4 

October 2002  

Dr Ayfer Altay, Head

of the English
Division of the
Department of
Translation and
Interpretation of
Hacettepe
University, Ankara, Difficulties Encountered in the
Turkey is a graduate
of the Department of Translation of Legal Texts:
English Language
and Literature of
Ankara University,
The Case of Turkey
and got her MA
Degree in English by Dr. Ayfer Altay
Literature and her
Ph.D. in English
Literature and  
Linguistics from the
same University.
Since 1987, she has Introduction  
been working at the
Department of
Translation and
he problems encountered in translating legal texts,
Interpretation, which are categorised below, are specific to legal
having been translation between the English and Turkish languages
involved in
"translation" both
and legal systems. These problems are mostly
professionally and encountered by students learning legal translation, in
academically. In our case those at the department of Translation and
1990, after being
selected by a series
Interpretation at Hacettepe University in Turkey.
of exams, the
Turkish Government
While lawyers The problems will be studied under
sent her to Brussels,
for a 6-month cannot expect six main categories, which are likely
traineeship program translators to to be quite broad. Such a study
at EEC. There, she
produce parallel could have been applied to the
studied EEC Law, its
structure, translation texts that are limited examples from a limited
of legal texts, and identical in source or from a certain area of law.
also participated in
meaning, they do Alternatively one of the categories
the translation of the
Treaties Establishing expect them to could have been taken as the point
the Community into produce parallel of concentration and the idea could
Turkish. Presently
texts that are have been developed further.
she primarily
teaches "translation identical in their However, I have tried to put
of legal texts" at the legal effect. forward the major sources of errors
Department. She and problems due to the differences
also translates legal
texts for
in legal systems and languages.
Government
organisations. These categories have arisen from my twelve years of
Currently she is busy
with preparing a
personal experience as an instructor of translation of
book on "Translation legal texts. The article will discuss mainly syntactic
 of Legal Texts."
arrangements. Arguments on semantic and pragmatic
Dr. Altay can be
reached at models concerning phraseology and textology in
ayferaltay@yahoo.co doctrines in international law or comments on parallel
m textuality in legal matters and on legal authenticity will
.
not be provided for the time being, since they would
broaden the subject excessively.

  Before studying the problems and difficulties of

translating legal texts, first we shall describe the
historical and linguistic backgrounds which made both
  Turkish and English legal languages become what they
are today, because the difficulties arise mainly due to
  the differences in linguistic systems and languages.
Therefore, we shall start with The Bases of the English
Legal Language (although these may be well-known to
the British reader). Then, The Bases of the Turkish Legal
  System and The Nature of the Turkish Legal Language
 Front Page will be discussed briefly. Before studying the problems
  and difficulties of legal translation, the general features
 July ‘02 of legal language, and the common features of the
Issue English and Turkish legal languages will be discussed
  very briefly.
 April ‘02  
Issue
  Bases of the English Legal Language
 January ‘02
Issue It is impossible to fully appreciate the nature of legal
  language without having some familiarity with its
 October ‘01 history. There is no single answer to the question of
Issue how legal language came to be what it is (Tiersma
  1999:47). Since much of the explanation can be found
 July ‘01 in the historical events which have left their mark on the
Issue language of English law, we should first take a glance at
  the historical background of today's British legal
 April ‘01 language.
Issue
  Like their language, the law of the British Celts had little
 January ‘01 lasting impact on the English legal system. The
Issue Germanic invaders who spoke Anglo-Saxon or Old
  English developed a type of legal language, the
 October ‘00 remnants of which have survived until today, such as
Issue "bequeath," "theft," "guilt," "land." The Anglo-Saxons
  made extensive use of alliteration in their legal
 July ‘00 language, which survived in today's English legal
language in expressions such as "aid and abet," "any
 Issue
  and all," etc.
 April ‘00
Issue Even without alliteration, parallelism was an important
  stylistic feature of Anglo-Saxon legal documents, which
 January ‘00 has also survived. Even today witnesses swear to tell
Issue "the truth, the whole truth, and nothing but the truth"
  (Tiersma 1999:15).
 October ‘99
Issue A significant event for the language and law of England
  was the spread of Christianity in 597, since it promoted
 July ‘99 writing in Latin. Through the Roman Catholic Church the
Issue Latin language once again had a major presence in
  England. Its influence extended to legal matters,
 April ‘99 particularly by means of the Canon Law, through which
Issue the Church regulated religious matters such as marriage
  and family. The use of Latin as legal language
 January ‘99 introduced terms like "client," "admit," and "mediate"
Issue (Tiersma 1999:16).
 
