Thesis Remake
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1. Introduction
When I was thinking about a suitable topic for my BA thesis, I decided to combine
English with the law as I am surrounded by lawyers in my private life and I therefore came
across several legal documents which I attempted to translate into English. In the present
study, I am going to focus on the area of technical translation, especially the branch of
translating legal texts bearing in mind general aspects of the process of translation. A legal
essay by A.W.B. Simpson called "The Common Law and Legal Theory" (Simpson, ed.
1973: 77-99) which comprises a kind of legal text - a combination of legal and academic
text - served me both as a source text for the translation and as a source of legal language.
I enclose translation of two Chapters of above mentioned essay to illustrate my ideas and
views.
Translation is a very creative process. It reminds me of the ancient civilisations of
Egypt when they constructed pyramids. They have to have solid foundations and then they
taper by each step to the very top of the pyramid. I can see a similar technique in
translation. The translator has to have a specialised knowledge, foundations, for being able
to approach a text. When translating non-fiction especially the translator has to be aware
not only of the source and target languages but also of the subject field of the text. Then
the process of tapering comes when the translator analyses the text, chooses the appropriate
method and translates. The process of translating itself is like completing a mosaic, that is
to say looking for meanings of terms and decoding difficult sentence structures until the
final embroider.
I aim to outline the process of translation of a legal text proceeding from the
general to the specific. I decided to sum up some general ideas on the subject of translation
and present them in the first part of my BA thesis, in order to show the theoretical
background of my approach to the translation. Starting from the beginning of the
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translation process, I am going to comment on the importance of choosing the appropriate
translation method of approach. Then I am going to focus on text-types in order to
categorise the legal essay and to comment on its characteristics. On account of this, I am
going to concentrate on non-literary translation as a whole as well as on its peculiarities
and differences between English and Czech academic styles. The basis of the last and most
practical part of my study is going to be the translation of above mentioned A.W.B.
Simpson's essay. This section is going to be based on individual problems that I was
dealing with during the process of translation. It is going to provide some information
about specific features of legal texts as well as their varieties. In the very last subchapters
of this study I am going to state concrete translation problems which I came across.
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2. Method of Approach
When approaching translation of a legal piece of writing, the translator has to bear
in mind several steps that he or she has to follow. First of all, the translator has to analyse
the text-type, the basic distinction being made between literary and non-literary texts. Once
the distinction is made and the translator is to deal with a non-literary text, he or she must
define the subject field which the text comes from. Then it is also important to distinguish
the aim of the text, whether it is a pure specialised text or a theoretical one. Only then is
the translator able to choose the proper method of approach to the translation of the text
having in mind the general rules of the translation process but paying attention to the
peculiarities of legal language. The individual categories of texts and the language used in
them will be described further on and it will be clarified which category the legal essay
belong to.
Whether a text is technical or institutional or literary (the distinction of the text-
types will be described later on), a translator has to make up his or her mind what it is
about, what it is in aid of and what the writer's peculiar slant on it is. There are two main
approaches to translation:
"(a) translating a piece of a text sentence by sentence to feel the tone of the text,
reading the rest of the source text and then start translating, (b) reading the whole
text several times, finding the intention, register and tone of the text and start
translating." (Newmark 1988: 21)
According to Peter Newmark, there are four levels of translation that a translator
has to have in mind. The first is the textual level, the basis of which is the text and includes
the translation of the source language into the target language.
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"You transpose the source language grammar into their 'ready' target language
equivalents and you translate the lexical units into the sense that appears
immediately appropriate in the context of the sentence." (Newmark 1988: 22)
The second level is the cohesive one. It follows both the structure and the moods of the
text. At this level, you reconsider the lengths of paragraphs and sentences, the formulation
of the title and the tone of the conclusion. The third level is that of naturalness. It is a level
on which the translator has to make sure that the translation reads naturally and that it
makes sense. That means that he or she used the appropriate grammar, idioms and
expressions that correspond the situation. The referential level, the fourth one, is to be
discussed separately.
2.1 The Referential Level
Paying special attention to technical and institutional translation (for this distinction
see Chapter 4), specific reference is desirable and therefore there is a certain compromise
between the text and the facts. When the sentence or any part of the source text is not clear,
when there is an ambiguity, the translator has to create an image of the reality dealt with in
the source text and express it in the target text in an appropriate way that corresponds to
the translated text and its characteristics. The author of the translation has to be aware of
his or her responsibility for the truth of the translation.
"The aim is to achieve the greatest possible correspondence, referentially and
grammatically, with the source text […] All languages have polysemous words and
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structures which can be finally solved only on the referential level." (Newmark
1988: 23)
The referential level is a phase of translation process when the translator solves the
translation problems, which most frequently result from the polysemy. It is based on
clarification of all linguistic difficulties. The translator needs supplementary information
here, for example from encyclopaedias, works of reference and textbooks. "The translator
is supposed to create a referential picture in his or her mind when he or she transfers the
source language into the target language." (Newmark 1988: 23) The referential level is
closely connected to the importance of translator's extra knowledge from the subject field
the text comes from and to the essentiality of his or her awareness of a background of the
source text as explained in the following subchapter.
2.1.1 Cultural and Historical Background of the Source text
Not only does the translator have to be aware of the content of the source text and
analyse its characteristics like language used, register, its style and intention and many
other features, but he or she is also required to have some special knowledge to be able to
identify particular problems occurring in the text. The translator should be acquainted with
cultural or historical background of the text. Translators usually work with various sources
of reference, e.g. encyclopaedias, textbooks and specialised text.
When translating a novel set in the 18th Century Britain, for example, the translator
should study the period from historical as well as cultural point of view to be able to
maintain its atmosphere and some specific aspects of the period in the translation, even
though they need not be directly present in the text. The translator should also look for
appropriate linguistic equivalents in the target language corresponding to the settings of the
source text.
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Similar rules can be applied to specialised translation. A specialised translator
should not only be an expert on the source language but on the target language too and he
or she should also be educated in the subject field which the source text comes from. That
means that if a Czech translator deals with an English legal text, he or she should be
acquainted with the law as well as with English and Czech. He should also study the
subject of the text in more details in both languages to be able to produce 'a quality
translation'.
