Lecture 3 Strategies in translating legal texts

LECTURE 3 Strategies in translating legal texts

Modern trends of globalizing economies have exerted its impact on the requirements to legal translation, which has to take into account both the source and the target legal and language cultures and the needs of the reading community. Joint efforts to develop translation theory manifested themselves in comprehensive classification of tools, giving rise to numerous studies of challenges in translating from and to different languages. No wonder that in these works English plays a leading role being recognized as the international language of business communication. The given article is not an exception. It focuses on the analysis of translation strategies applied in rendering legal texts of various genres from English into Russian and vice versa. The priority of accuracy in rendering the semantic scope of the text demands deep knowledge in legal and linguistic domains along with the vast translation experience. It means that to efficiently translate a legal text translator goes to great lengths in search of linguistic and legal parallels between cultures. The focus on such incongruities allows to outline the set of basic translation strategies relevant in practice. The rapid evolution of business relations in the process of international globalization gives new impetus to the development, which is undoubtedly dominated by the English language as an international language of communication. Research objectives and methodology As is known, the quality of translation is determined primarily by its adequate and effective semantic rendering of content, which entails certain challenges. This work focuses on practical approach to translation theory based on legal texts of different genres within English-Russian pair of languages. An attempt is made to show how to overcome some of the semantic, lexical, grammatical, stylistic and other inconsistences and to outline the basic nomenclature of translation strategies and transformations. For this end, the following methods have been applied: the method of contextual analysis, comparative and contrastive methods, the method of statistics processing, deductive methods of analysis and the method of logical syllogism. Contrastive analysis is used to study similarities and differences in semantic scope of legal terms to choose the right translation strategy. Statistical processing contributes to the above method by identifying the frequency in the usage of a given term or phrase. However, in cases of polysemy a researcher should be very careful analyzing the definite meaning of the term under study. Contextual analysis contributes to identifying the meaning of a certain term or phrase within the minimal stretch of text; it also prevents against any misunderstanding of meanings. Comparative method of English and Russian pair of terms confirms the semantic analysis in general and helps select relevant translation strategy. Deductive analysis suits the purpose of the research, that is, testing the translation theory from practical perspective and the method of logical syllogism is helpful to work out conclusions to finalize the research. 3. Results and discussion Modern theory of legal translation identifies different methods and strategies as translation tools. However, in practice translators experience certain difficulties in their choice as various factors of linguistic and/or extra linguistic character need to be taken into consideration. 3.1. Translation of non-equivalence Professionals would argue that the most challenging aspect in translating legal texts rests in rendering its contents. Equivalence of texts can be reached on the three levels: syntactic, semantic and pragmatic. Predominating in these three is the pragmatic level as it incorporates such important factors as communicative intention, communicative effect, and assessment of the translation recipient. The question of how to make the notion of equivalence more accurate for legal translation was widely recognized since the emerging problems in legal translation made scholars and translators seek enhanced standards. The key issue is to what extent legal equivalence should spread in order to produce the same legal effect in the target text while maintaining the fidelity to the source text. The technique described by Newmark as procedure that occupies the universal area between the source language and the target language (Newmark 2005) is known as a technique of functional equivalence. When assessing the acceptability of a functional equivalent the legal translator should “take account of the structure, classification, scope of application and legal effects of both the functional equivalent and its source term” (Šarčević 2000). Therefore, when dealing with legal conceptual lacuna or partial equivalents a legal background plays a crucial role. Let us refer to some examples. The term nuisance in common law semantically can be linked to private or public offence. Nuisance is any human activity that is harmful to the health of another person, is indecent or offensive to the senses, or interferes with another person’s reasonable use and enjoyment of his/her property. Examples of public nuisance include indecency, pollution, noise, and contagious disease. (www.alllaw.com/articles/nolo/personalinjury/private-public-nuisance-claims-property-owners.html). Of course, the exact definition may vary from jurisdiction to jurisdiction, but the problem is that there is no equivalent term in the Russian language. The variant that comes to mind most often is narushenie obshchestvennogo poryadka (public disturbance), which only refers to public Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 ( 2017 ) 1329 – 1336 1331 