Table of Contents
2. State of the Art
2.1 Translation Studies and Languages for Specific Purposes (LSP)
2.2 What is a (good) translation?
2.2.1 The translation
2.2.2 The “free” versus “literal” translation debate
2.2.3 Equivalence of meaning in translation
2.2.4 Official quality standards
2.3 Legal language
2.3.1 Languages for Specific Purposes (LSP)
2.3.2 Word meaning of LSP versus everyday language
2.3.3 Legal language use
2.3.4 Particular difficulties in translating legal terms
3. Theoretical Foundation
3.1 The Dialogic Action Game
3.1.1 The Action Principle, the Dialogic Principle and the Coherence Principle
3.1.2 Rules versus conventions
3.1.3 The speech act
3.1.4 The quasi-universal structure and predicating fields
3.1.5 The expression side
3.2 Legal action games
3.2.1 Functions the model must fulfill
3.2.2 Legal thinking as a part of the action game
3.2.3 Representative, directive and explorative action games
3.3 Possible solutions in legal translation
3.4 Discussion of the methodological approach
3.4.1 The aim of the analysis
3.4.2 Corpora in the comparative analyses
3.4.3 Implementation of the comparative analysis
4. Comparative Analysis of translations of English, German and French Legal Terms
4.1 Conscientious objection
4.3 Protection of personal data
4.4 Right to asylum
5. Summary and Outlook
The European Community1 was founded in 1957 when Belgium, France, Germany, Italy, Luxemburg and the Netherlands signed the Treaty of Rome. Since then, the number of Member States who have joined the European Community has increased to twenty-seven. The EC has not only become a complex organization with a great multitude of languages, but also of political systems, cultural values and legal backgrounds. Its structure can only function effectively if the relationship between the Member States and the EC is clearly defined. Most importantly however, all laws must apply uniformly and therefore have to be translated into the twenty-three national working and official Member State languages (cf. Sims 2001: 160). As every citizen must have the possibility to read important texts in their mother tongue the translated versions have become valid EU documents along with the originals. Legal translation is considered to be one of the most challenging translation types due to its specificity and the system-bound nature of legal texts.
Living in a society of extreme multilingualism is not new to European history but such a situation seems to have become imminent again in the European context. One only has to think of the multiple languages that coexisted in the Iberian peninsula in the Middle Ages when Spanish became the lingua franca, a so-called koine, a language without particular national adscription, or the Anglo-Norman dialect spoken in Britain after the Norman Conquest of 1066 derived from Old French, both merely having a practical function (not a political function in the first place). Latin used to be the common language for jurists until the 18th century - the loss of a common language is considered a tremendous obstacle for a reactivation of a European jurisprudence.
Although multilingualism can be a very enriching experience, it can also pose a problem of indeterminacy in law concepts that cannot be accepted without further reflection. Various attempts have been made to find a common European (and even world) language, for example by making English obligatory in schools and also by creating artificial languages such as Esperanto. It seems obvious that a common grounds of understanding, which is a matter of language policy and equal treatment, is needed if Europe is to progress in its evolution (Kjaer 2008).
In this paper, the major aspects of and essential developments in translation theory, including the ever-recurring question of what constitutes a good translation, will be explored and the particularity of legal translation will be discussed. In the translation of national law terms, many facets have to be kept in mind. For example, the mastering of the different languages poses problems as does the relation of legal texts2 to different and specific legal systems and cultures. The focus will then switch to legal language in particular. The opposition between word meaning of everyday language and the word meaning of languages for specific purposes will be clarified. Then, particular difficulties in legal language and translation with consideration of the different legal systems where these translations are used will be illustrated with respect to the nature of legal discourse, its dependence on the legal system and the presentation of possible ambiguities and their interpretation. The problem of a common legislation in the European Union is one of finding a legal terminology that is not influenced by its cultural environment - an entirely impossible enterprise. It is extremely difficult to produce legal texts in such a way that they mean the same in all languages, to all recipients, in all cultures and at the same time remain precise enough to keep their standard of legal language. What is more, the problems posed by terminological incongruity and, as a consequence, the difficulties in translating legal terms may be found in legal texts translated by the European Union. The efforts made on the national and European level to obtain mutual understanding of concepts are in the center of attention. The paradox of the attempt to develop a common European legal language in twenty-three interacting legal languages must be faced. In a further step, several approaches to solving translation problems with legal terms will be presented. Edda Weigand’s ‘Dialogic Action Game’ will serve as a theoretical foundation for the analytic part of this paper. On this basis, legal terms and expressions of the German, English and French fundamental Human Rights Charter will be analyzed comparatively. The Fundamental Human Rights are the core elements of the EC law, and as the national legislation of the Member States and the international treaties are quite influential in this field, it is important to provide precise and correct translations. It is obvious that the object of study - the legal text resulting from the process of translation - is a very complex one, located in the field of languages for specific purposes. This field is one further aspect included in the
Dialogic Action Game in order to understand language better while addressing the complex whole. Here it will be a applied to a situation with a plurality of languages and legal cultures.
In linguistic studies, legal knowledge is not obligatory, and a graduate jurist is not expected to know Ferdinand de Saussure’s or Noam Chomsky’s theories. It is hoped that progress can be made on an interdisciplinary level with both fields of study sharing research in order to obtain new results. Indeed, the above-mentioned kinds of questions need to be discussed not only for academic enrichment but also for the promotion of institutions like the European Union. This is another reason why interdisciplinary cooperation is so important for future developments.
The translation problem as such has been topical at least ever since the Roman Empire (and before). It is always the same question that is asked: Should a translation adhere strictly to the wording of the original text or should it transfer meaning as Cicero suggested? This problem is reinforced by the problem of diverse legal cultures, which has become topical in our age of globalization and the increasing importance of the European Union. Rodolfo Sacco (2000) holds the opinion that in the next twenty years the problem of translation will be the most promising chapter of juridical comparison in the important areas of juridical epistemology and the reform of legal language.
The overall aim of this paper is to show the main difficulties of legal translation, the solutions that have been found so far and how these are implemented in practice in the EU legislation of the Human Rights Charter.
2. State of the Art
2.1 Translation Studies and Languages for Specific Purposes (LSP)
Today, linguists estimate that between four and five thousand languages are spoken around the world. People find themselves in more than four thousand communities whose languages constitute a link between their members. However, at the same time, this linguistic connection is also a barrier that separates the members of one language community from the members of other language communities. Translation can be a bridge enabling communication between different language communities separated by linguistic barriers (Garcia Yebra 1982: 47).
There is much more to translation than the mere process of finding words in the target language for words given in a source language. Expressed in an oversimplified way, the translation process is about finding words in another language that express the meaning of the source text in the target text: something that can prove difficult and result in translation errors.
Translation errors can have far-reaching and serious consequences, always depending on the context in which translation occurs; therefore, it is important to prevent mistranslation by discussing possible dangers. Considering the example of Peugeot’s owner’s manual in which the ‘choke’ was translated as “strangler knob”, one can be sure that the user’s faith in the subsequent information provided by the manual will probably vanish (Eisiminger 1989). In another case that I experienced myself, a student was to translate a literary examination text about a man who had only read about snow and never seen any in his life. This man could not understand how people could pisar en la nieve (“step on the snow”). The student, out of ignorance and from logic analogy to her mother tongue, translated the Spanish pisar with “urinate”, providing a humorous interlude for the teacher marking the papers. The consequences can be much more serious than making the mistake of ordering a dish one does not want in a restaurant in Spain when the menu has been badly translated into German. In World War II the monastery of Monte Cassino is said to have been bombed because of a translation error (de Groot 2002: 222). However, the translated work does not always lose important notions as compared to the original; sometimes the translation even seems to improve the original’s literary quality. It has been argued, for instance, that Baudelaire’s translation of Poe is better than Poe’s Poe (cf. Eisiminger 1989). Even if there is no mistranslation, a loss of some elements of the original’s spirit is almost inevitable.
