AUTHOR: Cao, Deborah
TITLE: Translating Law
SERIES TITLE: Topics in Translation
PUBLISHER: Multilingual Matters
YEAR: 2007
Leonhard A. G. Voltmer, lecturer in Intercultural Mediation at the University of
Trento (Italy), lawyer and free-lance legal translator.
SUMMARY
The objective of the book is to study legal translation as an intellectual
pursuit and a profession. Accordingly, there are three chapters on theory, and
then three chapters on practical aspects. The theory chapters are on the
relation between language and law in translation, on legal translation
competences, and on legal terminology. The practical chapters treat legal
translation in the context of private legal documents, of domestic and of
international law. The last chapter contains also four pages on translation
technology used at the UN and EC/EU.
After the short introduction in Chapter 1, Chapter 2 on Law, Language and
Translation starts with a classification of legal translation according to its
purpose, with the important distinction between legal translation for normative
vs. informative purposes. The section on the nature of Legal Language deals with
its normative, performative, technical and indeterminate nature. The following
section characterizes legal language through lexicon, syntax, pragmatics and
style. There are peculiar styles in different legal languages, e.g. the
accurate, clear, complete, abstract, precise and logical language of the German
Civil Law against the deliberately easily comprehensible French Code Civil (p.
22-23). The remainder of this chapter is dedicated to the difficulty in Legal
Translation, i.e. the legal, linguistic and cultural differences, whose result
is that ''exact equivalence cannot be expected nor is it really necessary'' (p. 35).
The short Chapter 3 is dedicated to the competence and proficiency of the legal
translator. The quoted literature stresses that a translator should master
concepts, terms and style. Cao's reasonable critique is, that this is not very
specific or concrete, and that it is rather discouraging for future legal
translators to hear that the perfect legal translator doesn't exist in
real-life. Cao proposes therefore a more sophisticated model, which ''holds that
translation proficiency contains different sets of variables of translational
language competence, translational knowledge structures and translational
strategic competence within a situational context in which both the internal
variables and external variables interact with one another and they together
exert influence to varying degrees over the final product of translation'' (p. 51).
Chapter 4 ''Legal terminological issues in translation'' presents a multitude of
terminology in various Indo-European languages and Chinese, e.g. of the legal
profession and institutions. In focus is also the difference between ordinary
and legal meaning, and legal synonyms.
Chapter 5 is called ''Translating private legal documents'', but rather than
discussing translation, it provides and comments on examples of private legal
documents written in English. Most of the remainder of this chapter (i.e. length
and complexity of legal sentences, passive voice, provisos) is not specific to
private legal documents either and could have been discussed together with the
general issues in Chapter 2. This chapter concludes (p. 99) with some truisms
like ''different words very often carry different meanings'' and ''unclear meanings
... increase the probability of ambiguity and other linguistic uncertainty.''
Chapter 6 on the translation of domestic legislation gives much space to
examples. Interesting is the mentioning of the field of application for
exhaustive vs. non-exhaustive definitions and the distinction between
clarifying, labeling, referential, exclusory, enlarging and comprehensive
definitions (p. 111-112). Cao slips in many useful references, and the
bibliography fills twenty full pages.
Interesting is also the presentation of the bilingual statutory interpretation
in Canada. The interpretation rules are basically those of monolingual laws (Cao
conceives the teleological, systematic and historical methods as a single one,
p. 124), but there are exceptions (Cao misses on page 125 the contradiction
between _Reference re Education Act of Ontario and Minority Language Education
Rights_ (1984) 10 D.L.R. (4th) 491 and R. v. Mac, [2002] 1 S.C.R. 856, the first
giving preference to the larger meaning against the narrower meaning, the latter
instead to the shared meaning in which both language versions intersect,
preferring therefore the narrower meaning to the larger meaning).
Chapter 7 is basically a short introduction to public international law and its
terminology, to the EU plus to computer tools for translators. The interesting
parts in the scope of the book title are the verification of foreign language
versions of the treaty, the experience of multilingual drafting (Why did it not
alleviate the problem of disputes with terminological incongruency, p. 152?),
and the advice for translators to distinguish between inadvertent and deliberate
obscurity, because the latter is a negotiation result and should be maintained
(p. 153). The most important sentence on EU law is that no term from the EU law
''should [...] have attributed to it a meaning deriving from domestic law'' (p.
