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Legal Translation Translating legal language

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Legal
Translation:
Translating
legal language
Deborah Cao
WHAT IS TRANSLATION?
• Crystal (1991) defines translation as a process where
“the meaning and expression in one language (source)
is tuned with the meaning of another (target) whether
the medium is spoken, written or signed”.
• Torop (2002) has argued that translation, as a process
of converting ideas expressed from one language into
another, is embedded in the sociocultural language of
a particular context and also described the
translation process as basically a boundary-crossing
between two different languages.
The translation of law has played an important part in the
contact between different peoples and different
cultures in history and is playing an even more
important role in our increasingly globalized world.
Legal translation
•
It refers to the translation of texts used
in law and legal settings.
•
It is a type of specialist or technical
translation.
•
It involves special language use, that
is, the use of Language for Special
Purpose (LSP) or Language for Legal
Purpose (LLP).
Legal language and legal texts
•
Legal language refers to the
language of law and its
relation to law and legal
process.
•
Legal language is a variety
of language appropriate to
different legal occasions and
legal situations of use.
Four major variants of written
legal texts:
Legislative texts
Judicial texts
Legal scholarly texts
Private legal texts
Communicative purposes of legal
texts:
1. Normative
purpose prescriptive
2. Informative
purpose descriptive
• The
legal status and communicative purpose of the
Source Language (SL) texts are not automatically
carried over to the Target Language texts (TL) as its
being translated.
Legal translations and its
classifications
1.
Subject matter of the Source
Language text
2.
Status of the original texts
3.
Functions of the legal texts in
Source Language
4.
Purpose
of
the
Language texts
Target
Legal translations and
its classifications
1.
Subject matter
-
Translating domestic statutes and
international treaties
-
Translating private legal documents
-
Translating legal scholarly works
-
Translating case law
2. Status
-
Translating enforceable law
-
Translating non-enforceable law
Legal translations and
its classifications
3. Functions
-
Primarily prescriptive
-
Primarily descriptive and also prescriptive
-
Purely descriptive
4. Purpose
-
Normative purposes
-
Informative purposes
-
Judicial purposes
Normative purposes
This refers to the production of equally
authentic legal texts in bilingual and
multilingual jurisdictions of domestic laws
and international legal instruments.
Translated
legal
documents
with
normative purpose is not mere translation
of a legal text, it is the translation of the
law, meaning the TL is the law itself.
Informative purposes
It has constative or descriptive functions
because it aims to provide information to the
target readers.
This kind of translation is most often found in
monolingual jurisdictions and has disclaimers
stating that the translated legal document is
for reference only.
Judicial Purposes
These legal documents are primarily used for
information and are mostly descriptive. However,
unlike the previous category, these translated
legal texts may be used in court proceedings as
part of documentary evidence.
Because they can be used in legal process, these
translated legal texts have legal consequences
attached to them.
Ex: Australian courts require sworn affidavits
from the translator
Translating private
legal documents
•
Private legal documents refer to
texts that are drafted and used
by lawyers on behalf of their
clients, such as deeds, contracts,
leases, and wills.
•
Most commonly translated legal
documents are legal certificates
like marriage, divorce, birth, and
death certificates.
Purpose and status of
translated private legal
documents
•
Private legal documents, either
original or translated, serve many
purposes. Some of the major
functions
include
creating,
conferring, varying or negating
legal rights and obligations and
recording such rights and
obligations (Aitkin and Butter
2004).
•
They are also used before courts or
legal authorities to protect rights or
enforce obligations.
Purpose and status of
translated private legal
documents
•
Legal documents may be translated
for the following purposes
1.
business purposes
2.
for individuals for various purposes
3.
litigation purposes
•
The legal status of these translated
documents may vary. They may be
for informative or for normative
purposes.
KEY FEATURES OF PRIVATE
LEGAL DOCUMENTS
1. Linguistic features
-
Private legal documents often follow certain
established patterns and rules in a particular
jurisdiction. For example, Common Law
countries, such as China and US, they
utilize the Common Law drafting style
inherited from the UK.
-
Use of standard documents by law
firms called “precedents”
KEY FEATURES OF PRIVATE
LEGAL DOCUMENTS
2. Textual features
- Due to the commonalities in private legal drafting in English,
certain textual features can be identified. Agreements and contracts,
which are among the most commonly translated private legal
documents from and into English, are often written in similar styles.
