Reflections on Equivalency in Translation: the Case of Legal Documents in French and English

The traditions and practices of English and French law are different in so many ways that the search for equivalency can be mind-bogglingly difficult.  In this sense, the translation of legal texts raises very interesting questions about what a “coherent” translation should be.

Hervey and I. Higgins (2000)[1] put forward the notion of “best practice” to explain the sort of balancing act that the translator must accomplish in order to make a concept in the Source Text (ST) clear to a Target Language (TL) reader, without resorting to lengthy explanatory footnotes, on the one hand, or, on the other, using terms that are so different in the respective legal cultures as to make the Target Text (TT) nonsensical. The right balance between ST-oriented translation (sticking as closely as possible to the original term) and TT-oriented translation (trying to find a concept in the TL that makes sense to the reader) is always difficult in the legal field but may vary in degree depending on the context. The general public watching a movie where lawyers and judges are arguing a criminal case may be satisfied with rough equivalents, whereas an international lawyer drawing up a real estate contract will be much more demanding in terms of technical accuracy.

Four possible strategies are available to the legal translator according to Hervey and Higgins: Functional equivalence, Formal Equivalence, Transcription and Description.

Functional equivalence means using a referent in the TL culture whose function is similar to that of the SL referent.  For instance, the Cour d’Assises is the rough equivalent of the English Crown Court, intime conviction is equivalent to being satisfied beyond a reasonable doubt as is hypothèque to mortgage.  This is the TL-oriented approach.  Although there will always be differences in the cultural connotations of these terms, the translations are close enough to satisfy the translator.  However, it is very easy to slip from satisfactory equivalence to erroneous translation.  For example, translating tribunal d’instance by Magistrate’s Court (GB) or County Court (US).  Dictionaries themselves are not exempt from this kind of mistake: Garde des Sceaux = Lord Chancellor, avocat eneral = Queen’s Council, etc. (Gusdorf 1993: 85)[2].

Formal Equivalence, in other words, word-for-word translation – e.g. Cour de cassation > Court of Cassation – avoids some of the pitfalls of functional equivalence, while creating some new problems.  The fact that there has been so much cross-fertilization between French and English in the legal field means that formal equivalence sometimes, almost by coincidence, hits on a term that is both formally and functionally satisfactory, as with Cour d’assises > Assize Court.  When the TT term used does not correspond to any existing institution in the TL culture, the specialised reader may correctly interpret this to mean exactly that, that there is no exact equivalent and that the translator simply wants to evoke the SL notion.  Moreover, formal equivalence respects the long-standing tradition in legal translation of respecting the letter rather than the spirit of the ST.

Transcription means simply borrowing the foreign term, e.g. Tribunal correctionnel, while adding an explanatory gloss: “less serious crimes are tried in the tribunal correctionnel, which is presided over by three judges”[3].  This technique avoids all referential ambiguity, while providing enough descriptive information to make sure that the concept is understood.  It is mostly aimed at specialised readers who need to know exactly what the term stands for, not what that particular institution might look like in an TL context.

Finally, we have Descriptive translation, which uses generic rather than culture-bound terms to convey the meaning.  This is close to a gloss but is more technically precise, thus avoiding the need to borrow the foreign term directly.  A good example of this technique is the translation of the tripartite division of crimes in French law – crime, délit, contraventions.  Referring in this case to “minor offences, major offences and serious crimes” or to “minor infringements, intermediate offences and serious crimes” is satisfactory in most contexts and avoids many of the problems mentioned above.

The kinds of problems posed by legal translation are of especial interest to the advanced language student or professional translator as they bring to light general problems of meaning in context and overall coherence which may escape the notice of our friends the automatic translators, like Google or Deep L.

This article is an exerpt from A Linguistic Handbook of French for Translators and Language Students (pp. 198-199). You’ll find much more there concerning coherence and equivalency in translation. Check out the flyer on my website, under “Traduction”.

[1] Sándor Hervey and Ian Higgins, Thinking French Translation, London, Routledge, 2000.

[2] Gusdorf, Florent. 1993. Words, Paris: Ellipses.

[3] Adam Sage, “French Jury System may be Restricted”, The Times, 9 January 1996, p. 35, quoted by Hervey (2000: 5).