ISSUES OF EQUIVALENCE IN LEGAL TERMINOLOGY : TRANSLATION OF AN EXTRACT FROM ‘RAPPORT ALTERNATIF DE LA FIACAT ET DE L’ACAT COTE D’IVOIRE EN REPONSE AUX RAPPORTS INITIAL ET PERIODIQUES CUMULES DU GOUVERNEMENT IVOIRIEN SUR LA MISE EN ŒUVRE DE LA CHARTE AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES.’ (TRANSLATION FROM FRENCH INTO ENGLISH)

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TABLE OF CONTENTS

Declaration……………………………………………………………………………………………………………………. ii

Dedication……………………………………………………………………………………………………………………. iii

Acknowledgment………………………………………………………………………………………………………….. iv

Table of contents……………………………………………………………………………………………………………. v

Abstract……………………………………………………………………………………………………………………….. vi

Chapter One

Introduction…………………………………………………………………………………………………………………… 1

Chapter Two

  1. Introduction of the Source Text………………………………………………………………………………….. 9
    1. Corpora Alignment: French-English…………………………………………………………………………… 11

Chapter Three

  1. Analysis of the Source Text………………………………………………………………………………………. 75
    1. Analyses of the Legal Terminology…………………………………………………………………………….. 79
      1. Formal Equivalence………………………………………………………………………………………………….. 79
      1. Functional Equivalence……………………………………………………………………………………………. 82
      1. Borrowing………………………………………………………………………………………………………………. 84
      1. Descriptive Phrases………………………………………………………………………………………………….. 85

Conclusion…………………………………………………………………………………………………………………. 87

Bibliography………………………………………………………………………………………………………………. 89

Annex…………………………………………………………………………………………………………………………. 93

Abbreviations and Acronyms……………………………………………………………………………………… 93

Glossary…………………………………………………………………………………………………………………….. 97

ABSTRACT

This project work sets out to identify and discuss issues of equivalence in legal terminology. Our goal was to identify possible methodologies of finding equivalence in French-English legal translation. We used a source text in French and the corresponding English translation which we have done as a case study. The source text is an extract from a report on the post electoral conflict in Ivory Coast entitled. “Rapport alternatif de la FIACAT et de l’ACAT Cote d’Ivoire en réponse aux rapports initial et périodiques cumulés du gouvernement ivoirien sur la mise en œuvre de la charte africaine des droits de l’homme et des peuples.” The complexity of legal translation cannot be overemphasized considering the nuances in legal systems, legal families and cultural concepts of legal texts. Consequently, the two working languages of this project work being French and English are not exempted from this unavoidable complexity as the French Code Civil and the English Common law, are from two distinct legal families. By establishing these equivalents, we discovered that finding the appropriate equivalence in this domain will mostly depend on the nuances in these legal systems. Also, wrong equivalents in legal translations could subsequently lead to legal consequences since legal documents have the force of the law.

Key Words: Legal terminology, Formal Equivalence, Functional Equivalence, Borrowing, Descriptive phrases

CHAPTER ONE INTRODUCTION

Background

“Any comparison of two languages implies an examination of their mutual translatability; widespread practice of inter-lingual communication, particularly translating activities, must be kept under constant scrutiny by linguistic science.” (Jacobson 1959) The above statement by Jacobson cited from ‘‘On The Linguistic Aspects Of Translation’’ goes a long way to show that like any other discipline, the translation activity demands much rigorous study and analysis for its advancement. The practice of translation goes far back into recorded history. Throughout the years, it has facilitated inter-human communication, like helping to widely circulate key cultural and religious writings. It later developed into an academic discipline and translation studies has become a force to reckon with in our contemporary intercultural world.

In translation, we seek to interpret the meaning of a written document in one language by reproducing its written equivalent in another language while taking into account at the same time, the nuances in style, socio-cultural contexts of the two texts, the destination or receiver of the translation, the language register, etc. Edmund Cary defines translation by saying that “Translation is a process which attempts to establish equivalents between two texts expressed in two different languages. These equivalents are by definition always dependent on the nature of the two texts, on their objective, on the relationship between the two cultures involved and their moral, intellectual and emotional condition which, in turn, is determined by all the factors specific to the time and place of both the original and translated text…” (2003, p. 1)

The translation activity is to an amateur a simple process of substituting equivalent expressions of the source language text (SLT) with that of the target language, (TL). However, this activity is

more complex than that. Primarily one requires an understanding of the two existing categories of translation namely: general translation and specialized or technical translation. General translation involves documents that employ general vocabulary and expressions and are not specific to any domain or discipline. Examples of documents in this regard are novels, advertisements, newspaper articles, speeches, etc.

