The quantity of legal texts in need of translation in Hungary has increased sub
stantially since the mid-1980s, due to the development of the country’s new politi
cal and economic institutional systems. Those charged with drafting new statutes first wished to familiarise themselves with a broad range of international models, and since the Hungarian legal system was most similar to the German even then, understandably they wished to familiarise themselves with the body of German regulations in particular fields of law. Numerous translators were thus employed in translating various German statutes into Hungarian. Once draft legislation conse
quently emerged in Hungarian, the drafts in turn often had to be translated into foreign languages, including German, for those who had prepared them sought the opinions of international experts.
The future holds out the prospect of ever-more legal texts to be translated. In
deed, the process of legal harmonisation will come to the forefront once those in
stitutions have emerged which are inherent to a state governed by the rule of law, and it is via this process that Hungary aims to prepare itself for European Union membership. A recent case in point of just such a phenomenon as can be expected in Hungary is Finland, whose translators have remarked repeatedly at internation
al conferences and forums that the quantity of material to be translated has grown enormously since their country’s recent admittance into the EU. Further, the Finnish experience is especially apt for translators in Hungary not least also be
cause Finnish is the first official EU language which is not Indo-European.
I, too, have translated numerous German statutes into Hungarian, and a num
ber of Hungarian draft statutes into German. In the course of this work several practical problems arose concerning the translation of legal texts, and it seemed that familiarity with ‘translation theory’ could help translators clarify, if not solve, such problems. Since practising translators more often than not rebuke the very notion that ‘translation theory’ might help them in their work, both the systematic delineation of the practical problems encountered in legal translation, and devel
opment of advanced training in legal translation along these lines, could be instru
mental factors in bridging the gap between theory and practice — and this gap is today yet rather wide.
Before turning to the problems of translation, some theoretical issues must be raised independent of the immediate issue of translation. Legal discourse belongs to the realm of technical language (referred to also as ‘language for special purpos
es’, or LSP), whose prime aim is necessarily to record and convey the various ele
ments of academic and professional knowledge. LSPs are thus characterised chiefly
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by a precise, economical, and easily manageable manner of expression. (Pluck 1991: 34-35) They can, however, become an impediment to effective communica
tion in and of themselves when that which they express or help express is addressed to a broad audience, as is often the case with legal discourse. Thus it is no surprise that the most persistent critics of legal discourse are those engaged inthe field of social thought, who naturally object to the fact that statutes and related implemen
tation decrees are often worded so abstractly that the audience in the broadest sense - the general public, that is - simply does not understand what they are about. Most individuals are therefore compelled to consult lawyers to understand and interpret given texts. (Pluck 1991: 40). Indeed, statutes must invariably be interpreted by experts, for so often in practice, texts worded at a relatively high level of abstrac
tion must be applied to concrete circumstances.
Since the law - which, unlike the subjects of other technical languages, exists only as a linguistic phenomenon - affects all, even those who do not comprehend it or are unable to do so, it is inevitably a matter of general discussion. A broad range of legal terms are used in everyday discourse, where, however, their meaning tends to be diluted. Indeed, it is precisely legal discourse whose terms are most often used inappropriately in everyday discourse, for their meaning is ambiguous in many instances. Any number of words might be pointed to by way of example, such as
‘law’, ‘decree’, ‘stipulation’, ‘jurisdiction’, and ‘competency’; and, further, ‘settle
ment’, ‘municipality’, ‘city’, and ‘local government’. All convey different meanings but are often used as synonyms as well. Indeed, problems emerge in the fact that even lawyers themselves do not always abide by the technical meaning when using the above-mentioned terms. All one need do is look up such words as ‘contract,’
‘agreement’, ‘statute’, ‘source of law’, and ‘law’ in a single-language dictionary, and it is clear their meaning nearly always depends on context.
A cardinal issue concerning technical discourse, then, is just who is communi
cating with whom. Three scenarios may be distinguished in this light:
1. expert addressing expert 2. expert addressing non-expert 3. non-expert addressing non-expert
Law is by all means among those fields where all three scenarios occur with great frequency. Legal texts are generally not audience-oriented, which is to say that they do not take into account the background knowledge, familiarity with pre
vailing conditions, and presuppositions of the audience.
