Chapter 3

3.1 Preliminary remarks

The following chapter will have mainly a practical character as it intends to discuss the issue of
structural equivalence in legal translation on the basis of an exemplary text. However, it seems
necessary to begin with the theoretical background concerning the specific character of legal
translation. The previous chapters discussed the notion of equivalence in general terms not taking
into account the particular nature of legal language and legal documents (Janulewicinie,
Rackevicienie 1074).
First of all, it needs to be stated clearly that the quality of legal translation might have an enormous
effect on people's lives. The wrongly translated concepts can result in legal consequences.
Therefore, the precision is utterly important. On the other hand, it should not be forgotten that legal
translation is regarded by many as one of its most difficult kinds as it is believed to involve skills
necessary for translating literature and precision needed for technical translation (Sarkovic 7). Any
legal system is deeply embedded in a given culture and rightly considered the central feature of a
given civilisation (Harvey 180). The concepts developed within the source language legal system
might be peculiar and unique lacking any clear and direct equivalent in the target language legal
system. Translation legal

terminology seems to be one of the greatest challenges which the

translators might encounter in their careers since most terms have been created based on the values
shared by the members of a given community. Consequently, they should be classified as culturebounded terms. What is more, they form a consistent system deeply entangled in the statues, the
case laws and the documents because they create the context which determine their further
meaning. As it can be plausibly concluded, the legal system is a dynamic entity undergoing constant
changes since legal regulations cannot be distinguished from their interpretation, which, in turn, is
the subject of continuous modification. Legal terms might be defined as: ... a title given to a set of
facts and circumstances which satisfies certain legal requirements and has certain legal;

consequences. (Januleviciene, Rackeviciene 1078) What follows is that in order to render the
meaning of any legal terms the translator has to possess a wide knowledge of both target language
and source language legal systems.
3.2 Types of legal translation
There are several kinds of legal translation depending on the character of the translated and
interpreted texts. First of all, there are texts translated for the normative purpose. This category
includes first and foremost equally authentic legal texts in bilingual and multilingual jurisdictions
of domestic or international laws or legal regulations (Cao 10). Such texts might be produced in
one particular language and then translated into other languages or they can be produced in several
languages simultaneously (Sarkovic 6). One way or another, they possess the regulatory power, and
as such, they are the law itself rather than the translation of law. The examples of such documents
include the regulations created by the international institutions like the UN or supranational bodies
such the EU. It may also involve the private documents, for example contracts (Cao 11). Another
kind of legal documents includes texts translated for informative purposes such as statues, court
decisions and scholarly works. The difference between normative and informative documents is
significant since the normative texts are legally binding both in the target language and in the source
language, whereas the informative texts are only legally binding in the source language
(Janulewicinie, Rackevicienie 1083). This kind of documents are usually produced in monolingual
jurisdictions. The third category includes documents translated for general legal or judicial purpose.
They are mostly descriptive or informative and might be used as partial evidence during court
proceedings. The most typical examples representing this category are: statements, pleadings,
contracts, agreements, business correspondence, records and certificates. It needs to be emphasized
that they have certain legal binding power, which stems from their use in the legal process (Cao 12).
Even the strictly non-legal documents might acquire the legal status once they become a part of the
judicial procedure. For example, a witness statement translated outside the judicial context is a

simple account, but when the process of translation takes place within the judicial frame, the
translated document becomes legally binding (Harvey 182). Obviously, the language used in such
texts do not possess the characteristic features of legal discourse. Consequently, they cannot become
the object of analysis as far as this paper is concerned.
3.3 Features of legal language
The most important feature of legal language, which certainly distinguishes it from many other
types of discourse, is its normative character. It stems from the fact that law is supposed to guide
human behaviour and regulate social relations. Consequently, the language used in legal documents
is mainly prescriptive embodying the values and ideals of a given society (Cao 22). It aims at
influencing, modifying and directing human actions. In addition, the language of law has a
performative character. It is not only used to convey knowledge or to express meaning, but also to
perform certain actions. In other words, by uttering certain words people perform concrete activities
such as declaring, apologising or promising (Janulewicinie, Rackevicienie 1090). The performative
function of language is its general characteristics, but within the domain of legal language it is
particularly discernible. As far as the law is concerned, it is quite common that uttering certain
words and phrases has definite legal consequences. Suffice it to bring an example of a courtroom
where such words as 'I am guilty' will surely have clear and serious consequences. Apart from that,
the legal language is technical due to abundance of specialised terms and nomenclature and the fact
that it refers to a very definite and narrow domain of human activity (Sarkovic 9).
The language of legal texts also reveals certain specific characteristics in terms of syntax, lexicon,
style and pragmatics. As far as syntax is concerned, the legal language features passive and
impersonal structures. They form complex and lengthy sentences which are sometimes difficult to
understand for an average reader. In addition, there are a huge number of conditions, qualifications
and exceptions (Harvey 183). In terms of lexicon, it is characteristic for the legal language to
possess complex and unique vocabulary. That vocabulary is usually quite extensive differing

