What it is
When the acceptability test refuses every target-system term, the translator still has to write something. The options are well known and each has its own record elsewhere in this reference: borrow the source designation, calque it, transliterate it, describe the concept, paraphrase it, coin a label, or add a note. This record is not about what those operations are.
It is about the fact that the discipline has repeatedly tried to rank them, and that the rankings do not agree. That disagreement is the content, because a translator who has read one ladder and a reviser who has read another will disagree about a rendering while both believe they are applying the received view.
Two constraints do hold across the literature, and they are worth separating from the rankings. A coinage must not take over a designation that already does work in the target legal system, since a reader will read it as that system's term. And a coinage should be recognizable as one, so that its unfamiliarity does the job of warning the reader.
Where the authorities stand
Four positions, in print, incompatible.
Kusik sets out a ladder in which the descriptive options come first: where a functional equivalent must be dismissed, compensate by lexical expansion, then fall back on omitting the term and explaining it by descriptive paraphrase. Borrowings and naturalizations are available, but as a last resort, with neologisms beyond them.
El-Farahaty presents the opposite order, listing transcription first, followed by paraphrase or footnote, borrowing, literal translation, paraphrase and, if necessary, neologism with explanatory footnotes. Her list is drawn from Poon and from de Groot and van Laer rather than from Šarčević, and she then treats Šarčević as endorsing the set, which is how a transcription-first order comes to be associated with an author whose own treatment puts borrowing late.
El Ghazi and Bnini reproduce a flat enumeration from Šarčević's 1985 article, where transcription, transliteration, the functional approach, loan translation, adaptation, lexical expansion and descriptive substitution appear as procedures without any hierarchy at all.
Jopek-Bosiacka ends up promoting the option the ladders demote. Her conclusion, from Polish renderings of English legal terms, is that where no Polish concept exists and none can be treated as similar, the technique used has mostly been borrowing or direct transfer of the English term, and that this is useful for correct understanding because it gives Polish lawyers the chance to apply comparative method themselves.
Harvey refuses the premise. He arranges functional equivalence, formal equivalence, transcription and descriptive translation on a continuum from source-oriented to target-oriented strategies, with no ranking implied. On his account there is nothing to rank, only a position to choose and to justify.
The honest summary is that no ordering has been established. What has been established is that the choice must be argued from the text and the readership rather than from a ladder.
Consequences for translation
- Cite the ground, not the rank. A rendering defended as the next step down a ladder can be met with a different ladder; one defended by what the reader needs and what the text is for cannot.
- Never coin a designation that the target system already uses for something else. That is the one constraint everyone agrees on, and violating it produces a false system term rather than a visible foreign one.
- Let the coinage look like a coinage. A designation that is deliberately not the familiar counterpart warns the reader by its own strangeness.
- A borrowing is not a failure to decide. Transferring the original term can be the informative choice, particularly for a professional readership able to investigate the source concept.
Examples
HU>EN
- Source: sérelemdíj
- Target: grievance award
- Comment: A coinage, and the drafters say so. Fuglinszky and Somssich record that an artificial term was created for a newly introduced form of compensation in the Hungarian Civil Code and inserted into the English version. The unfamiliarity is functional: it stops the reader assimilating the concept to non-pecuniary damages.
FR>EN
- Source: contraventions, délits, crimes
- Target: minor offences, major offences and serious crimes
- Comment: Descriptive rendering of a three-way classification English does not have, and an illustration of why rankings settle less than they promise. Harvey records this rendering alongside a competing published one, minor infringements, intermediate offences and serious crimes. Both are descriptive, both are published, and no ladder distinguishes them.
EN>PL
- Source: misrepresentation
- Target: wprowadzenie w błąd and others
- Comment: The case for transfer, made from its absence. Jopek-Bosiacka finds the concept rendered by several unrelated Polish descriptions, and observes that a Polish reader would not know they referred to one legal concept unless the English term were also present. The descriptive option was taken and the identifying function was lost with it.
References
- Šarčević, S. (1985). "Translation of Culture-bound Terms in Laws." Multilingua 4(3), 127 to 134.
- Šarčević, S. (1997). New Approach to Legal Translation. The Hague: Kluwer Law International, pp. 250 to 262.
- Harvey, M. (2000). "A Beginner's Course in Legal Translation: the Case of Culture-bound Terms." Geneva: Tradulex, at pp. 2 and 6.
- Jopek-Bosiacka, A. (2013). "Comparative law and equivalence assessment of system-bound terms in EU legal translation." Linguistica Antverpiensia, New Series: Themes in Translation Studies 12, 110 to 146.
- El-Farahaty, H. (2016). "Translating Lexical Legal Terms Between English and Arabic." International Journal for the Semiotics of Law 29(2), 473 to 493.
- El Ghazi, O. and Bnini, C. (2019). "Major Translation Methods Used in Legal Documents." Arab World English Journal for Translation and Literary Studies 3(2), 122 to 138.
- Fuglinszky, Á. and Somssich, R. (2020). "Language-bound terms, term-bound languages." International Journal for the Semiotics of Law 33(3), 749 to 770.
- Kusik, P. (2022). "English Translation Equivalents of Selected Polish Partnership Types Revisited from the Perspective of Comparative Law." Lingua Legis 30, 7 to 21, at p. 10.