 October ‘98 After the Duke of Normandy claimed the English throne
Issue and invaded England in 1066, the main impact of this
  Norman conquest on the written legal language was to
 July ‘98 replace English with Latin (Tiersma 1999:20). Beginning
Issue in 1310, the language of statutes was French, but it was
  not until two hundred years after the Conquest that
 April ‘98 French became the language of oral pleadings in the
Issue royal courts. For the next one or two centuries French
  maintained its status as England's premier legal
 January ‘98 language. However, in 1417, while fighting the French,
Issue King Henry V broke all linguistic ties with his Norman
  ancestry and decided to have many of his official
 October ‘97 documents written in English (Tiersma 1999:23).
Issue
  Despite the emergence of French, Latin remained an
 July ‘97 important legal language in England, especially in its
Issue written form. The fact that writs were drafted in Latin
  for so long explains why even today, many of them
have Latin names. The use of Latin and tireless
repetitions by the judges have endowed these legal
  maxims with a sense of timelessness and dignity;
moreover, they reflect an oral folk tradition in which
legal rules are expressed as sayings due to the ease of
 
remembering a certain rhythm or rhyme (Tiersma
Five Continents 1999:26).
  
Index 1997-
2002 These poetic features are still occasionally found in the
English legal language. Latin has also remained in
  expressions relating to the names of cases and parties;
  Translator
Profiles
for example, in England the term for the crown in
Translator, criminal case names is "Rex or Regina" (Tiersma
Teacher, 1999:27).
Businesswoman,
Mentor
Courtney Searles- When Anglo-French died out as a living language, the
Ridge interviewed French used by lawyers and judges became a language
by Ann Macfarlane exclusive to the legal profession (Tiersma 1999:28). It
  was incomprehensible both to their clients and to the
  The Profession speakers of ordinary French. Legal French also
The Bottom Line contained many terms for which there were no English
by Fire Ant & equivalents.
Worker Bee
Translation and
Project
Several French terms are still common in legal English
Management such as "accounts payable/receivable," "attorney
by Celia Rico general," "court martial." The most lasting impact of
Pérez, Ph.D.
French is the tremendous amount of technical
What the Guys
Said, the Way vocabulary that derives from it, including many basic
They Said It, As words in the English legal system, such as "agreement,"
Best We Can "arrest," "estate," "fee simple," "bailiff," "council,"
by Danilo
Nogueira "plaintiff," and "plea." As in the early Anglo-Saxon
  influence, which had phrases featuring the juxtaposition
  of two words with closely related meaning which are
Translators and
Computers
often alliterative such as "to have and to hold," this
The Emerging Role doubling continued in legal French, often involving a
of Translation native English word together with the equivalent French
Experts in the word, since many people at the time would have been
Coming MT Era
by Zhuang Xinglai partially bilingual and would understand at least one of
  the terms, for example, "acknowledge and confess,"
  Legal "had and received," "will and testament," "fit and
Translation
Difficulties
proper."
Encountered in the
Translation of As we see through the Middle ages, the legal profession
Legal Texts: The
made use of three different languages. During the rest
Case of Turkey
by Dr. Ayfer Altay of 17th century, Latin and legal French continued their
slow decline.
 
  Literary
Translation
In 1731, Parliament permanently ended the use of Latin
Cultural and French in legal proceedings; however, it became
Implications for difficult to translate many French and Latin terms into
Translation
English. With another statute, it was provided that the
by Kate James
African Writers as traditional names of writs and technical words would
Practising continue to be in the original language (Tiersma
 Translators—The
Case of Ahmadou
Kourouma 1999:36), and the ritualistic language remained
by Haruna Jiyah important. The exact words of legal authorities mattered
Jacob, Ph.D.
very much to the profession. Rewriting an authoritative
 
Arts & text in your own words was considered to be dangerous
 
Entertainment and even subversive (Tiersma 1999:39). Tiersma
Performability mentioned that once established, legal phrases in
versus
Readability: A
authoritative texts take on a life of their own; you
Historical meddle with them at your own risk (1999:39). He adds
Overview of a that, in authoritative written texts, the words will
Theoretical
Polarization in
remain the same even if the spoken language and
Theatre indeed the surrounding circumstances have changed,
Translation and lawyers will use the same language even if the
by Dr. Ekaterini
Nikolarea
public no longer understands it. Once this happens, the
Translation in a professional class that is trained in the archaic language
Confined Space— of the texts becomes indispensable (Tiersma 1999:40).
Film Sub-titling
by Barbara
Schwarz All these developments throughout history have led to
an obtuse, archaic and verbose legal language in English
  which is one of the main reasons of the difficulties
  Caught in the
Web
encountered by Turkish translators in translating legal
Web Surfing for texts written in English.
Fun and Profit
by Cathy Flick,  
Ph.D.
Translators’ On-
Line Resources Bases of the Turkish Legal System
by Gabe Bokor
The Koran (the holy book of Moslems), certain rules and
 
Translators’ provisions set by sources other than Koran, for example
 
Tools Mohammed the Prophet's words which are called the
Translators’ "traditions" or "fatwas," diversified and often
Emporium
contradictory provisions and interpretations are called in
Trados—Is It a
Must? toto "Islamic Law," under which the Ottoman Empire
by Andrei was ruled throughout the centuries.
Gerasimov
 
Translators’ Job
Mohammed's words are general principles of justice and
Market equity, with a high degree of objectivity and essentially
primary regulations necessitated by the social nature
 
and structure of the Arab community of that time. It
Letters to the
Editor must be mentioned that not only the Koran, but also the
other sources of Muslim jurisprudence were essentially
  created to meet the needs of the community existing
Translators’
Events
during and after Mohammed's era (Timur 1956:85). It
must also be mentioned that throughout the centuries
  the presence of different and irreconcilable religious
Call for Papers
sects among the Moslems in the area, and the continual
and Editorial
Policies
increase of the proportion of non-Moslem citizens after
the annexation of Istanbul by Sultan Mehmed the
Conqueror have created insurmountable difficulties in
jurisprudence. Moreover, Islamic Law was not broad and
comprehensive enough to offer reasonable solutions to
legal problems of every kind.

