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Translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.

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LEGAL TRANSLATION

We can easily translate the French motto “Liberté, Égalité, Fraternité[1] into English as “Liberty, Equality, Fraternity.”[2]  But it is not so easy to harmonize the ideal of that motto with the reality of legal translation,[3] a discordant phenomenon that occurs in multiple spheres:

  • the public and private sectors of the international community;[4]
  • the bilingual[5] and the multilingual,[6] plurilingual,[7] or polyglot[8] parts of our world;[9] and
  • monolingual[10] legal systems.[11]

Fraternity[12] is diminished by differences that result from the ambiguity of the term “translation”[13] and related questions:

  • Do legal translators possess the power of interpretation?[14]
  • Does translation encompass intralingual translation within one language[15] in addition to interlingual translation between two languages?[16]

Liberty[17] presents an unresolved question for translators, notably in the opposition of free translation versus literal translation.[18]  The question of liberty has practical implications in legal translation:

  • Although legal translators have gained a limited degree of freedom, they need to exercise that freedom with caution because “linguistic decisions can also have legal consequences.”[19]
  • The selection of an equivalent is sometimes limited by the terms that were used in a preexisting text.[20]

Equality[21] is reduced in translation to “the illusion of equivalence.”[22]  Translation equivalence is a “fuzzy” notion in theory[23] and a “relative notion”[24] in law.  Theorists have promulgated a puzzling mixture of “contradictory definitions of the notion of equivalence.”[25]

The discord of legal translation manifests itself during the search for equivalents, when familiar faces in language and law conceal traps for translators:

  • false friends,[26]
  • cognates,[27]
  • Latin phrases,[28] and
  • English legal terms.[29]

No, we cannot harmonize the ideal of the French motto with the reality of legal translation.  But legal translators perform an important function in the communication and assimilation of law[30] and in the promotion of interlingual communication,[31] and translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.



[1]  Dictionnaire de l’Académie français , 9th ed., s.v. “liberté,” accessed October 7, 2013, http://atilf.atilf.fr/academie9.htm.

[2] The Oxford-Hachette French Dictionary: French-English; English-French, eds. Marie-Hélène Corréard, Valerie Grundy, Jean-Benoit Ormal-Grenon, and Nicholas Rollin, 4th ed. (New York: Oxford University Press, 2007), s.v. “liberté.”

[3] One explanation of the term “legal translation” is that “[it] refers to the translation of texts used in law and legal settings.  Legal translation is used as a general term to cover both the translation of law and other communications in the legal setting.”  Deborah Cao, Translating Law, Topics in Translation 33 (Clevedon: Multilingual Matters, 2007), 12.  What distinguishes legal translation from other types of translation?

Legal translation is sui generis.  It is different from other types of technical translation that convey universal information, for example, mathematics or physics.  Law is culturally and jurisdictionally specific.  Related to this is the view that explanation in natural science and understanding in hermeneutic interpretation, including understanding legal texts, are not the same.

Deborah Cao, Chinese Law: A Language Perspective (Aldershot: Ashgate, 2005), 173.

[4] “The legal profession has played an undeniably significant role in the advances made in international cooperation and business. . . . At this early stage of the new millennium, legal translation is thus a basic requirement in both the public and private sectors of the international community.”  Enrique Alcaraz Varó and Brian Hughes, Legal Translation Explained, Transaction Practices Explained 4 (Manchester: St. Jerome, 2002), 2.

[5] Although the word “bilingual” was traditionally used to describe “someone with a native or native-like control of two languages,” its use has grown to include “people or communities speaking two or more different languages, or different dialects of the same language, whether or not they are controlled equally and whether or not more than one is native.”  P.H. Matthews, comp., The Concise Oxford Dictionary of Linguistics, 2nd ed. (Oxford: Oxford University Press, 2007), s.v. “bilingual.”

