Use of neologisms in legal translation - Essay Example

Use of Neologisms in Legal Translation Introduction: Gemar (1995) acknowledged the difficulties in legal translation from one original term to another in consideration of "cultural asymmetry" between different legal systems of which one country or group of nations' legal concepts as well as courtroom procedures have been formed by their own history and experience. Likewise, these established legal concepts are not always, if at all, shared by other countries or nations and states of which target language for translation may be necessary. Once specific observation was that of Stern (2004) where there is acknowledgement and accommodation of other cultures in the International Criminal Tribunal for former Yugoslavia (ICTY) but these "other cultures" were not able to experience equal status with the Anglo-Saxon legal and communicative culture dominating the Tribunal. While it is generally understood that legal language is accepted by the precision of its legal terms predominantly generic and connotative so that they are not decoded by a simple process of one-to-one relationship in linguistics (Poon Wai Yee, 2005), Newmark (1981) and Baker (1992) also pointed out that the relative accuracy of legal or lexical equivalent was problematic in the translation and interpretation process. Local courts may employ the essential capabilities of legal professionals and the judiciary, but there are growing occurrences and instances that foreign as well as internationally accepted laws are a necessity in order to provide legal solutions to local cases, and vice versa. The quality of interpretation, then, as well as the exigency of justice becomes dependent on the interpreter, or how legal translation is undergone, presented and used. This paper will try to explore the use of neologism in legal translation with close reference to Rene de Groot's article "Title" and (year, PLEASE SUPPLY, ALSO UNDER REFERENCE) as well as to other available resources. Discussion: Whereas Swiss linguist Ferdinand de Saussure argued that "Language is a system of interdependent terms in which the value of each term results solely from the simultaneous presence of the others ... Content is really fixed only by the concurrence of everything that exists outside it. Being part of a system, it is endowed not only with a signification but also and especially with a value," (qtd. Noth, 1990, p 61), we are then presented with technical connection of words between and amongst themselves which altogether changes when used with other words. This alone as well as cultural differences provide a difficulty in the manner of translating legal terms which this paper explores. Already, in a study conducted by Stern (2004), it was acknowledged that the lack of exact legal equivalents between languages, in this context English and French or Bosnian, Croatian and Serbian (BCS), was an obstacle and a very difficult aspect of translation. Given examples "for everyday terms and concepts, such as allegations, cross-examination, pre-trial, to plead guilty/not guilty, beyond any reasonable doubt or balance of probability (and) cognates such as appeal, charges, objection," (Stern, 2004) proved to have different significance in the target language/s and presented discrepancies in the translation of official legal documents, as well as judgments. Weston (1983 p 207), himself pointed out that, "It is no business of the translator's to create a new word or expression if the SL [source language] expression can be adequately and conveniently translated by using one of the foregoing methods" of which methods were enumerated as: 1. equivalent notions 2. literal translations 3. leaving the term un-translated. De Groot, nevertheless, presented three solutions as: 1. Do not translate and use the target language the original or transcribed term from the source language. If necessary one explains the notion between brackets or in a foot-note by using a 'literal translation' or by using a remark as 'comparable with' 2. Describe the notion from the source language in the target language 3. Chooses a neologism, this means using a term in the target language that doesn't form part of the terminology of the target language legal system, if necessary also combined with an explanation in a foot-note. Under Stern's study (2004), it was suggested that French-speaking legal officers commented on the near (emphasis mine) success of translators in adjusting French legal language to a target legal system adopting "unfortunate compromise" (Stern, 2004 p 66) where French equivalents in target language using "cultural substitution" added meaning and connotation which were not present in the English original citing 'pre-trail' as 'mise-en-etat' which Stern (2004) indicated as inaccurate which may be misconstrued as a motion that occurs during the trial. French-speaking professionals opined there was a creation of the jargon "language-hybride" (Stern, 2004 p 66). Neologism then becomes an integral part of the legal process that is intricate and yet sensitive so that although there is professionalism and integrity as well as severity of stakes involved, exactness is not easily derived. But De Groot suggested that to leave legal terms in their original un-translated could only be necessary, indicating instances such as when: a) in combination with the original term b) the translation is (accidentally or not) the reproduction of legal equivalent c) the literal translation provides a meaningful neologism. De Groot acknowledged that his use of "neologism" is in a broad sense although neologism itself is often used with a narrow meaning, where a term does not occur in the target language. It happens then that the broader meaning of 'neologism' is a logical consequence of the starting point that legal information cannot be translated from source language to target language, but from the terminology of the source language legal system to the terminology of the target language legal system chosen by the translator so that as a result, all terms that are not terms of the chosen target language legal system are to be qualified as a neologism. Poon Wai Yee (2005) suggested that Saussure's model (below) with regards to structural view of meaning, may have far-reaching implications in the legal discourse and legal translation: (Source: Poon Wai Yee, 2005) But De Groot suggested that the existence of different categories of terms within the terminology of the target language legal system must be considered so that there must be terms that are qualified as legal terms by the legislator. Another emphasis is the terminology of jurisdiction, and then the terminology of law practitioners: lawyers, notaries, and others. Also, there is also the terminology of legal literature and the terminology of the publisher about the