نموذج لترجمة نص

Translation Criticism: A Model for Assessing the Translation of Legal Texts

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Al- Mustansiriyah University College of Arts Dep. Of Translation


A paper Submitted by

Mehdi F. al – Ghazalli (Assistant Lecturer)

2005 Jan.


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Contents

Headings Page 1.0 Different Views of "Register" (1 – 2)

1.1 Distinctive Features of Legal Register (2 – 4)

1.1.1 The Layout (2 – 3)

1.1.2 The Syntactic Frame of LR (3 – 4)

1.1.2.1 Sentence Linkage 3

1.1.2.2 Sentence Types (3 – 4)

1.2 Lexis in Legal Texts (4 – 5)

1.3 Classification of Legal Texts (5 – 7)

1.4 Legal – text Translator's Qualifications (7 – 9)

1.5 Analysis of the Legal STs (10 – 12)

1.6 Analysis of the Legal TTs (12 – 15)

1.7 A Comparison of the STs and the LTs (15 – 17)

1.8 A Comparison of the STs with Arabic Legal Texts (17 – 18)

1.9 Conclusions 19

Notes 20

Appendices (21 -38)

References (39 – 40)


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Abstract

The present paper is concerned with suggesting a model for

assessing the translation of legal texts. To achieve this aim, a

theoretical survey of the various positions held on the concept of

register has been made to find out which position is better to

adopt. Then, the distinctive features of the English legal register

have been outlined. These features have formed the bases on

which the model under consideration has been constructed. The

features can be grouped into three main classes: the layout, the

syntactic and the semantic features. To find out whether or not

the translator of legal texts succeeded in choosing the suitable

translation method, a brief review of the classification of legal

texts (as categorized by translation theory specialists) has been

done. Moreover, two untranslated Arabic texts have been

considered to uncover the influence, if any, of the target

language (TL) legal texts on the translation of the source

language (SL) texts .

It is assumed that some translation drawbacks may be

attributable to the carryover from the TL as far as how the

framework of its legal texts is concerned. In addition, some

features of the SL legal texts seem to be untranslatable due to

the absence of their counterparts in the TL.


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To validate the two assumptions above, three English legal

texts with their translated counterparts have been chosen and

analyzed. The analysis has been done in the light of the model

already proposed.

Having been made, the analysis has shown some results (cf

1.9). Some syntactic defects in the TTs have originated from the

impact of the TL and the way the legal texts are framed in it.

Moreover, some layout and semantic features (e.g.,

capitalization, archaism) have remained untranslated owing to

the absence of their counterparts in the TL. As for the

limitations the present paper, the data is small in quantity to

substantially enhance the findings of the study. Expansion of the

data may reveal other features of the STs and the TTs as far as

legal discourse is concerned. Moreover, some features of the

proposed model may be added or deleted.

1.0 Different Views of "Register" The term register as used in stylistics and sociolinguistics

has been defined differently by specialists. Crystal (1997: 327)

defines it as a variety of language defined according to its use in

social situations (e.g., register of scientific, religious formal

English). Halliday (1978: 33) subclassifies registers into field

(i.e., subject – matter), mode (i.e., medium of language whether


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spoken or written) tenor (depending on relations between

participants, specially the level of formality they adopt). As

defined by Bell (1976: 114), register is "a role – related code

i.e., a change is the formal linguistic marker of a change of role

and the converse". Werlich (1982: 253) holds a more general

view of the notion:

After presenting the above definitions, it is thought that

Werlich's is more suitable to the present model. This is due to

the idea that Werlich's definition is more comprehensive and

straightforward to apply to legal register (LR). Like any other

register, legal written discourse(1) is distinguished by a set of

linguistic features reflecting the written conventions followed in

the LR.

1.1 Distinctive Features of Legal Register 1.1.1 The Layout

The format that a legal text assumes differs from the

majority of text – types (e.g., scientific, religious …) in that it is

famous for initial capitalization which is used to dignify lexical

Register is a social role activity of language use in that the communicant's utterance is determined by a set of linguistic features which reflect speech habits associated with social roles at a particular time. The use of registers is restricted by conventions in all non – fictional text forms in the written medium.