Throughout history, translations, both written and spoken, have played a role in human communication; however, it was not until the last fifty years that the study of translation as an academic subject was initiated - thanks to James S. Holmes, who saw the main concern in “the complex of problems clustered round the phenomenon of translating and translations” (Holmes 2000: 173). When a new problem arises in a particular field, scholars from adjacent areas can assist by applying paradigms and models that have proven useful in their research fields, and either they help to find an at least partial solution to the problem or fail to bring about satisfactory results, hence, researchers become aware that new models are needed to solve the problem. In Holmes’ opinion, this has been the case regarding the phenomenon of translation. The discussion about a need of ‘translation sciences’ as an independent field of research so it would no longer be a marginal part of other research fields began in the 1970s. According to Holmes (1972), several impediments made the development of the discipline of translation studies more difficult. There was a lack of “appropriate channels of communication” as the field of translation studies had not yet achieved sufficient recognition. Research results were published in journals of adjacent fields, thus preventing an optimal distribution of information. Another impediment linked closely to the one just mentioned was that there was no consensus as far as the denomination of this emerging science was concerned. With the terms ‘translation theory’ and ‘translation science’ - according to Holmes - a certain restriction of meaning was implied. Thus, he suggested the term ‘translation studies’ in order to put it in line with other humanities. A further problem was seen in the indefinable scope and structure of translation studies, a result from the fact that many different fields of study are involved and contribute to translation studies .3 (Holmes 2000)
Holmes (1972) distinguishes several fields in the organization of translation studies which can be presented most easily in the following table:
Abbildung in dieser Leseprobe nicht enthalten
Figure 1: The figure was established by the author of the paper on the basis of Holmes’ categorization.
The main difference between descriptive translation studies and theoretical translation studies is that descriptive translation studies tries to describe linguistic phenomena, whereas theoretical translation studies formulates principles and finds theories about its working on an abstract level. Generally, the study of languages has taken a relatively independent role within the field of applied linguistics; it is, however, closely linked to the other branches (Hoffmann 1988: 35). It includes terminology work and contrastive analysis, as will be carried out in Chapter 4.
In the last fifty years, considerable advancements have been made in the fields of economic linguistics and terminology studies. Since the 1960s, growing specialization and differentiation into more narrowly defined disciplines and research fields has taken place, along with a tendency towards multidisciplinary fields. Examples of this are discourse analysis and text linguistics as well as LSP research, both new and autonomous branches of Applied Linguistics that brought about a change of paradigm in the 1970s. In turn, these seem to stimulate the formation of new fields of research. This development results from the international boom in the scientific and technical sector, which have also influenced university syllabuses. LSP research concentrates on manifestations of special languages and the various text- types of subject-oriented communication (Schröder 1991: 6). According to Hoffmann (1984: 36)
LSP research has emancipated itself from one-sided views, either lexicological or stylistic, paradigmatic or functional. It strives for a synthesis of competence and performance, of language system and communication. The future path is already indicated by slogans like ‘language-in-function’, which is easily replaced by ‘sublanguage-in-function’ and ‘text- linguistics’, which reads in our case ‘the linguistic analysis of special texts in their respective communicational frames’.
Translation has always been a much-discussed field; finally, in the 1970s Translation Studies was able to evolve into a discipline in its own right. The process began with linguists like Roman Jakobson and continues today with organizations like the European Society of Translation Studies4 and researchers like Susan Bassnett (2002).
Since insights and methods of linguistics in a legal text analysis will be used, this paper can be attributed to the research field of legal linguistics, a cross-discipline covering topics of law and language, however including linguistics, language theory and legal theory (Busse 1992). Legal linguistics and translation are not new fields, as can be seen on the homepage of the Legal Linguistics Association of Finland5, where the development and the use of legal language is investigated, or in the variety of specialized literature that exists for this topic. The Forum für Fachsprachenforschung (Association for Languages for Specific Purposes) has published a collection of articles on legal linguistics and translation with the title Übersetzen von Rechtstexten, edited by Peter Sandrini (1999). Hartmut Schröder focuses on the relation of LSP to text theory in Subject-oriented Texts. Language for Specific Purposes by Sandra M. Gollin and David R. Hall (forthcoming) gives an overview of key concepts and research findings based on case studies used in current teaching situations. On the topic of legal linguistics, Christine Schmidt-König (2005) has published her dissertation on the difficulties in the translation of legal terminology (Die Problematik der Übersetzung juristischer Terminologie). Another, somewhat older anglophone monograph is Erwin Hexner’s Studies in Legal Terminology (1941). Most questions in legal translation were dealt with by linguists in the past, but jurists are now beginning to take this subject seriously. Although contributions have increased in number in the last years, only a few fundamental and systematic investigations have been conducted (Schmidt-König 2005: 1).
The increasing academic interest in the analysis of language and translation of the European legislation is reflected in the publication of collection of scholarly essays such as Gert Reichelt’s Sprache und Recht unter besonderer Berücksichtigung des Europäischen Gemeinschaftsrechts. Richard Creech’s Law and Language in the European Union, Barbara Pozzo’s Multilingualism and the Harmonisation of Law, or the great variety of articles in the International Journal of LSP. Analysis of language and translation has been supported by the European Commission, one important tool being the IATE (Inter Active Terminology for Europe), which replaced the former EURODICAUTOM, the inter-institutional terminology database the European Union launched in 1999 with the aim of making the EU terminology resources available online.
A large proportion of the academic literature used in this paper is German. This is due to the fact that LSP research is of “European origin par excellence” (Schröder 1991: 2), bound to the traditions of philology in German-speaking countries. The first international journal for Special Language - Fachsprache was founded in Austria in 1979.
This overview has indicated that the research background of Translation Studies and LSP is characterized by a multitude of theories and models and, of course, by contradictory hypotheses. Instead of giving a detailed account of the state of the art, which would be an impossible enterprise, the following aspects of research will be used in an exemplary manner to demonstrate the developments in translations studies.
2.2 What is a (good) translation?
2.2.1 The translation
The questions of what a translation6 is, how a translation should be made, and how a translation becomes a good one are essential questions that have been discussed by many scholars with greatly diverging views.
Generally, in translation, a sort of synonymy is established between the different languages from which and into which is translated. In special cases the relations and the concepts are the same and can be considered as synonyms; when language boundaries are crossed this can be called crosslingual synonymy.
The word ‘translation’ is polysemous as, on the one hand, it refers to the translation process itself and on the other hand, it can be the result of this translation process. In this paper, special interest was placed on both of these aspects as legal terms can only be translated properly when the translation process is successful. The result of the translation will be in the focus, but the result cannot be analyzed if the translation process is not taken into consideration as well. In the process of translation the two stages of comprehension of the source text and the expression of its message must be passed through.
