Like many translators, I started out translating technical texts, web sites, marketing and the occasional balance sheet. Inevitably, the day came when an agency asked me to do a legal text. Based on the concept that work is work and money is money, I accepted. I can’t remember the text itself, but I do remember the churning feeling that went through my stomach as I started translating (time equals money concept gone out the window!) . The original “Law Italian” was daunting and I spent hours on the internet just trying to understand the legal concepts behind the words. Once I had attempted to work these out, I was then faced with the problem of putting what I had translated into the correct register. Second question: plain English or Legalese? Clarity or making the text sound “Law English”? But, while I was quite good at writing in plain English, my legalese, at the time, was non existent! And then, how do I handle the names of all those institutions, laws, articles, sections and God knows what else… Somehow I muddled through. But I invested in de Franchis – more than a dictionary - a legal reference work for IT>EN translators (Law Dictionary Francesco de Franchis Vol 1 +2 Giuffrè Editore/Milano)- and did a lot more reading on the internet, posted kudoz questions and pestered colleagues with legal backgrounds via e-mail. This about sums up how a generic translator gets started as a legal translator. I have since translated numerous legal texts and have thus learned about some of the pitfalls and difficulties. But, all said and done, I enjoy the challenge. I really do. I’m hooked.
This forum is about sharing techniques and, judging from the number of questions that are posted relating to legal terminology, I thought this might be a good place for sharing what I have learned and, of course, getting your feedback! The aspects that could be discussed are numerous.
Just a few that come to mind are:
1. Understanding the bases of English legal language: plain English vs Legalese
2. Dealing with different legal systems: Civil Law vs Common law
3. Dealing with the correct translation of legal institutions, laws, courts and names of court officials and legal professionals
4. Why footnotes are so important
5. Visual arrangement of legal texts in the target language (British English)
But I think, I’ll start with the first one for the time being. Perhaps someone else would like to volunteer to start threads on the others.
My experience is based on translating Italian legal texts into British English, so, while I will endeavour to make my points as general as possible, they may be more relevant to those translating into English rather than other languages. I have also tried to give the sources and URLs for further reading. So here goes.
Let me start with a quote:
“ While lawyers cannot expect legal translators to produce parallel texts that are identical in meaning, they do expect them to produce legal texts that are identical in their legal effect” (Dr. Ayfer Altay – from article published in the Translation Journal vol 6, No. 4, October 2002, available on-line).
1. Understanding the bases of English legal language. One of the major problems in legal translation is understanding the legal language used both in the source language as well as the target one. We are almost in awe of the language used by lawyers; all those wonderful archaic terms, convoluted sentences, embedded phrases, unusual syntax, conjoined clauses, legal homonyms and synonyms, reiterations and alliterations. In real life, we would never dream of signing a last will and testament or an important contract without first seeking the professional help of a notaire or solicitor. This is the first problem; we are dealing with a professional dialect, an argot or, more correctly, with a sub-language (Tiersma 1999). English legal language has evolved over many centuries and it is important to recognise why English legal language is what it is today, and also understand why it is such a die-hard. Have you ever asked yourself why legal texts are full of aforesaids, herebys, hereinafters, and “shalls” that mean “musts” (isn’t “shall” future tense?) and why expressions such as “aid and bet”, “any and all” and “tell the truth, the whole truth and nothing but the truth” are still used? Or why do you say Attorney General or Judge Advocate, Court martial and accounts payable/receivable when I was taught at school that English adjectives precede nouns? And why does legal language love juxtaposing two words with closely related meaning like “ acknowledge and confess”, “last will and testament” and “fit and proper” when one of the words will do quite nicely, thank you. Where do words like “estoppel” “demurrer” and “waiver” come from? Why is “valuable consideration” ( a recent kudoz post) still adopted today in contracts when a) consideration alone adequately expresses the legal concept ( value is subjective and means different things to different people) and, b) the person who is probably reading the contract (bank mortgage) is a lay person and has to be told (in a footnote) that consideration does not mean “love and affection” but “ the act, forbearance, or promise by one party to a contract that constitutes the price for which he buys the promise of the other” in this case.