The specialised knowledge of the translator will enable him or her to produce such
a translation which will be understandable to the readers. There is a danger that when an
unspecialised translator deals with a specialised text, he tends to keep the long stylistic
structures which are typical for the scientific language in the target text too, which could
result in the lack of coherence of the target text. A specialised translator should consider
the readership and adjust the text to it. (For more information on the readership see Chapter
4.3.1.)
2.1.2 Meanings of the Expression 'the Common Law' and its History
The term is now used in several different senses which have different meanings in
different contexts. Therefore it is essential that the translator was aware of all its meanings
and chose the most appropriate one. After consulting many sources of reference, I decided
to translate the 'common law' as 'obyčejové právo' in Czech as A.W.B. Simpson's essay
(Simpson, ed. 1973: 77-99) deals with the system of law typical for England and with its
peculiarities. After consulting various dictionaries and books on English legal history, I
revealed four different meanings of the term 'common law'.
In its broadest sense, it covers the legal tradition of developing law by judicial
decisions. It grew up in England in the courts of common law and equity. Then it was
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exported to the United States and most of the Commonwealth countries. It this sense it can
be translated as 'obecné právo' referring to the general system of law employed in England.
However, it is based on customs and therefore could be also translated as 'zvykové' or
'obyčejové právo' in this context.
We can contrast the 'common law' used in the countries of the British
Commonwealth with the 'civil law' which is employed in countries in continental Europe
and is derived from 2000 year old Roman law. The dominant approach of the civil law is to
look to the code as a set of rules and principles. Here it can be translated either as 'zvykové
právo' again or as 'angloamerické obecné právo'.
The expression 'common law' can be also used to denote the 'case law' as a whole
contrasted with the statutory law. The 'common law' descended from the English legal
system and is issued by courts. The translation in this sense would be 'precedenční právo'.
Within the whole legal system, the 'common law' can be also connected with
'equity'. English law developed a binary system.
"To achieve greater consistency, the judges placed reliance on previous decisions in
similar cases, not only on the system of general customs. These previous decision
used at courts gave rise to a cluster of rules known as the doctrine of precedent or
stare decisis." (Farrar 1977: 13)
The translation of the Latin name would be 'to stand by what has been decided'.
The English common law was originally derived from judicial decisions that were
based in tradition, custom and precedents. Now it consists of the whole body of judicial
precedents. The old common law courts consisted of the Court of Exchequer, the Court of
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Common Pleas and the Court of King's (Queen's) Bench which superseded a network of
royal courts which had existed since the Anglo-Saxon times.
The law which these courts administered was local customary law which varied in
content in different parts of the country. The common law, as applied in civil cases, was
devised as a means of compensating someone for wrongful acts known as torts, including
both intentional torts and torts caused by negligence. The jury reached its verdict through
evaluating common local knowledge, not necessarily through the presentation of evidence
which distinguishes the common law system from today's civil and criminal court systems.
In English legal history, common law became the uniform authority throughout
centuries before Parliament acquired the power to make rules.
3. Text-types and Language Functions
As pointed out above, it is important to determine the text-type at the beginning of
the translation process. The distinction among various types of texts and their language
functions can be demonstrated by the following diagram by Peter Newmark (1988: 40)
based on Bühler's functional theory of language, which distinguishes three main functions
of language: the expressive, the informative and the vocative:
Function Expressive Informative Vocative
Core Writer 'Truth' Readership
Author's status 'Sacred' 'Anonymous' 'Anonymous'
Type Topic Format Serious imaginative Scientific Textbook Notices
literature Technological Report Instructions Authoritative statements Commercial Paper Propaganda
Autobiography Industrial Article Publicity Personal correspondence Economic Memorandum Popular fiction
MinutesOther areas ofknowledge orevents
Language functions, text-categories and text-types
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According to Peter Newmark (1988: 39), the main feature of the expressive
function of language is the mind of the writer if we relate this theory to texts. The
characteristic 'expressive' text-types are, for example: (a) serious imaginative literature
which includes genres like lyrical poetry, short stories, novels and plays, (b) authoritative
statements which are marked by a 'personal touch' of their authors and include, for
example: political speeches, documents, legal documents or 'academic' works written by
acknowledged authorities, (c) autobiography, essays and personal correspondence which
are considered expressive when they contain personal feelings. We can consider
'informative' such texts that embrace external situation, the facts of a topic and reported
ideas or theories. They are usually concerned with any topic of knowledge. The format of
an 'informative' text is often a textbook, a newspaper article, a scientific paper or a thesis.
Vocative are said to be such texts that focuses on producing a certain effect on the
readership. Nowadays vocative texts are, e.g. instructions, propaganda or publicity.
Referring to what has been discussed in this subchapter, a discussion may arise
concerning the classification of a legal essay. Is an essay informative or expressive piece of
writing? The answer to this question is ambiguous. The author of the essay is not
anonymous nor absent. There are statements suggesting his opinions as well as the
intention of his text. From this point of view it can be considered expressive and also
Newmark suggests this. On the other hand, the legal essay contain information specific to
the subject field of law which is a feature that correspond to the informative function of the
text.
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3.1 Equivalence of the Target Text
There is a definition of 'specialised texts' in Illustrated Encyclopedia Academia1
which claims that:
"Translation of a specialised text demands absolute loyalty and utmost exactness in
terminology which subordinates its syntactical as well as lexical structure.
Specialised texts contain long complicated sentences, nominal phrases and
terminology excluding emotional colouring of the text."2
Although this definition is true, it is not exact. Referring to what has been said, specialised
texts combine in themselves three main language levels.
There must be certain shifts in translation which depend on the stylistic systems of
individual languages and on the vocabulary. We can distinguish several levels where
maintaining equivalence in translating could be problematical. The most significant are:
the word level, the grammatical level and the textual level.
The word level refers principally to the idea that not all languages function on the
same basis because the concepts of one language may differ completely from those of
another language. For example, there is a range of prefixes in English which have to be
translated into Czech as separate word: rewrite has to be transferred into 'write again'
(znovu napsat) in Czech. This suggests that there is no "one-to-one correspondence"
(Baker 1992: 11) between words and morphemes across languages.
