The complexity of legal translation: social and cultural bounds aspects.
It goes without saying that certain fragments of reality, communication and relationships are reflected in language as a social phenomenon. This is the case of legal systems, which represent the distinguishing factor between national cultures. "Legal systems have their own history, organizing principles, patterns of reasoning and have been designed to answer the needs of a particular nation. This inevitably leads to the incongruity of legal concepts between national systems." (1) There are countries where legal issues are part of the mass culture, as in United States, where each citizen believes in fairness of its law enforcement system. This stereotype thinking is deeply enrooted in American history and culture, and in order for a translator to achieve a close and adequate perception of foreign lingua-cultural community, he or she must become a member of the communicative process through original texts, experience of legal translations. The translation process is a form of cultural interaction; it draws certain features about a foreign culture. During the translating process, one replaces culture elements in functional ways and adapts the text to other culture norms. The very notion of cultural interaction implies the presence of both general and peculiar elements, and the mismatch and match culture-bound term, which altogether allow distinguishing one community from another from linguistic and cultural points of view. Any translator, working with legal texts, must take into account the usage requirements-language usage habits of the source language, without violating the legal nature of the juridical perception. The analysis of linguistic and ethnic differences between the nature of the source language and that of the target language is based on cultural-historical and contemporary-every day character.
The most comprehensive communication between foreign cultures is made by creating in the target language an equivalent message, by means of translation. The notion of communicative equivalence of texts is crucial for understanding the mechanism of translation of foreign LSP material. For communicants two texts appear as equal forms of existence of the same message, they are equal in their functional, structural, and semantic identification. During the translation of legal texts to achieve such adequacy is possible only when that translator has legal literacy, both in foreign and native language. Legal knowledge and especially legal terminology contextual synonymy represent the most valuable skills for legal translator. The legal discourse represents the diversity and complexity of the judicial and procedural system of the state. Different countries have their different legal systems. The language of each nation has its own legal terms. For example, the English language serves the legal system of the USA, UK, and German-Germany, Switzerland and Austria. Linguistic equivalence of legal concepts is often not achievable. As Lucja Biel stresses out in the same article "Another obstacle which may limit the applicability of functional equivalents in legal translation is a problem of determining what a target legal system and recipients are. Ideally, a translation brief should provide such details; yet this is rarely the case. It is not so much a problem when translating from English into a language with one standard variety, [...], but vice versa, i.e. legal translation into English. Is the target text intended for the UK, US, Australian or Canadian audience? If for the UK audience, is it England or Scotland with its distinct legal system? The translation may be also intended for some undefined European audience, for which English is not a native language but is a lingua franca used to access texts written in languages of limited diffusion." (Biel, 2008: 25). There are some differences between legal English usage in the United States and England arising from various branches of law that need to be highlight. Any Act of Parliament or statute begins life as draft called "bill;" this is the case of United Kingdom, when speaking of primary legislation, as the predominant sources of law. But in American English an "act" is a "bill," and a "bill" is a "draft of bill or proposal." Thus, Romanian "lege" is translated in English "act or bill," while "proiect de lege"-"bill or draft/ proposal." (2) There are different aspects to discuss within the legal profession and its vocabulary in different legal culture as well. (3) A "barrister" in British English is an "advocate" in Scottish English and a "trial lawyer or appellate attorney" in American English, while in Romanian Legal language all these terms are translated by "avocat." Legal profession is linked to the legal culture of the country, thus the categories of legal profession actors are represented by different statutes. "Solicitor" in British English is "lawyer who advises clients on matters of law, draws up legal documents, prepares cases for barristers, etc., and who may plead in certain courts" (4), so that the adequate translation in Romanian legal language must reflect an area of activity similar to a solicitor's one. The institution of "consilier juridic" in Romanian law means that a "judicial counselor ensures: Legal advice, assistance, and representing authority, public institution or the judicial person on behalf the profession is practiced, defends the rights and the legal interests of them in relationship with the public authorities, institutions of all kinds, as well as with any judicial or civil person either resident or alien. Decides and contra signs judicial documents within the provisions of the law." (5) There are though little differences regarding cultural comprehension of legal institution in question. A judicial counselor is entitled to plead in all courts of justice, at any jurisdiction level, while a solicitor has the right to representation in court only in lower courts, e.g. magistrate's court and county court. On the other hand, in Romanian legal culture a judicial counselor has not the same statute as the lawyer (advocate, attorney-at-law, barrister) while in British English a "solicitor" is a category of lawyers.
Competition law regulates anti-competitive conduct that harms the market. In Great Britain, the Competition Act follows Article 81 and 82 of the European Community Treaty. In United States, the branch is called "antitrust law". In Romanian the branch is named "dreptul concurentei", but when referring to its legislative acts "legislate antitrust" is frequently used. It also covers abuse of dominant position, other legal term that differs from the US legal use of English -"abuse of monopoly power" must be used when talking about the American antitrust law. When dealing with anti-competitive practices and agreements one should bear in mind that the US legal term for it is "restraint of trade".
Employment law usually involves a mixture of contractual provisions and legislation regulating the relationship between employer and employee, and governing labor relations between employers and trade unions. American spelling for labor is "labor" while in British English the correct spelling is "labour law"; British English "trade unions" in US are called "labor unions". A "compulsory purchase" in United Kingdom is an "eminent domain" in United States, while the Romanian term for it is more or less the same with the term Canadian common law uses for the inherent power of the state to seize, without the owner's consent, the citizen's private property "expropriere". Legal language is, we can say, a national governing language. The main issue in this regard is the impossibility in some cases to find an accurate, adequate translation from one language to another. This complicates the translator's work, creates certain difficulties in the use of foreign language legal document.
