Translation and the Law
Ed. by Marshall MORRIS, 1995, viii, 344 pp (American Translators Association Series; Vol. 8), ISBN 90 272 3183 4, Hfl. 130,- (Hb).
Reviewed by A. C. Liang,
Dept. of Linguistics,
University of California
This collection of papers brings together academicians and practitioners to address the issue of translation in the legal context. The range of backgrounds represented by the authors–comprising translation, linguistics, literature, and legal scholars; and nearly a dozen credentialed translator and interpreters, many of whom hold teaching positions in translation, linguistics, and foreign languages–attests to the complexity and interdisciplinary nature of the topic. The motivation behind the book, practice and theory mutually informing the other, is a noble one. The book largely succeeds in illustrating the point in an understandable way.
Several unifying themes clearly emerge. First, translation is not simply a matter of a mechanical literal word-for-word, or for that matter, sentence-for-sentence translation. Rather, languages are culturally situated and therefore imbued with a particular history of textual meanings which constrain even as they permit new interpretations and usages. Proficiency in the mechanics of the source and target languages is only a first step toward being a good translator, necessary but far from sufficient, especially in the legal context where an accurate translation can mean the difference between life and death.
Second, because there can never be perfect equivalence between languages, regardless of how closely related they are, accuracy in translation is determined less by the literalness of the translation than by the extent to which the function of the original text is captured, as well as the extent to which the intended use to which speakers of the target language will put it is fulfilled. Third, because of this inherent lack of equivalence, the translator can never truly be invisible. In deploying an act of translation, a translator necessarily creates a new text and imparts her own interpretations to the translated text.
However, the book suffers from lack of cohesiveness. It begins with an editor’s preface that provides a survey of the articles. The book is divided up into four sections: Section 1: Translation and the Language of the Law, Section 2: Responding to Change and to Difference, Section 3: Professional Issues, Professional Practice, and Section 4: Persons, Laws, and the Presence of the Translator. Within any given section, the connections among the individual papers or to the section theme are not always apparent, nor does Morris explicate them, other than to describe in a sentence or two under the associated section heading the point of each paper.
Additionally, the citation of an excerpt taken from James Boyd White’s Justice as Translation introduces and presages the ambiguous uses of the term translation throughout the book. White uses the term as an analogy for what judges do in interpreting legal texts. In the articles proper, however, translation is used in the usual sense to designate the process of rendering a text from the original source language into an equivalent in the target language. There are also at least two other less conventional usages which appear: what linguists mean by the term borrowing, and the platonic meaning, both introduced, though not defined explicitly, in John Joseph’s article “Indeterminacy, translation, and the law.” Given this range, a review of the definitions used in this book would have been helpful.
Joseph’s article begins the first section and is an erudite analysis of linguistic indeterminacy from a historical perspective, with implications for the translation of legal texts. In view of the collection as a whole, the paper is somewhat anomalous, particularly if the intended audience is, as stated in the original call for papers described in Morris’s preface, the general reader, it is one of the longest and by far the most theoretical. This section, moreover, comprises one example of the opacity of the relationship among the articles and between the articles as a collective and the section theme. Since Joseph is concerned with the historical processes leading to the disappearance of the authors of legal texts, his paper might have been grouped with the two other papers (those by Morris and Stone) with an academic, historical orientation.
The second paper in the section, Michael Cooke’s “Understood by all concerned? Anglo/Aboriginal legal
translation,” considers the problem of translating a legal explanation of a controversial decision from English into an Australian Aboriginal language. He describes the difficulty of the translation process: Cultures and languages as disparate as those of Djambarrpuyngu and English necessitate that the translator fill in semantic, pragmatic, and cultural gaps in meaning, thereby producing a new text that may stray from the original. Delineating the process of devising a solution to the translator’s dilemma, Cooke persuasively demonstrates that the translator must “interpret the law as well as the language” (p. 61).
Section 2: Responding to Change and to Difference comprises the largest section in the book, and encompasses nearly half of the sixteen articles. A subset investigates the meeting of two legal systems and analyzes the intricacies of translating between them: Cornelia Brown’s “Riding the waves of fortune: Translating legislation of the successor Soviet Republics”; Vicki Beyer and Keld Conradsen’s “Translating Japanese legal documents into English: A short course”; Sylvia Smith’s “Culture clash: Anglo-American case law and German civil law in translation”; and Keneva Kunz’s “Where the devil meets his grandmother: Iceland and European Community legislation.” Each of these papers delineates problems and procedures specific to the translation of texts in cultural settings that are in the midst of political reorganization or internationalization. The papers by Brown and by Beyer and Conradsen examine particular texts in detail, whereas Kunz and Smith approach the topic from a systemic legal standpoint.
