By Paula Arturo, Law Division Administrator
Special thanks to Elizabeth Herron-Sweet, Law Division Assistant Administrator, for her edits and insights
One of the greatest difficulties legal translators face is unfamiliarity with terms of art and how to solve the linguistic problems those terms necessarily cause. It takes quite a bit of subject-matter knowledge to distinguish consideration as a hybrid legal term from consideration in its ordinary meaning, but well-managed lexical nuance is what separates the ordinary from the extraordinary in legal translation.
As a Language for a Specific Purpose (LSP), legal whatever-your-language-of-choice (e.g., Legal English, Legal Spanish, Legal German) will have lexical, grammatical, and syntactical characteristics of its own. At the lexical level, which is the subject of this post, legal language can be divided into two groups: (1) symbolic or representational and (2) functional.
The first group can be roughly described as containing grammatical words or phrases with no direct referents in reality or in what linguists refer to as “the universe of concepts.” But despite that lack of referents, the first group helps to bind and order words that do have referents. Confused? I’m sure you are. So let’s bring this down to earth.
Think of a word like inasmuch or hereinafter. Look around you, do you see any inasmuches or hereinafters in the real world? Of course not. That’s (arguably a gross oversimplification of) what we mean when we say that a word has no referent in the real world. These referent-less words are typically deictic words (e.g. whereas), articles (e.g. the), auxiliaries (e.g. must), modals (e.g. should), and other purely syntactic and morphological markers. Abstract though they are, they help to pinpoint what it is we mean to say.
Look at the following example:
“Wile E. Coyote, hereinafter referred to as the Contractor, will timely and competently perform the services as outlined in Exhibit A.”
Out of context, hereinafter is void of meaning, but use it in a contract and it means further on in this document, emphasis on this. In translation, symbolic or representational words are not particularly problematic. All a translator needs is sufficient knowledge of the grammatical and syntactical characteristics of their source and target language to be able to translate these terms accurately. The problem is in the second group: functional terms.
Functional terms can be divided into purely technical terms (i.e., words that are always terms of art), hybrid terms, and non-technical terms (sometimes also called “unmarked” vocabulary). Let’s take a closer look at each group.
Group 1: Purely Technical Terms
Lawyers love these. We love them because they have a very specific meaning within our respective legal systems and when we use them there is no question about what it is we are talking about – at least not amongst ourselves. Whether the rest of humankind can understand us is a different story. But the linguistic precision of purely technical terms makes our jobs as lawyers much easier.
One would think these purely technical terms would be just as beloved to legal translators. After all, their defining characteristic is linguistic precision and what could make a translator’s job easier than a single perfect word that means exactly what we need to say?
The problem, of course, is not linguistic, it’s legal. But it’s the cause of many a legal translator’s headaches. Allow me to explain. Imagine you’re a medical translator translating a highly technical text on neurosurgery. The text is complicated and, like all other areas of technical translation, it requires significant subject-matter knowledge and comprehension. You will definitely need to do your homework, research vocabulary, find and create glossaries, etc. But here’s what’s not going to happen: your subject matter won’t shift across languages. A brain will still be a brain in any language. A scalpel will still be a scalpel. Once you understand what the neurosurgeon did to that brain with that scalpel, you’re ready to translate. It stands to reason that what we just said about medical translation can be extrapolated to every other technical field.
Legal terminology is not, I repeat not, always equivalent across legal systems. An injunction is not an injunction in every language. And even if we understand what Legal Actor A does with that injunction within Legal System A, little or none of that may apply to Legal System B.
A precise word like Tatbestand in the German legal system makes perfect sense to German lawyers. It exists for them in their universe of concepts. It’s defined in German specialist literature. It’s referenced in the German criminal code. It’s used by scholars, courts, and lawyers alike. Any practicing attorney in Germany, even one that doesn’t specialize in criminal law, will know what you mean when you say Tatbestand.
Other legal systems, like those of Spain and Argentina, don’t use the German word Tatbestand, but have a concept that means Tatbestand. That concept is known as tipo penal (for an interesting analysis of the linguistic considerations behind the Spanish term, see the translator’s note in Stratenwerth pg. 61). Thus, there is formal equivalence between the German Tatbestand and the Spanish tipo penal because there has been cross-fertilization between the two legal systems.
