Solving Problems in Legal Translation
One of the difficulties with legal translation is that in most other fields, a translator can usually assume that when a decision has to be made about the equivalent for a given term, there will be a definite consensus as to its range among experts in the source context. In legal texts, however, terms are continually being redefined, as social developments overtake past practice and force legislation to change, simply n order to keep abreast of new standards. This in turn affects judicial perceptions of what the legislators had in mind when they happened to use particular words.
From the perspective of the translator, words themselves and the meanings of words seems to shift. Lawyers develop strategies to protect the meanings of words, and are experts in their awareness of the need to negotiate meaning, s that judges themselves and lawyers are linguists when hey make arguments and decisions.
This also applies to the rulings as regards the meaning to be attacked to specific terms used in statutes or in the text of contracts as agreed between the parties. These decisions fall within the province of judicial determination and often constitute the whole basis of the cases referred to the courts. In fact, of all the cases brought to the attention of the courts, a huge majority never reach the trial stage, since points of preliminary law effectively put an end to the claims of one of the parties to the suit.
The language of law is composed of three basic types of vocabulary: technical, semi technical and non-technical. Of these types, the technical type is by definition the least pervious o subjective suggestion and therefore the least open to connotative meaning, while the other types are correspondingly more prone to connotative meaning the closer they approximate non-technical or everyday speech.
Words that are, or that appear to be technically transparent in English are often connotatively rich in Italian with the result that the literal translation of concepts that are practically neutral in the source system may be semantically changed into the target language. It should be noted that translators cannot expect to avoid the connotative traps of language just because they are dealing with legal texts.
Despite the native origins of many of its most characteristic terms, legal English has not entirely escaped the influence of Roman law and the Latin in which it was administered. English law grew out of a system that had evolve din the Middle Ages when Latin, bolstered by the power and prestige of the Roman Church, was the lingua franca throughout Europe for written texts. Secondly, Roman law was a coherent written system that, for centuries, had been developing over a wide area of Europe and had the force of an institution. It was inevitable, therefore, that some of its precepts and formulations should become enshrined in the texts and professional speech of English lawgivers who shared a common culture with their colleagues elsewhere. Even today the label Nulla poena sine lege (No punishment except in accordance with the law) is found in the writings of British lawyers as well as in those of their Continental colleagues. There are hundreds of Latin phrases in legal use. But translators cannot always allow phrase to remain untranslated. The decision as to whether to translate Latin or not will depend upon the source text and the context of the phrase.
Operative Provisions in Contracts: Terms and Conditions
NOW IT IS HEREBY AGREED….
The specific clauses relating to the overall contract and the commitments of the parties are generally referred to as the terms and conditions. However, translators should be careful not t assume that the two words are synonymous. In technical use, a ‘term’ is any provision of the contract, so that the most important distinction is not between ‘term’ and ‘condition’, but between a fundamental or essential provision (‘condition’) and a more secondary provision (‘warranty’).
In this strict sense, a distinction many be made between an express term and an implied term. The primary distinction is a matter of the importance accorded to the individual terms of the contract- i.e. it is a question of content, whereas the secondary distinction is a matter of form, (the contract either expressly includes it or it does not) and any dispute concerning implied terms is resolved by judicial construction of the whole within the appropriate legal and commercial context. Translation of these terms will therefore depend on the overall context, and descriptive adjectives (equivalents of essential, fundamental, explicit, implicit, secondary, conventional and so on) may be required to ensure accuracy.