law. There is an opinion that terminology like this should be rendered into Russian through transcription (n'yusns). Then there is another dilemma, how to deal with public and private character of this tort in Russian: publichnyj or chastnyj n'yusns? This kind of difficulties can embarrass even specialists in the field of Russian civil law as they are linked to the non-existent phenomena in the target language. Of all possible solutions, descriptive translation seems to be the most appropriate as it outlines the scope of the notion: private nuisance – chastnyj n'yusns ehto istochnik opasnosti ili neudobstva dlya kakogo-libo lica ili gruppy lic; public nuisance – publichnyj n'yusns ehto istochnik opasnosti ili neudobstva dlya vsekh okruzhayushchih. Transition to market economy in Russia was accompanied by an avalanche of English terms whose translation is frequently limited to transcription and/or calquing (ex.: svopy-swaps, trespassy-trespasses, factoring-factoring, autsorsing-outsourcing, sekondment personala-personnel secondment, autplejsment-outplacement, nou-hau-knowhow, etc.). The same refers to legal terminology of English origin, compare: d'yu-dilidzhens-due diligence, gudvilgoodwill, etc. Such approach to translation, in our opinion, is subject to criticism. Transcription as a translating method is definitely not fit-it-all recipe. Borrowing is appropriate only in cases when an acceptable equivalent does not exist in the target legal system, which presupposes the need in constructing a long and complicated paraphrase of the term in question. On the contrary, finding equivalents in Russian for the above expressions is the best alternative strategy: due diligence – kompleksnaya proverka / kompleksnyj pravovoj analiz / pravovaya ehkspertiza; personnel secondment – predostavlenie personala / vremennyj perevod na druguyu rabotu; outplacement – sodejstvie uvolennym rabotnikam v trudoustrojstve; goodwill – nematerial'nye aktivy (obshchestva). However, borrowing may turn out to be not only justified but also inevitable in case of observing consistency, i.e. if borrowings participate in semantic actualization of the word. For example, in Anglo-Saxon law criminal acts are divided into misdemeanors (offenses lower than felonies and generally those punishable by fine, penalty, forfeiture or imprisonment otherwise than in penitentiary) and felonies (a crime of a graver and more serious nature than those designated as misdemeanors) (Black’s Law Dictionary). In Russian legal discourse the corresponding terms retain their foreign appearance and figure as misdiminor (a category of less dangerous crime adjacent with an administrative infringement) and feloniya (a crime typically involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death). Should this classification be replenished by a new type of crime, legal Russian will have to follow the path of borrowing. These examples, on the one hand, demonstrate when borrowing is justified, and, on the other hand, illustrate another method of translation, that of foreignization (see 2.6 of this work). 3.2. Translation of Latinisms Another group of legal terms involves the words of Latin origin, ex., inter alia, caveat emptor, res ipsa loquitur, mens rea, non est factum, prima facie, ex facie, etc. What are the translation options? How can translator deal with these inclusions in the English text? It seems reasonable to resort to one of the three strategies: (1) transliteration; (2) translation of Latin terms; (3) retaining of Latin terms spelling with their translation into Russian in brackets. Transliteration is possible when a corresponding Latin word has entered the Russian language and has been included into dictionaries. In this case, transliteration acts as a direct borrowing and the number of such words in Russian vocabulary is rather numerous. The examples are as follows: ad valorem – advalorem, de facto – de-fakto, de-jure - de-yure, modus vivendi – modus vivendi. It is worth mentioning, however, that some transcribed Latin phrases obtain a new, quite different meaning in Russian. Thus, the last phrase in Latin means literally life style / way of existing whereas in Russian transliteration it has obtained two legal meanings: 1) temporary agreement concluded by the parties with intention to finally execute it in the future; 2) the actual state of relations recognized by all the interested parties 1332 Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 ( 2017 ) 1329 – 1336 The problem of transliteration does not arise in the English language, as words and word combinations, which are perceived as Latin, are italicized to show their alien nature. Subject to translation into Russian are several groups of Latin phrases being a part of the English legal text. They are: (1) Words of Latin origin used in English in abbreviated form: etc. (et cetera), e.g. (exempli gratia), i.e. (id est), cf. (confer), et al. (et alii), viz. (videlicet), et. seq. (et sequenia); (2) Latin words and phrases being commonly used and often the only way to express a concept, a notion and/or things in legal English: folio verso – on the next page (on the back of the page), opus citatum – cited work, vide infra – see below, vide supra – see above. Latin phrases having corresponding English synonyms may also be included in this category: ad interim – in the meantime, ad nauceum – to a disgusting extent, inter alia – among other things, vice versa – the other way round. In cases when the Latin phrase is clear for Russian professional, it is left as it is in the target text, e.g.: The representative may be instructed to sign a treaty ad referendum. / Predstavitel' mozhet poluchit' ukazanie podpisat' dogovor ad referendum. 