Translating Ambiguity in Foreign Language Documents
Legal translation is not a simple process of replacing words in one language with words in another language. Legal language is not always as clear as we may think. Assume your local park has a sign stating one rule: “No Vehicles in the Park.” That sounds like a fairly straightforward directive, no?
• Do police officers in a police cruiser violate the law if they chase a bank robber into the park?
• Does an ambulance that is speeding someone to the hospital violate the rule by driving through the park to save precious minutes for the patient?
• Does your child violate the rule by playing with his toy car in the park?
• Does your husband violate the rule by pushing your child through the park in a stroller?
• Is there a violation when the town places a tank in the middle of the park as part of a monument to those who fought in the Vietnam War?
• Does the garbage collector violate the rule by driving a truck in the park to empty the trash bins throughout the park?
• Are the local teenagers banned from riding their bicycles in the park?
When “No Vehicles in the Park” Doesn’t Mean What You Think It Means
As you can see, sometimes what we think may be an obviously clear law becomes fraught with opaque complexity when put up against real-life scenarios.
The “No Vehicles in the Park” example comes from the famous 1958 debate between two top legal theorists Lon Fuller and H.L.A. Hart, memorialized in the Harvard Law Review. While some rather erudite discussion surrounds the “No Vehicles in the Park” example, it is often commonly cited as a way in which to understand the nature – and limits – of legal language.
The Limits of Language and the Challenge It Poses to Legal Translators
Those limits on legal language, then, put a fine point on the challenges facing legal translators. Indeed, some attorneys may think that translation is easy, provided the translator speaks both languages required for translating a particular conversation or document. However, when you take a closer look, the legal translator has a very challenging task, for a number of reasons.
First, the language of the law is, by its very nature, dense and difficult to parse. Oftentimes, ordinary words take on different meanings when used in a legal sense. Indeed, the term “legalese” is a nice way of saying that legal documents are often incomprehensible to someone who did not attend three years of law school.
Second, the meaning of words in any language (not even legal language) can sometimes be difficult to pin down without context. For example, the phrase “I’m leaving” can mean one thing when your child says it as he is going to school, compared to when your spouse says it after an argument.
Third, words in different languages do not often have a one-to-one counterpart. Legal translators often must understand both the words and the spirit/ intention of a statement to accurately translate it because languages do not always match up perfectly.
Finally, legal principles between two different countries also do not often match up in a one-to-one ratio. Thus, legal translators must be careful that legal terminology in one language does not result in a misunderstood or incorrect use of terminology common to the other language.
Translating the Same Legal Text to 23 EU Languages
With that in mind, now consider the compounded difficulties of doing legal translation in the European Union (“EU”), where one EU law originally drafted in English or French must be translated into 22 other official European Union languages, including German, Dutch, Irish, Maltese, Romanian, Portuguese, Polish, Lithuanian, Latvian, Greek, Slovenian, Italian, Hungarian, Slovak, Finnish, Estonian, Danish, Czech, Croatian, Spanish, Bulgarian, Swedish, English. And, all linguistic versions of any EU legal text are considered equally authoritative, with identical legal status throughout the EU! A daunting task indeed.
Of course, such a system has resulted in inevitable issues in which the translation of the law is not exactly the same from country to country. Let’s look at case to see how such an issue is handled.
The case of Commission of the European Union v. United Kingdom of Great Britain and Northern Ireland, centered on a regulation that charged a tariff if fish were “taken from the sea” by non-EU fishers. EU fishers, however, were exempt from the tariff.
The regulation was ambiguous in this case because it involved a joint fishing operation (with both EU and non-EU fishers). Specifically, the fish were actually netted by non-EU fishing vessels, but the fish were not taken out of the water until they were hauled onto British (EU) ships. Thus, the question was whether the fish were “taken from the sea” by the non-EU fishers or the EU vessels.
The British, who wanted to avoid the tariff, argued that “taken from the sea” means when the fish left the water, i.e., when they were hauled into the British/EU vessels. Thus, they were EU (tariff free) fish.
However, the German translation of the relevant phrase was “caught,” suggesting that the fish are non-EU because the non-EU fishers netted them.
The court had a number of options on how to handle the ambiguous regulation.
• Original Drafting Language. It could have relied on the meaning of the term “taken from the sea” based on the original language in which the regulation was drafted. That approach, however, would run counter to the EU’s policy that the law in every EU language was equally authoritative.
• Majority Languages Rule. It could have relied on the majority of languages that seem to tend towards one meaning. In this case, the French, Greek, Italian, and Dutch versions were similar to the English “taken from the sea” formulation, which would indicate that no tariff applied because the fish were literally “taken from the sea” when they were hauled onto the British vessels.
• Intent of the Law. It could look past the actual language of the regulation, and instead rely on the intent of the regulation. Here, the regulation intended to protect EU fisheries from non-EU competitors.
The court ultimately chose the third option. It avoided the language ambiguity altogether by finding that the EU’s effort to protect against non-EU competitors in the regulation warranted the tariff.
Professional Legal Translations Services Company – A Necessary Ally
In sum, not only is the British vessel case an informative example of the potential for ambiguity in the 23-language European Union, but this article puts a fine point on the necessity of high-quality legal translations in your company’s work.
At first blush, “taken from the sea” or even “No Vehicles in the Park” may seem pretty clear. But, the reality can often be far from clear when translating those phrases for practical use.
If you would like more information on how to employ the services of a professional legal translation service, we welcome you to contact All Language Alliance, Inc. We understand the complexity in legal translation work, and we can bring that experience and dedication to your organization.
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