Difficulties in Translating Legal Terms E-Book

Berenice Walther

• Herausgeber: GRIN Verlag
• Sprache: Englisch

Veröffentlichungsjahr: 2014

Beschreibung

Thesis (M.A.) from the year 2008 in the subject English Language and Literature Studies - Other, grade: 2, University of Münster (Arbeitsbereich Sprachwissenschaft), course: Dialogue Studies, language: English, abstract: In this paper, the major aspects of and essential developments in translation theory, including the ever-recurring question of what constitutes a good translation, will be explored and the particularity of legal translation will be discussed. In the translation of national law terms, many facets have to be kept in mind. For example, the mastering of the different languages poses problems as does the relation of legal texts to different and specific legal systems and cultures. The focus will then switch to legal language in particular. The opposition between word meaning of everyday language and the word meaning of languages for specific purposes will be clarified. Then, particular difficulties in legal language and translation with consideration of the different legal systems where these translations are used will be illustrated with respect to the nature of legal discourse, its dependence on the legal system and the presentation of possible ambiguities and their interpretation. The problem of a common legislation in the European Union is one of finding a legal terminology that is not influenced by its cultural environment – an entirely impossible enterprise.

Leseprobe

Impressum:

Copyright (c) 2013 GRIN Verlag GmbH, alle Inhalte urheberrechtlich geschützt. Kopieren und verbreiten nur mit Genehmigung des Verlags.

Bei GRIN macht sich Ihr Wissen bezahlt! Wir veröffentlichen kostenlos Ihre Haus-, Bachelor- und Masterarbeiten.

Jetzt bei www.grin.com

Table of Contents

Table of Contents

1. Introduction

2. State of the Art

2.1 Translation Studies and Languages for Specific Purposes (LSP)

2.2 What is a (good) translation?

2.2.1 The translation

2.2.2 The “free” versus “literal” translation debate

2.2.3 Equivalence of meaning in translation

2.2.4 Official quality standards

2.3 Legal language

2.3.1 Languages for Specific Purposes (LSP)

2.3.2 Word meaning of LSP versus everyday language

2.3.3 Legal language use

2.3.4 Particular difficulties in translating legal terms

3. Theoretical Foundation

3.1 The Dialogic Action Game

3.1.1 The Action Principle, the Dialogic Principle and the Coherence Principle

3.1.2 Rules versus conventions

3.1.3 The speech act

3.1.4 The quasi-universal structure and predicating fields

3.1.5 The expression side

3.2 Legal action games

3.2.1 Functions the model must fulfill

3.2.2 Legal thinking as a part of the action game

3.2.3 Representative, directive and explorative action games

3.3 Possible solutions in legal translation

3.4 Discussion of the methodological approach

3.4.1 The aim of the analysis

3.4.2 Corpora in the comparative analyses

3.4.3 Implementation of the comparative analysis

4. Comparative Analysis of translations of English, German and French Legal Terms

4.1 Conscientious objection

4.2 Property

4.3 Protection of personal data

4.4 Right to asylum

5. Summary and Outlook

References

Appendix

Deutsche Zusammenfassung

1. Introduction

The European Community[1] was founded in 1957 when Belgium, France, Germany, Italy, Luxemburg and the Netherlands signed the Treaty of Rome. Since then, the number of Member States who have joined the European Community has increased to twenty-seven. The EC has not only become a complex organization with a great multitude of languages, but also of political systems, cultural values and legal backgrounds. Its structure can only function effectively if the relationship between the Member States and the EC is clearly defined. Most importantly however, all laws must apply uniformly and therefore have to be translated into the twenty-three national working and official Member State languages (cf. Sims 2001: 160). As every citizen must have the possibility to read important texts in their mother tongue the translated versions have become valid EU documents along with the originals. Legal translation is considered to be one of the most challenging translation types due to its specificity and the system-bound nature of legal texts.

Living in a society of extreme multilingualism is not new to European history but such a situation seems to have become imminent again in the European context. One only has to think of the multiple languages that coexisted in the Iberian peninsula in the Middle Ages when Spanish became the lingua franca, a so-called koine, a language without particular national adscription, or the Anglo-Norman dialect spoken in Britain after the Norman Conquest of 1066 derived from Old French, both merely having a practical function (not a political function in the first place). Latin used to be the common language for jurists until the 18th century - the loss of a common language is considered a tremendous obstacle for a reactivation of a European jurisprudence.

Although multilingualism can be a very enriching experience, it can also pose a problem of indeterminacy in law concepts that cannot be accepted without further reflection. Various attempts have been made to find a common European (and even world) language, for example by making English obligatory in schools and also by creating artificial languages such as Esperanto. It seems obvious that a common grounds of understanding, which is a matter of language policy and equal treatment, is needed if Europe is to progress in its evolution (Kjaer 2008).

