الترجمة القانونية بين النظرية والتطبيق محمد يوسف سوسن عبود PDF

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Legal Translation: Legal Translation: Legal Translation: Legal Translation:

Theory and Practice Theory and Practice Theory and Practice Theory and Practice
Hanem E. El-Farahaty 7
Metaphors We Translate By: Metaphors We Translate By: Metaphors We Translate By: Metaphors We Translate By:
The Influence of Conceptual The Influence of Conceptual The Influence of Conceptual The Influence of Conceptual
Metaphor in Translation Studies Metaphor in Translation Studies Metaphor in Translation Studies Metaphor in Translation Studies
Ahmed H. Al-Maaini 31
Identifying the English Language Identifying the English Language Identifying the English Language Identifying the English Language
Needs of Saudi Police Officers Needs of Saudi Police Officers Needs of Saudi Police Officers Needs of Saudi Police Officers
Mohammed Nasser Alhuqbani 55
+r | . . . ,: .~| .~. ..-.L..| .,.,,i|
_..|| _.|.:i| _ t:..i_
r . . _ _.:..| .,. .. .~i| _ .i| .,>:i| :
.|.i| .,|._ ..| .t.,
. . _..i| _,,l, .:.t. ..|. _:i| .,,.;| >,i| .~. :;:.
:t.....t)t, t...,l.i| :t....|.i| :t...,it
....i|
Volume: Volume: Volume: Volume: 1 11 1 Issue: Issue: Issue: Issue: 2 22 2 August August August August 2008 2008 2008 2008
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Ayn Ayn Ayn Ayn, Journal of the Saudi Association , Journal of the Saudi Association , Journal of the Saudi Association , Journal of the Saudi Association
of Languages and Translation of Languages and Translation of Languages and Translation of Languages and Translation
Legal Translation: Legal Translation: Legal Translation: Legal Translation:
Theory and Practice Theory and Practice Theory and Practice Theory and Practice
Hanem E. El-Farahaty

L
Introduction Introduction Introduction Introduction
Legal translation is bound by each languages culture and system; it is
not merely transcoding between the source language (SL) and the target
language (TL) but it is also a translation from one legal system into
another from the source legal system into the target legal system (cf.
Sarcevic, 1997:13). It involves all the legal texts that are used in various
legal settings be it a court, a national or international organisation, a law
book, a legal report, a birth certificate, a contract, etc.
This paper discusses legal translation in theory and practice and falls
into two sections: the first of which gives a historical review of legal
translation in the Western and Arabic tradition while the second section
discusses the most common difficulties of legal translation with examples
from English/Arabic/English legal texts. These examples were taken from a
collection of authentic legal texts, some of them were obtained from
professional lawyers, others were taken form the United Nations (UN)
online website, and from legal books. This section also demonstrates the
techniques that the legal translator can use to overcome such difficulties.
The paper concludes with practical guidelines for the legal translator.
1 11 1. .. . Historical Review of Legal Translation Historical Review of Legal Translation Historical Review of Legal Translation Historical Review of Legal Translation
Legal translation was basically used for diplomatic purposes. It dates
back to Babylon (2001 BCE) with the establishment of Hammurabis
translation centre the purpose of which is transferring his laws all over the
kingdom. It reached its peak in the 8
th
and 9
th
centuries Abbasids era.

A Ph.D. researcher in English/Arabic/English legal translation since May, 2007 in the

School of Modern Languages and Cultures, Leeds University and is currently working as a
teacher of Arabic as a foreign language in Leeds University and have been working as a
freelance translator since 1999. Ms. El-Farahaty has participated in a number of national
and international conferences since 1999 and is a member of International Association of
Translation and Interpreting Studies (IATIS) and World Arabic Translation Association
(WATA)
Hanem E. El Hanem E. El Hanem E. El Hanem E. El- -- -Farahaty Farahaty Farahaty Farahaty Legal Translation: Legal Translation: Legal Translation: Legal Translation: Theory and Practice Theory and Practice Theory and Practice Theory and Practice
8 88 8
Translating archival documents and registers among other translation
activities took place in that era (Delisle and Woodsworth, 1995:112).
Legal documents were considered by some as sacred as the Bible. The
goal behind that was attributed to the mysteriousness, i.e. legal texts
conveyed an assumed truth not to be comprehended by the human mind
but accepted on faith alone (cf. Sarcevic, 1997:25). Legal translation was
affected by that old tradition until the Middle Ages when the Bible was
translated into the language of the layman. Yet, legal translation continued
to be of a special nature till the advent of the 20
th
century with the
translators tendency for simplification.
1.1 1.1 1.1 1.1 The Language of the Legal Text The Language of the Legal Text The Language of the Legal Text The Language of the Legal Text
English law encountered three main stages of development: before the
Norman Conquest, during the Norman Conquest, and after the Norman
Conquest. The Anglo-Saxons invaded England in the 5
th
century A.D. and
contracts and pleadings could be traced back to their reign. Such laws were
affected by the alliterative and rhythmical fashions of the day (Mellinkoff,
1963:36). He (ibid:37) adds that the vein of rhythm runs through the
language of the law, sometimes in traditional oral words, sometimes carried
over into what is only written. Gu (2006:110) comments that the Anglo-
Saxons formed laws in their primitive language that was rigid in both
meaning and form. All the old words that are considered an integral part
of legal English up till now such as hereof, hereinafter, hereinunder, etc.
date back to the Anglo-Saxons Old English. Latin and French were the
formal languages of legal documents during and after the Norman
Conquest (1066). Haigh (2004:x) argues that
For a period of 300 years, French was the language of legal
proceedings, with the result that many words in current legal
use have their roots in this period. These include property,
estate, chattel, lease, executor and tenant.
He adds:
As the printed word became more commonplace, some writers
made a deliberate effort to adopt words derived from Latin,
with the aim of making their text appear more sophisticated
Some writers also started to use a Latin word order. This led to
an ornate style, deliberately used to impress rather than inform
It also lies behind the frequent use of shall constructions in
legal documents. (ibid)
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Because of the existence of three languages: English, French and Latin,
the need for legal translation increased in various countries. In Germany,
lack of misunderstanding of Latin led to the Germans interest in
translating legislations. The approach used in translating these legal
documents was that of word-for-word translation. No attention was given to
context or cohesion.
In France and Italy, the well-known Justinian Corpus, Juris Civilis, which
was basically written in Latin, then literally translated into Greek pursuant
to emperor Justinians (d.565) approval, was taught in the universities. In
this respect, Sarcevic notes that it was taught by using monolingual glosses
which expressed the whole passage through textual interpretation or
commentary and it continued during the period (1997:27). In England,
Latin and French continued to be the language of the law till the 17
th

