Balancing Fidelity and Transparency: Introducing a New Post Series

According to both Mellinkoff and every experienced legal translator and/or lawyer-linguist everywhere, legal discourse is formulated in a specific language or sublanguage that is known as “the language of the law” (Mellinkoff 1963). Like all other languages, the language of the law has its own syntactic, semantic, and pragmatic rules which form basic means of communication between legal actors. Because of that, the language of the law is considered by linguists to be a Language for a Specific Purpose (LSP); however, it is unique and different from other LSPs in that, unlike other technical language which is typically universal, the language of the law is the product of specific historical and cultural events that vary significantly from one jurisdiction to another.

All languages serve the obvious function of communication. And, needless to say, so do LSPs. But the language of the law serves two main additional functions: one regulatory and the other informative. This dual function is what Hans Kelsen denominated the prescriptive and descriptive function of the language of the law (Kelsen 1991). According to him, legal discourse can be further divided into primarily descriptive (laws, regulations, contracts, and treaties), primarily descriptive but also prescriptive (judicial decisions and instruments), and purely descriptive (legal scholarship). And all these questions of function of the language of the law basically boil down to one even bigger question philosophers and legal scholars have been trying to answer for at least 2400 years (at least in the West). The question? “What is law?” of course!

Why does this matter to translators? Because how the language of the law goes about prescribing and describing is radically different from one jurisdiction to another. And, as all legal translators already know, there aren’t always legal or linguistic equivalents between those jurisdictions, which is why the question of equivalence in legal translation is particularly complex.

So, what are we talking about when we talk about equivalence? In translation specifically, we’re talking about translational equivalence, which can be defined as the parity or sameness between a word or expression in one language and its translation in another. Some scholars believe equivalence to be an illusion (Snell-Hornby 1988) while others reject the concept of equivalence altogether, replacing it instead with that of adequacy (Reiss and Vermeer 1984).

Mona Baker takes the discussion a step further, exploring equivalence at a lexical, grammatical, textual, and pragmatic level, ultimately concluding that “translators must not underestimate the cumulative effect of thematic choices on the way we interpret text” (Baker 1992), which in plain English boils down to: pay attention to the lexical, grammatical, and textual levels, without losing sight of the pragmatic level. Or, as I regularly teach my students: pay attention to how you interpret your source text!

In this post series, we’ll explore equivalence in legal translation and how we can improve our translations by having a better grasp of formal, functional, and non-equivalence. Join me next week for part 2: Formal Equivalence.

Bibliography

Baker, Mona. 1992. In Other Words: A Coursebook on Translation. London: Routledge.

Gargarella, Roberto. n.d. Yale Law School - Lo "viejo" del "nuevo" constitucionalismo latinoamericano. Accessed February 18, 2019. 

Harvey, Malcolm. 2002. "A Beginner's Course in Legal Translation: the Case of Culture-Bound Terms." Translators' Journal 177-185.

Kelsen, Hans. 1991. The General Theory of Norms. Oxford: Clarendon Press.

Kerremans, Koen, Vanessa Andries, and Rita Temmerman. 2016. "Studying the Dynamics of Understanding and Legal Neologisms within a Linguistically Diverse Judicial Space: The Case of Motherhood in Belgium." Procedia - Journal of Social and Behavioral Science 46-52.

Mellinkoff, David. 1963. The Language of the Law. Boston: Little, Brown & Co.

Reiss, Katharina, and Hans Josef Vermeer. 1984. Groundwork for a General Theory of Translation. Tubingen: Niemeyer.

Snell-Hornby, Mary. 1988. Translation Studies: An Integrated Approach. Philadelphia: John Benjamins.

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