ChapterPDF Available

Legal Translation

Authors:
is is a contribution from Handbook of Translation Studies. Volume 1.
Edited by Yves Gambier and Luc van Doorslaer.
© 2010. John Benjamins Publishing Company
is electronic file may not be altered in any way.
e author(s) of this article is/are permitted to use this PDF file to generate printed copies to
be used by way of offprints, for their personal use only.
Permission is granted by the publishers to post this file on a closed server which is accessible
to members (students and staff) only of the author’s/s’ institute, it is not permitted to post
this PDF on the open internet.
For any other use of this material prior written permission should be obtained from the
publishers or through the Copyright Clearance Center (for USA: www.copyright.com).
Please contact rights@benjamins.nl or consult our website: www.benjamins.com
Tables of Contents, abstracts and guidelines are available at www.benjamins.com
John Benjamins Publishing Company
© 2010. John Benjamins Publishing Company
All rights reserved
Legal translation
Deborah Cao
Grith University
Legal translation is a type of specialist or technical translation*, a translational activity that
involves language of and related to law and legal process. Legal translation refers to the
rendering of legal texts from the Source Language (SL) into the Target Language (TL).
Legal translation can be classied according to dierent criteria. For instance, legal
translation can be categorised into the following classes according to the subject matter
of the SL texts: (1) translating domestic statutes and international treaties; (2) translating
private legal documents; (3) translating legal scholarly works, and (4) translating case law.
Legal translation can also be divided according to the status of the SL texts: (1) translating
enforceable law, e.g., statutes; and (2) translating non-enforceable law, e.g., legal scholarly
works. As well, legal translation can be classied according to the functions of legal texts
in the SL: (1) primarily prescriptive, e.g., laws, regulations, codes, contracts, treaties, and
conventions; (2) primarily descriptive and also prescriptive, e.g., judicial decisions and
legal instruments that are used to carry on judicial and administrative proceedings such
as actions, pleadings, briefs, appeals, requests, petitions etc; and (3) purely descriptive, e.g.,
scholarly works written by legal scholars such as legal opinions, law textbooks, and articles,
the authority of which varies in dierent legal systems (Sarcevic 1997: 11). Legal translation
can also be classied in the light of the purposes of the TL texts: (1) normative purpose,
i.e., the production of equally authentic legal texts in bilingual and multilingual jurisdic-
tions of domestic laws and international legal instruments and other laws; (2) informative
purpose, e.g., the translation of statutes, court decisions, scholarly works and other types
of legal documents if the purpose of the translation is to provide information to the target
readers; and (3) general legal or judicial purpose (see Cao 2007). In short, legal translation
is used as a generic term to cover both the translation of law and other communications
in legal settings.
1. Sources of diculty in legal translation
It is oen said that legal translation is dicult and complex. In essence, the nature of law and
legal language contributes to the complexity and diculty in legal translation. is is com-
pounded by complications arising from crossing two languages and legal systems in transla-
tion. Accordingly, sources of legal translation diculty include the systemic dierences in
law, linguistic as well as cultural dierences. All these are closely related (see Cao 2007).
© 2010. John Benjamins Publishing Company
All rights reserved
192 Deborah Cao
First of all, legal language is a technical language, but legal language is not a universal
technical language but one that is tied to a national legal system (Weisog 1987: 203), dier-
ent from the language used in pure science, say mathematics or physics. Law and legal lan-
guage are system bound, that is, they reect the history, evolution and culture, and above all,
the law of a specic legal system. Law as an abstract concept is universal as it is reected in
written laws and customary norms of conduct in dierent countries. However, legal systems
are peculiar to the societies in which they have been formulated. Each society has dierent
cultural, social and linguistic structures developed separately according to its own condi-
tioning. Legal concepts, legal norms and application of laws dier in each individual soci-
ety reecting the dierences in that society. Legal translation involves translation from one
legal system into another. Unlike pure science, law remains a national phenomenon. Each
national law constitutes an independent legal system with its own terminological appara-
tus, underlying conceptual structure, rules of classication, sources of law, methodological
approaches and socio-economic principles (Sarcevic 1997: 13). is has implications for
legal translation when communication is channelled across dierent languages, cultures and
legal systems.
Law is culturally and jurisdictionally specic. ere are dierent legal systems or fami-
lies, such as the Romano-Germanic Law (Continental Civil Law) and the Common Law,
the two most inuential legal families in the world. As David and Brierley (1985: 19) state,
each legal system or family has its own characteristics and “a vocabulary used to express
concepts, its rules are arranged into categories, it has techniques for expressing rules and
interpreting them, it is linked to a view of the social order itself which determines the way
in which the law is applied and shapes the very function of law in that society”. Due to the
dierences in historical and cultural development, the elements of the source legal system
cannot be simply transposed into the target legal system (Sarcevic 1997: 13). us, the main
challenge to the legal translator is the incongruency of legal systems in the SL and TL. As
a result, the systemic dierences between dierent legal families are a major source of dif-
culty in translation.
