1. Introduction When I was thinking about a suitable topic for my BA thesis, I decided to combine English with the law as I am surrounded by lawyers in my private life and I therefore came across several legal documents which I attempted to translate into English. In the present study, I am going to focus on the area of technical translation, especially the branch of translating legal texts bearing in mind general aspects of the process of translation. A legal essay by A.W.B. Simpson called "The Common Law and Legal Theory" (Simpson, ed. 1973: 77-99) which comprises a kind of legal text - a combination of legal and academic text - served me both as a source text for the translation and as a source of legal language. I enclose translation of two Chapters of above mentioned essay to illustrate my ideas and views. Translation is a very creative process. It reminds me of the ancient civilisations of Egypt when they constructed pyramids. They have to have solid foundations and then they taper by each step to the very top of the pyramid. I can see a similar technique in translation. The translator has to have a specialised knowledge, foundations, for being able to 1
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1. Introduction
When I was thinking about a suitable topic for my BA thesis, I decided to combine
English with the law as I am surrounded by lawyers in my private life and I therefore came
across several legal documents which I attempted to translate into English. In the present
study, I am going to focus on the area of technical translation, especially the branch of
translating legal texts bearing in mind general aspects of the process of translation. A legal
essay by A.W.B. Simpson called "The Common Law and Legal Theory" (Simpson, ed.
1973: 77-99) which comprises a kind of legal text - a combination of legal and academic
text - served me both as a source text for the translation and as a source of legal language.
I enclose translation of two Chapters of above mentioned essay to illustrate my ideas and
views.
Translation is a very creative process. It reminds me of the ancient civilisations of
Egypt when they constructed pyramids. They have to have solid foundations and then they
taper by each step to the very top of the pyramid. I can see a similar technique in
translation. The translator has to have a specialised knowledge, foundations, for being able
to approach a text. When translating non-fiction especially the translator has to be aware
not only of the source and target languages but also of the subject field of the text. Then
the process of tapering comes when the translator analyses the text, chooses the appropriate
method and translates. The process of translating itself is like completing a mosaic, that is
to say looking for meanings of terms and decoding difficult sentence structures until the
final embroider.
I aim to outline the process of translation of a legal text proceeding from the
general to the specific. I decided to sum up some general ideas on the subject of translation
and present them in the first part of my BA thesis, in order to show the theoretical
background of my approach to the translation. Starting from the beginning of the
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translation process, I am going to comment on the importance of choosing the appropriate
translation method of approach. Then I am going to focus on text-types in order to
categorise the legal essay and to comment on its characteristics. On account of this, I am
going to concentrate on non-literary translation as a whole as well as on its peculiarities
and differences between English and Czech academic styles. The basis of the last and most
practical part of my study is going to be the translation of above mentioned A.W.B.
Simpson's essay. This section is going to be based on individual problems that I was
dealing with during the process of translation. It is going to provide some information
about specific features of legal texts as well as their varieties. In the very last subchapters
of this study I am going to state concrete translation problems which I came across.
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2. Method of Approach
When approaching translation of a legal piece of writing, the translator has to bear
in mind several steps that he or she has to follow. First of all, the translator has to analyse
the text-type, the basic distinction being made between literary and non-literary texts. Once
the distinction is made and the translator is to deal with a non-literary text, he or she must
define the subject field which the text comes from. Then it is also important to distinguish
the aim of the text, whether it is a pure specialised text or a theoretical one. Only then is
the translator able to choose the proper method of approach to the translation of the text
having in mind the general rules of the translation process but paying attention to the
peculiarities of legal language. The individual categories of texts and the language used in
them will be described further on and it will be clarified which category the legal essay
belong to.