Languages differ widely in the way they are equipped to deal with various notions
and express various aspects of experience, possibly because they differ in the degree of
relevance they attach to such aspects of experience.
1 Title translated by the author of this thesis. Original title: Kožešník, Jaroslav. Ilustrovaná encyklopedie Academia. Praha: Academia, 1981. 2 Definition freely translated by the author of this thesis.
10
"Differences in the grammatical structures of the source and target languages often
result in some change in the information content of the message during the process
of translation. This change may entail adding to the target text information not
expressed in the source text or omitting information specified in the source text in
the target text." (Baker 1992: 87)
Present perfect tense in English could serve us as an example when translated into
Czech because in Czech it does not exist. Czech therefore does not dispose of any
linguistic features to express it and the translator has to decide whether to translate it into
present or past tense in Czech. For example:
'John has read an interesting book'. - 'Jan četl zajímavou knihu'.
'I have studied English for eight years'. - 'Učím se anglicky osm let'.
4. Intention of the Author and the Translator
It is essentially important for the translator to reveal the intention of the source
language text. The intention may be expressed by such grammatical structures as "passive
voice, impersonal verbs or propositions like 'unfortunately' or 'hopefully'"(Newmark 1988:
12) which can be understood as evidence of different points of view of the author of the
source language text. These structures represent the source language writer's attitude
towards the subject matter. The translator always has to bear in mind the text and has to
preserve its intention that is to say that the translator's intention should be identical with the
author's.
Sometimes, it may occur that the readership of the translated text is different from
the readership of the original text. Here, the translator has to reconsider the differences and
is permitted to adjust the translation to its readers although he or she should not forget to
11
maintain the intention of the source text. The issue of the readership will be discussed in
more details in Chapter 5.3.1.
As to the legal essay (A.W.B. Simpson, ed. 1973: 77-99) I was concerned with, the
author's intention is clearly recognisable in the text and I tried to maintain it in my
translation. Examples expressing the author's attitudes and intention can be found in the
essay: "It seems to me that […]", "[…] I suppose […]", "[…] I think […]" (A.W.B.
Simpson, ed. 1973: 77, 93).
4.1 The Readership
According to Peter Newmark, when translating any type of text, literary or non-
literary, the translator has to bear in mind its readership. He or she has to attempt to
characterise the readership of the original and then of the translation and decide how much
attention he or she will pay to the target language readers. The level of education, the
social class, age and sex should be taken into consideration if these are marked. The
average text for translation should be aimed for an educated, middle-aged, middle-class
readership and should be written in an informal style, not in colloquial style.
Needless to say, this approach cannot be applied to all translations. There are
exceptions to every rule and it is very true about translating. The translator should not
apply too many 'difficult' or specialised words in the translation to show his or her
knowledge. When translating a non-fictional text, translators should consider the needs of
the reader as well as other characteristics.
On one hand, there are technical texts like manuals which should be intended for
average people, that is to say that they should be translated clearly and there should not be
more terminology than in the source text. The readers need to understand the text well to
be able to control a machine, for example. On the other hand, there are essays and
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textbooks determined for people educated in the subject field. In such a case, the translator
can take the liberty of applying more sophisticated style and use more specialised terms
without additional explanations. For example, when there are words of Latin origin in the
source text, they form part of the field terminology and are usually internationally accepted
within the subject field. They are therefore known to the readers educated in the field, no
matter which culture or country they come from, and the translator does not have to
translate them or provide them with additional explanation. An example can be given:
"[…] attempt to explain the nature of the common law in terms of stare decisis, is bound to
seem unsatisfactory […]" (Simpson, ed. 1973: 77) The Latin term stare decisis will not be
translated here because it is a specialised term existing within the legal terminology.
As far as my translation of the essay (Simpson, ed. 1973: 77-99) is concerned, it
was essential to consider the readership. Essay is originally a literary genre although
nowadays it tends to deal more often with non-fictional subject matters. (More information
on essays will be provide later.) The essay by A.W.B. Simpson (Simpson, ed. 1973: 77-99)
deals with common law and legal theory, it is therefore a legal essay. Compared to any
genre of literature, it cannot be read by laymen. Reading an essay dealing with any
scientific or technical subjects demands some knowledge from that particular field. On that
account, I consider the essay (Simpson, ed. 1973: 77-99) determined for students of law,
law theoreticians, teachers, lawyer or politicians and I intended to maintain this intention in
my translation.
5. Literary v. Non-literary Translation
Whether a text is literary or non-literary (non-fictional) can be recognised at first
sight. There are cases however when these two kinds of texts interfere. This is the case of
academic texts that follow the structure of 'literary' texts but are strongly influenced by the
13
syntax and terminology of individual subject fields, which can be observed on the example
of the essay by A.W.B. Simpson (Simpson, ed. 1973: 77-99). Such texts are though
considered as non-fictional.
Nevertheless the differences between the two kinds of texts are significant.
Informative texts (non-fiction) are concerned with reality and denotation, fiction with the
imagination and connotations. "Literary texts are allegorical and are, more or less
indirectly, a moral comment or criticism of life." (Newmark 1988: 151) Non-literary texts
are concerned with facts, events and ideas and are without connotations.
Non-literary language normally excludes literary language, except in quotations.
Non-literary language tends to be normalised both lexically and grammatically. It is
'anonymous', it does not express any author's intentions. However, this does not apply to
the legal essay (Simpson, ed. 1973: 77-99), as it states the author's points of view but still it
is considered a non-literary text.
6. Non-fiction v. Specialised Translation
Generally speaking, non-fiction is an opposite of fiction. Non-fictional are said to
be such works of literature as textbooks, booklets, manuals or encyclopedias. Inside these
publications we may find essays, articles, documents, etc. These usually deal with topics
from technology, natural sciences and social sciences like economy, sociology,
psychology, medicine or law. Each of them has their specific features, that is to say that
they differ syntactically as well as in terminology applied. This division can be clearly seen
in the diagram based on Newmark’s division of specialised texts into technical and
institutional (1988: 151) which I further elaborated.
