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Introduction Introduction Introduction Introduction
Legal translation is bound by each languages culture and system; it is
not merely transcoding between the source language (SL) and the target
language (TL) but it is also a translation from one legal system into
another from the source legal system into the target legal system (cf.
Sarcevic, 1997:13). It involves all the legal texts that are used in various
legal settings be it a court, a national or international organisation, a law
book, a legal report, a birth certificate, a contract, etc.
This paper discusses legal translation in theory and practice and falls
into two sections: the first of which gives a historical review of legal
translation in the Western and Arabic tradition while the second section
discusses the most common difficulties of legal translation with examples
from English/Arabic/English legal texts. These examples were taken from a
collection of authentic legal texts, some of them were obtained from
professional lawyers, others were taken form the United Nations (UN)
online website, and from legal books. This section also demonstrates the
techniques that the legal translator can use to overcome such difficulties.
The paper concludes with practical guidelines for the legal translator.
1 11 1. .. . Historical Review of Legal Translation Historical Review of Legal Translation Historical Review of Legal Translation Historical Review of Legal Translation
Legal translation was basically used for diplomatic purposes. It dates
back to Babylon (2001 BCE) with the establishment of Hammurabis
translation centre the purpose of which is transferring his laws all over the
kingdom. It reached its peak in the 8
th
and 9
th
centuries Abbasids era.
. .,l. _..||
). When the TL
does not have the exact equivalent, the translator may resort to what
Asensio (2003:59) calls functional adaptation. For example, English
distinguishes between a solicitor and a barrister. The formers work
involves direct contact with clients and he can represent them through
litigation, while the latter is prohibited to do so. The main task of a
barrister is offering specialist advice on legal cases. On the contrary, Arabic
has one function for all of them: ). _.ts ( Thus, the translator is advized to
consult specialist dictionaries, seek advice form lawyers, and be well-versed
in different law systems. Moreover, a translator can seek an approximate
translation to give the nearest meaning of the original. For instance, the
closest Arabic equivalent to Registry of Births and Deaths or the Registry
Office is ) _.|| _>.i| ( .
Legal documents involve common terms with legal meaning such as
distress, consideration, construction, redemption, tender, hold, and prefer
(Haigh, 2004:xvii) whose Arabic counterparts are subsequently given below:
>+| ,|.;| _. . _t. _.. . _... . _:i| : . .tL. . ... . _.|.i .i_;| _L. .
Because they can occur in a legal context, they require more effort and
alertness on the part of a legal translator. He/she may need to consult
specialists, and analyze similar texts in order to arrive at the best solution.
An example of this is the word (compensation - ) _.. which may mean
financial, or moral compensation. In a legal context, it is understood as
(financial compensation - _t. _..), unless otherwise stated. Thus, the main
determinant is the overall context. Similarly, Arabic translates moral
compensation or giving ones reputation back as ) . . ( .
Abstract words are also crucial in the field of international law such as
human rights. Although words such as freedom, privacy, right, and fairness
are commonly used in our daily life, they are subject to many interpretations
in the legal paralance. In this context, Garre (1999:116) argues that the
translator must consider the differences of meanings that these terms may
have in general and in a legal context. Also, a legal translators task is to
translate the words as they are and leave the interpretations to the court. For
instance, the English phrase fundamental human rights is translated into
Arabic as ) .,.t.;| _t..]| _:> ( . In this example, the word fundamental is
ambiguous and needs more clarification. Yet, a translator cannot take the
initiative towards disambiguating this word.
( (( (3 33 3) ) ) ) Polysemous Words and Repetitions Polysemous Words and Repetitions Polysemous Words and Repetitions Polysemous Words and Repetitions
Polysemy, in legal discourse, describes words that have more than one
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meaning in legal documents. For example, the word right has many
distinguishable meanings. In this case, the translator should avoid
mechanical translation and guess work and the only practical way is to
judge the context of the statement. In the case of repetitious words such as
perform and performance, the translator should be aware that they may
have different meanings in the same paragraph which is very likely in the
legal context. Consider the following examples from the translation of the
Charter of the UN:
a) (appropriate ,.t.._ _it.