functioning of the legal system. A neologism then appears when a jurist/ lawyer/ barrister publishes in his own language about a foreign legal system in respect of the terminology in the target language legal system. Newmark (1981) and Machali (1998) nevertheless describe two ways to translate legal terms: literal, semantic and writer-oriented and more communicative or reader oriented. Stern (2004) observed that these methodologies were applicable in her study ensuring comprehensibility of the message transferred to the listener of which lexical lacunae was solved and lexico-grammatical shifts were avoided. These methodologies allow translators or interpreters for literal translation of legal terms in particular pointing out the presence of cognate. Use of target language word belonging to the same word class as in the source language and maintaining the same grammatical construction as in source language is a time-saving technique. But semantic discrepancy still persisted (Stern, 2004). So that De Groot added the following criteria for using neologisms: choose a non-arbitrary term content of the original term is obvious or shown but avoiding a term that is already used in the target language legal system, citing use of the French "droit commun" as translation for "common law" as "droit commun" is already in use in a different sense chosen in a way that a jurist of the target language legal system can imagine or understand it, citing the German term 'Sicherungseigentum' be rendered in the Dutch legal system, as the translation of 'fudiciaire eigendom' or 'eigendom tot zekerheid' by means of neologism suggesting that "use the translation 'fudiciaire eigendom' or 'eigendom tot zekerheid' by means of neologism. These terms do not exist any more in the Dutch legal system, but the use of such a translation has a clear information value for the Dutch jurist since the recent legal history." consideration of Roman legal terms where the Roman legal notion could not be misinterpreted by the jurists of the target language legal system. He cited the translation of the Dutch notion 'subrogatie' to German. Non-German equivalent could lead to "germanising" the Roman legal term 'subrogatio' to "Surrogation". But this term is already used for "zaaksvervanging" in Germany. This could lead many German jurists to misinterpret the pure Latin term "subrogatio". By doing legal comparison, a German equivalent for the Dutch term, could be "Legalzession". legal notions that do not function as such in the target language legal system but do function as such in another legal system that uses the same language as a legal language. De Groot sufficed that after one has chosen on principle to translate in the terminology of system A, one could use acceptable equivalents from another legal system that uses the same language as a legal language to create neologisms when there are no acceptable equivalents in the terminology of system A, but with reference to the legal system from which the neologism has been borrowed. It should also be reminded that the central aim of translation is to transfer notions so that an explanative foot-note may be necessitated. An example cited is the Dutch notion 'hypotheek' not be translated with the English 'mortgage' of which use of 'hypothec' becomes necessary, a term used in the English legal terminology of Quebec where a brief explanation is needed. translator has to consider following the used neologisms in earlier translated publications but there is the risk of confusion which may depend on the popularity of the earlier publication in which a certain neologism has been introduced. Stern (2004, 70) insisted that neologism is "suitable for the purpose of brevity in simultaneous interpreting," but is applicable only "at a restricted word and collocation level." Although Stern's study (2004) concluded that paraphrasing is the most effective technique of which reformulation at a sentence level at a sentence level is involved so that a specific context may be highlighted and the speaker's intention is transferred. As for naturalised neologisms, De Groot suggested that original terms may also be adopted by the target legal system but with higher demand on its use, and in particular, by the legislator. He cited as examples dpeage, Schutznorm and rgles d'application which have become part of the Dutch legal vocabulary without any linguistic adaptation. He considers these un-translated neologisms remarkable of which he commented that the terms have received residence permit in the target language text. Conclusion: As presented by both Stern and De Groot, certain adjustments are very important in order to apply translation, and adopt neologism in the process of legal translation. Use of neologism is necessary in the global legal discourse as translation of legal terms from one original language necessitated for use in another target language could spell the interpretation of legal practitioners, as well as judgment of juries or judges. Likewise, its proper use could mean transfer of efficiency of original legal term system to the target language's legal system, thereby allowing progression in the international or global legal systems. I therefore agree with De Groot's suggestion that sensitivity and broad research as well as wide and intensive knowledge base must be applied in the process and in the use of neologism in order to avoid limiting, unnecessary as well as debilitating misinterpretation. Likewise, the growth of terminologies is an accepted fact in most sciences, and this must include international legal terms which become necessarily adopted by countries that are willing to assimilate with global growth. In fact, it is becoming quite difficult to ignore internationalisation of most exchangeable goods and services, and this includes laws and legal aspects as propagated by the now seamless global commerce, as such, legality and international laws need to expand, grow and continue serving its purpose: to protect natural goodness and preservation of individual respect and integrity, amidst cultural, albeit, languages chaos. Reference: Baker, Mona (1992). In Other words. A coursebook on translation. London/New York: Routledge. Gemar, Jean-Claude (1995). Traduire ou l'art d'nterprter. Qubec: Presses de l'Universit de Qubec. Newmark, Peter (1981). Approaches to Translation. Oxford/New York/ Toronto/ Sydney/ Paris/ Frankfurt: Pergamon Press. Nth, Winfried. (1990). Handbook of Semiotics Indiana University Press. Poon Wai Yee, Emily. (2005) "The cultural transfer in legal translation." International Journal for the Semiotics of Law 18:307-323. Stern, Ludmila. (2004) "Interpreting Legal Languages at the international Criminal Tribunal for theFormer Yugoslavia: overcoming the lack of lexical equivalents." The Journal of Specialised Translation 02, July. Read More