Legal Translation and Terminology
Chapter 4
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
Prescriptive
Descriptive/prescriptive descriptive
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 (nonbinding)
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