legal translation – an interdisciplinary perspective alenka kocbek, opatija 19 - 21 march 2015

LEGAL TRANSLATION – AN INTERDISCIPLINARY PERSPECTIVE

Alenka Kocbek, Opatija 19 - 21 March 2015

Creating a Targeted Model for Translating Legal Texts

• designed by taking into account the specific nature of legal texts – their embeddedness in the corresponding legal systems(LS) and cultures (LC) :

• Translation Studies:• Snell Hornby’s integrated approach, • the functionalist views - the skopos theory • Oksaar’s concept of cultureme (pattern of communicative behaviour), • Chesterman’s theory of memes (units of cultural transfer encapsulating ideas,

concepts, beliefs, cultural practices)• contrastive discourse analysis (House)

• the findings of comparative law on differences between legal systems and their impact on legal languages

• the stance of legal linguistics – common + culturally specific features of different legal languages (Cao, Mattila, Tiersma, Beveridge)


Terminology as signpost and alert signal

• specific terms expressing legal-system bound concepts (e.g. consideration in contracts under common-law, equity with related expressions e.g. equitable rights - rights under the system developed by the Court of Chancery, references to the law of obligations, typical of continental LS, de cuius → law of succession) - function as:

• signposts directing the translator to allocate the text to a specific area of law of a given legal system (to be considered in the phase of terminology mining),

• alert signals – indicating the necessity to envisage the wider legal context underlying the term and affecting other dimensions of the legal text (extra-textual & textual)


Culturemes as scaffolding tools• merging the 2 concepts : (text-) culturemes involving several levels - a

specific memetic structure (Kocbek 2011)• the cultureme - split into:• its extra-textual level = impact of the relevant legal systems affecting the

content • textual level:• macrostructure = extent and contents of the text as required by or

customary in the relevant culture • microstructure = lexical, syntactic, pragmatic, stylistic levels• the specific features reflecting text-conventions (i.e. memes) on the

various text levels mapped to define the memetic structure of the text = macro- + microstructure


A targeted translation model for LT1. Scan the source-text to define the legal genre and allocate it to the relevant

area of law 2. Identify the skopos and define the corresponding type of translation3. Establish the number/hierarchical status of LS involved in the translation4. Establish the level of relatedness of LS involved5. Establish the relationship of language(s) used and LS involved6. Analyse the ST cultureme – identifying memes 7. Define the hypothetical TT cultureme8. Contrastive analysis of the ST and TT culturemes – mapping overlapping &

divergences9. Design the final TT10. Provide for the legal security of the TT and the transparency of the translational

solutions


1. Defining the genre and relevant area of law

• Scan the source text to define its genre and the area of law of the source LS to which it pertains.

• Terms functioning as titles + defining genre• (e.g. sodba/judgement/Urteil/sentenza)• legal-system bound terms as signposts: • (consideration – Contract Law, equitable remedies/rights

– equity, Prokurist – Commercial Companies Act /Gesellschaftsrecht)

- draw the attention to specific legal notions/areas of law of the SLS (potential sources of translation problems)

Alenka Kocbek, Opatija 19 - 21

March 2015

Typology of legal genres(Busse)LT - clearly defined function, usually translated for definite purposes (skopoi)

D. Busse (2000)- text typology distinguishing legal genres according to: function + area of law – 9 legal genre categories :

• with normative power, e.g. constitution, statutes, legal acts;• used for interpreting texts with normative power, e.g. commentaries, legal expert opinions; • pertaining to legal practice, e.g. judgements, sentences, decisions; • for finding justice, e.g. indictments, lawyers’ motions, pleadings, appeals;• for asserting or claiming justice – e.g. claims, testaments, different applications;• for implementing legal provisions and exercising the law, e.g. complaints, charges, court

and out-of-court settlement, arrest warrants;• of contractual nature, e.g. commercial agreements, Articles of Association, General Terms

of Trade;• certification/ authentication TT - notarial deeds or official documents , e.g. entries into land

registers, registers of births/marriages/deaths, company registers; • pertaining to legal science and legal education, e.g. legal textbooks, dictionaries, academic

papers

• The genre provides the relevant context (Sager): e.g. contest, appeal against /anfechten /impugnare /izpodbijati

