difficulties in legal translation

1. Difficulties Encountered in the
Translation of Legal Texts

2. INTRODUCTION
• The problems encountered in translating legal texts, which are
categorised below, are specific to legal translation between the
English and Turkish languages and legal systems. These problems are
mostly encountered by students learning legal translation.
• The problems will be studied under six main categories, which are
likely to be quite broad. Such a study could have been applied to the
limited examples from a limited source or from a certain area of law.
Alternatively one of the categories could have been taken as the point
of concentration and the idea could have been developed further.
However, I have tried to put forward the major sources of errors and
problems due to the differences in legal systems and languages.

3. • The article will discuss mainly syntactic arrangements. Arguments on
semantic(meanings of words and sentences) and pragmatic models
concerningphraseology(The way in which words and phrases are use
d in speech or writing; style)and textology (The linguistic analysis of
a complete text) in doctrines in international law or comments on
parallel textuality(Textuality is not just about the written word; it
also comprises the placement of the words and the reader’s
interpretation.) in legal matters and on legal authenticity will not be
provided for the time being, since they would broaden the subject
excessively.

4. Bases of the English Legal Language
• Like their language, the law of the British Celts had little lasting
impact on the English legal system. The Germanic invaders who spoke
Anglo-Saxon or Old English developed a type of legal language, the
remnants of which have survived until today, such as "bequeath,"
"theft," "guilt," "land." The Anglo-Saxons made extensive use of
alliteration in their legal language, which survived in today's English
legal language in expressions such as "aid and abet," "any and all,"
etc.
• Even without alliteration, parallelism was an important stylistic
feature of Anglo-Saxon legal documents, which has also survived.
Even today witnesses swear to tell "the truth, the whole truth, and
nothing but the truth" (Tiersma 1999:15).

5. • When Anglo-French died out as a living language, the French used by lawyers and judges
became a language exclusive to the legal profession (Tiersma 1999:28). It was
incomprehensible both to their clients and to the speakers of ordinary French. Legal
French also contained many terms for which there were no English equivalents.
• Several French terms are still common in legal English such as "accounts
payable/receivable," "attorney general," "court martial." The most lasting impact of
French is the tremendous amount of technical vocabulary that derives from it, including
many basic words in the English legal system, such as "agreement," "arrest," "estate,"
"fee simple," "bailiff," "council," "plaintiff," and "plea." As in the early Anglo-Saxon
influence, which had phrases featuring the juxtaposition of two words with closely
related meaning which are often alliterative such as "to have and to hold," this doubling
continued in legal French, often involving a native English word together with the
equivalent French word, since many people at the time would have been partially
bilingual and would understand at least one of the terms, for example, "acknowledge
and confess," "had and received," "will and testament," "fit and proper."

6. • As we see through the Middle ages, the legal profession made use of
three different languages. During the rest of 17th century, Latin and
legal French continued their slow decline.
• In 1731, Parliament permanently ended the use of Latin and French in
legal proceedings; however, it became difficult to translate many
French and Latin terms into English. With another statute, it was
provided that the traditional names of writs and technical words
would continue to be in the original language (Tiersma 1999:36), and
the ritualistic language remained important. The exact words of legal
authorities mattered very much to the profession. Rewriting an
authoritative text in your own words was considered to be dangerous
and even subversive (Tiersma 1999:39).

7. Bases of the Turkish Legal System
• Turkey has used the Swiss, German, and Italian codes as models in the field
of private and public law. However, no foreign penal codes were adopted.
By adoption of a foreign code (Timur 1956:77), we do not mean that a
foreign system was adopted in toto. Only the legal framework of other
nations, but not all the foreign laws or the entire foreign system were
adopted. The new legal system was created with close attention paid to
local conditions. The legal system of a nation is closely tied to the national
character. The legal system of one country cannot be adopted by another
without adopting the national character of the former as well. Turkey
adopted the Swiss Civil Code and the Swiss Code of Obligations. The
application of these codes by the Turkish courts resulted in a Turkish Civil
Code and a Turkish Law of Obligations. The new Turkish Civil Law was
inspired by Swiss ideas whenever these were not in conflict with the moral
and social principles of the Turkish people (Ayiter 1956:42).

