Upgrading the profile of the legal translator in the EU, Canada and Switzerland.
Before the 20th century the legal translator had a very limited role and acted as a passive mediator between the text producers and receivers. The main translation principle that used to govern the legal translators' work was fidelity to the source text; despite this principle, serious doubt was cast on their ability to express the intended meaning of the source text objectively, without the slightest subjective interpretations or value judgments that might easily have altered the legal effect produced. Michael Akehurst, a member of the team that translated the English version of the Treaty establishing the EEC considers that the legal translator's job is "to translate what is actually being said, not what he thinks ought to have been said"? with regard to his own experience of translating the Treaty, he acknowledges that his task was "to translate the Treaty, not to improve it."(Akehurst, 1972:25-26). On the same line of reasoning, Susan Sarcevic mentioned in her book that "one of the biggest fears of treatymakers is that translators will clarify an intentional ambiguity or unclarity" (Sarcevic, 1997: 92). It goes without saying that Treaties are sometimes the result of many political compromises where consensus needs to be obtained even at the cost of sacrificing clarity in formulation. In other words, in the view of the authors mentioned above, legal translators should not overstep their role in the attempt to interpret the letter of the law; neither should they clarify things that were intentionally left unclear from the very beginning. Their responsibilities were strictly limited to assuming linguistic decisions.
Yet, if we are to see things from a different perspective, we also have to join Deborah Cao in her legitimate question of "how the translator of international instruments distinguishes the deliberate obscurity that is the expression of a political and often hard-won compromise from inadvertent obscurity produced when those drafting the original text use a language that is not their mother tongue" (Cao, 2007:153). In a nutshell, how should a translator of international or European legal instruments distinguish a politically motivated linguistic obscurity, intentionally left unclear in a text, from a negligent linguistic error, caused by the drafters' lack of linguistic competence? We consider that, as long as translators focus both on the legal content of the text and on the consistency of specific terminology and make the best use of their experience as professional translators and jurists, preferably, they may easily discern what particular intervention may be asked of them--either political diplomacy or text proof reading.
According to the "Joint Practical Guide of the European Parliament, the Council and the Commission for the persons involved in the drafting of legislation within the Community institutions", guideline 5.2, "... the original text must be particularly simple, clear and direct, since any overcomplexity or ambiguity, however slight, could result in inaccuracies, approximations or real mistranslations in one or more of the Community languages". (1) Considering that this guide was intended to improve the quality of drafting Community legislation and offer solid drafting guidelines, the drafters are expected to comply with its principles. And, as the text quoted above clearly shows, any ambiguity is to be avoided when drafting legislative acts and the arguments are also clearly emphasized. Therefore, the translator should not be faced either with such ambiguities in legislative texts or with difficult decisions--whether to render accuracy to the text by altering its wording or to translate it as it is and transfer ambiguity to the target text--if the drafters complied with the principle of 'simple, clear and direct' mentioned above.
2. Upgrading the profile of the legal translator
Considering the limited role of the legal translator up till the second half of the 20th century, a question arises: which was the context that led to the need of upgrading the responsibilities of the legal translator who is now also required to take on legal decisions, apart from the usual linguistic decisions? In order to provide an answer to this question, we need to briefly refer to the process of legal translation within the European Union, within countries like Canada and Switzerland, which have bilingual and plurilingual legislation, respectively, as well as within the United Nations, where the process of multilingual translation has been performed for many years.
In the European Union, many legal instruments are adopted by lawmakers and treatymakers. These legal instruments belong to the category of 'authoritative' legal texts, authentic texts that will be legally binding once they have been approved by the competent lawmaking bodies. In the early process of expanding the EU membership, many linguistic versions of the original European legal instruments used to be translated into different target languages of the new Member States but after not prior to their initial adoption. It is for this reason that the legal authenticity of those versions was later highly questioned by European authorities. The principle that ensured that all official language texts of treaties, regulations, directives etc. were equally authentic and had equal legal force was the so-called principle of 'equal authenticity', stipulated in the 1969 Vienna Convention (2) and it was valid as long as the translations were ready before being submitted for authentication and not after. Therefore, in order to be considered an 'authentic' text, a particular linguistic translation of a European legal instrument has to be submitted for scrutinization prior to its adoption, so as to allow the lawmakers enough time to examine the accuracy of the translation.
