1.1Legal terminology and the translation for normative purposes

If we have a look at where legal translation takes place, following Borja Albi and Prieto Ramos (2013)Borja Albi, Anabel and Fernando Prieto Ramos 2013 Legal Translation in Context: Professional Issues and Prospects, edited by Anabel Borja Albi and Fernando Prieto Ramos. Bern: Peter Lang. , we can identify three broad sectors, i.e. the private sector, national public institutions, and international organizations. This distinction also applies to Legal Translation Studies since research in this field usually revolves around one of these three sectors. For instance, a significant line of research concerns the translation of legislative texts within national borders, i.e. legal translation as performed in bi- or plurilingual or bi- or multi-juridical countries, such as Canada, Switzerland, and Hong Kong (see, among many others, Cao 2007Cao, Deborah 2007 Translating Law. Clevedon: Multilingual Matters. , 101–33; Megale 2008Megale, Fabrizio 2008 Teorie della Traduzione Giuridica: Fra Diritto Comparato e Translation Studies. Napoli: Editoriale scientifica., 37–60; Šarčević 1997Šarčević, Susan 1997 New Approach to Legal Translation. The Hague: Kluwer Law International., 14–15, 41–53). One of the main foci of this line of research is the production of “legal translations for normative purposes” (Cao 2007Cao, Deborah 2007 Translating Law. Clevedon: Multilingual Matters. , 10) or “instrumental translations” (Nord 1991Nord, Christiane 1991 Text Analysis in Translation. Theory, Methodology, and Didactic Application of a Model for Translation-Oriented Text Analysis. Text Analysis in Translation. Amsterdam: Rodopi., 80), which are translations meant to maintain the same function of the source texts. This area of research has not been of interest to translation scholars only, since the relationship between language and law, and thus the need for translation – especially in comparative law – has also attracted legal scholars’ attention (see, for instance, Pozzo 2015Pozzo, Barbara 2015 “Comparative Law and the New Frontiers of Legal Translation.” In Language and Culture in EU Law. Multidisciplinary Perspectives, edited by Susan Šarčević, 73–87. Farnham: Ashgate.; Sacco 1992Sacco, Rodolfo 1992 “La Traduzione Giuridica.” In Il Linguaggio del Diritto, edited by Uberto Scarpelli and Paolo Di Lucia, 475–490. Milano: Edizioni Universitarie di Lettere Economia Diritto., 2000Sacco, Rodolfo 2000 “Traduzione Giuridica.” In Digesto delle Discipline Privatistiche: Sezione Civile. Aggiornamento, 722–735. Torino: UTET.).

In the field of research related to legal translation in supranational organizations characterized by multilingualism, the main focus of attention has long been European Union institutions, which resulted not only in abundant literature (see, for instance, Biel 2007Biel, Łucja 2007 “Translation of Multilingual EU Legislation as a Sub-Genre of Legal Translation.” In Court Interpreting and Legal Translation in the Enlarged Europe, edited by Danuta Kierzkowska, 144–163. Warsaw: Translegis.; Caliendo, Di Martino, and Venuti 2005Caliendo, Giuditta, Gabriella Di Martino, and Marco Venuti 2005 “Language and Discourse Features of EU Secondary Legislation.” In Identity, Community, Discourse. English in Intercultural Settings, edited by Giuseppina Cortese and Anna Duszak, 381–404. Bern: Peter Lang.; Felici 2010Felici, Annarita 2010 “Translating EU Law: Legal Issues and Multiple Dynamics.” Perspectives: Studies in Translatology 18(2):95–108. ; Kjær 2015Kjær, Anne Lise 2015 “Theoretical Aspects of Legal Translation in the EU: The Paradoxical Relationship between Language, Translation and the Autonomy of EU Law.” In Language and Culture in EU Law. Multidisciplinary Perspectives, edited by Susan Šarčević, 91–107. Farnham: Ashgate.; Šarčević 2007Šarčević, Susan 2007 “Making Multilingualism Work in the Enlarged European Union.” In Language and the Law: International Outlooks, edited by Krzysztof Kredens and Stanisław Goźdź-Roszkowski, 35–56. Frankfurt am Mein: Peter Lang.; Sosoni and Biel 2018Sosoni, Vilelmini and Łucja Biel 2018 “EU Legal Culture and Translation.” International Journal of Language & Law 7:1–7. ), but also in a proposal to treat legal translation in the EU as a sub-genre of legal translation (Biel 2007Biel, Łucja 2007 “Translation of Multilingual EU Legislation as a Sub-Genre of Legal Translation.” In Court Interpreting and Legal Translation in the Enlarged Europe, edited by Danuta Kierzkowska, 144–163. Warsaw: Translegis.) or even a separate research field due to its unique nature (Kjær 2007Kjær, Anne Lise 2007 “Legal Translation in the European Union: A Research Field in Need of a New Approach.” In Language and the Law: International Outlooks, edited by Krzysztof Kredens and Stanisław Goźdź-Roszkowski, 69–95. Frankfurt am Mein: Peter Lang.). The increasing presence and impact of supranational organizations on national legal systems on the one hand and the creation of supranational, multilingual judicial systems on the other have led to major transformations in legal translation seen both as a process and as a product. Broadly speaking, like in the case of legal translation in bi- and multilingual national settings, the main concern in this area of research has been exploring how equivalence is established between texts written in the official languages of these organizations, and thus how ‘equally authentic texts’ are produced (Athanassious 2006Athanassious, Phoebus 2006 “The Application of Multilingualism in the European Union Context.” European Central Bank Legal Working Paper Series 2. https://​www​.ecb​.europa​.eu​/pub​/pdf​/scplps​/ecblwp2​.pdf, 9; Cao 2010Cao, Deborah 2010 “Judicial Interpretation of Bilingual and Multilingual Laws: A European and Hong Kong Comparison.” In Interpretation of Law in the Global World: From Particularism to a Universal Approach, edited by Joanna Jemielniak and Przemysław Miklaszewicz, 71–86. Berlin: Springer. , 73). This, again, necessarily involves an in-depth reflection on the terminology used in these texts, which must meet certain criteria, first of all convey legal notions that are embedded in the supranational legal system they refer to and avoid possible or unwanted relations with national legal systems (see, for example, Cosmai 2000Cosmai, Domenico 2000 “Il Linguaggio delle Istituzioni Comunitarie tra Creazione Terminologica e Resa Traduttiva.” RITT – Rivista Internazionale Di Tecnica Della Traduzione / International Journal of Translation 5:1–16.).