In addition, linguistic diculties also arise in translation from the dierences found
in the dierent legal cultures and legal systems. Legal translation is distinguished from
other types of technical translation* that convey universal information. In this sense, legal
translation is sui generis. Each legal language is the product of a special history and culture.
It follows, for example, that the characteristics of la langue de droit in French do not neces-
sarily apply to legal English. Nor do those of the English language of the law necessarily
apply to French.
A basic linguistic diculty in legal translation is the absence of equivalent termino-
logy* across dierent languages. is requires constant comparison between the legal sys-
tems of the SL and TL. In terms of legal style, legal language is a highly specialised language
use with its own style. e languages of the Common Law and Civil Law systems are fun-
damentally dierent in style. Legal traditions and legal culture have had a lasting impact
© 2010. John Benjamins Publishing Company
All rights reserved
Legal translation 193
on the way law is written. Written legal language thus reects the essential elements of a
legal culture and confronts the legal translator with its multi-faceted implications (Smith
1995: 190–191).
Lastly, cultural dierences present another source of diculty in legal translation.
Law is an expression of the culture, and it is expressed through legal language. As pointed
out, “[e]ach country has its own legal language representing the social reality of its spe-
cic legal order” (Sarcevic 1985: 127). Legal translators must overcome cultural barriers
between the SL and TL societies when reproducing a TL version of a law originally writ-
ten for the SL reader. In this connection, Weston (1983: 207) writes that the most impor-
tant general characteristic of any legal translation is that an unusually large proportion
of the text is culture-specic. e existence of dierent legal cultures and traditions is a
major reason why legal languages are dierent from one another, and will remain so. It is
also a reason why legal language within each national legal order is not and will not be the
same as ordinary language.
2. Translating dierent legal texts
Legal translation involves dierent legal text types. e common legal text types include
private legal documents, domestic legislation, and international legal instruments.
2.1 Translating private legal documents
Private legal documents are those that are draed and used by lawyers in their daily prac-
tice on behalf of their clients. ey may include deeds, contracts and other agreements,
leases, wills and other legal texts such as statutory declaration, power of attorney, state-
ments of claims or pleadings and other court documents and advice from lawyers to cli-
ents. e translation of these documents constitutes the bulk of actual translation work for
many legal translation practitioners.
Private legal documents oen follow certain established patterns and rules in a par-
ticular jurisdiction. Agreements and contracts, which are among the most commonly
translated private legal documents from and into English, are oen written in similar
styles. Such documents, for instance, draed in English, oen contain old or archaic words
and expressions reecting the old draing style, where one frequently nds words such
as ‘aforementioned’, ‘hereinaer’, ‘hereinabove, ‘hereunder’, ‘said, ‘such, etc. Another com-
mon usage is word strings, for instance, ‘restriction, restraint, prohibition or interven-
tion, ‘change, modication or alteration, ‘document or agreement as amended, annotated,
supplemented, varied or replaced’, ‘arrangements, agreements, representations or under-
takings’. Some describe these collocations as wordiness or verbosity. Still another common
linguistic feature found in private legal documents is that sentences are typically long and
complex, and passive structures are oen extensively used.
© 2010. John Benjamins Publishing Company
All rights reserved
194 Deborah Cao
2.2 Translating domestic legislation
Under this category, there are two types of situation where municipal statutes are trans-
lated. e rst type is found in bilingual and multilingual jurisdictions (see Multilingualism
and translation*) where two or more languages are the ocial legal languages. Examples
include Canada, Switzerland, Hong Kong, and South Africa. e second type of translated
legislation is found in any monolingual country where its laws are translated into a foreign
language or languages for information purpose, for instance, the US and China.
Generally speaking, modern statutes consist of a generic structure and standard form
with the following common elements:
title
date
preamble
the enacting words
substantive body: the parts, articles and sections
schedules or forms
One prominent linguistic feature of legislative texts is the illocutionary force. A legis lative
text as a rule-enacting document is a speech act with illocutionary forces (see Kurzon
1986). is pragmatic feature is a crucial and prominent linguistic aspect of statutes, for
both domestic or municipal statutory instruments and multilateral legal instruments. It is
universally important as the basic function of law is regulating human behaviour and rela-
tions by setting out obligation, permission and prohibition in society. ese are expressed
in language through the use of words such as ‘may’ for conferring a right, privilege or power,
‘shall’ for imposing an obligation to do an act, and ‘shall not’ or ‘may not’ for imposing an
obligation to abstain from doing an act.
