What it is
A term pair does not have a fixed status. The same rendering can be a good solution in a law-review article and a defect in an authentic legislative text, and nothing about the two concepts has changed in between. What has changed is what the designation does.
Šarčević's formulation of the difference is the one to hold onto. Translators cannot be expected to produce parallel texts equal in meaning, but they are expected to produce texts equal in legal effect. In a text that has legal effect, the designation is not a report about a concept: it is part of the instrument that operates on people.
From that follows the claim on which this record turns, and it is worth quoting her exactly. By favoring a certain type of equivalent, the translator effectively sends a signal to the courts as to how that term should be interpreted, that is, according to which legal system it should be defined. A functional equivalent tells a court to reach for the target system's concept. In a descriptive text that is helpful. In a prescriptive one it hands the court a rule the drafter did not make.
Peruzzo draws the same line with different labels, separating translation for normative purposes, where the translation keeps the function of the source text, from translation for informative purposes, where it informs the reader without binding anyone.
Where the authorities stand
The standing is contested because the principle is widely accepted and its scope is not settled. Šarčević herself presents the genre condition as a position held by others as much as a finding of her own, citing Didier's view that translations of legislation and other normative texts require absolute literalness while judgments may be translated more freely, and noting that the use of common law technical terms as functional equivalents in civil law legislation is regarded as misleading and inappropriate.
Her fuller classification of legal texts by function, which sorts them into primarily prescriptive, primarily descriptive but also prescriptive, and purely descriptive, belongs to her book rather than to the conference paper in which the sentences above appear. The categories are useful and widely reproduced; the warrant for a formal preclusion sits in the paper.
Peruzzo's contribution is to show that text type is one constraint among several rather than the whole story. She sets out seven: target audience, lingua franca, legal system of reference, comparative law methods, intertextuality, type of publication, and editorial policies together with linguistic precedent. Type of publication is on that list, not at the head of it, which is a corrective to any account that treats genre as the master variable.
This is the record that justifies a preclusion in this reference. A functional equivalent is not a bad technique. It is a technique that a named authority holds inadmissible in one identified situation, and the preclusion is genre-conditional rather than absolute.
Consequences for translation
- Establish the text's legal status before choosing among admissible equivalents. Whether the target text will operate as an instrument, or report on one, changes which candidates are available.
- In prescriptive text, prefer a designation that does not import a target-system concept. Borrowing, a flagged coinage or an expanded literal rendering all leave the source system in charge of the definition.
- A rendering validated in a commentary is not thereby validated for legislation. Term records should carry the genre in which an equivalent was accepted.
- Genre is one constraint among several. Audience, the legal system of reference and prior linguistic precedent can each override a preference that text type alone would suggest.
Examples
EN>FR
- Source: act of God
- Target: cas fortuit ou de force majeure
- Comment: A functional equivalent in binding text, and it misfired. Šarčević's account of Gulf Oil Canada v Canadien Pacifique is that the English version of the disputed provision exonerated a carrier for loss caused by an act of God while the French version used cas fortuit ou de force majeure, and that a set of facts qualifying as cas fortuit under Quebec law does not always qualify as an act of God at common law. The Superior Court of Quebec ruled on the French version and exonerated the railway on facts that would not have qualified in a common law province.
EN>ZH
- Source: addition
- Target: 增建工程
- Comment: The same signal, sent in a different direction. Leung reports a Hong Kong by-law whose two versions are equally authentic, where the Chinese rendering connotes building work while the English extends further. The defendant was acquitted at first instance on the ground that no one who understands Chinese would regard placing metal trays outside a shop as 增建工程, and convicted on appeal once the term was reinterpreted as additionally erected work. One defendant, two outcomes, decided by which version the court read.
References
- Šarčević, S. (2000). "Legal Translation and Translation Theory: a Receiver-oriented Approach." In Legal translation, history, theory/ies, practice, Geneva, 17 to 19 February 2000. Geneva: ASTTI and ETI, sections IV and VI.
- Šarčević, S. (1997). New Approach to Legal Translation. The Hague: Kluwer Law International, p. 11.
- Leung, M. (2004). "Assessing Parallel Texts in Legal Translation." The Journal of Specialised Translation 1, 89 to 105.
- Peruzzo, K. (2023). "Legal terms that travel: Constraints to presenting national legal terminology to international audiences." In Ł. Biel and H. J. Kockaert (eds), Handbook of Terminology, Volume 3: Legal Terminology, 152 to 172. Amsterdam: John Benjamins.
- Katsivela, M. (2011). "Canadian Contract and Tort Law: The Concept of Force Majeure in Quebec and its Common Law Equivalent." Canadian Bar Review 90, 69 to 102.
- Gulf Oil Canada Ltd v Canadien Pacifique Ltée, [1979] C.S. 72 (Quebec Superior Court).