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items. It is true to say that decoration of initial words or letters

are given distinctive visual emphasis. This is attributed to

traditions followed during Middle Ages (Crystal and Davy,

1969: 198f). To give some consideration to the format of the LR

is urgently needed because paragraphing, indentation and

graphic choices viz, capitalization, italicizing, underlining and

boldtyping are sometimes governed by language specific

constraints. These constraints, in turn, have influence on the

interpretation (and consequently on translation) of legal

provisions. With regard to typewritten translation into Arabic,

the emphasis obtained by italics in the original can be conveyed

in Arabic by italics or boldtyping. However, in handwriting

translations, the emphasis on given items in the legal TT can

only be captured by underlining (Mohammed and Shunnaq,

1999: 158). It seems that the LR has inherited some traditions

from the antiquity. Therefore, present – day documents without

paragraph divisions are frequently found. Long thinly

punctuated sentences are the rule rather than the exception

(Crystal and Davy, 1969: 197). Indentation does not signal

paragraphs in the narrow sense rather it is a layout feature meant

for singling out and emphasizing key propositions (P. 161).

1.1.2 The Syntactic Frame of the LR 1.1.2.1 Sentence Linkage


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It is generally maintained that legal sentences are self –

contained units, i.e., they are capable of conveying all the sense

that has to be imparted at any given point. Accordingly, these

self – contained units do not need to be closely linked to what

has gone before or what follows (Crystal and Davy, 1969: 201).

Following is one of the principles of the Camp David Accords

signed on sep – 17th 1978. This principle is cited here to show

how LR exhibits little need to sentence linkage:

1- Egypt, Israel, Jordan and the representatives of the Palestinian

people should participate in negotiations on the resolution of

the Palestinian problem in all its aspects.

(Mohammed and Shunnaq, 1999: 177)

1.1.2.2 Sentence Types Sentences in a legal discourse are distinguished by the use

of a high degree of nominalization. In addition, legislative

statements(2) are introduced with "syntactic discontinuities

which become formidable obstacles to an affecting processing

of legal statements" (Bhatia, 1997: 208). Legal sentences are,

almost without exception, complex. Moreover, they tend to be

long (cf 1.2.2.1) and even in documents which are divided into

sentences, these sentences show tendency to be extremely long

(cf apps, A,B, and C). At large, there is a very marked

preference for postmodification in the nominal groups. As


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already mentioned, there is frequent occurrence of nominals and

relative occurrence of verbal groups. The verbal groups used in

the LR are distinguished by the high frequency of non – finites

and the use of finites is associated with a modal auxiliary

(usually shall + be + PP). Shall is used here to express

obligation (Crystal and Davy, 1969: 201 – 206).

1.2 Lexis in Legal Texts Widdowson (1971: 21) maintains that "the crucial criteria of

any given register are to be found in its grammar and its lexis.

Probably lexical features are the most obvious". Accordingly,

LR is no exception in that it is lexically characterized by

involving a particular type of vocabulary that makes it different

from other registers. The characteristics distinguishing LR as far

as lexis are concerned run typically as follows:

1- Words appear to have a very precise and exact reference so

as to possibly avoid multi – interpretation.

2- Some lexical units tend to collocate with each other in a

way that is only true of LR. (e.g., the contract comes in full

force and effect on the date of signature).

3- Some vocabularies are said to be LR – bound terms in that

they have totally distinct meanings from their daily life

senses (e.g., The contractor should deliver each month to


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the Engineer a return (a report) in detail. (Issa, 1997: 32,

42).

Salkie (1995: 12) confirms that it is unusual to find words

from different registers in the same text. Most often, substituting

synonyms from another register makes a text sound bizarre.

Consequently, legislative circles are aware of the effect of co –

text on the interpretation of lexical items in a legal discourse.

This can be owing to the fact that lexis, in the majority of text –

types, are context – bound. It is said that "devaluing the word in

the text is like devaluing the individual in society". (Newmark,

1991: 98). Finally, the presence of archaic(3) expressions in a

legal text is undeniable.

1.3 Classification of Legal Texts Specialists in translation or in translation theory hold

various theses regarding the categorization of the language of

law in terms of text – types – For instance, Newmark (1988: 40)

groups legal texts within expressive texts since they inform

people as how to behave or act in the future. Categorizing texts

in argumentative, expository and instructional, Hatim and

Mason (1990: 156) are of the opinion that LR should be

classified within instructional text – types. They think that the

focus in LR is on the formation of future behaviour.