In fact, the traditions are not applicable to our

contemporary society, because Islamic Law contains no
provisions regulating the sundry relationships of political
institutions and commercial transactions of today's
world. Likewise, its rules relating to the vast field of
criminal law and jurisdiction are too limited to serve
their purpose adequately in the modern world (Timur
1956:86). Furthermore, a great many Islamic codes and
legal provisions have become impracticable because in
time they have fallen short of meeting the requirements
brought about by the continuous metamorphoses of the
communities and have completely lost their vitality. For
example thousands of articles in the Megelle (Islamic
Law), are no longer vital and integral parts of Moslem
Law due to their inapplicability. To give an example:
Polygamy, which was an accepted social phenomenon of
Arab society, has not been practiced in Turkey after
Atatürk's reforms. Due to all these shortcomings of
Islamic jurisprudence, the reforms of 1839 were a
conscious attempt to put an end to the confusion in the
judicial sphere and to extend legal equality to all citizens
without any discrimination based on religious affiliation.
In 1841 a criminal code was drawn up. Although laws
regulating land and sea trade appeared, there was still
no legislation with regard to family and marital
relationships, which constitute an integral part of society
(Timur 1956: 75).

Following the 1923 Lausanne Peace Conference, the

Turkish government of the new republican regime in
Turkey decided that the legal codes should be modeled
after the legal systems of modern European states. The
extensive legislative work conducted under the
leadership of Atatürk was not a haphazard selection
based on an irrational admiration of the European legal
systems, but an inevitable solution to the paradoxes and
conflicts described above (Timur 1956: 76).
The legal system of the old Turkish state of the
Ottomans was based on religious (Islamic) principles,
i.e., throughout the centuries the rules of religion were
regarded as legal rules. The political development in the
19th century brought about closer contact between
Turkey and the Western world, and this necessitated a
reform in the judicial system. After the new Turkish
Republic was founded in 1923, the Islamic legal system
of the Ottoman Empire was discarded in 1924 and was
substituted by secular law. Thus, reform of private law
became inevitable. As the time available for the
preparation of a new national civil code was limited,
there remained for the Turkish jurists only one
possibility: the Swiss Civil Code which with its
popularity, clarity, and especially with its simple style
was suitable for the purpose (Izveren 1956:93) .

Turkey has used the Swiss, German, and Italian codes

as models in the field of private and public law.
However, no foreign penal codes were adopted. By
adoption of a foreign code (Timur 1956:77), we do not
mean that a foreign system was adopted in toto. Only
the legal framework of other nations, but not all the
foreign laws or the entire foreign system were adopted.
The new legal system was created with close attention
paid to local conditions. The legal system of a nation is
closely tied to the national character. The legal system
of one country cannot be adopted by another without
adopting the national character of the former as well.
Turkey adopted the Swiss Civil Code and the Swiss Code
of Obligations. The application of these codes by the
Turkish courts resulted in a Turkish Civil Code and a
Turkish Law of Obligations. The new Turkish Civil Law
was inspired by Swiss ideas whenever these were not in
conflict with the moral and social principles of the
Turkish people (Ayiter 1956:42).

Nature of the Turkish Legal Language

Language reform, which is one of the most widely an

ardently discussed cultural problems in modern Turkey,
is an issue directly related to the legal language used in
Turkey today.

Kemal Atatürk, the founder of the modern Turkish

Republic, aimed at creating a nationalist, secular,
populist, revolutionary, and etatist republic. However,
the Turkish language at that time was Ottoman Turkish,
full of numerous Arabic and Persian words which was
regarded as a disgrace because nationalism, the main
ideology of "Kemalism" demanded the purification of the
Ottoman Language by replacing its foreign elements
with genuine Turkish words. Atatürk's cultural
orientation which was based on a complete break with
the Islamic past and the adoption of the secular values
of modern western civilisation also supported this
tendency. Therefore, the Latin script was introduced.
Atatürk did not intend to create a new language as a
result of a slow, evolutionary process, but by drastic
measures within a short time. Thus he created a
national association, the Turkish Linguistic Society,
which was entrusted with the systematic reform of the
Turkish language in close co-operation with the Ministry
of Education, the Republican People's Party and the
People's Houses (Halkevleri). In 1928, which is
considered the beginning of Atatürk's "language
revolution" in Turkey, the Turkish National Assembly
amended Article 2 of the Constitution as "the religion of
the State of Turkey is Islam, its official language is
Turkish," and a few months later, the new Turkish
alphabet composed of Latin characters was adopted by
Parliament. In 1932, the Turkish Linguistic Society
whose aim was "to bring out the genuine beauty and
richness of the Turkish language and to elevate it to the
high rank it deserves among the world's major
languages" was officially founded. It was a hard task
and there were many people and institutions who were
fervently for this drastic change as well as those who
were against it. Atatürk's death in November 1938
weakened the momentum of the language revolution.
The Republican People's Party adopted its new
programme and statutes in 1939, into which many
Arabic terms previously eliminated were reinstated
(Heyd 1954:40).