3.3. Translation of partial equivalents Linguists speak about partial equivalence in legal translation in situations when the source and target language concepts are quite similar and the differences can be clarified by lexical expansion. The technique of functional equivalence when the term in the target language would be clear to the reader and at the same time close to the source term is most common in such cases. Let us consider the word combination regulirovanie zemel'nyh otnoshenij as an example. The formal approach to translation of this expression into English brings us to regulation of land relations, which does not make much sense. The matter is that the term relation(s) in legal English is used less frequently than in legal Russian. You can find it in contract law in phrases like intention to create legal relations – namerenie sozdat' pravootnosheniya or the relation of the parties – otnosheniya storon, where the word relation bears a denotational meaning. However, Russian legal term otnosheniya may act as an intermediate element, which distracts attention and blurs the sense of the utterance. For example, translating the phrase Otnosheniya, svyazannye s ispol'zovaniem i ohranoj zemel', vod, lesov….reguliruyutsya special'nym zakonodatel'stvom into English we do not have to use the word relations: the translator may employ the word regulations instead. Fairness of this opinion is proved indirectly by search result on the Internet regarding the above phrase regulirovanie zemel'nyh otnoshenij: regulation of land relations can be found on the Russian translated sites whereas on the English sites one can find the functional equivalent land regulation. Another example to illustrate the propriety of functional equivalence technique is the Russian adjective subsidiarnyj. The formal equivalence type of translation suggests rendering the term subsidiarnaya otvetstvennost' into English as subsidiary liability, which is not correct. One can, however, come across the subsidiary’s liability meaning a different concept, namely, otvetstvennost' dochernego predpriyatiya. In order to reach semantic parity between these two concepts it is essential to search for the functional equivalent. The target of this technique is to offer the term which designates the same or similar to the source text concept. In Russian legislation subsidiarnaya otvetstvennost' is defined as a type of civil liability; it represents an additional liability of a guarantor to a creditor along with a primary debtor. The key word in the description of this notion given in the Russian Civil Code is dopolnitel'naya (otvetstvennost') (s.1 article 399 of the RF Civil Code). Therefore, English parallels should be searched among the synonyms to this adjective. Subsidiary is actually one of them; it means serving to assist or supplement (American Heritage Dictionary). However, there is a semantic constraint in combining subsidiary and liability into a term matching the Russian one. In order to find a more precise equivalent it is necessary to choose between the adjectives conveying the idea of dopolnitel'nyj: additional, supplementary, supplemental, secondary, auxiliary, collateral. The required word in this chain is secondary. To prove the choice, a translator may verify with Black`s Law Dictionary: “A liability in the nature of a contingent claim, such as the liability of a guarantor as contrasted with that of a strict surety or comaker. A guarantor`s liability does not arise until the principal debtor has failed to pay the creditor.” Obviously, it is very close to how the concept subsidiarnaya otvetstvennost' is understood in Russian legislation. Thus, the target equivalent is secondary liability. As shown above, functional equivalence can remove the problem of the so-called false friends and contribute to faithfulness to the original text. Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 ( 2017 ) 1329 – 1336 1333 3.4. Literal translation and concept of ‘false terms’ The literal translation is generally defined as rendering the text from one language to another "word-for-word" (Latin: verbum pro verbo) with or without conveying the sense of the original. Justified in certain cases, literal translation may fail in legal contexts where the culture and custom may radically differ from those of the original. One should not confuse literal translation with formal equivalence technique, though. In this respect Hatim and Munday wrote: "While literal translations tend to preserve formal features almost by default (i.e. with little or no regard for context, meaning or what is implied by a given utterance), a "formal" translation is almost always contextually motivated: formal features are preserved only if they carry contextual values that become part of overall text meaning" (Hatim & Munday 2004). The term false friends stems from French faux amis du traducteur. Difficulties in translating these lexical units lay in the formal likeness of the elements, which is deceptive to the highest degree. An inexperienced translator, being disoriented by the familiar graphic and written form of words, may resort to their literal translation. For example, the phrase formation of contract due to literal approach can incorrectly be translated as formirovanie kontrakta; sozdanie kontrakta. In fact, its correct interpretation is zaklyuchenie kontrakta. The same refers to the phrases formation process – process zaklyucheniya kontrakta, e.g. the contract is formed when the acceptance becomes effective – kontrakt schitaetsya zaklyuchennym, kogda akcept vstupaet v silu. When reading legal literature one may encounter a literal translation of the term court of justice as sud pravosudiya. However, correct translation involves a different technique called subtraction. Thus, court of justice corresponds to sud, sudebnyj