Legal Translations: Some Tips

Francisco Avalos
International & Foreign Law Librarian

Lecture delivered at National Language Resource Center, San Diego State University on July 24, 1998.

The world is shrinking and national borders are changing in concept and practice. The modern communications systems that are now in place make communicating from one part of the world to another a matter of minutes, if not seconds. Modern travel has also added to the shrinking world factor. National borders of the past were erected with the idea of stopping or at least delaying the entry of non-nationals and goods at the border. They were defensive borders built along military principles, with the idea of protecting the integrity of the national territory of the state.

Today we can see borders fast disappearing; that is to say the idea of a border as a physical barrier meant to keep foreigners and their goods at bay. In Western Europe, the European Community, formerly the European Economic Community, and the Common Market, are bringing down all national borders for all intents and purposes. Europeans can travel throughout Europe with no need of a national passport. Their next aim is to have a common currency for all of Western Europe. This type of world unification is not only taking place in Western Europe, but is taking place in the Pacific Rim Countries, in the Far East and in the Americas.

The North American Free Trade Agreement (NAFTA), a trade treaty among Canada, the United States and Mexico, is one of the first serious attempts to follow the European Community's model here in the Americans. Before NAFTA was signed, the European Community was the world's large trading block. Now, NAFTA is the world's largest trading block. It is predicted that NAFTA will eventually create trade in the trillions of dollars, and that soon other countries in the Americas will be joining NAFTA, with Chile maybe being the next country to join NAFTA any day now. I can see the day when a container can be loaded in Toluca, Mexico, and get to Toronto, Canada with no border inspections or delays. Everything will flow through as if there were no national border.

But, before people and nations can conduct international trade they must be able to communicate with one another. There must also exist rules and uniform commercial documents that can assure the transfer and payment for goods in an orderly and timely fashion. The rules and uniform documents for international trade are being created by the various governments and organizations such as the National Law Center for Inter-American Free Trade.

When it comes to the ability to be able to communicate with one another, not too much is being done at the moment. How can a multi-million business transaction take place if one party speaks Spanish and the other party speaks English? And, to further complicate matters there is the legal factor involved. The legal system of one country may be as different from the other country's legal system as Spanish is from English. A law firm will be willing to spend thousands of dollars in Federal Expressing documents around the world, but will be reluctant to pay hundreds of dollars for a quality translation. There is too much at stake and it is absurd to rely on translations made by "secretaries that speak Spanish" when millions of dollars are involved. There is a great need for a national corps of well trained legal translators to educate the U.S. business world about the importance and difficulties of legal translating, and to provide these required translations.

Legal translating requires two basic skills. The first skill is a fundamental knowledge of the original and target languages. Usually a person will favor one language or the other. This is no problem, what is a problem is if an individual does not have a good command of at least one of the languages. The second skill is an intelligent grasp of the legal system of each of the countries involved. The state of these two conditions, in the legal translator, will determine the quality of a legal translation. A good legal translator has the ability to not only retain the integrity of the legal information of a document, but to capture nuance inherent in a language, while also respecting the author's writing style.

Language and the law are very closely related and are generated through social practices. Language is the essence of the law. The Law is substantially formulated through language. They are formalized communication systems because they both are governed by their own rules of creation and reproduction. There is non-language law, but it is minor and requires little translation. The non-language law I am talking about are things such as traffic signs, sirens, policemen hand directions and other such things.

Legal translating demands a precision that may not be required in other types of translations. The legal translator has to comply not only with the rules of a foreign language, but also with the rules of a foreign legal system. Everyday language implies a formalized way of communication, while legal language introduces a supplementary system of communication. People speaking the same language, but belonging to different legal systems can have a greater translation problem than those speaking different languages but under the same type of legal tradition.

Precision in legal translations requires fidelity to the text, and to the context. The text can be seen as something in the foreground, while the context can be seen as something in the background. To retain the fidelity of a legal translation both areas have to be covered. It is very important that a legal translator have a basic knowledge of the law. The law is a social science, and like all disciplines it has it's own specialized vocabulary and institutions that have evolved through the history of the science. What distinguishes the law from the other social science disciplines is the fact that each country in the world has its own unique legal system. The legal system of a country is the concentrated expression of the history, culture, social values and the general consciousness and perceptions of a people. Given the fact that there are over 190 countries in the world, each with it's own unique history and culture, this means that there are going to be many differences from one legal system to another legal system. The differences will run the gamut from minor differences to major fundamental differences.