However, the movement gained new impetus through

the efforts of efforts of İsmet İnönü, Atatürk's
successor. Now as the President of the Turkish Republic,
he issued a statement promising to continue the work
inaugurated by the late Atatürk for the purification of
the language from foreign elements and the evolution of
a truly national language. The most drastic expression
of the renewed purist tendencies was the translation of
the Turkish Constitution into purer Turkish. To a certain
extent, the vocabulary of the Constitution forms part of
the legal terminology, and its reform is related to that of
technical and scientific terms. The drafts prepared at the
Faculties of Law of Ankara and Istanbul Universities by a
group which included members of Parliament interested
in legal and linguistic problems and members of the
Linguistic Society were taken into consideration before a
final draft was submitted to Parliament and adopted in
January 1945. It was an exact "translation" of the
constitution of 1921 (Teşkilatı Esasiye Kanunu) which
was amended in 1924 and which was based on Arabic
vocabulary.

In the 105 articles of the new version of the

Constitution, there were only about 1410 different
words borrowed from Arabic or Persian and less than 10
European words. Many of the Arabic and Persian words
were replaced with Turkish ones, and those retained
were given a Turkish form to the extent possible (Heyd
1954:42). The new version of the Constitution was
evidently the result of a compromise between divergent
opinions.

Until that time, the puristic efforts of the Linguistic

Society had met with certain criticism by public opinion,
but during the presidency of both Atatürk and Inonu this
opposition was latent, while with the growing
democratisation of Turkish society after World War 2,
criticism became more verbal and public. Drastic
reformation of the Turkish language was strongly
opposed by Istanbul University, a large section of the
press, and also by the Istanbul Teachers' Association.
The reasons for the opposition were, among other
things, the reluctance of people to change the
vocabulary they had been used to since childhood,
reluctance of journalists and authors to use words
unknown to the public, and a widespread opinion that
language as a living organism should develop by
evolution and in accordance with its intrinsic laws. The
Linguistic Society was said to have created a new
artificial official and eurdite language very different from
the language of ordinary conversation instead of
developing the existing language so that it would be
understood even by the people on the street. Under the
influence of all this criticism, the Sixth Language
Congress, which convened in 1949, tended towards
moderation in linguistic reform. After the Extraordinary
Language Congress held in 1951, the Society's new
policy was outlined as "rejecting the views of both the
conservatives and extreme purists, and following a
middle course." The goal was to free the Turkish
language from the dominance of both eastern and
western languages. The most striking manifestation of
the opposition to the puristic policy of the Linguistic
Society with regard to our subject was the revocation of
the "translated" 1945 version of the Constitution. In
1952, by the vote of an overwhelming majority,
Parliament decided to reintroduce the old text of 1924
including later amendments but without any change in
language. At the same time, many Arabic terms were
reinstated instead of Turkish neologisms in the language
of law and administration.

Lastly, on July 9, 1961 a new version of the

Constitution, written in completely clear and modern
Turkish was submitted to a plebiscite and accepted. In
1971 and 73 some major changes were introduced into
the Constitution. Following the coup d'Ttat of 1980, the
previous Constitution was partially changed. In 1982, as
an act of restoration of the democratic order, a new
Constitution was prepared and after being submitted to
a plebiscite, it was accepted and put into force the same
year. A few amendments have been and still being
introduced to the Constitution. However, the rest of the
legislative language did not undergo a similar
purification process. While the vocabulary of the
Constitution has been updated, laws written in their
original archaic language are still being used by the
courts. Therefore, there is a large gap between the
language used by the people on the street and
legislation. From time to time, motions are tabled by the
legislature aiming at the unity and purification of the
legal language and its harmonisation with the
Constitution (Özdemir, 1969:122), but these attempts
have not resulted in concrete legislative action.

Today, after more than 50 years, it is evident that the

language reform has succeeded in changing the
vocabulary of modern Turkish to a great extent. The
vocabularies of the press, administration, scholarly
works, school textbooks, and literature are written in
Turkish using many words introduced by the Linguistic
society, along with some Arabic or Persian words.

These Arabic or Persian words can be detected

especially in the discourse of elderly people. The
presence of old and new words side by side in legal
texts, and the fact that the language of law is still
archaic Turkish including lots of Arabic and Persian
words with which the young generation is completely
unfamiliar are the main reasons for the difficulties
encountered by legal translators in Turkey.
 