Carrying out translation of legal texts, the translator deliberately departs from the structural and semantic correspondences between the two sides of communication in favor of their equivalence in terms of impact. Thus, despite the contradictions in views of linguists and lawyers, most are united in the fact that every text has a lexical, grammatical and logical framework, organized in a certain way in order to transfer information. There is no doubt that the legal texts in translation from foreign language into the target language, regardless of their functional purpose and pragmatic roles have the same basis. It is worth recalling that the law is a set of rules of behavior of individuals and groups in society, each prescribing a particular form of action for resolving legal issues. Therefore, language translation of legal documents should generally meet three conditions: to be precise, clear and reliable. The quality of legal translation in some way affects the effectiveness of enforcement, the degree of regulation of specific relationships.
2. Equivalency issue
There are three types of terms: those that have a semantic equivalent in Romanian, what M. Bazlik calls appropriateness, e.g. "the translated text should have the same informational content as the source text" (6) and, by all means it serve the same legal purpose; those that we can find a functional equivalent for, what specialists call conceptual adequacy, and those that are untranslatable and usually are accompanied in target language with additional description and relevant information. In different cultures, there are totally different, sometimes even divergent approaches to the phenomena and objects.
For example: What will be held to be "just and reasonable " must depend upon the particular facts of each case./ Ceea ce instanta retine in temeiul legii difera de la caz la caz; "Act of God", by which is understood some unforeseen accident of natural cause which could not have been prevented by any reasonable foresight./ Prin forta majora se intelege un fenomen natural de nebiruit si imprevizibil.
In these examples, the adaptive transfer of the legal text fragments is performed by juridical culture means of another language. It is obvious that "sets of facts and sets of consequences will rarely be exactly the same in two legal systems, therefore, concepts belonging to different legal systems are hardly ever identical." (7)
In carrying out the translation of legal documents, one should focus on legal culture bound lexical items, as "legal translation stands at the crossroads of three areas of inquiry--legal theory, language theory and translation theory." (8) In the legal context, these factors play a role, since language and law are closely connected and are generated through social practices. Indeed, "language is the essence of the law, since the law is substantially formulated through language." (9)
There are also cases when the translator overdoes his or her job and burden the text with legal-sounding terms, as in the next example: "a document in Russian issued by a registrar in the Soviet Union certifying the identity of a child's father. A literal translation of its title is 'certificate of affiliation'. However, the English translator, who fell into the sin of pomposity, decided that 'certificate' was not a legalistic enough word and decided to call the document an 'affidavit of paternity'. The error here is that, just as it takes two to tango, it takes two to make an affidavit: the person making the statement and the person who administers the oath to that person to endow the document with the required solemnity." (10)
From these examples we can see that the ways of translating legal documents may vary and be combined, depending on the presence in the source language of culture-bound legal terminology, the discourse structure of phrases. The study of lexical structure of the texts is limited to issues of terminology, as law terms are crucial for the legislator aims at promoting accurate and clear formulation of legal regulations. The most difficult aspect of legal translation is the culture-specific quality of the texts. As Martin Weston suggests, "the basic translation difficulty of overcoming conceptual differences between languages becomes particularly acute due to cultural and more specifically institutional reasons." (11) The equivalence of an institution, a division, a concept, or a term may not be found in the target language, so that it is the translator task to choose what method of translation is best to use, as to keep the style, lexical structure and the juridical meaning accurate. As both scholars and lay people agree on it, law's main function is to regulate social relationships. To accomplish this, it has to "communicate legal norms to their addressees." (12) This is carried out, as any other act of communication solely by language. Legal discourse though, more than other categories of specialized language, is dependent on the source or target language legal systems.
(1.) Biel, L. (2008), "Legal Terminology in Translation Practice: Dictionaries, Googling or Discussion Forums,?" SKASE Journal of Translation and Interpretation [online], vol. 3, 1: 23.
(2.) Nadrag, L, Bala (Nadrag), M. (2009), Legal English Dictionary. Bucuresti: Universitara Publishing House.
(3.) In this respect, we discussed the complexity of legal education and profession specialized vocabulary in the paper "Legal Education Vocab ulary," Conference Proceedings "Exploration, Education and Progress in the Third Millennium" Galati: Galati University Press, 295-298.
(4.) Radulescu, A. (2006), A Practical English Handbook for Law Students, Bucuresti: Fundatiei Romania de Maine Publishing House, 7.
(5.) Statute of judicial counselor, published in the Official Journal, Part 1684, July 29th, 2004, article 8 from General Provisions.
(6.) Bazlik, M. (2009), "Common Errors Committed In Translating (Not Only) Legal Documents," Brno Studies in English, 35(1): 14.
(7.) Mishchenko, V. (2010), "Terminology Translation in Teaching Legal English," English for Specific Purposes World 9(29): 6.
(8.) Harvey, M. (2002), "What's so Special about Legal Translation?," Meta : journal des traducteurs /Meta: Translators' Journal 47(2): 182.
(9.) Goddard, C. (2009), "Where Legal Cultures Meet: Translating Confrontation into Coexistence," Investigationes Linguisticae, Vol. XVII, Adam Mickiewicz University: 173
(10.) Frame, I. (1986), "Legal Translators and Legal Translation: A Personal view," Proceedings of Translating and the Computer 7, London: Aslib, 29.
(11.) Weston, M. (1983), "Problems and Principals in Legal Translation," The Incorporated Linguist 22(4): 207
(12.) Smejkalova, T. (2009), "Translation of Legal Texts," COFOLA 2009: the Conference Proceedings David R., Neckaf J., Sehnalek D. (Editors). Brno: Masaryk University
Spiru Haret University, Constantza
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jan 1, 2012|
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