Therefore it is very important that a legal translator have a basic knowledge of the law. The law is a social science, and like all disciplines it has its own vocabulary and institutions that have evolved through the history of the science. What distinguishes the law from the other social sciences is the fact that each country of the world has its own unique legal system. The legal system of the country being the concentrated expression of the history, culture, social values and the general conscious and perceptions of a people. Given the fact that there are over 190 countries in the world today, each with its own legal system, this means that there are going to be many differences from one legal system to another. The differences will run the gamut from minor differences to major fundamental differences.

Now as this were not enough, you have to add the language barrier factor to legal translating. Language and law share a long history. They both go back to the origins of humans and society and are unique to us as a species. Language preceded law, and law could not exist without language. The substance of law is essentially symbolic and abstract. It is language, words which give law its physical manifestation in the form of statutes, regulations, court decisions and so forth. Unlike the Physical Sciences that do deal with physical substances and their relationship to humans, law is physically intangible.

This factor adds to the problem of the language barrier since the law is so abstract. Language and law also share other common traits. Language and law are two of the forces behind civilization and its development. Civilization as we know it could not exist without language and law; the three are closely related. Language and law also share complicated rules, which must be learned and practiced to master these disciplines. Both tend to become more complex and demanding, as individual societies develop civilization needs to have a highly developed legal system.

What also happens as language and law develops in a society is that they both tend to become more and more unique to their particular society. This is due in large part to the fact that a society builds its language and law upon foundations derived from their unique culture and history.

Today in the world there are two major types of law. There is international law and municipal law. International law regulates the relationships between nationals and foreign nations. Municipal law is the laws of a nation, the legal system of a nation.

International Law is divided into two types of law. There is public international law and private international law. Public international law concerns matters of state. The United Nations and other regional international organizations are the main source of public international law. This law deals with human rights, law of war, law of the sea; matters that tend to be of national/government interest. Private International Law governs the relationship between individuals from different nations and the relationship between the government of a nation and an individual of a foreign nation. This law, private international law, is the business law of the world. International business transactions are governed by this law, to a major extent. Private international law is the law legal translations will most often be working with, in the form of sales, payments, shipping, contracts, etc.

Municipal law is divided into what are known as legal traditions. Legal traditions are mainly based on past historical ties, such as a common history, common cultural origins, and close financial ties. Countries with the same legal traditions will share common historical backgrounds and development; common theories and hierarchy of law sources; a common working methodology of jurists; and common legal institutions.

The United States belongs to the Common Law Tradition because of its shared history with England. The Common Law Tradition is the second oldest Legal Tradition of the world. Its origins are traced back to 1066, when the Norman Conquest of England took place. As I mentioned before, we are part of the common law tradition. The common law tradition spread throughout the world with the British empire. Now most of the Commonwealth Countries, along with the United States share this law tradition. In numbers of people, the common law tradition is the smallest of the Legal Traditions.

The main characteristics of the common law tradition is the preeminence of case decision. The doctrine of precedent, or stare decisis, has a central place as a source of law in our legal system. Large areas of law have developed through Judicial decisions and not through rules of Legislative origin. Judges play a key role in the common law tradition. They create law through their decisions; they are the authorities in our legal system. Judges stand at the pinnacle of the common law tradition. The famous and important personalities in our legal system are the Judges, not legal scholars or lawyers.

The other prominent legal tradition is the Civil Law Tradition. This Legal Tradition is the oldest and the mostly widely spread throughout the world. It has its origins in Europe, excepting England. The origins of the Civil Law Tradition can be traced back to Roman Law, middle age merchants law, and the 19^th century codification movement seen mainly in France and Germany. Europe and most all of South America, as well as Asia are part of Civil Law Tradition.

In the civil law tradition, the oldest of the three legal traditions and the most widely spread of the three legal traditions, judges do not make law. In the civil law tradition, judges are viewed as bureaucrats who only apply the law and do not interpret the law. The doctrine of precedent is not recognized in the civil law tradition. The famous and important personalities of the civil law tradition are the legal scholars and not the Judges. This legal philosophy of viewing the judiciary as a secondary player, is reflected in the relative lack of case reporters and the accompanying reference finding tools in the civil law tradition.