The reader and the translator follow the opposite direction of the author’s working process when he7 writes a text. They both go from the signifiant, that is, the external form, to its semantic content, whereas the author starts out with the content, which he then expresses in linguistic signs. However, it has to be stated that the translator as a reader does not stop when he has come to the general reader’s aim, which is the understanding of the text; the translator as reader also has to think in the way the author writes. From the original text, he will then pass to the linguistic signs
- in the target language. This means that the translator has to partly assume the function of the author (Garcia Yebra 1997: 31). Indeed, it is impossible to understand entirely what an author wants to say, as one does not know if he has managed to express himself perfectly or if he himself has understood what he wanted to say. Another problem lies in the reception process; every reader has cognitive, cultural etc. prerequisites that may differ from those of the author and from those of other readers. It is obvious that no two readers will understand a text in the same way, and therefore, there will be no two identical translations of one source text. The reason lies in the different perceptions of the translators as readers.
The second phase is the expression which comprises the translatio of meaning from the original text to the target text. This is where the issue of (untranslatability must be dealt with. Is it possible to transfer content from one language to another? There are concepts, morphologic and syntactic constructions that are impossible to translate into other languages. It will be shown in the following chapters that translation does not consist in the exact reproduction of formal structures.
2.2.2 The “free” versus “literal” translation debate
The debate over the fidelity of the translation to the word or to the spirit of the text dates back to the Roman Empire, when formal correspondence between source and target text was essential to preserve the meaning of biblical and legal documents (Sarcevic 1997: 23ff.). The wording was not to be changed as it was supposed to produce the same effect on the reader as the source text had on the reader of the original. Translators were instructed to adhere scrupulously to the original text, a mentality that lasted until the twentieth century. It was at this time that national language consciousness rose in bi- or multilingual countries to speak in favor of respecting the target language (Sarcevic 1997: 34f.).
Before the first century BC, the word-for-word method was used as a gloss which helped to give the reader a better understanding of the source text. The distinction between ‘word-for-word’ and ‘sense-for-sense’ translation goes back to Marcus Tullius Cicero and is still the basis of the writings in our times. He was the first person known of to argue for a sense-to-sense translation:
And I did not translate them as an interpreter, but as an orator, keeping the same ideas and forms, or as one might say, the ‘figures’ of thought, but in language which conforms to our usage. And in so doing, I did not hold it necessary to render word for word, but I preserved the general style and force of the language8. (transl. in Robinson 1997)
Cicero argued that the function of the translation should determine the translation method used and that it is more important to translate the sense of the source text to preserve its function (speeches were translated mostly). In Christian times, one important exception was the Bible, the word of God, which could never be transformed by translation (Munday 2001). In the 1520s, Walter Tyndale translated the New Testament into English, an act which was perceived as being blasphemous because it entailed “[...] wicked and perverse interpretations to profanate the majesty of Scripture [...]” (Bishop Cuthbert Tunstall, qtd. in Bobrick 2001: 103). In the 19th century, Friedrich Schleiermacher distinguished the commercial and the artistic text, both requiring different kinds of translation. The first entails normalising which creates a text similar to the source text and the reader does not know that the text is not the original. In foreignizing or alienating the text, the reader is supposed to realize that the text is a translation: foreign words and names enrich the target text (Munday 2001), and the translator must try to produce the same effect as the source text has had on the source text reader. Other theoreticians of translation have come to very similar conclusions, but these days practicing translators of literary texts pursue the opposite way, namely to make the reader forget that he is reading a text which is alien to his own language or culture.
The debate between Matthew Arnold and Francis W. Newman is exemplary for the opposing views that still exist today. In 1891, Arnold publishes an essay called “On Translating Homer”, in which he argues against Newman’s translation of Homer. Newman responds to this essay in the same year in “Homeric Translation Theory and Translation”. On the one hand, Arnold postulated that a translation should produce the same effect on the target text reader as it would with an original. He was well aware of the fact that the literal preciseness would vanish for the sake of a lively impression. Newman, on the other hand, was in favor of literal precision, arguing that a translation should be recognized as such and should not appear to be an original. According to the Argentinean writer Jorge Luis Borges (1957: 108), these two opposing views summarize the two basic ways of the “real translation” - it is always a compromise in which one of the two methods always dominates: "Universalmente, supongo que hay dos clases de traducciones. Una practica la literalidad, la otra la perifrasis. La primera corresponde a las mentalidades romänticas, la segunda a las cläsicas [...]." (Borges 1957: 108).
Attempts have been made in the second half of the twentieth century to find a solution in the re-definition of the problematic terms of ‘literal’ and ‘free’, as they were considered too vague, hence, the conclusions drawn could not lead to satisfactory results. Today, fidelity in legal translation is defined as having been achieved when a translation has the same impact on the target reader as the original would have on a reader of the source language. This would justify essential changes in the original text in order to respect the stylistic conventions of the target culture (Sparer 1979: 78).
2.2.3 Equivalence of meaning in translation
It has been seen that the debate on literal and free translation was extended to the debate on whether a translation should be marked as such or not, and in this form it continued over many centuries. In the 1950s and 1960s, translation analysis became more systematic, with the focus on meaning and its equivalence in translation as discussed by the structuralist Roman Jakobson. His starting point is de Saussure’s theory of the signifiant and the signifie, which comprise the linguistic sign that is arbitrary and unmotivated (Saussure 1983). Jakobson focuses on the phenomenon of equivalence of meaning between words in different languages, and he postulates that equivalence between code-units does not exist. With his popular example of the word cheese he showed that the Russian concept of cheese does not coincide with the German concept. To him, translation involves two equivalent messages in two different codes (Munday 2001: 36). For the message to be ‘equivalent’ in both the source text and the target text, the code-units should be the same but they will inevitably be different since they belong to two different sign systems that represent reality differently. In this conception, the question is not whether one language can express anything another language cannot; the emphasis lies rather on the differences in structure and terminology of language. For him, cross-linguistic differences are found in grammatical and lexical forms, as can be observed in many Western languages. A basic concept such as be in English, etre in French and sein in German is split up into ser and estar in Spanish. The only untranslatable text type for Jakobson is poetry as it requires creative transposition (Munday 2001: 37).
Eugene Nida’s writings (Toward a Science of Translating) developed from his own practical work in the 1960s and his theory of dynamic-equivalence in Bible translation. He borrows theoretical concepts from semantics, pragmatics and Chomsky’s work on the transformational-generative grammar: For Nida, there is a move away from the idea that the orthographic word has a fixed meaning, towards an approach in which meaning is given to the unity by the context the word stands in; the word can produce various meanings depending on the culture it is read in and is composed of linguistic, referential and emotive meaning. He has developed a three- stage-system based on Chomsky’s model:
Abbildung in dieser Leseprobe nicht enthalten
Figure 2: Three-stage system of translation (Nida & Taber 1969: 33)
If a translator wants to bring the translated text closer to the original text, not only lexical units must be translated but also their meaning by a process Nida calls “restructuring”. If one wants to translate a German expression like Der hat nicht alle Tassen im Schrank, a translation of lexical units (that is, a word-by-word translation) such as *“he does not have all the cups in the cupboard” would not make much sense in English, nor in French (* il n’a pas toutes les tasses dans l’armoire), nor in Spanish (*no tiene todas las tazas en el armario). Such a translation is strongly oriented towards the source text structure; in order to make it clearer to the reader, footnotes could help him access the source language and culture. Nida calls this “formal equivalence”, but it is obvious that this kind of translation will not make up to the aesthetic standards of a literary translation which puts a lot of emphasis on style and the beauty of the text. In what Nida calls “dynamic equivalence” however, the “relationship between receptor and message should be substantially the same as that which existed between the original receptors and the message” (Nida 1964: 159). The message must fit the receptor’s needs, that is, his or her mentality, cultural knowledge and standards of naturalness of speech (Munday 2001). That is, an equivalent has to be found, depending on the type of translation wanted in order to fulfill the criterion of adequacy and of equivalence of meaning (Weigand 1994: 157). If this principle is applied to our example, in English, the meaning could be retained at the same time with a translation such as “He has lost his marbles”. In French and Spanish, too, a different metaphoric expression must be found such as the French Il a un grain (*“He has a grain”) or the Spanish Le falta un tornillo (*“He is missing a screw”), which in turn, has a near-equivalent in German (“Er hat eine Schraube locker”9 ). One can see that the image of the missing cups in the cupboard must be one which is not existent in English and other European languages as it has an individual history, and therefore its meaning must be transferred into an idiomatic expression of the target language (and culture).
