Chapter 4 Legal Translation and Terminology. Preview Importance of legal translation Legal translation and comparative law Types and status of legal texts.
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Chapter 4 Legal Translation and Terminology
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Preview Importance of legal translation Legal translation and
comparative law Types and status of legal texts Goal of legal
translation Legal translators competences Drafting rules
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Legal translation (S. arevi) Legal translators in high demand
today due to globalization, regionalism and increased translation
at national level
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High demand for legal translators Globalization increased
mobility of people, goods, services and capital International law
and international organizations International trade law
International dispute resolution
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High demand for legal translators on the regional and national
level Regionalism development of regional markets and harmonization
of national laws EU law National level - translation in bilingual
and multilingual states Right to use ones langage before the
courts
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Specialized translation Transfer of specialist knowledge from a
source text into a target text by a translator who ideally has the
knowledge, the competence and the recognized status of an
expert
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Legal translation More than the transfer of specialist
knowledge Most legal texts produce legal effects The success of
legal translations measured by their interpretation and application
in practice, esp. by the courts A translation successful only if it
accurately conveys the specialist knowledge in the source text and
produces the intended legal effects in practice
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Goal of legal translation To produce a text that will preserve
the unity of the single instrument by guaranteeing uniform
interpretation and application A reliable translation is one that
expresses the intended meaning and leads to the intended
results
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Legal translation as approximation Unlike texts of natural
sciences, legal texts are not based on a universal system of
knowledge but derive their meaning from a particular national legal
system the source legal system The product of a different history,
cultural and lagal tradition, every legal system has its own
sources of law, classification, institutions and conceptual system
and thus its own language and knowledge structure Due to
incongruity of legal systems, legal translation is often said to be
approximation
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Legal translation and comparative law Legal translation
consists of both legal and interlingual transfer Translator
concerned not only with interlingual transfer from a source
language into a target language but also with legal transfer
between legal systems The target legal system the system to which
the target receivers belong and is determined by the language of
the target text
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Roles of legal translator A double role: receiver of the source
text and producer of the target text A translator has no authority
to resolve an ambiguity in the source text as this would be an act
of interpretation
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The role of comparative law The success of a legal translation
depends on the degree of similarity of the source and target legal
system and on the affinity of the source and target languages
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Types of legal texts
PrescriptiveDescriptive/prescriptivedescriptive Legislation,
delegated legislation Codifications Treaties and conventions
Contracts Judgments Wills Documents used for judicial proceedings
(appeals, requests) Academic textbooks Commentaries Scholarly
articles Legal opinions
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Legal translation as communication Factors that have an impact
on translation strategy: Type of text Communicative function or
purpose (skopos) Legal factors: source legal system, legal
receivers and target legal systems, how many legal systems are
involved, drafting techniques, rules of interpretation
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Status of legal translations The communicative purpose
determined by its status, i.e. whether it is authentic or
non-authentic Authenticated translations legally binding (e.g. EU
legislation, UN conventions) Non-authentic translations for
information purposes
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Target receivers in legal translation Indirect receivers all
persons affected by the particular instrument, including the
general public Direct receivers specialists empowered to interpret
and apply the insturment: public officers in government and
administrative agencies, the judiciary
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The goal of legal translation To produce a target text which
conveys the content of the source text as accurately as possible
and leads to the same legal effects (legal equivalence) The success
of authenticated translations measured by their interpretation and
application in practice The goal of multilingual legal
communication to achieve equality before the law in all language
versions; to produce a target text that will be interpreted and
applied by the courts in the same way ( uniform interpretation and
application of all texts)
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Co-drafting While it is traditionally presumed that source text
and target text are produced at a different time, the goal of
bilingual drafting is to coordinate the time and place of the
production of parallel texts to the greatest extent possible Legal
translators have gradually become text producers with drafting
responsibilities, thus decreasing their dependence on the source
text; wider decision-making powers; permitted to make legal as well
as linguistic decisions First consideration no longer fidelity to
the source text but rather fidelity to the uniform intent of the
single instrument, i.e. what the legislator or negotiatiors
intended to say
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Competences of legal translators Must be able to understand not
only what the words mean and what a sentence means, but also what
legal effect it is supposed to have and possess the drafting skills
to achieve that legal effect in the other language Considerable
language and legal competence Must produce a target text that is
legally reliable and of high language quality
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Competences of legal translators Not only in-depth knowledge of
legal terminology, but also a thorough understanding of legal
reasoning and the ability to solve legal problems, to analyze legal
texts, and to foresee how a text will be interpreted and applied by
the courts Extensive knowledge of the target legal system and the
source legal system Drafting skills are required and a basic
knowledge of comparative law and comparative methods
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Lawyer-linguists in the EU Responsible for revising,
harmonizing, and coordinating all language versions to ensure that
each text expresses the uniform intent The Jurist/Linguist Service
established in 1966 to compare the language versions of a legal
text, to arrive at a uniform interpretation and to ensure that each
version faithfully reflected that interpretation Lawyer-linguists:
