Legal Translations: In Search of Balance between Accuracy and Clarity
In The Authority of Law (Oxford, 1979), philosopher Joseph Raz said that “all laws should be prospective, open and clear”. This can be applied to all types of legal documents. Above all it is vital that translators ensure legal translations are as clear as possible, because the translator’s role is to communicate a specific message in another language, in a way that is both understandable and faithful to the original.
Law is a highly technical field, however, with its own specific terminology and phrases, designating complex realities, which may seem archaic or exotic to the uninitiated. The French word “usucapion” (“usucaption” or “acquisitive
prescription”), for instance, which sounds like a made-up word to any English native speaker without a legal background, means acquisition of a legal right to do or own something after having used or held it for a legally prescribed length of time. If, for instance, your neighbour crosses your garden every day to go to work, and you let this happen for thirty years, if that is the prescribed length of time, your neighbour acquires a legal right to cross that part of your land, and that right will be passed on to your neighbour’s successors.
The first thing to take into account when translating a legal text is the intended readership:
- Legally literate readership, i.e. legal professionals, lawyers, etc. The sort of text intended for a legally literate readership would include contracts, because they are drafted by professionals and are intended to be read by other legal professionals, or at least by a well-informed readership. Memorandums of association, correspondence between lawyers and judges, general terms of use for goods or services; claims; court rulings, and official certificates. Such documents are packed full of technical legal terminology and set phrases.
- Semi-legally literate readership. This would be the intended readership for a range of documents, including interim case reports from lawyers to clients, explaining where the case stands and how the lawyer intends to proceed, proposals for company savings schemes addressed to employees, etc.
A translator has slightly more leeway when translating a document for a semi-legally literate readership than he/she would have for a legally literate readership. He/she can split the text up into shorter sentences, for example, or use layman’s terms. When translating a document for a legally literate readership, however, sentence structure must be respected, unless there is a set legal equivalent, even though it might result in long-winded sentences which the readership may struggle to understand, thus compromising the aim of clarity (French science magazine Sciences & Vie once ran an intelligence test for his readers requiring them to make sense of a sentence written in “legalese”). Translation is often about finding a balance between the letter and the spirit. When translating puns the translator might have to find other words that do not correspond literally to the original words, but that allow him/her to maintain the pun, thus being faithful to the playful tone of the text. Let us take an instance from literary translation. Terry Pratchett’s fantasy novels are translated into French by Patrick Couton, who is praised for the high quality of his work. In Witches Abroad, the protagonist is called Emberella and complains that her name “sounds like something you put up in the rain”. In the French text, she is called “Braisillon” but she complains that her name sounds like something you use to fasten your clothes (“bouton pression” or “snap button”). The letter has been changed but the spirit remains. In legal translation, the emphasis clearly lies on sticking to the letter if you want to retain the spirit.
Unlike almost all other areas of translation, where the words should flow and the readers should think that the text is original, translation for legally literate clients is one area where it is important that the intended readership does not forget that they are reading something that has been translated from the original. Contracts almost always mention, usually in their clause on applicable law, that translations are solely provided for convenience and that the original version is to prevail in legal proceedings. Similarly, translations of any documents from a court or other legal authority should not bear the stamps of the original source, because they might look as though they were attempts at forgery (please see Corinne McKay’s recent post about this).
Cultural differences are also important and should not be “localised”. A prime example of this is Force Majeure clauses. Contracts drawn up in Britain or the US generally list all possible instances of Force Majeure, while their French counterparts follow several models, including one that merely mentions cases that “unpredictable, irresistible and exterior” (“imprévisible, irrésistible et extérieur”). Were it not for the arbitration clause, which stipulates which version is to prevail, discrepancies like this could lead to interesting debates in court between competing lawyers, as to whether or not the contracting party in question could have predicted or avoided the circumstance in question.
One should not forget, therefore, that legal documents, in spite of their “bizarre” wording, do not belong to another world, but are firmly rooted in everyone’s daily life. They are an attempt at regulating transactions within society and at predicting its evolution, as well as any potential infringement. The people who draft legal documents strive to make them – to quote Joseph Raz again – “prospective” and “open” to future developments. When translating these documents, you should first translate the words into real-life situations in your mind. That is a useful tip that may help the translator get the message across the way it should be: clearly and accurately.