156), which opens the door for intralingual translation from EU English to UK
English, Maltese English or Irish English. The section on EU law quotes
extensively case law, but some lacks the final judgment (p. 157-158) and the
compilation criteria are unclear. The chapter finishes with five pages on the
completely different issue of translation technology and remains necessarily
shallow (note, though, that TRADOS is not a system but a company).
Unfortunately there are no conclusions or a final chapter to sum up the findings.
EVALUATION
The book is a courageous attempt to explain legal translation from scratch. It
provides valuable sources and resources, but is poorly structured and the reader
often misses the author's guidance through the variegated material. The book
provides a multitude of interesting examples for teachers and practitioners of
legal translation, but the editors have overlooked orthographic and
terminological inaccuracies, argumentative inconsistencies and the content does
not always follow the heading.
As to form: ignore typing errors and don't trust the foreign language quotations
(see a cursory errata corrige below). Another surprising characteristic of the
book is its embarrassing terminological inaccuracies which might lead to (or
worse, stem from) confusion. Take for example the chapter ''Legal Synonyms'',
which treats the multiple meanings of certain legal terms like ''warranty'',
''term'' and ''condition''. The phenomenon that one term has several meanings is
called polysemy and not synonymy (several terms having one meaning). The
different meanings of the term ''encumbrance'' are explained (p. 73) like this:
''Most of these words are synonyms, but they are not identical, each has its own
connotations.'' This sentence confuses identity, synonymy and similarity. The
explanation becomes very hard to follow, but the paragraph gives really only an
example of polysemy.
Another very confusing example is the expression ''word'', which is used
throughout the book to mean anything between meanings (example above) and terms
(p. 53).
One more example is the terminologically inappropriate expression ''word strings''
(p. 88-91) for phraseology such as ''null and void''. The author explains on page
90 about ''word strings'' with ''one meaning'' that they have ''similar meanings'' and
that one should look for ''synonyms'' to translate the ''strings'', but then it
happens that courts ''give them different meanings''. It seems that the formal
description as mere ''strings'' conceals the terminological side of the
phenomenon, and a more precise and restrictive definition of the phenomenon
(e.g. as phraseology, multi-word term or multi-concept idiomatic expression)
would have been recommendable.
The same page continues with the self-contradiction ''synonym with different
legal meaning'' (sic). The author points out that the words ''mean'' and ''include''
(i.e. the verbs ''to mean'' and ''to include'') have different legal meaning. This
observation is out of place for the examination of ''word strings'' and, being not
specific to private legal documents, also the Chapter.
Coming back to phraseology, Cao considers maintaining the same number of words
an unnecessary complication for the proposed procedure on page 94: instructing
one to understand what the phrase stands for, and reproduce that in the target
language. If the target language has an equivalent phrase or not is irrelevant.
It is rather confusing to say that those phrases ''once had different legal
consequences'' - implying that this is over - and on p. 90 that courts may give
them different meanings.
Because of this terminological fogginess, it takes a good portion of good-will
to pick out the author's ideas from a confusing text. One such idea presented in
the chapter on ''synonyms'' is that two (not synonymous) terms of the source
language (SL) should be translated with two terms in the target language (TL),
even if there is only one concept for both meanings, and the translator has to
be ''resourceful and sometimes creative''. Let us consider this idea for a moment.
We take the two German terms ''Ordnungswidrigkeit'' and ''Vergehen'', and let us
assume that the specific distinction in German Law is not reflected in US legal
terminology. Cao proposes that the resourceful translator uses full synonyms
like ''petty offense'' and ''misdemeanor'' in a way that the conceptual difference
between the two German terms is reflected in the target text. Such a target text
can be interpreted in two ways: We can firstly interpret the target text as
being part of the target legal system, in which case there is no difference
between ''petty offense'' and ''misdemeanor'' (the translator's ''creativeness'' is
actually meaningless in this case). We can secondly interpret the target text as
being the English language version of a text still in the German legal system,
then ''petty offense'' and ''misdemeanor'' shall designate different German
concepts. The problem in the first case is that the German lawyer is induced to
think that the two expressions have different meanings where they have not, and
in the second case the US-Lawyer is induced to think that the two expressions
are synonyms, when they are not. Cao's answer to that dilemma is that ''the
translator's job is to translate, not to advise clients on the legal
implications of words found in legal documents'' (p. 73) and ''not to solve legal
problems''. A different solution for this dilemma would be to approach the
ambiguity more offensively: If the target text is for the US legal system (case
1), then we wipe out the distinction by translating always with ''petty offense'',
clear also to the German lawyer. In the second case where the target text refers
still to the German legal system we maintain the original terms and their
specific distinction as loanwords, and add an explanation or definition for the
US lawyer in a note. Cao would produce a translation which looks the same for
both legal systems, the more explicit solution would produce a different
translation according to its specific use. Cao's addressees have to re-elaborate
actively the implicit distinction, whereas with the more offensive strategy the
translator interprets the source text in one specific and explicit way. To show
such options would have been the task of the book.