KEY FEATURES OF PRIVATE
LEGAL DOCUMENTS
2. Textual features
-
Terminations
-
Dates of the agreement
-
Breach and remedies
-
Names and addresses of
parties
-
Notice, waiver, assignments
-
Warranty and exclusion
-
Recital
-
Governing law
-
Definition clause
-
Language clause
-
Rights, obligations, and
liabilities of the parties
-
Signature, date, and execution
-
force majeure
KEY FEATURES OF PRIVATE
LEGAL DOCUMENTS
3. Lexical and Syntactical Features
-
Use of old and archaic drafting style:
‘aforementioned’,‘hereinafter’,‘hereinabove’,
‘hereunder’
-
Binomial expressions/word strings:
‘authorise
and
direct’,
‘deemed
considered’, ‘final and conclusive’
and
KEY FEATURES OF PRIVATE
LEGAL DOCUMENTS
3. Lexical and Syntactical Features
-
Passive structures
Ex: “The contract was breached.”
-
Plain English Movement
The Lessee covenants with the Lessor to observe and perform
the terms, covenants and conditions contained in the said
Lease and on the Lessor’s part to be observed and performed
in the same manner in all respects as if those terms, covenants
and conditions, with such modifications only as may be
necessary to make them applicable to the said Lease, had been
repeated in full in the Lease as terms, covenants and conditions
binding on the Lessee in favour of the Lessor.
Translating domestic legislation
1. Bilingual and multilingual
jurisdictions
- Canada, Switzerland,
Hongkong
2. Monolingual jurisdiction
- Japan, China,
France, Spain, Philippines
Translating laws in
bilingual/multilingual jurisdictions
•
The law may be drafted first in one language and then
translated into the other language(s).
•
For instance, in Hong Kong, there are two types of
bilingual laws: the earlier laws that were enacted first in
English and subsequently translated into Chinese and
the laws that have been enacted simultaneously in both
English and Chinese since 1989.
•
The Hong Kong Official Languages Ordinance and Article
9 of the Basic Law of the Hong Kong Special
Administrative Region gave legal status to the laws
translated in Chinese.
Translating laws in
bilingual/multilingual jurisdictions
•
In other bilingual and multilingual jurisdictions, drafters,
lawyers, linguists and translators work together to
produce a working document in the form of a bill that is
written in all the relevant languages.
•
According to Revell (2004), in Canada, there are three
basic models of authoring or drafting bilingual laws:
1. translation model
2. co-drafting
3. double drafting models.
Translating laws in monolingual
jurisdictions
•
Domestic
legislation
translated in monolingual
jurisdictions are primarily
used
for
information
purposes, not normative
ones. The translated text
does not have any legal
force, and the original law
and the translated text are
not equal.
Complexities arising from
translated laws
•
Gulf Oil Canada Ltd v. Canadien Pacifique Ltée
- The Supreme Court of Quebec was asked to interpret an
Order in Council made pursuant to the federal National
Transportation Act of Canada.
-
Under this Order, carriers like the defendant railway were not
liable for losses caused by ‘acts of God’, while the French version
provided non-liability for cas fortuit or force majeure. The court
took into account the Civil Law system in interpreting this
provision
Complexities arising from
translated laws
•
Gulf Oil Canada Ltd v. Canadien Pacifique Ltée
-
It concluded that in Common Law the meaning of ‘acts of God’
would not include third party negligence, but under Quebec’s
Civil Code, cas fortuit included the negligent act of a third party.
The court held that in these circumstances, the Civil Law meaning
should prevail.
-
In particular, the court held that if ‘act of God’ had been translated
by the words ‘Acte de Dieu’ in the Order, it would not be possible
to appeal to the Civil Law concept of cas fortuit, consisting of the
act of a third party.
Complexities arising from
translated laws
•
HKSAR v. Lau San Ching and Others
-
One of the main issues was the discrepancy between the
English and Chinese versions of an Ordinance, arising
from the modal verb ‘may’, found in the English, and its
omission in the Chinese.
-
According to the Chinese text, actual obstruction, be it direct or
consequential, must have accrued to a public place for the offence
to occur. But according to the English text, obstruction may accrue
to a public place to create an offence. The Chinese text gives the
offence a narrower meaning in that actual obstruction must be
caused before an offence can be made out.
Section 4(28) of the Summary
Offences Ordinance
[English text]
[Chinese text]
Any person who without lawful
authority or excuse … does any act
whereby injury or obstruction
whether directly or consequentially,
may accrue to a public place or to
the shore of the sea, or to
navigation, mooring or anchorage,
transit or traffic. … shall be liable
to a fine of $500 or to imprisonment
of 3 months
Any person who without lawful
authority or excuse … does any act
whereby injury or obstruction
whether directly or consequentially,
accrues to a public place or to the
shore of the sea, or to navigation,
mooring or anchorage, transit or
traffic. … shall be liable to a fine of
$500 or to imprisonment of 3
months
• Complexities
and difficulties may arise from
translated laws, unknown or unforeseen in bilingual,
multilingual, and monolingual laws for the simple
fact that the languages and legal traditions in each
language has different implications.
