Posted by: sbilingual | June 13, 2012

The English Legalese under Scrutiny: Genre-Based Approach to Legal Translation

This article attempts to bring together aspects of genres and legal translation to investigate how these decisive factors can contribute to translation of official documents from Persian to English. First, it provides some conceptual knowledge about the concept of genre in translation studies, and then discusses the impact that it has on translation demands concerning types of official documents. Finally, the macrostructure of a legal genre, which entails the identification and application of genres pertinent to official translation, is rendered as a specimen.

Official documents, such as certificates of birth or marriage, are usually among the most often translated specialized texts because of their extensive public usefulness. They are classified as legal texts (Zralka, 2007) for at least two reasons. First, they are used for matters connected with law, like proving a subject’s identity or marital status, and are prepared most often in the form of sworn translations. Secondly, they share many typical formal characteristics of other legal documents and, at the same time, specialized texts.

The recent spate in international trade in the post globalization period has boosted the demand for official translation services. A cursory glance at the bulk of official documents that required to be translated reveals a striking trend in this kind of translation, which is definitely discernible. The causes for this trend are enormous and encompass requirement of accompanying documentation for education and profession oversea, and the mass mobility of people around the world, which has led to immigration. So as the bulk of official translations increase, the pressure on translators’ shoulders to work more quickly efficiently is more tangible. Some translators focus their attentions on computerized tools in the hope that technology may aid them promote their rendering. Although this trend may be reckoned as a sound way out in certain cases, it is not necessarily an empowering strategy in all circumstances.

The purpose of this article is to suggest that the identification of legal genres common between parallel official documents offers a feasible alternative for translators who are willing to have a scrutiny into the nature of the particular texts they are dealing with as well as to concentrate on increased insight and functionality of translation in the original document. To achieve this, Certificates from Persian (Sheikhbahaee University) plus Norwich City College (Great Britain) were compared from the point of legal genres.

2. Concept of Genre in Translation Studies

Generally defined as the study of situated linguistic behavior in institutionalized academic or professional settings, genre analysis has its crucial characteristics for our translation purpose (Bhatia, 1997: 205):

  • Genre analysis shows a genuine interest in the use of language to achieve communicative goals rather than a detailed extension, validation or otherwise of one linguistic framework to the other. Therefore, it is not just an extension of linguistic formalism.
  • Genre theory exploits all aspects of socio-cognitive knowledge situated in disciplinary cultures in order to analyze construction, interpretation and use of linguistic communication to achieve non-linguistic goals.

Fortunately, the relevance of genre and genre analysis has begun to be recognized if not widely studied in translation theory and practice in recent years, especially in a text-linguistic approach to translation. Such an approach has helped to increase our sensitivity to the linguistic patterning at various levels and thus makes us aware of the complexity of translation competence (Schäffner, 2000).

It was Katharina Reiß (1971) who first investigated the intricate relationship between genres and translation, though she was mainly concerned with text types and not with genres. Based on Buhler’s three functions of language, Reiß derived three corresponding dimensions of language and formulated three corresponding text types, i.e. informative, expressive, and appellative. These three text types are then linked to three specific translation methods: a straightforward one, that of identifying, and that of adaptation (Schäffner, 2000: 212).

But what seems to be wrong with Reiß’s typology, according to Snell-Hornby (1988: 32), is “the use of box-like categories as a kind of prescriptive grid, creating the illusion of clear-cut objectivity. When applied to real-life translation in all its complexity, Reiß’s typology results, not in scientific objectivity, but in distortion.” For her own part, Snell-Hornby developed an integrated approach towards translation for text types, while not forgetting the blurred edges and overlapping existed among them. From level A to F, level B presents a prototypology of the basic text types. At the end of the scales are the special language text-types, the main fare of the modern professional translator (ibid. p.33); in the training institutes the major areas are law, economics, medicine, science and technology, and these are now being further dealt with intensively in academic and business studies, quite a number of such research can be found in the two volumes edited by Trosborg (1997, 2000): For example, Bhatia (1997) argues that it is crucial to maintain generic integrity of the intended genre when translating legal texts and proposed the adaptation to readership in terms of “easification”.