8. Problems and Difficulties Encountered in
Translating Legal Texts Between English and Turkish
• Translation of legal texts (from English into Turkish and visa versa) poses
problems closely related to both the nature of legal language and the
specific features of both English and Turkish legal systems and languages.
The examples that follow cover a wide range of legal texts; from contracts
to resolutions to treaties.
General Features of Legal Language (Turkish and English)
• The general features of legal language that will be discussed here apply
both to English and Turkish legal languages. As Melinkoff has suggested,
"legalese" is a way of "preserving a professional monopoly by locking up
the trade secrets in the safe of an unknown tongue" (1963:101). On the
other hand, as Tiersma suggests quoting from Sir Edward Coke, lawyers
justify keeping the laws in an "unknown tongue" by pretending to "protect
the public" (1999:28).

9. • Lawyers tend to defend their technical vocabulary as essential to communication
within the profession, since they can easily understand each other using the
special terminology. Studying law is in a large measure studying a highly technical
and frequently archaic vocabulary and a professional argot (Goodrich 1987: 176).
• Law is a profession of words. The general features of legal language that apply to
both English and Turkish legal languages are the following:
• It is different from ordinary language with respect to vocabulary and style.
• The prominent feature of legal style is very long sentences. This predilection for
lengthy sentences both in Turkish and in English is due to the need to place all
information on a particular topic in one complete unit in order to reduce the
ambiguity that may arise if the conditions of a provision are placed in separate
sentences. Another typical feature is joining together the words or phrases with
the conjunctions "and, or" in English and "ve, veya" (meaning "and," "or") in
Turkish. Tiersma suggests that these conjunctions are used five times as often in
legal writing as in other prose styles (1999: 61).

10. • Thirdly, there is abundant use of unusual sentence structures in both
languages. The law is always phrased in an impersonal manner so as
to address several audiences at once. For example a lawyer typically
starts with "May it please the court" addressing the judge or judges in
the third person (Tiersma 1999:67) while in Turkey court decisions
begin with "Gereği dnşnnnldn" (the necessary penalty has been
decided on) when a judge sentences somebody to a certain penalty.
• Another feature is the flexible or vague language. Lawyers both try to
be as precise as possible and use general, vague and flexible
language. Flexible and abstract language is typical of constitutions
which are ideally written to endure over time (Tiersma 1999: 80).

11. • The features of "legalese" that create most problems are its technical
vocabulary and archaic terminology. Both Turkish and English legal
languages have retained words that have died out in ordinary speech,
the reasons of which have been explained above. Historical factors
and stylistic tradition explain the character of present-day English and
Turkish legal languages. Many old phrases and words can be traced
back to Anglo-Saxon, old French, and Medieval Latin, while in Turkish
they can be traced back to the Persian used in the Ottoman Empire.

12. • Archaic vocabulary and the grammar of authoritative older texts
continue to influence contemporary legal language in both Turkey and
Britain because, just as the Bible or the Koran is the authoritative
source of religion for believers, documents such as statutes,
constitutions, or judicial opinions are the main sources of law for the
legal profession (Tiersma 1999:96)

13. • Legal language is conservative because reusing tried and proven
phraseology is the safest course of action for lawyers. Archaic language is
also authoritative, even sounds majestic both in Turkish and English. As
Tiersma suggests "using antiquated terminology bestows a sense of
timelessness on the legal system as something ... deserving of great
respect" (1999:97).
• In Turkey, old people using the same kind of archaic language inspire awe in
most of us.
• In both legal languages there are many words that have a legal meaning
very different from their ordinary meanings. Tiersma calls the legal
vocabulary that looks like ordinary language but which has a different
meaning peculiar to law as "legal homonyms" (1999:112). This is one of the
problematic features in translation.