With every new expansion of the EU, the same controversial issue arose--whether to decentralize the translation process, thus allowing the new member states to have all the translations done by their national translation staff, as an efficient means of cutting costs or to maintain the centralized translation mechanism. The reason why this latter option was always preferred has to do with respecting the principle of preserving the 'uniform legal intent' of the European legal translations, which could only be achieved by having the production and translation of all legal instruments coordinated by the EC/EU Translation Service.
The direct consequence of maintaining the centralized translation mechanism and, at the same time, the best solution to improve the reliability of the authenticated translations of the European legal instruments was to actually incorporate the translator in the entire legislative process. Therefore, the legal translator has become part of the lawmaking team so as to have first-hand knowledge of the legal intent embedded in the texts. This decision brought about the need to upgrade the profile of the legal translator, who was no longer a linguist specialized in translating legal language but also a professional with a good control of 'legal competence'. According to Susan Sarcevic, "Legal competence presupposes 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. In addition to these basic skills, translators should also possess extensive knowledge of the target legal system and preferably the source legal system as well.", Sarcevic, 1989: 281)
3. Co-drafting bilingual and plurilingual legislation
In Canada and Switzerland, the profile of the legal translator has acquired even more responsibility since, apart from a degree in law, he/she also needs an extensive training in drafting/co-drafting legal texts; it is for this reason that in Canada, the specialists in legislative drafting are referred to as 'legislative counsel'.
Canada was the first that broke with the traditional way of translating legal texts, more precisely with the system where the translation operations were performed in isolation by a translation service attached to the Ministry of Justice or other government department. In the early 1970s, the Canadian Federal Department of Justice invited francophone translators to attend the sessions where the English texts were being drafted, in the beginning only as passive attendants but starting with 1976 as active co-drafters. This decision was based on the fact that permitting the translator to take part in the production of the source text resulted in visible improvements in the quality of both source texts and target texts. In time, the translator became an active part of the drafting team in all the phases of text production: drafting, revision, coordination and final scrutizination. The same strategy of incorporating the translator in the drafting team was also applied in Switzerland, where the final versions of the German and French texts of the Swiss Civil Code were the result of close co-operation between the drafter of the German text and the French translator, both of whom were legal experts. (Sarcevic, 1997: 97)
The decision to impose the method of co-drafting the legislation of plurilingual/bilingual countries like Switzerland or Canada was politically motivated. In Switzerland, the predominance of German language threatened the cultural and linguistic identity of the Swiss minorities. These minorities claimed to have at least part of the legislation originally drafted in French or Italian and translated into German. Consequently, the government took steps to recruit more French legal experts but the progress was slow and only 10% of federal legislation was originally drafted in French. In the early 1990s, the concept of co-drafting teams became official. Such a team consists of two linguists (French and German), at least one lawyer from the Department of Justice and other legal experts from the departments concerned; the German and French versions of the original legislation were simultaneously drafted, revised and coordinated before being submitted for approval.
3.1 The five Canadian methods of bilingual drafting
The co-drafting methods used in Switzerland are different from those used in Canada. We are now going to briefly present the five methods of bilingual drafting used in Canada, whose ingenious work laboratory is largely presented by Susan Sarcevic m her book "New Approach to Legal Translation"?
* Alternate drafting--refers to the fact that one part of a bill is drafted in English, the next in French and so on; therefore, the source text is being alternated (but it is still possible to distinguish the principal source texts and the target texts) and there is no need to mention that this a unique innovation in parallel text production;
* Shared drafting--it is essentially the same as alternate drafting, with the exception that each co-drafter draws up half of the text, then translates or has the other half translated. As a result, neither language version can be designated as the principal source text.
* Double-entry drafting--as the name suggests it, the same person drafts both texts, preferably part by part in tandem--one text alternatively serves as the source text for the other; this method should be ideal because it guarantees the unity of thought; ifs the first method where a bilingual translator is employed to accomplish this task. Yet, it is well known that bilingual translators favor one language and it is a rather difficult task to find a legal counsel who masters both legal English and legal French to the same extent.
* Parallel drafting or 'simultaneous drafting' means that the texts are drawn up independently; after discussing the content of the bill to the smallest details, the co-drafters retire and draw up large parts of the bill in their own departments; they co-operate a lot and then pass the drafts on to the revision committee. This is the first method where the focus utterly shifts from the language to the content or intent of the bill.