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Instructional text types can be subdivided into two subclasses as

in the following diagram:

Diagram 1: Subclassification of instructional texts In the light of diagram 1, legal texts could be a co – hyponym

under the right node. Newmark (1988: 40f) adds to the

characteristics of the LR by saying that it, the LR, is also

distinguished by the absence of connotative expressions and the

presence of denotative ones. Legal documents derive their

authority from the high status of the bodies enacting them.

As conclusion, Hatim and Mason's subclassification of texts

with(out) options is not a successful one. This is due to the fact

that even in contracts or court laws, there is room for options to

rise which contractors or courtmen can appeal to. It is worth

noting that recognizing text – type of legal written discourse

helps the translator to choose the appropriate translation method

(i.e., the literal translation) on the one hand. The translation

Instructional Texts

Instructions with option {e.g., advertisement, consumer

advice, etc}

Instructions with no options {e.g., contracts, treaties, etc}


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critic, on the other, gets benefit of text – typology as he utilizes

text – typology in finding out how far the translator has

succeeded in his choices (whether grammatical, lexical or

graphic). It is thought that Newmark's classification of LR is

more accurate than Hatim and Mason's. Therefore, it will be

adopted.

1.4 Legal – Text Translator's Qualifications Legal – text translators are required to meet certain

qualifications to successfully render the legal discourse. This is

ascribed to the fact that mistranslation of such text – types will

lead to serious problems or dangers among those concerned with

dealings, international contracts or treaties, court laws etc.

Mohammed and Shunnaq (1999: 157) propose four

requirements that a legal – text translator should satisfy. They

run as follows:

1- A legal translator should be a translation specialist.

2- He should be well – versed in the language of laws and its

terminology.

3- To be successful, he should be able to discern and analyze

the problems of a legal text.

4- Since the message in legal translation is laid down in codes

presenting legal concepts, a legal – text translator should be


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fully aware of these codes and give them utmost care while

he is translating.

Having introduced the salient features of LR (cf 1.1, 1.2 and

1.3), the researcher has become in a position to put forward the

model for assessment:


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The Param

eters of the Model

Initial capitalization Paragraphing (to signal key

propositions) The layout

features Indentation

Italicizing Underlining boldtyping Absence of sentence linkage

Complex sentences

The Syntactic Features

Long sentences (sometimes with lengthy parenthetical material)

High frequency of nominalization High frequency of non – finites

within verbal groups Preference of post modification Presence of the complex

preposition in accordance with Words used in denotative senses Synonyms Collocation Near – synonyms LR –bound terms The semantic

features Frequency of shall (expressing the

sense of obligation) Frequency of archaism No presence of figures of speech

Diagram 2: Parameters of the Model for Assessing

the Translation of Legal Texts


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1.5 Analysis of the Legal STs Having been built on the basis of the distinctive features of

the LR, the model has become the tool for analysis of the legal

texts. First, it will be applied to STs. These texts are: the peace

treaty signed between Jordan and Israel in 1994, the UN

Security Council Resolution No. 242 (1967) and UN Resolution

No. 955 (1994) (see APPs: A, B and C, respectively).

To begin with, the nine conditions of the peace treaty

referred to above would lead one to easily discover that they

start with capitals and these capitals, in turn, are italicized to

give them some emphasis. All the statements are long and self –

contained, i.e., they are capable of standing alone with no

reference to what follows or precedes (cf diagram 2). The

original sentences are not indented with high recurrence of

nominals e.g., achievement, resolution, importance, freedom,

equality, justice, termination etc. Non-finites are true of all the

beginnings of the nine conditions where they start with gerunds

such as: bearing, aiming, reaffirming, desiring, etc. It is not

untrue to state that the lexical units are used in their denotative

(not connotative) senses. However, some instances of

metaphorical uses are recognized (e.g., "overcoming

psychological barriers and promoting human dignity", live in

peace, establish peace). Some occurrences of postmdifiers

appear here and there in the ST (e.g law governing international


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relations, peace based on, the Washington Declaration Signed

by etc). The complex preposition in accordance with is noticed

twice in the original with one instance of archaism i.e., thereby.

As for UN Resolution 242, two of the articles of the

Resolution concerned start with non – finite gerundial clauses

(expressing and emphasizing). Some words are italicized for the

sake of emphasis e.g., affirms, requests, expressing etc.