[6] The word “multilingual” is used to describe persons who have “equal control of more than two native languages,” persons who have “some command of more than two languages,” and communities “in which more than two languages are native.”  Matthews, The Concise Oxford Dictionary of Linguistics, s.v. “multilingual.”

[7] The English words “plurilingual” and “plurilingualism” or “polylingual” and “polylingualism” are sometimes used in place of, respectively, the adjective “multilingual” and the noun “multilingualism.” Shorter Oxford English Dictionary: On Historical Principles, 6th ed., s.v.v. “poly-,” “pluri-.”  In Spanish, the probable equivalents of plurilingual (plurilingüe) and multilingual (multilingüe) are synonyms of one another as well as polígloto or políglota.  Joaquín Dacosta Esteban, ed., Diccionario de sinónimos y antónimos, with the assistance of Ana María Sánchez Mora, Laura Zorrilla Ortiz de Urbina, Patricia Villamor García, Lyliana Colotto Navarece, Marina Conde Morala, Alicia Martínez Yuste, and Juan Fernández Fernández (Madrid: Gredos, 2009), s.v.v. “multilingüe,” “plurilingüe,” “polígloto.”  The combining forms “multi-” and “pluri-” derive from Latin, and “poly-” comes from Greek, but all three share the meaning of many or at least more than one.  Shorter Oxford English Dictionary, s.v.v. “multi-,” “pluri-,” “poly-.”

[8] The English word “polyglot” derived from the Greek word polýglōttos.  Robert K. Barnhart and Sol Steinmetz, eds., Chambers Dictionary of Etymology (Edinburgh: Chambers, 2008), s.v. “polyglot.”  As a noun, the senses of “polyglot” include “[a] person who knows several languages” and “[a] mixture of several languages”; the senses of the adjective “polyglot” or “polyglottal” include one who “speaks, writes, or understands many or several languages” and something that is “written in many or several languages.”  Shorter Oxford English Dictionary, s.v. “polyglot.”

[9] One bilingual part of our world is Canada, which has its Official Languages Act.  Section 2 expresses the purpose of the Official Languages Act:

The purpose of this Act is to

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;

(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and

(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

“Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.) (Can.)”; Justice Laws Website; Department of Justice, Government of Canada; accessed October 7, 2013; http://laws-lois.justice.gc.ca/eng/acts/O-3.01/page-1.html.

An example of a multilingual part of our world is the European Union, where “translation is more than a metaphor – it is a basic fact about the entire structure of the law.”  J. Paul Lomio and Henrik Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 2nd ed. (Copenhagen: DJØF, 2009), 197.

[10] The senses of the English word “monolingual” include, as an adjective, “[k]nowing or using only one language” and “[w]ritten in only one language” and, as a noun, “[a] person who knows only one language.”  Shorter Oxford English Dictionary, s.v. “monolingual.”  Modern conditions have permitted bilingualism and multilingualism to infiltrate “traditionally monolingual territory”:

It is clear that, in spite of (or side by side with) the exponential growth of English, multilingualism is not disappearing; on the contrary, it is on the rise.  Massive migration, growing mobility and the kind of new technological developments that favour connectivity and communication (ostensibly increasing the need for a common language!) help people to make and keep contact with different linguistic environments and to develop their language skills.  Even in traditionally monolingual territory, migration has made bilingualism and multilingualism an everyday reality.

European Commission Directorate-General for Translation, Lingua Franca: Chimera or Reality? (n.p.: Dictus, 2011), 49.

[11] U.S. Supreme Court Justice Hugo Black wrote of the importance of “translating” the Due Process Clause of the 14th Amendment to the Constitution of the United States of America:

No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuasion.

Chambers v. Florida, 309 U.S. 227, 241 (1940).

[12] The noun “fraternity” entered the English language from Old French before the middle of the fourteenth century CE with the meaning of “brotherhood.”  Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v. “fraternal.”