14. • There are also synonyms in legal languages of both Turkish and English, i.e.,
different words with the same meaning. One of the features of legal
language which makes it difficult to understand and translate (for an
ordinary translator/reader) of course is its unusual and technical
vocabulary. Some of its vocabulary such as "tortfeasor," "estoppel" in
English and "ahzukabza" (take and receive) in Turkish, which do not even
suggest a meaning to an ordinary person, is a complete mystery to non-
lawyers.
• Another feature of the English legal language is the modal verb "shall." In
ordinary English, "shall" typically expresses the future tense, while in
English legal language "shall" does not indicate futurity, but it is employed
to express a command or obligation (Tiersma 1999:105). However, in
Turkish legal documents, the way of expressing legal obligation is using
simple present tense.

15. • Problems and Difficulties Encountered in Translating Legal Texts
Between English and Turkish
• Translation of legal texts (from English into Turkish and visa versa)
poses problems closely related to both the nature of legal language
and the specific features of both English and Turkish legal systems and
languages. The examples that follow cover a wide range of legal texts;
from contracts to resolutions to treaties.

16. • I) Problems arising due to the differences in legal systems: The most daunting aspect of
legal translation common to almost every language is the culture-specific quality of the
texts. As Martin Weston suggests, "the basic translation difficulty of overcoming
conceptual differences between languages becomes particularly acute due to cultural
and more specifically institutional reasons (1983:207). Newmark also suggests that "a
word denoting an object, an institution, or if such exists, a psychological characteristic
peculiar to the source language culture is always more or less untranslatable" (quoted in
Weston 1983:207). The equivalence of an institution, a division, a concept, or a term may
not be found in the target language—in our case, in Turkish. There are no words in
Turkish to express some of the most elementary notions of British law. The words
"common law" and "equity" are only two of the examples. There is no system of
"common law" and "equity" in the Turkish legal system. Moreover how should we
translate "barrister" or "solicitor" into Turkish as there are no such job titles in the
Turkish legal system. A Turkish legal translator overcomes the difficulty of translating a
term or a concept which is absent in the target culture using the following methods:

17. 1) Paraphrasing
• This method is explaining the SL concept if it is unfamiliar to the target reader, when there is no equivalent
institution or concept in the target culture and when a literal translation will make no sense.
• As we have mentioned above, the translation of "barrister" and "solicitor is problematic, since in the Turkish
legal system there are no such job titles. As we know, in the British legal system a "barrister" is a person who
executes the legal case in courts, whereas "solicitors" are those who declare their opinions and
recommendations to the parties in a lawsuit and who provide contact with the barrister (Yalçınkaya
1981:153).
• As a concept, 'barrister' is more or less the formal equivalent of 'lawyer' in Turkey. To overcome the
conceptual confusion, barrister is translated as "duruş ma avukatı," meaning the "lawyer in court," whereas
"the solicitor" is translated as "danış ma avukatı" which means the "consultant lawyer."
• This is paraphrasing the concepts which are not shared both by the source and target cultures. Another
concept, which commonly causes translation problems between different cultures, is "Lord Chancellor."
Since there is no "House of Commons" or "House of Lords" in the Turkish parliamentary system, these terms
are also translated by paraphrasing. "Lord Chancellor" is translated as "Lordlar Kamarası Baskanı" meaning
the "Head of the House of Lords." Concepts peculiar to the Western legal and parliamentary systems are
generally translated through paraphrasing.

