Sei sulla pagina 1di 36

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

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.

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 texttypes 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.
3

"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

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.
5

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 'obyejov prvo' 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

exported to the United States and most of the Commonwealth countries. It this sense it can be translated as 'obecn prvo' referring to the general system of law employed in England. However, it is based on customs and therefore could be also translated as 'zvykov' or 'obyejov prvo' 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 'zvykov prvo' again or as 'angloamerick obecn prvo'. 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 'precedenn prvo'. 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

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 Bhler's functional theory of language, which distinguishes three main functions of language: the expressive, the informative and the vocative:
Function Core Author's status Type Serious imaginative literature Authoritative statements Autobiography Personal correspondence Expressive Writer 'Sacred' Informative 'Truth' 'Anonymous' Topic Scientific Technological Commercial Industrial Economic Other areas of knowledge or events Vocative Readership 'Anonymous' Format Textbook Notices Report Instructions Paper Propaganda Article Publicity Memorandum Popular fiction Minutes

Language functions, text-categories and text-types 8

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.

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: Koenk, Jaroslav. Ilustrovan 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 etl zajmavou knihu'. 'I have studied English for eight years'. - 'Um 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 nonliterary, 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

12

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 Newmarks division of specialised texts into technical and institutional (1988: 151) which I further elaborated.
Specialised Texts

14

technical subject fields: approach: geography T P arts T P maths T P law T P

institutional finance T P politics T P

theoretical approach (T): textbooks, articles, essays practical 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 "noncultural 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 Popovi (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." (Popovi 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." (Urbanov 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." (Urbanov 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. (Urbanov, 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." (Urbanov 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 Urbanov (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 vak omezme nai pozornost na specifick prvn vroky [] Kdy se ale zamme na zvltn prvn vroky []

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. (Osvaldov 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 poruen smlouvy ped jej splatnost". 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: Protoe pravomoc tchto mravnch zsad spov pouze v jejich obecnm pijet a pouvn. Jedin zpsob jak dokzat, e ta i ona mravn zsada je pravidlem zvykovho prva je, e bylo vdy zvykem ji dodrovat.

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 "Obyejov prvo a prvn 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 "vod" and the second one is called "The Common Law as Customary Law" which I translated as "Obyejov prvo jako prvo zvykov" 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 - "zvykov/obyejov prvo" - as the terms 'zvyk' and 'obyej' 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 "obyejov prvo" and 'customary law' as "zvykov prvo" 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 napklad rozdloval anglick prvo 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 odlieny od vrok, jejich jedin zmr je vypovdat o obyejovm prvu.

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) Nkdy se o nich k, e uvd principy obyejovho prva [], nkdy se jim k principy nebo obecn principy [], nkdy normy [] a nkdy 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: [] nevyaduje, abychom spojovali teoretick vroky []

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 Kov'. 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 pemna in the context of legal texts but odnt drby. Consideration does not stand for uven or ohleduplnost but for protiplnn. Observed in practices observed does not mean pozorovan but dodrovan. 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 poruen smlouvy ped jej splatnost and the rule against perpetuities can be translated as prvo na vnou 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 konkrtn or zvltn but within the legal texts can mean mstn. 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. Mstn obyeje, kter [] ovlivuj pouze obyvatele [] 3. Urit mstn zkony, kter jsou na zklad obyeje pijmny a aplikovny nktermi mstnmi 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. Koenk, Jaroslav, ed. Ilustrovan encyklopedick slovnk. Praha: Academia, 1981. Newmark, Peter. A Textbook of Translation. London: Prentice Hall International Ltd., 1988. ---. More Paragraphs on Translation. Clevedon: Multilingual Matters Ltd., 1998. Osvaldov, Barbora. "Esej." 23 April 2006. <http://www.aust.cz/zurnalistika/?p-9> Popovi, Anton, ed. Preklad odbornho textu. Bratislava: Slovensk pedagogick nakladatelstvo, 1977. Urbanov, Ludmila and Billingham, Andrew. A Reader in English Stylistics. Preov: UPJ, 1986. Vrbov, Alena. Stylistika pro pekladatele (texty a cvien). Praha: UK, 2003. Wikipedia, the Free Encyclopedia. 3 April 2006. Wikimedia Foundation, Inc. 14 April 2006. <http://en.wikipedia.org>

Dictionaries Black, Henry Campbell. Blackv pvnick slovnk. Bala, Vladimr 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, Betislav. Velk anglicko-esk slovnk. Praha: Leda, 2003. Chrom, Marta. Anglicko-esk prvnick slovnk. Praha: Leda, 1997. ---. esko-anglick prvnick slovnk (s vysvtlivkami). 2. vydn. Praha: Leda, 2003. Kol. autor. Anglicko-esk prvnick slovnk. 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 Learners Dictionary. CD-ROM Version 1.0. CUP, 2003.

36