Paragraphing is employed in the sense of signalling the articles

of the resolution. Concerning metaphorically used expressions,

they have their share in the text (e.g., live in security, the

progress of efforts, live in peace etc. The complex preposition in

accordance with has been noticed twice in this text. The present

legal text has exhibited preference to nominals e.g.,

inadmissibility, territory, withdrawal, termination, fulfillment,

independence. It is right to declare that the majority of the

foregoing nominals are LR – bound terms. The presence of

postmodification has remained evident as in the previous text

(e.g., territories, occupied, boundaries free from, through

measure including etc). Nevertheless, this does not mean that

premodification is absent (e.g the grave station, armed forces

etc).With regard to lexical collocation, it has its part to play as it

is evident in some phrases (e.g just and lasting peace).

Typically, the vocabularies in the ST are denotatively

employed to avoid multi – interpretation. As for boldtyping, it is


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seen at the beginning of the resolution whose key words are

capitalized e.g., Member States, General Secretary, Special

Representative etc.

With respect to the United Nations Resolution No. 955

(1994), Article 16 of it is randomly chosen by opening the book

containing the statements of the resolution. It has been noticed

that all the four items of the article concerned contain the modal

shall to express obligation. Two instances of passives are seen

(e.g., shall be appointed) with frequency of nominals (e.g., re-

appointment, recommendation, administration etc).

1.6 Analysis of the Legal TTS The three texts referred to in 1.5 will be separately

evaluated in the light of the model proposed in 1.4. In addition,

the grammatical and lexical adequacy of the TT has been

assured with reference to the advice of a specialist in Arabic(4).

As to the peace treaty (see app. A), paragraphing is true of

the TT as found in the original for serving the purpose of

signaling key propositions. Other layout features, viz.,

italicizing, underlying and boldtyping are not present in the TT.

The translator should have italicized some words as found in the

original to keep fidelity to the ST. The sentences are long, self –

contained and full of nominals (e.g.,


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) . Unlike the ST, the TT exhibits the presence of

finites (e.g ). As far as the adequacy of the

grammatical and lexical choices is concerned, the translator has

succeeded in doing so. However, two choices (one is

grammatical and the other is lexical) are recognized as being

inappropriate and they are underlined in the TT (cf App. A),

. They should be replaced by , and

respectively. Moreover, the presence of the lexical unit is

unnecessary due to the absence of the clause of result depending

upon condition ).

On the lexical dimension, the TT has been adequately

constructed. The translator has rendered some expressions

metaphorically as found in the original (e.g.

). Other than these metaphorical

expressions, the lexical units are rendered with their denotative

equivalent meanings.

Regarding the translation of UN Resolution, the same

drawbacks related to the layout criteria are realized, i.e., no

italicizing or boldtyping as in the original. Nevertheless, the

translator has proved faithful as to paragraphing to indicate the

significant statements in the Resolution. Indentation has not


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been conveyed as in the ST as far as the subarticles of the first

and the second articles are concerned. On the syntactic

dimension, the translator's grammatical choices have proved

adequate. One exception was realized in the third article of the

Resolution which was rendered in a grammatically incorrect

Arabic structure . It should have been

translated . Other syntactic features

are present in the TT: no need for sentence – linkage and high

frequency of nominals (e.g.,

). Non – finites in the ST are translated as finites in the TT

(e.g., ).

With reference to the lexical adequacy, it has been

recognized in the TT where the translator has successfully

processed the text. Metaphorical equivalent expressions have

been used to render those of the ST (e.g

etc). Near – synomyms are realized in the TT (e.g.,

/ / / ).

Finally, the last legal text to assess is the UN Resolution

No. 955 issued in 1994 (see app. C). On the layout level, the

translator failed to boldtype as in the original. Nevertheless, he


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kept fidelity as far as indentation and paragraphing are

concerned. All the sentences are self – evident with no syntactic

linkage. The agenitive passives are translated as actives since

passives in Arabic are agentless. From a semantico – syntactic

point of view, the word " should be changed into " and

shifted to the end of subarticle 3. Success in processing the text

at the semantic level has remained evident through the TT. One

exception has been noticed in the same subarticle referred to

above, where it should have been translated as

. From a lexical perspective, the words in the TT are

used denotatively.

