Academic journal article Linguistic and Philosophical Investigations

Upgrading the Profile of the Legal Translator in the Eu, Canada and Switzerland

Academic journal article Linguistic and Philosophical Investigations

Upgrading the Profile of the Legal Translator in the Eu, Canada and Switzerland

Article excerpt

ABSTRACT. Legal translators at the International Court of Justice at The Hague are called 'legal secretaries'; in Canada, specialists in bilingual legislative drafting are called 'legislative counsel' or 'jurilinguists'; in the European Union legal translators are called 'lawyer-linguists' (French: 'juristes-linguistes'). The category of 'authoritative' legal texts (constitutions, statues, codes, treaties, conventions, contracts etc.) are legally binding instruments, in other words texts vested with the force of the law. Consequently, the legal translator is required to take on both legal and linguistic decisions. The paper focuses on pointing out the new upgraded linguistic and legal responsibilities that shape the profile of the legal translator in different cultural spaces (Canada, Switzerland, European Union) nowadays.

Keywords: 'authoritative' legal texts; bilingual co-drafting; legal competence; jurilinguist; lawyer-linguist

1. Introduction

Before the 20th century the legal translator had a very limited role and acted as a passive mediator between the text producers and receivers. The main translation principle that used to govern the legal translators' work was fidelity to the source text; despite this principle, serious doubt was cast on their ability to express the intended meaning of the source text objectively, without the slightest subjective interpretations or value judgments that might easily have altered the legal effect produced. Michael Akehurst, a member of the team that translated the English version of the Treaty establishing the EEC considers that the legal translator's job is "to translate what is actually being said, not what he thinks ought to have been said"; with regard to his own experience of translating the Treaty, he acknowledges that his task was "to translate the Treaty, not to improve it."(Akehurst, 1972:25-26). On the same line of reasoning, Susan Sarcevic mentioned in her book that "one of the biggest fears of treatymakers is that translators will clarify an intentional ambiguity or unclarity" (Sarcevic, 1997: 92). It goes without saying that Treaties are sometimes the result of many political compromises where consensus needs to be obtained even at the cost of sacrificing clarity in formulation. In other words, in the view of the authors mentioned above, legal translators should not overstep their role in the attempt to interpret the letter of the law; neither should they clarify things that were intentionally left unclear from the very beginning. Their responsibilities were strictly limited to assuming linguistic decisions.

Yet, if we are to see things from a different perspective, we also have to join Deborah Cao in her legitimate question of "how the translator of international instruments distinguishes the deliberate obscurity that is the expression of a political and often hard-won compromise from inadvertent obscurity produced when those drafting the original text use a language that is not their mother tongue" (Cao, 2007:153). In a nutshell, how should a translator of international or European legal instruments distinguish a politically motivated linguistic obscurity, intentionally left unclear in a text, from a negligent linguistic error, caused by the drafters' lack of linguistic competence? We consider that, as long as translators focus both on the legal content of the text and on the consistency of specific terminology and make the best use of their experience as professional translators and jurists, preferably, they may easily discern what particular intervention may be asked of them - either political diplomacy or text proof reading.

According to the "Joint Practical Guide of the European Parliament, the Council and the Commission for the persons involved in the drafting of legislation within the Community institutions", guideline 5.2, "... the original text must be particularly simple, clear and direct, since any overcomplexity or ambiguity, however slight, could result in inaccuracies, approximations or real mistranslations in one or more of the Community languages". …

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