)
b) (ends, aims, objectives _|.;| . :tt.i| ) :tt.i| ,
( (( (4 44 4) ) ) ) Homonyms Homonyms Homonyms Homonyms, , , , Synonyms Synonyms Synonyms Synonyms, , , , Antonyms and Hypo Antonyms and Hypo Antonyms and Hypo Antonyms and Hyponyms nyms nyms nyms
Homonyms describe a word that has two senses. For example, the word
bank is a word that means a financial institution and an edge of a water
stream. It is worth noting that the difference between polysemes and
homonyms is subtle and there are no clear-cut boundaries between them.
Synonyms refer to different words that have similar meaning such as
buy and purchase. This category of words is known in legal discourse as
lexical doublets such as the English doublet Maintenance of,
(strengthening) international peace and security, and its Arabic
counterpart ) a.> ) .,. ( __.i| _.;|_ ,l.i| ( . They are difficult to translate because
the SL may not have the exact corresponding equivalents. Yet, in the case
of Arabic, translating these vocabularies is not too difficult because Arabic is
rich with synonyms and because generally it prefers repetitions. Antonyms
are those words that have opposite meanings such as the English pair
facilities and hindrances and its Arabic equivalent ) :ti.||_ :;,,.:i| ( . Finally,
a hyponym describes the relationship between a general term and a more
specific term that is considered a part of it such as law, and common law,
civil law, Islamic law, etc..
( (( (5 55 5) ) ) ) Functional Words Functional Words Functional Words Functional Words
Any language consists of major or content words such as nouns and
verbs, and function words such as prepositions and conjunctions. The latter
are used to relate between the major elements of the sentence and also
across sentence boundaries. Alcarez and Hughes (2002:165) note that each
specialist field has its own functional vocabulary. For them (ibid) legal
English uses two main types of functional language: (1) adjectival/adverbial
groups (e.g. hereinafter, and forthwith), (2) conjunctions and prepositional
phrases (e.g. under, prior to, and in accordance with, etc.).
Translating this category of words from English into Arabic, for instance,
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is difficult due to the archaic nature of such words that may not have
equivalents in Arabic. Yet, translation of adjectives is subject to the context in
which the adjective is found. For instance, the adjective high is translated
into Arabic as )
_t.
( or )
,t.
( . In a legal context, it is translated into )
,t.
( as in
(the high contracting parties -_t,.t.i| _|.:t.:|| _t:Li|). In a more formal context,
the word highness, referring to ranks, is translated into Arabic as ) ,>t.
_t.|| ( or ) ..i| ,>t. ( .
Moreover, a legal translator may use literal translation or paraphrase.
For example, the English prepositional phrase, in accordance with, is
translated into Arabic as )
t::_ i
( , pursuant to the discussion is translated
as ) .:it.|| .., ( , prior to the discussion, is translated as ) .:it.|| _,i ( , whereas the
meeting prior to the session, is translated as ) ..l>li ,t.i| .t:li| ( . The second
technique will depend mainly on the overall context. A very good example
in translating the connecting word, whereas, as found in the preamble of
Universal Declaration of Human Rights is ) _t: t| ( . Also, the Arabic
equivalent of the English word under is ) ,s ( but in a sentence like the
case under discussion it will be translated as ) .,i ( as in ,>,i| ( ) .,i .,.:i| .
The above discussion shows that these concepts require caution,
investigation, and knowledge on the part of the translator. For instance,
with two synonyms like final and conclusive in English, the Arabic
translator should decide upon the proper way of translating them; is he/she
going to translate them literally as ) _.t, ( and ) _.t:> ( , ,, , or is he/she going to
use one equivalent for the two terms? In most cases, it is always advisable
that the legal translator sticks to the same range of words if the TL allows
him to do so. In Wai-Yees view, descriptive equivalence or paraphrase is
preferred if a one-to-one translation could not reveal the legal meaning or
distinguish the legal term from other similar terms (2002:79). Sarcevic
comments that this way is the most secure way for compensating for
terminological incongruity (1997:79).