Specialised Texts
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technical institutional subject fields: geography arts maths… law finance politics…
approach: T P T P T P T P T P T P
theoretical approach (T): textbooks, articles, essayspractical approach (P): rule, code, research
Figure 2: Division of Specialised Texts
Referring to Newmark (1988: 151), specialised translation, or specialised texts,
could be divided into two categories. The first would be technical texts. These are "non-
cultural and therefore 'universal'." That is to say that they apply terms which are common
to all languages and are not fixed to one specific culture. They are specialised terms,
usually of Latin origin, which are used in a subject field and are usually known
internationally. For example biological or medical terms tend to originate in Latin,
therefore the terminology of the subject field can be translated among the languages. The
second category would be that of institutional translation which covers the area of politics,
commerce, finance, government, law etc. Institutional translation is cultural - the terms are
more or less transferred. This is due to the fact that the terms refer to a specific cultural or
historical phenomenon typical for a certain society or culture.
In respect to what has been said above, it is a question of what type of translation
the translation of a legal essay would correspond to. I think that in this particular essay we
come across a combination of technical and institutional translation though the technical
one predominates. Even though legal systems exist in the majority of the countries and
cultures, they differ significantly. Translation of a legal essay should be considered
technical, as law exists and is known internationally and therefore applies more or less the
same terminology which is to be translated. There are many Latin terms to be found in
legal writing. On the other hand, the legal essay I was concerned with (A.W.B. Simpson,
ed. 1973: 77-99) deals with a legal system characteristic for England and it therefore refers
15
to a specific culture and terms like 'common law' or 'case law’ have to be transferred. This
is due to the fact that the common law does not apply in the Czech Republic.
The main characteristic of a specialised text is that its content can be included in a
frame according to an appropriate subject field. It concentrates on the transmission of
information which at the same time contributes to verification of the correctness of the
translation. According to Popovič (1977: 14), we can distinguish three levels within a
specialised text: (a) the level of a general language, including grammar and syntactical
structures common to both fictional and non-fictional writing, (b) the level of terminology
which includes specialised vocabulary and phrases of the branch, (c) the level of formal or
scientific language which includes syntactical structures used principally in non-fictional
writing.
Linguistic features of specialised texts are bound by their theme, structure and the
ability of a language to express concepts. The reality and truth are said to be the principal
aims of specialised texts. "There is a tendency towards rationality and stereotype in syntax
to be recognised within this type of texts." (Popovič 1977: 14)
There are doubts whether this kind of writing has its own syntax. It is certain that
there are special features to be found on the syntactical level of specialised texts which
may differentiate them from literary texts. These are for example long and complicated
sentences, enumeration, passive voice, impersonal expressions, linking words
(conjunctions and prepositions), pronouns and parenthesis.
6.1 Types of Legal Texts
As was already suggested, specialised texts can be of at least two types. Legal
English can be seen as consisting of several kinds of writing, depending on their
communicative function. As suggested in Risto Hiltunen's book (1990: 81), there are three
16
different types of legal writing to be distinguished: (a) academic texts which consist of
academic research journals and legal textbooks, (b) juridical texts covering court
judgements or law reports and (c) legislative or statutory writings consisting of Acts of
Parliament, contracts, treaties, etc. According to this division I can only confirm that the
legal essay (Simpson, ed. 1973: 77-99) belongs to the first group of legal texts mentioned
above.
7. The Process of Specialised Translation
The principal requirement of specialised translation is that the translator should
have some knowledge of the subject field which the source text comes from. The translator
should be acquainted with the subject both within the source language as well as within the
target language. This means that if one translates a legal text, he or she should have some
knowledge of legal English as well as know something about the law in the target
language. Only then is the translator able to produce a good conversion of the terminology
between the two languages and distinguish the deviations from the form in the source text.
As mentioned in Chapter 2.1.1 in greater details, the translator should also have
some cultural and historical knowledge about the field the source text comes from. At the
same time, he or she has to have a philological education which enables him or her to
discover various translation problems.
Terminology is a dominant component of specialised texts. The level of
terminology secures the exactness of the translation only if there is an appropriate
equivalent of the term in the target language. Even though there is a strong notion of
exactness, the translator of specialised texts has a certain freedom which enables him to
use explanations instead of the terminology, especially when an equivalent is missing in
17
the target language or when the text is translated for a less informed readership. The
terminology is otherwise very strict and keeps the translator within its borders.
In the subject fields where standardisation took place, for example in chemistry,
medicine, techniques or law, there is a wide range of functioning equivalents among
languages. However, when there is a clash in culture or social sciences between two
countries, that means two languages, it may be very difficult to find an appropriate
equivalent.
There are more levels that the translator has to follow in the translation. It is not
only the terminology but also grammar, syntax and style. All these have to correspond with
the intention of the source text and preserve criteria of the subject field.
7.1 Stylistics in Specialised Texts
It is believed that the style of a text forms a significant part of its structure. A
translator has to be able to analyse the structure of the text and recognise its style. The
translator has to be acquainted with the stylistics of both the source and target languages
and apply it in the translation. There are differences in styles across languages. For
example, an essay in English has different characteristics than an essay in Czech. (See
Chapter 8.1.)
Specialised texts appear to be based on much more limited range of linguistic
functions than most other varieties. Characteristic functions found in technical texts are:
"defining, classifying, hypothesising, drawing conclusions, describing processes,
describing causes and effect and impersonal point of view." (Urbanová 1986: 108)
However, the impersonality is not to be found in all technical texts. If there is only one
author of the text, he or she will use the first person singular and if there are two or more
authors, they will use first person plural.
18
7.1.1 The Impersonality of English Academic Texts compared to their Czech equivalents
Having consulted various kinds of sources I can now come up with a description of
academic writing. It is usually serious, intended for an informed readership. It tends to be
based on ideas and arguments. It usually deals with subjects within the academic world but
it can also find readers outside the field, especially through publishing in newspapers or
magazines. The most usual form of academic writing is essay. For more information on
essays see Subchapter 7.3. The approach used in writing academic texts in Czech is
definitely different from the one used in English.