century. In 1650, English became the formal language of the law.
Nevertheless, it was so loaded with old English, Latin, Norman-French and
Middle English terms that they became an integral part of it. These
countries among others revolted against Latin and they advocated its
replacement with their own languages.
In the 17
th
century, the French language was one of the competitive
languages to Latin and it began to replace it in international conferences
and in treaties. Thus, legal translators started to adopt a new technique of
translation, namely, target-oriented translation that respects the target text
(TT) syntax but they did not move to free translation. In the first decade of
the 19
th
century, Napoleon established his civil code known as the
Napoleonic Code (1804) which, though not the first code, has been so
successful that it had left its impact on the law of many other countries.
Consequently, translation reached its peak in Napoleons era.
1.2 1.2 1.2 1.2 Approaches to Legal Translation Approaches to Legal Translation Approaches to Legal Translation Approaches to Legal Translation
In the 18
th
century Germany, Frederic Schleiermacher distinguished
between literary and worldly texts, for the second to mean legal texts he set
his source-oriented versus target-oriented approach. He believed that
either the translator leaves the writer alone as much as possible and moves
the reader toward the writer, or he leaves the reader alone as much as
possible and moves the writer toward the reader (cf. Munday, 2001:28; and
Robinson, 2002:229). Schleiermacher favoured the source-oriented
approach or the faithful most literal translation. His ideas were influential
on other theorists such as Lawerence Venuti (1995) who proposed
domestication and foreignization later to replace Schleiermachers
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naturalizing and alienating. His classification for texts helped in raising
the awareness of the importance of text typology in translation.
However, the 19
th
century translators favoured the literal word-for-word
translation of legal texts. This tradition has continued up to the advent of
the 20
th
century with the slow movement towards considering the TT rules
and the increasing awareness of the language differences. Translators and
lawyers soon realized that literal translation is a violation of language
rights.
The second half of the 20
th
century witnessed progress in the translation
movement in general and in legal translation in particular. It has long been
playing a vital role in communication both nationally and internationally.
This role has become even more important due to globalisation, as the
need for establishing international bodies has increased (i.e. the UN).
Thus, the need for multilingual legal translation has increased.
The debate on legal translation continued in the 20
th
century in
European as well as non-European countries such as France, Italy,
Switzerland, Canada, and Belgium. A major question was raised by lawyers
and translators about the possibility of following the spirit of the TT or
following the source text (ST) literally. A number of translators advocated
fidelity to the ST while some others favoured idiomatic translation and
stressed the communicative element. In this context, Sarcevic (1997:39)
notes that parallel texts of single instrument do not have to correspond
visually, nor do the terminology and syntax have to be modelled on the
original; instead it is the effect that must be the same. She (ibid:24)
summarizes the stages of development of the legal translation since the
Roman Empire until recent times in the following continuum:
Strict literal literal moderately literal near idiomatic
idiomatic co-drafting
It is conceivable that the word-for-word versus communicative translation,
a debate which dates back to the Roman Empire, will be everlasting in the
legal arena. Translators who advocated fidelity to the ST have not managed
as yet to provide an accurate description of what they meant by the term. It
is the same debate on equivalence that has been going on for decades.
Translators nowadays are no longer considering fidelity to the ST. They
redefine it to mean achieving an equivalent effect on the target reader and
thus some stylistic changes may occur to cope with TL cultural conventions
(cf. Harvey, 2002:180). It is worth mentioning that translation approaches
may vary according to the legal genres and their functions. For example,
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literal translation would be the best in translating official documents (i.e.
birth, marriage, or divorce certificates).
Lack of well-defined techniques for translating legal discourse proves
useful in sight of the challenging nature of legal translation. The reason for
this difficulty is the specific nature of legal discourse; i.e. the uniqueness of
its lexical items; and the ambiguity and complexity of sentences. Garre
(1999) argues that more than one translation theory can be applied in the
field of legal translation (i.e. human rights documents). Among the main
theories that Garre has mentioned are the relevance theory, the
hermeneutics theory, the prototype theory, text analysis, the skopos theory,
text typology, and pragmatics. Garres suggestions are effective since a legal
translator will require a mix of tools that will enable him to figure out the
type of the legal document, its function, its structure, and the pragmatic
effect. All these aspects along with the special nature of legal discourse
make the task of the legal translator more difficult. The following section is
a discussion of the problems that a legal translator is likely to face.
2 22 2. . . . Problems of Legal Translation Problems of Legal Translation Problems of Legal Translation Problems of Legal Translation
Harvey (2002:17) notes that legal translation combines the
inventiveness of literary translation with the terminological precision of
technical translation. According to Harveys argument, the translators task
is unusually challenging. The difficulties that the legal translator faces
involve lexical incongruities, syntactic complexities, textual dissimilarities,
and system and cultural differences. The following discussion provides
details about these problems and offers practical strategies of how the legal
translator may handle them.
2.1 2.1 2.1 2.1 Lexical Problems Lexical Problems Lexical Problems Lexical Problems
Cao (2007:29) argues that the absence of equivalent terminology across
different languages necessitates the constant comparison between the legal
systems of the SL and TL. According to Caos argument, the case of legal
translation from English into Arabic or vice versa is even more difficult
because of the wide gap between the English and the Arabic legal systems,
on one hand, and between the language systems of the two languages, on
the other. What makes the task of the translator harder is mixing between
styles and registers as in the language of lay witnesses, slang of the police
and technical jargon of the reports and testimony of expert witnesses who
may be doctors, surgeons, bankers, technicians, etc. This is what Alcarez
and Hughes (2002:14) call legalese. Some of the lexical difficulties that a
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translator of legal texts faces are discussed below:
( (( (1 11 1) ) ) ) Archaic Vocabulary Archaic Vocabulary Archaic Vocabulary Archaic Vocabulary
The language of the English law is full of old and Latin words that date
back to the Middle Ages. Examples of Latin words and expressions are
given by Haigh (2004): ad hoc, de facto, pro rata, inter alia, ab initio,
mutatis mutandis. Examples of old and Middle English words are hereby,
thereby, aforesaid, and hereof to mention just a few. These archaic words
combine a big part of the legal jargon that lawyers tend to use and which
are difficult for non-lawyers to understand. For Haigh (2004:xvi) examples
of jargon include boilerplate clause and corporate veil.
Because these words do not exist in Arabic legal discourse, they do not
have direct equivalents, hence, they cause difficulty in translating English
legal discourse into Arabic. Being a cultural mediator, the Arabic legal
translator may try to understand these words conceptually rather than
translating them literally, or resort to specialist dictionaries. Doing so,
he/she can overcome the technical complexity of such terms and achieve
the highest level of equivalence he/she can get. In the case of archaic
expressions, the translator should find an approximate corresponding
expression in the TL. For example, the English terms hereunder and
hereinafter may be translated as )
_ ,:
( . Also, herewith as in I enclose
herewith, can be translated as ( ) ., :i
, and hereinafter as in In the
presence of the two witnesses hereinafter can be translated as ) .> _
,:_.i .,it:i| _.:t:i| ( . Also, the translator may omit such archaic term as it does
not affect the overall meaning of the text and the reader will have to
continue reading to find the names of the witnesses. Moreover, the word
hereby can be omitted in the Arabic translation of I hereby declare
). _l.i
(... It is worth mentioning that although such archaic terms do not