Let us see if the more explicit method helps to avoid the translation problem of
the Case Frigaliment Importing Co. v BNS International Sales Corp. discussed by
Cao on page 75. In this case the Swiss plaintiff and the US defendant
communicated mostly in German, but used the term ''chicken'' to describe the
object of their purchase. The background is that in German there is a hypernym
''Huhn'' encompassing the terms ''Brathuhn'' (broiler) and ''Suppenhuhn'' (stewing
chicken). The plaintiff claims that the parties chose to use the term ''chicken''
rather than ''Huhn'' to avoid the two meanings of ''Huhn'' when the parties wanted
to contract on broilers. The defendant claims that they interpreted the term
''chicken'' as being a term of English language, where it can mean both young
chicken (broiler) and old chicken (stewing chicken), and hence a hypernym just
like in German.
This practical case with common language terms is similar to the constructed
case above for legal terms. We only have to think like the plaintiff and ignore
the existence of the sub-concepts broiler and stewing chicken (which shows that
a good translator would have prevented a lot of trouble).
Cao's approach would show the German language difference (''Brathuhn-Suppenhuhn'')
in the English translation by using systematically one term for one concept
(''chicken'' for ''Brathuhn'') and a synonym for the other concept (''fowl'' for
''Suppenhuhn''). The Court held that the party who claims the narrower of two
competing interpretations has the burden of persuasion. This means that Cao's
implicit translation would have failed to prevent the damage. Only the more
explicit method (using ''Brathuhn'' and ''Suppenhuhn'' as loanwords and adding a
definition in English language) could have saved the plaintiff.
The choice of a translation strategy is a matter of style as long as the text
remains a non-binding text, but the choice is vital when the target-text becomes
binding. There is a profound difference between translating law with the legal
effects connected only to the source text, and translating law with legal
effects connected to the target text. Cao points this out herself in the
theoretical part, but she misses the consequent application in the practical
part. Translation for ''informative purpose'' (p. 11, 84) is not more than another
type of technical translation. In reality, it is even less than a technical
translation, because errors have no direct consequences like planes falling
down. For a lawyer only binding translation is legal translation in a strict
sense, and a short introduction to legal translation might very well be limited
to the core of the subject.
The case discussion shows a general drawback of the book: the theory (e.g. Cao's
opinions on translation strategies, if ''being resourceful and creative'' can be
taken for a strategy) is hidden between the lines, described often with
inaccurate terminology and lacking discussion with scientific rigor and method,
leading to inconsistency. The good part of the book is the wealth of practical
examples (the ''gold-dust'' in the words of Monks 2008) and it would be
unfortunate if the legal translation community could not count on an improved
second edition.
Let us examine another key issue of legal translation. On pages 76-77 the author
discusses ''linguistic uncertainty'' and finds an important lesson in the fact
that ''the most ordinary words ... can become a point of legal contention''.
Should litigation about ''words'' come as a surprise when interpretation of
''words'' is what jurisprudence is really all about?
On page 79 an example for ''interlingual uncertainty'' is that the English and
French term for ''trade union'' overlap but do not correspond. In reality this is
inequivalence, because the meaning of each term is clear. Yet an example for
''interlingual inequivalence'' is useless here, because the reader was already
repeatedly told (pp. 34, 35, 59) that legal concepts differ between different
legal orders (Voltmer 2008). As consequence legal translation operates always
under conditions of ''interlingual uncertainty'' (non-correspondence), and any
legal concept of two legal systems would have done as an example.
Cao commits a double fault here, because the example is chosen from one single
legal system, the EU system. According to the principle of unitary meaning
(pointed out on pp. 155-156), the ECJ provided a unitary meaning for
''trade-union''. The author is here ''lexical'', as she calls it, and she is through
most of the book quoting example terms ''in English'' (but what legal system?) and
comparing with terms ''in French/German'' – which does not really make sense when
34 countries use French and 7 German.