2.3 Translating international legal instruments
e translation of legal instruments in international or supranational bodies such as the
United Nations (UN) and the European Union (EU) forms a special area of legal trans-
lation practice (see Cao 2007). Such translational activities can entail translating multilin-
gual documents such as international instruments of the UN involving several languages,
and translating bilateral treaties involving two languages. e translation of such legal
documents of international nature as opposed to domestic laws has its own idiosyncrasy as
well as sharing the characteristics of translating law in general.
One important principle in the practice of multilingual law is the principle of equal
authenticity, that is, all the ocial language texts of an international treaty, whether trans-
lated or not, are equally authentic, having equal legal force. As pointed out, the importance
attached to the principle of equal authenticity was intended to confer undisputable authority
© 2010. John Benjamins Publishing Company
All rights reserved
Legal translation 195
on each of the authentic texts, de facto eliminating the inferior status of authoritative transla-
tions (Sarcevic 1997: 199). is also carries with it the high level requirements for accuracy
on the part of the legal translator.
References
Cao, Deborah. 2007. Translating Law. Clevedon: Multilingual Matters.
David, René & Brierley, John. 1985. Major Legal Systems in the World Today. London: Stevens.
Kurzon, Dennis. 1986. It Is Hereby Performed… Explorations in Legal Speech Acts. Amsterdam &
Philadelphia: John Benjamins.
Sarcevic, Susan. 1997. New Approach to Legal Translation. e Hague: Kluwer Law International.
Smith, S.A. 1995. “Cultural Clash: Anglo-American Case Law and German Civil Law in Translation.
In Translation and the Law, M. Morris (ed.), 179–200. Amsterdam: John Benjamins.
Weisog, W.E. 1987. “Problems of Legal Translation.Swiss Reports presented at the XIIth Interna-
tional Congress of Comparative Law, 179–218. Zürich: Schulthess.
Weston, M. 1983. “Problems and Principles in Legal Translation.e Incorporate Linguist 22 (4):
207–211.
Further reading
Alcaraz, E. & Hughes, B. 2002. Legal Translation Explained. Manchester: St Jerome.
Cao, Deborah. 2007. Translating Law. Clevedon: Multilingual Matters.
Houbert, Frederic. 2005. Guide Pratique de la Traduction Juridique: Anglais/Français. Paris: La Maison
du Dictionnaire.
Sarcevic, Susan. 1997. New Approach to Legal Translation. e Hague: Kluwer Law International.
Article
Full-text available
The interconnection between language, culture and ethics is a commonplace within the field of translation studies, more particularly, when discussing legal translation. The role of the translator as a communicator and cultural mediator has long been established. However, the question arises how far the legal translator of EU texts can and is entitled to mediate between legal systems and cultures.
Article
This article examines how the voices of trial participants are mediated by court interpreters. The research focuses on closing statements articulated by defendants in Chinese criminal trials, the last chance for their voices to be heard prior to sentencing. Drawing upon the concept of voice and theories of speech acts and pragmatic equivalence, and based on the discourse analysis of seven authentic trial recordings, this study reveals how the discursive performance of the defendant is constructed, altered, and sometimes undermined through interpreting. The findings reveal that speech acts performed by the defendant are often not maintained in the interpreted renditions and that the concept of closing statements is difficult to convey. It is argued that when interpreters fail to convey the pragmatic force of defendants’ utterances, the voice of the defendants is not fully heard, which places them at a disadvantage and impacts upon their right to equality and justice. The article also reveals system-bound constraints on the effective provision of language assistance and the safeguarding of defendants’ legal rights.
Chapter
Based on a comparable corpus comprised of texts collected from different versions of company law from the United Kingdom, Chinese mainland, and Hong Kong at different periods, we conducted both quantitative and qualitative analyses to examine the similarities and differences between these versions using the conditional connectives commonly found in legal texts as indicators. Through a detailed comparative analysis of these conditional connectives, the extent to which writing and translation norms affect the production of legal texts were discussed and explored. In light of the translation norm theory by Toury and the Three Circles model of World Englishes by Kachru, we found that Britain as a native English country of the inner circle is the initiator and reformer of legal writing norms and as such also exerts an influence on the norms of the outer and expanding circles. As far as company law is concerned, the newly created norms of the inner circle have not made an impact on the expanding circle and the translation of legal texts from the Chinese mainland is still governed by the old norms, which explains the conservative and archaic style identified in the two Chinese versions of company law.
Book
Full-text available
Terminology Translation in Chinese Contexts: Theory and Practice investigates the theory and practice of terminology translation, terminology management, and scholarship within the distinctive milieu of Chinese and explores the complex relationship between terminology translation (micro level) and terminology management (macro level). This book outlines the contemporary challenges of terminology translation and terminology management within Chinese contexts in specialized fields including law, the arts, religion, Chinese medicine, and food products. The volume also examines how the development and application of new technologies such as big data, cloud computing, and artificial intelligence have brought about major changes in the language service industry. Technology such as machine translation and computer-assisted translation has spawned new challenges in terminology management practices and has facilitated their evolution in contexts of ever greater internationalization and globalization. This book recontextualizes terminology translation and terminology management with a special focus on English-Chinese translation. It is hoped that the volume will enable and enhance dialogue between Chinese and Western scholars and professionals in the field. All chapters have been written by specialists in the different subfields and have been peer reviewed by the editors.