exist in the Arabic legal texts, the English legal translator adds them to give
the text a legal spirit. Here is one of these examples:
t.i _.>, ... | _|_i| .:. .. ; _ : ...
which is translated into English as:
I hereby authorize the following marriage certificate. (marriage
certificate)
( (( (2 22 2) ) ) ) Technical and General Words Technical and General Words Technical and General Words Technical and General Words
Legal English includes technical i.e. legal terms, as well as non-technical,
i.e. non-legal, every day vocabulary. The former category includes legal
terms of art which have fixed legal meanings and cannot be replaced by
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other words, such as (plaintiff, and defendant - _..||
. .,l. _..||
). When the TL
does not have the exact equivalent, the translator may resort to what
Asensio (2003:59) calls functional adaptation. For example, English
distinguishes between a solicitor and a barrister. The formers work
involves direct contact with clients and he can represent them through
litigation, while the latter is prohibited to do so. The main task of a
barrister is offering specialist advice on legal cases. On the contrary, Arabic
has one function for all of them: ). _.ts ( Thus, the translator is advized to
consult specialist dictionaries, seek advice form lawyers, and be well-versed
in different law systems. Moreover, a translator can seek an approximate
translation to give the nearest meaning of the original. For instance, the
closest Arabic equivalent to Registry of Births and Deaths or the Registry
Office is ) _.|| _>.i| ( .
Legal documents involve common terms with legal meaning such as
distress, consideration, construction, redemption, tender, hold, and prefer
(Haigh, 2004:xvii) whose Arabic counterparts are subsequently given below:
>+| ,|.;| _. . _t. _.. . _... . _:i| : . .tL. . ... . _.|.i .i_;| _L. .
Because they can occur in a legal context, they require more effort and
alertness on the part of a legal translator. He/she may need to consult
specialists, and analyze similar texts in order to arrive at the best solution.
An example of this is the word (compensation - ) _.. which may mean
financial, or moral compensation. In a legal context, it is understood as
(financial compensation - _t. _..), unless otherwise stated. Thus, the main
determinant is the overall context. Similarly, Arabic translates moral
compensation or giving ones reputation back as ) . . ( .
Abstract words are also crucial in the field of international law such as
human rights. Although words such as freedom, privacy, right, and fairness
are commonly used in our daily life, they are subject to many interpretations
in the legal paralance. In this context, Garre (1999:116) argues that the
translator must consider the differences of meanings that these terms may
have in general and in a legal context. Also, a legal translators task is to
translate the words as they are and leave the interpretations to the court. For
instance, the English phrase fundamental human rights is translated into
Arabic as ) .,.t.;| _t..]| _:> ( . In this example, the word fundamental is
ambiguous and needs more clarification. Yet, a translator cannot take the
initiative towards disambiguating this word.
( (( (3 33 3) ) ) ) Polysemous Words and Repetitions Polysemous Words and Repetitions Polysemous Words and Repetitions Polysemous Words and Repetitions
Polysemy, in legal discourse, describes words that have more than one
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meaning in legal documents. For example, the word right has many
distinguishable meanings. In this case, the translator should avoid
mechanical translation and guess work and the only practical way is to
judge the context of the statement. In the case of repetitious words such as
perform and performance, the translator should be aware that they may
have different meanings in the same paragraph which is very likely in the
legal context. Consider the following examples from the translation of the
Charter of the UN:
a) (appropriate ,.t.._ _it.