Whether a text is technical or institutional or literary (the distinction of the text-
types will be described later on), a translator has to make up his or her mind what it is
about, what it is in aid of and what the writer's peculiar slant on it is. There are two main
approaches to translation:
"(a) translating a piece of a text sentence by sentence to feel the tone of the text,
reading the rest of the source text and then start translating, (b) reading the whole
text several times, finding the intention, register and tone of the text and start
translating." (Newmark 1988: 21)
According to Peter Newmark, there are four levels of translation that a translator
has to have in mind. The first is the textual level, the basis of which is the text and includes
the translation of the source language into the target language.
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"You transpose the source language grammar into their 'ready' target language
equivalents and you translate the lexical units into the sense that appears
immediately appropriate in the context of the sentence." (Newmark 1988: 22)
The second level is the cohesive one. It follows both the structure and the moods of the
text. At this level, you reconsider the lengths of paragraphs and sentences, the formulation
of the title and the tone of the conclusion. The third level is that of naturalness. It is a level
on which the translator has to make sure that the translation reads naturally and that it
makes sense. That means that he or she used the appropriate grammar, idioms and
expressions that correspond the situation. The referential level, the fourth one, is to be
discussed separately.
2.1 The Referential Level
Paying special attention to technical and institutional translation (for this distinction
see Chapter 4), specific reference is desirable and therefore there is a certain compromise
between the text and the facts. When the sentence or any part of the source text is not clear,
when there is an ambiguity, the translator has to create an image of the reality dealt with in
the source text and express it in the target text in an appropriate way that corresponds to
the translated text and its characteristics. The author of the translation has to be aware of
his or her responsibility for the truth of the translation.
"The aim is to achieve the greatest possible correspondence, referentially and
grammatically, with the source text […] All languages have polysemous words and
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structures which can be finally solved only on the referential level." (Newmark
1988: 23)
The referential level is a phase of translation process when the translator solves the
translation problems, which most frequently result from the polysemy. It is based on
clarification of all linguistic difficulties. The translator needs supplementary information
here, for example from encyclopaedias, works of reference and textbooks. "The translator
is supposed to create a referential picture in his or her mind when he or she transfers the
source language into the target language." (Newmark 1988: 23) The referential level is
closely connected to the importance of translator's extra knowledge from the subject field
the text comes from and to the essentiality of his or her awareness of a background of the
source text as explained in the following subchapter.
2.1.1 Cultural and Historical Background of the Source text
Not only does the translator have to be aware of the content of the source text and
analyse its characteristics like language used, register, its style and intention and many
other features, but he or she is also required to have some special knowledge to be able to
identify particular problems occurring in the text. The translator should be acquainted with
cultural or historical background of the text. Translators usually work with various sources
of reference, e.g. encyclopaedias, textbooks and specialised text.
When translating a novel set in the 18th Century Britain, for example, the translator
should study the period from historical as well as cultural point of view to be able to
maintain its atmosphere and some specific aspects of the period in the translation, even
though they need not be directly present in the text. The translator should also look for
appropriate linguistic equivalents in the target language corresponding to the settings of the
source text.
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Similar rules can be applied to specialised translation. A specialised translator
should not only be an expert on the source language but on the target language too and he
or she should also be educated in the subject field which the source text comes from. That
means that if a Czech translator deals with an English legal text, he or she should be
acquainted with the law as well as with English and Czech. He should also study the
subject of the text in more details in both languages to be able to produce 'a quality
translation'.
The specialised knowledge of the translator will enable him or her to produce such
a translation which will be understandable to the readers. There is a danger that when an
unspecialised translator deals with a specialised text, he tends to keep the long stylistic
structures which are typical for the scientific language in the target text too, which could
result in the lack of coherence of the target text. A specialised translator should consider
the readership and adjust the text to it. (For more information on the readership see Chapter
4.3.1.)
2.1.2 Meanings of the Expression 'the Common Law' and its History
The term is now used in several different senses which have different meanings in
different contexts. Therefore it is essential that the translator was aware of all its meanings
and chose the most appropriate one. After consulting many sources of reference, I decided
to translate the 'common law' as 'obyčejové právo' in Czech as A.W.B. Simpson's essay
(Simpson, ed. 1973: 77-99) deals with the system of law typical for England and with its
peculiarities. After consulting various dictionaries and books on English legal history, I
revealed four different meanings of the term 'common law'.