significantly depending on a particular language, which results in the difficulties in translating. The
vocabulary is the feature most culturally-bounded as it is often based on the use of archaic words
related to a particular culture and history (Cao 25). When it comes to pragmatics, it needs to
acknowledged that the legal language possesses highly performative character. As it was already
said, its purpose is to affect people's behaviour and uttering words equals performing actions, which
are legal bounding. Finally, the style of legal language is not universal, but similarly to the lexicon,
it might significantly differ depending on the particular language.
3.4 The types of legal systems
The difficulties with translating legal texts are not caused only by different culturally-bounded
terminology, but also by structural difference between various legal systems. To say that each
country has its own legal system is only partly true because it needs to be remembered that there
exist larger entities, which can be called world legal systems or legal families encompassing smaller
units developed in particular countries. It is possible to distinguish several such systems including
the Common Law prevailing in English speaking countries, the Romano-Germanic Law dominating
across the continental Europe and because of that called the Continental Civil Law. These two
families are the most prominent since approximately 80 % of national legal systems belong to one
of them. In addition, it seems necessary to mention the systems based on religious interpretation of
the law such as Islam Law and Hindu Law and others like the Socialist Law, the Far East Law or
the African Law. Besides, there are systems which appears to be the hybrids between the Common
Law and the Civil Law, which can be found in such countries as Israel, Scotland, Greece and the
Philippines or in the smaller administrative units like the Province of Canada and the State of
Louisiana (Cao 27).
It can be rightly observed that each legal family forms a distinct code with its own set of values and
concepts developed over a long periods of time. The Common Law, whose formation process began
in the 11th century, is based on the system of case law or judicial precedent. The new regulations are

often produced through the process of analogical reasoning and the precedents form a hierarchy.
The Civil Law is much older since dates back to the Roman times. It used to unify the whole
Europe, but with the development of national particularities, especially after the French Revolution,
it was transformed into several national systems. Among them the most influential were the French
Napoleonic Code and the German and Swiss Codes, which served as the basis for the subsequent
systems. The Civil Law prefers abstract notion and clearly defined areas of law. In the Common
Law the case law is the principal source of law. The rules are specific and applicable to concrete
facts which are believed to form a set of patterns. The Civil Law is governed by the abstract
principles, which are analysed and clearly defined. The case law applies the general abstract
principles which were established in the ancient past. Now they are contained in the codes and
statues and can become the subject of analysis and interpretation. A specific court is obligated to
follow the abstract rule. In the Common Law, a specific court is bound to apply the precedent
established by the court placed higher in the hierarchy (Cao 30)
3.5 The question of equivalence
Taking into account all the difficulties mentioned above, the differences stemming from the peculiar
nature of particular legal systems including differing nomenclature and structural varieties, it seems
plausible to pose a question whether legal translation is possible at all. In practice, that question has
been answered positively a number of times as the translation of legal codes and documents have
been quite common since the dawn of law history. In fact, the history of legal translation has been
dominated by the same arguments as the history of translation in general. There has been an
ongoing dispute between the proponents of the fidelity to the letter of the law or to its spirit. It
actually concluded with arrival at the notion of the functional equivalence, which can be defined as
having an equivalent impact on the target language reader (Rek-Harrop 16). In terms of law
regulations it means that the target language text has the same legal consequences. Besides, it
should be remembered that it is impossible to speak about the fidelity to the source text when it

comes to the normative texts often construed in few languages simultaneously, from the very
beginning. In this case, it is rather possible to speak about the fidelity to the original intent or
concept.
Despite those developments, the linguistic fidelity is still often required from the legal translators as
it is believed that it ensures precision and accuracy necessary in the case of legal texts. Even the
international organisations such as the UN demand that the translators whom they hire avoid
introducing too many changes and modification in the target language text (Cao 33).
Consequently, it might be said that functional equivalence is viewed by many theorists of legal
translation as an ideal strategy, whereas the others consider it suspicious because it can lead to
ambiguity. Functional equivalence within the context of legal translation is sometimes called legal
equivalence. It is more focused on the legal effects which the translated texts might have on the
target language. According to that principle, the translation should attempt to attain the identical
meaning, in terms of propositional content and the legal effects (Harvey 178).
Functional equivalence might fall within three major categories: near equivalence, partial
equivalence and non-equivalence. Near equivalence, which is relatively uncommon, refers to the
situation when the two corresponding terms from the target language and the source language share
almost the same characteristics, both primary and incidental. For example, the English word
'contractor', which is usually translated into Polish 'kontrahent' or 'wykonawca'. In both languages
the term refers to a person or entity who entries a contract. What is more, in both languages the
words often appears within the context of building and constructing. Obviously, there are
differences, but both terms more or less correspond to each other. A similar relation can be observed
between an English word 'creditor' and a Polish term 'wierzyciel'. Both refer to a person to whom an
obligation is owed he or she has given something of value in exchange (Rek-Harrop 14).
Another sort of equivalence is called partial because it describes the situation when both the source
and target language terms are quite similar and the differences between them can be explained by