The main source of law in the civil law tradition is legislative law. In the civil law tradition it is believed that only the legislature and executive have the moral and legal authority to create law. Traditionally, the civil law tradition was seen as a codified statuary system, while the common law tradition was considered uncodified and based mainly on judicial decisions. This dichotomy between the two traditions is disappearing and they are coming closer together with time. In the common law more and more of this law is coming from the legislatures, the federal legislative assembly, and the state legislatures. In the civil law tradition court decisions, especially Supreme Court decisions, are being reported more and more and used as secondary persuasive material.

The main codes (laws) of the Civil Law Tradition have been written through the years, and I am talking about 100 to 200 years when it comes to the civil code and commercial code. These codes were on the assumption that using a rational scholarly process, rules and laws could be formulated to apply to most all situations that may arise. As a result, codes tend to be very detailed and vast in size. Most all civil codes of the civil law tradition countries of the world are based on the Napoleonic Civil Code, and so are very similar to each other. Most of the Latin American Civil Codes are copies of the Napoleonic Civil Code. Most of the commercial codes of the civil law tradition countries of the world are based on the German Commercial Code produced in the late 19^th century. Again most of the Latin American Commercial Codes are copies of the German Commercial Code.

The original codes were not written by lawyers, judges, or even legislatures. The codes were written by legal scholars after long extensive studies, and then adopted by the legislatures. Here you can see the importance of the legal scholar in developing the law in the Civil Law Tradition. The five most important codes of the civil law tradition are the civil code, the commercial code, the criminal code, the code of civil procedures, and the code of criminal procedures. These five codes, plus the constitution will be the basis for most all of the laws of a Civil Law Tradition country. The civil code and the commercial code and the various other laws and regulations that emanate from these two codes will be what is considered private law. The criminal code, the constitution, and the administrative code will be the source for most of what is considered public law. I have been mentioning national legal systems. Now, what exactly do I mean by a national legal system? At this point I will only say that a national legal system are the laws, the legal procedures and the legal institutions of a given country. There is the legal system of the United States, the legal system of Mexico, the legal system of Canada and the legal systems of the rest of the countries of the world. One of the main points I want to get across at this moment, is the fact that there is no one universal law, no one legal tradition and no one legal system. The laws of the world are as unique as are the nations of the world. Yet the nations of the world also share common traits that are common to all nations of the world.

Such is the situation with the legal systems of the world. They are all unique, yet they do share some common basic legal traits. Knowing this, a legal translator must avoid generalizations or stereotyping of legal systems of the world. A legal translator should find common ground, but realize that the common ground will vary according to the historical, cultural, and economic ties that have existed in the past between any two nations.

Many times a legal translator will come across foreign legal words and legal concepts that will be difficult to fit into his/her legal frame of reference. Some legal words seem impossible to translate into English, while others seem impossible to translate into Spanish, even with the aid of a bilingual dictionary.

When I talked about international law, I mentioned that international law was divided into private international law and public international law. Well, that legal principle comes from the civil law tradition which divides the law into private law and public law. The common law tradition (U.S.) law does not have such a division of law. In the civil law tradition, private law concerns the legal relationships between individuals, while public law concerns the legal relationships between individuals and the state.

The primary tools of the legal translator are going to be dictionaries. Monolingual dictionaries, specialized dictionaries, bilingual dictionaries and specialized bilingual dictionaries. For English/Spanish and Spanish/English legal translators, I would highly recommend the following dictionaries:

In the area of monolingual dictionaries I would recommend Merriam-Webster's New Collegiate Dictionary and the Diccionario de la Lengua Espanola of the Real Academia Espanola.

In the area of specialized dictionaries in English, a translator must own a copy of Black's Law Dictionary published by the West Publishing Company, or a copy of Ballentine's Law Dictionary by the published Bancroft-Whitney Company. These two dictionaries are the source for all legal definitions. A translator cannot make do without one or the other of these dictionaries.

In the area of specialized dictionaries in Spanish, I highly recommend El Diccionario Juridico Mexicano published by the Instituto de Investigaciones Juridicas at UNAM. This is a multi-volume dictionary that is published in hardcover and paperback editions. This is the most complete legal dictionary you can buy without going into the very expensive legal encyclopedias. The investment of about $100.00 for this dictionary is well worth it. There is also available a small one volume legal dictionary, Diccionario de Derecho by Rafael de la Pina Vara that is published by Porrua of Mexico. I would highly recommend that these two dictionaries be part of any legal translator's library.