In some cases, though, “functional equivalence”, as Garcia Yebra calls it, is impossible to achieve as in an example of a Japanese novel he gives. The native reader would accept the described situation as normal but a European reader, not acquainted with Japanese culture, would have a disturbing, sometimes shocking reading experience. In Japanese culture, it is normal to make noise when eating soup10 whereas in Germany, for instance, this would be a sign of bad upbringing. But it is not necessary to go as far as Japan to find cultural differences which leave their traces in writing and can be translated only with difficulty. According to Garcia Yebra (1982: 42), to the English reader, it may appear normal that an absolutely honorable father kisses his daughter on the mouth when greeting her11 but to a Spanish reader, not acquainted with English customs, this would cause a puzzling reading experience. If functional equivalence is sought, the translation of the sentence “He kissed his daughter on the mouth” could be Beso tiernamente a su hija (“He kissed his daughter softly”)(example taken from Garcia Yebra 1982: 42). It becomes obvious that a notion of the original culture is lost. If every element that cannot be translated is substituted by something more understandable and common to the reader of the other culture, the target text becomes something totally different from the original, an imitation adapted to the target reader, which is clearly not the aim of translation. If one asks why readers are interested in texts from other cultures and languages, one of the manifold reasons is surely the fact that one is curious to learn about the source culture and because one wants to know cultural particularities such as the one just mentioned. Therefore, the translator has to find a compromise when translating. It is Garcia Yebra (1982: 43) who states, in accordance with Taber and Nida:
La regla de oro para toda traduccion es, a mi juicio, decir todo lo que dice el original, no decir nada que el original no diga, y decirlo todo con la correccion y naturalidad que permita la lengua a la que se traduce12.
The first two rules require absolute fidelity, the third allows for the necessary stylistic liberty. The difficulty lies in the art of applying all three of them (Garcia Yebra 1982: 43).
The problem of meaning equivalence in different cultures becomes clearer when examining Nida’s four basic requirements for an adequate translation: It has to
- make sense,
- convey spirit and manner of the original,
- have a natural and easy form of expression,
- produce a similar response in the target text reader as in the source text reader.
Achieving similar responses in the readers of both texts is very difficult as, firstly, one never knows the exact nature of the reader’s response to the text. Even if it is assumed that one does know the response the text aims to create, it will never be the same within one readership as human beings cannot be seen as a homogenous group that has been educated, raised or instructed uniformly and as having the same psychological background (just to give a few examples of the manifold parameters). Secondly, the translator must try to carry out the impossible task of creating the same response in a readership that has a different cultural, educational, psychological etc. background. If no two people of the same culture will ever have the same abilities or background and will never live in the same conditions, it is unlikely that two people from different cultural backgrounds will experience the same socialization. For this reason, a translation will never be able to create the same response as the source text.
This criticism has also been expressed by Broeck (1978: 40) and Larose (1989: 78), who state that equivalence entails subjective judgment from the translator. Although, in the 1990s, there was some debate about the subjectivity of Nida’s theory, it cannot be contested that he achieved what others before him had only attempted: He created a systematic analytical approach to translation by working with different kinds of texts and including the receptors of the target text and their cultural expectations.
Thus, with what has been shown so far and in accordance with Weigand, it can be said that translating is reproducing a text’s meaning, and, if possible, its style in a different language. When transferring meaning from one language into another, a simple paraphrase in the target language is created. This means that translation theory is only possible on the basis of a theory of paraphrasing (Weigand 1994: 157). If the source text is taken as the guideline for our translation, the role of the translator as a producer can be excluded, he has to reproduce the text in the first place so that the original action game13 in which the source text was produced is preserved to the greatest possible extent. The action game therefore provides the frame for the translation (Weigand 1994: 157). The principle of meaning equivalence makes understanding in communication possible. On the basis of de Saussure’s theory of the linguistic sign it can be stated that most linguistic signs are polysemous and have more than one potential signifie, which are actualized in their use. The linguistic signs of a language are not congruent with the linguistic signs of another language when it comes to their varieties of potential signifies (Garcia Yebra 1997: 34f.), and yet structuralists presume that any expression can always be assigned to a content. If there was only one correct translation, the expression in one language could be exchanged by the equivalent expression in the target language. As has been shown with der hat nicht alle Tassen im Schrank, this view does not explain language-in- use of the real world, as language-in-use follows the principle of conventional choice (Weigand 1994: 156). It is not unusual that a word of a language has two or three meanings it also has in another language, but congruity will not be present for all meanings in both languages.
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Figure 3: Developed from an example given by Garcia Yebra (1982: 35).
As presented in Figure 3, the Spanish term rio contains the semantic value the French have to express in two distinct words, fleuve standing for the river that ends in the sea and riviere for the river that ends in another river. The French word poisson (“fish”) includes the meanings of the Spanish pez and pescado14. There are many examples of this kind and also of texts in which this problem occurs. Therefore, it must be understood that translation does not take place from one language to another but, thinking of Ludwig Wittgenstein’s famous dictum Sprache ist der Gebrauch (“Language is its use”), from one ‘use’ to another. This is because total meaning equivalence does not exist. One can only speak of “equivalence in difference”, as Roman Jakobson did (1981: 191). The limitations of the paraphrase and on the possibilities of measuring equivalence or non-equivalence of meaning have to be reflected on. When can a paraphrase of the original utterance be considered a paraphrase and where is the borderline? Wittgenstein’s postulate cannot be used here in an absolute way because language use in one language cannot be linked with the use of the language in the target language without making reference to the purposes for which they are used. Meaning cannot be equated with use but with a means for which utterances are used, the communicative purpose or the action function of an utterance.
The reproduction of a speech act in a translation does not suffice for the target text to be called a translation, as Weigand has shown (1994: 159). Only by differentiating in more detail the purpose and the situation can one grasp the single utterance - this is what translation is about (Weigand 1994: 159). It is the functional differentiation of the single utterance with respect to its situational adequacy which indicates the standard for a good translation. This standard bears on the conventions of the languages which guide the employment of our communicative means. As these means are not exclusively verbal, but also visual and cognitive, one has to assume that the same functional and situative differentiations are not always expressed in the same way.
