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Legal Translation

Chapter · January 2010

DOI: 10.1075/hts.1.leg1

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This is a contribution from Handbook of Translation Studies. Volume 1.

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 Legal translation

Deborah Cao
Griffith University

Legal translation is a type of specialist or technical translation*, a translational activity that

involves language of and related to law and legal process. Legal translation refers to the
rendering of legal texts from the Source Language (SL) into the Target Language (TL).
Legal translation can be classified according to different criteria. For instance, legal
translation can be categorised into the following classes according to the subject matter
of the SL texts: (1) translating domestic statutes and international treaties; (2) translating
private legal documents; (3) translating legal scholarly works, and (4) translating case law.
Legal translation can also be divided according to the status of the SL texts: (1) translating
enforceable law, e.g., statutes; and (2) translating non-enforceable law, e.g., legal scholarly
works. As well, legal translation can be classified according to the functions of legal texts
in the SL: (1) primarily prescriptive, e.g., laws, regulations, codes, contracts, treaties, and
conventions; (2) primarily descriptive and also prescriptive, e.g., judicial decisions and
legal instruments that are used to carry on judicial and administrative proceedings such
as actions, pleadings, briefs, appeals, requests, petitions etc; and (3) purely descriptive, e.g.,
scholarly works written by legal scholars such as legal opinions, law textbooks, and articles,
the authority of which varies in different legal systems (Sarcevic 1997: 11). Legal translation
can also be classified in the light of the purposes of the TL texts: (1) normative purpose,
i.e., the production of equally authentic legal texts in bilingual and multilingual jurisdic-
tions of domestic laws and international legal instruments and other laws; (2) informative
purpose, e.g., the translation of statutes, court decisions, scholarly works and other types
of legal documents if the purpose of the translation is to provide information to the target
readers; and (3) general legal or judicial purpose (see Cao 2007). In short, legal translation
is used as a generic term to cover both the translation of law and other communications
in legal settings.

1. Sources of difficulty in legal translation

It is often said that legal translation is difficult and complex. In essence, the nature of law and
legal language contributes to the complexity and difficulty in legal translation. This is com-
pounded by complications arising from crossing two languages and legal systems in transla-
tion. Accordingly, sources of legal translation difficulty include the systemic differences in
law, linguistic as well as cultural differences. All these are closely related (see Cao 2007).

© 2010. John Benjamins Publishing Company

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192 Deborah Cao

First of all, legal language is a technical language, but legal language is not a universal
technical language but one that is tied to a national legal system (Weisflog 1987: 203), differ-
ent from the language used in pure science, say mathematics or physics. Law and legal lan-
guage are system bound, that is, they reflect the history, evolution and culture, and above all,
the law of a specific legal system. Law as an abstract concept is universal as it is reflected in
written laws and customary norms of conduct in different countries. However, legal systems
are peculiar to the societies in which they have been formulated. Each society has different
cultural, social and linguistic structures developed separately according to its own condi-
tioning. Legal concepts, legal norms and application of laws differ in each individual soci-
ety reflecting the differences in that society. Legal translation involves translation from one
legal system into another. Unlike pure science, law remains a national phenomenon. Each
national law constitutes an independent legal system with its own terminological appara-
tus, underlying conceptual structure, rules of classification, sources of law, methodological
approaches and socio-economic principles (Sarcevic 1997: 13). This has implications for
legal translation when communication is channelled across different languages, cultures and
legal systems.
Law is culturally and jurisdictionally specific. There are different legal systems or fami-
lies, such as the Romano-Germanic Law (Continental Civil Law) and the Common Law,
the two most influential legal families in the world. As David and Brierley (1985: 19) state,
each legal system or family has its own characteristics and “a vocabulary used to express
concepts, its rules are arranged into categories, it has techniques for expressing rules and
interpreting them, it is linked to a view of the social order itself which determines the way
in which the law is applied and shapes the very function of law in that society”. Due to the
differences in historical and cultural development, the elements of the source legal system
cannot be simply transposed into the target legal system (Sarcevic 1997: 13). Thus, the main
challenge to the legal translator is the incongruency of legal systems in the SL and TL. As
a result, the systemic differences between different legal families are a major source of dif-
ficulty in translation.
In addition, linguistic difficulties also arise in translation from the differences found
in the different legal cultures and legal systems. Legal translation is distinguished from
other types of technical translation* that convey universal information. In this sense, legal
translation is sui generis. Each legal language is the product of a special history and culture.
It follows, for example, that the characteristics of la langue de droit in French do not neces-
sarily apply to legal English. Nor do those of the English language of the law necessarily
apply to French.
A basic linguistic difficulty in legal translation is the absence of equivalent termino­
logy* across different languages. This requires constant comparison between the legal sys-
tems of the SL and TL. In terms of legal style, legal language is a highly specialised language
use with its own style. The languages of the Common Law and Civil Law systems are fun-
damentally different in style. Legal traditions and legal culture have had a lasting impact

© 2010. John Benjamins Publishing Company

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 Legal translation 193

on the way law is written. Written legal language thus reflects the essential elements of a
legal culture and confronts the legal translator with its multi-faceted implications (Smith
1995: 190–191).
Lastly, cultural differences present another source of difficulty in legal translation.
Law is an expression of the culture, and it is expressed through legal language. As pointed
out, “[e]ach country has its own legal language representing the social reality of its spe-
cific legal order” (Sarcevic 1985: 127). Legal translators must overcome cultural barriers
between the SL and TL societies when reproducing a TL version of a law originally writ-
ten for the SL reader. In this connection, Weston (1983: 207) writes that the most impor-
tant general characteristic of any legal translation is that an unusually large proportion
of the text is culture-specific. The existence of different legal cultures and traditions is a
major reason why legal languages are different from one another, and will remain so. It is
also a reason why legal language within each national legal order is not and will not be the
same as ordinary language.