2.2 2.2 2.2 2.2 Syntactic Problems Syntactic Problems Syntactic Problems Syntactic Problems
Complexity of text structure and the discontinuity of sentences is a
problematic area in legal discourse. In response to this difficulty, Garre
(1999:116) asks the following question: How should the translator or the
legal professional deal with variances in sentence and text structures in
different structures? Among the syntactic problems which we encounter in
legal discourse are:
( (( (1 11 1) ) ) ) Syntactic complexity Syntactic complexity Syntactic complexity Syntactic complexity
Legal discourse in English is characterized by the excessive use of long
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and complicated sentences. Similarly, Arabic legal sentences are lengthy
and complex, a fact that causes difficulties in translating from English into
Arabic and vice versa. We usually encounter long sentences forming a
whole paragraph. Thus, a sentence consists of a number of subordinating
and coordinating clauses that are joined by many subordinating and
coordinating conjunctions which may be peculiar to the TL.
According to Farghal and Shunnaq (1992:204), the ability to cope
successfully with syntactic discontinuity which is a characteristic feature of
legal texts, constitutes a key gate to finding ones way smoothly through the
text. Parenthetic clauses, for Farghal and Shunnaq (ibid), are the reason
behind syntactic discontinuity. The use of conditionals such as if, when,
should, and provided that and phrasal verbs such as put down and enter
into also adds to the difficulty of legal translation. The latter are to be studied
carefully because they are vague and do not follow specific grammatical rules.
Long and complex sentences of legal discourse result in ambiguity. This
is a structural ambiguity which is purposefully made to create uncertainties
and also for diplomatic reasons (Harvey, 2002:181). Misinterpretation of
such structures leads to mistranslation. In this context, Harvey (ibid) adds
that ambiguity, then, is an integral feature in legal discourse and should be
rendered in translation.
As for a sentence with a complex structure, the translator is advised to
divide the sentence into independent and dependent clauses. This process
simplifies his understanding of the main pieces of information given in
each sentence, though it is not an easy task. He/she then may have a choice
of following the same structure of the ST which most legal translators do.
Yet, this method results in ambiguity as in the case of translating from
English into Arabic. These two have different syntactic structures because
the former uses a SVO structure while the latter uses a VSO structure.
He/she may also consider the syntactic structure of the TL and stick to the
content displayed in the sentence. It is worth noting that this technique
involves risk as it may lead to subjectivity or lack of accuracy. That is,
content may be sacrificed for achieving formal adequacy of the TL.
As for syntactic ambiguity, a legal translator may also need to stick to the
most common structures that have been famously used in dealing with
similar syntactic difficulties. That is, he seeks advice and searches for
genuine solutions rather than look for alternatives.
( (( (2 22 2) ) ) ) Passivization Passivization Passivization Passivization
English legal discourse excessively manipulates passive forms that
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obscure the agent. On the other hand, Arabic does not favour using passive
very frequently. In this case, the legal translator resorts to the technique of
adaptation, which is very helpful in translating between incongruent
languages. For example, a translator may use the active in place of the
passive. To explain this idea, compare the following two examples from
English and Arabic versions of the Universal Declaration of Human Rights:
a) No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
Y _.
..|it, .t+| _i .,:>i| _i .,.t:i| :;.t.|| _i :t,:.li Y_ ,i.:li _t..j _i .
b) No one shall be subjected to arbitrary arrest, detention or exile.
Y >> _i _t..j _i _. _,:i| t.... .,.. _i . .
The above two examples display two different ways of translating the
same passive form shall be subjected to. In the first it was translated as
passive (_.
