An approach to translating the law

Function over form

Further to a recent flurry of posts inspired by a contract in which I combined forces with two other translators, I now offer this as a personal view on some of the translation problems that emerged from our collaboration.

In the course of our linguistic endeavours in translating a large document from French into English, three terms concentrated our minds in particular, all of which hail from the domain of the law: atteinte, magistrat and procès-verbal. They resulted in discussion, which I believe is healthy, and a number of solutions were bounced around in an effort to find a single term for each that would be satisfactory for the needs of the document we were engaged on.

In the course of the discussions, I made reference in writing and verbally to two works which, in my long career, have served as valuable vade mecum’s for the vast amount of legal work I have been engaged on, and I refer to them below, should you think it apt to acquire them yourselves.

An English Reader’s Introduction to the French Legal System by Martin Weston. Weston was formerly a translator at the Council of Europe (in Strasbourg) and this thin tome is a highly analytical work that founds on the principle of function above form. It is my authority for translating article of an act of parliament as section – because that is what, for the most part, the UK and the US call it; and for translating article as article in relation to treaties and EU legislation – because that is what, for the most part, it’s called in those contexts. In contracts, I’m an aficionado of clause, thus explaining the pun contained in the films that bore the title The Santa Clause.

Weston enounces what he calls the well-known breakfast example, although, whenever I have cited it as such, no one seems to be aware of it; it propounds simply that, whilst Paris breakfasts with croissants, jam and café au lait, London will breakfast with bacon and eggs, marmalade and tea; but the translation petit-déjeuner as breakfast is untroubled by such considerations, because both are the first collation of the day, and that outstrips as a guiding factor in their translation the fact that what is actually eaten differs. The function of the meal is more important to the translator than the formal content. The question that a translator therefore always needs to bear in mind first and foremost is whether the term that they use matches sufficiently the function of the word they are translating.

In legal translation, by contrast with medical translation, absolute equivalence is a great rarity, for what must be obvious reasons. When UK legal systems absorbed the body of EU law, they required to also absorb its terminology and this placed lawyers on a steep learning curve, because, among its various languages, EU law by definition knows direct equivalence, each language version having both the function and the form of the others. And, in producing the English language version of such acts, terms were adapted or invented to deal with a plethora of new legal concepts, many sourced from the principles of civil law, and not the common law.

As a result, into the UK’s laws came such ideas as undertaking, acquis communautaire and interim work. But, in other respects, direct equivalence was not possible, as, instead of an EU concept being delivered to all the member states, a concept was created to which individual states’ institutions needed themselves to be equated. Take for instance the legal professions, which did not become one profession, but whose different features had to be expressed in terms of a common right, of audience before the courts; or legal forms of doing business, for which neutral expressions needed to be found: a naamloze vennootschap is a public limited liability company, but it isn’t a public limited company, since it’s incorporated in Belgium or in the Netherlands, and not in England & Wales or in Scotland.

One of Weston’s colleagues at the Council of Europe was Frank H. S. Bridge, who worked on and produced a dictionary named The Council of Europe French-English Legal Dictionary, which is available from government booksellers. My copy is tattered and thumbed and I would let a man drown before I relinquished it. It is “hard-core” legal, utterly reliable and without comparison in the madding crowd of publications and websites that compete for our attention in the landscape of legal and linguistic reference works.

How, then, does one compare function when one lacks professional insight into the operation of the law? For that, one also needs authoritative works and, in my long experience, there is no one who can hold a candle to the American writer Bryan Garner. His two most outstanding works are A Dictionary of Modern Legal Usage and the vade mecum of many a lawyer, his, since its 10th edition, authorship of Black’s Legal Dictionary. For the Dutch language, as used in Belgium, I have a dictionary contributed to by a lawyer I studied with at the University of Tübingen, Bernard Tilleman: De Valks Juridisch Woordenboek. It also offers translations into French, German and English.

