By Ruth Gámez and Fernando Cuñado (Traducción Jurídica)
This post summarizes our presentation at the most recent ATA annual conference. ATA’s annual conference is the largest meeting of translators in the world, and it was an honor to have our proposal selected as one of the conference sessions. If you are interested in the issues that arise when translating English-Spanish legal texts, you might find this post useful.
To view the slides used during our presentation, please click here to download them from our website. Please note they are in Spanish, as the presentation was made in Spanish.
Terms of art
The Real Academia Española dictionary defines tecnicismos (terms of art) as follows:
RAE: 2. M. Cada una de las voces técnicas empleadas en el lenguaje de un arte, de una ciencia, de un oficio, etc. (Each of the technical words used in the ‘language’ of an art, a science, a craft, etc.)
In other words, we refer to terms that have a precise and specialized meaning in the jargon of a specific field of expertise in the sciences, the arts, a profession, or a particular activity.
How to research terms of art
Here is the process we follow to analyse particular terms and seek equivalents.
Let‘s take the procedural term of art, “affirmative defense,” as an example. Here are the steps that we take to research a new term, as follows:
- Definition and Etymology
- Research in legal resources and monolingual dictionaries
- Comparison of legal systems
- Checking and discarding possible translations
- Conclusions
It is not always necessary to follow all these steps, although they should be kept in mind. Let’s consider them in detail.
Definition and etymology
The first step is to try to find an initial definition, even if only an approximate one, based on the etymology of the term. In this case, as the term consists of two words, it is somewhat more complex. So, we will move on to the next step.
Research in legal resources and monolingual dictionaries
Our goal in this step is to understand the concept by exploring resources available in the source language.
In this case, we referred to Black’s Law Dictionary and conducted a targeted search on the Internet, which led us to Rule 8 (General Rules of Pleading) of the Federal Rules of Civil Procedure.
We found that in Anglo-American common-law systems, an “affirmative defense” to a civil lawsuit or criminal charge is a pleading asserted as a defense by the defendant or person charged.
However, it is a peculiar type of defense as it is not based on denying the facts of the alleged unlawful behavior, which would be a negative defense. Negative defense is the most straightforward. Moreover, in criminal proceedings, creating reasonable doubt regarding the alleged facts is sufficient to preclude conviction.
Comparison of legal systems
After we have understood the term, we then seek to compare it with concepts in civil law or Romano-Germanic legal systems to find an equivalent term (if any).
The first problem we note is that there is no single category to encompass defenses or mitigating circumstances in the Spanish, Colombian, or Mexican legal systems or in any other similar systems.
On the one hand, in civil law systems, the concepts of civil procedures and criminal procedure do not usually belong to the same category since they are different proceedings governed by different sets of rules and heard by different courts (this difference is not so clearly defined in the Anglo-American common law systems, particularly the U.S. system).
On the other hand, in the Romano-Germanic civil law systems, the usual references in civil proceedings are to: defensas (defenses) or excepciones (procedural defenses or motions) and in criminal proceedings to causas or causales eximentes de la responsabilidad (defenses or circumstances exonerating criminal liability).
Checking and discarding possible translations
In our profession, we often find that some concepts have no direct equivalents. Therefore, the next step before deciding on a possible translation is to discard one or more of the translations we have found in different sources.
For instance, in this example, we found it translated in Proz’s glossary as: defensa activa. The reason for dismissing this was that we checked and found very few bibliographical references to this term in civil law systems, leading us to believe this was not a truly legal term.
We undertook a brief comparative law review of the legal systems of other countries. A possible solution for the term “affirmative defense” in a text that relates to a civil lawsuit could be excepción perentoria or excepción de fondo (usual in Mexican law), as proposed in Becerra’s dictionary. We could also use excepción material (for Spain) or defensa de fondo (if for Argentina).
If, however, the text to be translated was related to a criminal offense or is a pleading in a criminal case, we would then be dealing with another branch of the law where the above translations would be useless.
In the context of criminal law, “affirmative defenses” would be akin to what the Romano-Germanic systems refer to as exenciones (exemptions), atenuantes (mitigating circumstances), or eximentes de la responsabilidad (exonerating circumstances).
Conclusions
In light of our research, we may think that it is not such a bad idea to use a literal translation, though it is something from which we, legal translators, tend to shy away.
Well, yes, and why not? We even dare to say that, given the enormous difficulty of finding comparable concepts in other civil law systems, this may be the best solution in many cases.
Therefore, we do not rule out the possibility of translating this term as defensa afirmativa, followed by the original term in English, in italics and brackets, at the first occurrence of the term.
It seems a strange conclusion, and purists may consider it unsuitable, but if, after deep research, we have not found a better solution, our best choice is sometimes a word-for-word translation.
What is jargon
Jargon is a specialized language used by people in a particular trade, activity, or social group.
It essentially affects the lexicon and comprises archaisms, neologisms, terms of art or metaphorical expressions, and other similar resources.
It seeks to make everyday words unrecognizable, giving them a meaning that identifies them as characteristic of that professional group.
Below are examples of the most common problems arising from Anglo-American legal jargon. If the example has a hyperlink, it means that we have already written about it in our blog (please click to see the entire relevant post):
- False friends: offence, termination, affirmation.
- Archaisms: Known all men by these presents.
- Latinisms: et sequentes (et. seq.), inter alia (i.a.).
- Words of French origin: force majeure, plaintiff.
- Terms with no legal equivalent: equity, trust.
- Legal doublets and triplets: terms and conditions; right, title and interest.
During our presentation, we explained the doublet Indemnify and hold harmless and suitable ways to translate it into Spanish (please click to view).
Undecipherable phrases
Anglo-American legal jargon contains many ready-made phrases coined by jurists over the centuries. Most are pompous, redundant, and archaic ways of explaining something simple. But others are not.
Some of these phrases have no real legal content; they are mere ritual formulas. However, others do have legal content and must be translated with due care, or we could jeopardize the accuracy of our translation.
We have chosen the following two examples to illustrate those with little or no legal content:
Now, this contract witnesses and it is agreed and declared as follows, (…)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed in two counterparts on the date first written above.
You have often come across these ready-made expressions in contracts, and their sole purpose is to mark the end of a section and transition to the next one.
However, some of these phrases can be difficult. As an example of ready-made phrases with important legal content (and which are frequently poorly translated into Spanish), we have chosen the following:
Notwithstanding anything in this Agreement to the contrary (…)
Subject to Clause 1 above (…)
We have found that several dictionaries translate “notwithstanding” and “subject to” in the same way when, in fact, they have opposite meanings.
We have already analyzed both expressions in detail in our blog, and we are not copying the entire entry here. However, if you would like to find out why they are very different (and how to translate them), please click on the link below:
“Subject to” no es lo mismo que “Notwithstanding”
We realize this post is rather long and has quite a few references, but believe it or not, it is merely a summary of our session. We hope you found it helpful.
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Ruth Gámez and Fernando Cuñado work together as a legal translation team for direct clients like Spanish law firms and law departments of international companies. They also work as external translators for several international organizations. They teach legal translation at Universidad de Comillas (Madrid) and have published a book called Introducción al Common Law (An Introduction to Common Law).
You can find us at:
https://traduccionjuridica.es/blog/
And also on social media:
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