organ, while International Court of Justice is unambiguously translated as Mezhdunarodnyj sud. Table 1 and Table 2 below give examples of literal translation of some common word combinations and variants of their contextual meaning. Table 1. Translator’s false friends (English-Russian) Term Literal translation of the term Contextual translation of the term substantive activity substantivnaya aktivnost' osnovnaya/profiliruyushchaya deyatel'nost' substantive proposal substantivnoe predlozhenie sushchestvennoe predlozhenie, konkretnoe predlozhenie residential land zemli naselennyh punktov zemli pod zhilymi stroeniyami dynamic programme dinamicheskaya programma gibkaya/dejstvennaya programma double standard dvojnoj standart dvojstvennyj podhod/dvojstvennaya merka national administration nacional'naya administraciya nacional'noe pravitel'stvo commercialization kommercializaciya vklyuchenie tovarov i pr. v kommercheskuyu deyatel'nost' paragraph paragraf punkt (dogovora i pr.) progress report doklad o progresse doklad o hode raboty, o prodelannoj rabote community property sobstvennost' kommuny obshchee imushchestvo suprugov Table 2. Translator’s false friends (Russian-English) Term Literal translation of the term Adequate translation of the term fal'shivye dokumenty false documents forged documents instrukciya instruction directions/guidelines vnutrennyaya politika inner policy domestic policy sekretnaya informaciya secret information sensitive information fal'shivyj schet false bill fabricated account sfabrikovannaya versiya fabricated version fake report vystupat' oficial'no to speak officially to go on record sredstva massovoj informacii means of mass information mass media uchastniki organizovannoj prestupnosti participants of organized criminality organized-crime figures 1334 Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 ( 2017 ) 1329 – 1336 3.5. Translation transformations The method of translation transformation, introduced by Russian scholars (see works by Barkhudarov and Recker), incorporates such techniques as addition, alterations, subtractions and concretizing, generalization, antonymous translation, and sense development. This logic-oriented typology was further developed by western linguists (Catford 1965, Nida 1964 and others) whose contribution is hard to overestimate. Speaking about additions, Nida argues that they "may legitimately be incorporated into the translation" (Nida 1964) only if they do not change the semantic content of the message, but make information explicit. In other words, such additions should be implicitly present in the source text. In some cases, it may be inevitable to introduce participants into the target text while translating a passive clause as an active clause. The examples of this kind are quite numerous. The category of alterations embraces the changes of grammatical categories like number, tense, or voice, shifts in word class (ex., from event noun to verb), word order, sentence type, or directness of discourse. It can be traced in translation of the opening part of contracts (preamble) introducing contracting parties. Alteration is expressed in this case by the change in number: The Sellers are to provide… while in Russian: Prodavec dolzhen obespechit' … Change in word order is also the typical manifestation of this tool: By the time stipulated, the equipment is to be manufactured… / Oborudovanie dolzhno byt' izgotovleno k ukazannomu sroku. Another example is: It does not, however, release the Sellers from liability… / Odnako, ehto ne osvobozhdaet Prodavca ot obyazannosti … . Another example to illustrate alteration refers to the change of Russian collocation (verb+noun) into just a verb, compare: primenit' vychet / to deduct (verb). Below is the example of translation of the whole phrase with the given expression: Nalogovymi organami byli pred"yavleny pretenzii po nepravil'nomu primeneniyu kompaniej vycheta po nalogu na dobavlennuyu stoimost' po raskhodam na arendu /The tax authority claimed that the company had wrongfully deducted its rent costs for VAT purposes. Some essential alterations are connected with shifts in syntactic structure of a sentence, for example, The date of delivery is considered to be…/ Datoj postavki schitaetsya … (the subject in the source language is replaced by the object in the target language). A more baffling case for translation is the collocation contingent condition, meaning a certain event upon which the existence of contract hinges. The translation of this expression into Russian is a real challenge. Contingent in English-Russian dictionaries marked as law is translated into Russian as uslovnyj, i.e. ogranichennyj; ogovorennyj kakim-libo usloviem; imeyushchij silu tol'ko pri nalichii kakogo-libo usloviya (Andrianov 1993). As you see, translator has to avoid tautology – uslovnoe uslovie or obuslovlennoe uslovie, so alteration technique seems a rescue. Using the synonym for one of the components of this expression allows rendering contingent condition as uslovnaya klauzula or as zavisimoe (ili zavisyashchee ot obstoyatel'stv) uslovie. It is common for translation of legal discourse to omit some words, which are considered to be redundant in the target language. The said illustrates another technique – subtraction – and refers, for instance, to the words ob"ekt and sub"ekt in English translations. Thus, sub"ekty malogo predprinimatel'stva following this method can be rendered as small businesses, sub"ekty estestvennyh monopolij as natural monopolies, ob"ekty osnovnyh sredstv as fixed assets, and prava na ob"ekty intellektual'noj sobstvennosti as intellectual property rights. Translators often deal with situations when it is necessary to perform an intermediate action in rendering legal Russian into English. The transitive