If we want to know the function of a legal term as used within a given legal system and wish to utilise the same concept when talking in another language, whose legal system is different, there is therefore scope for reliance, or at least inspiration, in legal systems that contain single precepts that are expressed in two or more languages. In this, caution is bidden, for concepts of Austrian law are not necessarily the same as those that bear a like name in Switzerland, but, as far as English is concerned, several routes of understanding are offered by Canadian law, which exists in English and French; Belgian law gives the English-Dutch translator a route of translation via French, or the English-French translator a route via Dutch. Scots, Quebecois, South African and Louisianan law all stand astride the gulf between civil and common law, but are frequently rejected by practitioners in translation as offering solutions of utility, and I believe that is counterintuitive, since they all take concepts of Roman law and express them in terms of the common law and therefore offer most apt solutions of equivalence. The problem seems to be that few in legal practice are aware of the joint status of such legal systems.

Let us look, therefore, at the three words that consumed a fair bit of energy during our task.

atteinte

It conveys the notion of a stain, a smudge, the spot where some infant has touched a fine silken scarf with his grubby little fingers, and thereby spoiled it. Bridge offers no fewer than these interpretations:

infringement

violation

impairment

interference

insult

(à l’honneur) defamation

libel

slander

(à l’intégrité) harm

duress

(à l’autorité) contempt

(au lien conjugal) offence

(porter) undermine

adversely affect

and, finally,

restriction of ownership of land surrounding an enclave.

One gains the impression that we’re almost dealing here with a word like do. It borders on the disingenuous that our task master, in terms of the job we worked on, itself set out on a quest to determine the precise scope of what was intended by this one word by questioning the players involved in the cases it studied, and that, in response, we set out on a quest that would find an equivalent for this word that would meet each and every interpretation given to it in the minds of the interviewees. Frankly, it was an impossible task. We’d have done well to leave it in the French, with a footnote to explain why.

When Captain James Cooke arrived on the island of Tahiti, he had among his crew a linguist whose task it was to map out the Tahitian language. The translator was flummoxed in the extreme by a question that the artist Haddaway posed in the 1980s and which the then Prince Charles of the United Kingdom would himself pose in the course of an interview preceding his marriage to Lady Diana Spencer: What is love?

The Tahitian language contains no fewer than 13 words that all mean love and yet all mean something different. And the canon of works by William Shakespeare contains 15 different interpretations of what is meant by the word love. If one were to survey the entire human race, I warrant you’d find no fewer than 8 billion interpretations of what the word portends.

Let us turn instead to magistrat, where the options are somewhat less numerous.

Bridge starts off with a gloss:

a member of the national legal service, i.e. either a judge or a law officer (member of the attorney-general’s department, state counsel, prosecutor); a member of the court

(assis) judge

a member of the commercial court, commercial court judge

(debout) law officer, prosecutor, state counsel, state prosecutor, member of the attorney-general’s department

(instructeur) investigating judge (and not, as Weston emphasises, magistrate)

(militaire) judge advocate

(municipal) generic term for the senior members of a town/city council, of which adjoints are aldermen

(taxateur) taxing master

What magistrat does not, by any stretch of the imagination, translate as in English is magistrate.

The essential term, absent any qualification, covers the prosecution and the judge and, in the adversarial, common law system, this is an unfortunate commonality. In Belgium, prosecutors (despite being debout) sit to one side upon the physical bench where the judge sits, and this is found abhorrent by adversarial practitioners, but it is what it is. The accused faces both his accuser and his judge on a single, visually united front.

procès-verbal, and, whilst we’re at it, the verb verbaliser, which means nothing more and nothing less than to issue a procès-verbal.

official record or report

minute

minutes

police report

memorandum of proceedings

record of acts performed by a bailiff (e.g. service or attachment)

ticket (e.g. parking)

record

deposition

certification of verification of cash count

affidavit of failure in obligation

report of nulla bona (where a bailiff reports that an attachment has failed)

trial transcript

It started life as a record of what someone said. And now means lots of things that people say and some things that they don’t say but write down. On its own, it means everything and nothing. Our team’s chosen option of penalty notice is not included here, but is a fair one, I maintain. It is a notification that he to whom it is issued is alleged to have committed an offence that entails a penalty. Further than that, any construction of its portent is dependent on an analysis of the circumstances in which it is issued, and by whom.

I hope this is helpful, and that it contributes to the reader’s understanding of the terms, and of why it can prove inadequate to plump for all-embracing solutions without first comprehending the precise functions in which, and contexts to which, they, first, can be and, second, are to be applied.