What it is
A legal term does not designate a thing in the world. It designates a position inside a system of rules, and that system was built by one community, under its own history, to solve its own problems. Change the system and the position changes with it, whether or not anything in the world has moved.
That is what makes the incongruity of legal terminology structural rather than incidental. It is not that two languages happen not to have got round to lining up their vocabularies. It is that each legal order makes an independent regulatory effort, shaped by cultural and sociological factors, and arrives at its own solution. Two concepts produced by two such efforts have no reason to coincide, and normally do not.
The consequence for method is severe, and Sandrini draws it plainly. If concepts from different legal environments cannot be compared directly, then the only common ground available is the aspect of real life that the statutes regulate: because it lies outside the law, it is the one factor about which two systems can be said to be talking about the same thing at all. The comparison runs through the world, not through the law.
Where the authorities stand
The received position is that full equivalence between legal terms occurs only where the source and the target language serve the same legal system, as they do in Belgium or Switzerland, with narrow exceptions where an area of law has been partly unified or where one system has taken over another's concept and it still functions identically. That rule is de Groot and van Laer's, and it underwrites most of the practical literature.
The interesting development is that the whole paradigm now has a named opponent. Kjær argues that incongruity theory was built for translation between national legal systems and fails for the transnational legal English in which international law is now made and interpreted. Her grounds are specific: the actors interact in a lingua franca that is not bound to the common law, international courts interpret rules dynamically and independently of national law, and it is therefore impossible to anchor the English of international legal texts in any established legal system that would govern their meaning. Her conclusion is that the theories which have traditionally informed translators' conception of their craft now fail to account for the practice, and that convergence between legal languages marks the beginning of the end of what we conventionally understand as legal translation.
This record does not resolve that. Kjær's piece is a short position paper rather than a demolition, and the incongruity account remains the working assumption for translation between national systems, which is most of the work. But a reference that presented incongruity as settled would be misreporting the state of the field. Engberg's multiperspectivist approach, assessing conceptual legal knowledge from several angles at once, is a third position rather than a compromise between the two.
Consequences for translation
- Establish which legal system governs the target text before choosing a term. Where source and target language serve one system, full equivalence is available and should be used. Where they do not, it is not available at all, and a rendering that looks like an equivalent is a claim the translator cannot support.
- Compare through the regulated situation, not through the legal content. Asking what real-life circumstance each provision addresses gives two systems something to be compared on; asking what each term means does not.
- Incongruity is not a defect to be repaired. A note recording that two concepts answer to different systems is more useful than a rendering that conceals it.
- In texts governed by no national system, the incongruity frame may be the wrong tool. Where a term belongs to a transnational or supranational order, the question is not which national concept it matches.
Examples
EN>FR
- Source: law
- Target: droit
- Comment: The pair everyone uses and few examine. Cao's point is that the French conception is the broader, reaching into political science and morality, and that it locates the essence of law in the general ideas it inspires, where the English common law sees primarily a body of rules of procedure and remedies. Conceptually and referentially the two are not exact equivalents, which makes this the most heavily used inexact pair in the language.
FR>EN
- Source: loi, décret, arrêté
- Target: partially lexicalized in English
- Comment: The same field from the other side, and here the incongruity is a matter of resolution. French distinguishes an instrument passed by Parliament and promulgated by the President, one made by the President or the Prime Minister, and one made by the executive branch. English has no three-term set fixed by the source of the instrument, so any rendering either loses the distinction or supplies one the target system does not recognize.
References
- Sandrini, P. (1999). "Legal Terminology: Some Aspects for a New Methodology." Hermes 22, 101 to 111, at pp. 105 to 106.
- 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. A variant chapter appeared in Translation and Meaning 7 (Maastricht, 2007), 173 to 187, with different pagination.
- Cao, D. (2007). "Legal Terminological Issues in Translation." Ch. 4 of Translating Law, 53 to 73. Clevedon: Multilingual Matters, at pp. 55 to 56 and p. 61.
- Kjær, A. L. (2014). "New challenges to the theory of legal translation: transnational legal communication and the autonomization of international law." The Translator 20(3), 430 to 436.
- Engberg, J. (2020). "Comparative Law for Legal Translation: Through Multiple Perspectives to Multidimensional Knowledge." International Journal for the Semiotics of Law 33(2), 263 to 282.