General Features of Legal Language (Turkish and

English)

The general features of legal language that will be

discussed here apply both to English and Turkish legal
languages. As Melinkoff has suggested, "legalese" is a
way of "preserving a professional monopoly by locking
up the trade secrets in the safe of an unknown tongue"
(1963:101). On the other hand, as Tiersma suggests
quoting from Sir Edward Coke, lawyers justify keeping
the laws in an "unknown tongue" by pretending to
"protect the public" (1999:28).

Lawyers tend to defend their technical vocabulary as

essential to communication within the profession, since
they can easily understand each other using the special
terminology. Studying law is in a large measure
studying a highly technical and frequently archaic
vocabulary and a professional argot (Goodrich 1987:
176).

Law is a profession of words. The general features of

legal language that apply to both English and Turkish
legal languages are the following:

It is different from ordinary language with respect to

vocabulary and style.

The prominent feature of legal style is very long

sentences. This predilection for lengthy sentences both
in Turkish and in English is due to the need to place all
information on a particular topic in one complete unit in
order to reduce the ambiguity that may arise if the
conditions of a provision are placed in separate
sentences. Another typical feature is joining together
the words or phrases with the conjunctions "and, or" in
English and "ve, veya" (meaning "and," "or") in Turkish.
Tiersma suggests that these conjunctions are used five
times as often in legal writing as in other prose styles
(1999: 61).

Thirdly, there is abundant use of unusual sentence

structures in both languages. The law is always phrased
in an impersonal manner so as to address several
audiences at once. For example a lawyer typically starts
with "May it please the court" addressing the judge or
judges in the third person (Tiersma 1999:67) while in
Turkey court decisions begin with "Gereği dnşnnnldn"
(the necessary penalty has been decided on) when a
judge sentences somebody to a certain penalty.

Another feature is the flexible or vague language.

Lawyers both try to be as precise as possible and use
general, vague and flexible language. Flexible and
abstract language is typical of constitutions which are
ideally written to endure over time (Tiersma 1999: 80).

The features of "legalese" that create most problems are

its technical vocabulary and archaic terminology. Both
Turkish and English legal languages have retained words
that have died out in ordinary speech, the reasons of
which have been explained above. Historical factors and
stylistic tradition explain the character of present-day
English and Turkish legal languages. Many old phrases
and words can be traced back to Anglo-Saxon, old
French, and Medieval Latin, while in Turkish they can be
traced back to the Persian used in the Ottoman Empire.
Archaic vocabulary and the grammar of authoritative
older texts continue to influence contemporary legal
language in both Turkey and Britain because, just as the
Bible or the Koran is the authoritative source of religion
for believers, documents such as statutes, constitutions,
or judicial opinions are the main sources of law for the
legal profession (Tiersma 1999:96). And in Turkey, just
as the religious circles are reluctant in changing the
Arabic language of the Koran into Turkish language, the
legal circles are reluctant to change and modernise the
Arabic-influenced archaic language of the Turkish legal
language.

Legal language is conservative because reusing tried

and proven phraseology is the safest course of action
for lawyers. Archaic language is also authoritative, even
sounds majestic both in Turkish and English. As Tiersma
suggests "using antiquated terminology bestows a sense
of timelessness on the legal system as something ...
deserving of great respect" (1999:97).

In Turkey, old people using the same kind of archaic

language inspire awe in most of us.

In both legal languages there are many words that have

a legal meaning very different from their ordinary
meanings. Tiersma calls the legal vocabulary that looks
like ordinary language but which has a different
meaning peculiar to law as "legal homonyms"
(1999:112). This is one of the problematic features in
translation.

There are also synonyms in legal languages of both

Turkish and English, i.e., different words with the same
meaning. One of the features of legal language which
makes it difficult to understand and translate (for an
ordinary translator/reader) of course is its unusual and
technical vocabulary. Some of its vocabulary such as
"tortfeasor," "estoppel" in English and "ahzukabza"
(take and receive) in Turkish, which do not even
suggest a meaning to an ordinary person, is a complete
mystery to non-lawyers.

Another feature of the English legal language is the

modal verb "shall." In ordinary English, "shall" typically
expresses the future tense, while in English legal
language "shall" does not indicate futurity, but it is
employed to express a command or obligation (Tiersma
1999:105). However, in Turkish legal documents, the
way of expressing legal obligation is using simple
present tense.
 

Problems and Difficulties Encountered in

Translating Legal Texts Between English and
Turkish

Translation of legal texts (from English into Turkish and

visa versa) poses problems closely related to both the
nature of legal language and the specific features of
both English and Turkish legal systems and languages.
The examples that follow cover a wide range of legal
texts; from contracts to resolutions to treaties.
 