In this paper, the major aspects of and essential developments in translation theory, including the ever-recurring question of what constitutes a good translation, will be explored and the particularity of legal translation will be discussed. In the translation of national law terms, many facets have to be kept in mind. For example, the mastering of the different languages poses problems as does the relation of legal texts[2] to different and specific legal systems and cultures. The focus will then switch to legal language in particular. The opposition between word meaning of everyday language and the word meaning of languages for specific purposes will be clarified. Then, particular difficulties in legal language and translation with consideration of the different legal systems where these translations are used will be illustrated with respect to the nature of legal discourse, its dependence on the legal system and the presentation of possible ambiguities and their interpretation. The problem of a common legislation in the European Union is one of finding a legal terminology that is not influenced by its cultural environment - an entirely impossible enterprise. It is extremely difficult to produce legal texts in such a way that they mean the same in all languages, to all recipients, in all cultures and at the same time remain precise enough to keep their standard of legal language. What is more, the problems posed by terminological incongruity and, as a consequence, the difficulties in translating legal terms may be found in legal texts translated by the European Union. The efforts made on the national and European level to obtain mutual understanding of concepts are in the center of attention. The paradox of the attempt to develop a common European legal language in twenty-three interacting legal languages must be faced. In a further step, several approaches to solving translation problems with legal terms will be presented. Edda Weigand’s ‘Dialogic Action Game’ will serve as a theoretical foundation for the analytic part of this paper. On this basis, legal terms and expressions of the German, English and French fundamental Human Rights Charter will be analyzed comparatively. The Fundamental Human Rights are the core elements of the EC law, and as the national legislation of the Member States and the international treaties are quite influential in this field, it is important to provide precise and correct translations. It is obvious that the object of study - the legal text resulting from the process of translation - is a very complex one, located in the field of languages for specific purposes. This field is one further aspect included in the

Dialogic Action Game in order to understand language better while addressing the complex whole. Here it will be a applied to a situation with a plurality of languages and legal cultures.

In linguistic studies, legal knowledge is not obligatory, and a graduate jurist is not expected to know Ferdinand de Saussure’s or Noam Chomsky’s theories. It is hoped that progress can be made on an interdisciplinary level with both fields of study sharing research in order to obtain new results. Indeed, the above-mentioned kinds of questions need to be discussed not only for academic enrichment but also for the promotion of institutions like the European Union. This is another reason why interdisciplinary cooperation is so important for future developments.

The translation problem as such has been topical at least ever since the Roman Empire (and before). It is always the same question that is asked: Should a translation adhere strictly to the wording of the original text or should it transfer meaning as Cicero suggested? This problem is reinforced by the problem of diverse legal cultures, which has become topical in our age of globalization and the increasing importance of the European Union. Rodolfo Sacco (2000) holds the opinion that in the next twenty years the problem of translation will be the most promising chapter of juridical comparison in the important areas of juridical epistemology and the reform of legal language.

The overall aim of this paper is to show the main difficulties of legal translation, the solutions that have been found so far and how these are implemented in practice in the EU legislation of the Human Rights Charter.

2. State of the Art

2.1 Translation Studies and Languages for Specific Purposes (LSP)

Today, linguists estimate that between four and five thousand languages are spoken around the world. People find themselves in more than four thousand communities whose languages constitute a link between their members. However, at the same time, this linguistic connection is also a barrier that separates the members of one language community from the members of other language communities. Translation can be a bridge enabling communication between different language communities separated by linguistic barriers (Garcia Yebra 1982: 47).

There is much more to translation than the mere process of finding words in the target language for words given in a source language. Expressed in an oversimplified way, the translation process is about finding words in another language that express the meaning of the source text in the target text: something that can prove difficult and result in translation errors.

Translation errors can have far-reaching and serious consequences, always depending on the context in which translation occurs; therefore, it is important to prevent mistranslation by discussing possible dangers. Considering the example of Peugeot’s owner’s manual in which the ‘choke’ was translated as “strangler knob”, one can be sure that the user’s faith in the subsequent information provided by the manual will probably vanish (Eisiminger 1989). In another case that I experienced myself, a student was to translate a literary examination text about a man who had only read about snow and never seen any in his life. This man could not understand how people could pisar en la nieve (“step on the snow”). The student, out of ignorance and from logic analogy to her mother tongue, translated the Spanish pisar with “urinate”, providing a humorous interlude for the teacher marking the papers. The consequences can be much more serious than making the mistake of ordering a dish one does not want in a restaurant in Spain when the menu has been badly translated into German. In World War II the monastery of Monte Cassino is said to have been bombed because of a translation error (de Groot 2002: 222). However, the translated work does not always lose important notions as compared to the original; sometimes the translation even seems to improve the original’s literary quality. It has been argued, for instance, that Baudelaire’s translation of Poe is better than Poe’s Poe (cf. Eisiminger 1989). Even if there is no mistranslation, a loss of some elements of the original’s spirit is almost inevitable.