), whereas in the second sentence it was deleted and the modal
expression () was used.
In other cases, the translator can use personification in which he/she can
assign a person to a legal act that can be personalized in Arabic. That is,
he/she can translate a corresponding credit facility is willing to proceed
with the funding of the project as: |j ,: _i __:|| . __|| _. :| ( ) _. .
( (( (3 33 3) ) ) ) Modal Auxiliaries Modal Auxiliaries Modal Auxiliaries Modal Auxiliaries
Whereas English uses a well-defined system of modal auxiliaries, Arabic
does not. The Arabic modal system is lexical and not grammatical.
Examples of the most common modals used in Arabic legal discourse are
deontic modals. This type of modals expresses obligation, permission, or
prohibition. Obligation is represented by the following modal phrases or to
be precise expressions:
_i .,Y . _i ,|i| _. . _i , . _i _.,. . ,lL|| _. . ,l. \ _i .,l.
Permission is expressed through the following expressions:
_. ) J ( . _t . .t)| _. . ) i ( _i
Based on that, translating modals from English into Arabic will result in
many inadequate counterparts but when translating from Arabic into
English there are more adequate forms. For example, English legal
discourse prefers the use of imperative shall to the present indicative or
the future tense, whereas Arabic translation of imperative shall or may
uses the present indicative. This point is also true for the mandatory must
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and this prevents the translator from using the same form of the verb in the
target text. The present indicative expresses has less formality and weaker
strength than the use of shall. Bowler states that:
because the legislative modals are ambiguous between epistemic
senses of necessity and possibility, on the one hand, and the
deontic sense of obligation, sanction and prohibition, on the
other, it is best not to mix their use, as the deontic use is
obviously the most frequent, it is the epistemic sense that
should be avoided. (cf. Bhatia (2003:27)
Abdel-Fattah (2005:42-45) offers some techniques in translating modals
from English into Arabic and vice versa:
1) Classification of modals: to understand the real category of the
modal involved (i.e. epistemic or root (deontic or dynamic)).
2) Modal rephrasing: paraphrasing the modal to its periphrastic
counterpart.
3) Modal retranslation: retranslation after the first draft is finished
helps in making sure that this is the original rendering, of the
modal.
4) Utilizing ambiguity: sometimes ambiguity is utilized in translation
only if there is another ambiguous counterpart in the target
language.
( (( (4 44 4) ) ) ) Parallelism Parallelism Parallelism Parallelism
Parallel structures are a common feature of Arabic in general and of
legal texts in particular. Abdul-Raof (2001:56) defines them as phrases
which have the same structural rhythmical pattern employed for a stylistic
effect such as:
.,it:i| _,t:||_ _:i| _. .,..;| .|i| _. : .,::i ,..:._ .t,.. ,.. t. t _j
.|:. ._t.:. _Li ;. . .|> _..i|_ ..t.,, _L.i|_ ..|.. t,.. t,l.i| .
The Jordanian flag shall be of the following form and
dimensions: The length of the flag shall be twice its width. It
shall be divided horizontally into three parallel and equal
stripes, the uppermost of which shall be black, the centre, white,
and the lowest, green.
In the case of legal texts they add more emphasis to the verb. These
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structures do not exist in English and thus they must result in translational
difficulty. The translator in this case should search for corresponding
equivalents in English that transfer the exact meaning of the message.
Doing that, he will have to sacrifice the rhetorical elements that the Arabic
text exhibits.
2.3 2.3 2.3 2.3 Textual Problems Textual Problems Textual Problems Textual Problems
Translation in general and legal translation in particular is difficult
between two languages because of the textual features they both have. Both
English and Arabic have totally different textual features. These features
include the layout, the punctuation system, conjunctions, cohesion, etc.
Arabic and English are two different languages both orthographically and
linguistically. Orthographically, Arabic starts from right while English starts
from left. Also, English employs upper case i.e., capital letters, while Arabic
does not have these features. Linguistically, Arabic is a VSO language, while
English is a SVO language. However, these are minor problems and they
do not pose serious difficulties in translatability.