Words cannot be analyzed isolated from the constructions and uses they are embedded in because their meaning results from the symbiosis these words form in their environment. This is another reason why the technique of word-by-word translation cannot always lead to a satisfactory result. Utterances are used to pursue communicative means and parts of utterances fulfill referential and predicating functions. Again it can be referred back to the statement of Er hat nicht alle Tassen im Schrank but a more common example of everyday language can be found:
German: Ich steige in den Bus.
French: Je monte dans le bus.
Spanish: Subo al autobüs.
English: I am getting on the bus.
Interestingly, the action of entering a bus is linked to a movement of climbing into the vehicle in French and German. In Spanish and English, the notion of climbing is also existent but in Spanish, people climb up to the bus; in English people sit on the bus. These differences in language cannot be guessed but have to be learnt with their uses and conventions.
It has been said before that the source text is part of an action game. In a translation, the action game comprises firstly the reading of the text in question. In a second step, the translator chooses expressions in the target language that can be used to express the same communicative purpose as the source text. Finally, in a good translation, not only the linguistic text but the text as a part of the action game is translated. The text as such only receives the function of an action game in combination with situational and cognitive means (Weigand 1994: 165, Coseriu 1981: 31). It is the action game as the smallest communicative entity that can determine the limitations for the periphrastic relationship between variations of utterances. The most obvious case of difficulty in translation is when two languages use different constructions and the transfer becomes impossible as seen in idiomatic expressions and in arbitrary expressions of lexical or grammatical types (cf. Weigand 1994: 167).
Referring back to the fidelity versus liberty discussion presented earlier, it may be stated that in every translation a choice has to be made. In Weigand’s (1994: 167) terms, “a negotiation” must have taken place between the fidelity to the source and the beauty of the target text. Equivalence of meaning can never be achieved, but it still remains the main goal when translating. However, the representation of meaning, that is the semantic structure, in which meaning equivalence is to be found, cannot be anything but a heuristic structure between the different languages. This must be a structure indicating what utterances are used for (Weigand 1994: 169). In a model considering the action game, the action of translation is to be seen as a declarative action with the pragmatic intention to give a paraphrase with the translation.
Translators always are in a situation of conflict. One can tentatively define a good translation as a mediation between two texts: The translator becomes the voice of the author in the target language but not a producer himself. The style of the source text should be preserved. It is obvious that these statements made about translation are general and have to be specified in the context of specialized translation, i.e., legal translation.
2.2.4 Official quality standards
When seeking solutions for translation problems, one is actually looking for a means to improve the quality of translation or even to achieve the highest degree of quality possible. In our society, all kinds of quality standards and measurements exist. According to Hartmut Schröder, Western society has begun to take an intense interest in questions of quality from the end of the 1980s, especially in the industrial sector; everyone is naturally interested in buying quality products when choosing from a great variety. In Germany, the association for consumer protection called Stiftung Warentest tests and compares independently the latest everyday products and services and publishes its results in a renowned magazine. The need for quality and its measurement can be observed in the fact that different quality standards in varying fields have emerged under the ISO Standards15. Objective measurement criteria are sought in order to allow for precise assessment of product quality. These standards are applied to a variety of areas such as the production of kitchen utensils, chimney stoves or design processes.
Such a standard is also applied to translations. According to Juan Jose Arevalillo (2005), the primary quality standard in translation business is customer satisfaction (no matter whether the customer is a private individual or a company) - which is a quite subjective quality measurement. But in the end if a text is translated for a certain company, it is the company that has to be satisfied. In legal translation, the translation is made for a court but also for the nation where the law will be applied in the future. Most European countries have their own standardization bodies; all these bodies comprised form the European Committee for Standardisation (CEN) (Arevalillo 2005: 3). Once the requirements for a quality standard are fulfilled, the standards applicable to the translation process have to be outlined. It is a fact, though, that all European standards16 applicable to translation have become obsolete with the publication of the new standard: EN 15038 - The European Quality Standard for Translation Services. This standard is supposed to provide the requirements needed for high-quality professional translation services. Interestingly, it is supposed to take into account not only quality assurance enforcement of the norms that are set up but also the translation process itself. This quality standard is comparable to the American standard ASTM15. In the future, the European EN 15038, the American ASTM15 and the Chinese standard are supposed to merge into one standard, the ISO standard (Nolasco 2007).
Before work on the EN-15038 began in 2000, the European Union of Associations of Translation Companies had its own standard, which provided the basis for EN-15038. In August 2006, the new standard was released. This standard defines the quality of translation and regulates the translation processes for translation services. It requires qualified translators, the supp ly of the necessary technological devices, good working relations between the client and the provider and quality and project management. The new standard has resulted in more structure in the translation process itself since it additionally requires the documentation of the translation process and work according to the editorial principle by which texts are proofread by another person. This means that all translations have to be checked by another certified translator17. This process takes much more time, and the client now has to accept that a translation cannot be completed within two hours. If the client requires an exception to this norm, a written request must be handed in; after doing this, he is no longer entitled to demand a standardized translation conforming to the norm. Translation services therefore can only employ translators who are prepared to work according to the new norm.
This norm certainly ensures more transparency for the client, regarding both the translation process and the structure determining it. Many translation services have adopted the norm. The client can now decide whether he prefers a more costly translation according to the norm or a cheaper one for which quality is not guaranteed.
For translators who do not have a degree in translation it has become even more difficult to find work in quality translation18. They have to qualify first in translation services that do not work according to the norm. In general, translators have to be willing to adopt the norm for their working process (where working in a team is an absolute must) as well, for example. As Arevalillo summarizes correctly this can foster professional collaboration and could help to accentuate the professional nature of a translation and localization service vendor.
Finally, corrections are said to be the basic principle of the standard as the revision by a third party and therefore additional objectivity further increases the quality. The importance of this standard lies in the fact that the difference between the quality of the process and the quality of the translation itself is taken into account. The focus of this standardization is not so much the standardization of terminology in special language fields but the standardization of the translation process as cooperative effort.
2.3 Legal language
2.3.1 Languages for Specific Purposes (LSP)
Linguistics consider language as the most important means of communication. With the progressive development of human societies in the areas of economics, politics and culture, fast, adequate and to-the-point communication have increasingly gained in importance. With the implementation of modern technologies such as computer translation in linguistics and the emerging supranational institutions such as the UN, UNESCO or the European Union, a redefinition of communication has become necessary (Hoffmann 1988: 2).
There are at least three approaches which have to be mentioned in the context of LSP research. The first appeared at the beginning of LSP research from the 1950s up to the 1970s in very different shapes (Roelcke 1999: 16). Its orientation was based on the view of LSP as a system of linguistic signs. The second is the pragma- linguistic approach of the 1980s, which did not exactly deny the existence of the sign system but put special emphasis on the co-text and context, i.e., the communicative situation in which LSP is produced has given cause for particular attention. In the cognitive-linguistic approach, the intellectual and emotional preconditions of the producer and recipient are in the center of all interest; structuralist and pragma- linguistic questions and results are not excluded (Roelcke 1999: 17ff.).
LSP are a means of expression for speakers, a means of identity-formation within a community in the first place, but as a variety of language use LSP are not only used by experts (Beier 1980: 17ff.). The interactional competences in our industrial society always require some knowledge of LSP. Most citizens come into contact with administrative language or medical or pharmacological language (in a hospital, when reading package inserts) in everyday life. One cannot read a newspaper without coming across specific terms, and if these are not understood, the whole text content is likely to remain obscure. The difficulty with LSP is that for its correct use technical and situational knowledge is essential (Oskaar 1988: 217); it becomes obvious that the ‘term’ comprises discrete concepts that form the knowledge system of a specialized subject field; hence, these terms become “depositories of knowledge” (Sager 2001: 259). If one is not familiar with the words used in the manual of the recently purchased cell phone, one will have great difficulties in making the phone work.