18. 2) Finding the Functional Equivalence
• This is using a TL expression that is the nearest equivalent concept. Of
course it is much more difficult to find the functional equivalent of a legal
SL term where the legal institutions of two cultures do not have much in
common.
• To quote an example that is problematic mostly for translators between
English and French: "Solicitor" (which is used for the French "notaire") has
the Turkish functional equivalent of "notary." Moreover, the generally used
Turkish functional equivalent of "solicitor" is "avukat" which is the literal
translation of "lawyer." Both "court" and "tribunal" are translated as
"mahkeme" which is the literal translation of "court." Translation of
"tribunal" as "mahkeme" is rendering the functional equivalent of it.
• Using this method frequently leaves the translator short of terminology
due to the different structures of the legal systems of the Turkish and
British cultures.

19. 3) Word-for-Word (Literal) Translation
• This is translating lexical word for lexical word, and making adjustments of prepositions, endings,
and other grammatical features if necessary. For example, "Court of Protection" is translated
directly as "Koruma Mahkemesi" (Koruma=Protection and Mahkeme=Court) while the words
change place so as to ensure the correct syntactic arrangement in Turkish. Other examples may
include the translation of "Treasury Solicitor" as "Hazine Avukatı" (Treasury=Hazine and Solicitor=
Avukat), "Courts of Chivalry" as "Şövalyelik Mahkemesi" (Chivalry=Şövalyelik, Court= Mahkeme).
• On the other hand, when the source text is in Turkish, and when it is translated into English, it
makes a difference whether the target text is directed to American or English culture, because the
terms and institutions of different cultures using the same language may be different. For
example, a "prison" in the British System is a "penitentiary" in the American system, and they are
both translated as "hapishane" into Turkish. A "Magistrate's Court" in the British legal system is
"Civil Court of Peace" in the American legal system, and they are both translated as "Sulh
Mahkemesi" into Turkish. "Attorney" and "Sheriff" do not have simple translated equivalents in
UK English and other languages (Rey 1995:88).
•

20. II) Problems arising due to the difference in the language
systems, syntactic arrangements, and word orders of the Turkish
and English languages:
• A) The fact that the verb is placed at the beginning of a sentence in
English (SVO pattern), while it is placed at the end of a sentence in
Turkish (SOV pattern) creates problems for the translator. The
following sentences are taken from the "Resolution adopted by 933
votes to 65, with 356 abstentions by the 94th Inter-Parliamentary,
Conference (Bucharest, 13 October 1995), "To Comprehensively Ban
Nuclear Weapons Testing And Halt All Present Nuclear Weapons
Tests":

21. • The 94th Inter-Parliamentary Conference,
• Hoping that these tests will not complicate the already difficult negotiations underway on a comprehensive test ban treaty and
make it more difficult to achieve a truly comprehensive and internationally verifiable treaty,
• Recalling that the Inter-Parliamentary, Union has a duty to promote the cause of international peace and security, nuclear
disarmament and the non-proliferation of nuclear weapons,...
• The translation into Turkish is as follows:
• Bu denemelerin nükleer silah denemelerini yasaklayan kapsamlı bir anlaşma için yapılmakta olan meşakkatli görnşmeleri daha da
zorlastırmayacagını umarak
• Parlementolararası Birliğin uluslar arası barış ve güvenlik davasını, nükleer silahsızlanmayı ve nükleer silahların artışını engellemeyi
destekleme görevine sahip olduğunu hatırlatarak

22. • The underlined words, which are placed at the beginning of the sentences in the source text, will
automatically shift to the end of the sentences in the translated text which is in Turkish:
• RESOLUTION
• On Economic and Trade Relations Between the Community and Turkey.
• However, the target text has the following arrangement:
• Topluluk ve Türkiye Arasındaki Ekonomik ve Ticari İlişkiler Üzerine
• KARAR
• As obvious, even the visual arrangement of the heading shows great difference as the word
"Resolution" (meaning "Karar" in Turkish) is placed at the beginning in the English text, while it is
placed at the end in the Turkish sentence.