In its broadest sense, it covers the legal tradition of developing law by judicial
decisions. It grew up in England in the courts of common law and equity. Then it was
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exported to the United States and most of the Commonwealth countries. It this sense it can
be translated as 'obecné právo' referring to the general system of law employed in England.
However, it is based on customs and therefore could be also translated as 'zvykové' or
'obyčejové právo' in this context.
We can contrast the 'common law' used in the countries of the British
Commonwealth with the 'civil law' which is employed in countries in continental Europe
and is derived from 2000 year old Roman law. The dominant approach of the civil law is to
look to the code as a set of rules and principles. Here it can be translated either as 'zvykové
právo' again or as 'angloamerické obecné právo'.
The expression 'common law' can be also used to denote the 'case law' as a whole
contrasted with the statutory law. The 'common law' descended from the English legal
system and is issued by courts. The translation in this sense would be 'precedenční právo'.
Within the whole legal system, the 'common law' can be also connected with
'equity'. English law developed a binary system.
"To achieve greater consistency, the judges placed reliance on previous decisions in
similar cases, not only on the system of general customs. These previous decision
used at courts gave rise to a cluster of rules known as the doctrine of precedent or
stare decisis." (Farrar 1977: 13)
The translation of the Latin name would be 'to stand by what has been decided'.
The English common law was originally derived from judicial decisions that were
based in tradition, custom and precedents. Now it consists of the whole body of judicial
precedents. The old common law courts consisted of the Court of Exchequer, the Court of
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Common Pleas and the Court of King's (Queen's) Bench which superseded a network of
royal courts which had existed since the Anglo-Saxon times.
The law which these courts administered was local customary law which varied in
content in different parts of the country. The common law, as applied in civil cases, was
devised as a means of compensating someone for wrongful acts known as torts, including
both intentional torts and torts caused by negligence. The jury reached its verdict through
evaluating common local knowledge, not necessarily through the presentation of evidence
which distinguishes the common law system from today's civil and criminal court systems.
In English legal history, common law became the uniform authority throughout
centuries before Parliament acquired the power to make rules.
3. Text-types and Language Functions
As pointed out above, it is important to determine the text-type at the beginning of
the translation process. The distinction among various types of texts and their language
functions can be demonstrated by the following diagram by Peter Newmark (1988: 40)
based on Bühler's functional theory of language, which distinguishes three main functions
of language: the expressive, the informative and the vocative:
Function Expressive Informative Vocative
Core Writer 'Truth' Readership
Author's status 'Sacred' 'Anonymous' 'Anonymous'
Type Topic Format Serious imaginative Scientific Textbook Notices
literature Technological Report Instructions Authoritative statements Commercial Paper Propaganda
Autobiography Industrial Article Publicity Personal correspondence Economic Memorandum Popular fiction
MinutesOther areas ofknowledge orevents
Language functions, text-categories and text-types
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According to Peter Newmark (1988: 39), the main feature of the expressive
function of language is the mind of the writer if we relate this theory to texts. The
characteristic 'expressive' text-types are, for example: (a) serious imaginative literature
which includes genres like lyrical poetry, short stories, novels and plays, (b) authoritative
statements which are marked by a 'personal touch' of their authors and include, for
example: political speeches, documents, legal documents or 'academic' works written by
acknowledged authorities, (c) autobiography, essays and personal correspondence which
are considered expressive when they contain personal feelings. We can consider
'informative' such texts that embrace external situation, the facts of a topic and reported
ideas or theories. They are usually concerned with any topic of knowledge. The format of
an 'informative' text is often a textbook, a newspaper article, a scientific paper or a thesis.
