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Difficulties Encountered in the Translation of Legal Texts:The Case of Turkeyby Dr. Ayfer Altay | |||||||||||||
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Introduction
These categories have arisen from my twelve years of personal experience as an instructor of translation of legal texts. The article will discuss mainly syntactic arrangements. Arguments on semantic and pragmatic models concerning phraseology and textology in doctrines in international law or comments on parallel textuality in legal matters and on legal authenticity will not be provided for the time being, since they would broaden the subject excessively. Before studying the problems and difficulties of translating legal texts, first we shall describe the historical and linguistic backgrounds which made both Turkish and English legal languages become what they are today, because the difficulties arise mainly due to the differences in linguistic systems and languages. Therefore, we shall start with The Bases of the English Legal Language (although these may be well-known to the British reader). Then, The Bases of the Turkish Legal System and The Nature of the Turkish Legal Language will be discussed briefly. Before studying the problems and difficulties of legal translation, the general features of legal language, and the common features of the English and Turkish legal languages will be discussed very briefly. Bases of the English Legal Language It is impossible to fully appreciate the nature of legal language without having some familiarity with its history. There is no single answer to the question of how legal language came to be what it is (Tiersma 1999:47). Since much of the explanation can be found in the historical events which have left their mark on the language of English law, we should first take a glance at the historical background of today's British 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). A significant event for the language and law of England was the spread of Christianity in 597, since it promoted writing in Latin. Through the Roman Catholic Church the Latin language once again had a major presence in England. Its influence extended to legal matters, particularly by means of the Canon Law, through which the Church regulated religious matters such as marriage and family. The use of Latin as legal language introduced terms like "client," "admit," and "mediate" (Tiersma 1999:16). After the Duke of Normandy claimed the English throne and invaded England in 1066, the main impact of this Norman conquest on the written legal language was to replace English with Latin (Tiersma 1999:20). Beginning in 1310, the language of statutes was French, but it was not until two hundred years after the Conquest that French became the language of oral pleadings in the royal courts. For the next one or two centuries French maintained its status as England's premier legal language. However, in 1417, while fighting the French, King Henry V broke all linguistic ties with his Norman ancestry and decided to have many of his official documents written in English (Tiersma 1999:23). Despite the emergence of French, Latin remained an important legal language in England, especially in its written form. The fact that writs were drafted in Latin for so long explains why even today, many of them have Latin names. The use of Latin and tireless repetitions by the judges have endowed these legal maxims with a sense of timelessness and dignity; moreover, they reflect an oral folk tradition in which legal rules are expressed as sayings due to the ease of remembering a certain rhythm or rhyme (Tiersma 1999:26). These poetic features are still occasionally found in the English legal language. Latin has also remained in expressions relating to the names of cases and parties; for example, in England the term for the crown in criminal case names is "Rex or Regina" (Tiersma 1999:27). 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." 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). Tiersma mentioned that once established, legal phrases in authoritative texts take on a life of their own; you meddle with them at your own risk (1999:39). He adds that, in authoritative written texts, the words will remain the same even if the spoken language and indeed the surrounding circumstances have changed, and lawyers will use the same language even if the public no longer understands it. Once this happens, the professional class that is trained in the archaic language of the texts becomes indispensable (Tiersma 1999:40). All these developments throughout history have led to an obtuse, archaic and verbose legal language in English which is one of the main reasons of the difficulties encountered by Turkish translators in translating legal texts written in English. Bases of the Turkish Legal System The Koran (the holy book of Moslems), certain rules and provisions set by sources other than Koran, for example Mohammed the Prophet's words which are called the "traditions" or "fatwas," diversified and often contradictory provisions and interpretations are called in toto "Islamic Law," under which the Ottoman Empire was ruled throughout the centuries. Mohammed's words are general principles of justice and equity, with a high degree of objectivity and essentially primary regulations necessitated by the social nature and structure of the Arab community of that time. It must be mentioned that not only the Koran, but also the other sources of Muslim jurisprudence were essentially created to meet the needs of the community existing during and after Mohammed's era (Timur 1956:85). It must also be mentioned that throughout the centuries the presence of different and irreconcilable religious sects among the Moslems in the area, and the continual increase of the proportion