• E.g. context related meanings of „execute“ Alenka Kocbek, Opatija 19 - 21

March 2015

2. Identifying the skopos and defining the corresponding type of translation

• use the translation brief / consult the party requesting the translation, evaluate the circumstances of the communicative situation

• possible skopoi :• one of the bi-/multilingual versions of an LT having

equal legal force (one LS binding – governing law)• TT not having the status of authentic text• TT to be used as a basis for an LT embedded in the

target legal system


Legal translation categories• Cao (2007: 10 – 12) – 3 categories of legal translation:

• T. for normative purposes - producing translations of domestic laws/international legal instruments in bilingual and multilingual jurisdictions ( ST and TT text have equal legal force)

• T. for informative purposes - translations of different categories of legal texts (statutes, court decisions, scholarly texts), produced in order to provide information (in the form of a document) to TC receivers - translations only have informative value and no legal force.

• T. for general legal or judicial purposes• original SL texts translated to be used in court proceedings as part of documentary evidence - informative

+ descriptive function• include, apart from legal documents (pleadings, statements of claim, contracts, etc.), ordinary texts such

as business or personal correspondence, witness statements and expert reports, etc. –

• Kocbek: T. of legal texts for non-legal/non-judicial purposes (documentary t.): • a contract translated for the bank – to be submitted as evidence of a future income; legal texts translated

for linguistic analysis, to provide information to the public.


3. Establish the number/hierarchical status of legal systems involved in the translation

Translating:1. within an international or supranational legal system such as the UN or the EU or a

multilingual jurisdiction → only one LS involved /binding underlying all language versions.

2. within international legal transactions - two or more LS involved • one legal system explicitly defined / adopted by the parties = governing law,

maßgebendes Recht, competenza giurisdizionale • → one legal system hierarchically superior & underlying both ST and TT.

3. translating from a SLL / SLS into a TLL / TLS → the TLS binding• → two legal systems involved, each underlying one language version.

4. legal texts in a lingua franca – no matching between LL and underlying LS


4. Establishing the level of relatedness of LS involved

• LS analysed as to • sources, • historical background, • the extent of codification • the specific legal institutes applied→ some legal families show a greater

relatedness than others.


Legal systems / familiesZweigert and Kötz (1992) group legal systems as to - historical development, - distinctive mode of legal thinking, - distinctive legal institutions, - sources of law and their treatment, - ideology:

Eight major legal families: • Romanistic, • Germanic, • Nordic, • Common Law, • Socialist, • Far Eastern Law, • Islamic • and Hindu Laws


Common Law / Civil Law• most influential families= 80% of the countries of the world Common Law family: • England and Wales, • the USA, • Australia, New Zealand, • Canada, • some former colonies of England in Africa and Asia e.g.:• Nigeria, • Kenya, • Singapore, • Malaysia and • Hong Kong.Civil Law countries: France, Germany, Italy, Switzerland, Austria, Latin American countries, Turkey, some Arabic states, North African countries, Japan

and South Korea. • Hybrids (mixed influence of the Common Law and the Civil Law) e.g. Israel, South Africa, the Province of Quebec in Canada, Louisiana in the US, Scotland, the Philippines and Greece. Most ex-socialist countries in the post-socialist period returned to the Civil Law family. Cao classifies the law of the EU as a mixed jurisdiction (2007: 25).


The gap dividing legal systems/languages

Sarcevic (1997: 13) - each national law = independent system with its own terminological apparatus, the underlying conceptual basis, rules of classification, sources of law, methodological approaches and socioeconomic principles

Cao (2007: 23): every legal language reflects the history, evolution and culture of the corresponding legal system.

System gap → affects 3 main terminological areas - different types of legal professions, - the terminology used to render different court structures and - the specific terms referring to particular areas of law and legal notions.

(consideration or estoppel in Anglo-American contracts, equity, concepts referring to the Law of Obligations ).


5. Establish the relationship of language(s) used and LS involved

• when translating between different LS or families - the relatedness of legal systems, rather than the relatedness of the languages involved in translation determines the level of translatability of legal concepts (Sandrini 1999. 17).