On the other hand, the latter is a type that focuses on specific domains and thus employs specialized vocabulary and other language technicalities that are peculiar to a given domain. Ladmiral supports this in his work Traduire : Théorèmes pour la traduction by affirming that ‘‘pour traduire un texte technique, le traducteur doit disposer d’une connaissance du domaine auquel appartient le texte.’’ (1979, p.12), Legal translation falls into this second category and will be the focus of this work, while we specifically look at some key methods of finding equivalence in legal terminology in the domain of human rights. In his Approche juridique de la traduction, Decaudin makes the following statement about legal translation: ‘‘Elle est habituellement convenu par les linguistes et les traductologues que c’est la traduction qui porte sur des textes de droit.” We subsequently agree with this in concluding that, legal translation is a translation which deals with law or documents with legal nature. Examples of documents from this domain are: contracts, summons, affidavits, treaties, legislations, etc. Like any other technical translation, this area has its specialized terminology.

The Merriam-Webster dictionary defines terminology as “The body of terms used with a particular technical application in a subject of study, theory, profession, etc. Le Grande Robert also cites the definition of terminology from the Bescherelle (1845) as «L’ensemble de termes appartenant à un domaine d’activité de connaissance et correspondant d’un système de notions ». It is thus apparent that terminologies are grouped according to specific domains, like professions,

fields of study, etc. Terminology makes legal translation a complex activity owing to the fact that legal language is not a universal technical language. Equivalence may thus be determined by the nuances or relatedness of the legal systems, legal culture and legal families of the languages involved.

Problem Statement

In ‘Les enjeux de la traduction juridique. Principes et nuances’, Jean Claude Gémar has this to say about legal translation : ‘‘Dans certains domaines, et c’est le cas du droit, il s’agira de passer d’un système à un autre, non seulement dans la lettre mais aussi dans l’esprit du texte cible, avec ce que cela comporte de risques et de changements’’. Chromá, further has this to say on the same subject ‘‘The translation of legal texts requires particular attention because it ‘consists primarily of abstract terms deeply and firmly rooted in the domestic culture and intellectual tradition” and thus entails a transfer between two different legal systems, each with its own unique system of referencing.” (Cited in Drani (2013, p. 2) The above statements give evidence that legal translation has certain characteristics that make it more complex in relation to other specialized domains. This complexity is seen through the nuances in the linguistics, methodology and socio- cultural setting of the source language as well as the target language. Another challenge which the legal translator often has to tackle is the issue of fidelity according to the letter of the law of the SL or according to the spirit of the law of the TL.

“The spirit of the law versus the letter of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of the one who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording.” (Cited from

https://en.wikipedia.org/wiki/Letter_and_spirit_of_the_law) Šarčević (2000), propounds on this latter issue by positing that “… both lawyers and linguists agreed that legal texts had to be translated literally. For the sake of preserving the letter of the law, the main guideline for legal translation was fidelity to the source text. Even after legal translators won the right to produce texts in the spirit of the target language, the general guideline remained fidelity to the source text.”

It is, thus, the obligation of the legal translator to take all these elements into account as legal documents possess the force of the law. In international jurisdictions (for multilingual cases), both translation and original are usually regarded as authentic and the translation may not prevail over the original in the event of an ambiguity. A lot of care must, therefore, be taken due to its legally binding nature since wrong equivalents would mean failure on the part of the translator and could lead to a misinterpretation and misapplication of the law, legal disputes, etc.

The above complications stem from the fact that each society has its peculiar legal system structured from its own perspective and this makes the interpretation of most laws culture specific. Consequently, legal translators have an additional task of documenting well in the legal systems and concepts of their two working languages. Ignorance of this could lead to legal consequences for both the client and the translator. It may be necessary to pose the following questions before beginning to translate a document of a legal nature: Which receiver is being targeted? Which terminological equivalents are appropriate to make the translation read as naturally as possible? Answers to these will guide the translator to know the legal system he is dealing with, the socio-cultural issues to consider and the best way to interpret the source language in the target language.

