What are non-equivalent terms?
A non-equivalent term is a term in one language that has no equivalent in another. If you can’t find an equivalent for a foreign term, you’ve probably stumbled upon a non-equivalent term.
Sometimes you find what looks like an equivalent. But research reveals some technical difference that might matter in some circumstances (i.e., for some purposes or audiences).
You can also think of non-equivalent terms as culture-specific terms. Any area where concepts differ from one culture to another is fertile ground for non-equivalent terms.
Cuisine is one example. Regional dishes often have no easy translation into other languages. Sport is another such area. Cricket, anyone? Or fronton, for that matter. Cultures who don’t play these sports don’t have equivalent native terms for them. They usually use the foreign term (i.e., a borrowing) to refer to these foreign sports.
The law and legal systems also differ from one place to another. You find a higher number of non-equivalent terms when translating the law compared to fields like science. The laws of nature are universal, but the laws of man change as soon as you step over the border.
Even straightforward terms like “theft” and “referendum” may end up being non-equivalent depending on how deep you dig into their definitions and the level of resolution you need.
How should we translate non-equivalent terms?
We should translate non-equivalent terms so they stick out like sore thumbs. When accuracy is paramount, readers need to notice when a term differs from any in their legal system. At least when the difference matters (it won’t always).
How do we make a translation stick out like a sore thumb?
You need to make sure the reader understands what non-equivalent terms mean in the source system. So don’t go for rough equivalents. Rough equivalents rub away traces of the original and any differences in meaning.
How you translate a non-equivalent term depends on the purpose of the document and the audience. In general, though, you need to translate it transparently. This could mean translating literally (if the literal translation makes sense in English), but often entails describing the term. Maybe you’ll attach a description to a rough equivalent or even the source term itself.
Whatever you do, make sure your translation captures any important difference. Do this even at the risk of making your translation awkward. Accuracy is what counts when translating non-equivalent terms in legal documents.
Going against a translator’s intuition
Having a term stand out like a sore thumb in a translation goes against what most of us aim to do when translating. But this is what our readers need and prefer in legal translations.
According to the literature, while translators like neat and tidy, equivalent solutions, lawyers prefer clunkier, source-oriented translations:
Whereas linguists often believe that borrowings should be used only as a last resort (Weston 1991:26), lawyers strongly favor their use (Sacco 1991:19; Minke 1991:459)”. (Sarcevic, 1997, p. 257)
At the MET conference in Tarragona in 2016, international lawyer Christopher Lee made it clear in his talk that he was a fan of descriptions and even translator’s notes for tricky terms. In the abstract for his talk, he emphasises understandability:
The key to good Spanish-to-English legal translations is that an English solicitor reading an English-language translation will find that the text makes sense with a use of vocabulary familiar to that solicitor and that the sense matches the original meaning.
Thus, descriptions (in a familiar vocabulary) are required for non-equivalent terms. Any borrowing must be explained. Any linguistic invention (or safe-bet translation), regardless of how neat and tidy it is, won’t suffice. Inventions are unlikely to be vocabulary familiar to the reader.
So lawyer-clients probably prefer clunkier, source-language oriented translations of non-equivalents. They want to know when they encounter a foreign term and what it means, both of which we can signpost by combining a description with a borrowing or an equivalent.
In practice, I find I rarely need to use borrowings. Descriptions and equivalents usually do the job.
Other non-equivalent elements
Aside from terms, we also have to translate other non-equivalent elements in legal translations. These include the names of statutes or regulations and other documents specific to the source legal system (e.g., certificates, licences and reports specified in the legislation).
In technical documents, we want the reader to be able to find the element in the source language and legal system if they need to. Thus, we need to translate these elements transparently.
This usually requires translating the names of these elements quite literally. You might even provide the foreign name when it first appears in the text. See this post for how you might translate the names of legislation into English transparently.
Of course, you don’t need to go to such lengths for well-known pieces of legislation like the Spanish Civil Code, Constitution or Workers’ Statute. The reader will know what you are talking about from the English translation.
In a nutshell
We should aim for our translations to read well. But in legal translations, non-equivalent terms and elements should stick out like sore thumbs. The readers of such documents want to know when they are dealing with a foreign element and what it means, which requires that we translate the term transparently (descriptively or literally).