• relatedness of languages → risk of creating false friends• komercialist – commercialista, amministratore delegato –

predsednik uprave, • Prokurist /procuratore commerciale /“procurator“/• languages and cultures/legal systems often do not coincide (e.g. bilingual areas)


Translation scenarios (de Groot)1. the legal systems and the languages concerned - closely related, e.g. Slovenian and Croatian -

translating relatively unproblematic.

2. legal systems related, but the languages are not, e.g. translating between the German laws and Slovenian - translating will not involve extreme difficulties.

3. legal systems different but the languages related - the difficulty considerable - risk of false friends, e.g. translating German legal texts into Dutch or vice versa.

4. most difficult task - translating between unrelated legal systems, as well as languages, e.g. translating Common Law texts from English into Slovene.

Kocbek (2008) - another possible scenario = translating between relatively related legal systems (e.g. Croatian and Slovene, both belonging to the Civil

Law family), but using a lingua franca (bound to a legal system not relevant to the communication act, even fundamentally unrelated to the legal systems of the communicating parties)

• often the case with English used as lingua franca

• the relatedness of legal languages - perceived mostly as relatedness of different text levels.


6. Analysing the ST cultureme - to identify LC-specific features/memes reflecting text conventions: 1. On the macrostructural level – where the extra-textual dimension (LS)

affects the text: e.g. in the case of contracts mandatory/ customary content in a given LS = “boilerplate” clauses ( e.g. in Anglo-American contracts Recital with whereas clauses,

Representations and warranties)

→ sequence in which text elements occur (e.g. the structure of a judgement – operative part/Tenor/izrek/dispositivo; statement of grounds / obrazložitev/motivazione della sentenza)


2. ST – microstructure-lexical levelAnalyse the various levels:1. Lexical level:• Importance of the terminological dimension – documenting potential gap(s) between LS

(terms as „depositories of knowledge“)• terms expressing SLC-bound concepts (e.g. consideration, estoppel,

mortgage,Rechtsgeschäft, supervisory board, codice antimafia, abigeato, ) = SLC memes, • phenomena such as word pairs (e.g. bind and obligate, deemed and considered) and

strings (e.g. “all taxes, levies, duties, imposts, charges and withholdings of any nature whatsoever)

• phraseology:• partly universal (in good faith/in buona fede, v dobri veri; small print/Kleindruck/ drobni

tisk; third parties/Dritte/ terzi/tretje stranke) • LC-specific idiomatic expressions such as “lifting/piercing the corporate veil”, yellow dog

contract, transactions made „at arm‘s length“;• Faustpfandrecht,• terms of Latin origin:• - some universal e.g. alibi, ususfructus, pro bono, ex officio• - LC-specific - e.g. affidavit, amicus curiae, subpoena; de cuius, par condicio• the meaning of which differs from one LS to other - e.g. exitus • (decease : offspring, conclusion of the pleadings)


ST-microstructure – syntactic, stylistic,pragmatic levels

2. syntactic - prevailing sentence structures (typical conditionals, e.g. introduced by “provided that”), use of passive voice / impersonal verb forms will be established

3. stylistic – level of formality + language means used to convey objectivity, stress the official nature of the text (passive voice)

Tetley (2000: 703) : the style of Civil Law codes and statutes concise, the style of the Common Law statutes precise.

• legal English based on inductive thinking, empirical approach to legal problems (all-inclusiveness, verbosity in English/American contracts )

• German LT – style reflects the systematic and logical development of German law, using abstract conceptual language, based on highly-abstract, system-oriented, deductive thinking.

• the overall extent of legalese

4. pragmatic – some legal texts are speech acts per definitionem (statutes, contracts, wills) prototypical structures for expressing legal relationships (typically high performative power) : - a number of „legal“ performative verbs: declare, adjudge, pronounce, undertake, bind,

grant /confer rights - e.g. assuming and imposing obligations (the modal 3rd person shall ) vs. lexical verbs such as sich verpflichten / impegnarsi/ obvezati, zavezati se)


7. Defining the hypothetical TT cultureme

• by analysing paralell TLC text types, e.g. collections of sample texts, corpora (Evrokorpus, Eur-Lex)

• no equivalent genre in the TLC – texts of the same genre category considered

• → draft a hypothetical TT cultureme• = a skeleton text fully conforming to the

conventions of the TLC by following the procedure in stage 6 (examine extra-textual + textual levels ( macro- and microstructure)