Throughout history, translations, both written and spoken, have played a role in human communication; however, it was not until the last fifty years that the study of translation as an academic subject was initiated - thanks to James S. Holmes, who saw the main concern in “the complex of problems clustered round the phenomenon of translating and translations” (Holmes 2000: 173). When a new problem arises in a particular field, scholars from adjacent areas can assist by applying paradigms and models that have proven useful in their research fields, and either they help to find an at least partial solution to the problem or fail to bring about satisfactory results, hence, researchers become aware that new models are needed to solve the problem. In Holmes’ opinion, this has been the case regarding the phenomenon of translation. The discussion about a need of ‘translation sciences’ as an independent field of research so it would no longer be a marginal part of other research fields began in the 1970s. According to Holmes (1972), several impediments made the development of the discipline of translation studies more difficult. There was a lack of “appropriate channels of communication” as the field of translation studies had not yet achieved sufficient recognition. Research results were published in journals of adjacent fields, thus preventing an optimal distribution of information. Another impediment linked closely to the one just mentioned was that there was no consensus as far as the denomination of this emerging science was concerned. With the terms ‘translation theory’ and ‘translation science’ - according to Holmes - a certain restriction of meaning was implied. Thus, he suggested the term ‘translation studies’ in order to put it in line with other humanities. A further problem was seen in the indefinable scope and structure of translation studies, a result from the fact that many different fields of study are involved and contribute to translation studies .[3] (Holmes 2000)

Holmes (1972) distinguishes several fields in the organization of translation studies which can be presented most easily in the following table:

Figure 1: The figure was established by the author of the paper on the basis of Holmes’ categorization.

The main difference between descriptive translation studies and theoretical translation studies is that descriptive translation studies tries to describe linguistic phenomena, whereas theoretical translation studies formulates principles and finds theories about its working on an abstract level. Generally, the study of languages has taken a relatively independent role within the field of applied linguistics; it is, however, closely linked to the other branches (Hoffmann 1988: 35). It includes terminology work and contrastive analysis, as will be carried out in Chapter 4.

In the last fifty years, considerable advancements have been made in the fields of economic linguistics and terminology studies. Since the 1960s, growing specialization and differentiation into more narrowly defined disciplines and research fields has taken place, along with a tendency towards multidisciplinary fields. Examples of this are discourse analysis and text linguistics as well as LSP research, both new and autonomous branches of Applied Linguistics that brought about a change of paradigm in the 1970s. In turn, these seem to stimulate the formation of new fields of research. This development results from the international boom in the scientific and technical sector, which have also influenced university syllabuses. LSP research concentrates on manifestations of special languages and the various text- types of subject-oriented communication (Schröder 1991: 6). According to Hoffmann (1984: 36)

LSP research has emancipated itself from one-sided views, either lexicological or stylistic, paradigmatic or functional. It strives for a synthesis of competence and performance, of language system and communication. The future path is already indicated by slogans like ‘language-in-function’, which is easily replaced by ‘sublanguage-in-function’ and ‘text- linguistics’, which reads in our case ‘the linguistic analysis of special texts in their respective communicational frames’.

Translation has always been a much-discussed field; finally, in the 1970s Translation Studies was able to evolve into a discipline in its own right. The process began with linguists like Roman Jakobson and continues today with organizations like the European Society of Translation Studies[4] and researchers like Susan Bassnett (2002).

Since insights and methods of linguistics in a legal text analysis will be used, this paper can be attributed to the research field of legal linguistics, a cross-discipline covering topics of law and language, however including linguistics, language theory and legal theory (Busse 1992). Legal linguistics and translation are not new fields, as can be seen on the homepage of the Legal Linguistics Association of Finland[5], where the development and the use of legal language is investigated, or in the variety of specialized literature that exists for this topic. The Forum für Fachsprachenforschung (Association for Languages for Specific Purposes) has published a collection of articles on legal linguistics and translation with the title Übersetzen von Rechtstexten, edited by Peter Sandrini (1999). Hartmut Schröder focuses on the relation of LSP to text theory in Subject-oriented Texts. Language for Specific Purposes by Sandra M. Gollin and David R. Hall (forthcoming) gives an overview of key concepts and research findings based on case studies used in current teaching situations. On the topic of legal linguistics, Christine Schmidt-König (2005) has published her dissertation on the difficulties in the translation of legal terminology (Die Problematik der Übersetzung juristischer Terminologie). Another, somewhat older anglophone monograph is Erwin Hexner’s Studies in Legal Terminology (1941). Most questions in legal translation were dealt with by linguists in the past, but jurists are now beginning to take this subject seriously. Although contributions have increased in number in the last years, only a few fundamental and systematic investigations have been conducted (Schmidt-König 2005: 1).

