On Equivalence When Translating Legal Texts

170410446  In a recent talk with colleagues, the issue of translating the Greek term “μονομελές πλημμελειοδικείο” into English arose. This term, which can be transliterated as monomelés plimmeliodikeío, is used for a lower criminal court of first instance, competent to try cases of misdemeanours.

  A colleague in particular was wondering what the best translation for it was in English. The first question asked was: “To whom is your text addressed?”

  This is a very normal response; when translators are faced with the problem of rendering terms in another language, and these terms cannot be found in dictionaries, they will try to see if an equivalent exists.

  In order to determine this, however, the translator will first need to know who the target audience is, that is, whether such audience consist of natural speakers of the target language (TL) and if yes, of which country.

  This is a method that works quite well in general and is based on the premise that the TL audience must not read a text with unfamiliar terms. When translating an instruction manual, we must find how each tool is named in the target language. When translating finance, we must use the respective TL financial term. When translating literature, we must provide readers with a seamless text, in which nothing will catch their eye and make them wonder what they just read.

  The latter, however, is not always as easy as it sounds: in the case of culture-specific terms, literary translators usually find themselves at a crossroads, where they need to determine whether the relevant term plays an important part in the plot or not.

  Let me illustrate with an example: let’s say a Swede is sitting in his porch, drinking aquavit. If this is has no important bearing on the plot (because the cosmos is about to be turned upside down), the name of the spirit can be translated in any manner of ways, varying from an equivalent spirit existing in the TL country to a simple reference to it as the hero’s “drink”. If, however, the plot itself depends on that drink, then the reader will need to know more details about it. In this last case, a culture-specific term, that is, the name of the spirit, will need to be rendered in a manner that lets TL readers understand that it is something unique, something not to be found in their own country.

  However, imagine a scenario where the Greek translator would decide to use an equivalent of aquavit “because this is what we would say in Greek” and therefore had our hero sitting in his porch in Malmö drinking tsikoudia.

  This is a good translation practice example, which makes sense for most translators as it is an application of the skopos theory, almost certainly included in translation studies syllabi.

  Nonetheless, translators are often reluctant to apply the same method in specialised translations. They believe that since a technical term is used, this term must have an equivalent in the target language. And they search for it.

  If the translator happens to have had no specialised translation training -or, for that matter, no translation training whatsoever- and is thus unfamiliar with translation techniques, this search for an equivalent becomes even more persistent. This is often the case among non-specialised translators (even when they are lawyers) who, for one reason or the other, need to translate a legal text from or into English. In the seminars I teach, after a source language (SL) term has been thoroughly analysed in class, I have frequently heard an exasperated student exclaim “But this is completely absurd!” “How on earth are we going to say this in Greek? We don’t have anything like this!” they continue.

  We can see therefore that the law is not a very ordinary field of translation. There is extensive literature as to why that is, but let me summarise by saying that the law is intricately bound with the culture of the country in which it is used. This means that it is not an ordinary scientific field such as finance, where, for instance, a swap is a swap no matter the country in which it is entered into.

  Many examples could be used to illustrate this point, but let’s use this one: even lawyers need to specialise. A family law attorney will not lightheartedly advise on financial crime matters. However, she will not advise even in her own field of expertise if the matter involves another jurisdiction – let’s say divorce proceedings between a US and a UK national. In that case, she would need to study the rules and statutes of the opposing party’s jurisdiction in order to be able to give her client sound advice. The fact that the language of the law would in both cases be English is irrelevant.

  Applying this example to legal translation, we can say that translating legal texts between two languages bound to different legal systems, such as common and continental law, can be more challenging than it seems, even for people who have legal training.

  Let me go on with yet another example. I was recently faced with the dilemma of how to translate the term “discovery” into Greek. Discovery, in common law and international arbitration proceedings, is the pre-trial stage where one party lets the other party know what type of documents is in the first party’s possession. Simple, the translator whose text I was reviewing apparently thought, this is the “mandatory disclosure of documents” we have in Greece.

  Well, not exactly.

  During discovery in common-law jurisdictions, not only may a list of available documents be presented, but also witness interviews may be carried out, as can onsite investigations or depositions. The Greek equivalent for that is nonexistent. Similar proceedings may be followed, and the same result may be achieved in other ways, but if we were to translate “discovery” by its rough Greek equivalent, we would convey a wrong impression about how common-law proceedings are held.

  We cannot, therefore, talk about a legal “language”, be it English or Greek. Legal terminology is linked with the system to which it refers, not to the language in which such system is expressed (cf. Pommer 2008). We could also argue here that even extensive knowledge of one legal system is not really helpful if the translator is unfamiliar with the other. To put it simply, no matter how well-versed a translator can be in TL law, when the SL law is quite different, the translator will not only need to truly understand the SL terminology, but to also be equipped with thorough translation techniques in order to avoid using forced equivalents and thus mislead the TL audience.

  To return to our example above, an approach that would help us deal with the lack of equivalence would be to stress that very lack. Therefore, plimmeliodikeío should be translated as “Court of Misdemeanours”, irrespective of whether a court with similar authorities exists in the TL jurisdiction.

  In this manner, the TL text readily reveals that there are fundamental differences in the criminal procedure and court system in each jurisdiction, thus alerting the TL reader to the fact that extra caution may be required to understand both.

  This can seem pedantic for many; surely such adherence to content must be exaggerated. Besides, one could ask, if we don’t use equivalents, how will the TL audience understand the SL text?

  There are many translation techniques used to solve problems such as this one, and they will be discussed here in another article. However, one conclusion may be drawn: that the quest for equivalence when translating legal texts with culture-specific terms often can and should be abandoned.

Mata Salogianni

Mata Salogianni

mata [at] tiptionary.eu
Mata Salogianni is a legal, financial and literary translator. She is also a legal translation tutor. She speaks English, French, Portuguese, Italian and Turkish and has translated into Greek books from most of these languages.
Mata Salogianni
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