Göpferich (1995) analyzes a number of German and English professional genres (e.g. instructional manuals, patent specifications, conference reports) and finds, among other things, that conference reports and book reviews seem to have more flexible macrostructures in contrast to patent specifications in the scientific and technical areas. Schäffner (2000) illustrates the advantages of parallel text analysis based on two sample genres, i.e. between English and German job offers and news reports.

3. Legal Genres in Translation

According to Alcaraz and Hughes (2002), ‘genre’ or ‘text type’ refers to “each of the specific classes of texts characteristic of a given scientific community or professional group and distinguished from each other by certain features of vocabulary, form and style, which are wholly function-specific and conventional in nature. Texts belonging to a given genre display at least the following stylistic and formal features:

  • A shared communicative function expressed by means of the same performative verb. For example, all injunctions are in the form of orders that must be strictly complied with, whether they involve performing an act or refraining from a specific action; this peremptory nature of the order is thus built into the text in the form of a warning as to the consequences of non-compliance.
  • A similar macrostructure, i.e., format or organizational outlines. For instance, all judgments are arranged into a minimum of three basic sections: facts as found, relevant law, and decision or ruling.
  • A similar discursive mode of developing the macrostructure (narrative, descriptive, imperative, and optative) and similar discourse techniques aimed at satisfying the discourse expectations of the recipient or addressee.
  • A common lexical and syntactic arrangement of the material and a common set of functional units and formal features, e.g. in statutes and other legislative texts, the abundant use of indefinite pronouns, passives and impersonal forms of the verb,” shall’ forms of the future to indicate legal obligation, extensive lists of categories or classes of persons and objects to whom or to which the law applies, and so on.
  • Common socio-pragmatic conventions, e.g. the hierarchical structure of the judiciary as reflected in the abbreviated titles of different judges, and the appropriate style of address (‘my Lord,’ ‘your Lordships,’ ‘your Honor,’ ‘your Worship,’ together with the highly conventional use of certain verbs or verb phrases in given contexts (‘submit,’ ‘put it to you.’ ‘crave,’ ‘petition,’ ‘pray,’ ‘grant,’ ‘give leave,’ ‘restore [an injunction],’ ‘discharge [an injunction],’ ‘strike out,’ etc.)(Alcaraz and Hughes, 2002: 101-102).

4. Legal and Official Documents

Regrettably, fuzzy demarcation in relation to other fields of translation is one of the criticisms leveled against official translation. As pointed out by Mayoral Ascencio (2003: 1), it overlaps with fields such as oral translation, legal translation, court translating and interpreting, and community interpreting. Nevertheless, he proposes the following broad definition for official translations “translations that meet the requirements to serve as legally valid instruments in a target country” (2003: 1). These may include birth, death, marriage or divorce certificates, academic transcripts, and legal documents. This specialized field of translation is as important as it is fraught with difficulties, for only in few fields are cultural differences so acute and the consequences of errors so palpable. In a globalizing world, and in the increasingly smaller world we live in, official institutions increasingly depend on translations of official documents, and yet relatively little is being done to develop the necessary skills and tools to help translators working in this field.

As pointed out by Zaro and Truman (1998: 77), the language used in legal and official documents has some common characteristics: it is highly stereotypical, conventionalized and conservative in nature, with a high proportion of set formulae. In addition, it retains morphological, syntactical and lexical features that are no longer used in other types of texts. For instance, the first and second excerpts taken from a power of attorney document, while the third one deals with a birth certificate:

  • KNOW ALL MEN by the Presents that I, Edward J. Morrison, HEREBY APPOINT Eleanor Abercrombie, hereafter called my Attorney, to act for me in every respect as fully and effectually as I could act in person concerning all my present and future affairs.
  • AND I HEREBY DECLARE that these presents shall be irrevocable for Twelve months from the date hereof and shall at all times be conclusively binding on me and my personal Representatives in favor of third parties.
  • IN WITNESS whereof I have hereunto set my hand and affixed my seal this 23rd day of the month of March in the year of our Lord, One thousand, nine hundred and Ninety-eight.