1.7 Comparison of the STs and the TTs In the light of what has been mentioned 1.6 and 1.7, the

comparison of the two texts has become easy to make. First of

all, the ST exhibits capitalization to indicate the beginning of the

legal sentences while the TT does not since Arabic does not

enjoy such a feature. Frequency of nominals is a common

feature of the STs and the TTs. It has been noticed that the STs

involve non – finites, but the translator has rendered them as

finites. In addition, the lexical items constituting the STs have

been used denotatively and successfully translated into their


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denotative equivalents. However, some metaphorical

expressions are recognized in the STs and equivalently

converted to Arabic.

Whether in the STs or the TTs, sentence linkage has

remained roughly absent where sentences of either side are self-

contained. This is due to the fact that a sentence in a legal text,

lengthy and complete, is a complete whole. Archaisms are true

of the STs only, unlike the TTs. Both texts have two layout

features (i.e., indentation and paragraphing) in common. A

grave mistake in translation (concerning the italicized lexis in

the ST where they are left unitalicized in the TT) has been made

by the translators of the texts under consideration. Italicizing

serves a more significant purpose in the LR than it does so in

other varieties. The translator has proved failure in including

since this particle needs a particular type of a clause (result

clause depending upon condition) according to Arabic grammar

(Cachia, 1973: 69). Boldtyping has been overlooked by

translators of the present legal texts. Finally, sentences of the

texts in either language are recognized as being long.


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1.8 Comparison of the STs with Arabic Legal Texts In order to find out the characteristics of English legal texts

(ELTs) and Arabic legal ones (ALTs), a comparison has been

made to show where the two languages diverge or converge

concerning LR. The benefit of such a comparison is twofold: (1)

to find out how far the TTs in 1.6 have gone in conformity with

Arabic LR traditions; (2) and to attribute some defects of

translation to the impact of the TL. Two Arabic legal texts (see

apps D and E) have been selected to study their distinguishing

features and compare them with those of ELTs.

Depending on his observation, the researcher has outlined

some of the features of ALTs. On the basis of those features and

those of ELTs, the comparison has been carried out as follows:

1- Both ALTs and ELTs are famous for the presence of

passives . e.g.

(App. D) … -14

(App. E) - 220

....

2- Unlike ELTs , ALTs exhibit less frequency of nominals.

3- ALTs show preference to the occurrence of if – clauses and

negative finites. Fourteen if – clauses have been noticed in

the two short texts under investigation.


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(app. D) ... -223

(app. E) ... – 11

(app. D) - 227

(app. D) - 229

It seems that such preference is not true of ELTs.

4- It has been noticed that finites are of higher frequency in

ALTs than they are so in ELTs. Fourteen finites are present

in these ALTs.

5- Sentences in either register are often long and complex.

6- Paragraphing and boldtyping hold true of either register to

serve the same purposes.

7- It might be due to chance that the selected texts have not

exhibited underlining as a layout feature.

8- Unlike ELTs, ALTs have not involved expressions that are

metaphorically used.

9- Both ALTs and ELTs are characterized by the absence of

sentence linkage between the constituent parts of either

register.


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1.9 Conclusions On the basis of the comparison of the STs and the TTs ,

some findings have been drawn. First, it is not necessary for any

legal text to involve all the layout features suggested in the

model (cf 1.4). Second, the TL is able enough to embrace all the

syntactic features of the LR in the original (e.g., no sentence –

linkage, high frequency of nominals etc). However, to render

English non – finites into Arabic finites is a failure attributed to

the translator, not to the TL. This inadequacy may be due to the

influence of the Arabic legal register (cf 1.8) where the latter

shows preference to finites. Third, lexical units in the originals

and the TTs are typically used in their denotative senses. Fourth,

some layout features have not be equivalently tendered (e.g.,

italicizing, boldtyping). And fifth, ELTs show tendency to

involve archaisms whereas ALTs do not do so.


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Notes 1- Discourse, variety and register are in free variation in the

present paper.

2- Sentences, and statements are alternatively used here.

3- As in Issa (1997: 40f), webester (1989: 83) defines

archaism as "ancient word or idiom; an antiquity of style or

use; the survival of something from the past. "Among

archaisms are compound words consisting of an adverbial

place to which a preposition – like word has been suffixed

(e.g., hereto, thereafter, hereon, hereunder, herein, thereof

etc). The archaisms nearly always seem to add a touch of

formality.