2. Translating different legal texts

Legal translation involves different legal text types. The common legal text types include
private legal documents, domestic legislation, and international legal instruments.

2.1 Translating private legal documents

Private legal documents are those that are drafted and used by lawyers in their daily prac-
tice on behalf of their clients. They may include deeds, contracts and other agreements,
leases, wills and other legal texts such as statutory declaration, power of attorney, state-
ments of claims or pleadings and other court documents and advice from lawyers to cli-
ents. The translation of these documents constitutes the bulk of actual translation work for
many legal translation practitioners.
Private legal documents often follow certain established patterns and rules in a par-
ticular jurisdiction. Agreements and contracts, which are among the most commonly
translated private legal documents from and into English, are often written in similar
styles. Such documents, for instance, drafted in English, often contain old or archaic words
and expressions reflecting the old drafting style, where one frequently finds words such
as ‘aforementioned’, ‘hereinafter’, ‘hereinabove’, ‘hereunder’, ‘said’, ‘such’, etc. Another com-
mon usage is word strings, for instance, ‘restriction, restraint, prohibition or interven-
tion’, ‘change, modification or alteration’, ‘document or agreement as amended, annotated,
supplemented, varied or replaced’, ‘arrangements, agreements, representations or under­
takings’. Some describe these collocations as wordiness or verbosity. Still another common
linguistic feature found in private legal documents is that sentences are typically long and
complex, and passive structures are often extensively used.

© 2010. John Benjamins Publishing Company

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194 Deborah Cao

2.2 Translating domestic legislation

Under this category, there are two types of situation where municipal statutes are trans-
lated. The first type is found in bilingual and multilingual jurisdictions (see Multilingualism
and translation*) where two or more languages are the official legal languages. Examples
include Canada, Switzerland, Hong Kong, and South Africa. The second type of translated
legislation is found in any monolingual country where its laws are translated into a foreign
language or languages for information purpose, for instance, the US and China.
Generally speaking, modern statutes consist of a generic structure and standard form
with the following common elements:

–– title
–– date
–– preamble
–– the enacting words
–– substantive body: the parts, articles and sections
–– schedules or forms

One prominent linguistic feature of legislative texts is the illocutionary force. A legis­lative
text as a rule-enacting document is a speech act with illocutionary forces (see Kurzon
1986). This pragmatic feature is a crucial and prominent linguistic aspect of statutes, for
both domestic or municipal statutory instruments and multilateral legal instruments. It is
universally important as the basic function of law is regulating human behaviour and rela-
tions by setting out obligation, permission and prohibition in society. These are expressed
in language through the use of words such as ‘may’ for conferring a right, privilege or power,
‘shall’ for imposing an obligation to do an act, and ‘shall not’ or ‘may not’ for imposing an
obligation to abstain from doing an act.

2.3 Translating international legal instruments

The translation of legal instruments in international or supranational bodies such as the
United Nations (UN) and the European Union (EU) forms a special area of legal trans­
lation practice (see Cao 2007). Such translational activities can entail translating multilin-
gual documents such as international instruments of the UN involving several languages,
and translating bilateral treaties involving two languages. The translation of such legal
documents of international nature as opposed to domestic laws has its own idiosyncrasy as
well as sharing the characteristics of translating law in general.
One important principle in the practice of multilingual law is the principle of equal
authenticity, that is, all the official language texts of an international treaty, whether trans-
lated or not, are equally authentic, having equal legal force. As pointed out, the importance
attached to the principle of equal authenticity was intended to confer undisputable authority

© 2010. John Benjamins Publishing Company

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 Legal translation 195

on each of the authentic texts, de facto eliminating the inferior status of authoritative transla-
tions (Sarcevic 1997: 199). This also carries with it the high level requirements for accuracy
on the part of the legal translator.

References

Cao, Deborah. 2007. Translating Law. Clevedon: Multilingual Matters.

David, René & Brierley, John. 1985. Major Legal Systems in the World Today. London: Stevens.
Kurzon, Dennis. 1986. It Is Hereby Performed… Explorations in Legal Speech Acts. Amsterdam &
Philadelphia: John Benjamins.
Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International.
Smith, S.A. 1995. “Cultural Clash: Anglo-American Case Law and German Civil Law in Translation.”
In Translation and the Law, M. Morris (ed.), 179–200. Amsterdam: John Benjamins.
Weisflog, W.E. 1987. “Problems of Legal Translation.” Swiss Reports presented at the XIIth Interna-
tional Congress of Comparative Law, 179–218. Zürich: Schulthess.
Weston, M. 1983. “Problems and Principles in Legal Translation.” The Incorporate Linguist 22 (4):
207–211.

Further reading

Alcaraz, E. & Hughes, B. 2002. Legal Translation Explained. Manchester: St Jerome.

Cao, Deborah. 2007. Translating Law. Clevedon: Multilingual Matters.
Houbert, Frederic. 2005. Guide Pratique de la Traduction Juridique: Anglais/Français. Paris: La ­Maison
du Dictionnaire.
Sarcevic, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International.

© 2010. John Benjamins Publishing Company

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