the translator’s rendition
will be a word-for-word translation that is often incomprehensible. |
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Thus, the professional legal translator
must be part linguist, part legal scholar and
part detective, willing and able to search out
and define legal concepts expressed in the source
language of a document that may not even have
an equivalent in the language or legal system
of the target text. The translator must first
decode the source text and reconstruct
its meaning in the target text. In many cases,
the translator is limited to finding a functional
equivalent for a word or phrase or a parenthetical
explanation because an exact translation is impossible.
A
good legal translator also knows that even within
the legal field there are completely separate
areas of law that require specific translation
techniques: a contractual document has little
in common with a will, an administrative certificate,
a judicial decision or a statute, to name a few
examples. |
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The
translator knows that he or she must consult not only
a monolingual legal dictionary, but also a treatise
regarding the subject matter, and that bilingual dictionaries,
while useful, should be used with caution.
The
professional legal translator must understand the intended
use of the translation, which has as much bearing on
his or her approach as the text of the document itself.
Terminology, phraseology, syntax, register (tone) and
a myriad of other parameters will be affected by the
purpose of the translation (e.g., is the translation
for information purposes only, binding contract language,
or for submission as evidence in court?). As source-text
documents are not always well written or clear, the
translator must first decide, in the words of author
Holly Mikkelson, whether the source text is “unintelligible
to the laymen but not the expert, or simply unintelligible.”
In this case, the translator would have to decide whether
a faithful translation of the meaningless original should
be equally meaningless in the target language, despite
the pain of deliberately creating nonsensical text.
When
faced with international disputes involving different
languages and legal systems, legal counsel and their
clients would be well advised to obtain the services
of translators able to successfully bridge the divide
of legal systems, as well as language and culture, in
order to provide literate rather than literal
translations.
Finally,
attorneys involved in international litigation should
be aware of a recent UK case involving the translations
of a party’s own non-privileged documents. In
Sumitomo Corporation v Credit Lyonnais Rouse Ltd,
the Court of Appeals held that in the context of legal
professional privilege, there was no relevant distinction
between a translation of an unprivileged document controlled
by the party claiming privilege and a copy of such document.
Because the translations were not original documents,
privilege would only apply under certain limited circumstances.
As a result of this decision, opposing parties will
be entitled in most cases to copies of translations
from the other party upon payment of the copying fee,
without sharing in what can be substantial translation
costs.
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Joseph, John E., Indeterminacy, Translation and the
Law, in Translation and the Law, American
Translators Association Scholarly Monograph Series. |
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| Steve
Kahaner is the Executive Director of Juriscribe
and a licensed attorney with over 10 years of practice
experience. He is a member of several bar associations,
and has served as director of a number of non-profit
associations, including The Association of Language
Companies, for which he currently serves as Vice
President. In the academic realm, Kahaner has been
a Subject Matter Expert for NYU’s Center for
Foreign Languages and Translation, teaching Spanish-to-English
Legal Translation. He is also a fan of motorcycling,
scuba diving and skydiving, but hasn’t had
the time to engage in any of those activities for
quite a while. |
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