The increasing academic interest in the analysis of language and translation of the European legislation is reflected in the publication of collection of scholarly essays such as Gert Reichelt’s Sprache und Recht unter besonderer Berücksichtigung des Europäischen Gemeinschaftsrechts. Richard Creech’s Law and Language in the European Union, Barbara Pozzo’s Multilingualism and the Harmonisation of Law, or the great variety of articles in the International Journal of LSP. Analysis of language and translation has been supported by the European Commission, one important tool being the IATE (Inter Active Terminology for Europe), which replaced the former EURODICAUTOM, the inter-institutional terminology database the European Union launched in 1999 with the aim of making the EU terminology resources available online.

A large proportion of the academic literature used in this paper is German. This is due to the fact that LSP research is of “European origin par excellence” (Schröder 1991: 2), bound to the traditions of philology in German-speaking countries. The first international journal for Special Language - Fachsprache was founded in Austria in 1979.

This overview has indicated that the research background of Translation Studies and LSP is characterized by a multitude of theories and models and, of course, by contradictory hypotheses. Instead of giving a detailed account of the state of the art, which would be an impossible enterprise, the following aspects of research will be used in an exemplary manner to demonstrate the developments in translations studies.

2.2 What is a (good) translation?

2.2.1 The translation

The questions of what a translation[6] is, how a translation should be made, and how a translation becomes a good one are essential questions that have been discussed by many scholars with greatly diverging views.

Generally, in translation, a sort of synonymy is established between the different languages from which and into which is translated. In special cases the relations and the concepts are the same and can be considered as synonyms; when language boundaries are crossed this can be called crosslingual synonymy.

The word ‘translation’ is polysemous as, on the one hand, it refers to the translation process itself and on the other hand, it can be the result of this translation process. In this paper, special interest was placed on both of these aspects as legal terms can only be translated properly when the translation process is successful. The result of the translation will be in the focus, but the result cannot be analyzed if the translation process is not taken into consideration as well. In the process of translation the two stages of comprehension of the source text and the expression of its message must be passed through.

The reader and the translator follow the opposite direction of the author’s working process when he[7] writes a text. They both go from the signifiant, that is, the external form, to its semantic content, whereas the author starts out with the content, which he then expresses in linguistic signs. However, it has to be stated that the translator as a reader does not stop when he has come to the general reader’s aim, which is the understanding of the text; the translator as reader also has to think in the way the author writes. From the original text, he will then pass to the linguistic signs

- in the target language. This means that the translator has to partly assume the function of the author (Garcia Yebra 1997: 31). Indeed, it is impossible to understand entirely what an author wants to say, as one does not know if he has managed to express himself perfectly or if he himself has understood what he wanted to say. Another problem lies in the reception process; every reader has cognitive, cultural etc. prerequisites that may differ from those of the author and from those of other readers. It is obvious that no two readers will understand a text in the same way, and therefore, there will be no two identical translations of one source text. The reason lies in the different perceptions of the translators as readers.

The second phase is the expression which comprises the translatio of meaning from the original text to the target text. This is where the issue of (untranslatability must be dealt with. Is it possible to transfer content from one language to another? There are concepts, morphologic and syntactic constructions that are impossible to translate into other languages. It will be shown in the following chapters that translation does not consist in the exact reproduction of formal structures.

2.2.2 The “free” versus “literal” translation debate

The debate over the fidelity of the translation to the word or to the spirit of the text dates back to the Roman Empire, when formal correspondence between source and target text was essential to preserve the meaning of biblical and legal documents (Sarcevic 1997: 23ff.). The wording was not to be changed as it was supposed to produce the same effect on the reader as the source text had on the reader of the original. Translators were instructed to adhere scrupulously to the original text, a mentality that lasted until the twentieth century. It was at this time that national language consciousness rose in bi- or multilingual countries to speak in favor of respecting the target language (Sarcevic 1997: 34f.).

Before the first century BC, the word-for-word method was used as a gloss which helped to give the reader a better understanding of the source text. The distinction between ‘word-for-word’ and ‘sense-for-sense’ translation goes back to Marcus Tullius Cicero and is still the basis of the writings in our times. He was the first person known of to argue for a sense-to-sense translation:

And I did not translate them as an interpreter, but as an orator, keeping the same ideas and forms, or as one might say, the ‘figures’ of thought, but in language which conforms to our usage. And in so doing, I did not hold it necessary to render word for word, but I preserved the general style and force of the language[8]. (transl. in Robinson 1997)