by Thomas L. West III
There are several reasons why legal translation is a particularly attractive field for foreign language students who are native speakers of English. First, much (and perhaps most) of the legal translation work in the United States is into English for use by American lawyers, whereas the other large segments of the translation industry—and particularly software translation—are practically off limits to native speakers of English because the vast majority of them involve translation into foreign languages. Second, legal translation rarely requires formatting or desktop publishing skills and therefore does not require a heavy investment in technology. In fact, there are many legal documents that will never be a candidate for machine translation or even computer-assisted translation simply because they are not available in electronic format and cannot be scanned.
The bad news is that these serious advantages are matched by several considerable difficulties. First, legal translation is one of the most difficult areas of translation because of the vast differences between the common law tradition in the United States and the civil law tradition in Europe and Latin America. Second, legal language can be all but incomprehensible even to a well-educated native speaker who is not a lawyer. The solution to these problems is a well-thought-out course on legal translation. In this chapter we will consider a course like this from two perspectives: that of the student preparing to study French legal translation, and that of the professor preparing to teach it.
Preparing to Study French Legal Translation
It is important to remember that in translating into one’s mother tongue, the ability to write that tongue well is paramount. No one can ever master every word in a foreign language—which is why bilingual dictionaries were invented—but a good translator can be expected to express himself well in his own language. Therefore, any college courses that involve writing assignments are a good preparation for life as a legal translator. Indeed, the aspiring translator into English should note that writing English will be the active skill and reading French the passive skill in his future career. Therefore, he will benefit from any course that requires him to write English clearly and spell and punctuate it correctly. Obviously, courses in French are also very important, but there are two problems with limiting one’s study to literature in French. First, the contemporary approach to teaching students to read a foreign language by encouraging them to deduce meanings from context (using pre-reading and post-reading exercises) and to resort to the dictionary only when comprehension breaks down completely does not square with the tasks of a professional translator. While deducing meaning from context is certainly a skill that translators use, they cannot settle for understanding 80% of the words in a passage and inferring the meaning of the rest; instead, they generally must look up (and even research) the meaning of every word, phrase, idiom, and abbreviation in the text because the entirety must be rendered in English. The other caveat about French literature courses is that a person may be able to read French literature easily and yet not understand the everyday language of business and commerce. Therefore, in addition to studying French literature, the would-be translator should also take courses on Business French and Contemporary French Culture. Particularly useful would be a course that involves reading the current French press, with an emphasis on articles about law and business in France and other French-speaking countries. A course in French linguistics that includes a study of French terms that are unique to Canada, Belgium, Switzerland and francophone Africa would be invaluable to the future translator. Finally, introductory courses on French translation are extremely useful, even though they almost always focus on translation from English into French, provided that the native speaker of English constantly thinks of how the rules he is learning apply in the other direction.
A future translator will also benefit from political science courses on the French polity, the European Union, or the United States Supreme Court, and from history courses on the history of France and the history of Europe in general. Philosophy courses on logic or Descartes are helpful in learning how to think (and therefore write) clearly, and courses in the Business School (particularly business law and introductory accounting) will introduce him to the language of law and business in English. Last but certainly not least, the would-be translator should consider spending a semester or even a year in a French-speaking country, where he should avail himself of every opportunity to read the press and listen to the media to develop a feel for the language as it is currently spoken.
Preparing to Teach French Legal Translation
The good news for a person with a good knowledge of French but no experience with legal language is that six or seven books on the French legal system in English have appeared during the past decade (see the appendix to this chapter). Unfortunately, every single one of them is from Britain, and therefore the instructor will sometimes have to do further research to determine the American equivalents of British terms, but because of their comparative nature, these works certainly reduce the burden of having to study French books on the French legal system and then trying to relate it to our own.
Perhaps the best of these books for preparing a course in legal translation is Martin Weston’s An English Reader’s Guide to the French Legal System, because Weston is a translator and therefore discusses the French Legal System from a translator’s perspective. Again, the drawback is that what he means by “an English Reader’s Guide” is really “a British Reader’s guide,” but his book will nonetheless give the potential instructor not only a clear view of the legal system in France, but also suggestions on how to translate it. In teaching French Legal Translation at Georgia State University, I have particularly benefited from Weston’s discussion of the methodology to use when translating a “culture-bound” term, i.e., a term that has no real equivalent in the target language. Weston suggests several strategies for translating these terms: (a) use the functional equivalent; (b) translate word-for-word; (c) create a neologism; (d) transcribe and gloss. I find it best to introduce the difficulties of translating between two completely different legal systems by spending the first two weeks of the course translating diplomas, which I refer to as “immigration documents.” Translations of documents like these are frequently requested by immigration attorneys in support of visa applications, and therefore, their inclusion in a course on legal translation is certainly justified even though are not “legal documents,” strictly speaking. This is a good place to start because the students (and the instructor) are thoroughly familiar with the educational system in the United States and can easily obtain material on the educational system in France (if they are not familiar with it already). For example, almost all textbooks on French civilization include an essay explaining how the French educational system works, and the French Embassy provides a document on it free of charge. As a result, students and the instructor can usually get on with the business of comparing the two educational systems without having to do a lot of research. To practice Weston’s methodology for translating terms representing something that does not exist in the other system, we take the term grandes écoles and run it through the procedures. The functional equivalent might be the “Ivy Leagues” in the United States, but upon further discussion we determine that the two entities are more different than alike—entry to the grandes écoles is by competitive examination, and they prepare persons for specific careers. Thus, the functional equivalent is rejected as not being equivalent enough. We then try a word-for-word translation, but reject the possibilities (“great schools” or “grand schools”) as sounding odd and not conveying the meaning of the French term. Given that the third possibility (creating a neologism) does not really exist in this case, we decide in favor of transcribing and glossing, i.e., copy the French term “grandes écoles” into the translation, and then add a note explaining it. This kind of exercise can be performed on all sorts of educational terms (e.g., “Recteur de l’Académie,” “brevet de technicien supérieur,” etc.) and is excellent practice for handling legal terms (e.g., “juge de la mise en état”) for which there is no equivalent in English.