I) Problems arising due to the differences in legal

systems: The most daunting aspect of legal translation
common to almost every language is the culture-specific
quality of the texts. As Martin Weston suggests, "the
basic translation difficulty of overcoming conceptual
differences between languages becomes particularly
acute due to cultural and more specifically institutional
reasons (1983:207). Newmark also suggests that "a
word denoting an object, an institution, or if such exists,
a psychological characteristic peculiar to the source
language culture is always more or less untranslatable"
(quoted in Weston 1983:207). The equivalence of an
institution, a division, a concept, or a term may not be
found in the target language—in our case, in Turkish.
There are no words in Turkish to express some of the
most elementary notions of British law. The words
"common law" and "equity" are only two of the
examples. There is no system of "common law" and
"equity" in the Turkish legal system. Moreover how
should we translate "barrister" or "solicitor" into Turkish
as there are no such job titles in the Turkish legal
system. A Turkish legal translator overcomes the
difficulty of translating a term or a concept which is
absent in the target culture using the following
methods:
 

1) Paraphrasing

This method is explaining the SL concept if it is

unfamiliar to the target reader, when there is no
equivalent institution or concept in the target culture
and when a literal translation will make no sense.

As we have mentioned above, the translation of

"barrister" and "solicitor is problematic, since in the
Turkish legal system there are no such job titles. As we
know, in the British legal system a "barrister" is a
person who executes the legal case in courts, whereas
"solicitors" are those who declare their opinions and
recommendations to the parties in a lawsuit and who
provide contact with the barrister (Yalçınkaya
1981:153).

As a concept, 'barrister' is more or less the formal

equivalent of 'lawyer' in Turkey. To overcome the
conceptual confusion, barrister is translated as "duruş
ma avukatı," meaning the "lawyer in court," whereas
"the solicitor" is translated as "danış ma avukatı" which
means the "consultant lawyer."

This is paraphrasing the concepts which are not shared

both by the source and target cultures. Another
concept, which commonly causes translation problems
between different cultures, is "Lord Chancellor." Since
there is no "House of Commons" or "House of Lords" in
the Turkish parliamentary system, these terms are also
translated by paraphrasing. "Lord Chancellor" is
translated as "Lordlar Kamarası Baskanı" meaning the
"Head of the House of Lords." Concepts peculiar to the
Western legal and parliamentary systems are generally
translated through paraphrasing.
 

2) Finding the Functional Equivalence

This is using a TL expression that is the nearest

equivalent concept. Of course it is much more difficult to
find the functional equivalent of a legal SL term where
the legal institutions of two cultures do not have much
in common.

To quote an example that is problematic mostly for

translators between English and French: "Solicitor"
(which is used for the French "notaire") has the Turkish
functional equivalent of "notary." Moreover, the
generally used Turkish functional equivalent of
"solicitor" is "avukat" which is the literal translation of
"lawyer." Both "court" and "tribunal" are translated as
"mahkeme" which is the literal translation of "court."
Translation of "tribunal" as "mahkeme" is rendering the
functional equivalent of it.

Using this method frequently leaves the translator short

of terminology due to the different structures of the
legal systems of the Turkish and British cultures.
 

3) Word-for-Word (Literal) Translation

This is translating lexical word for lexical word, and

making adjustments of prepositions, endings, and other
grammatical features if necessary. For example, "Court
of Protection" is translated directly as "Koruma
Mahkemesi" (Koruma=Protection and Mahkeme=Court)
while the words change place so as to ensure the
correct syntactic arrangement in Turkish. Other
examples may include the translation of "Treasury
Solicitor" as "Hazine Avukatı" (Treasury=Hazine and
Solicitor= Avukat), "Courts of Chivalry" as "Şövalyelik
Mahkemesi" (Chivalry=Şövalyelik, Court= Mahkeme).

On the other hand, when the source text is in Turkish,

and when it is translated into English, it makes a
difference whether the target text is directed to
American or English culture, because the terms and
institutions of different cultures using the same
language may be different. For example, a "prison" in
the British System is a "penitentiary" in the American
system, and they are both translated as "hapishane"
into Turkish. A "Magistrate's Court" in the British legal
system is "Civil Court of Peace" in the American legal
system, and they are both translated as "Sulh
Mahkemesi" into Turkish. "Attorney" and "Sheriff" do
not have simple translated equivalents in UK English
and other languages (Rey 1995:88).

 II) Problems arising due to the difference in the

language systems, syntactic arrangements, and word
orders of the Turkish and English languages:

A) The fact that the verb is placed at the beginning of a

sentence in English (SVO pattern), while it is placed at
the end of a sentence in Turkish (SOV pattern) creates
problems for the translator. The following sentences are
taken from the "Resolution adopted by 933 votes to 65,
with 356 abstentions by the 94th Inter-Parliamentary,
Conference (Bucharest, 13 October 1995), "To
Comprehensively Ban Nuclear Weapons Testing And Halt
All Present Nuclear Weapons Tests":

The 94th Inter-Parliamentary

Conference,

Hoping that these tests will not

complicate the already difficult
negotiations underway on a
comprehensive test ban treaty and
make it more difficult to achieve a
truly comprehensive and
internationally verifiable treaty,

Recalling that the Inter-Parliamentary,

Union has a duty to promote the
cause of international peace and
security, nuclear disarmament and the
non-proliferation of nuclear
weapons,...