)
b) (ends, aims, objectives _|.;| . :tt.i| ) :tt.i| ,
( (( (4 44 4) ) ) ) Homonyms Homonyms Homonyms Homonyms, , , , Synonyms Synonyms Synonyms Synonyms, , , , Antonyms and Hypo Antonyms and Hypo Antonyms and Hypo Antonyms and Hyponyms nyms nyms nyms
Homonyms describe a word that has two senses. For example, the word
bank is a word that means a financial institution and an edge of a water
stream. It is worth noting that the difference between polysemes and
homonyms is subtle and there are no clear-cut boundaries between them.
Synonyms refer to different words that have similar meaning such as
buy and purchase. This category of words is known in legal discourse as
lexical doublets such as the English doublet Maintenance of,
(strengthening) international peace and security, and its Arabic
counterpart ) a.> ) .,. ( __.i| _.;|_ ,l.i| ( . They are difficult to translate because
the SL may not have the exact corresponding equivalents. Yet, in the case
of Arabic, translating these vocabularies is not too difficult because Arabic is
rich with synonyms and because generally it prefers repetitions. Antonyms
are those words that have opposite meanings such as the English pair
facilities and hindrances and its Arabic equivalent ) :ti.||_ :;,,.:i| ( . Finally,
a hyponym describes the relationship between a general term and a more
specific term that is considered a part of it such as law, and common law,
civil law, Islamic law, etc..
( (( (5 55 5) ) ) ) Functional Words Functional Words Functional Words Functional Words
Any language consists of major or content words such as nouns and
verbs, and function words such as prepositions and conjunctions. The latter
are used to relate between the major elements of the sentence and also
across sentence boundaries. Alcarez and Hughes (2002:165) note that each
specialist field has its own functional vocabulary. For them (ibid) legal
English uses two main types of functional language: (1) adjectival/adverbial
groups (e.g. hereinafter, and forthwith), (2) conjunctions and prepositional
phrases (e.g. under, prior to, and in accordance with, etc.).
Translating this category of words from English into Arabic, for instance,
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is difficult due to the archaic nature of such words that may not have
equivalents in Arabic. Yet, translation of adjectives is subject to the context in
which the adjective is found. For instance, the adjective high is translated
into Arabic as )
_t.
( or )
,t.
( . In a legal context, it is translated into )
,t.
( as in
(the high contracting parties -_t,.t.i| _|.:t.:|| _t:Li|). In a more formal context,
the word highness, referring to ranks, is translated into Arabic as ) ,>t.
_t.|| ( or ) ..i| ,>t. ( .
Moreover, a legal translator may use literal translation or paraphrase.
For example, the English prepositional phrase, in accordance with, is
translated into Arabic as )
t::_ i
( , pursuant to the discussion is translated
as ) .:it.|| .., ( , prior to the discussion, is translated as ) .:it.|| _,i ( , whereas the
meeting prior to the session, is translated as ) ..l>li ,t.i| .t:li| ( . The second
technique will depend mainly on the overall context. A very good example
in translating the connecting word, whereas, as found in the preamble of
Universal Declaration of Human Rights is ) _t: t| ( . Also, the Arabic
equivalent of the English word under is ) ,s ( but in a sentence like the
case under discussion it will be translated as ) .,i ( as in ,>,i| ( ) .,i .,.:i| .
The above discussion shows that these concepts require caution,
investigation, and knowledge on the part of the translator. For instance,
with two synonyms like final and conclusive in English, the Arabic
translator should decide upon the proper way of translating them; is he/she
going to translate them literally as ) _.t, ( and ) _.t:> ( , ,, , or is he/she going to
use one equivalent for the two terms? In most cases, it is always advisable
that the legal translator sticks to the same range of words if the TL allows
him to do so. In Wai-Yees view, descriptive equivalence or paraphrase is
preferred if a one-to-one translation could not reveal the legal meaning or
distinguish the legal term from other similar terms (2002:79). Sarcevic
comments that this way is the most secure way for compensating for
terminological incongruity (1997:79).
2.2 2.2 2.2 2.2 Syntactic Problems Syntactic Problems Syntactic Problems Syntactic Problems
Complexity of text structure and the discontinuity of sentences is a
problematic area in legal discourse. In response to this difficulty, Garre
(1999:116) asks the following question: How should the translator or the
legal professional deal with variances in sentence and text structures in
different structures? Among the syntactic problems which we encounter in
legal discourse are:
( (( (1 11 1) ) ) ) Syntactic complexity Syntactic complexity Syntactic complexity Syntactic complexity
Legal discourse in English is characterized by the excessive use of long
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and complicated sentences. Similarly, Arabic legal sentences are lengthy
and complex, a fact that causes difficulties in translating from English into
Arabic and vice versa. We usually encounter long sentences forming a
whole paragraph. Thus, a sentence consists of a number of subordinating
and coordinating clauses that are joined by many subordinating and
coordinating conjunctions which may be peculiar to the TL.
According to Farghal and Shunnaq (1992:204), the ability to cope
successfully with syntactic discontinuity which is a characteristic feature of
legal texts, constitutes a key gate to finding ones way smoothly through the
text. Parenthetic clauses, for Farghal and Shunnaq (ibid), are the reason
behind syntactic discontinuity. The use of conditionals such as if, when,
should, and provided that and phrasal verbs such as put down and enter
into also adds to the difficulty of legal translation. The latter are to be studied
carefully because they are vague and do not follow specific grammatical rules.
Long and complex sentences of legal discourse result in ambiguity. This
is a structural ambiguity which is purposefully made to create uncertainties
and also for diplomatic reasons (Harvey, 2002:181). Misinterpretation of
such structures leads to mistranslation. In this context, Harvey (ibid) adds
that ambiguity, then, is an integral feature in legal discourse and should be
rendered in translation.
As for a sentence with a complex structure, the translator is advised to
divide the sentence into independent and dependent clauses. This process
simplifies his understanding of the main pieces of information given in
each sentence, though it is not an easy task. He/she then may have a choice
of following the same structure of the ST which most legal translators do.
Yet, this method results in ambiguity as in the case of translating from
English into Arabic. These two have different syntactic structures because
the former uses a SVO structure while the latter uses a VSO structure.
He/she may also consider the syntactic structure of the TL and stick to the
content displayed in the sentence. It is worth noting that this technique
involves risk as it may lead to subjectivity or lack of accuracy. That is,
content may be sacrificed for achieving formal adequacy of the TL.
As for syntactic ambiguity, a legal translator may also need to stick to the
most common structures that have been famously used in dealing with
similar syntactic difficulties. That is, he seeks advice and searches for
genuine solutions rather than look for alternatives.
( (( (2 22 2) ) ) ) Passivization Passivization Passivization Passivization
English legal discourse excessively manipulates passive forms that
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obscure the agent. On the other hand, Arabic does not favour using passive
very frequently. In this case, the legal translator resorts to the technique of
adaptation, which is very helpful in translating between incongruent
languages. For example, a translator may use the active in place of the
passive. To explain this idea, compare the following two examples from
English and Arabic versions of the Universal Declaration of Human Rights:
a) No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
Y _.