* Joint drafting--if in parallel drafting the co-drafters worked independently in the drafting phase, this time they not only discuss the content of the bill jointly, but also draft the bill jointly, using both languages. They work on both versions in parallel and revise them as they write. Though time-consuming, it is the ideal method that guarantees unity of thought while still preserving the accent on the accuracy of formulation in both languages. The condition is that not only the Francophone co-drafter should know English, but the Anglophone co-drafter should know French as well.
Once we have presented these five methods of bilingual drafting, the question arises to what extent can they be considered translations? In other words, are they translations or text production methods? The method of 'alternate drafting' can be regarded as a legitimate form of translation (a source text is translated into a target text, the innovation being that they change places); 'shared drafting' can also be considered a form of translation; double entry drafting is a valid form of translation where the producer of the source text and the translator are one and the same person. On the other hand, in 'parallel drafting', we can no longer speak of translation, since no text serves as the source text for the other; both texts are produced in parallel and independently; what they actually share is the content; therefore, we can no longer speak of translation here, but of text production. The same observation applies to 'joint drafting', where the co-drafters conceive the texts simultaneously, being essentially focused on the content of the bill and not on the fidelity of word-to-word formulations.
As it can be seen from these five strategies of drafting/co-drafting legal texts, the greatest shift produced in legal translation is that from fidelity to the source text to fidelity to the content of the law, the main focus being on preserving the meaning or the 'legal intent' of the legal instrument unaltered. This principle is of major importance, since the legal text drafted or translated is not a simple text translation, but is vested with the force of law and will trigger the legal effect intended.
Making reference to Nelson's study, (3) Deborah Cao incorrectly uses the concept of 'multilingual drafting' when presenting the linguistic process involved in drafting the Convention on the Law of the Sea 1982, as part of the UN. The appropriate term is 'multilingual translation', since, as the author mentions, "the Drafting Committee of the Law of the Sea had a single negotiating text prepared in English" (Cao, 2007:152), which was subsequently translated into the other UN official languages. What followed next could be called 'joint-revising', since the six language versions jointly went through two other sub-processes, 'harmonisation' and 'concordance'4 and the six language groups worked together to improve their interlingual concordance and achieve juridical concordance, resolving any linguistic, legal or technical issues. The entire process lasted almost ten years. This early example of multilingual co-operation and joint-revising whose purpose was to ensure that all the authentic versions reflected the same legal intent or 'juridical concordance' opened the way to what further became 'parallel or simultaneous multilingual drafting,, which is still quite rare at the international level.
4. The profile of the 'lawyer-linguist'
In different cultural areas, there are various titles attributed nowadays to what used to be the profession of a 'legal translator'. Thus, legal translators at the International Court of Justice at the Hague are called 'legal secretaries', because they are actually involved in the administration of justice. In Canada, specialists in bilingual legislative drafting are called 'legislative counsel' or 'jurilinguists', so as to be distinguished from other revisers and legal translators. In the European Union, legal translators are called 'lawyer-linguists' and their professional profile cover a wide range of specializations. By way of example, here are some of the most important qualities required for the position of an English-language lawyer-linguist who will be part of the Translation Service of the Court of Justice:
* Have a perfect command of English (mother-tongue level);
* Have a thorough knowledge of French, the language in which the Court, by custom, deliberates and drafts its judgments and orders;
* Have a thorough knowledge of a third official language of the European Union, in which orders for reference, pleadings and Opinions may be drafted;
* Have successfully completed a suitable course in law (to ensure adequate knowledge of the national law and legal system of one of the English-speaking Member States) i.e. hold a degree in law, or its equivalent, awarded in the UK or Ireland or have qualified as a barrister, advocate or solicitor in the UK or Ireland;
* Have an adequate knowledge of Community/EU law;
* Have the ability, though not necessarily from experience, to translate complex, legal texts;
* Have the ability to use standard office technology;
* Have the ability to adapt and develop throughout their careers;
* Have the ability to fit into a multilingual, multicultural environment. (5)
In order to offer a clear picture of a lawyer-linguist's responsibilities, here follows a short job description for the position of the Parliament's lawyer-linguist:
* provides Members and committee secretariats with drafting and procedural advice from the initial drafting of texts up to final adoption in plenary;
* prepares and publishes legislative texts for adoption by Parliament in committee and in plenary, ensuring the highest quality of all the different
language versions of the amendments in the reports and the smooth course of the procedure;
* is responsible for the technical preparation of amendments tabled for the plenary and for the publication of all the texts adopted on the day of the plenary vote;
* finalizes legislative acts together with the lawyer-linguists of the Council. (6)
The international legal instruments within the United Nations are written in six languages, in the EU, the Directorate-General for Translation translates texts for the European Commission into and out of the EU's 23 official languages; Canada and Switzerland have bilingual and respectively plurilingual legislation. Legal translation, legal drafting or co-drafting, legal revising have become an integral part of the legislative process at international and European level. The major step taken in upgrading the profile of legal translators in Switzerland and Canada was to include them in the lawmaking team in all its phases: drafting/co-drafting, revising, final scrutinization.