4- Thanks are due to Mr. Alaa Jaber al – Musawi (a Ph.D

student in Arabic Department, college of Arts

( al-Mustansiriyah University) for his advice to assure the

lexical and grammatical adequacy of the TTs).


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Appendix "A"

Preamble The Government of the Hashemite Kingdom of Jordan and the Government of the Sate of Israel: 3 Bearing in mind the Washington Declaration, signed by them on 25th July, 1994, and which they are both committed to honor. Aiming at the achievement of a just, lasting and comprehensive peace in the Middle East based on Security Council resolutions 242 and 338 in all their aspects; Bearing in mind the importance of maintaining and strengthening peace based on freedom, equality , justice and respect for fundamental human rights, thereby overcoming psychological barriers and promoting human dignity; Reaffirming their faith in the purposes and principles of the Charter of the United Nations and recognizing their right and obligation to live in peace with each other as well as with all states, within secure and recognized boundaries; Desiring to develop friendly relations and co–operation between them in accordance with the principles of international law governing international relations in time of peace; Desiring as well to ensure lasting security for both their States and in particular to avoid threats and the use of force between them; Bearing in mind that in their Washington Declaration of 25th July, 1994, they declared the termination of the state of belligerency between them; Deciding to establish peace between them in accordance with this Treaty of peace;


26

:

:

:

:

:

:

:

:

.


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Appendix "B" UN Resolution 242

Full Text as Dictated by the UN Security Council

Resolution No. 242 (1967)

Stating the principles of a Just and Lasting Peace in the

Middle East.

The Security Council: Expressing its continuing concern with the grave situation in the

Middle East.

Emphasizing the inadmissibility of the acquisition of territory

by war and the need to work for a just and lasting peace in

which every state in the area can live in security.

Emphasizing further that all Member States in their acceptance

of the Charter of the United States have undertaken a

commitment to act in according with Article 2 of the Chanter.

1- Affirms that the fulfillment of Charter principles requires the

establishment of a just and lasting peace in the Middle East

which should include the application of both the following

principles:

i. Withdrawal of Israel armed forces from territories occupied

in the recent conflict (according to the French version, des

territories occupes).

ii. Termination of all claims of states of belligerency and

respect for and acknowledgment of the sovereignty


28

territorial integrity and political independence of every

state in the area and their right to live in peace within

secure and recognized boundaries free from threats of acts

of force.

2- Affirms further the necessity

(a) For guaranteeing freedom of navigation through

international waterways in the area

(b) Form achieving a just settlement of the refugee problem.

(c) For guaranteeing the territorial invincibility and political

independence of every State in the area through.

(d) For measures including the establishment of demilitarized

zones.

3- Requests the Secretary – general to designate a Special

Representative to proceed to the Middle East to establish and

maintain contacts with the States concerned in order to promote

agreement and assist efforts to achieve a peaceful and accepted

settlement in accordance with the provisions and principles in

this resolution;

4- Requests the Secretary – General to report to the Security

Council on the progress of the efforts of the Special

Representative as soon as possible.


29

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30

Appendix "C" S

Disir GENERAL S/RES/955 (1994) 8 November 1994

)(

Article 16: The Registry

1. The Registry shall be responsible for the administration and

servicing of the International Tribunal for Rwanda.

2. The Registry shall consist of a Register and such other staff

as may be required.

3. The Register shall be appointed by the Secretary – General

after consultation with the president of the International

Tribunal for Rwanda. He or she shall serve for a four – year

term and be eligible for re – appointment. The terms and

conditions of service of the Register shall be those of an

Assistant Secretary – General of the United Nations.


31

4. The Staff of the Registry shall be appointed by the

Secretary – General on the recommendation of the

Registrar.

.

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32

Appendix "D"

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39

Appendix "E"

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43

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English Data

A United Nations Resolution No. 242 issued in 1967. (in

Mohammed and Shunnaq, (1999))

The Peace Treaty Signed (1994) between Israel and Jordan. (in

Mohammed and Shunnaq (1999))

A United Nations Resolution No. 599 issued in (1994).

Arabic Data

) ( .

) (

) . : (

Documents

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