a law degree, good knowledge of their national law, EU law, public
international law, a good command of several EU languages;
translate only into their own language
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Legal translators in the EU When selecting equivalents,
translators must take account of terminology used in other
instruments already in force Since authenticated texts are
considered final and definite, the language therein has the status
of a precedent Once an equivalent has been used for a particular
concept in any authentic text, other translators are obliged to use
the same equivalent, even if they consider it inadequate
Authenticated translations a source of law
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Legal translators Like legal drafters, translators must be
thoroughly acquainted with the format of a legal text and
understand the function of each of its parts in order to be
effective text producers
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Consistency requirements Use of official titles Citations from
prior translations Consistency of terminology Use of official
translation equivalents
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Standard forms Clauses and entire provisions expressing
repetitive actions standardized for use in translations and
published in drafting manuals
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Commercial contracts: common clauses Names and addresses of the
parties Rights, obligations and liabilities of the parties Force
majeure clause Termination Dispute resolution Warranty and
exclusion Entire agreement clause Governing law Signature, date and
execution
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Commercial contracts The source legal system is the law
governing the contract regardless of the language of the contract;
many contracts drafted in English but governed by a different law
Target receivers contracting parties identified in the first clause
and ultimately the courts specified in the forum clause in the part
on dispute resolution
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Commercial contracts Civil law lawyers should not use model
forms of commom law contracts because they contain technical common
law terms which appear to be easily translatable but the literal
translations often mean sth very different to civil law lawyers
International commercial contracts should be drafted in neutral
terms that are easily translatable and will be understood by both
parties and the competent courts
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Drafting legal rules in legislative texts Legal rules specify
the subject matter and scope of application, set forth definitions
and prescribe the rights, obligations and liabilities Translation
competence presupposes that translators are able to understand
legal rules in the source text and draft them correctly in the
target language. They should not be translated literally because
drafting techniques differ from jurisdiction to jurisdiction
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Main elements of legal rules The fact-situation expressing the
conditions that must be fulfilled in order for the rule to operate
The statement of law which prescribes the legal action to be
performed when the rule becomes operative
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Implications for translators Translators generally permitted to
select the syntax and word order that expresses a legal rule most
clearly in the target language, provided the content remains
unchanged
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Regulatory speech acts Some of the major decisions made by
legal translators involve regulatory speech acts Translators must
be able to recognize and formulate commands, prohibitions,
permissions, and authorizations
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Using language to achieve the desired legal effects in legal
rules The statement of law contains the normative content of legal
rules expressing the legal action prescribing how the addressee:
Shall act (commands), Refrain from acting (prohibitions) May act
(permissions) or Is authorized to act (authorizations)
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Formulating legal commands Legal commands express obligations
Shall in legal English used to express the legal imperative; it
imposes obligations
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Formulating requirements Requirements express the existence of
an obligation that is usually procedural. Such provisions often
require that certain conditions be satisfied and the subject is not
a human being. They are formulated in English with must Securities
must fulfill the following essential requirements
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The use of should in legal English Should does not express a
binding obligation and is therefore not used in the substantive
provisions of legislation and treaties, including the enacting
terms of EU regulations, directives and decisions (binding) Should
means it is recommended it is used in the preamble of treaties and
legislation, in the recitals of binding EU legislation and in EU
recommendations and opinions (non- binding)
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Formulating prohibitions in English Prohibitions are provisions
forbidding persons and authorities to perform certain acts and
whose performance is punishable by sanction. As negative commands,
they are expressed with: SHALL NOT By negating the subject or With
the expression IT IS PROHIBITED Weaker prohibitions with MAY NOT
express the cancellation of a permission or exception to a general
permission. The expressions IS NOT PERMITTED and IS NOT ALLOWED are
not used to exress prohibitions in English
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Formulating permissions Exspressed with MAY; NEVER use CAN Do
not use the expressions it is permitted and it is allowed IT IS
ADMISSIBLE is used in procedural provisions
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Formulating authorizations Authorizations confer power upon
some person or authority to perform an act Expressed with MAY, IS
AUTHORIZED TO or IS EMPOWERED TO
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Structure of judgments After identifying the issues or
questions of law (major premise) and establishing the facts of the
case (minor premise), the judge applies the law to the facts,
reaching a conclusion of law on which the final decision is
based
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Judgments of the ECJ Since 1984, the body of the judgment
consists of two parts: the recital of the parties and the decision
(reasons + operative part), while the introductory materials
include the summary (key words + synopsis), report for the hearing
(facts and issues), and the non-binding opinion of the advocate
general
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Structure of legislative texts Preliminary, principal, and
final provisions Arrangement of provisions should be logical and
clear language should be used to mark the transitions
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Structure of treaties A title, a preamble, main part, final
clauses Title means of identification Preamble the purpose of the
treaty, often mentioning international obligations, or explaining
reasons for adopting the treaty Substantive provisions: legal rules
setting forth the legal obligations, prohibitions, and rights of
the parties Final provisions: provisions on ratification,
depositary, amendments, revisions, repeals, reservations, period of
validity, entry into force, language, place and date of
signature