By maintaining its centralized translation mechanism that ensured the authenticity of the legislative texts of all member states, the EU also needed to diversify and upgrade its translating staff. The profile of the 'lawyer-linguist' illustrated above is the best example of the successful mix of extensive legal knowledge, a good command of legal English and French (at least) and a specialized training in drafting and writing legal documents.
What surprisingly adds to the upgraded profile of the legal translator, apart from all the legal and linguistic responsibilities mentioned in this paper, is that his/her comments and final check of the original text during the translation process may actually lead to altering the original, source text rather then artificially shape an inadvertent translation: the author must realize that comments from translators and, more generally, all departments which carry out a linguistic check of the text can be extremely useful. Such checks provide an opportunity to identify any errors and ambiguities in the original text, even after a lengthy gestation period and even--perhaps especially--when the drafting has been the subject of much discussion between a number of people. The problems encountered may then be brought to the attention of the author. In many cases, the best solution will be to alter the original, rather than the translation." (7)
Akehurst, Michael. (1972), "Preparing the Authentic English Text of the EEC Treaty," An Introduction to the Law of the European Economic Community, Wortley B.A. (ed), Manchester, Manchester University Press: 20-31.
Cao, Deborah. (2007), "Translating Law", Multilingual Matters Ltd, Clevedon, Buffalo, Toronto, included in Topics in Translation 33, Series Editors: Susan Bassnett, University of Warwick and Edwin Gentzler, University of Massachusetts, Amherst.
*** (2003), Joint Practical Guide of the European Parliament, the Council and the Commission for the persons involved in the drafting of legislation within the Community institutions, Luxembourg: Office for Official Publications of the European Communities, available at http://eur-lex.europa.eu/en/techleg/pdf/en.pdf
Nelson, L.D.M. (1987), "The Drafting Committee of the Third United Nation Conference on the Law of the Sea: The Implications of the Multilingual Texts," British Yearbook of International Law, 57:169-199.
Rosenne, Shabtai. (1983), "The Meaning of 'Authentic Text", Modern Treaty Law: 775-776.
Sarcevic, Susan. (1997), "New Approach to Legal Translation", Hague: Kluwer Law International.
Sarcevic, Susan. (1989), "Conceptual Dictionaries for Translation in the Field of Law," International Journal of Lexicography.
Spiru Haret University
(1.) *** (2003), Joint Practical Guide of the European Parliament, the Council and the Commission for the persons involved in the drafting of legislation within the Community institutions, Luxembourg, Office for Official Publications of the European Communities, European Communities:17, available at http://eur-lex. europa.eu/en/techleg/pdf/en.pdf
(2.) 1969 Vienna Convention, Article 33(1) provides that "when a treaty has been authenticated in two or more languages, the text is equally authoritative in each language unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail." (Deborah Cao, 2007:150-151)
(3.) Nelson, L.D.M. (1987), "The Drafting Committee of the Third United Nation Conference on the Law of the Sea: The Implications of the Multilingual Texts," British Yearbook of International Law, 57:169-199.
(4.) Rosenne, Shabtai. (1983), "The Meaning of 'Authentic Text'?" Modern Treaty Law: 775-776: "Harmonisation is the process of ensuring internal consistency of terminology, grammar, syntax, spelling etc. within a given text, while concordance is the process of ensuring consistency of terminology and presentation between each and all the authentic texts."
(6.) http://www.europarl.europa.eu/parliament/public/staticDisplay.do7idz155 &pageRank= 5&language=EN)
(7) *** (2003), Joint Practical Guide of the European Parliament, the Council and the Commission for the persons involved in the drafting of legislation within the Community institutions, Luxembourg, Office for Official Publications of the European Communities: 20, available at http://eur-lex.europa.eu/en/techleg/pdf/en.pdf
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|Publication:||Linguistic and Philosophical Investigations|
|Date:||Jan 1, 2014|
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