of non-Moslem citizens after the annexation of Istanbul by Sultan Mehmed the Conqueror have created insurmountable difficulties in jurisprudence. Moreover, Islamic Law was not broad and comprehensive enough to offer reasonable solutions to legal problems of every kind. In fact, the traditions are not applicable to our contemporary society, because Islamic Law contains no provisions regulating the sundry relationships of political institutions and commercial transactions of today's world. Likewise, its rules relating to the vast field of criminal law and jurisdiction are too limited to serve their purpose adequately in the modern world (Timur 1956:86). Furthermore, a great many Islamic codes and legal provisions have become impracticable because in time they have fallen short of meeting the requirements brought about by the continuous metamorphoses of the communities and have completely lost their vitality. For example thousands of articles in the Megelle (Islamic Law), are no longer vital and integral parts of Moslem Law due to their inapplicability. To give an example: Polygamy, which was an accepted social phenomenon of Arab society, has not been practiced in Turkey after Atatürk's reforms. Due to all these shortcomings of Islamic jurisprudence, the reforms of 1839 were a conscious attempt to put an end to the confusion in the judicial sphere and to extend legal equality to all citizens without any discrimination based on religious affiliation. In 1841 a criminal code was drawn up. Although laws regulating land and sea trade appeared, there was still no legislation with regard to family and marital relationships, which constitute an integral part of society (Timur 1956: 75). Following the 1923 Lausanne Peace Conference, the Turkish government of the new republican regime in Turkey decided that the legal codes should be modeled after the legal systems of modern European states. The extensive legislative work conducted under the leadership of Atatürk was not a haphazard selection based on an irrational admiration of the European legal systems, but an inevitable solution to the paradoxes and conflicts described above (Timur 1956: 76). The legal system of the old Turkish state of the Ottomans was based on religious (Islamic) principles, i.e., throughout the centuries the rules of religion were regarded as legal rules. The political development in the 19th century brought about closer contact between Turkey and the Western world, and this necessitated a reform in the judicial system. After the new Turkish Republic was founded in 1923, the Islamic legal system of the Ottoman Empire was discarded in 1924 and was substituted by secular law. Thus, reform of private law became inevitable. As the time available for the preparation of a new national civil code was limited, there remained for the Turkish jurists only one possibility: the Swiss Civil Code which with its popularity, clarity, and especially with its simple style was suitable for the purpose (Izveren 1956:93) . 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). Nature of the Turkish Legal Language Language reform, which is one of the most widely an ardently discussed cultural problems in modern Turkey, is an issue directly related to the legal language used in Turkey today. Kemal Atatürk, the founder of the modern Turkish Republic, aimed at creating a nationalist, secular, populist, revolutionary, and etatist republic. However, the Turkish language at that time was Ottoman Turkish, full of numerous Arabic and Persian words which was regarded as a disgrace because nationalism, the main ideology of "Kemalism" demanded the purification of the Ottoman Language by replacing its foreign elements with genuine Turkish words. Atatürk's cultural orientation which was based on a complete break with the Islamic past and the adoption of the secular values of modern western civilisation also supported this tendency. Therefore, the Latin script was introduced. Atatürk did not intend to create a new language as a result of a slow, evolutionary process, but by drastic measures within a short time. Thus he created a national association, the Turkish Linguistic Society, which was entrusted with the systematic reform of the Turkish language in close co-operation with the Ministry of Education, the Republican People's Party and the People's Houses (Halkevleri). In 1928, which is considered the beginning of Atatürk's "language revolution" in Turkey, the Turkish National Assembly amended Article 2 of the Constitution as "the religion of the State of Turkey is Islam, its official language is Turkish," and a few months later, the new Turkish alphabet composed of Latin characters was adopted by Parliament. In 1932, the Turkish Linguistic Society whose aim was "to bring out the genuine beauty and richness of the Turkish language and to elevate it to the high rank it deserves among the world's major languages" was officially founded. It was a hard task and there were many people and institutions who were fervently for this drastic change as well as those who were against it. Atatürk's death in November 1938 weakened the momentum of the language revolution. The Republican People's Party adopted its new programme and statutes in 1939, into which many Arabic terms previously eliminated were reinstated (Heyd 1954:40). However, the movement gained new impetus through the efforts of efforts of İsmet İnönü, Atatürk's successor. Now as the President of the Turkish Republic, he issued a statement promising to continue the work inaugurated by the late Atatürk for the purification of the language from foreign elements and the evolution of a truly national language. The most drastic expression of the renewed purist tendencies was the translation of the Turkish Constitution into purer Turkish. To a certain extent, the vocabulary of the Constitution