The term ‘languages for specific purposes’ used to be employed synonymously, from the beginnings of the studies in the field of LSP until the 1970s, for ‘terminology’ - a fact which can today be evaluated as lexical-semantic restriction (Kalverkämper 1999) since ‘terminology’ is defined as the totality of the defined technical terms of a scientific system that differ from common use by their precise definition within a particular system. In order to create such a terminology, either expressions existing in colloquial language use are more strictly defined, neologisms are created or expressions are transferred from the foreign language into the target language. Terminology constitutes a linguistic variety, and its function is to allow a more precise and differentiated use of language, mostly for specialized areas (Bußmann 1990). Longman’s Dictionary of Applied Sciences (1985: 159) defines LSP as “languages used for particular and restricted types of communication [...] and which contain lexical, grammatical, and other linguistic features which are different from ordinary language”. Since these languages are supposedly used only in a certain context, one is prone to draw the conclusion that LSP are the counterpart of everyday language and therefore automatically exclude those who are not proficient in this language. It is, however, more complicated to determine the difference between LSP and LGP19 (see Chapter 2.3.2). According to Schröder, the distinction between “common and special languages” cannot be made sharply although there are some specific phonological, morpho-syntactic, lexical, extralinguistic etc. features which are distinctive for every special language. LSP have little in common with sociolects, as they are determined by the specific use they make of linguistic means (Hoffmann 1987: 299). Special languages are functional and belong to a certain subject field whereas sociolects belong to a certain group and they can aim at separation; special languages focus on the subject field itself (Schröder 1991: 5).
Special languages make a precise, clear and economic way of language use possible. Hoffmann has replaced the concept of ‘common language ’20 by ‘total language’, which comprises sublanguages, that is, “subsystems of the total language system, actualized in the texts of specific spheres of communication” (1987: 298). To him, the common language and special languages are subsystems of the total language system as they use the same structures. These structures are used in specific ways with individual frequency of occurrence (cf. Schröder 1991: 4). A clear-cut definition of LSP is not possible due to its adjacency to the concept of common language. It has to be emphasized that it is not the language which is specialized but the purpose it is applied to.
In the field of translation, which is also the field of contrastive LSP research, a text in a language for specific purposes has to be transferred to another foreign language for specific purposes. A synonymy has to be established between the two languages by finding an equivalent in the other language. The problems that can occur in this case will be discussed in Chapter 2.3.4. Here one has to point out the translator’s possible uncertainty regarding the subject and therefore the semantic content of the equivalents in question, which could lead to the choice of an incorrect equivalent (Duva & Laursen 1994).
2.3.2 Word meaning of LSP versus everyday language
Humans are social beings who have to fix their (differing) worldviews in conflict situations. Terminology comes into play when everyday language use does not fulfill the aims and purposes of the individual, that means that a superordinate instance with a greater degree of validity and determinacy must be thought of. With legislation mankind attempted to adjust meaning and reality and to reduce ever- changing parameters to a minimum by defining legal terminology (Weigand 2008).
In LSP, terms are supposed to be defined as precisely as possible. Why does one need such precision in language if human beings come to an understanding (Weigand 2008) when the situation is ambiguous? It is precisely this ambiguity that leads to misunderstandings and conflicts - in short, it is imprecision that leaves room for various interpretations and therefore for indeterminacy. However, understanding is almost always achieved in everyday language. As a consequence, one must examine the purposes of specific languages more closely.
One has seen in the above chapter that the difference between everyday language and LSP cannot be delimitated as precisely as one might wish to. The key may lie in the meaning and the way terms are defined in LSP and everyday language. LSP are supposed to allow a precise and differentiated communication in professional or specialized fields. The elaborated and standardized terminology is one of its main characteristics. Its style will differ insofar as it uses more impersonal constructions and an extended use of the rules of word formation, to give only two examples. In technical and scientific language, it is important that language is standardized, precise and economical for the sake of information procuration, security and its high social prestige. The latter can be observed when terms for specific purposes are transferred to everyday language (Bußmann 1990: 235f.). In some cases such as the one of the German Das tangiert mich peripher (“I don’t care”) we are dealing with a colloquial expression used by young people in a humorous way; however, the verb “tangieren” and the adverb “peripher” are borrowings from scientific language .21 Also, when speaking about medical matters, in German it is quite common to speak of inflammations of the throat in terms of Angina.
One of the most important features of LSP are the meta-linguistic utterances made to verbalize an explanation of certain linguistic entities. These utterances exist in everyday language as well but they are much more common in LSP. Therefore, defining a term in the domain of LSP must be considered a determination of meaning (Roelcke 1999: 54).
Definition theory derived from classical logic used to differentiate nominal definitions and real definitions. The nominal definition is the linguistic fixation of a meaning whereas the real definition is the linguistic fixation of a term. The nominal definition depends on an idealistic understanding by which the extra-linguistic reality of the human being can be grasped and understood by means of language. In other words, this means giving objects a denomination. The real definition deals with a realistic conception in which the extra-linguistic reality determines human language, which in turn reflects reality, that is, the determination of the object’s nature by definition per genus proximum et differentiam specificam (Haft 1985: 63). Roelcke postulates that both positions can be theoretically combined. On the one hand, language is a medium depending on reality, but on the other hand reality helps to form a human’s personal reality (Roelcke 1999: 54). Haft’s criticism concerning this concept is that there is no process of naming objects since in his view language does not have a beginning. The structuring of definitions into categories and kinds is not a logical but an ontological process which refers to a psychological, not a logical phenomenon (Haft 1985: 63). The state can therefore be defined as a society (genre) with sovereign power (kind) or as sovereign institution (genre) with the form of a society (kind). Modern definition theories proceed in a different way. They differentiate between explicit and implicit definitions. These processes of definition can be applied arbitrarily when referring to explicit and implicit definitions. The explicit definition is a fixation of meaning by equation; one side has the definiens, the other the definiendum. Definitions depend on conventions and are agreements on signs to be used, reflecting the wish to express something in an economical way without being creative (Haft 1985: 65f.). Implicit definitions are definitions by the use of axioms 22. This way it has often been attempted to determine basic principles of legislation by defining basic terms of law implicitly. Today the distinction between implicit and explicit definitions is widely accepted. The conventions of use of the sign to be defined often have no relation to the object it is referring to, which can be traced back to de Saussure’s arbitrarity of the linguistic sign. The conclusion can be drawn that there is no unanimity on what a definition is and most interestingly, it can be stated that there is not one definition but a plurality of types of definitions 23.