Translating international and
multilingual instruments
•
The translation of legal instruments
in international or supranational
bodies, such as the United Nation
and the European Union, forms a
special area of legal translation
practice.
•
United Nations’ legal texts are
written in six official languages.
European Union’s legal texts are
written in twenty-three languages.
•
One important principle in the
practice of multilingual law is the
principle of equal authenticity
(1969 Vienna Convention).
1969 Vienna Convention
•
Article 33 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.
•
Additionally, it also states that the terms of the treaty are
presumed to have the same meaning in each authentic text.
European Union (EU):
Legislative process
•
According to Robinson (2005), the process of drafting and
composing EU laws and treaties starts with initial draft of a
legislative proposal prepared by the technical department or
technical experts for the sector concerned.
•
The second step is to submit the draft is to the other
Commission departments as part of the internal
consultation procedure. The Commission’s Legal Service is
consulted on all draft legislation with lawyers specializing in the
sector concerned.
European Union (EU):
Legislative process
• For
the third step, the draft must then be translated into
all the official languages by the Directorate-General for
Translation (DGT). The legal revisers will have another
opportunity to review the text.
• Then,
the legislative proposal is submitted to the
European Parliament and the Council where it must pass
through those institutions’ internal pre-adoption
procedures before their final deliberation and eventual
adoption.
UNITED NATIONS (UN)
• The
general practice for international treaties at
the UN has been through translation. The draft
texts are first produced in English and/or French,
and then translated into other languages.
Parallel and simultaneous multilingual drafting
is rare at the international level. Translation is
very much part of the process.
International agreements are negotiated texts which represent the
diverse interests of the participating State parties (Tabory 1980;
Sarcevic 1997).
Negotiators frequently resort to a compromise that glosses over their
differences with vague, obscure or ambiguous wording, sacrificing
clarity for the sake of obtaining consensus in treaties and conventions
(Tabory 1980; Sarcevic 1997).
EU draft legislative texts go through extensive consultation,
examination and revision, EU law is often the fruit of difficult
compromises (Robinson 2005).
Changes are made in the draft legislation to achieve policy ends.
Sometimes a provision is delicately left vague to paper over a failure to
reach full agreement (Robinson 2005).
Databases and other
technological tools
accessing
international
treaties
•
UN Treaty Series (UNTS) database
(https://treaties.un.org)
UN Treaty Series (UNTS) database
•
It contains the treaties and statements of treaties and international
agreements registered or filed and recorded with the UN
Secretariat in all official languages since 1945.
•
The database contains texts of over 50,000 bilateral and
multilateral treaties and subsequent treaty actions in their
authentic languages, along with a translation into English and
French.
•
This is the world’s largest database of multilateral treaties
deposited with over 3 million pages of text in more than 140
languages of various multilateral treaties.
Databases and other
technological tools
accessing
international
treaties
•
UN Official Document system (ODS)
(https://ods.un.org) - This is a
multilingual database of UN documents
with full text search in six UN official
languages.
Databases and other
technological tools
accessing
international
treaties
•
EUR-Lex
(https://eur-lex.europa.eu/homepage.html)
EUR-Lex
•
EUR-Lex is a free public resource tool.
•
It is the result of merging the EUR-Lex site with the CELEX
database to provide the biggest documentary holdings existing on
EU law.
•
It contains the full texts of the treaties, secondary legislation and
preparatory acts in all official EU languages, as well as national
implementing measures and case law of the European Court of
Justice. It also offers extensive search facilities.
Databases and other
technological tools
accessing
international
treaties
•
CCVista Translation Database
(http://ccvista.taiex.be/) – contains
translations of the legal acts of the EU
in all of its official languages
Databases and other
technological tools
accessing
international
treaties
•
United Nations Terminology Database –
UNTERM
(https://unterm.un.org/unterm/portal/wel
come)
Databases and other
technological tools
accessing
international
treaties
•
Eurodicautom (Europe dictionnaire
automatisé)
(https://iate.europa.eu/home)
•
Due to the natural differences among languages and
cultures, translating from one language into another
whatever the subject matter is never easy. It is particularly
difficult and complex in the field of law given the additional
differences in legal systems and laws.
•
Naturally, we cannot and should not expect absolute identity
in translation between different languages. Legal language is
no exception. Differences are natural and inherent in the
diversity of languages as is true with human experiences
and human activities in general. It is also what makes life
and, for our purpose, translating interesting.
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