Legal discourse thus raises numerous inter-linguistic problems as well which can not be overlooked in the course of translation. It would be a mistake, however, to suppose that all such problems related to legal discourse are essentially transla
tion-related and must therefore be solved by the translator. Demarcating the two problem categories is nonetheless by all means a useful exercise for the translator.
The first, and simultaneously biggest problem encountered in translating legal texts is that in such discourse, similar to that of the social sciences, the terms used are often ambiguous in and of themselves.
As seen by Carballal, law and language are so intertwined that the translation of legal texts is in the most direct meaning of the term an interdisciplinary process, one
which must integrate the assets of both linguistics and jurisprudence (Carballal 1988: 447).
Rayar asserts that legal translation does not entail the translator transferring the given legal text into the legal system of the target language, but simply giving birth to the text in another language. Translators who only utilise the terminology of the recipient legal system - of the target language, that is - do not in fact refer to the appropriate system; and this inevitably stands to confuse readers, who are com
pelled to approach via their own legal system a text not necessarily in accord with that system. (Rayar 1988: 452).
Rainer Arntz observes, meanwhile, that the various technical languages seg
ment reality in various ways, so that even when translating texts concerning tech
nological sciences, for example, it is difficult to find unequivocal points of corre
spondence between particular terms. In the case of law, moreover, not even the background reality is the same, for particular legal systems differ markedly from one another. The development of legal terminology that corresponds from one lan
guage to another is thus by no means exclusively a linguistic task, but simultane
ously presumes delving into the reaches of comparative law (Arntz 1994: 242). In consequence of globalisation, ever-more lawyers have been compelled to famil
iarise themselves with foreign legal systems, which in turn likewise compels them to learn the ‘technical discourse’ of other legal systems.
It is apparent that the target orientation of translation is especially valid as re
gards the translation of legal texts. The determining factor in translation is the sco
pes defined by H.J. Vermeer, or rather, the communicative function of the target- language text in the target-language culture. Indeed, Vermeer speaks of nothing less than the ‘dethronement’ of the source-language text, regarding it as no more than a tool for the creation of the target-language text. The ‘scopos theory’ in fact largely supersedes the concept of equivalency, which translation theory has gradu
ally turned away from in recent times. At the same time, however, Snell-Hornby allows certain concessions for equivalency, while still rejecting it as the fundamen
tal concept of translation theory; that is, she continues to uphold the validity of the equivalency concept at the level of terminology and nomenclature (Snell-Hornby 1988: 106).
J.C. Sager has defined five objectives as regards texts subject to translation, based on the type of text, or more precisely, the communication context. They are as follows: social, informative, directive, discursive, and evaluative. Their orienta
tion varies, with the social objective being generally situation-oriented and the in
formation objective rather theme-oriented, with the author, the reader, and the sit
uation tending to be only secondary. Sager’s grouping also allows, however, for source and target-language texts to pursue different objectives. In the case of laws, for example, the source-language text has a directive function with respect to the source-language audience, whereas its function as regards the target-language au
dience is rather informative in nature (Sager 1993: 68).
Legal texts subject to translation may be categorised in the following manner:
(1) Statutes (e.g., constitutions, laws, decrees), whose source-language texts are primarily directive and whose target-language texts are informative. The translation of the Hungarian Constitution into a foreign language, for ex
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ample, serves solely an informative function in the given language and in no way qualifies as a valid legal text.
(2) International and particularly bilateral treaties and agreements, in which case both source and target-language texts are binding upon the audiences. Of
ten the two texts are articulated simultaneously, so there is in fact no point to differentiating between the source and target-language texts. A good ex
ample is the European Union, which drafts statutes binding upon member states in all twelve official languages and working languages. Article 4, Regulation No 1 of 1958 of the Council of Ministers, the Union’s language charter, states the following: “Regulations and other documents of general application shall be drafted in the twelve official languages.” The decree therefore does not even use the word ‘translation’, nor does it differentiate between source and target-language texts, thus rendering impertinent the widely held view, subscribed to particularly by lawyers, that translations are inferior tothe originals. In practice, however, the EU texts are drafted in the two most widely used working languages - English and French, that is - and are translated to the other official languages.
(3) General texts in the field of jurisprudence which examine the elements of a particular national legal system from a broad perspective, on a high level of abstraction, or by comparing them to other legal systems.