Vocative are said to be such texts that focuses on producing a certain effect on the
readership. Nowadays vocative texts are, e.g. instructions, propaganda or publicity.
Referring to what has been discussed in this subchapter, a discussion may arise
concerning the classification of a legal essay. Is an essay informative or expressive piece of
writing? The answer to this question is ambiguous. The author of the essay is not
anonymous nor absent. There are statements suggesting his opinions as well as the
intention of his text. From this point of view it can be considered expressive and also
Newmark suggests this. On the other hand, the legal essay contain information specific to
the subject field of law which is a feature that correspond to the informative function of the
text.
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3.1 Equivalence of the Target Text
There is a definition of 'specialised texts' in Illustrated Encyclopedia Academia1
which claims that:
"Translation of a specialised text demands absolute loyalty and utmost exactness in
terminology which subordinates its syntactical as well as lexical structure.
Specialised texts contain long complicated sentences, nominal phrases and
terminology excluding emotional colouring of the text."2
Although this definition is true, it is not exact. Referring to what has been said, specialised
texts combine in themselves three main language levels.
There must be certain shifts in translation which depend on the stylistic systems of
individual languages and on the vocabulary. We can distinguish several levels where
maintaining equivalence in translating could be problematical. The most significant are:
the word level, the grammatical level and the textual level.
The word level refers principally to the idea that not all languages function on the
same basis because the concepts of one language may differ completely from those of
another language. For example, there is a range of prefixes in English which have to be
translated into Czech as separate word: rewrite has to be transferred into 'write again'
(znovu napsat) in Czech. This suggests that there is no "one-to-one correspondence"
(Baker 1992: 11) between words and morphemes across languages.
Languages differ widely in the way they are equipped to deal with various notions
and express various aspects of experience, possibly because they differ in the degree of
relevance they attach to such aspects of experience.
1 Title translated by the author of this thesis. Original title: Kožešník, Jaroslav. Ilustrovaná encyklopedie Academia. Praha: Academia, 1981. 2 Definition freely translated by the author of this thesis.
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"Differences in the grammatical structures of the source and target languages often
result in some change in the information content of the message during the process
of translation. This change may entail adding to the target text information not
expressed in the source text or omitting information specified in the source text in
the target text." (Baker 1992: 87)
Present perfect tense in English could serve us as an example when translated into
Czech because in Czech it does not exist. Czech therefore does not dispose of any
linguistic features to express it and the translator has to decide whether to translate it into
present or past tense in Czech. For example:
'John has read an interesting book'. - 'Jan četl zajímavou knihu'.
'I have studied English for eight years'. - 'Učím se anglicky osm let'.
4. Intention of the Author and the Translator
It is essentially important for the translator to reveal the intention of the source
language text. The intention may be expressed by such grammatical structures as "passive
voice, impersonal verbs or propositions like 'unfortunately' or 'hopefully'"(Newmark 1988:
12) which can be understood as evidence of different points of view of the author of the
source language text. These structures represent the source language writer's attitude
towards the subject matter. The translator always has to bear in mind the text and has to
preserve its intention that is to say that the translator's intention should be identical with the
author's.
Sometimes, it may occur that the readership of the translated text is different from
the readership of the original text. Here, the translator has to reconsider the differences and
is permitted to adjust the translation to its readers although he or she should not forget to
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maintain the intention of the source text. The issue of the readership will be discussed in
more details in Chapter 5.3.1.
As to the legal essay (A.W.B. Simpson, ed. 1973: 77-99) I was concerned with, the
author's intention is clearly recognisable in the text and I tried to maintain it in my
translation. Examples expressing the author's attitudes and intention can be found in the
essay: "It seems to me that […]", "[…] I suppose […]", "[…] I think […]" (A.W.B.
Simpson, ed. 1973: 77, 93).
