To cut an academic story short…
Legal translation was once very literal. It had a highly linguistic focus, and legal translators were shy to stray away from the source text. Then came along skopos theory, and translators started to also think about the purpose of the translation and the intended audience.
This purpose-focused approach is also known as functionalism. At the macro level, functionalism means taking into account the function of the original document and the translation, which basically means that you can translate a text in different ways depending on what the translation is for. At the term level, functionalism means finding functional equivalents, i.e., target terms that have the same or similar functions to the source terms, which is particularly useful in legal translation, given that legal terms are often unique and bound to the legal language of a particular system.
Style or accuracy?
Presently, most legal translators are happy with using functional equivalents to deal with term incongruity. The translation reads very nicely, and readers don’t have to stumble over odd terms. Of course, often there are no functional equivalents. That’s OK, though. Translators still have the option to resort to other, more source-oriented techniques, including using neologisms (terms new to the target legal language), transcriptions (terms borrowed from the source system) and paraphrases (descriptions or definitions). These are fine too, although sometimes they can be a bit awkward or long-winded, and linguists aren’t always too keen on them.
Lawyers, though, and scholars in general, sometimes prefer these more literal renderings, mainly because they’re more accurate and direct the reader to the source system. This makes people remember—or realise—that they’re reading about a concept from another place that is at least slightly different to any similar concept that might exist in the legal system that they know. Another advantage of source-oriented translations is that it’s easier to spread new ideas with them. If we call similar but different concepts the same thing, we gloss over the fact that the source concept is actually different, which is a detail that in some cases people may want to know. Maybe they’ll even learn about something that they can apply to their situation.
So, it all comes down to who your audience is and what the translation’s for: When you need accuracy, source-language or literal techniques may be the way to go; if, however, you’re looking to write an “authentic” sounding document, a target-language approach is probably the best option.
Up until this point, we’ve been talking about when you’re faced with non-equivalence, i.e., when there’s no target-language term that matches the source term. However, there may also be times when you want to use more literal equivalents even when there are perfectly good functional equivalents available. One example might be if you’re translating into English for an international audience—an increasingly common scenario. Such an audience may not be so up on common law terms but may instantly recognise transparent, literal translations of source terms as this type of renderings might resemble terms from their own legal system. This is even more likely if the reader’s system and the source system are both civil law jurisdictions because there are bound to be far more similarities between two civil law systems than between a civil system and one of the common law jurisdictions, in which legal English is so heavily embedded.
What’s the point of all this, then? You may well be asking. Well, even though using functionally-similar target terms is the preferred way of dealing with non-equivalent legal terms, it’s worth remembering that on occasions your intended audience might be better served by more literal, source-oriented translations. This means that following a functional approach to translation—and thinking about the purpose of the translation and the intended audience—may have you discarding a functional approach at the term level and translating more literally, which is all very logical but also nearly ironic.
Biel, L., (2009) ‘Organization of background knowledge structures in legal language and related translation problems’, Comparative Legilinguistics. International Journal for Legal Communication (1/2009), 176-189.
Garzone, G., (2000) ‘Legal Translation and Functionalist Approaches: a Contradiction in Terms?’, ASTTI/ETI, pp. 395–414.
Sarcevic, S., (1997) New Approach to Legal Translation. London: Kluwer Law International.