What it is
Behind every term pair there is something that makes it the pair rather than another, and it varies enormously in weight. Translators routinely treat the weakest kind as though it were the strongest.
Four levels are worth distinguishing. An authentic pair comes from an instrument drawn up in two or more languages where every version is equally authoritative and none prevails. An official but not authentic pair comes from a translation published by the body responsible for the original, which does not thereby become part of the instrument. A standardized pair has been settled by a body with a mandate to settle terminology, which is not a mandate to make law. A conventional pair rests on nothing but its own history of use.
These are not degrees of correctness but different kinds of claim, and what a translator may say in defence of a rendering differs at each level.
Where the authorities stand
The first thing to state is a negative finding, because the alternative is to imply a consensus that does not exist: there is no codified general ranking of term-evidence sources in the literature. The data-category standards do not establish one, and the empirical studies of institutional term banks report none. The four levels above are a working distinction, not a standard.
At the authentic level the doctrine is settled and old. The Vienna Convention provides that where a treaty has been authenticated in two or more languages the text is equally authoritative in each, and adds the useful presumption that its terms have the same meaning in each authentic text. The Court of Justice put the consequence plainly in CILFIT: the language versions are all equally authentic, so interpreting a provision involves comparing them.
The official-but-not-authentic level is where the confusion concentrates, and it has an exact instrument. The German federal ministry of justice publishes English translations of German statutes, and the attached notice says that "any discrepancies or differences that may arise in translations of the official German versions of these materials are not binding and have no legal effect for compliance or enforcement purposes". Read it carefully: the thing said to have no legal effect is the discrepancy, not the translation. Summarizing it as a statement that the translations are not binding misstates the source, a small error with large consequences in a certification context. The translations also name their translators, statute by statute.
The standardized level has a textbook case. Canada's programme for common-law terminology in French settled the French designation of the common law by adopting the English expression unchanged, assigning it feminine gender, and ruling that it takes neither italics nor quotation marks, because it is now part of French legal terminology. The same authorities reject the approximate renderings a translator would reach for, among them droit commun.
The conventional level is where most pairs actually live: a rendering has been used before, so it is used again, and the argument for continuing is that proliferation serves nobody. A real argument and a weak authority.
Consequences for translation
- Record which level a pair came from. Two renderings that look identical on a term record can rest on a treaty and on somebody's habit.
- An official translation is evidence of what the responsible body calls the concept in the target language, not of what the target system's own term means, and it is not part of the instrument.
- Quote disclaimers exactly. In sworn and certified work, the gap between what a notice says and what it is usually summarized as saying gets tested.
- Where no authority exists above the conventional level, say so.
Examples
FR>EN
- Source: texte authentique
- Target: authentic text
- Comment: The top level, demonstrated by the instrument that defines it. The Vienna Convention exists in several equally authentic versions, so this pair is not a translation of one into another: both are the treaty. The presumption that the terms mean the same in each authentic text is what makes the pair citable, and it is a presumption rather than a fact.
DE>EN
- Source: Willenserklärung
- Target: declaration of intent
- Comment: Official and not authentic. The rendering comes from the English version of the German civil code published by the responsible ministry, which names its translators and carries the notice above. A translator can cite it as the state's own English designation for the concept, and cannot cite it as law.
EN>FR
- Source: common law
- Target: common law
- Comment: Standardized, and the interesting part is what was standardized. The designation was adopted into French unchanged, which looks like doing nothing until the rest of the ruling is read: it is feminine, takes no italics and no quotation marks, and the plausible French renderings are rejected. A borrowing can be the outcome of a terminological decision rather than the absence of one.
References
- Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, articles 33 and 85.
- Case 283/81 CILFIT v Ministry of Health, judgment of 6 October 1982, paragraph 18.
- Bundesministerium der Justiz, translations of German legislation published at gesetze-im-internet.de, general notice on translations and the English version of the Bürgerliches Gesetzbuch.
- "L'équivalent français de common law." L'Actualité terminologique 23(4), 1990, p. 7; and Bureau de la traduction, Juridictionnaire, entry common law.
- de Groot, G.-R. and van Laer, C. J. P. (2006). "The Dubious Quality of Legal Dictionaries." International Journal of Legal Information 34(1), 65 to 86.
- Prieto Ramos, F. and Guzmán, D. (2023). "Measuring the quality of legal terminological decisions in institutional translation." In Ł. Biel and H. J. Kockaert (eds), Handbook of Terminology, Volume 3: Legal Terminology, 375 to 396. Amsterdam: John Benjamins.
- ISO 12620-1:2022. Management of terminology resources: Data categories, Part 1. Geneva: International Organization for Standardization.