With the dictionaries mentioned above the legal translator not only has a point of departure for the language element, but for the understanding of the specialized vocabulary of each of the legal systems.

A translator will need several bilingual legal dictionaries to be able to perform his/her work. I recommend two bilingual legal dictionaries. The most comprehensive bilingual legal dictionary is Butterworths Spanish/English and English/Spanish Legal Dictionary compiled by Guillermo Cabanellas de las Cuevas and Eleanor C. Hoague. This is a two volume dictionary with definitions and equivalents given when possible. A second bilingual dictionary that I would highly recommend would be Dahl's Law Dictionary: Spanish/English; English/Spanish published by William S. Hein & Company and compiled by Henry Saint Dahl. This dictionary is not as comprehensive as Cabanellas' dictionary, but has some useful features. The most useful features are two "Key Word Tables" which are divided by language and by legal topic, and the inclusion of Spanish language legal abbreviations. The other bilingual legal dictionaries available are West's Spanish-English/English-Spanish Law Dictionary published by the West Publishing Company; Dictionary of Legal Terms by Julio Romanach published by the Lawrence Publishing Company; Wiley's Spanish-English/English-Spanish Legal Dictionary published by the John Wiley & Sons and compiled by Steven Kaplan. This last dictionary is not a dictionary in the true sense of the word. It is a glossary of legal terms with equivalents or near equivalent legal terms. There are no definitions included, just equivalents. This dictionary must be used with care, making sure that the equivalent given is a true and faithful equivalent to what is needed.

The federal and state governments are a good source for specialized bilingual glossaries. For example the IRS publishes a glossary entitled English-Spanish Glossary of Words and Phrases used in Publications Issued by the Internal Revenue Service.

For a complete and concise evaluation of what is available in the area of bilingual legal dictionaries, see "A Comparative Review of Spanish-English Legal Dictionaries," 86 Law Library Journal 230.

Another important resource available to the legal translator are already translated primary materials, such as codes, laws and regulations. The most important materials in translation for the translator will be the constitutions, the civil codes, the commercial codes and the civil and criminal procedures codes. Since the Latin American countries share the Civil Law Tradition, there will not be too much difference between the codes of one Latin American country and the codes of another Latin American country. The point being that the Mexican Civil Code, which has been translated into English, can be used when translating civil statutes or civil documents from a country other than Mexico. The translated constitutions and translated codes will give the nomenclature of the institutions and the key terms and how they are used in a legal context. A quick look at the civil code of Mexico will tell the translator that an individual in a legal context is know as a "persona fisica." For example the phrase, "los derechos de una persona fisica," will translate into the "rights of an individual," and not into the "rights of a physical person." "Los derecho de un persona moral" will translate into "the rights of a corporation," and not into "the rights of moral person."

One source for translations of business related materials (commercial code, banking laws, business regulations, etc.) is Doing Business in Mexico by Andrea Bonime-Blanc and William E. Mooz. The set is published by Transnational Juris Publications, Inc. This three volume set is expensive to buy and to maintain current, since it is a loose-leaf set. But, most law libraries will have a copy of this set. Another important source for translated materials is The Mexican Legal System: A Reference Guide by Francisco Avalos and published by the Greenwood Press. This monograph was written not only to provide guidance, but to lead the reader to translated Mexican legal materials.

The translated constitutions will provide the translator with the key words and phrases concerning the structure and functions of the various government entities. What are Executive Cabinet Posts called in Mexico?; regulatory agencies?; foreigners?, etc.? The best sources for constitutions in English is Constitutions of the World by Albert P. Blaustein and Gisbert H. Flanz and published by Ocean Publications, Inc. This loose-leaf set is comprised of over 20 volumes and can be found in most major law libraries or university libraries. The Organization of American States also produces Latin American constitutions in English, though these constitutions tend to be dated.

A translated criminal code will give the legal translator the proper terminology for the criminal field. What is a felony called in Mexico? What is the term for involuntary manslaughter in Mexico? A translated commercial code will give the legal translator commercial terms. "What is a bonded warehouse called in Mexico?" The translated commercial code tells the legal translator that a "bonded warehouse" in Mexico is known as a "Almacen General de Deposito." No need to decide whether to use "Almacen Afianzado, Almacen Aduanero, bodega fiscal, etc.;" terms that will be given to the legal translator by a bilingual legal dictionary.