The recently published review by Kjær (2008) praises the comprehensive survey of
topics and the impressive bibliography, but would expect more on translation
involving the specific expertise of Cao in Chinese. The main point in the review
is nevertheless the correct remark that Cao promises to reconcile theory with
practice and to explain how legal translation is possible in practice, when
legal systems have nothing in common. Kjær refutes Cao's first answer to this
''miracle'': The similarity of Western culture does not wipe away the principled
objection that legal concepts live in different legal cultures and traditions,
and while common language might be easier to translate, legal language is still
separated by the ''insurmountable conceptual and linguistic gulf, alleged and
real, between different laws [...]'' (Cao, p. 35). Kjær finds consolation in the
second argument of Cao: ''no exact equivalence or complete identity of
understanding can be expected or is really necessary''. This means that legal
translations are a priori less equivalent, hence less ''good'' than other
translations. Obviously, this is a strong claim for a field where minor
discrepancies may cost a kingdom.
In conclusion, a completely revised and restructured edition of this book might
very well become a useful textbook for the teaching of legal translation. The
re-edition would not only mention, but provide structured discussion of the
complex issues, conclude with the position of the author and send the examples
of typical legal texts to the annex. The field of legal translation would be
grateful.
REFERENCES
Voltmer, Leonhard. 2008. Experiences in Harmonising, in: Chiocchetti, Elena &
Voltmer, Leonhard, eds. (2008), _Harmonising Legal Terminology_. Bolzano/Bozen:
EURAC.
Kjær, Anne Lise. 2008. The Every-Day Miracle of Legal Translation.
_International Journal of Semiotics of Law_ 21:67-72 (review of ''Translating
Law'' by Deborah Cao).
Monks, Pieta. 2008. Review of ''Translating Law'' by Deborah Cao,
http://www.jostrans.org/issue09/rev_cao.php : 12/06/2008.
ERRATA CORRIGE
p. 22 ''Bergerliches Gesetzbuch'' must be ''Bürgerliches Gesetzbuch''
p. 26 ''have well-articulated system'' must read ''have a well-articulated system''
p. 27 ''calusulae generales'' must be ''clausulae generales''
p. 28 ''the la langue du droit'' must read ''the langue du droit''
p. 30 ''rechtasnspruch'' must be ''Rechtsanspruch''
p. 33 ''concepts seldom identical because [of] the nature of language'' (??)
p. 58 ''demands'' in French does not exist, it has to be spelt ''demande''.
''Konkurs'' in German law does not exist anymore, the correct term is ''Insolvenz''
since 1994, but the term exists in Austrian and Swiss law.
p. 54 typing error ''Internationales Institute'' (correct ''Institut'').
p. 55 ''remain at the terminological'' must be ''remain at the lexical'' level.
p. 59 ''Statute des fonctionnaires'' must be ''Statut des ...''
p. 62 ''non-lawyer'' must read ''non-lawyers''
p. 60-63 terminology of legal professionals
p. 65 ''revision'' must be ''Revision''
p. 71 ''described'' must be ''describe''
p.86 ''phase'' must be ''phrase'' (two times)
p. 88 ''Word strings that are often synonyms.'' must be ''Word strings are often
synonyms.''
p. 90 ''synonym'' must be '''synonyms''
p. 125 ''saviour'' must read ''savoir''
p. 129 ''both official language'' must read ''both official languages''
p. 158 ''annees'' must be ''années'' and ''mindestens Jahren'' must read ''mindestens
zwei Jahren''
ABOUT THE REVIEWER
Leonhard A. G. Voltmer is a jurilinguist. He studied law in Munich and Paris,
Legal Theory in Brussels and Lund, and Romance Languages in Salzburg and Munich.
Since 2001 he has worked for the European Academy of Bolzano (Italy) in
terminology, translation and language normation. His experiences in the
computational linguistic treatment of multilingual legal data have become a
Ph.D. thesis at the University of Munich
(http://edoc.ub.uni-muenchen.de/archive/00003716/), which was awarded a magna
cum laude. He was lecturer for Translators and Interpreters at SSLMIT (Italy)
and SDI (Germany) and he is currently teaching Intercultural Mediation in Degree
and Master Courses at the University of Trento. His research agenda focuses on
the combination of disciplines: The dialogue between cultures (Intercultural
Communication/Mediation), between lawyers and laymen, between computational
linguists and language practitioners, and between the different scientific
disciplines in Legal Theory.
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