Based on Frege’s distinction between two kinds of referential meaning, there is what is called the “reference”, which is the actual object or real world entity, pointed out by a linguistic expression, and ‘sense’, being the meaning of an expression in the form of the proposition (Frawley 1991). Expressed in a simplified way, “reference is the process by which a signifier relates to a signified. The object itself that is referred to is the extension; all the information other than the extension is the intension” (Frawley 1991: 19). Generally, one assumes that with increasing precision of the definition of meaning, that is, an increasing definitional intension, the definitional extension decreases (Roelcke 1999: 56). Still, some definitional parts remain undefined, which is a general feature of definitions in natural language. These undefined parts give way to a linkage of common language and definitional terminology24 since these are supposed to be the elements which are known by both producers and recipients. This is true for formalized definitions taken from natural language as there is often in legal language (for instance the German leihen) but it cannot be valid for strict definitions such as in the field of mathematics (Roelcke 1999: 57). There are other procedures by which lexical meaning is fixed in LSP, such as the explicative definition, which generally attributes an undetermined number of equal characteristics to a term. This method has great similarity with the prototype theory, which also attributes associations of meaning to a word; Roelcke however highlights that the prototype theory is used in particular for the description of common language. The common language definition of water would have the characteristics “wet, quenches thirst”, whereas a scientific description of meaning would point to the formula H2O, its boiling and melting temperature etc. (Roelcke 1999: 57).
Everyday language can refer to the heterogeneous area of language varieties comprising standard language and dialects but can also refer to the level of speech of informal situations (Bußmann 1990: 817). This is not what is meant by ‘everyday language’ in this paper. As opposed to LSP, this is about a language that is not created for one specific area of communication but that can be used and understood by everyone having no standardized terminology. In everyday language, words gain their meaning by their relation with other words within the phrase the utterance is constructed with. Words are undetermined if they are taken out of their linguistic context, but the phrases’ determinacy is gained from their undetermined components. Words are used for predication, that is, for the process and the result of putting characteristics of objects or subject matters in a certain order. Predicating means specifying objects with respect to their quality, quantity, space, time, etc. or their relation to other objects. Predication is therefore the basis for any form of utterance (Bußmann 1990: 597). In other words, it is used by a speaker to express how he perceives and identifies the world (Weigand 2008).
Ordinary language philosophy declares that definitions cannot determine terms precisely by content (intension) and scope (extension). Everyday language does not have these concise regulations; therefore, investigation in this part of language is rather about the observation of language in use (Weigand 2000, Haft 1985: 68), and its description in such a way that a person who understands this description is put in the position of being able to use the word correctly. In this case, one does not speak of explicit and implicit definitions but of “definitions in use” (Haft 1985: 68).
According to Weigand, the perception and the subsequent expression of reality depends on the observer; it is not ontology which determines meaning as approaches based on semantic regularities use to postulate (2006: 11). Thought determines meaning; concepts are stored in the human mind in an undefined manner, by a “combination of indeterminacy and routine” (Weigand 2006: 11) and not by lists of defining features. Speakers make sense of what communication is about by the phrases in which a word is used, this becomes especially evident in the case of polysemy. Polysemy can be misleading especially for learners of a foreign language. From my personal experience I remember finding the idiom visit with somebody, which is an American English expression for “to spend time with someone talking socially” (OALD 2003) very puzzling. Only the more frequent expression to visit somebody (“to go to see a person or a place for a period of time” (OALD 2003)) had been familiar; the meaning of the former to visit with became only understandable after consulting a dictionary. There are other examples of polysemous words that can be used in the same syntactic context, and which are more difficult to distinguish, even if the learner knows all possible meanings of the word. Native speakers seldom have these difficulties, which Weigand ascribes to the fact that they are more proficient as to the cultural and linguistic parameters referred to in communication (implicitly and explicitly) (Weigand 2006: 13). What is more, flexibility and variability of meaning are considered as essential for language change, which seems obvious as semantic change can hardly result from defined meaning. Negotiation of meaning can only take place if meaning is flexible (Weigand 2006: 13).
Summing up, it can be said that in everyday language use, words gain their meaning in phrases, that is, complete utterances. Single words are characterized by indeterminacy of meaning, but when they are embedded in a phrase, their meaning becomes more definite by the context. Words are used to predicate, that is, they are a means for the speaker to express how he perceives the world. LSP have the function of identifying an object of reality as concisely as possible. Whereas LSP characterize by a semantics of definition, everyday language does by a semantics of use (Weigand 2008: 10).
The question of definition has to be dealt with thoroughly in the basic norms of terminology on a national and international level. These norms are supposed to be a guideline for the formation of definitions in the first place, in order to avoid mistakes of definitions such as circular reasoning. The normative function of the definition is its most important feature. Besides retrieving and procuring factual information, the definition also establishes linguistic precision in one isolated language. In terminology research with more languages, the definition gains another characteristic. By a systematic comparison of the definition of one language to the definition of another language, one is to find out whether the two definitions are equivalent to one another. This will help the users of those terms and those who want to know about their definitions. Precisely for this reason, valuable terminology banks incorporate the definitions in their records (Roelcke 1999: 53ff.).
2.3.3 Legal language use
Language has no beginning; the communicating human being is always in the middle of language use (Haft 1985: 64) that is, vocabulary denominates the world intuitively and in a relatively structured way. It is obvious and it has been widely discussed that there is no legislation without language as language is not only the foundation of legislation but also the instrument of the jurist. Legal language is therefore vital for jurists and legal action. In Sarcevic’s (1997: 9) definition legal language serves as a communication device between specialists with special purpose. According to him this specialized language to be used by lawyers functions as an exclusive means of communication. However, this cannot be entirely true as there are many text types that must remain transparent for the lay person, such as contracts or judgments, because they are concerned by the contents of the law text. The task of the lawyer is in some cases to ‘interpret’ and ‘translate’ the law into everyday language (Harvey 2002: 178, see also the Bürgerliches Gesetzbuch (BGB) § 157). There are cases in which the lay person must substitute the lawyer - when utterances have a legal effect: “Guilty/not guilty“ or the words “I do“ in a wedding ceremony. This complicated situation of interaction of legal language and everyday language is the reason for the fact that the so-called “legalese” has been subject to sarcasm and irony in the past by authors such as Moliere or Jonathan Swift and more recently, in the Plain English campaign.
Moreover, legal language has a special status among the LSP. There has been much controversy about the question whether it can be considered a language for specific purposes. Its particular relation to everyday language makes it special in comparison to other LSP. Schmidt-König (2005) puts forward the idea that legal language forms a language within everyday language. Legal language differs from other LSP in its notion of specificity. It uses the lexicon of everyday language and gives its contents a different meanings and hereby its specificity. Legal language is a technical but not a uniform language for specific purposes. It is not only a language for one occupational group but it comprises various areas which implies that every single one of these areas might give a different meaning to a specific word. This is the reason why Schmidt-König (2005:11) speaks about various legal languages, which in turn would be called “group languages”. As opposed to the language of mathematics or chemists, legal language can (and must) be well understood by the lay. The key point here is, that no lay person must understand the language of a mathematician if he is not particularly interested in mathematics. Legal language however, refers to texts that are of public concern (e.g. legislation) so that they must have a certain transparency. Since legal language does not form a language of its own right, it is widely considered a language with technically coined parts of everyday language (Schmidt-König 2005: 10). An entirely incomprehensible law system would not be accepted in our democratic system. Weigand gives the example of the term ‘murder’, a term which cannot be given a totally different definition from what the average lay person understands by ‘murder’ (Weigand 2008: 15). It can be stated that legal terms cannot be completely independent from everyday language as other terminologies are (e.g., chemical terminology).