..|it, .t+| _i .,:>i| _i .,.t:i| :;.t.|| _i :t,:.li Y_ ,i.:li _t..j _i .
b) No one shall be subjected to arbitrary arrest, detention or exile.
Y >> _i _t..j _i _. _,:i| t.... .,.. _i . .
The above two examples display two different ways of translating the
same passive form shall be subjected to. In the first it was translated as
passive (_.

), whereas in the second sentence it was deleted and the modal
expression () was used.
In other cases, the translator can use personification in which he/she can
assign a person to a legal act that can be personalized in Arabic. That is,
he/she can translate a corresponding credit facility is willing to proceed
with the funding of the project as: |j ,: _i __:|| . __|| _. :| ( ) _. .
( (( (3 33 3) ) ) ) Modal Auxiliaries Modal Auxiliaries Modal Auxiliaries Modal Auxiliaries
Whereas English uses a well-defined system of modal auxiliaries, Arabic
does not. The Arabic modal system is lexical and not grammatical.
Examples of the most common modals used in Arabic legal discourse are
deontic modals. This type of modals expresses obligation, permission, or
prohibition. Obligation is represented by the following modal phrases or to
be precise expressions:
_i .,Y . _i ,|i| _. . _i , . _i _.,. . ,lL|| _. . ,l. \ _i .,l.
Permission is expressed through the following expressions:
_. ) J ( . _t . .t)| _. . ) i ( _i
Based on that, translating modals from English into Arabic will result in
many inadequate counterparts but when translating from Arabic into
English there are more adequate forms. For example, English legal
discourse prefers the use of imperative shall to the present indicative or
the future tense, whereas Arabic translation of imperative shall or may
uses the present indicative. This point is also true for the mandatory must
18 18 18 18
and this prevents the translator from using the same form of the verb in the
target text. The present indicative expresses has less formality and weaker
strength than the use of shall. Bowler states that:
because the legislative modals are ambiguous between epistemic
senses of necessity and possibility, on the one hand, and the
deontic sense of obligation, sanction and prohibition, on the
other, it is best not to mix their use, as the deontic use is
obviously the most frequent, it is the epistemic sense that
should be avoided. (cf. Bhatia (2003:27)
Abdel-Fattah (2005:42-45) offers some techniques in translating modals
from English into Arabic and vice versa:
1) Classification of modals: to understand the real category of the
modal involved (i.e. epistemic or root (deontic or dynamic)).
2) Modal rephrasing: paraphrasing the modal to its periphrastic
counterpart.
3) Modal retranslation: retranslation after the first draft is finished
helps in making sure that this is the original rendering, of the
modal.
4) Utilizing ambiguity: sometimes ambiguity is utilized in translation
only if there is another ambiguous counterpart in the target
language.
( (( (4 44 4) ) ) ) Parallelism Parallelism Parallelism Parallelism
Parallel structures are a common feature of Arabic in general and of
legal texts in particular. Abdul-Raof (2001:56) defines them as phrases
which have the same structural rhythmical pattern employed for a stylistic
effect such as:
.,it:i| _,t:||_ _:i| _. .,..;| .|i| _. : .,::i ,..:._ .t,.. ,.. t. t _j
.|:. ._t.:. _Li ;. . .|> _..i|_ ..t.,, _L.i|_ ..|.. t,.. t,l.i| .
The Jordanian flag shall be of the following form and
dimensions: The length of the flag shall be twice its width. It
shall be divided horizontally into three parallel and equal
stripes, the uppermost of which shall be black, the centre, white,
and the lowest, green.
In the case of legal texts they add more emphasis to the verb. These
19 19 19 19
structures do not exist in English and thus they must result in translational
difficulty. The translator in this case should search for corresponding
equivalents in English that transfer the exact meaning of the message.
Doing that, he will have to sacrifice the rhetorical elements that the Arabic
text exhibits.
2.3 2.3 2.3 2.3 Textual Problems Textual Problems Textual Problems Textual Problems
Translation in general and legal translation in particular is difficult
between two languages because of the textual features they both have. Both
English and Arabic have totally different textual features. These features
include the layout, the punctuation system, conjunctions, cohesion, etc.
Arabic and English are two different languages both orthographically and
linguistically. Orthographically, Arabic starts from right while English starts
from left. Also, English employs upper case i.e., capital letters, while Arabic
does not have these features. Linguistically, Arabic is a VSO language, while
English is a SVO language. However, these are minor problems and they
do not pose serious difficulties in translatability.
( (( (1 11 1) ) ) ) Repetition Repetition Repetition Repetition
Although English and Arabic use similar cohesive devices in legal
discourse such as repetition and reference, the frequency of such features
and the way they are handled in the text is different from English to Arabic
and vice versa. English for instance reduces the amount of repetitious
words, as long as the meaning can be retrieved and there will be no
ambiguity. For more clarification, consider the following instance from An
Agreement Between Libya and the U.S.A. II (Mansoor, 1965a:282):
,..:. _i ....>:|| :t..Yi| ....+ .. _...., _....: _ ._.t..._ ._i_ . _...., ..i _|;
_|,_ _>|.i|_ _.. >i _.: ... >.. ,.:._ t |i: _. .,:t: _.|| _. ...
The Government of the United States of America may make
engineering, topographic, hydographic, coast and geodetic and
other technical surveys A sufficient number of copies with
title and triangulations and other control data of such a survey
shall be furnished(Mansoor, 1965b:125).
The above example shows that the Arabic extract uses same word
repetition of the word _.. ( - survey). It is mentioned in the Arabic text four
times while the English text avoids that repetition and the word is only
used twice. Doing that, the English text employs a number of premodifying
adjectives to specify the type of survey needed. This results in a class shift of
20 20 20 20
the two plural nouns _>|.i|_ _|;| ( - lands, and coasts) to modifiers of the
noun (survey - _..), to become the modifying noun coast and the adjective
geodetic.
Yet, this is not always the case in translating legal texts because
repetition is necessary to deal with the ambiguities that may arise in the
legal interpretation of the legal text. Consider the following instance from
the above agreement (Mansoor, 1965a:284):
..>:|| :tYi| :tLl.i _:.. _i ..>:|| :tYi| :|:i ..,,. t,:.,i .,it. t:. .l..,
..>:|| :tYi| .. _i :|.>, ..,,. t,:.,i ... .l ..>:|| :tYi| .l.. _i .,,,i .l.. _i
..>:|| :tYi| .l.. _:.i| ,: _i 1 _. ..>:|| :tYi| .l.., ... i>:._ :tLl.
..>:|| :tYi| ... :|.>, ..>:|| :tYi| .l.. .... ..>:|| :tYi| :|i .
The United States authorities may pay the United States forces
in checks expressed in United States currency, or military scrip
denominated in units of United States currency, or in Libyan or
in United States currency, provided the payment in United
States currency shall take placeThe United States authorities
will takein the units of the United States currencythe
United States forces. (Mansoor, 1965b:125).
There are also other cases of repetition in Arabic which do not exist in
English and of which the legal translator should be fully aware and
investigate how he will deal with them. In this case, they have no bearing
on the process of translating. These include root repetition as in:
_.:t. .t,.j
;:
_ _,::i| . (Mansoor, 1965a:299)