Working with immigration documents is also an interesting place to explore three other constant themes in legal translations: (a) false cognates, (b) abbreviations and acronyms, and (c) regional differences in French. An example of the first of these is “Académie de Paris,” which students almost invariably translate as “Academy of Paris,” when it actually means “Academic District of Paris.” After we discuss this, I encourage students to keep a running list of all false cognates throughout the course. We use the abbreviations and acronyms that appear on the diplomas and in the letterheads of the letters of recommendation to introduce Internet research, and I encourage students to keep a list of these as well. Finally, we include diplomas from Switzerland, Belgium, Canada, Senegal, Cameroon, etc. to illustrate regional differences in French and the necessity of doing research to determine the meanings of these words.
After we have completed the unit on immigration documents, we spend a week looking at the separation of powers in France, focusing on each branch of the government. As in the case of the French educational system, textbooks on French culture can provide background information in this regard, and articles from Le Monde or Le Nouvel Observateur provide good texts for translation. The chapters in Weston on French and English law and legislation are required reading at this point. Then, the strictly “legal” part of our course begins in earnest. I believe that a course of this type should at a minimum cover the five areas of French law that were codified under Napoleon: civil law, civil procedure, criminal law, criminal procedure, and commercial law.
We usually start with a study of the French court system, which is described in detail in Chapter 6 of Weston and in several of the books listed in the appendix to this chapter. After this study, the students usually know more about the French system than they do their own, so we also read chapters of books on the American legal system. Particularly useful in this context is the small book entitled American Courts, by the late University of Virginia Law Professor Daniel Meador, which was written to teach foreign law students about courts in the United States and contains many helpful diagrams that can be used in making the comparisons with the situation in France. However, this description of American courts does not give the students examples of actual documents filed in those courts, so before we start translating documents filed in or handed down in French courts, we generally review equivalent documents filed in or handed down by American courts. We go through these English-language documents and keep a list of recurring terminology and phraseology. I have found that this sort of terminology exercise is crucial if students are to produce a translation that sounds like legal English rather than a translation. We continue through the course with studies of civil law, criminal law, criminal procedure, and commercial law, with an examination of corresponding documents in English at every point. For example, when we study contracts in the unit on commercial law, students are encouraged to purchase The Complete Book of Business and Legal Forms and to review several examples of termination provisions in various types of contracts. Only when they have seen real legal English can they begin to translate into it.
If we have any time left at the end of the course, we do a brief unit on intellectual property (trademarks and copyright, but not patents because they are too technical to be considered legal translation). If the truth be told, this area is as important as the other areas of legal translation because it accounts for so much translation. Lawyers will frequently base a filing to protect intellectual property in the United States on a previous filing made in Europe, and the documents relating to that filing must be translated for the examiners in the various offices in America. Students generally find this a welcome relief after struggling for a semester with two legal systems that are so different from each other, because trademark registration procedures are actually fairly similar around the world. We often end the course with the translation of a power of attorney to make a trademark filing in France, because powers of attorney usually contain language from all areas of law and thus provide an excellent review of the entire course.
In the past, I have given two kinds of tests: (1) passages to translate using dictionaries and any other resources, and (2) closed-book quizzes on recurring terms, phrases, and concepts. For example, I ask them to explain the difference between a “jugement” and an “arrêt,” to translate typical legal phrases into English (e.g., “en foi de quoi”), and to answer basic questions on the law (such as what the owners of a corporation are called, i.e., shareholders). In the future, I plan to add a test of their research skills by giving them a brief passage that includes terms and abbreviations that are not in the standard dictionaries. I will highlight these hard-to-find items and ask them to explain how they solved each one (e.g., finding the term in context on the Internet, calling the French Embassy, sending an e-mail to a lawyer in France, etc.). In the end, this type of test is most nearly like the situations that will face them in their careers as translators.