Legal translation is particularly difficult for variety of reasons, one of them being the role the translated text plays in society.
There are three major sources of difficulty in legal translation (Cao 2007: 23-32): differences in legal systems and laws, linguistic differences, and cultural differences. These three problematic areas are closely intertwined. Linguistic differences result from differences in legal systems and law, which in turn are products of cultural differences. In other words, each culture has its own legal system, and each legal system has its own legal language. Although various legal systems can belong to different legal families (which differ enormously), differences within systems of the same family occur too. Each system has its own legal apparatus, conceptual structure, rules of classification, sources of law, methodological approaches and socio-economic principles (Šarčević 1997: 13). As a result, when translating legal texts we inevitably deal with translating one legal system into another and for that reason legal translation is regarded as one of the most difficult types of translational activity. It involves not only linguistic skills, but also a good knowledge of the source legal system and the target legal system (de Groot 1987: 797).
The major difficulty in legal translation is the translation of legal concepts; they are unique to a particular system. Legal language is a technical language; a language for special purposes (LSP). However, it differs from other LSPs, such as technical or medical, because it is not international and standardised; it is unique to each national legal system.
Comparative law lies at the basis of legal translation – the translator must be able to compare the legal content of source language (SL) terms with the legal content of terms in target language (TL) (de Groot 1987: 797). The problem does not lie primarily in the linguistic differences (although these should not be underestimated) as in the extent of affinity of the legal systems (de Groot 1987: 798). If the legal systems in question are related, then the translation should not pose major difficulties, even if the legal languages are distant. The major difficulty arises when incongruities are found during comparison of two legal systems (de Groot 1987: 800).
The two most common legal families are the Common Law and the Civil Law, and all of the Western national legal systems belong to either of those (Merryman 1981: 358). The Civil Law has its origin in Roman law (Tetley 2000: 683) and is based on legislation – ‘a body of general principles carefully arranged and closely integrated’ (Dainow 1966-1967: 424). The basis of the Common Law, which evolved in England from the eleventh century (Tetley 2000: 684), is a judicial decision – court’s decision is not only binding for the parties, but it also becomes a precedent and has to be followed in future cases as a part of general or common law (Dainow 1966-1967: 424-425). The two families differ substantially in terms of concepts, institutions and domains of law. There are concepts in the Civil Law family that are unknown to the Common Law systems, and vice versa (Cao 2007: 56). If apparently equivalent legal concepts exist, they may in fact not be equivalent, because they may have a broader or a narrower meaning.
It is important to realise that national legal systems belonging to the same legal family can differ substantially too, and translating legal concepts between such systems can be as ‘dangerous’ as translating between different legal families (Dainow 1966-67: 419; Onufrio 2004: 6).
Potential implications of wrongly translated legal texts are serious. Jody Byrne (2007: 5) gives an example: an error was found in the German version of Directive 70/220/EEC, which deals with technical and safety requirements for vehicle fuel tanks. The word ‘fuel’ is translated into German as ‘Benzin’ (‘petrol’), instead of the equivalent ‘Kraftstoff’ (‘fuel’). He claims that this mistake could be financially very costly for a manufacturer who designs a diesel tank taking into account the misleading mistake. When the error comes to light, it would be necessary for the manufacturer to recall, redesign and retrofit his wrongly designed product. Such errors prevent legal instruments from regulating and standardising according to the intention of the legislator. There are plenty of other examples like this one. But errors in translations of the law affect not only those who should obey the law; it can have serious consequences for the translators too as they can be held liable for their errors. Although there is not a one court case in which a translator was found liable, this is certainly a possibility (ibid: 3).
by Nina Szymor MA DPSI MCIL http://www.linkedin.com/pub/nina-szymor-ma-dpsi-mcil/3b/b03/434