Research Objectives

This approach to legal translation is not a novel attempt at describing legal, translation but an addition to already existing perspectives. We will focus primarily on the issues of equivalence in legal terminology in the translation of an extract from the document: “Rapport alternatif de la FIACAT et de l’ACAT Cote d’Ivoire en réponse aux rapports initial et périodiques cumulés du gouvernement ivoirien sur la mise en œuvre de la charte africaine des droits de l’homme et des peuples.” The document deals with the human rights situation in Côte d’Ivoire after the post electoral conflict. We are specifically going to make a detailed analysis of the terminology employed and point out methods of equivalence, problems encountered in the course of our translation and draw conclusions. We will see the types of equivalence employed to translate the legal terminology in the given document, namely: formal equivalence, functional equivalence, paraphrasing and the usage descriptive phrases.

Study Rationale

In his Difficulties Faced in Legal Translation Documents Sonawane maintains that “Translators should not only possess general knowledge of legal terminology, they should also be well versed in statutory requirements and the legal intricacies of foreign cultural and legal systems.” Common law and Civil law contexts are often different, knowledge of the translation strategies of equivalents in legal translation helps the translator to find appropriate equivalents of a SL in a TL. Since all legal systems in a given language may or may not have corresponding words in another language, the study of terminology for the purposes of finding the right equivalence becomes essential for translation purposes.

In line with this research, some details of the sources of the two legal families of English law and French law would have to be given. First of all, Civil law was developed from the Roman

Empire and has impacted the French Code Civil which is being practiced today. It is believed to be the most practiced legal system. On how it functions, Hazleton explains that “Civil court decisions are usually fairly short and formulaic. The judge cites only the relevant provision of the code and does not mention previous cases that are similar.” (2012, p. 18)

On the other hand, English Common Law originated from England and is the second most practiced legal system worldwide. It gained ground in the British Colonies and is now being practiced by most English speaking countries. Additionally, Hazelton affirms that “Unlike Civil Law, Common Law is based on precedence, or prior court cases. Court decisions are usually very long, since the judge arrives at his or her decision through elaborate reasoning and refers to previous cases that are similar.” (ibid) The details above give apparent reasons that these two legal systems could pose additional linguistic problems for the translator. Knowledge of the methodologies for finding equivalents in these legal systems is thus indispensable.

Literature Review

Theorists have established several insightful, but equally controversial, views on this subject. Some of the most well-known equivalent theories on terminology in translation are from Vinay and Darbelnet’s Stylistique comparée du français et de l’ anglais (1958), where they introduce “direct and oblique” translation, Jacobson’s “interlingual, intralingual and intersemiotic” translation (1959), in his seminal paper On the Linguistic Aspects of Translation, where he analyzes interlingual translation and stresses that there are no full equivalents between two words, Nida’s distinction between “formal and dynamic” equivalence in his work Toward a Science of Translating, Newmark’s Approaches to Translation (1981) and a Textbook Of Translation, which differentiates between “semantic and communicative translation”, Baker’s In Other Words (1992), which highlights her “grammatical and textual equivalence”, Catford’s

“formal correspondence and textual equivalence” in his A Linguistic Theory of Translation, (1965), House’s “overt and covert” translation in his Translation Quality Assessment (1997), Pym’s “natural and directional” equivalence in his Exploring Translation Theories, etc. (2010) (see Ponu 2013, pp. 1-5).

We will not be able to explore all these theories, owing to their broad and diverse nature. However, we will specifically focus on equivalent theories on legal terminology for the purposes of this project work. On how to find equivalence in legal translation, De Groot argues that “the first stage in translating legal concepts involves studying the meaning of the source language legal term to be translated. Then, after having compared the legal systems involved, a term with the same content must be sought in the target-language legal system.’ (cited by Darani p. 4 ) Additionally, suggests other options such as: citation of the non-translated term, paraphrasing, and the creation of neologisms or a combination of these.” Cited by Galdia, (2003 p. 2)

Šarčević proposes functional equivalence and then categorizes it into: near-equivalence, partial – equivalence, and non-equivalence. (2000, p. 238) Didier maintains that “translations of legislation and other normative texts require absolute literalness. (1990:280,285) At the same time, he says that judgments can be translated more freely, thus recognizing that text type also plays a role in determining strategy in legal translation. (Cited in Šarčević, p. 3.)

Mincke (1987), as cited by Galdia, is of a different view and asserts that “… legal terms refer to the relevant areas of a legal system; a technical translation, therefore, requires a descriptive language that can render the incompatible legal terms without any material losses in terms of content.” A number of these different perspectives will be explored in analyzing the processes involved in our translation of the chosen text.