The attestment of two witnesses delegate, the right to
delegate, subsequently. (Mansoor 1965b:139)
Pattern repetition is a repetition of the same pattern such as: _,.: ._.t:
,.... It also may occur with a combination of synonyms and antonyms.
Consider the following example from the Trade and Payments Agreement
Between the Union of Soviet Socialist Republics and the Lebanese
RepublicII (Mansoor, 1965a:189):
.|_:.Yt, .:l.:|| .,:.)| :;.t.||_ :t,|| _ .t. ::;| .l.t.. t.i ,L. , ..:i|
_.t.,i| _:.,_ _>:i|_ ,.|i|_ :.|| .. _i ...|| _i .l.|| ,.|i| L, ...
Most-favored-nation treatment shall be applied with respect to
21 21 21 21
customs regulations and formalities concerning the
importation, exportation, conveyance in transit, warehousing,
and transshipment of goods being imported and exported or in
transit. (Mansoor, 1965b:81).
Suffix repetition as in the repetition of the plural suffix (:|) as in: _ :t,||)
.,:.)| :;.t.|| - customs regulations and formalities) in the above example.
The same argument applies to reference or, to be more precise,
pronominalization in Arabic, which is exemplified through the following
excerpts from the Agreement Between Libya and the World Health
Organization:
..+| ,L. .i. _..., ...,:. _.. _;| _.:> t,i ,,> _.. ...,.| l:t_ t.,,.._ t.,t
t.|.i_ t,|.._ . (Mansoor, 1965a:287)
The government, insofar as it is not already bound to do so,
shall apply to the Organization, its staff, funds, properties, and
assets. (Mansoor, 1965b:128)
The above example shows pronominalization of the noun (..,.| - the
Organization) through the pronoun (t: - its). The English translator avoids
the repetition of such pronouns and uses the pronoun its only once to
refer to staff, funds, properties, and assests of the Organization.
( (( (2 22 2) ) ) ) Punctuation Punctuation Punctuation Punctuation
Punctuation marks in English vary whereas Arabic uses a few, mainly,
the comma, and the dot, which is used only at the end of a too long
sentence. This huge difference between the two systems causes difficulty in
legal translation. As a start, consider the example on pronominalization
above in which Arabic links a list of nouns with the conjunction (_ - and)
while the English text uses the commas to link between these nouns. This
implies that Arab text makers generally do not follow a well-defined system
that employs punctuation marks with the same efficacy and precision as in
English. The following is another illustrative example from the
Constitution of the Hashemite Kingdom of Jordan (chapter 1: article 4):
.,it:i| _,t:||_ _:i| _. .,..;| .|i| _. : t,::i ,.:._ t,.. ,.. t. _Li ;. _j
.|:. ._t.:. . _..i|_ .t.,, _L.i|_ .|.. t,.. t,l.i| ..|> .,>t. _. t,,l. _.
..t..|_ .|i| _.i ._t.. ....ti ~i ,.ti ,l:. .t.i| ,l:|| |i: __ t. ,..i _t..
...;| _.t,. _,,i ,:: . _i _. tt .:>t.. _. .>|_ t:Li ..|. .,.:.. i _. . ..,
22 22 22 22
.L._ _ ,,>, _.. :_ .|i| .i +| _t:. .L:. ... ,,>,_ ,l:|| t|_ _, 1L
___i| .>i _. t|| >|| _ ,l:|| |i: ...t:i t|. .
<http://www.daleelirbid.com/info-and-regulations/pages/constitution.htm>
The Jordanian flag shall be of the following form and
dimensions: The length of the flag shall be twice its width. It
shall be divided horizontally into three parallel and equal
stripes, the uppermost of which shall be black, the center, white,
and the lowest, green. At the end of the flag-staff the flag shall
have a red triangle, the base of which shall be equal to its width.
In the triangle there shall be a white seven-pointed star of such
a size that it may be one-fourteenth part of its length. The star
shall be so placed that its centre shall be at the intersection of
the lines bisecting the angles of the triangle, and the axis
running through one of its points shall be parallel to the base of
the triangle.
<http://www.kinghussein.gov.jo/constitution_jo.html>
The above example shows the unique difference between the Arabic
punctuation system and the importance of using a variety of punctuation
marks in English. The Arabic text above consists of one sentence with a dot
at the end. This sentence is divided into two main constituent parts by the
use of a colon and three commas. The English translation, however,
employs four main sentences ending with a full stop and they may be
considered five if we count the first sentence ending with a colon to be one
sentence. The English text uses more commas than the Arabic text does
especially when referring to a list of nouns or adjectives. This does not form
a problem to the Arabic text which can add as many nouns or adjectives as
possible. In this case, addition of the conjunction and is preferable to the
commas. The English text adds a punctuation device which is not made use
of in the Arabic text, which is the quotation marks after the colon. These
quotation marks separate the description of the flag from the introductory
sentence.
From the above text, one can deduce that punctuation and cohesive
devices may affect the layout of the text, hence a change of the flow of
information that should be exhibited in the text is produced. Farghal and
Shunnaq (1992:106) comment on the importance of employing proper
layout features in technical texts in general and in legal texts in particular.
The following instance illustrates their argument:
23 23 23 23
The general Assembly,
Recalling its resolution 35/206 N of 16 December 1980,
Gravely concerned about thee inhuman oppression of millions of
women and children under apartheid,
For Farghal and Shunnaq (ibid), the following translation does not
represent the appropriate layout:
t:|i _j _:. ..t.i| .,..)| r \ - ,_i _.t: _ .t.i| _ +t- . ..:i| t,:li _. _.. :
_..i| _..i| ,tL. ,s ,t.;|_ .t..i| _;| _t..j;i| .t,L.Y| .ts . ..
the appropriate rendering, according to Farghal and Shunnaq, is given
below:
i| .,..)| _j ..t. .
t:|i _j _:. . r \ - ,_;| _.t: _ _|| _ +t- .
_ ..:i| l:i| t:_t. . _..i| _..i| _ _ ,t.;| _ .t..i| _;| _t..j;i| .t,L.Y| .| . ...
Thus, the legal translator should be aware of the peculiarities of the two
languages, and in this case, of how the punctuation marks are employed in
both languages.
2.4 2.4 2.4 2.4 System and Cultural Differences System and Cultural Differences System and Cultural Differences System and Cultural Differences
Legal translation is not a mere transcoding of lexis and grammar. It is
rather a translation from one legal system into another. David and Brierley
(1985:20-31) classify the world legal systems into Romano-Germanic Law
(Continental Civil Law), the Common Law, Socialist Law, Hindu Law,
Islamic Law, African Law, and Far East Law. Romano-Germanic Law,
widely known as the Civil Law, derives from the Roman Law and the Canon
Code. This legal system is widely followed by many countries of the world,
mainly, France, Germany, Austria, South Africa, etc. It is based on various
codes of law the most important of which is the French Civil Code, and the
Swiss Civil Code. These codes are considered the main source of the
principles of law known as the Civil Law.
The Common Law dates back to the Anglo-Saxons. The main countries
that follow the Common Law are primarily Britain, the United States of
America and Canada. It was founded as a hierarchy of court decisions to be
used as reference to future cases which will be used as a new reference to
other future cases and so forth. This tradition went on prior to the written
24 24 24 24
Civil Law and judges continue to follow it after the written Civil Law. Thus,
it is basically based on custom contrary to the Civil Law which is primarily
based on the Roman Code mentioned earlier.
The Socialist Law refers to the belief of the republican ruling and the
working class interests. The most common followers are Russia (known
before as the Soviet Union), China and Libya. Such countries adopt the
Marxist-Leninist ideologies of breaking the boundaries of Captialism,
moving to Socialism and then to Communism.
The Hindu Law, as the name implies, describes the law followed in India
since 1950 and it constitutes a part of the British colonial legal system since
1772. It involves personal laws such as marriage, adoption, inheritance, etc.
The Islamic law or shar ah is the law followed in some Muslim countries
such as Saudi Arabia. They adhere to the Quran and Sunnah in ruling all
aspects of life. Some North African countries such as Egypt, and Morocco
have both Islamic and law courts. Other Muslim countries such as Pakistan
and Bangladesh follow a secular law with some Islamic rulings in family law.
Turkey, follows a definite secular law in all aspects of life. (For more
information on other types of law systems, see Reimann and Zimmermann,
2006; David and Brierley, 1985).
It is also important in this context to contrast the legal tradition to the
legal system outlined above. Obenaus (1995:249) defines the legal tradition
refers as a set of deeply rooted historically conditioned attitudes about the
nature of law, about the role of law in society. He (ibid) adds that the legal
tradition relates the legal system to the culture of which it is a partial
expression. It puts the legal system into a cultural perspective.
The above discussion shows that legal systems are strikingly different
and each of them is embedded in the cultural background of such system.
For example, English legal discourse forms an integral part of the English
Common Law and it is also a part of the English cultural background. On
the other hand, Arabic legal discourse involves aspects of the Islamic Law
and Civil Law, and it is greatly affected by the customs and traditions of the
Arabic countries. In this connection, Farghal and Shunnaq (1999:157) say:
Some lawyers consider legal translation merely an extension of
comparative law.
According to Snell-Hornby (1988:34), Translation is an imitation of the
source text in the target text against the new cultural background, the main
determinant of the translation being the specific function. To exemplify,
some Arabic official documents such as marriage or divorce certificates
25 25 25 25
involve Islamic elements such as reference to God at the beginning of the
certificate: (praise be to God - ) . ..+| . Within the certificate, the Hijri
calendar is used and some culture bound concepts such as (
c
iddah ) ..
. , for
the latter to mean, as Bahmeed (2008: 6) puts it, a period during which a
Muslim woman usually keeps at home and does not use make-up or
perfume to beautify herself. 130 days for the woman whose husband passed
away and about 90 days for the divorcee. In Hatim, Shunnaq and Buckley
(1995:98) they translate ) .,.i| ...i|
( , as the legally prescribed period before