lexical clarifications. An example of near equivalence is the term 'director'. As far as Polish is
concerned, the term 'director' does not have to refer to somebody who is a member of the Board of
Directors, while in Britain one has to belong to such a body in order to have be referred with such a
tittle. Also, the term 'contract' ('kontrakt' or 'umowa') has a much wider meaning in Polish than in
English. In Polish it encompasses many kinds of deals including various kinds of agreements,
whereas in English its meaning is limited to agreements with specific terms in which there is a
promise to do something in return for a valuable benefit known as consideration (Rek-Harrop 12).
Finally, if there is no functional equivalent of the source language term in the target language
lexicon, it is possible to speak about non-equivalence relationship. In terms of legal equivalence,
non-equivalence takes place when only few or no aspects of the source language legal notion have
their counterparts in the target language legal notions repository. For instance, the English concept
of 'severability', which refers to the particular property of the contract, thanks to which it is possible
to divide it or apportion it into two or more parts not necessarily dependent upon each other. This
concept has no direct counterpart in Polish, so it is necessary to translate it with a paraphrase, for
example (Rek-Harrop 13).
3.6 The analysis of texts.
The following section will be devoted to the analysis of the samples of legal texts and translation.
The

example

is

available

at

http://www.polish-translation.biz/home-mainmenu-1/sample-

translations/68-polish-to-english-translation-of-a-legal-opinion-3.html. This particular example does

not constitute the law itself, but it is rather translation for informative purposes. It is a legal opinion
regarding article 110 of the Polish family Guardianship Code. The source text is in Polish.
The first sentence of the source text: Artyku 110 oraz artykul 112 mwi o pozbawieniu I
zawieszeniu w prawach rodzicielskich. is translated as follows: Articles 110 and 112 provides for
deprivation and suspension of parental custody rights. It is characteristic that while the source text
contains the verb 'mwi', which means 'say' or 'speak', the target version uses the verb 'provide for'

meaning 'allow'. The source text uses neutral verb, whereas the target text emphasizes the binding
legal power of the regulation by using the strong verb. It might indicate the cultural differences:
Polish law only contains the regulations which are supposed to be further enforced by the
authorities, whereas the English law has a binding power in itself. Also, the concept of 'prawa
rodzicielskie' differs to some extent from 'parental custody rights'. First of all, the term 'custody' has
a wider meaning since it refers to the situation when somebody is detained by the authorities or,
more specifically, by the police. In general, the word 'custody' may mean 'care', 'possession' or
'control' over somebody or something. The Polish term 'prawa rodzicielskie' does not have such
connotation literally meaning 'parental rights' without the shade of meaning connected with control.
This observation seems to be confirmed by the close look at the subsequent sentence: Jeli sd
ograniczy wadz rodzicielsk ojca w orzeczeniu rozwodowym, czy posiada moc zawieszenie lub
pozbawienie go praw rodzicielskich w wietle artykuu 112?, which is translated as follows: If the
Court limited the parental custody of the father in the divorce decree, is is tantamount to suspension
or deprivation of his parental custody rights in light of Article 112? This time it is 'wladza
rodzicielska' which is translated as 'parental custody'. Literally. 'wadza rodzicielska' means 'parental
power' or 'parental control', which is much closer to the meaning of 'custody rights'. It appears that
the English term 'custody' does not have a corresponding term in Polish, although there are a few
words and phrases which refer to the concept of parental control over children. It is a typical
example of functional equivalent because, although Polish does not have such a precise term as
'custody', the translator decides to use it in order to reach the same effect.
Another sample comes from the same source. This time the source text is in English and it is the
Mutual Non-Disclosure Agreement. The first sentence of the source text states that: This Mutual
Non-Disclosure Agreement (Agreement) is entered into by and between doing business at
(Company) and XXXX, Inc., (XXXX), (each singularly Party and jointly Parties), which
is translated into Polish as: Niniejsza wzajemna umowa o zachowaniu poufnoci (Umowa)