[13] “The term ‘translation’ is very broad and sometimes an ambiguous notion.  One of such ambiguities results from the confusing meaning of the term ‘translation’, which can be regarded as a product (a text that has been translated) or as a process (translating). . . . The meaning of the term ‘translation’ depends on the theory and the approach being considered.”  Agnieszka Doczekalska, “Drafting or Translation — Production of Multilingual Legal Texts,” in Translation Issues in Language and Law, eds. Frances Olsen, Alexander Lorz, and Dieter Stein (Basingstoke: Palgrave Macmillan, 2009), 118.

[14] Some have taken the position that, “[w]hile it is essential for legal translators to be familiar with the methods of interpretation used by judges participating in the communication process, they themselves should refrain from interpreting the text in the legal sense.”  Susan Šarčević, New Approach to Legal Translation (The Hague: Kluwer Law International, 2000), 91-92.  This point of view excludes interpretation from the power of the legal translator:

In legal hermeneutics a distinction is made between understanding and interpretation. . . . Sometimes it is difficult to make a clearcut distinction between understanding and interpretation; however the view prevails that the translator’s duty is to express what is said in the source text and not what he/she thinks ought to have been said.  The latter is clearly an act of interpretation involving the personal participation of the translator.

Šarčević, New Approach to Legal Translation, 92.  “In regard to ambiguities,” for example, “it is generally agreed that the translator has no authority to resolve an ambiguity in the source text as this would be an act of interpretation.”  Šarčević, New Approach to Legal Translation, 92.

Others have taken the position that interpretation is part of legal translation and, in that respect, see some degree of similarity between the work of the legal translator and that of the lawyer or the judge:

Like translators, all practising lawyers, and judges most specifically, are professionally engaged in the task of interpreting the meaning of texts, and of particular words in particular texts.  To interpret, in general, is to assign a meaning to a word, phrase, clause, sentence or utterance, and, where two or more meanings are possible, either to decide between them or to declare the utterance indeterminably ambiguous.  For the translator, the purpose of interpretation is to decide on the closest possible linguistic equivalent in the target language, while for the judge it is to match up the resulting propositions against the definitions established in existing law.  The difference, of course, is that the translator’s work is over once the semantic hurdle has been negotiated, whereas the judge must go on to apply the results of the linguistic analysis and announce a decision in accordance with the rules and principles of law.

Alcaraz Varó and Hughes, Legal Translation Explained, 24.

[15] On the one hand, Professor Susan Šarčević noted that, because “the traditional notion of translation has been broadened to include forms of text production in which the source and target texts are written in the same language, . . . a distinction is now made between interlingual and intralingual translation.”  Šarčević, New Approach to Legal Translation, 106 (references omitted).  Professor Umberto Eco, on the other hand, observed that “[t]o speak of translation in [cases of interpretation of a natural language by means of itself] is merely to use a metaphor.”  Umberto Eco, Experiences in Translation, trans. Alastair McEwen, Toronto Italian Studies: Goggio Publications Seriess (Toronto: University of Toronto Press, 2008), 101.

Even if intralingual translation is merely a metaphor, it is a very useful one because “[w]e are constantly engaged in translation in understanding our own culture and history in our own language.”  Cao, Chinese Law, 176.  One example of the use of translation as a metaphor comes from the movement to reform legal language.  When Professor Peter Tiersma described “two quite different approaches” to the reform of the language of the law, which he called “simplification” and “translation,” he explained that “translation assumes that legal language must — or should — remain quite distinct from ordinary speech.  Simplification obviously rejects that assumption.”  Peter M. Tiersma, Legal Language (Chicago: University of Chicago Press, 2000), 200-201.

[16] Linguist Roman Jakobson distinguished “three ways of interpreting a verbal sign”:

  • “Intralingual translation or rewording is an interpretation of verbal signs by means of other signs of the same language.”
  • “Interlingual translation or translation proper is an interpretation of verbal signs by means of some other language.”
  • “Intersemiotic translation or transmutation is an interpretation of verbal signs by means of signs of nonverbal sign systems.”