It is a good practice for a translator to always save a copy of any translation that he/she may render. The main reason for this practice is to have a reference point, a starting point for future translations. For example, if the translated document happens to be a sales contract for an agency agreement, the translator will come across some of the key terms and key phrases involved in sales contracts, and in particular agency sales for future use. Legal documents have a standard, common vocabulary that will be used often and repeated. That is what a translator wants to pull from translated documents; the standard, common vocabulary.

The translator can file/save the translated document for future references. The document could be filed/saved under contracts and agency. When the translator has another contract to translate, he/she can then bring out the translated copy of the sales contract and gleam the common terminology. Another way to approach this process is to create a list of the standard common vocabulary from the document. Each document is reviewed to pick out the standard common vocabulary which will form the basis for the translator's personal dictionary or glossary. Though there are bilingual legal dictionaries available, I would strongly recommend that a translator start and maintain his/her own dictionary. If nothing else, this will give consistency to the translations. There are often choices of words or phrases in translating. With a personal dictionary, the choice of words or phrases is made once and used throughout. The translator can then continue to use the same vocabulary, not having to decide on a term from a dictionary every time a particular term comes up.

It is always a good idea to have another person proofread your translation. I recommend working with a partner if at all possible. You can each check each other's work which makes for better translation. I always have someone read my translations before I send them out.

Always look at the complete document and read the complete document before starting to translate (several times). A translator must first completely understand the what he/she is translating. If a translator does not completely understand a document in the original language, then there is little chance of getting a good quality translation. How can you translate something that you do not fully understand? That is not possible. What some translators do in situations where they do not fully understand a document or its context, is to try and translate word by word with no legal context. What they produce is a document that makes no sense in either language. The document will read like a foreign language to the legal people. Legal translation must be translated in a legal context. Word by word translation does not work. A legal translator should also work towards consistency. Once a legal translator selects a legal term or legal phrase for use, the legal translator should continue to use the same legal term or legal phrases throughout the translation. It is not acceptable to be changing terms through a legal translation.

There are certain things that will appear in many legal documents or official documents that must be translated even though these things are not language per say. These include seals, stamps, signatures, letterhead, and others. If there is some kind of seal or stamp on the document, I would place these words where the seal or stamp is located, "Official Seal of the States of Sonora," or whatever the seal or stamp might say. Signatures will require the name of the person signing the document. At times it may be "illegible signature." It is important that these things not be over looked by the translator. All abbreviations and acronyms should also be translated, if known, and the original abbreviation or acronym included in parenthesis i.e., "CCP" Civil Procedures Code (CCP). There are legal abbreviations and acronyms dictionaries available, but I would recommend to a translator that he/she start a glossary of legal abbreviations and acronyms as they come across them. This should be a part of the translator's personal library. The legal abbreviation dictionaries available are:

1. Bieber's Dictionary of Legal Abbreviations. By Mary Miles Prince and published by William S. Hein & Company Co., Inc. This dictionary covers English legal abbreviations and acronyms, 1993.
2. Latin American Legal Abbreviations: A Comprehensive Spanish/ Portuguese Dictionary with English Translations. By Francisco Avalos and published by the Greenwood Press, 1989.

A legal translator should assure access to a law library, university library or a large public library. These libraries should be seen as part of the tools a legal translator will need. Law library will have bilingual legal dictionaries and other resources such a journal articles and introduction to legal systems of the world. There will also be legal encyclopedias, and most important of there will be law librarians. A legal translator should look upon law librarians as colleagues who are there to help. In the other libraries I mentioned before, a legal translator can find specialized bilingual dictionaries for such areas as medicine, engineering, real estate and many other areas of specialty. The legal translator will require these special bilingual dictionaries when translating such things as injury reports and specialized contracts, such as an engineering contract.

There professional associations that a legal translator should join. The advantages of such an association far out weight the annual dues or the expense of traveling to a conference. It is at regional and national conferences/meetings where a legal translator can start networking and keep abreast of new developments in the field. These associations also add to the professionalism of the legal translating career. They create and implement professional standard codes and in general can be very helpful to the legal translator.