( (( (1 11 1) ) ) ) Repetition Repetition Repetition Repetition
Although English and Arabic use similar cohesive devices in legal
discourse such as repetition and reference, the frequency of such features
and the way they are handled in the text is different from English to Arabic
and vice versa. English for instance reduces the amount of repetitious
words, as long as the meaning can be retrieved and there will be no
ambiguity. For more clarification, consider the following instance from An
Agreement Between Libya and the U.S.A. II (Mansoor, 1965a:282):
,..:. _i ....>:|| :t..Yi| ....+ .. _...., _....: _ ._.t..._ ._i_ . _...., ..i _|;
_|,_ _>|.i|_ _.. >i _.: ... >.. ,.:._ t |i: _. .,:t: _.|| _. ...
The Government of the United States of America may make
engineering, topographic, hydographic, coast and geodetic and
other technical surveys A sufficient number of copies with
title and triangulations and other control data of such a survey
shall be furnished(Mansoor, 1965b:125).
The above example shows that the Arabic extract uses same word
repetition of the word _.. ( - survey). It is mentioned in the Arabic text four
times while the English text avoids that repetition and the word is only
used twice. Doing that, the English text employs a number of premodifying
adjectives to specify the type of survey needed. This results in a class shift of
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the two plural nouns _>|.i|_ _|;| ( - lands, and coasts) to modifiers of the
noun (survey - _..), to become the modifying noun coast and the adjective
geodetic.
Yet, this is not always the case in translating legal texts because
repetition is necessary to deal with the ambiguities that may arise in the
legal interpretation of the legal text. Consider the following instance from
the above agreement (Mansoor, 1965a:284):
..>:|| :tYi| :tLl.i _:.. _i ..>:|| :tYi| :|:i ..,,. t,:.,i .,it. t:. .l..,
..>:|| :tYi| .. _i :|.>, ..,,. t,:.,i ... .l ..>:|| :tYi| .l.. _i .,,,i .l.. _i
..>:|| :tYi| .l.. _:.i| ,: _i 1 _. ..>:|| :tYi| .l.., ... i>:._ :tLl.
..>:|| :tYi| ... :|.>, ..>:|| :tYi| .l.. .... ..>:|| :tYi| :|i .
The United States authorities may pay the United States forces
in checks expressed in United States currency, or military scrip
denominated in units of United States currency, or in Libyan or
in United States currency, provided the payment in United
States currency shall take placeThe United States authorities
will takein the units of the United States currencythe
United States forces. (Mansoor, 1965b:125).
There are also other cases of repetition in Arabic which do not exist in
English and of which the legal translator should be fully aware and
investigate how he will deal with them. In this case, they have no bearing
on the process of translating. These include root repetition as in:
_.:t. .t,.j
;:
. , for
the latter to mean, as Bahmeed (2008: 6) puts it, a period during which a
Muslim woman usually keeps at home and does not use make-up or
perfume to beautify herself. 130 days for the woman whose husband passed
away and about 90 days for the divorcee. In Hatim, Shunnaq and Buckley
(1995:98) they translate ) .,.i| ...i|
|.- ... .-,\|, .., ...| .-..|, _.\| .-.. _.....| _..L..| _, _.. .... _-
_:..... ) v . _ r . (
.L. ......| .~,.| ,-,.| _.., ..,L., _... _... _| ... , : _.L-
| ;.-.| _, ,-.| _ ......| .~,.| _. ._.. .-. ,\| ...| _...| ....| ...| ._-.
_:-.|, ..:.j| _| .,-.| _. ......| .~,.| .;::. ,..: . .-:.| ...| |.. ,
,....| .- _. .,.. .-| . .... .... ,-,.|
...-:...| _
......| _...| -,. .,,-| . _:.| ..,-..| _.. ,.-:.. .