Roman Jakobson, “On Linguistic Aspects of Translation,” in Theories of Translation: An Anthology of Essays from Dryden to Derrida, eds. Rainer Schulte and John Biguenet (Chicago: University of Chicago Press, 1992), 145.

[17] The English nouns “freedom” and “liberty” are synonyms of one another, at least in part.  Christine A. Lindberg, comp., Oxford American Writer’s Thesaurus, 2nd ed. (New York: Oxford University Press, 2008), s.v.v. “freedom,” “liberty.”  The noun “freedom” derives from the Old English term frēodōm and possesses senses that include “liberty of action.”  Shorter Oxford English Dictionary, s.v. “freedom.”  Here is one explanation of the distinction between freedom, liberty, and independence:

While independence is usually associated with countries or nations, freedom and liberty more often apply to individuals.  But unlike freedom, which implies an absence of restraint or compulsion . . ., liberty implies the power to choose among alternatives rather than merely being unrestrained. . . . Freedom can also apply to many different types of oppressive influences . . ., while liberty often connotes deliverance or release.

Lindberg, Oxford American Writer’s Thesaurus, s.v. “liberty” (emphasis omitted).

[18] “[Free versus literal translation] is the binary opposition that has dominated the debate on translation over the centuries.  Free translation is usually taken to concentrate on conveying the meaning of the [source text] disregarding the formal or structural aspects of the [source text].  Literal translation is normally taken to be a mode of translation that remains close to the form of the original.”  Giuseppe Palumbo, Key Terms in Translation Studies (London: Continuum, 2009), s.v. “free vs literal translation.”

[19] “Legal translators have traditionally been denied all freedom to make decisions.  Now, thanks to dissidents who dared to defy the status quo of tradition, they have finally gained new responsibility and decision-making authority.  Since linguistic decisions can also have legal consequences, such authority must be exercised with caution.  As responsible decision-makers, legal translators must know exactly how far they can stretch their limited freedom and still respect the restraints of their profession.”  Šarčević, New Approach to Legal Translation, 3.

[20] “[W]hen selecting equivalents, translators must always take account of the 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.  This means that 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.”  Šarčević, New Approach to Legal Translation, 118 (reference omitted).

[21] The English nouns “equality” and “equivalent” resemble their ancestors in, respectively, Old French (equalité) and Middle French (equivalence).  Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v.v. “equal,” “equivalent.”  The common synonyms of the two English nouns include “similarity,” “comparability,” “correspondence,” “uniformity,” and “likeness.”  Lindberg, Oxford American Writer’s Thesaurus, s.v.v. “equality,” “equivalence.”

[22] Mary Snell-Hornby, Translation Studies: An Integrated Approach, rev. ed. (Amsterdam: John Benjamins, 2006), 13.  Professor Mary Snell-Hornby explained her position:

[E]quivalence is unsuitable as a basic concept in translation theory: the  the term “equivalence,” apart from being imprecise and ill-defined (even after a heated debate of over twenty years) presents an illusion of symmetry between languages which hardly exists beyond the level of vague approximations and which distorts the basic problems of translation.

Snell-Hornby, Translation Studies, 22 (italics replaced by double quotation marks).

[23] “There has been no unanimous agreement among translation theorists as to what the concept of equivalence in translation means.  This notion has always been used in a fuzzy sense.” Hussein Abdul-Raof, Qur’an Translation: Discourse, Texture and Exegesis, Culture and Civilization in the Middle East (London: Routledge, [2006]), 5.

[24] “Translational equivalence is a relative notion.  Legal concepts and their translations are relative, relational and referential. . . . We need to read a translated legal concept with reference to the legal system it refers to, not just in what language it is re-presented.”  Cao, Chinese Law, 172-73 (reference omitted).

[25] The various levels of equivalence create a dilemma for translators:

A translator who aspires to achieve total lexical and/or textual equivalence is chasing a mirage:  total equivalence at any level of language is impossible, relative equivalence at any level is possible.  Amid the circularity of [the] contradictory definitions of the notion of equivalence, the translator is at a loss.  At which level should he/she aim his/her translation?