The translation into Turkish is as follows:

Bu denemelerin nükleer silah

denemelerini yasaklayan kapsamlı bir
anlaşma için yapılmakta olan
meşakkatli görnşmeleri daha da
zorlastırmayacagını umarak

Parlementolararası Birliğin uluslar

arası barış ve güvenlik davasını,
 nükleer silahsızlanmayı ve nükleer
silahların artışını engellemeyi
destekleme görevine sahip olduğunu
hatırlatarak

The underlined words, which are placed at the beginning

of the sentences in the source text, will automatically
shift to the end of the sentences in the translated text
which is in Turkish:

This difference in word orders of both languages can

also be visually explicit. The heading of the source text
is as follows:

RESOLUTION

On Economic and Trade Relations

Between the Community and Turkey.

However, the target text has the following arrangement:

Topluluk ve Türkiye Arasındaki

Ekonomik ve Ticari İlişkiler Üzerine

KARAR

As obvious, even the visual arrangement of the heading

shows great difference as the word "Resolution"
(meaning "Karar" in Turkish) is placed at the beginning
in the English text, while it is placed at the end in the
Turkish sentence.

B) Another difficulty arises due to the use of modal verb

"shall" in legal English. When they study the grammar of
the English language, Turkish students learn that "shall"
is the modal verb indicating futurity, and therefore they
tend to translate the sentences containing "shall" as
future tense into Turkish. However, as Danet suggests
(1985:281), in formal English legal language, "shall" is
used to express authority and obligation (Bowers
1989:35), rather than futurity.

The following is an example taken from the

Memorandum signed in Prague on 19 October 1989
between Czechoslovakia and Turkey:

Article 2:

"The Parties shall take the necessary

measures to ensure the mutual
facilitation of tourist flow in their
respective countries

Article 5:

"The parties shall exchange

information, technology and experts in
the field of tourism training."

The translation is as follows:

Madde 2:

"Taraflar kendi ulkelerinde turist

akısını karsılıklı olarak kolaylastırmayı
saglamak icin gerekli tedbirleri alırlar
(The parties take the necessary
measures...)."

Madde 5:

"Taraflar turizm eğitimi alanında

karşılıklı bilgi, teknoloji ve uzman
mübadelesinde."bulunurlar (The
parties exchange information)."

The verbs in bold letters are the verbs of both texts. The
source text uses the modal verb "shall," while the
correct translation uses the present tense.

III) Problems arising due to the lack of an established

terminology in Turkey in the field of law: Although the
terminographer Daniel Gouadec says that identifying
only one term for a specific concept, object, or situation
is impossible (1990:XVII), the necessity for each
subject field to describe, standardise, and teach its
terminology has now become evident in the age of ever
increasing international relationships.

The following examples, which are taken from The

Treaties Establishing the European Communities
(1996), and their translations, show that there may be
more than one counterpart in Turkish of a single word in
English:

1) Any European state may apply to

accede to this Treaty. It shall
address its application to the Council,
which shall act unanimously after
obtaining the opinion of the High
Authority; the council shall also
determine the terms of accession;
likewise acting unanimously.
Accession shall take effect on the day
when the instrument of accession is
received (Article 98).

The translation into Turkish is as follows:

1) Her Avrupa devleti işbu antlaşmaya

taraf olmak için başvuruda bulunabilir.
Antlaşmaya taraf olmak isteyen
devlet Konseye basvurur. Konsey,
Yüksek Otoritenin görüşünü aldıktan
sonra oybirligiyle karar alır ve yine
oybirliğiyle katılma şartlarını belirler.
Bu katılma katılma belgesinin işbu
antlaşmanın .......(Avrupa
Topluluklarını Kuran Temel
Antlaşmalar,1996, Madde:98).

As noted above, the verb "accede" is translated as

"taraf olmak," while its noun derivation "accession" is
rendered by a noun which is derived from a totally
different verb "katılmak" in Turkish. Thus two different
verbs which are "taraf olmak" and "katılmak" are used
in the target text for a single verb "access" in the source
text.

Another example is the following:

 2)....to evade the rules of competition
instituted under this Treaty, in
particular by establishing an artificially
privileged position involving a
substantial advantage in access to
supplies or markets (Article 66) .

2)...özellikle ikmal kaynaklarından

veya pazarlardan yararlanmada
önemli bir avantaj elde edecek
şekilde....(Madde:66).

Unlike in article (1), the same English verb "access" is

rendered by a completely different Turkish verb
"yararlanma" which literally has the English
equivalence of "benefit from."

To elaborate on the examples and in order to indicate

how serious the issue is, let us take a look at some
more examples from the Translation into Turkish of the
"Convention for the Protection of Human Rights and
Fundamental Freedoms." Excerpts from the texts in
target and source languages are given below:

Article 5:

1. Everyone has the right to liberty and

security of person. No one shall be deprived
of his liberty save in the following cases and
in accordance with a procedure prescribed
by law:

a) The lawful detention of a person

after conviction by a competent court

b) The lawful arrest or detention of a

person.....

The translation into Turkish is as follows:

1).....

a) Salahiyetli her mahkeme tarafından

mahkumiyeti üzerine usulu
 dairesinde hapsedilmesi

b) Bir mahkeme tarafından kanuna

uygun olarak verilen bir karara....