Taking these categories into consideration, translators of legal texts must aim primarily toward situational adequacy or equivalency, so that target-language texts are unequivocal in meaning given the prevailing context, taking into account the background knowledge target-language readers are likely to have regarding the source-language legal system, thus eliminating potential misunderstandings from the start, if needed by way of explanations.
The translator must be familiar with both the source and target-language legal systems, able to compare them and thus discern which differences are relevant from the perspective of translation. In comparing the German and Hungarian le
gal systems, for example, it must invariably be taken into account that Germany is a federal state whereas Hungary is not. This difference is reflected on numerous fronts in the two countries’ legal systems. The expression ‘Bundesland’ itself clearly signifies the problem. The long in-use corresponding term in Hungarian, ‘szövetsé
gi tartomány’ (federal province) conceals precisely the essence of the source-lan
guage term, for ‘szövetségi állam’ (federal state) would much better convey the con
tent of Germany’s federal system. The Hungarian term refers more to a centralised state system, yet it is this which has come into general use nonetheless. Thus in us
ing this term Hungarian usage refers to its own legal system as a basis, wanting to embed into it something which does not belong there.
Translators must be familiar with the textual conventions and routine expres
sions of both target and source-language legal texts; that is to say, how the given body of law stipulates, prohibits, and restricts, as well as its approach in meting out punishment. One key question involves deciding just what it is translators can car
ry over from target-language textual conventions into translations - that is, when do translators arrive at the point where their efforts to this end in fact markedly impact or even distort the message contained in the source-language text? Indeed,
target-language readers can more readily identify with the text when translators have utilised the appropriate textual conventions, for these meet the readers’ ex
pectations. If, however, this works too well, perhaps it clouds the distinction be
tween the two legal systems, and target-language readers are not as conscious as they might be that they are dealing with another legal system, one whose detailed workings they are in fact yet unfamiliar with; the consequence being that they in
evitably interpret the text by way of their own legal system. They will not strive to acquire further knowledge of the source-language legal system, for they will not have been impressed with the necessity to do so.
In numerous Hungarian decrees one encounters the following words, for exam
ple: “Hajogszabály eltérően nem rendelkezik,...” (When a statute does not provide otherwise . . . ). This much qualifies as a textual convention translators can utilise without qualms when they encounter the German expression “Wenn das Gesetz nichts anderes bestimmt... ”This does mean, however, that jogszabály3 and fGesetz3
are mutually interchangeable. In Hungarian the word jogszabály3 (statute) is an umbrella expression referring collectively to both laws and decrees. In comparing German and Hungarian legal texts it is often conspicuously clear that in Hunga
rian the word jogszabály3 occurs frequently, whereas in German the expressions
‘RechtsregeV (legal rule) and ‘Rechtsnorm3 (legal norm) are rather rare. This is ex
plained by the fact that in German rGesetz3 refers on the one hand to a statute in a broad sense - that is, encompassing Jormelles Gesetz’, ‘Rechtsverordnung3, and
‘Satzung3. Its other meaning is restricted to Jormelles Gesetz3, which corresponds to the Hungarian ‘törvény3 (law). To determine just when to translate the German
‘Gesetz3 into Hungarian as ‘törvény3 or ‘jogszabály3, however, requires a degree of familiarity with the law. One must be familiar with the regulatory background - in other words, the hierarchy of statutes - of the given field. And this can not always be ascertained from the context. Translators must therefore partake in a certain degree of comparative law. In the same manner the German ‘Gesetzgeber3 is in cer
tain cases suitably translated into Hungarian as jogalkotó’, which embraces the drafting of decrees as well as laws; whereas in other instances it is translated as
‘törvényhozó3 (lawmaker or legislator), although Hungarian legal discourse favours the use of ‘törvényhozás3 (lawmaking or legislation). The above-mentioned terms
‘Rechstverordnung3 and ‘Satzung3 both refer to decrees, although the latter, ‘Sat
zung3 ^ refers specifically to a municipal decree which addresses an issue left unreg
ulated by a higher-level statute. The determination of when to translate the Hun
garian term ‘rendelet3 (decree) as ‘Satzung3 and when as ‘Verordnung3 is likewise not always discernible from the context, thus presuming a broader familiarity with the target-language legal system.
