Put that legal translation down and move away slowly
or a legal translator’s reflections about culture-bound terms in legal texts.
If you ask a translator —any translator— what is the biggest challenge she faces as a professional, when she is done complaining about clients who compare her with Google translate, she will surely talk about pragmatics. No matter what branch of translation you specialise in, words intricately bound to the culture of the country where the source language (SL) is spoken can be a real handful to translate. Not only because the search for an equivalent suddenly becomes a lost cause, but also because there will always be something missing – unless the translator resorts to that much disputed solution, lengthy footnotes.
In the case of literary translation, this is not as serious a problem. Only the translator will know, for instance, that the target-language (TL) dish she used as an equivalent for the source-language term is actually made from different ingredients and it somehow does not taste the same as the original. The reader will remain blissfully oblivious and keep reading, forming in his mind a very accurate picture with the words passing before his eyes. Nor will he understand that the joke about family relationships he just chuckled at was created especially for him by the translator, since the source text uses elaborate familial bonds for which no words exist in the target language.
What happens, however, if this culture-bound term actually has a functional role in the text? What to do when the client’s claim in court is threatened unless the lawyer receiving the target-language text actually understands what the claim is about? This is something that rarely crosses the mind of a non-specialised translator who occasionally deals with legal texts.
In my experience, there are three types of approaches when the translator does not specialise in legal translation. The first is frequently used by lawyers well versed in a foreign language — in our case, English. When translating into Greek, this approach dictates we should always look for an equivalent. This is an excellent path to follow, until it isn’t. As any exasperated translator burning the midnight oil in order to make his deadline could tell you, the problem with culture-bound terms is that they do not have equivalents. This leads to the trap of using what I will from now on refer to as “forced” equivalents: the SL term vaguely reminds the translator of something similar existing in TL law, and he uses it as a forced equivalent of the SL term. The result can be either confusing for the reader, or downright problematic.
Let’s see an example: when you are applying for bail in the UK after having been arrested, you go before the magistrates’ court. Magistrates’ courts are a very good example of a culture-bound term. While there are many good functional equivalents in Greek, they vary according to SL context and none of them informs the target audience of all there is to know about this type of court. The TL audience may never know, for example, that judges sitting in magistrates’ courts in the UK are nothing like their peers in Greece, first and foremost because they do not need to study for decades or to pass very difficult exams over and over again until they are nominated. However, this piece of information is irrelevant; you can leave it out when translating and in most cases it won’t be missed. What is important when translating legal texts, however, are the duties discharged by magistrates’ courts.
So, back to our example: in Greece, when applying for bail, you go before a council made up of first-instance judges, the simvoulio plimmeliodikon (συμβούλιο πλημμελειοδικών). However, this council will not be involved in the criminal proceedings per se. It is an independent third party charged with resolving pre-trial motions among which —you have guessed correctly!-— bail hearings.
Having the advantage of a bird’s eye view in this matter, we can clearly see the trap laid out for our inexperienced legal translator: he uses a forced equivalent and the TL reader understands that there actually is a third party body in the UK dealing with pre-trial matters — just like in Greece. Unless the translated text is purely informative, addressed to laypersons, and its details do not matter much (let’s say a newspaper article about a sensational criminal trial in the UK that has caught the attention of Greek readers), this mistranslation could cause a series of complications. For the sake of illustration, the lawyer handling a client’s arrest from Greece could lose precious time looking for which simvoulio plimmeliodikon handled his client’s bail hearing and not be able to understand the British barrister’s description of the proceedings.
The second approach of the non-specialised legal translator, still popular among lawyers who do not translate on a regular basis, is somewhat different: she translates the SL term into a functional equivalent that serves its purpose in a particular legal text but is not transparent and cannot be used in future texts. An example for this is the term collateral agent in pledge agreements. A collateral agent is a person holding the pledge on behalf of the lenders and having relevant enforcement rights. A translation into Greek that I have seen suggested is eggyitis (εγγυητής), i.e. guarantor. Yes, in that particular text it was clear that the “guarantor” was simply there to ensure, or guarantee, the establishment of the pledge and the enforcement of the pledgees’ rights. However, using this translation in other texts could cause serious misunderstandings as to the collateral agent’s role, since it would be perceived to be the same as that of a guarantor. Some employ a solution that is a pet peeve for Greek translators: they use the SL term as is, sometimes in brackets along with a rendering in Greek, sometimes with no rendering at all. Sure, you can throw in the towel and go for it. However, this approach risks causing total confusion to TL readers who are not fluent in the SL.
The third approach used by non-specialised legal translators is twofold and a favourite among professional translators: first, they turn to the dictionary. While dictionaries are a very valuable tool that no translator can do without, they are neither omniscient nor error-free. Sometimes, for example, in order to speed up the process of understanding, they also use forced equivalents. Therefore, doing what the dictionary says without taking into account neither context nor the target audience or the skopos theory (see indicatively, in this respect, Susan Šarcevic, Legal Translation and Translation Theory: a Receiver-oriented Approach) may prove inefficient and time-consuming while also leading to serious misunderstandings.
The second thing non-specialised legal translators do is to turn to specialists, i.e. lawyers fluent in the SL. Still, if the lawyer does not specialise in legal translation, the translator is open to repeating all the translation headaches described above.
I will not go into detail on how to approach the translation of culture-bound terms. There are others who have delved into this issue much more thoroughly than I could ever do in a short blog post (see, for instance, Susan Šarcevic, New Approach to Legal Translation). What I would like to draw your attention to, however, is this: in my experience as a legal translator and a legal translation teacher, in order to correctly translate legal terms from one language into another you must first understand them.
This means that the legal translator should take the time to read the definition of the terms in authoritative texts such as statutes and then try to further elaborate by seeing how the terms are used in functional texts, such as court judgments or legal opinions. Moreover, this process must be followed not only for SL terms, but for proposed TL translations as well. Only then will the translator be able to avoid stepping on the proverbial banana peel, as we say in Greek.
Yes, it’s a lot of work. And yes, it can be very tiring, time-consuming and annoying, especially if you are working to a deadline. But unless you are an expert in comparative law, fluent in both the SL and in the TL and trained as a translator, it is the only way to become good at legal translation.
Yet again, if you are not willing to put in a lot of elbow grease, put that legal translation down and move away slowly. Otherwise, you have the right to remain silent while I nag you into oblivion.
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Mata Salogianni is a graduate of the Department of Foreign Languages, Translation and Interpreting of the Ionian University. Her working languages are English, French, Italian, Portuguese and Turkish, and she also has a basic knowledge of German. She has been working as a professional translator since 2000, specialising in legal, financial and corporate texts. She has been teaching legal translation since 2006.
She has also been translating literature since 2005, mostly works by Portuguese-speaking writers, such as Paolo Coelho.