The basic difference is the approach used in English and Czech academic texts is
that it tends to be more 'personal' in Czech than in English. That is to say that Czech texts
contain more personal reference, especially first person plural forms. These are used to
establish a closer link (i.e. empathy) between the writer and the reader, so that the latter
feels 'drawn into' the former's area of concern. "The first person plural is also used to
suggest cooperation even if the piece of writing was written by one author." (Urbanová
1986: 109)
English texts contain more impersonal reference, especially passive forms and
neuter pronouns, e.g. the 'dummy-it' in "It seems to me that [...]" (Simpson, ed. 1973: 77).
These are used to make the reader more interested in what has been achieved rather than in
who achieved it. Academic writers in English do not feel the need to establish some kind
of empathy between themselves and their readers. The readers do not expect it either.
(Urbanová, 1986: 110)
The pronouns "we", "us" and "our" appear in English academic texts principally
when the text has been written by more than one author. An individual author would not
use "we" in English, neither for the sake of empathy with the readers, nor out of modesty.
19
He or she will use "I", which represents one of the basic differences from Czech. To a
certain extent, especially in text putting forward personal hypothesis, the use of "we" and
"I", referring directly to the author(s), is acceptable and not considered egotistical. "'We' is
used in some cases when the author wants to unite himself or herself with the readers."
(Urbanová 1986: 110) An example could be "We need rather to conceive of the common
law as a system of customary law […]" (Simpson, ed. 1973: 93).
More examples can be given on the impersonality of English academic writing, e.g.
"Put rather differently […]" (Simpson, ed. 1973: 78), "An example would be […]"
(Simpson, ed. 1973: 79) or "[…] it is however important to notice that […]" (Simpson, ed.
1973: 79).
7.1.2 Word Order
Word order is extremely important in translation because it plays a major role in
maintaining the coherence and comprehensibility of the text. The organization of the text is
very important. Each language has its own word order. "Languages vary in the extent to
which they rely on word order to demonstrate the relationships in the clause." (Baker 1992:
110) Word order in English is relatively fixed, therefore "the meaning of a sentence in
English depends entirely on the order in which the elements are placed." (Baker 1992: 110)
An example could be the difference between two sentences: 'The man ate the fish.' and
'The fish ate the man.' There are also languages, the word order of which is not so rigid.
Changes in word order are made in order to emphasize a part of a clause which is
replaced to its beginning. An example of that can be given: "What has been the subject of
much writing is the doctrine of precedent or stare decisis […]" (Simpson, ed. 1973: 77).
The usual word order in this clause would be: "The doctrine of precedent or stare decisis
has been the subject of much writing […]"
20
7.2 Formal Style in English
Scientific and academic texts in English are written in formal language. According
to Ludmila Urbanová (1986: 18), there are several features that characterise English formal
style. It is marked by the use of polite and Latin-root words set in 'standard' grammar.
Neutral and specialised vocabulary is to be found there. It includes the above mentioned
impersonality which applies indirect forms. Formal style can be further recognised by the
use of full verb forms instead of the forms with apostrophe. An example of that could be
the use of "[…] what has been the subject […]" (Simpson, ed. 1973: 77) instead of the
abbreviated form 'what's been the subject' which is considered to be informal. Formal style
employs long sentences and phrases and is distinguished by a higher level of textual
cohesion. That is to say that the text is more fluent or connected.
The style of Czech academic texts has been described in Chapter 7.1.1. It is also
characteristic for the use of standard Czech and expressions of 'higher status', that is to say
than in Czech formal texts we tend to use less frequent vocabulary. As an example I will
provide translation of a sentence from the essay and then I will suggest how it could be
expressed in less formal style.
"If, however, we confine attention to specifically legal propositions […]" (Simpson,
ed. 1973: 79)
„Pokud však omezíme naši pozornost na specifické právní výroky […]”
„Když se ale zaměříme na zvláštní právní výroky […]”
An example could be given to demonstrate the characteristics of a specialised text:
21
"To a historian at least any identification between the common law system and the
doctrine of precedent, any attempt to explain the nature of the common law in terms
of stare decisis, is bound to seem unsatisfactory, for the elaboration of rules and
principles governing the use of precedents and their status as authorities is
relatively modern, and the idea that there could be binding precedents more recent
still." (Simpson, ed. 1973: 77)
Very long and complicated sentences are typical for the academic language. The terms like
'common law', 'binding precedents' or 'doctrine of precedent' represent the level of
terminology. The expressions 'is bound to seem unsatisfactory' and 'in terms of' are formal.
General language is represented e.g. by the expressions like 'to a historian' or 'attempt to
explain'. 'Stare decisis' correspond to the fact that academic or formal language
incorporates words of Latin origin. The position of the expression 'to a historian' at the
beginning of the sentence or the expression 'more recent still' stand for the inverted word
order which is used for emphasis.
8. English Essay and its Characteristics
It is very difficult to define the genre of essay because it is rather miscellaneous. A
definition of essay could be as follows:
"[…] is a short work that treats a topic from an author's personal point of view,
often taking into account subjective experiences and personal reflections upon
them." (Wikipedia, 2006)
Essay may deal with whatever topic. It can include various subject fields, science, human
life, religion, actual matters, etc.
22
The genre of essay developed as a literary genre even though today it is usually
considered to be a work of non-fiction for its expository function. Academic essays are
usually more formal than literary ones. They present the writer's personal views, but this is
done in a logically argued and detached manner.
Essays have typical structure formed by five paragraphs: an introduction presenting
the thesis statement, three body paragraphs, each of which presents an idea to support the
thesis together with evidence and a conclusion which summarises the thesis and the
supporting points. Essays are marked by unified paragraphs. Academic essays are usually
discursive and usually contain an introductory page or pages in which words and phrases
from the title are defined. A bibliography often appears at the end of the text. This is also
the case of "The Common Law and Legal Theory" by A.W.B. Simpson (Simpson, ed.
1973: 77-99).
