Whether you are studying a foreign law, are writing about it, or have to advise others on it, finding the right words is not always easy. Often a literal translation is not possible or would not make much sense. Once again, proper knowledge of the foreign legal system is key. That is why comparative law and legal translation are inextricably intertwined … and why comparative lawyers should master the basics of legal translation. [In fact, at my alma mater the University of Passau in Germany, translating legal texts was an integral part of the foreign law education.] In the following, I will give you a few tips on how to tackle a legal translation challenge.
First: Look for Equivalent Legal Terms
This is the most straightforward solution. If the foreign law uses a similar term as your own language, use it. E.g. there is no reason to create a complicated German circumscription for contract. Yet, be careful! Do not translate legal language into ordinary words. Furthermore, there may be pitfalls. It may be tempting to blindly translate the French erreur (mistake) with the German Irrtum, yet that is only half of the story … some erreurs are treated under the German Wegfall der Geschaeftsgrundlage (fundamental change of circumstances). Here again, comparative law comes into play and you have to consider not only meaning and function, but also system and structure. By the way, full equivalence is only considered for cases of multi-lingual legal systems, otherwise there may be near full equivalence depending on legal development and context.
Second: If Divergence Is Too Great, Find Subsidiaries
More often than not, however, you will come to a point in your translation where equivalence is not an option. In such a case, you will have to find subsidiaries. Usually, subsidiaries are expressed in one of the three following ways:
- no translation: the foreign term is preserved and incorporated into the translation;
- paraphrasing: the foreign term is incorporated into the translation via definition;
- neologism: a new term is created in the translation usually on the basis of Roman law terms. [Strictly speaking, the first point - no translation - is also a form of neologism!]
It depends on the particular circumstances which of the above subsidiaries best fits your purpose and you may use all of them at one point or another in your translation. Out of my personal experience, however, paraphrasing is usually your best bet. Although providing a definition instead of a translation may restrict the word flow, neologisms or not translating the term at all requires that the reader is well acquainted with the technical term. Keep in mind that the reader has to be able to understand your translation without using a dictionary himself!
———————–
Source
Gerard-René de Groot, Legal translation, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 423-433 (Jan Smits ed., 2006).