4.1 The Readership
According to Peter Newmark, when translating any type of text, literary or non-
literary, the translator has to bear in mind its readership. He or she has to attempt to
characterise the readership of the original and then of the translation and decide how much
attention he or she will pay to the target language readers. The level of education, the
social class, age and sex should be taken into consideration if these are marked. The
average text for translation should be aimed for an educated, middle-aged, middle-class
readership and should be written in an informal style, not in colloquial style.
Needless to say, this approach cannot be applied to all translations. There are
exceptions to every rule and it is very true about translating. The translator should not
apply too many 'difficult' or specialised words in the translation to show his or her
knowledge. When translating a non-fictional text, translators should consider the needs of
the reader as well as other characteristics.
On one hand, there are technical texts like manuals which should be intended for
average people, that is to say that they should be translated clearly and there should not be
more terminology than in the source text. The readers need to understand the text well to
be able to control a machine, for example. On the other hand, there are essays and
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textbooks determined for people educated in the subject field. In such a case, the translator
can take the liberty of applying more sophisticated style and use more specialised terms
without additional explanations. For example, when there are words of Latin origin in the
source text, they form part of the field terminology and are usually internationally accepted
within the subject field. They are therefore known to the readers educated in the field, no
matter which culture or country they come from, and the translator does not have to
translate them or provide them with additional explanation. An example can be given:
"[…] attempt to explain the nature of the common law in terms of stare decisis, is bound to
seem unsatisfactory […]" (Simpson, ed. 1973: 77) The Latin term stare decisis will not be
translated here because it is a specialised term existing within the legal terminology.
As far as my translation of the essay (Simpson, ed. 1973: 77-99) is concerned, it
was essential to consider the readership. Essay is originally a literary genre although
nowadays it tends to deal more often with non-fictional subject matters. (More information
on essays will be provide later.) The essay by A.W.B. Simpson (Simpson, ed. 1973: 77-99)
deals with common law and legal theory, it is therefore a legal essay. Compared to any
genre of literature, it cannot be read by laymen. Reading an essay dealing with any
scientific or technical subjects demands some knowledge from that particular field. On that
account, I consider the essay (Simpson, ed. 1973: 77-99) determined for students of law,
law theoreticians, teachers, lawyer or politicians and I intended to maintain this intention in
my translation.
5. Literary v. Non-literary Translation
Whether a text is literary or non-literary (non-fictional) can be recognised at first
sight. There are cases however when these two kinds of texts interfere. This is the case of
academic texts that follow the structure of 'literary' texts but are strongly influenced by the
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syntax and terminology of individual subject fields, which can be observed on the example
of the essay by A.W.B. Simpson (Simpson, ed. 1973: 77-99). Such texts are though
considered as non-fictional.
Nevertheless the differences between the two kinds of texts are significant.
Informative texts (non-fiction) are concerned with reality and denotation, fiction with the
imagination and connotations. "Literary texts are allegorical and are, more or less
indirectly, a moral comment or criticism of life." (Newmark 1988: 151) Non-literary texts
are concerned with facts, events and ideas and are without connotations.
Non-literary language normally excludes literary language, except in quotations.
Non-literary language tends to be normalised both lexically and grammatically. It is
'anonymous', it does not express any author's intentions. However, this does not apply to
the legal essay (Simpson, ed. 1973: 77-99), as it states the author's points of view but still it
is considered a non-literary text.
6. Non-fiction v. Specialised Translation
Generally speaking, non-fiction is an opposite of fiction. Non-fictional are said to
be such works of literature as textbooks, booklets, manuals or encyclopedias. Inside these
publications we may find essays, articles, documents, etc. These usually deal with topics
from technology, natural sciences and social sciences like economy, sociology,
psychology, medicine or law. Each of them has their specific features, that is to say that
they differ syntactically as well as in terminology applied. This division can be clearly seen
in the diagram based on Newmark’s division of specialised texts into technical and
institutional (1988: 151) which I further elaborated.
Specialised Texts
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technical institutional subject fields: geography arts maths… law finance politics…