Abdul-Raof, Qur’an Translation, 7.

[26] The term “false friends” is used for “[w]ords in different languages which resemble each other in form, but which express different meanings”; false friends are also known as “faux amis.”  David Crystal, A Dictionary of Language, 2nd ed. (Chicago: University of Chicago Press, 2001), s.v. “false friends.”  Legal translators, in particular, need to be vigilant for false friends:

Any systematic approach to lexical equivalence in the field of translation will have to deal with the problems posed by various kinds of literalism, of which the false cognate, or “false friend”, is a leading example.  Legal translation is no exception and it might even be argued that . . . the problem is especially acute in texts of this type.

Alcaraz Varó and Hughes, Legal Translation Explained, 173 (single quotation marks changed to double).

[27] A cognate is a word that has “a common ancestor with another word or words.”  Sol Steinmetz, Semantic Antics: How and Why Words Change Meaning (New York: Random House Reference, 2008), 261.  Cognates can be a trap for translators, who “should examine etymological equivalents carefully since many of them are faux amis.”  Šarčević, New Approach to Legal Translation, 236 n. 6.

Although the terms “false friends” and “false cognates” are sometimes used as if they are interchangeable, the two terms “are quite different because all false cognates are false friends but not all false friends are false cognates”; if two words “are etymologically related, they aren’t false cognates.  In other words, the set of false friends includes the set of false cognates but not vice versa.”  P. Chamizo-Dominguez, “False Friends,” in Concise Encyclopedia of Semantics, eds. Keith Brown and Keith Allan (Amsterdam: Elsevier, 2009), 308.

[28] “[I]nstead of serving as a reliable source for alternative equivalents, the use of Latin phrases by lawyers generally makes the translator’s task more difficult.  This is particularly true in the European Union where translators are constantly confronted with Latin phrases in different languages.”  Šarčević, New Approach to Legal Translation, 264.

[29] “Differences within Anglo-American legal terminology among individual English speaking countries constitute [a] problem for translation.”  Marta Chromá, Legal Translation and the Dictionary, Lexicographica: Series Maior (Tübingen: Max Niemeyer Verlag, 2004), 11.

[30] “[Translators and interpreters] assist the process of transposing one legal system (or its elements) into another legal language and system thus facilitating international collaboration among individuals or entities.”  Chromá, Legal Translation and the Dictionary, 5-6.

[31] “[I]n this interlingual world, where it is increasingly important to move between different languages and cultures in a flexible way, mediators — notably linguistic mediators like interpreters and translators — continue to play a fundamental role to guarantee fruitful communication and integration.”  European Commission Directorate-General for Translation, Lingua Franca, 51.

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Data
Title of page Legal Translation
Address of page http://lawexplorers.com/legal-translation.html
Geographic areas France; Canada; Europe; United States of America
Languages French; English; Spanish; Greek; Latin; Old French; Middle French
Terms and phrases legal translation; bilingual; multilingual; plurilingual; polyglot; monolingual; legal translator; interpretation; intralingual translation; interlingual translation; free translation; literal translation; translation equivalence; false friend; cognate
Proverbs, maxims, and canons Liberte, Egalite, Fraternite
Symbols, icons, designs, and works of art
Events Official Languages Act (Canada); Fourteenth Amendment (United States of America); Chambers v. Florida
Publications Legal Translation Explained; Legal Research Methods in the U.S. and Europe; Translation Issues in Language and Law; New Approach to Legal Translation; Legal Translation and the Dictionary
Authors Deborah Cao; Umberto Eco; Peter Tiersma; Roman Jakobson; Mary Snell-Hornby; Hussein Abdul-Raof; David Crystal
Websites, blogs, and other online resources Dictionnaire de l'Academie francais; Justice Laws Website (Canada)
Individuals Hugo Black
Organizations European Commission Directorate-General for Translation; Supreme Court of the United States