David Mellinkoff (late American professor of Law and advocate of Plain English lists nine reasons why legalese is different from general English:-
1. The frequent use of commonly used words which are attributed with uncommon meaning (e.g. “action” meaning lawsuit, “process” meaning trial)
2. The frequent use of archaic words deriving from Old English or Medieval English which were once commonplace but are now obsolete (e.g. aforesaid, hereby, sayeth, naught)
3. Frequent use of Latin words and phrases (pro bono, ex parte)
4. Use of Old French or Anglo-Norman words and phrases that have become part of the vernacular (e.g. chose in action)
5. The use of terms of art ( e.g. negotiable instrument, valuable consideration)
6.The use of what Mellinkoff calls “jargon” or legal words used by those in the profession but which are not sufficiently technical to be deemed terms of art (e.g. inferior courts)
7. The frequent use of rhetorical impersonal expressions (e.g. May it please the Court)
8. The deliberate use of words or expressions, the meaning of which can vary (e.g. negligence)
9. The attempt to be precise and “cover all eventualities” via the frequent use of hendiadys and conjoined phrases (e.g. all sums of money, accounts, claims and/or demands), or specific exclusions (e.g. and for no other purpose whatsoever).
To illustrate some of the above points take a look at this contractual clause from one of my texts:
“XX shall not in any circumstances be liable under the Contract or in Connection with the Goods or Services whether in contract, tort or otherwise, without limitation in respect of loss of profits, loss of contracts, loss of operational time, loss of use of equipment or process or any loss of actual or anticipated earnings or savings or any special, indirect, consequential or exemplary loss or damage or any other loss which is not foreseeable, direct loss or damage however arising and of whatever nature suffered and incurred by the Client or any third party or not XX has been advised, knew, or should have known of the possibility of such loss or damage.”
This is what translators have to deal with. I don’t envy my colleagues translating from English at all!
For more background on the origins of legal English, Peter Tiersma has an excellent web site with an incredible amount of information or, alternatively, there is his book. (Peter Tiersma, The nature of legal language, http:/www.languageandthelaw.org/NATURE.HTM; Peter Tiersma, Legal Language (University of Chicago Press, 1999). There are also a number of good articles to be found in the Translation Journal, available on line.
Without going into further historical detail, I would just add that at one point three different legal languages were in use in England: English, French and Latin.
In 1731, Parliament officially ended the use of Latin and Law French in legal proceedings, but in true, English, pragmatic style they were reinstated by statute for cases where English words or terms could not adequately substitute the French and Latin equivalents. Also the legal profession clung on to its Law French argot. Using Law “Franglais” or “Franglish” (as you prefer) did become somewhat absurd, though, as the famous case cited by Tiersma , called the brickbat case of 1631, shows. A condemned prisoner threw a brickbat at the judge. The report noted that “he ject un brickbat a le dit justice, que narrowly mist. The judge, not amused, ordered that the defendant’s right arm be amputated and that he be “immediatement hange in presence de Court. Wonderful stuff. Now we begin to understand why English legal language can be so arcane.
1.1 Plain English versus Legalese
When I re-read some of my first legal translations, they read like a normal piece of English business writing. They are in plain English. I have never felt happy about using a register that I am not familiar with. So, what is more important? The correct register (it sounds good) or the clarity and the legal effect of the translated text? How essential is the use of legal language in producing a good final translation?
My first ground rule is to ask who the translation is for. If it is a translation of a contract that will go to a client and subsequently to his lawyer for re-working, then a minimum of legalese will be required. If I am translating the document drafted by an Italian Avvocato giving notification to an elderly next of kin in Australia that an EPA (Eternal Power of Attorney) has been submitted to the Courts, and that she has ninety days to file any objection, I will aim for clarity and keep the legal language to a minimum, even though the original source text may adopt a rhetorical legal style. In the first case, legal English is more appropriate, while in the latter, plain English.
It is often a temptation on seeing a phrase in a source text to immediately translate it with the “standard” legal English equivalent. Such examples might be the exordium and recitals of a contract or standard contractual clauses such as third party, assignment or dispute resolution clauses. Strangely enough, Italian will use only one word like “indemnify”, while one of the standard English variants may use “shall hold harmless and indemnify and keep indemnified of and from all and any claims and liabilities….”. Do we translate just the one word or adopt the nearest English legal equivalent that sounds like it fits the bill? And it does sound good!
I would choose one of the options “hold harmless” or “indemnify” to translate my one Italian term. I have done what I have to do – not draft a contract in legal prose but clearly convey the sense without altering the legal effect. My contract has been drafted under Italian Law and should reflect this. Having said this, however, I will adopt the standard legal English terms used in contracts “this contract is made by and between”, “whereas”, In consideration of the aforesaid, the parties hereby agree” etc.
As for the “embellishment” of translated legal prose with “hereby”, “aforesaid”, “hereto”, “hereinafter”, I am as guilty as the next man. They just seem to slip in off the keyboard. However, it should be stated that there is a strong lobby, especially in the USA, for writing Plain English and for eliminating these little legal redundancies. The current school of academics is in favour of simplifying legal English, although there is strong resistance from the legal profession, who stand to lose their century-old monopoly – I mean what would happen if we actually knew what they were talking about?
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