8.1 Essay in Czech
I would like to point out some differences between Czech and English essay
writing. Compared to essays in English, Czech essays tend to include significant aesthetic
components. Czech essays are said to deal with serious or scientific themes. The author of
the essay states his aims during a long introductory part, which may include history of the
subject dealt with, its definitions or some general information; and then he or she ask
questions and provides answers to them including the reader into the process of his or her
thinking. As pointed out in previous chapters, English academic writers keep themselves
isolated from the reader. Unlike English academic texts tend to contain long complicated
sentences, there is no such a tendency in Czech and both short and long sentences are used.
The structure of a Czech essay is simple. It consists of three parts. The first part is the
above mentioned introduction. The second and middle part is the body of the essay which
23
is its heart and the third part would be the conclusion summarising the author's process of
thinking and providing speculations on the consequences of the subject. (Osvaldová 2006)
9. Legal English
The relationship between language and context is relatively tight in the field of law.
This refers particularly to statutory language found e.g. in British Acts of Parliament.
Though, the exactness of legal terminology corresponding to the tendency to avoid
ambiguity is common to all types of legal texts. (Hiltunen 1990) As pointed out in Chapter
6.1., there are three kinds of legal writing. Although I dealt with translation of a legal
academic text, there are to be found many features of legal English and English legal
stylistics apart from formal academic style of 'general' language. Therefore I would like to
mention some characteristics of legal English here and support them by examples taken
from A.W.B. Simpson's essay (Simpson, ed. 1973: 77-99) and its translation.
Legal English and legal language in general, is very specific and on that account
can be included in a more general group of special languages. What is characteristic for
them is the fact, that they are used to transmit information from experts to experts. That is
to say that understanding such a language needs education. There is a tendency within
legal writing towards more and more complicated and difficult texts which originates from
an exaggerated need of exactness in today's legal practice. This has given birth to an
opposing tendency, the aim of which is the simplification of legal texts so that they are
understandable by laymen. (Hiltunen 1990: 11) Laymen are objects of disputes and it is
essential that they understand the contents of legal documents.
Much of the Latin and French legal use was absorbed in English over centuries,
which seems to be a characteristic of legal terminology in all languages. Czech legal
language also uses a lot of Latin terms even if there are Czech equivalents. I think this is
24
connected with the evolution of legal language and it is also a matter of proficiency. When
a Latin word is used within a Czech text, it is considered 'more academic' or 'more
professional'.
9.1 Syntax of Legal Texts
I would like to point out that in case of legal essay, it is not only the legal syntax the
translator has to cope with. This kind of text is predominantly driven by academic
syntactical rules. On the other hand, it is mainly on the level of nominal structures where
some peculiarities of legal syntax are to be found.
It can be claimed that the syntax of legal English is quite simple. What makes it
complicated, are the heavy nominal constituents. (Hiltunen 1990: 69) This is not so true in
the case of Simpson's essay (Simpson, ed. 1973: 77-99) as it is not a pure legal text,
although the structure of the text is complicated too due to the use of long sentences, which
is typical of academic as well as legal texts. The nominal constituents carry most of the
information. They are expressions like "the doctrine of anticipatory breach" which,
although it may not seem so, are not so easily translatable. It is not sufficient for the
translator to translate each word of this phrase but it is essential to approach it as a
'technical term' and look for its meaning. On that account I consulted works of reference
and finally decided to translate the term as "princip porušení smlouvy před její splatností".
As I have already suggested, legal texts consist of long sentences that contain a
great number of coordinated and, especially, subordinated clauses. (Hiltunen 1990: 70)
These make reading and comprehending legal texts difficult. This leads me to an idea that
long sentences in English tend to be separated by a semi-colon to make them more
understandable and maybe to emphasise more important part of the sentence. The use of
semi-colon is not so spread in Czech which can therefore lead the translator, and so it led
25
me, to divide the sentences into shorter ones separating them by a full stop. For that reason
I decided to translate the sentence:
"For the authority of these maxims rests entirely upon general reception and usage;
and the only method of proving, that this or that maxim is a rule of the common
law, is by showing that it hath been always the custom to observe it." (Simpson, ed.
1973: 93)
as follows: „Protože pravomoc těchto mravních zásad spočívá pouze v jejich obecném
přijetí a používání. Jediný způsob jak dokázat, že ta či ona mravní zásada je pravidlem
zvykového práva je, že bylo vždy zvykem ji dodržovat.”
The verb phrases and noun phrases represent another part of the syntax of legal
texts. The most common modal auxiliaries are shall and may. (Hiltunen 1990: 75, 78) An
example of a verb phrase taken from a statutory legal text would be:
"[…] the generality of subsection above shall not be taken to be prejudiced by any
enactment […]" or "[…] he shall be removed from office as a justice of the peace in
accordance with section 6 of this Act […]"(qtd. in Hiltunen 1990: 75).
Most of the subjects in legal English are complicated structures so that they are in
full agreement with the object they describe. There is an example:
"[…] any enactment authorising or requiring persons to be summoned or to appear
at petty sessions shall in the like cases authorities or require persons […]"(qtd. in
Hiltunen 1990: 78)
26
Legal language is also said to have a large number of passives. (Hiltunen 1990: 76)I
consider this a common feature of legal and academic texts. An example can be given to
show the difference in using passives in legal statutory and legal academic text:
"It may be true that such parts of the common law […] are based upon, or (are)
consistent with, ideas and values […]" (Simpson, ed. 1973: 92)
"[…] but the city of London shall not by virtue of any such order be included in a
London commission area." (qtd. in Hiltunen 1990: 76)
9.2 Ambiguity in Legal English
Dictionaries usually define ambiguity in terms of uncertainty of meaning or
equivocal expression that may be interpreted in more than one way. Examples of
ambiguity are difficult to find in legislative language because there is a strong tendency to
avoid them by exact descriptions of matters. The range of vocabulary in legal English is
wide, since almost everything may become the subject of legislation. Lawyers prefer using
technical terms because these are specific. (Hiltunen 1990: 82-83) Many words of legal
terminology have been adopted into more general use, e.g. "authority", "rule", dispute"
which can be found in Simpson's essay. (Simpson, ed. 1973: 77-99)
In addition to technical terms, so called 'absolutes' are used attempting to achieve
precision and exactness. These are words such as "all, never, whoever, uniform" (Hiltunen
1990: 83). As to adjectives, they are very scarce in legal English because they are said to
be imprecise and vague. Nouns used in legal texts tend to be more abstract than concrete.