Now try to translate the concept of Tatbestand/tipo penal, using a single term, for an American lawyer to understand. You can’t. Because, despite its linguistic precision in both German and Spanish, there is no such concept in the American legal system. Of course, as a legal translator you can resort to functional equivalence or non-equivalence, you can use translator’s notes, etc., but that doesn’t make the term less problematic, does it?
So, in legal translation, the fact that a technical term is linguistically precise in the source language does not necessarily mean you can achieve that same precision in the target language. That kind of precision requires a term that is not just linguistically but also legally equivalent. In plain English, the concept’s referent would have to be the same in both legal systems. Think of a word like constitution: if you’re working with American English and Mexican Spanish, the referent is similar enough for constitution and constitución to be formally equivalent. The content of each specific constitution will vary significantly, but when we think of a constitution or a constitución, we get the exact same idea of what that is.
But that’s never the case with true terms of art. Think of a word like tort. While every modern legal system is likely to have a concept of tort as some kind of wrong (be it civil or criminal), in the U.S. what qualifies as a tort might be a civil wrong, while somewhere else in the world, the same wrongdoing may be a criminal wrong. Defamation, for example, is a tort under American law, but a crime under Argentine law.
To further complicate things, even within the same language a word may not mean the same thing across different legal systems. Above I used the word crime in English to classify defamation under Argentine law, and while crimen may be an acceptable translation of the word crime in Mexico (where, according to some authors, the words crimen and delito are used interchangeably), that translation would not be acceptable in Argentina because, for the most part, Argentine law reserves crimen for crimes against humanity and other international law violations and instead uses the term delito for most crimes under domestic law.
Because technical terms are so system-dependent, many theorists believe they are true terms of art and that, as such, they can’t be translated. For that reason, true terms of art are very often left in the source language. However, recognizing true terms of art as such requires knowledge of the scope of the term itself in the legal system that spawned it, which in turn requires significant subject-matter expertise from the translator.
Group 2: Hybrid Terms
Unlike true terms of art, hybrid terms are polysemic and consist of common words or phrases that have acquired a specific meaning in legal language by a process of analogy. Naturally, hybrid terms lack the linguistic precision of true terms of art and their precise nuance is context-dependent (a feature true terms of art lack, i.e., a tort under American law is always a tort under American law, regardless of context).
Think of a word like execute in the following contexts:
- “Once the contract was fully executed, the parties owed no further contractual duties to each other.” In this example, execute means to perform.
- “The shifting use was executed into a valid legal estate.” Here, execute means to change (as a legal interest).
- “Wile E. Coyote asked the sheriff to execute on the judgment.” But, in this context, execute means to enforce and collect on a money judgment.
And the list goes on…
Because hybrid terms are context-dependent and not system-dependent, there is likely to be a functionally equivalent term in the target legal system for translators to use.
Group 3: Common Terms
Lastly, as Languages for a Specific Purpose, legal languages will always contain ordinary terms that preserve their plain meaning as used outside the scope of the law. A perfect English example is the term summarize, which means the same thing whether Billy summarized a book for French class or a judge summarized the facts of a case before handing down her judgment.
So what do we do with all these terms and classifications when we’re translating? Several things. We need to identify whether our problem term is a true term of art, a hybrid or just a common term in legal contexts.
If the term is a true term of art, you have important decisions ahead as a translator. Those decisions won’t be easy to make, but if you’ve correctly identified a true term of art, at least you have sufficient subject-matter expertise to confidently make and justify them should they be challenged by your clients.
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About the Author
Paula Arturo is a lawyer-linguist and Professor of Law. Throughout her 20-year career, she has translated the works of six Nobel Prize laureates and high profile authors from Yale Law School, NYU, and the University of Buenos Aires, among others. As an independent lawyer-linguist, she translates shadow reports for the United Nations Universal Periodic Review of several Latin American States, helping non-profit and grassroots organizations have a voice before the Human Rights Council. Through her online legal writing and translation academy, she helps legal and linguistic professionals alike to hone their skills and get their messages across accurately. Committed to the professionalization of translation and interpretation, she serves her professional community as administrator of the American Translators Association’s Law Division and co-head of legal affairs at the International Association of Professional Translators and Interpreters.