23. • B) Another difficulty arises due to the use of modal verb "shall" in
legal English. When they study the grammar of the English language,
Turkish students learn that "shall" is the modal verb indicating
futurity, and therefore they tend to translate the sentences containing
"shall" as future tense into Turkish. However, as Danet suggests
(1985:281), in formal English legal language, "shall" is used to express
authority and obligation (Bowers 1989:35), rather than futurity.

24. • The following is an example taken from the Memorandum signed in Prague on 19
October 1989 between Czechoslovakia and Turkey:
• Article 2:
• "The Parties shall take the necessary measures to ensure the mutual facilitation
of tourist flow in their respective countries
• Article 5:
• "The parties shall exchange information, technology and experts in the field of
tourism training."

25. The translation is as follows:
• Madde 2:
• "Taraflar kendi ulkelerinde turist akısını karsılıklı olarak kolaylastırmayı saglamak icin gerekli
tedbirleri alırlar (The parties take the necessary measures...)."
• Madde 5:
• "Taraflar turizm eğitimi alanında karşılıklı bilgi, teknoloji ve uzman mübadelesinde."bulunurlar
(The parties exchange information)."
• The verbs in bold letters are the verbs of both texts. The source text uses the modal verb "shall,"
while the correct translation uses the present tense.

26. • II) Problems arising due to the lack of an established terminology in
Turkey in the field of law: Although the terminographer Daniel
Gouadec says that identifying only one term for a specific concept,
object, or situation is impossible (1990:XVII), the necessity for each
subject field to describe, standardise, and teach its terminology has
now become evident in the age of ever increasing international
relationships.

27. • The following examples, which are taken from The Treaties
Establishing the European Communities (1996), and their translations,
show that there may be more than one counterpart in Turkish of a
single word in English:
• 1) Any European state may apply to accede to this Treaty. It shall
address its application to the Council, which shall act unanimously
after obtaining the opinion of the High Authority; the council shall
also determine the terms of accession; likewise acting unanimously.
Accession shall take effect on the day when the instrument of
accession is received (Article 98).

28. The translation into Turkish is as follows:
• 1) Her Avrupa devleti işbu antlaşmaya taraf olmak için başvuruda
bulunabilir. Antlaşmaya taraf olmak isteyen devlet Konseye basvurur.
Konsey, Yüksek Otoritenin görüşünü aldıktan sonra oybirligiyle karar alır ve
yine oybirliğiyle katılma şartlarını belirler. Bu katılma katılma belgesinin
işbu antlaşmanın .......(Avrupa Topluluklarını Kuran Temel Antlaşmalar,1996,
Madde:98).
• As noted above, the verb "accede" is translated as "taraf olmak," while its
noun derivation "accession" is rendered by a noun which is derived from a
totally different verb "katılmak" in Turkish. Thus two different verbs which
are "taraf olmak" and "katılmak" are used in the target text for a single
verb "access" in the source text.

29. Another example is the following:
• 2)....to evade the rules of competition instituted under this Treaty, in
particular by establishing an artificially privileged position involving a
substantial advantage in access to supplies or markets (Article 66) .
• 2)...özellikle ikmal kaynaklarından veya pazarlardan yararlanmada
önemli bir avantaj elde edecek şekilde....(Madde:66).
• Unlike in article (1), the same English verb "access" is rendered by a
completely different Turkish verb "yararlanma" which literally has the
English equivalence of "benefit from."

30. • To elaborate on the examples and in order to indicate how serious the issue is, let
us take a look at some more examples from the Translation into Turkish of the
"Convention for the Protection of Human Rights and Fundamental Freedoms."
Excerpts from the texts in target and source languages are given below:
Article 5:
• Everyone has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
• a) The lawful detention of a person after conviction by a competent court
• b) The lawful arrest or detention of a person.....