The remainder of the articles in Section 2 are unified by their sociolinguistic and linguistic pragmatic orientation. In her article “The use of translators and interpreters in cases requiring forensic speaker identification,” Kate Storey, a forensic linguist, outlines the process by which speakers of languages unknown to the analyst are identified by the collaborative work of linguists, translators and interpreters. She is not concerned with translation per se, but with the sociolinguistic analysis of audiotape-recorded voices to account for dialectal, register, and acoustic differences for speaker identification purposes. Likewise, Timothy Dunnigan and Bruce T. Downing’s “Legal interpreting on trial: A case study” and Mary Bucholtz’s “Language in evidence: The pragmatics of translation in the judicial process” are less concerned with the mechanics of translation. Rather, they emphasize the social and legal consequences when cross-linguistic courtroom proceedings rest on erroneous understandings of language and translation. Their cogent analyses convincingly demonstrate how a linguistically informed approach to the bilingual courtroom can respond effectively to real world problems in the administration of justice.
The articles in Section 3: Professional Issues, Professional Practice contend with some of the issues having to do with the performance and role of the translator. In her article “On the horns of a dilemma: Accuracy vs. brevity in the use of legal terms by court interpreters,” Holly Mikkelson explores the concept of murder in English and Spanish in order to develop a glossary which will enable court interpreters to satisfy the requirement of “precision and language economy” (p. 201) needed in the courtroom. The general research process that she illustrates in establishing equivalents for the concept of murder in Spanish and English is sufficiently detailed for application to other concepts in other source and target languages.
Janis Palma’s “Textual density and the judiciary interpreter’s performance” takes a considered approach to the question of legal translation from a cognitive standpoint. When texts are logically and structurally simple, and the topic is familiar to the interpreter, the text is said to be low in density. The greater the density of a text, the more taxing on short term memory it is, and the more difficult the text will be to translate. In view of the effects of textual density on the cognitive process of translating between the source language and target language, Palma urges the interpreter to develop her short term memory capacity and to evaluate the textual density of the source language and the possible expansion effects (i.e., creating a more voluminous text) in the target language. Along with a general familiarity of the source culture and a specific understanding of the topics being translated, the interpreter can thereby render the best possible translation with the highest efficiency.
Matt Hammond’s “A new wind of quality from Europe: Implications of the court case cited by Holz-Manttari for the US translation industry” describes a Swiss court case ruling that a translation which served its intended function was a good translation regardless of the degree of its adherence to the original source text. He suggests that this ruling may have reverberations for the translation industry in the US because translators will be recognized as intercultural consultants who create a text rather than as invisible intermediaries in the translation process. Illustrating the point made in Hammond’s paper, Gerhard Obenaus’s “The legal translator as information broker” observes that literal translations are secondary to the overall function of a text when it comes to translation, and that the same source text may yield two different translations, depending on the use to which the text will be put. Since the legal translator is expected to attend to the situational and cultural context in which a text originates in order to produce an adequate translation, she must have familiarity with the subject matter pertaining to the text which she is
translating. Obenaus suggests that proficiency in the retrieval and management of online information resources should be made a requirement in the accreditation of legal translators. In an appendix to his article, he proffers a by now somewhat outdated overview of the kinds of information resources accessible via the Internet.
In Section 4: Persons, Laws, and the Presence of the Translator, Ruth Morris begins where Joseph left
off, with her “Pragmatism, precept and passions: The attitudes of English-language legal systems to non-English speakers.” Morris’s article is a comprehensive, and perhaps subtly ironic account of the shift from a historically multilingual administration of English law to the “resolutely monoglot systems” (p. 263) that are operative today. Drawing connections between these historical events and contemporary attitudes toward speakers of languages other than English in the courtroom, she notes in her conclusion:
The feelings of frustration, resentment, and disempowerment resulting from inability to understand and hence participate meaningfully in judicial proceedings are illustrated by the language and sentiments of Englands Courts of Justice Act 1731 [the last of a series of attempts, beginning four centuries earlier, to administer the law in English rather than Latin or French] just as vividly as they are by Callejo’s picture of the Spanish-speakers situation in the California justice system nearly 250 years later. [p. 275]
In her “Las Siete Partidas in America: Problems of cultural transmission in the translation of legal signs,” Marilyn Stone also discusses legal translation from a historical perspective. She elucidates the legislative history of the Spanish Old and New Worlds, embodied primarily in Las Siete Partidas. These were books of law devised in 13th C. Spain to standardize the rule of law throughout the land. After it was adopted in the Spanish New World, it left its traces in modern US law, in both the original Spanish and translation to English, and possibly, to Louisiana French. Stone suggests that the study of how borrowings from Las Siete Partidas in American legal discourse have evolved can shed light on the ways in which American society has changed over history.
Finally, Helge Niska’s paper concludes the section and the anthology. It is one of the few papers in this anthology which discusses the role of the interpreter as a social actor in an institutional transaction. Niska talks about the stances (e.g., identification with the foreigner) and roles (e.g., expert witness) of the interpreter as perceived by other courtroom participants, and how these perceptions along with institutional constraints on what can be said and how it can be said affect the interpreter’s ability to accomplish her work.
This collection of papers represents a good start to combining the efforts of academicians and practitioners, and therefore of fully realizing Morris’s claim that “all the practitioners are thinkers, all the thinkers are practitioners” (p. 1). The papers demonstrate that much work remains to be done in integrating theoretical and practical implications. This should be seen as an exciting challenge to linguist, translators, and lawyers and legal scholars.
[Received February 1997]