marrying. If it is translated as the legally prescribed period, it will be
incomplete and alien to the target reader.
Other ways of religious and culture-specific terms are used in Arabic
legal texts such as referring to the time of the meeting after performing
one of the five prayers that a Muslim should do every day. In a reminder of
a committee meeting for members of Bank Al-Jazira, a Saudi Arabian
Bank, the text reads (.t.;:i| , ,.. .., ..:. _.|| - which will be held on
Tuesday, after Maghreb prayer). In the same document, a religious
concluding statement ,::i| __ .| _ ( - May Allah help us all). If this text is to
be translated to English, the English translator should explain what he
means by the after Maghreb prayers. That is, he may mention that this
prayer takes place after sunset, or it is an evening prayer. To be more
precise, he adds in his translation the exact corresponding time of the
meeting. In this case, some basic knowledge of Shari
c
ah is required.
Sometimes, omission is used to overcome such alien elements as in
translating Arabic multi-lateral treaties into English. To clarify the above
argument, there are expressions in Arabic treaties and in diplomatic
correspondences of Arab leaders with the UN Secretary that are purely
cultural. These examples include the (Basmalah - )
,,>i| _~i| .| ,.,
, the
formal addresses (e.g. .i;)| ,>t. .>), the concluding religious remarks
(e.g. _:i .|_), reference to Quran and Sunnah, euphemisms, and catch
phrases such as ) .,,. .>i
( . Edzard (1998:54) comments on the Arabic