stage involves interpreting firstly from legal Russian into general Russian to understand the essence of the statement and only then translating the phrase into English. Thus, the essence of the phrase sub"ekty dogovornyh otnoshenij boils down to contracting parties whereas hozyajstvuyushchie sub"ekty contracts to companies or businesses. However, the term sub"ekty valyutnogo regulirovaniya in Russian legislation refers to currency regulation authorities and currency control agents, both residents and non-residents. Therefore, translation of this term in most cases requires concretizing technique with the following possible variants: (1) exchange control authorities, (2) exchange control agents, (3) residents or non-residents engaged in controlled forex transactions. Concretizing technique can be illustrated by the expression contract of bailment which means kontrakt imushchestvennogo najma, prokata oborudovaniya; kontrakt zavisimogo derzhaniya, otvetstvennogo hraneniya, lizinga. As you can guess, the semantic scope of this collocation is varied, thus, it is practically impossible to find the equivalent Russian term to bailment, which would embrace such different concepts as sending clothes to a dry cleaner, placing securities in safe custody, rental of equipment, leasing, etc. The translator in this case ought to resort to Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 ( 2017 ) 1329 – 1336 1335 concretizing. Similarly, translation of Goods shipped in bulks involves the same approach: depending on the kind of the goods – coal, sand, oil – it is translated accordingly as tovar, otgruzhaemyj navalom, nasyp'yu, ili nalivom. To solve the problem of partial equivalence the translator may also apply the method of generalization. The essence of this approach lies in the fact that a word with a concrete, narrow, specific meaning in the source language is changed for a word, which has an abstract, broad, general meaning in the target language. For example, the phrase from the sales contract osushchestvlenie shefmontazha with a concrete meaning, changes for the phrase with a broader meaning supervision of erection: Prodavec obyazuetsya po trebovaniyu Pokupatelya napravit' svoih specialistov dlya osushchestvleniya shefmontazha i puska v ehkspluataciyu oborudovaniya. / The Sellers undertake on the Buyers’ demand to send their specialists for supervision of erection and commissioning of the equipment delivered under the present Contract. The main conclusion to be drawn is that transformations are a valuable instrument of translation, since they enable translators and lawyers to discuss formal deviation in the source and target texts, occasioned by different factors, including deviations in legal concepts, terminology and peculiarities of legal languages stemming from their history and development. 3.6. Domestication and foreignization Domestication is a translation tool, which helps to adjust the text to the culture of the target language in order to avoid any falsification of information. In this connection, we can mention different ways to indicate dates in business and legal documents dependent on established traditions. Thus, American lawyers start the date with the month while British lawyers with the day. So 7/10/20__ may be confusing: it is either the seventh of October or the tenth of July. To avoid confusion the translator should switch into tradition, which is obvious for the Russian system, the 7th of October, 20___. An example, characterizing foreignization is a provision in the contract known as a force majeure clause (forsmazhor). This expression is widely used despite the existing Russian equivalent set phrase obstoyatel'stva nepreodolimoj sily. 4. Findings Translation studies appeal to various strategies and methods that can be successfully used in the process of general and legal translation. Their analysis suggests that the most efficient of them are functional equivalence, descriptive paraphrase, translation transformation, and borrowing. Each of these strategies has its advantages and disadvantages; therefore, a translator has to assess a particular case and decide which of the techniques is to be applied. It must be noted, that no significant examples have been found to illustrate such tool as antonymous translation; very few cases involved sense development. It does not mean, however, that they are not applied. Such method as literal, word-for-word translation of legal documents, though sometimes conceivable, in most cases deteriorate the quality of translation since it tends to preserve formal features with little or no regard to the context, meaning or what is implied by a given statement. However, there are practitioners who are in favour of this technique when dealing, for instance, with the names of institutions, and/or titles of documents. Application of domestication strategy depends on the translator’s intention to make the text easier to perceive and for this end, he/she even agrees to sacrifice the information loss whereas foreignization is aimed at retaining foreign features of the source text. Functional equivalence strategy is recognized useful for the purposes of legal translation since it allows to produce the same legal effect in the target text while maintaining the fidelity to the source text. The method of translation transformation comprising such techniques as concretizing, generalization, sense development, antonymic translation (Recker’s classification) and additions, subtractions and alterations (Nida’s classification) is fairly believed to be extremely valuable as it contributes to the so-called adjustment of two language systems. Borrowings, calquing, descriptive equivalents, neologisms are mostly employed in translation of non-equivalent legal terms.