Article
Full-text available
This paper presents a study on translator students’ perceptions on post-editing. Students from two different Master’s level courses were asked to post-edit machine translated texts and reflect on the differences between light and full post-editing, on the differences between translating and post-editing, on the role of error analysis and the use of the instructions given, as well as consider their own aptitudes in post-editor. The results show that their attitudes were mainly positive, but they felt that the task was challenging: leaving grammatical errors and “raw translations” in the text were considered difficult. The majority of students also thought that making a full post-editing was easier than making a light post-editing. This was also reflected in their productions, as many students returned a light edit that corresponded to a full one. Keywords: machine translation, post-editing, students’ reflections, translator, training
Article
As the number of limited English proficiency speakers in the United States continues to increase, court administrators face mounting pressure to ensure that services are provided to linguistic minorities and that the availability and adequacy of these services meet this growing need and provide equal footing to non-English-speaking litigants. Several states now provide legal forms and documentation in multiple languages in order to provide greater transparency and access to the legal system and to ensure due process for non-English-speaking parties. The translation process and quality control/assurance mechanisms, however, vary across these programs. This corpus-driven study examines translations of court-provided waivers of counsel. The results reveal shifts potentially attributable to a residual effect of the source language or to differing legal systems. Problematic target language renditions at the lexical and syntactic level potentially alter the end user’s ability to understand the performative nature of the source text. Changes to the (perceived) function in the target language may hinder equal access to the legal system. The results raise important questions related to ethics, equal access, and due process, while also serving as a step toward understanding the multilingual legal environment in the United States.
Article
The paper aims to contribute data to the subservient habitus hypothesis explored in Interpreting and Translation Studies, where interpreters and translators are said to be especially sensitive and keen to reproduce social and textual norms, usually dictated by other agents in the field. After exploring the use of this hypothesis in the field, the case study is preceded by a brief account of special features of translation in international organizations and the key elements of the use of legal translation at the World Trade Organization (WTO). The selection of the corpus of study and the target-oriented approach are justified before briefly comparing the traditions in the study of phraseology in English and Spanish. A method drawing from both traditions is explained and then applied to two subcorpora of legal texts in order to establish patterns that can help us see how subservient or subversive translators’ behavior can be. http://repositori.uji.es/xmlui/bitstream/handle/10234/158881/70107.pdf;jsessionid=BF539FCBC754AA243642E0ACC1BE8222?sequence=1
Article
This paper analyzes the problem of improving the quality of legal decision making through additional structuring and better logical assessment of legal knowledge with regard to its “imperfection” expressed in the lack of correct information, the presence of incorrect or unnecessary accompanying information, illegibility, or inconsistency. The described method can be applied in intellectual support systems for decision-making or in computer training systems.
It Is Hereby Performed… Explorations in Legal Speech Acts. Amsterdam & Philadelphia: John Benjamins. Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague
  • Kurzon
  • Dennis
Kurzon, Dennis. 1986. It Is Hereby Performed… Explorations in Legal Speech Acts. Amsterdam & Philadelphia: John Benjamins. Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International.
Problems of Legal Translation
  • W E Weisflog
Weisflog, W.E. 1987. " Problems of Legal Translation. " Swiss Reports presented at the XIIth Interna-tional Congress of Comparative Law, 179–218.
Problems and Principles in Legal Translation
  • M Weston
Weston, M. 1983. "Problems and Principles in Legal Translation. " The Incorporate Linguist 22 (4): 207-211.
Guide Pratique de la Traduction Juridique: Anglais/Français. Paris: La Maison du Dictionnaire. Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague
  • Houbert
  • Frederic
Houbert, Frederic. 2005. Guide Pratique de la Traduction Juridique: Anglais/Français. Paris: La Maison du Dictionnaire. Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International.
Cultural Clash: Anglo-American Case Law and German Civil Law in Translation
  • Susan Sarcevic
  • S A Smith
Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International. Smith, S.A. 1995. "Cultural Clash: Anglo-American Case Law and German Civil Law in Translation. " In Translation and the Law, M. Morris (ed.), 179-200. Amsterdam: John Benjamins.
Guide Pratique de la Traduction Juridique: Anglais/Français
  • Frederic Houbert
Houbert, Frederic. 2005. Guide Pratique de la Traduction Juridique: Anglais/Français. Paris: La Maison du Dictionnaire.