As we have seen here and here, translating legal texts can be tricky. Often a literal translation is not possible or would not make much sense. Therefore, 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. Below is a description of the two-step process of legal translation.
First Step: Looking for Equivalent Legal Terms
If the legal terms are equivalent, they can be translated literally. For instance, there is no reason to create a complicated German circumscription for contract. Yet, one should avoid translating legal language into colloquial words. Furthermore, there may be pitfalls and legal terms that seem to have a literal translation could in fact be more complex in nature. Thus, it may be tempting to blindly translate the French erreur (mistake) with the German Irrtum, yet in reality some erreurs are treated under the German Wegfall der Geschaeftsgrundlage (fundamental change of circumstances). In these cases, it is absolutely essential to have proper knowledge not only of the meaning of a legal term, but also of its function within the whole legal system. In fact, full equivalence of legal terms is very rare. Instead there may be near full equivalence depending on legal development and context.
Second Step: Finding Subsidiaries in Case of Too Much Discrepancy
If there is no equivalence of legal terms, a translator has 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 the purpose of a translation. Sometimes all three solutions can be found within the same translation. Out of my personal experience, however, paraphrasing should be the standard. Although providing a definition instead of a translation may restrict the word flow, neologisms or no translation requires that the reader is well acquainted with the technical term – which in a translation seems rather paradox. Also, only paraphrasing ensures that legal concepts are spread across borders.
Gerard-René de Groot, Legal translation, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 423-433 (Jan Smits ed., 2006).