10. Individual problems
10.1 Translating Title
27
According to Peter Newmark, titles of non-fictional texts are said to be descriptive
(1988: 57). They are short and apposite. This is exactly the case of the title of Simpson's
essay „The Common Law and Legal Theory" (Simpson, ed. 1973: 77-99). As the title is
brief and corresponds perfectly with the content of the essay, I decided not to change it and
simply translate it as "Obyčejové právo a právní teorie". I translated two parts of the essay
and each of them has its individual title. They can be referred to as subtitles. The first part
is called "Introduction" which I translated as "Úvod" and the second one is called "The
Common Law as Customary Law" which I translated as "Obyčejové právo jako právo
zvykové" to maintain its clarity.
When I was looking for the appropriate translations of the 'common law' and
'customary law', not only referring to translating the title, I came across a discrepancy in
their translations into Czech. Both terms seem to be translated into Czech in the same way
- "zvykové/obyčejové právo" - as the terms 'zvyk' and 'obyčej' are seen as synonyms in
Czech. But this is not the case in English. Customary law derived from customs, it was a
law applied at local courts. During centuries, customary law became a basis for the
common law which was later influenced by equity. From these two sources, the common
law became a law practices in the whole Kingdom and is now a term referring to the legal
system of the United Kingdom in general. As a result of this, the common law is not a
synonym of customary law in English. Customary law now form part of English legal
system and therefore I decided, after consulting not only books and dictionaries but also
lawyers, to translate the 'common law' as "obyčejové právo" and 'customary law' as
"zvykové právo" to express that they are not equal.
For more details on the meanings of the 'common law' see Chapter 2.1.2
10.2 Latin Terminology
28
The area of law is not an exception in using Latin terms for classification purposes.
It can be observed that Latin terms serve as internationalisms within the subject field of
law (generally speaking, within every area of science).
Latin words represent the major group of loan word used in law. When I translated
Simpson's essay (Simpson, ed. 1973: 77-99), I faced a question whether to translate them
or not. I think there are two kinds of Latin expressions used in legal texts. The first group
would be terms like lex scripta and lex non-scripta or stare decisis which are known to
lawyers no matter what their target language is. I think this applies mainly to shorter terms.
Therefore I decided to leave these terms in Latin:
"Hale for example divided the law of England into the lex scripta and the lex non
scripta." (Simpson, ed. 1973: 91)
„Hale například rozděloval anglické právo na lex scripta a lex non scripta.”
The second group would include longer Latin expressions like quotations or clauses.
Although lawyers are expected to have some knowledge of Latin, I think they usually do
not remember all these longer Latin expressions and therefore I decided to put their
translations or sometimes explanations in a footnote. I also made a little survey among a
couple of lawyers who confirmed my speculation. Therefore I put a footnote to the terms
like ratio decidendi or volenti non fit iniuria
10.3 The Use of Italics
When an English writer wants to emphasise a word or a part of a sentence, he or
she uses italics. There is a difference between Czech and English in this case because
Czech uses the concept of theme and rheme which is in fact connected with changing the
29
word order to express an emphasis and therefore does not use italics for that. What Czech
does use in some cases is that an expression is put into quotation marks. As a result of this,
when I was supposed to translate a word written in the source text in italics, I decided to
use quotation marks for that expression as an alternative to italics. My solution is:
"[…] merely distinguished from propositions which purport only to be about the
common law." (Simpson, ed. 1973: 79)
„[…] pouze odlišeny od výroků, jejichž jediný záměr je vypovídat „o” obyčejovém
právu.”
There are cases when the author seems to use italics to highlight some divisions of terms or
simply to visualise the importance of a term. Then the term is translated, not transferred in
its original form. In these cases I decided not to use italics in the Czech translation.
"Sometimes they are said to state doctrines of the common law […], sometimes
principles or general principles […], sometimes rules […], sometimes definitions
[…]" (Simpson, ed. 1973: 78)
„Někdy se o nich říká, že uvádí principy obyčejového práva […], někdy se jim říká
principy nebo obecné principy […], někdy normy […] a někdy definice […]”
As to the Latin terms I decided to preserve in the translation in their original form, I
also left them marked by italics, which is a common practice in Czech technical texts. For
example of this, see Chapter 10.2.
30
Sometimes it is possible to leave a Latin word in the text and accompany it with its
translation or put the translation into parenthesis. This may be done by the author of the
text and the translator keeps this form or the translator adds the translation to the term. An
example of this can be given:
"[…] does not require us to identify theoretical propositions […]" (Simpson, ed.
1973: 94) was translated as follows: „ […] nevyžaduje, abychom spojovali
teoretické výroky […]”
10.4 Proper Names
Proper names that frequently occur in non-literary texts are the real names of
people who live or lived before. Generally speaking, names of people tend to be
transferred, not translated. For example, 'John Smith' will remain John Smith in a Czech
text and will not be translated as 'Jan Kovář'. Thus their nationality remains expressed in
the name itself. When I came across people's names in the translation I put information
about them in the footnote. I found it useful as Czech readers of the essay cannot know
every English legal philosopher or jurist. It is up to the translator's consideration whether
he or she expects the readers to know the person's name. For example, it is not necessary to
put a footnote to the name of David Hume. Peter Newmark considers such a method as
essential:
"the name has to be glossed, inside or outside the translation […] It should not be
left as it is simply because it is unglossed in the source text, this being irrelevant."
(1998: 90)
31
English names may sometimes seem confusing as English is not able to express
gender and translators as well as readers therefore may be confused whether the person is a
man or woman. In that event, a footnote is useful.