31. The translation into Turkish is as follows:
1).....
a) Salahiyetli her mahkeme tarafından mahkumiyeti üzerine usulu dairesinde hapsedilmesi
b) Bir mahkeme tarafından kanuna uygun olarak verilen bir karara....
The adjectives "lawful" having exactly the same meanings in the source text above are
translated as
"usulu dairesinde" and "kanuna uygun olarak" respectively in the target text, and these
are official translations.

32. • IV) Problems due to the use of unusual sentence structures in the English
legal language: As Tiersma suggests, there are various kinds of
subjunctives, all of which have died out in modern English, especially in
spoken language (1999:93). The type of "legal" subjunctive is a
construction known as the "formulaic subjunctive" which involves use of a
verb in its base form and conveys roughly the same meanings as "let" or
"may." This usage, which Tiersma characterises as formal and old
fashioned, is still very much alive in legal usage. The frequent phrase used
at the beginning of a Power of Attorney, "Know all men by these presents"
is a completely uncommon word order and uncommon sentence structure.
In a "Vekaletname" in Turkish, which is the counterpart of a Power of
Attorney, there is no uncommon sentence structure as such, although the
general sentence structure of it resembles that of the Power of Attorney
with respect to its length and complexity.

33. • Another example is the "British enactment clause" (Tiersma 1999:93),
which is found at the beginning of all statutes:
"Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the same....."
• In addition to the subjunctive, this clause illustrates several other common
features of legal English, such as French word order (Lords Spiritual and
Temporal), formal language (Queen's most Excellent Majesty), odd word
order (in Parliament assembled), and conjoined phrases (by and with,
advice and consent) (Tiersma 1999:93), which are still very challenging
features for a Turkish legal translator.

34. • V) The fifth main reason for the errors and difficulties in the translation of
legal texts is the fact that the language used in the legal system in Turkey is
very old and generally quite different from the currently used language for
the reasons explained in the previous chapters. There are still many words
and patterns in legal Turkish texts which are completely out of date in
other types of discourse.
• The following terms are taken from the Contract signed between the Public
Airports Administration of the Republic of Turkey and Company X for the
purchase of special material. These terms are completely in old Turkish and
are used nowhere else in Turkey presently except in legal texts. Although
they are not understandable to a Western reader, it would be interesting to
see the difference between the old Turkish words which still occur in legal
texts and their modern Turkish versions used in non-legal discourse. Their
English equivalents are given in parenthesis below:

35. Words in Old Turkish Modern Turkish Versions
gayri kabili rücu (irrevocable) geri dönülmez
muhabir banka (correspondent
bank)
bildirimci banka
vecibe (obligation) yükümlülük
navlun (freight) gemi taşıma ücreti
sevk vesaiki (shipping
document)
gönderme belgesi

36. • We could provide many more examples. The old Turkish used in the
field of law not only makes the translation of texts a hard task, but
also hampers the instructor's endeavours to teach translation in this
field. It is absolutely necessary that the current use of the old words
be taught to the translation students before starting the actual
translation process. The archaic expressions found in legal English for
reasons mentioned in the previous chapters add to the problem.
These include: hereinafter, hereto, herein, hereby, hereof, thereof,
therein, thereby, thereto, etc. None of them can be translated by a
single word, and translators often have a hard time finding
equivalents for these archaic expressions.

37. • VI) Problems arising due to the use of common terms with uncommon meanings:
As Brenda Danet suggests, "legal language has a penchant for using familiar
words (but) with uncommon meanings" (1985:279).
• Let us take, as an example, the word "assignment" which is generally known as
"something assigned, a task or a duty." Turkish students of translation have learnt
the word in its general literal meaning and they continue to know it as such until
they have to translate an "assignment," which is a legal document. Of course, the
first thing they have to do is to search for the meaning of "assignment" in a legal
dictionary. The same applies to the words "whereas" and "having regard to"
among many others. In legal documents such as contracts, the above-mentioned
words function as "considering" or "taking into consideration," and must be so
translated into Turkish.
•