zostaje zawarta pomidzy .prowadzc dziaalnoc gospodarcz w .. (Firma) a XXXX Inc.,

(XXXX), (dalej okrelane indiwidualnie jako Strona, a lcznie jako Strony). What is
characteristic here is the very term 'non-disclosure', which does not seem to have a corresponding
equivalent in Polish, at least at the level of words. It appears that it has become a fixed phrase
related to confidential information and the way it should be treated. The Polish term with which it is
rendered (zachowanie poufnoci), despite being quite established in terms of phraseology, has not
achieved such a degree of fixedness. Besides, it is fairly precise, whereas the English term
'disclosure' might refer to a number of concepts depending on particular contexts and, consequently,
it is bound to ambiguity. Once again, it is possible to speak about functional equivalence since the
lexical expansion of the target term is aimed at providing the clear and precise corresponding term,
which, in turn, is believed to have the same legal value.
Another fragment which is worth analysing can be found in article 5. The source sentence appears
to feature an example of non-equivalence: In the event of violation or threatened violation of this
Agreement without limiting any other rights and remedies, a temporary restraining order and/or an
injunction to enjoin disclosure of Confidential Information may be sought against the Party who has
breached or threatened to breach this Agreement., which is translated as follows: W razie
naruszenia lub niebezpieczestwa naruszenia niniejszej Umowy, bez wykluczenia innych form
zadouczynienia, przeciwko stronie, ktra naruszya Umow lub grozi jej naruszeniem, niezalenie
od innych rodkw, moe zostac wydany tymczasowy rodek zabezpieczajcy i/lub nakaz sdowy.
First of all, it is worth noting that the syntax in the target version is reversed and modified, although
it cannot be said that this measure has contributed to making the sentence less ambiguous as it is
still difficult to understand. Secondly, the source expression ... without limiting any other rights
and remedies ... is translated with two corresponding phrases ...bez wykluczenia innych form
zadouczynienia... and ... niezalenie od innych rodkw... possibly for the sake of emphasis
which seemed necessary for the translator or maybe because it would sound awkward and

ambiguous in Polish if the words 'rights and remedies' literally 'prawa i zadouczynienia' were
placed next to each other. More importantly, in Polish there is no corresponding term to 'temporary
restraining order', which refers to a court order of a short duration commanding the parties to
maintain certain status, for example restrain from certain activities, for a specified time. A
temporary restrain order usually precedes an injunction. The term is rendered as 'tymczasowy
rodek zabezpieczajcy', which in Polish nomenclature is associated with detaining someone. That
example shows how difficult is to achieve functional equivalence in the situation when the source
language legal concept does not exist in the target language legal system. Obviously, a descriptive
equivalent would be the best solution in this case, but it needs to be remembered that the target text
should be concise and the explanations cannot be too lengthy. The target text ends with the phrase
'nakaz sdowy', which is general and ambiguous. It stems from the fact that the term 'injunction'
may refer to the Polish 'postanowienie' or 'nakaz sdowy'. In fact, in a given context it seems that
both are possible because such an institution as injunction, especially in this particular case, does
not exist in the Polish legal system. What is more, the translator omits the phrase 'enjoin disclosure
of Confidential Information' considering it redundant. It can be doubted whether such a strategy is
plausible since the omitted phrase clearly explains what the injunction is about and what will be its
definite purpose.
The examples above clearly show that the difficulties with translating legal texts stem from the
structural differences between the legal systems. It is not always possible to achieve the effect of
functional equivalence without lengthy explanation or getting into the risk of imprecision. In such a
case, the quality of the text depends on the fact whether it renders the legal effect. It means that
even if it lacks accuracy, it can give the general idea as to what legal measure are supposed to be
taken. On the other hand, as it was already mentioned, translation of legal texts should involve an
informative function. If the texts are translated for purely informative purposes, it should contain
explanations.

10

Works cited
Janulevicinie Violeta, Rackevicienie Sigita. Translation strategies of English legal terms in the
bilingual Lithuanian and Norwegian law dictionaries. Societal Studies, 2011, 3, p. 1073 -1093
Harvey, Malcolm. What's so special about Legal Translation? Meta: Translators' Journal, vol. 47,
no. 2, 2002, p. 177-185.
Krois-Lindner Amy. International legal English glossary. Indeks angielsko-polski terminw
prawniczych wraz z objanieniami. Cambridge University Press: Warszawa, 2006.
Cao Deborah. Translating Law. Multilingual Matters Ltd.: Clevedon, Buffalo, Toronto, 2007.
Sarcevic Susan. New approach to legal translation. Kluwer Law International: The Hague, 1997.
Rek-Harrop

Joanna.

Polish

and

English

www.harroptranslations.com/_PL/_bd/a7.doc

11

translation

of

jurilinguistic

discourse.

12