forms part of the legal terminology, and its reform is related to that of technical and scientific terms. The drafts prepared at the Faculties of Law of Ankara and Istanbul Universities by a group which included members of Parliament interested in legal and linguistic problems and members of the Linguistic Society were taken into consideration before a final draft was submitted to Parliament and adopted in January 1945. It was an exact "translation" of the constitution of 1921 (Teşkilatı Esasiye Kanunu) which was amended in 1924 and which was based on Arabic vocabulary. In the 105 articles of the new version of the Constitution, there were only about 1410 different words borrowed from Arabic or Persian and less than 10 European words. Many of the Arabic and Persian words were replaced with Turkish ones, and those retained were given a Turkish form to the extent possible (Heyd 1954:42). The new version of the Constitution was evidently the result of a compromise between divergent opinions. Until that time, the puristic efforts of the Linguistic Society had met with certain criticism by public opinion, but during the presidency of both Atatürk and Inonu this opposition was latent, while with the growing democratisation of Turkish society after World War 2, criticism became more verbal and public. Drastic reformation of the Turkish language was strongly opposed by Istanbul University, a large section of the press, and also by the Istanbul Teachers' Association. The reasons for the opposition were, among other things, the reluctance of people to change the vocabulary they had been used to since childhood, reluctance of journalists and authors to use words unknown to the public, and a widespread opinion that language as a living organism should develop by evolution and in accordance with its intrinsic laws. The Linguistic Society was said to have created a new artificial official and eurdite language very different from the language of ordinary conversation instead of developing the existing language so that it would be understood even by the people on the street. Under the influence of all this criticism, the Sixth Language Congress, which convened in 1949, tended towards moderation in linguistic reform. After the Extraordinary Language Congress held in 1951, the Society's new policy was outlined as "rejecting the views of both the conservatives and extreme purists, and following a middle course." The goal was to free the Turkish language from the dominance of both eastern and western languages. The most striking manifestation of the opposition to the puristic policy of the Linguistic Society with regard to our subject was the revocation of the "translated" 1945 version of the Constitution. In 1952, by the vote of an overwhelming majority, Parliament decided to reintroduce the old text of 1924 including later amendments but without any change in language. At the same time, many Arabic terms were reinstated instead of Turkish neologisms in the language of law and administration. Lastly, on July 9, 1961 a new version of the Constitution, written in completely clear and modern Turkish was submitted to a plebiscite and accepted. In 1971 and 73 some major changes were introduced into the Constitution. Following the coup d'Ttat of 1980, the previous Constitution was partially changed. In 1982, as an act of restoration of the democratic order, a new Constitution was prepared and after being submitted to a plebiscite, it was accepted and put into force the same year. A few amendments have been and still being introduced to the Constitution. However, the rest of the legislative language did not undergo a similar purification process. While the vocabulary of the Constitution has been updated, laws written in their original archaic language are still being used by the courts. Therefore, there is a large gap between the language used by the people on the street and legislation. From time to time, motions are tabled by the legislature aiming at the unity and purification of the legal language and its harmonisation with the Constitution (Özdemir, 1969:122), but these attempts have not resulted in concrete legislative action. Today, after more than 50 years, it is evident that the language reform has succeeded in changing the vocabulary of modern Turkish to a great extent. The vocabularies of the press, administration, scholarly works, school textbooks, and literature are written in Turkish using many words introduced by the Linguistic society, along with some Arabic or Persian words. These Arabic or Persian words can be detected especially in the discourse of elderly people. The presence of old and new words side by side in legal texts, and the fact that the language of law is still archaic Turkish including lots of Arabic and Persian words with which the young generation is completely unfamiliar are the main reasons for the difficulties encountered by legal translators in Turkey. 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). 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). 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). 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. 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). And in Turkey, just as the religious circles are reluctant in changing the Arabic language of the Koran into Turkish language, the legal circles are reluctant to change and modernise the Arabic-influenced archaic language of the Turkish legal language. 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. 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. 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. 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: 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. 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. 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).