Good examples may also be drawn from legal texts dealing with self-govern
ments. Article 1 (1) of the Hungarian law regulating local self-governments begins as follows: “A község, a város, a főváros és kerületei, valamint a megye önkormányzata (a továbbiakban: helyi önkormányzat) ... ” [The self-governments of municipalities, cities, the capital city and its districts, as well as of counties (hereinafter: local gov
ernments) . . .] Its official German translation is the following: “Die Selbstverwal- tung dér Gemeinde, dér Stadt, dér Hauptstadt und ihrer Stadtbezirke sozvie des Komitats (im weiteren: örtliche Selbstveruoaltung) ..."Article 6 (1) starts as follows: “A köz
ségnek, városnak, fővárosnak és kerületeinek (továbbiakban települési önkormányzat) a
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megyei önkormányzatnak egymástól eltérő feladat- és hatáskörei lehetnek: ... ” [The self-governments of municipalities, cities, the capital city and its districts (here
inafter local governments), as well as of counties may have deviating tasks and ju
risdictions: ...] Its official German translation reads: “Die Selbstverwaltung der Gemeinde, der Stadt, der Hauptstadt und ihrer Stadtbezirke (im weiteren: Siedlungs-selbstverwaltungen)sowie desKomitats könnenvoneinanderabweichendeAufgaben-und Kompetenzbereiche habén: ...” The following assertions can be drawn from these two texts: (1) a city is not a municipality; (2) municipalities (Hungarian: község,
‘community’ or ‘municipality’), cities, the capital city and its districts are classified as municipalities (Hungarian: települési or ‘settlement’); (3) county governments are classified as local, but not municipal, governments (helyi as opposed to
települési önkormányzat).
Compare this to the self-government law of Bavaria, in which Article 1 includes the following: “Die Gemeinden sind ursprüngliche Gebietskörperschaften mit dem Recht, die örtlichen Angelegenheiten im Rahmen der Gesetze zu ordnen ...” [Municipalities are the most basic (ursprüngliche, original) of self-governments, entitled to manage
{ordnen, arrange) local affairs in the framework of the law {der Gesetze) ...] Article 3, meanwhile, begins in the following manner: ‘Stádte und Markte heifien die Ge
meinden, die diese Bezeichnung nach bisherigem Recht führen ...” (Those municipali
ties are to be called cities and market-towns which have been previously denoted as such under law ...).
The self-government law of Baden-Württemberg begins as such: C§1 (1) Die Gemeinde ist Grundlage und Glied das demokratischen Staates ... (4) Die Gemeinde ist Gebietskörperschaft” (The municipality is a fundamental element and building block of a democratic state ... A municipality is a self-government”) It follows from the German examples that every ‘Stadt’ (city) is also a ‘Gemeinde’ (munici
pality). The German translation of the Hungarian law can therefore mislead the German reader, who uses the term ‘Gemeinde’ in a much more general sense, vir
tually equating it with the self-government itself - that is, the German ‘Gemein-derat’ corresponds to the Hungarian ‘községi tanács’ (municipal council) or ‘önkor mányzati képviselő testület’ (body of self-government representatives).
Translators can thus avert potential misunderstandings only by affixing explana
tory footnotes to the translated statute in accord with the background knowledge and presuppositions of the target audience. This is not by all means necessary when the audience comprises experienced specialists in comparative law; for in this case a consistent use of terminology is sufficient to assure that they discern and come to understand the relevant differences between the two systems. On the other hand, it is less certain that the relatively inexperienced, novice mayor of a small municipality, who is probably not a lawyer, is capable of carrying out the same mental ‘transaction’ from either Hungarian to German or vice-versa. If the given translation is intended for such an audience, numerous explanatory foot
tory footnotes to the translated statute in accord with the background knowledge and presuppositions of the target audience. This is not by all means necessary when the audience comprises experienced specialists in comparative law; for in this case a consistent use of terminology is sufficient to assure that they discern and come to understand the relevant differences between the two systems. On the other hand, it is less certain that the relatively inexperienced, novice mayor of a small municipality, who is probably not a lawyer, is capable of carrying out the same mental ‘transaction’ from either Hungarian to German or vice-versa. If the given translation is intended for such an audience, numerous explanatory foot