Legal language can be very stiff and is all too often riddled with old-fashioned syntax and antiquated vocabulary. This is, in part, out of tradition. But legal language also typically preserves terms of art that were coined many centuries ago. It does so, because, for legal experts who know exactly what those terms of art mean, they have the advantage of precision and clarity.
The downside, of course, is that when documents are layperson-facing, the reader will be lost. That’s why so many jurisdictions are moving toward plain language for documents that are aimed, not at specialists, but at the general public.
The question, however, is what are translators to do when they come across syntactic oddities arising out of the linguistic stiffness of the law? We know literal translators won’t work.
Think of phrases like witnesseth that. While in many contexts it may mean attests or affirms that, in others, like contracts, it may mean nothing at all and is just there out of tradition. In such cases, a literal translation can do much more harm than good and the translator is faced with a tough choice: to omit the meaningless archaism or to find an equivalent archaism in the target language. And what if there is no equivalent archaism at all with which to work?
Or think of the phrase “it does not lie in the defendant’s mouth to say that […].” Of course, we all know that phrase really just means that the defendant does not have the competence or right to say something. So no self-respecting translator would render a word-for-word translation of that phrase. Instead good translators will translate meaning, not just words.
But even then, the translator’s is faced with a dilemma: too faithful and the translation may render the target text nonsensical, too far from source and the translation may result in an oversimplification or coarsening of target text.
Legal translators are bound by two often clashing principles: fidelity to source, on the one hand, which is all about precision, and transparency, on the other, which is all about naturalness and style. One way to balance the two is to extract the plain meaning of the problem phrase and find the legal and linguistic equivalent in the target language.
Think of a phrase like “an action sounding in damages.” Obviously a literal translation of the word sounding is not going to work into any language. In Spanish, for example, una acción que suena a daños makes absolutely no sense at all. But if you extract the plain meaning of that phrase, then you can render it as an action brought by an unpaid creditor for damages rather than simply to recover the debt. Again, using Spanish as an example, we’re talking about an indemnización de perjuicios or indemnización por daños y perjuicios. Of course, which option the translator will choose depends on the target country, but that’s a topic for a whole other blog post! In the meantime, at least we have a simple technique for balancing fidelity and transparency.