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
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: This difference in word orders of both languages can also be visually explicit. The heading of the source text is as follows:
RESOLUTION On Economic and Trade Relations Between the Community and Turkey.
However, the target text has the following arrangement: 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. 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. 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." 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...)." 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. III) 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. 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). 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).
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." 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:
a) The lawful detention of a person after conviction by a competent court b) The lawful arrest or detention of a person..... 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. 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. 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. 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:
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. 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.
Conclusion Sarcevic suggests that the traditional principle of fidelity has recently been challenged by the introduction of new bilingual drafting methods which have succeeded in revolutionising legal translation. Contrary to freer forms of translation, legal translators are still guided by the principle of fidelity; however their first consideration is no longer fidelity to the source text but to guarantee the effectiveness of multilingual communication in the legal field (1997:16). While lawyers cannot expect translators to produce parallel texts that are identical in meaning, they do expect them to produce parallel text that are identical in their legal effect. Thus the translator's main task is to create a text that will produce the same legal effect in practice. To do so, the translator must be able "to understand not only what the words mean and what a sentence means, but also what legal effect it is supposed to have, and how to achieve that legal effect in the other language (Sarcevic 1997:70-71). Translators must be able to use legal language effectively to express legal concepts in order to achieve the desired effect. They must be familiar with the conventional rules and styles of legal texts in every field of the individual legal systems. A legal translator must not forget that even a Will is not valid if not written in the correct style.
References AYITER, F. 1956 "The Interpretations of a National System of Laws Received from Abroad," Annales de la faculté de droit d'Istanbul . Istanbul:Fakülteler Matbaası. Avrupa Topluluklarını Kuran Temel Antlaşmalar. 1996. T.C Başbakanlık D.P.T Yayınları. BHATIA, V.K. 1983. Analysing Genre: Language Use in Professional Settings. London: Longman. BOWERS, Frederic. 1989 Linguistic Aspects of Legislative Expressions. Vancouver; University of Columbia Press. Contract between The Public Airport Administration of the Republic of Turkey and Company X. Convention For the Protection of Human Rights and Fundamental Freedoms. DANET, Brenda. 1985. "Legal Discourse," Handbook of Discourse Analysis. Vol.1 New York: Academic Press. GOODRICH Peter. 1987. Legal Discourse. Hong Kong: Mac Millan GOUADEC, Daniel. 1990. Terminologie Constitution des Donnés. Afnor: Paris. HEYD, Uriel. 1954. Language Reform in Modern Turkey. Jerusalem: Hadassah Apprentice School of Printing. IZVEREN, Adil . 1956. "The Reception of the Swiss Civil Code in Turkey," Annales de la Faculte de Droit D'Istanbul. Istanbul: Fakülteler Matbaası. MELINKOFF, David. 1963. The Language of the Law. Boston: Little Brown Memorandum between Czechoslovakia and Turkey. October 1989. MORRIS, Marshall (ed.) 1995. Translation and the Law. Amsterdam: John Benjamins NEWMARK, Peter. 1988. A Textbook of Translation. London: Prentice Hall Official Journal of the European Communities. 17.4.1989. ÖZDEMIR, Emin. 1969." Yasaların Dili" (Language of Law), Journal of TDK. Ankara: TDK Publucations. Results of the Inter-Parliamentary Union. 94th Conference and Related Meetings. 6-4 October 1995 Bucharest, Romania. REY, Alain. 1995 Essays on Terminology. (ed. and tr.) Juan C. Sager Amsterdam: John Benjamins. SARCEVIC, Susan. 1997. New Approach to Legal Translation. The Hague: Kluwer Law International. TIERSMA, Peter M. 1989. Linguistic Aspects of Legislative Expression. Vancouver: University of British Columbia Press. TIMUR, Hıfzı.1956. "The Place of Islamic Law in Turkish Law Reform," Annales de la Faculte de Droit D'Istanbul. Istanbul: Fakülteler Matbaası. Treaties Establishing the European Communities. Abridged Edition WESTON, Martin. 1983. "Problems and Principals in Legal Translation," The Incorporated Linguist. Autumn, Vol 22, No:4 YALÇINKAYA, Namık Kemal. 1981. Ingiliz Hukuku (The British Law). Ankara: Eroglu Matbaası. |
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he 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, in our case those at the department of Translation and Interpretation at Hacettepe University in Turkey.