8. Contrastive analysis of the ST and TT culturemes – map overlappings & divergencies

• Perform a contrastive analysis aimed at identifying:

• 1. ST features/memes to be directly transferred into the TT – • - universal memes (the use of legal terminology, a formal style), • - memes prototypical of the SLC to be preserved (e.g. the SLS = governing law) , translation

for normative purposes

• 2. ST memes to be modified (mutated) due to the skopos (e.g. ST used as blueprint for a TLC- embedded text )

• 3. the extent/depth of mutation of ST memes:• - changes in the surface structure, e.g. stylistic adaptations - modifications on conceptual level (substituting mortgage with hipoteka) • - omitting ST memes (e.g. the whereas clauses) • - introducing TLC memes required or customary in TLC


9. Designing the final TT

Following the skopos – design the TT:

- taking into account the findings of the steps 1- 9:- TT = a mosaic/puzzle text

- important guideline: memes/text features & elements of different LC can coexist in the TT:

- e.g. SLS = governing law - → SLC prototypical content elements (clauses/articles) and lexical memes

maintained in TT, - on the syntactic, stylistic and pragmatic level memes of the target cultureme

applied

- → TT = cultural hybrid


Addressing terminological non-equivalence – transferring lexical memes

In case of lack of equivalence – if in accordance with the skopos the term has to be transposed – into the TLS - use:

• the source-language term in its original or transcribed version (leasing – lizing, delocalisation – delokalizacija, due diligence),

• a paraphrase (Prokurist = authorised signatory/representative oz. a representative of a company holding a special power-of-attorney, i.e. a procura, authorizing him/her to act on behalf of the company)

• create a neologism (possibly of of Latin/Greek origin), e.g. sanacija (Sanierung, risanamento, rehabilitation)

• build a calque or a word with borrowed meaning • (*with an explanatory footnote if necessary )

• E.g. „haircut“ = striženje; stress test = stres(ni) testi → obremenitveni testi/ test izjemnih situacij


10. Provide for the legal security of the TT and transparency of translational solutions

• consider the risks implied in legal translation and assume the burden of responsibility for potential consequences of (in)adequate translation.

• guidelines to be followed (Sandrini):

• safeguard the legal security of the target text = double-check legal foundations, consult an expert

• ensure the transparency of the translational decisions. = account for the solutions adopted in accordance with the skopos of the

translation (Chesterman’s accountability norm).


LT generating a pool of memes• new memes (e.g. consideration or equity transferred to a

target Civil Law environment, EU concepts adopted in the process of harmonization) enter a TLC through translation, regardless of the translational solutions applied, they disseminate new knowledge and integrate into the new environment

• → LT contributing to divulging and deepening the knowledge about different legal systems,

• raising the awareness as to their common features and differences,

• creating a pool of the most significant memes representing the foundations of the different legal systems.


Legal texts drafted in a lingua franca

• specific problems – which LC should the text be embedded in• on the lexical, especially terminological level the risk of:• transferring concepts/memes from the LS underlying the lingua franca -

alien to the legal systems involved in the translation• their interpretation tainted by the meaning attributed to them in the LS

of origin • selective approach needed • lingua franca text conventions to be established?• Euro-English as lingua franca?• English the best choice? • B. Beveridge: LEGAL ENGLISH – HOW IT DEVELOPED AND WHY IT IS NOT

APPROPRIATE FOR INTERNATIONAL COMMERCIAL CONTRACTS


Conclusion • the model = a scaffolding tool meant to:• raise the awareness as to potential pitfalls which could compromise the

quality and functionality of the TT • direct the translation process.

• steps not necessarily in the indicated order - may blend into one another, be omitted in accordance with the skopos and translator’s experience.

• created by drawing on a combination of disciplines (TS, legal linguistics, comparative law) + years of experience

• the competences and skills underlying this model reflect the requirements to be met by legal translators and interpreters in their work

• →to be incorporated in the training and assessed in the examinations (extensive language skills + TS + comparative law + (comparative) legal linguistics


• Thank you for your attention!


legal translation – an interdisciplinary perspective alenka kocbek, opatija 19 - 21 march 2015

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