Mateusz Zeifert and Zygmunt Tobor, Legal Translation Versus Legal Interpretation: A Legal-Theoretical Perspective, International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique volume 35, pages 1671–1687 (2022), available open access at https://link.springer.com/article/10.1007/s11196-021-09837-7.
I’ve often thought about this question when it comes to foreign legal texts. Law librarians are asked to find translations of foreign statutes and cases all the time, and in my opinion this is one of the most problematic requests that we deal with, especially when the researcher wants a quick answer.
To make a translation of a normative legal document like a statute or a code (or, especially in common law jurisdictions, a judicial opinion) useful to someone who does not read the language it was originally written in, what needs to be done to it? Does it need to be merely translated, or does it need to be interpreted also?
If it’s the latter, then the problem of machine-generate translations like those rendered by Google Translate is immediately obvious. Computers, alas, are inferior interpreters to humans for a task like this, especially if those humans have legal training and knowledge. I firmly believe that computers will never be able to reason their way through ambiguities in legal texts as well as a person can. There are too many variables at play that just can’t be programmed.
Zeifert and Tobor’s article on this topic is an interesting examination of what it means to “translate” vs. “interpret” legal texts. Two quotes from this article stood out as especially indicative of the problem:
- “Linguistic competence does not constitute a sufficient condition of understanding legal texts.” (page 1675)
- “The role of a translator is to translate the text, not to improve it.” (page 1681)
It can be argued that to “interpret” a text involves, in some way, “improving” it so that it is more likely to make sense to the reader. This could mean adding contextual information, or clarifying ambiguities in the original.
The problem with this, of course, is that normative legal texts are full of ambiguities, and it is the job of the lawyer or the judge, and not the translator, to clarify and resolve legal ambiguities. In other words, “interpretation,” in a legal sense, means to solve problems.
So what is a legal translator to do? Ignore legal ambiguities in the original text altogether? Or try to present them in a minimally interpretive way to the person who is reading the translation, thereby leaving to the reader the final task of determining how they should interpreted?
Zeifert and Todor seem to prefer the latter option, as do I. This is more difficult, of course, because the line between necessary and superfluous “interpretation” of a legal text by a translator seems to be very fine and easily crossed.
I think the authors’ introduction of a translation maxim called “fidelity” at the end of the article is an important and helpful principle to adhere to when trying to maintain that balance. Fidelity is when “the translator … strives to produce a text that expresses the intended meaning and achieves the intended legal effects in practice.” (page 1684)
In my opinion, those who have the best chance achieving fidelity are those who have some training in the legal system of the original text AND the legal system of the target language. This means, for example, that a translator of a legal document in German or French into English needs a firm understanding of both the civil law and common law systems. A translator thus equipped will best be able to determine the difference between linguistic ambiguities that they, in their role as an interpreter, should resolve, and legal ambiguities that must be resolved by a lawyer.
These people do exist, and their value to an increasingly global economy that relies on lawyers and courts across multiple jurisdictions cannot be understated.