The main aim of this style of language is to make very specific and precise statements, and to avoid wherever possible connotations and ambiguities, to such an extent that it frequently becomes reiterative and repetitive. Nevertheless, there are significant differences in terms of cultural contexts. The functionalist approaches in translation science lay great stress on the principle of cultural embeddedness of the source and the target languages and accordingly view translation as an intercultural transfer( Gambier 2004: 160).In legal communication based on legal texts, communicative situations are directly affected by the legal systems of the source and target cultures. The legal system of one of the parties involved or, more rarely, a supranational legal system is generally adopted as the communication framework and thus defines the language to be used. The translatability of legal texts, however, directly depends on the relatedness of the legal systems underlying the translation. The communicating parties therefore need to be well acquainted with the legal system(s) involved. This is especially the case when using English as the language of communication, as the Anglo-American legal system, based essentially on common law differs substantially from continental law, to which most of European countries belong as well as Persian legal system founded on the Islamic law. The nonequivalence of many legal concepts and terms pertaining to these systems thus has to be taken into consideration (Shiravi, 2004:7).

Given the differences between legal systems, the translator often has to resort to adaptation and is obliged to convey the message by replacing cultural elements in the source language with their nearest equivalents in the target language.

Zaro and Truman (1998: 77) emphasize that legal translation represents something of a compromise. Translators usually strive to achieve acceptability in both the target language and the cultural references that it contains, especially in official translations, which have a clearly defined role to play in legal processes. One fact that makes life easier for the translators is the constant repetition of set formulae and text types, which can facilitate the translationprocess, assuming, of course, that the translator has acquired the experience and knowledge to deal confidently with the specialized terminology.

5. The Macrostructure of Academic Certificates

A good example of a highly conventional genre is the university degree or certificate. Because of the increasing mobility of university students and researchers, translators encounter this type of administrative text on a regular basis. A brief look at the standard macrostructure (layout or outline) of Persian and English specimens shows a striking similarity of scheme, which may be brought under the following headings:

English: Identification of the issuing authorities:
Persian: Taeeine maghamat saderkonandeh madarek daneshgahi
English: The Chief Registrar of the University of ……hereby attests to the fact that:
Academic justification for the award:
Persian: Modir kole amozeshe daneshgah… Bedin vasileh taeed minamayad: Ba tavajoh
be ekhtiyarate tafizi:
English: … on the recommendation of the Senate of the University …
Purpose of the certificate (expressed by a performative verb):
Persian: Nazar be pishnahade shorayeh ali daneshgah…
Ea’lam midarad:
English: … does hereby confer upon ……the degree of ….
Rights and privileges conferred by the award:
Persian: Bedin vasile daneshnameh… be… ea’ta migardad…
En gavahy jahat bahremandy azhoghogh va emtiyazate ea’taeenashi az in
daneshname sader gardideh ast.
English: … with all the rights and privileges appertaining thereto ….
The marking scale:
Persian: Ba koliyehhoghoghvaemtiyazatemarbuteh…
Melake nomrehgozari:
English: Place and date of issue:
Persian: Tarikh va mahale sodur:
English: Drawn up at…
Persian: Tarikhe tanzim…
English: The University Chancellor/Rector/Board of Trustees.
Persian: Reise Daneshgah/Reise/Heyate Omana(Adapted from Sheikhbahaee University, Isfahan, Iran & Norwich City College, Great Britain).

As can be seen from above Certificates, restating a message in another language requires constant creativity; here we find ourselves moving imperceptibly from the notion of translation to that of expression. Each time the context shifts, the same word takes on a slightly different meaning which must almost invariably be rendered by a different word in the target language. Therefore, it is no longer a question of knowing the lexical equivalents of words in two different languages that can serve as automatic substitutes for one another, but of finding terms that will express “the same thing’’ regardless of the words used in the original statement.

6. Conclusion

A useful innovation in the theory and practice of specialized translation is the concept of genre. The identification of genres is useful for translators since it helps them focus on the particular needs and functions being catered to in the original document, and to look further and deeper into the nature of the particular texts they are dealing with, such as issues of lexical equivalence (polysemy, synonymity), syntactic equivalence (nominalization, passivity, modality, word order) or stylistic equivalence (solemnity, formality, figures of speech and other rhetorical devices, severity or asperity of tone in oral utterances, and so on). In this article, an attempt was made to present genre analysis as feasible strategy towards the translation of official documents as well as to indicate how genre analysis can be effectively carried out to maintain genre integrity in specialized translations. The technical and stereotyped nature of certificates demands an expert knowledge of linguistic, technical and educational factors if translations of texts are to be faithfully done.

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