Volume 1, Issue 3

April 2003
Issues in Legal Translation*
by Steven Kahaner
... not every man is able to give a name, but only a maker of names; and this
is the legislator, who of all skilled artisans in the world is the rarest ... And
we must remember that different legislators will not use the same syllables.
For neither does every smith, although he may be making the same instrument
for the same purpose, make them all of the same iron. The form must be the
same, but the material may vary, and still the instrument may be equally good
of whatever iron made, whether in Hellas or in a foreign ountry; ! there is no
differene."
....#ut we may admit so muh, that the knowledge of things is not to be
derived from names. $o; they must be studied and investigated in themselves
... and no man of sense will like to put himself or the eduation of his mind in
the power of names; neither will he so far trust names or the givers of names
as to be onfident in any knowledge whih ondemns himself and other
e%istenes to an unhealthy state of unreality;..."
Plato, Cratylus (Jowett translation)
According to Plato, words are unreliable guides to the ideal (the goal of all
knowledge) because one cannot know how good a job the lawgiver did in
aking the, and because they have subse!uently been subject to change on
the "art of #$"eo"le who care nothing for the truth, but only for the sha"e of
their ouths%$&
'
(ikewise, lawyers ust often face a contrast between an ideal vision of #the
law& and the reality of legal life, which is ade u" less by statutes carved in
stone than by "recedents subject to inter"retation%
)
*hese difficulties are
co"ounded in the cross+border conte,t due to the additional co"le,ities of
different languages as well as different legal systes%
-n solving international legal "robles, a lawyer will be dealing with words,
and accuracy in a written legal docuent de"ends largely on word selection,
synta, and good sentence structure% *he lawyer ust then de"end on a
translator to render the words he uses in a legal docuent into another
language%
.
Conversely, a lawyer in international "ractice will often re!uire the
services of a translator to render foreign docuents (usually drafted by an
1
* Copyright 2003. Steven M. Kahaner, Esq.
Joseph, John E., Indeterminacy, Translation and the Law, in Translation and the a!, "#eri$an Translators
"sso$iation S$holarly Monograph Series, %ol&#e %''', 1((), p. 2(.
2
'd., p. 22.
3
"delo, ". Sa#&el, Legal Translators and Translations, Case and Co##ent, *ov.+,e$. 1(-).
Volume 1, Issue 3
April 2003
attorney subject to e!ually deanding re!uireents relating to word selection,
synta, and sentence structure) into the lawyer$s native language%
/nfortunately, lawyers often underrate the i"ortance of selecting a good
translator to acco"lish these i"ortant tasks%
(egal translation is often ore difficult than other ty"es of technical
translation because of the syste+bound nature of legal terinology% /nlike
scientific or other technical terinology, each country has its own legal
terinology based u"on the "articular legal system of that country, which will
often be !uite different even fro the legal terinology of another country
with the sae language%
*he syste+bound nature of legal te,t eans that successful translation into
another language re!uires co"etency in at least three se"arate areas0 first, a
basic knowledge of the legal systes, both of the source as well as of the
target languages1 second, failiarity with the relevant terinology1 and third,
co"etency in the s"ecific legal writing style of the target language%
2
3ithout
these co"etencies, the translator$s rendition will be a word+for+word
translation, which is often inco"rehensible%
*hus, the "rofessional legal translator ust be "art linguist,
"art legal scholar and "art detective, willing and able to
search out and define legal conce"ts e,"ressed in the source
language of a docuent that ay not even be known in the
language or legal syste of the target te,t% *he translator
ust first deode the source te,t and reconstruct its eaning
in the target te,t% -n any cases, the translator is liited to
finding a functional e!uivalent for a word or "hrase or a
"arenthetical e,"lanation because an e,act translation is
i"ossible%
A good legal translator also knows that even within the legal field there are
co"letely se"arate areas of the law which re!uire s"ecific translation
techni!ues0 a contractual docuent has little in coon with a will, an
adinistrative certificate, a judicial decision or a statute, to nae a few
e,a"les% *he translator knows that he ust consult not only a onolingual
legal dictionary, but also a treatise regarding the subject atter, and that
bilingual dictionaries, while useful, should be treated with ske"ticis%
4inally, the "rofessional legal translator ust understand the intended use of
the translation, which has as uch bearing on the translator$s a""roach to
.
S#ith, Sylvia "., Culture Clash: Anglo-American Case Law and German Civil Law in Translation, in Translation and
the a!, "#eri$an Translators "sso$iation S$holarly Monograph Series, %ol&#e %''', 1(().
Volume 1, Issue 3
April 2003
translation as the te,t of the docuent itself% *erinology, "hraseology,
synta,, register (tone) and a yriad of other "araeters will be affected by
the "ur"ose of the translation (e%g%, is the translation for inforation "ur"oses
only, binding contract language, or for subission as evidence in court5)% As
source+te,t docuents are not always well+written or clear, the translator ust
first decide whether the source te,t is unintelligible to the layen but not the
e,"ert, or si"ly unintelligible, in which case the translator would have to
decide whether a faithful translation of the eaningless original should be
e!ually eaningless in the target language, des"ite the "ain of deliberately
creating nonsensical te,t%
6
3hen faced with international dis"utes involving different languages and legal
systes, legal counsel and their clients would be well advised to obtain the
services of translators able to successfully bridge the divide of legal systes, as
well as language and culture, in order to "rovide literate rather than literal
translations%
7
4inally, attorneys involved in international litigation should be aware of a
recent /K case involving the translations of a "arty$s own non+"rivileged
docuents% -n &umitomo 'orporation v 'redit (yonnais )ouse (td, the Court
of A""eals held that in the conte,t of legal "rofessional "rivilege, there was no
relevant distinction between a translation of an un"rivileged docuent
controlled by the "arty claiing "rivilege and a co"y of such docuent%
8ecause the translations were not original docuents, "rivilege would only
attach under certain liited circustances% As a result of this decision,
o""osing "arties will in ost cases be entitled to co"ies of translations fro
the other "arty on "ayent of the co"ying fee, without sharing in what can be
substantial translation costs%
9
&teve *ahaner is the +%eutive ,iretor of verson -.)/&')/#+. He is a
founding member of the Assoiation of (anguage 'ompanies 0A('1. &teve an
be reahed at sk:juriscribe+online%co%
)
Mi//elson, 0olly, Awareness of the Language of the Law and Preservation of Register in the training of Legal
Translators and Interreters, on+line arti$le at http122!!!.a$e3o.$o#2papers2leglang.ht#.
-
See "delo, Legal Translators and Translations, id.
4
!ee 56rivilege1 translations a/in to $opies7 , 8K itigation 9 ,isp&te :esol&tion a! arti$les in asso$iation !ith
0er3ert S#ith, availa3le online at http122!!!.legal)00.$o#2devs2&/2;ra#e2lt;ra#e.ht#.