The adjectives "lawful" having exactly the same

meanings in the source text above are translated as
"usulu dairesinde" and "kanuna uygun olarak"
respectively in the target text, and these are official
translations.

IV) Problems due to the use of unusual sentence

structures in the English legal language: As Tiersma
suggests, there are various kinds of subjunctives, all of
which have died out in modern English, especially in
spoken language (1999:93). The type of "legal"
subjunctive is a construction known as the "formulaic
subjunctive" which involves use of a verb in its base
form and conveys roughly the same meanings as "let"
or "may." This usage, which Tiersma characterises as
formal and old fashioned, is still very much alive in legal
usage. The frequent phrase used at the beginning of a
Power of Attorney, "Know all men by these presents" is
a completely uncommon word order and uncommon
sentence structure. In a "Vekaletname" in Turkish,
which is the counterpart of a Power of Attorney, there is
no uncommon sentence structure as such, although the
general sentence structure of it resembles that of the
Power of Attorney with respect to its length and
complexity.

Another example is the "British enactment clause"

(Tiersma 1999:93), which is found at the beginning of
all statutes:

"Be it enacted by the Queen's most

Excellent Majesty, by and with the
advice and consent of the Lords
Spiritual and Temporal, and
Commons, in this present Parliament
assembled, and by the authority of the
same....."

In addition to the subjunctive, this clause illustrates

several other common features of legal English, such as
French word order (Lords Spiritual and Temporal),
formal language (Queen's most Excellent Majesty), odd
word order (in Parliament assembled), and conjoined
phrases (by and with, advice and consent) (Tiersma
1999:93), which are still very challenging features for a
Turkish legal translator.

V) The fifth main reason for the errors and difficulties in

the translation of legal texts is the fact that the
language used in the legal system in Turkey is very old
and generally quite different from the currently used
language for the reasons explained in the previous
chapters. There are still many words and patterns in
legal Turkish texts which are completely out of date in
other types of discourse.

The following terms are taken from the Contract signed

between the Public Airports Administration of the
Republic of Turkey and Company X for the purchase of
special material. These terms are completely in old
Turkish and are used nowhere else in Turkey presently
except in legal texts. Although they are not
understandable to a Western reader, it would be
interesting to see the difference between the old Turkish
words which still occur in legal texts and their modern
Turkish versions used in non-legal discourse. Their
English equivalents are given in parenthesis below:

Words in Old Turkish Modern Turkish

Versions
gayri kabili rücu geri dönülmez
(irrevocable)
muhabir banka bildirimci banka
(correspondent bank)
vecibe (obligation) yükümlülük
navlun (freight) gemi taşıma ücreti
sevk vesaiki (shipping gönderme belgesi
document)

We could provide many more examples. The old Turkish

used in the field of law not only makes the translation of
texts a hard task, but also hampers the instructor's
endeavours to teach translation in this field. It is
absolutely necessary that the current use of the old
words be taught to the translation students before
starting the actual translation process. The archaic
expressions found in legal English for reasons
mentioned in the previous chapters add to the problem.
These include: hereinafter, hereto, herein, hereby,
hereof, thereof, therein, thereby, thereto, etc. None of
them can be translated by a single word, and translators
often have a hard time finding equivalents for these
archaic expressions.

VI) Problems arising due to the use of common terms

with uncommon meanings: As Brenda Danet suggests,
"legal language has a penchant for using familiar words
(but) with uncommon meanings" (1985:279). Let us
take, as an example, the word "assignment" which is
generally known as "something assigned, a task or a
duty." Turkish students of translation have learnt the
word in its general literal meaning and they continue to
know it as such until they have to translate an
"assignment," which is a legal document. Of course, the
first thing they have to do is to search for the meaning
of "assignment" in a legal dictionary. The same applies
to the words "whereas" and "having regard to" among
many others. In legal documents such as contracts, the
above-mentioned words function as "considering" or
"taking into consideration," and must be so translated
into Turkish.

Conclusion

Sarcevic suggests that the traditional principle of fidelity

has recently been challenged by the introduction of new
bilingual drafting methods which have succeeded in
revolutionising legal translation. Contrary to freer forms
of translation, legal translators are still guided by the
principle of fidelity; however their first consideration is
no longer fidelity to the source text but to guarantee the
effectiveness of multilingual communication in the legal
field (1997:16).
While lawyers cannot expect translators to produce
parallel texts that are identical in meaning, they do
expect them to produce parallel text that are identical in
their legal effect. Thus the translator's main task is to
create a text that will produce the same legal effect in
practice. To do so, the translator must be able "to
understand not only what the words mean and what a
sentence means, but also what legal effect it is
supposed to have, and how to achieve that legal effect
in the other language (Sarcevic 1997:70-71).

Translators must be able to use legal language

effectively to express legal concepts in order to achieve
the desired effect. They must be familiar with the
conventional rules and styles of legal texts in every field
of the individual legal systems. A legal translator must
not forget that even a Will is not valid if not written in
the correct style.

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