quotations from the Quran in the human rights documents as follows:
the function of the quotations is twofold: they can either be
used to show an assumed equality between the Islamic and the
Western Perspective on international human rights, or they can
be used to show an assumed superiority of the Islamic
Perspective.
It is worth remarking that the second possibility in Edzards words is not
very likely because quoting from Quran does not mean that the Arab
26 26 26 26
leaders want to focus on the superiority over the Western tradition. We
believe that it is rather a cultural orientation. Thus, the Arab reader finds
the above expressions easy to understand because they are part of his
culture. Yet, if these expressions are translated into English, they will be, to
some extent, meaningless to the target reader. That could be why
international treaties and other international documents of the UN are
more secular and void of any of the above expressions. Al-Bainy (2002:153)
notes that as additions and omissions arise most of the time, because of
cultural differences, they are more frequent in local than in international
documents.
L
Conclusion Conclusion Conclusion Conclusion
The paper has discussed the theoretical background of legal translation
and traced the approaches that have been used in translating such sensitive
texts. It has also dealt with the common problems that an
English/Arabic/English translator may encounter when translating these
texts. This has been achieved through pinpointing the main sources of
difficulty between both languages whether lexical, syntactic, textual or
system-based.
For lexical difficulties, the legal translator should understand the
different types of vocabulary he/she is dealing with in the text, whether they
are common, specialized, archaic, abstract, or functional. Each type of these
lexical items requires caution, investigation and knowledge on part of the
translator. For example, with common words, the translator is entitled to
distinguish the exact meaning of these words in the legal context. He/she
should consult specialists, and analyze similar texts for reaching the best
solution. In the case of specialized words, he/she may try to understand the
lexical items conceptually rather than translating them literally, or
resorting to specialist dictionaries. When translating archaic expressions,
the translator should find an approximate corresponding expression in the
TL or use paraphrasing. Abstract words are so sensitive and they are subject
to many legal interpretations in the legal context. Thus, the legal translator
should translate them as they are and never try to disambiguate them even
if his translation will result in a vague text. For functional words, the
translators best way is to use paraphrase if there is no one-to-one
correspondence between them.
Syntactic elements such as sentence complexity, passivization, modals
are other aspects that a legal translator should know how to handle.
Generally, he should be aware of the syntactic differences between English
27 27 27 27
and Arabic. To handle syntactic complexities, the legal translator needs to
understand the main constituent parts of the message, look for similar
cases of translating the same structure. Syntactic adaptation is good
solution for language incongruities. For instance, passivization in English is
more likely to be translated into active in Arabic. Similarly, translation of
modal auxiliaries is subject to many adaptations. Thus, the translator is
entitled to figure out the different facets that a modal can be translated
from and into a language (English or Arabic in this case).
Dealing with textual, system and cultural difficulties, a translator should
be aware of the textual differences between English and Arabic (i.e.
cohesion) and do the appropriate adaptations accordingly. He should bear
in mind that such adaptations should not be made on the expense of
content. The same principle is true regarding system and cultural
differences for which the legal translator acts as a cultural mediator. A
number of techniques are likely in translating culture-bound terms (i.e.
omission). Knowledge of the system and culture background of the two
languages increases the challenge that the translator is encountered with in
doing his important task.
28 28 28 28
L
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Online Resources Online Resources Online Resources Online Resources
<http://en.wikipedia.org/wiki/Legal_systems_of_the_world>
<http://en.wikipedia.org/wiki/Sharia>
<http://en.wikipedia.org/wiki/Socialist_state>
<http://en.wikipedia.org/wiki/United_Nations>
<http://en.wikipedia.org/wiki/Hindu_law>
<http://www.kinghussein.gov.jo/constitution_jo.html>
<http://www.daleelirbid.com/info-and-regulations/pages/constitution.htm>
30 30 30 30

szja
ba a Z jna a
_.-..| ..-
...L.| .. .-..-
_, .,.-, ...|, _.\| _:-..| _, _.. .... .; ,.. ......| .~,.|

|.- ... .-,\|, .., ...| .-..|, _.\| .-.. _.....| _..L..| _, _.. .... _-
_:..... ) v . _ r . (
.L. ......| .~,.| ,-,.| _.., ..,L., _... _... _| ... , : _.L-
| ;.-.| _, ,-.| _ ......| .~,.| _. ._.. .-. ,\| ...| _...| ....| ...| ._-.
_:-.|, ..:.j| _| .,-.| _. ......| .~,.| .;::. ,..: . .-:.| ...| |.. ,
,....| .- _. .,.. .-| . .... .... ,-,.|
. ..5. _,,.:.j| .| _.,

..-:.| . ,....| ,:: _. .-., . .L.| _.-, ...| ....| |..- _.-,
...-:...| _
......| _...| -,. .,,-| . _:.| ..,-..| _.. ,.-:.. .

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Legal Translation: Legal Translation: Legal Translation: Legal Translation:

A Ph.D. researcher in English/Arabic/English legal translation since May, 2007 in the

(... It is worth mentioning that although such archaic terms do not

_ _,::i| . (Mansoor, 1965a:299)

( , as the legally prescribed period before

( . Edzard (1998:54) comments on the Arabic

. ..5. _,,.:.j| .| _.,

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