Legal terms are characterized by a semantics of definition, whereas everyday language corresponds to a semantics of use (Wittgenstein 1958). There is the problem of diverging semantics of phonetically identical terms when it comes to interpreting a legal text. A translation is necessary although the legal system’s borders have not been crossed. The closeness of legal language to “natural language”, as Raymond calls it, gives it its tendency to ambiguity. Ambiguity is defined as a characteristic of expressions in natural language that can have more than one interpretation, that is, they can be specified lexically, semantically or syntactically in various ways. Lexical ambiguity is also called polysemy. Polysemy is defined as an expression that has two or more meanings which all have a common denominator, and which are derived from one basic meaning (Bußmann 1990: 593). Most specific-purpose language aims to avoid ambiguity, and has been created for this purpose and in order to express empirical knowledge. Legal language is particularly meant to be clear and precise, which is why terms ‘borrowed’ from everyday language can have a slightly or even totally altered meaning. However, polysemy in legal terminology is not always due to its proximity to everyday language but since there are terms that have several meanings within the legal language. Its close tie to everyday language is due to its relation to concrete living situations; this only increases the effect of its polysemy and indicates that polysemy probably cannot be reduced. Gerard Cornu (2000) affirms this statement when he says:
Le reve (de reduire la polysemie externe par la specialisation du vocabulaire juridique) est utopique parce que la specialisation ne peut passer par l’elimination des terme s courants dans la designation des notions du droit. [...] Il est exclu que l’ensemble des notions juridiques puisse etre exprime par des termes d’appartenance juridique exclusive ou meme principale, lesquels sont en nombre defini et limite. [...] Il n’y a d’autre issue que de vivre avec la polysemie externe comme avec une donnee linguistique de base.
Polysemy in legal language causes great difficulties and jeopardizes the understanding of legal terminology by the lay person.
One example of external and internal polysemy is demonstrated in the French term ordonnance. This term comes from Latin ordinare meaning “to rule” or “to prescribe”. The ordonnance is usually the medical prescription or the arrangement of words or flowers, but it can also refer to a particular type of knight and can have several military-related meanings. One can see that this word is highly polysemous in its everyday language use. In legal language, ordonnance is an act of administration passed by the executive authority or a resolution taken by a judge; the notion of ruling is always present. The differentiations between the different terms of ordonnance are more complicated and affect in part the difficulty in translating administrative acts. Ordonnance holds therefore various meanings in legal language as well. Weigand (2007) gives the example of the term ‘violence’, which in everyday language use is a term whose meaning depends on the speaker; legal language must define the meanings, without taking into account any speakers and by giving this everyday language lexical item the status of a technical term.
The development and extension of the European Community is reflected in the increasing number of legal regulations, which are applied in the Member States and enrich each State’s legal language. In the German and French terminology, terms such as Gemeinsamer Markt, marche commun or Dienstleistungsverkehrsfreiheit and liberte de circulation des services have come into existence (Schmidt-König 2005). The extension of legal terminology does not only contribute to the creation of new terms but also to a polysemy of existing national legal terms. Community law terminology uses national terms and gives them partly new definitions. The term Gemeinschaft, communaute, community used to have several meanings in German, French and English legal terminology and remains polysemous in German, French and English community law. Furthermore, since French used to be the only working language in the European Community for a long time; it has a considerable influence on German and English legal terminology. The terms effet utile or acquis communautaire are simply used as such in German legal language. The influence of the European Community on national legal terminologies does not facilitate the work of the legal translator as he is confronted with new or polysemous terminology (Biel 2006).
Legal terminology as the totality of all terms that have a legal meaning does not only consist of legal terms. Terms that have at least one meaning in everyday language also belong to the category of legal language (Schmidt-König 2005: 5). There are various existing categorizations of legal terms in the literature. One categorization attempt was made by Cornu (2000). He differentiates between terms that are exclusively a part of legal language and terms that have a double affiliation, that is, which are used in everyday language and in legal language. He splits the last group into two categories, one comprising those terms that have both a primarily legal meaning and a derived meaning used in everyday language and the other one comprising all other terms that have mostly a general meaning. This classification shows that there is not only a close link between everyday and legal language but also a mutual interaction between the two. As Horst Neumann-Duesberg (1949: 84) puts it:
1 The European Community (EC) is one of the pillars of the European Union (EU), created under The Maastricht Treaty in 1992. Prior to this, the EC was an independent economic organisation founded by the Treaty of Rome. It will be completely absorbed by the EU with the Treaty of Lisbon in 2009 (Sims 2001: 160).
2 This term is derived from the Latin textum, which literally means “textile” that is, the web of
relations that cross like threads between the elements of the text. A text can be a single phrase or a
book (García Yebra 1982: 47).
3 Interestingly, a new area has developed from translation studies, which is called “cultural
translation”. It uses linguistic translation as a tool to explain changes in cultures.
4 http: //www.est-translationstudies.org/ (last access 20 December 2007).
5 http: //www.ulapland.fi/home/lexling/ (last access 20 December 2007).
6 It has to be pointed out that in this first part of the paper, translation in general is being treated with no special emphasis on theories of translation of languages for specific purposes.
7 When referring to translators, readers etc. in general, I will use the pronouns he, him and himself.
This is not representative of the profession but it is handled this way for reasons of simplicity and consistency. I do not intend to be sexist or discriminatory.
8 Original wording: “[...] nec converti ut interpres, sed ut orator, sententiis isdem et earum formis tamquam figuris, verbis ad nostram consuetudinem aptis. In quibus non verbum pro verbo necesse habui reddere, sed genus omne verborum vimque servavi. Non enim ea me adnumerare lectori putavi oportere, sed tamquam appendere”. (5.14)
9 In turn, these metaphoric expressions literally translated would not make sense to the English native speaker, either.
10 Example given by my Japanese teacher.
11 If this habit is so common in England, remains to be discussed, too.
12 Translation by the author: The golden rule for any translation is, in my view, to say everything the original says, to say nothing the original does not say, and say everything with the correctness and naturalness the target language allows for.
13 The model of the Dialogic Action Game developed by Weigand will form the basis of the analysis in Chapter 4. The complete model will therefore be introduced in Chapter 3. With ‘action game’ it is referred back to Searle’s Speech Act Theory, in which every utterance constitutes an action.
14 Pez is the word used to refer to the living fish swimming in the ocean, for instance, whereas
pescado is used to refer to all kinds of fish prepared to be eaten.
15 For more information see the official webpage of the International Organization for Standardization: http://www.iso.org/iso/home.htm.
16 There are in Europe: In Italy, UNI 10574 Standard. Austria, Önorm D 1200 Standard. Germany, DIN 2345 Standard. International, ISO 12616 Standard. These standards refer to the translation process.
17 http: //www.produkt-global.de/news/296f5cba7ae.html, last access 03 March 2008.
18 http:// www.uebersetzen.at/EN15038.htm, last access 03 March 2008.
19 Languages for General Purposes also referred to in the following as common language or everyday language.
20 Hoffmann uses the term ‘common language’ for what is called “everyday language”. The discussion about these terms cannot be explored here in detail. In the following the term ‘everyday language’.
21 Other examples are dekadent, trivial, tranchieren, adäquat. These words are commonly used in
German language also their origin is probably a scientific one.
22 Axioms are unproven principles from which further conclusions can be derived by use of certain rules (Haft 1986: 65)
23 Helmut Mönke collected 71 types of definitions in 1978 (Definitionstypen und Definitionsmatrix)
and he assumed that this number could be amended easily.
24 Definitions fixed in combination with others form a terminology (Roelcke 1999: 57).
- Quote paper
- Berenice Walther (Author), 2008, Difficulties in Translating Legal Terms, Munich, GRIN Verlag, https://www.grin.com/document/268485