10.5 Technical Terms
As mentioned in preceding chapters, the terms form a significant part of technical
texts. I did not come across any great difficulties in translating technical terms from the
field of law as there are functional equivalents in Czech for most English terms. However,
during the process of translation I came across several expressions that seemed to be words
of general use. As I always try to verify the meanings of words in different contexts, I
revealed that for example ‘conversion’ does not mean ‘přeměna’ in the context of legal
texts but ‘odnětí držby’. ‘Consideration’ does not stand for ‘uvážení’ or ‘ohleduplnost’ but
for ‘protiplnění’. ‘Observed’ in ‘practices observed’ does not mean ‘pozorované’ but
‘dodržované’. It is principally the context of the legal text which indicates the meaning of
the term to the translator.
Another group of terms not easily translatable were the names of old laws and
rules. These demanded further research in books and specialised dictionaries. It is however
essential for the translator of such texts to use technical and law dictionaries or even book
on the legal theory both in the source and the target language. I found Black's Law
Dictionary (1993[1891]) extremely useful in terms of definition of both Latin and English
legal terms. Examples can be provided to illustrate the problem of translating the names of
rules: ‘the doctrine of anticipatory breach’ can be translated as ‘princip porušení smlouvy
před její splatností‘ and ‘the rule against perpetuities‘ can be translated as ‘právo na věčnou
anuitu’. Translation of the latter demanded a lot of research as dictionaries of general
language do not provide a suitable meaning of the preposition ‘against’ which would fit the
32
expression. It was again Black's Law Dictionary (1993[1891]) that explained that ‘against’
can state for ‘on’ or ‘upon’ in the legal context. This can be considered a classic example
of the specificity of legal discourse when an 'ordinary' word gains a special meaning.
Last example I would like to give is the word ‘particular’ which is among the Czech
commonly known as ‘konkrétní’ or ‘zvláštní’ but within the legal texts can mean ‘místní’.
This can be illustrated by an example:
"2. Particular customs which […] affect only the inhabitants […] 3. Certain
particular laws; which by custom are adopted and used by some particular courts
[…]" (Simpson, ed. 1973: 92) can be translated as follows:
„2. Místní obyčeje, které […] ovlivňují pouze obyvatele […] 3. Určité místní
zákony, které jsou na základě obyčeje přijímány a aplikovány některými místními
soudy […]”
11. Conclusion
I hope I managed to provide the reader with at least some basic background of the
process of translation and the most important facts about the field of legal translating. I
aimed to create a description of the translation process from both the theoretical and
33
practical point of view. I used the legal essay "The Common Law and Legal Theory" by
A.W.B. Simpson (A.W.B. Simpson, ed. 1973) as a basis of my study. First I translated it,
or rather two selected parts of it (see the section of appendices), and then I started to create
my thesis. As I myself had to go through a range of theoretical materials to be able to
handle the translation in the best way possible, I found it useful to include a theoretical part
in my thesis as well.
To be able to investigate the branch of legal translation, I was going through two
kinds of sources. The first group embraces the books on the theory of translation, the most
useful one - and the Bible of translators - being the Textbook of Translation by Peter
Newmark (1988). The second group represent dictionaries, especially law dictionaries
which are in quite a large number available at the Faculty of Law (Masaryk University
Brno).
My study cannot be perceived as comprehensive as I was conducted by translating
a relatively short piece of a legal essay. However, I find the translation sufficient for the
purposes of an outline of legal translation. The foundings of my research indicate that there
are some differences in characteristics of English and Czech legal writing. Consequently,
there are differences to be observed in Czech and English academic style because legal
essays, representing a special type of legal writing, seem to be a combination of these two
kinds – legal and academic. I aimed to support my ideas and views by providing examples.
Works Cited
Primary Source
Simpson, A.W.B. "The Common Law and Legal Theory." Oxford Essays in
Jurisprudence. Ed. Simpson, A.W.B. Oxford: Clarendon Press, 1973. 77-99.
34
Secondary Sources
Baker, Mona. In Other Words: A Coursebook on Translation. London: Routledge, 1992.
Farrar, John H. Introduction to Legal Method. London: Sweet & Maxwell, 1977.
Hiltunen, Risto. Chapters on Legal English. Aspects Past and Present of the Language of
the Law. Helsinki: Suomalainen Tiedeakatemia, 1990.
James, Philip S. Introduction to English Law. London: Butterworths, 1989.
Kožešník, Jaroslav, ed. Ilustrovaný encyklopedický slovník. Praha: Academia, 1981.
Newmark, Peter. A Textbook of Translation. London: Prentice Hall International Ltd.,
1988.
---. More Paragraphs on Translation. Clevedon: Multilingual Matters Ltd., 1998.
Osvaldová, Barbora. "Esej." 23 April 2006. <http://www.aust.cz/zurnalistika/?p-9>
Popovič, Anton, ed. Preklad odborného textu. Bratislava: Slovenské pedagogické
nakladatelstvo, 1977.
Urbanová, Ludmila and Billingham, Andrew. A Reader in English Stylistics. Prešov:
UPJŠ, 1986.
Vrbová, Alena. Stylistika pro překladatele (texty a cvičení). Praha: UK, 2003.
Wikipedia, the Free Encyclopedia. 3 April 2006. Wikimedia Foundation, Inc.
14 April 2006. <http://en.wikipedia.org>
Dictionaries
Black, Henry Campbell. Blackův pávnický slovník. Balaš, Vladimír et al., transl. St.Paul:
West Publishing, 1993[1891].
Gadsby, Adam, ed. Longman Dictionary of Contemporary English. London: Longman
Group Ltd., 1995.
35
Hais, Karel and Hodek, Břetislav. Velký anglicko-český slovník. Praha: Leda, 2003.
Chromá, Marta. Anglicko-český právnický slovník. Praha: Leda, 1997.
---. Česko-anglický právnický slovník (s vysvětlivkami). 2. vydání. Praha: Leda, 2003.
Kol. autorů. Anglicko-český právnický slovník. Praha: Linde Praga a.s., 1999.
Lingea Lexicon 2002. CD-ROM. Verze 4.0. Lingea 1997-2001.
Woodford, Kate and Jackson, Guy, eds. Cambridge Advanced Learner´s Dictionary.
CD-ROM Version 1.0. CUP, 2003.
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