Within this strand of research, legal translation scholars have been mainly concerned with the analysis of supranational legislation (see Baaij 2010Baaij, Cornelis J. W. 2010 “Translation in EU Legislative Procedure: A Receiver-Oriented Approach.” In Researching Language and the Law: Textual Features and Translation Issues, edited by Davide Simone Giannoni and Celina Frade, 263–273. Bern: Peter Lang.; Biel 2007Biel, Łucja 2007 “Translation of Multilingual EU Legislation as a Sub-Genre of Legal Translation.” In Court Interpreting and Legal Translation in the Enlarged Europe, edited by Danuta Kierzkowska, 144–163. Warsaw: Translegis., 2014; Correia 2003Correia, Renato 2003 “Translation of EU Legal Texts.” In Crossing Barriers and Bridging Cultures. The Challenges of Multilingual Translation for the European Union, edited by Arturo Tosi, 38–66. Clevedon: Multilingual Matters.; Cosmai 2007Cosmai, Domenico 2007 Tradurre per l’Unione Europea. Prassi, Problemi e Prospettive del Multilinguismo Comunitario dopo l’Ampliamento a Est. 2nd ed. Milano: Hoepli.; Robertson 2014Robertson, Colin D. 2014 “EU Legislative Texts and Translation.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anna Wagner, 155–175. Farnham: Ashgate.), which also requires investigating the characteristics of supranational legal terminology (see, Bajčić 2010Bajčić, Martina 2010 “Challenges of Translating EU Terminology.” In Legal Discourse across Languages and Cultures, edited by Maurizio Gotti and Christopher Williams, 75–94. Bern: Peter Lang.; Biel 2014Biel, Łucja 2014 Lost in the Eurofog: The Textual Fit of Translated Law. Bern: Peter Lang. ; Peruzzo 2012Peruzzo, Katia 2012 “Secondary Term Formation within the EU: Term Transfer, Legal Transplant or Approximation of Member States’ Legal Systems?” JoSTrans – The Journal of Specialised Translation 18:175–86.; Šarčević 2015Šarčević, Susan 2015 “Basic Principles of Term Formation in the Multilingual and Multicultural Context of EU Law.” In Language and Culture in EU Law. Multidisciplinary Perspectives, edited by Susan Šarčević, 183–205. Farnham: Ashgate.; Šarčević and Čikara 2009Šarčević, Susan and Emilia Čikara 2009 “European vs. National Terminology in Croatian Legislation Transposing EU Directives.” In Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, edited by Susan Šarčević, 193–214. Zagreb: Globus.). Given the increasing role of international adjudication, it should come as no surprise that multilingualism and the need for translation at supranational courts have also attracted attention from both academics (legal translation and legal scholars) and practitioners (translators) (e.g., for the Court of Justice of the European Union, see Łachacz and Mańko 2013Łachacz, Olga and Rafał Mańko 2013 “Multilingualism at the Court of Justice of the European Union: Theoretical and Practical Aspects.” Studies in Logic, Grammar and Rhetoric 34(47):75–92. ; McAuliffe 2008McAuliffe, Karen 2008 “Enlargement at the European Court of Justice: Law, Language and Translation.” European Law Journal 14(6):806–818. , 2009McAuliffe, Karen 2009 “Translation at the Court of Justice of the European Communities.” In Translation Issues in Language and Law, edited by Frances Olsen, Alexander Lorz & Dieter Stein, 99–115. Basingstoke: Palgrave Macmillan. , 2011McAuliffe, Karen 2011 “Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union.” International Journal for the Semiotics of Law 24:97–115. ; Trklja 2018Trklja, Aleksandar 2018 “A Corpus Investigation of Translation-Generated Diversity in EU Case-Law.” In Institutional Translation for International Governance. Enhancing Quality in Multilingual Legal Communication, edited by Fernando Prieto Ramos, 156–170. London: Bloomsbury.; Wright 2018Wright, Susan 2018 “The Impact of Multilingualism on the Judgments of the EU Court of Justice.” In Institutional Translation for International Governance. Enhancing Quality in Multilingual Legal Communication, edited by Fernando Prieto Ramos, 141–156. London: Bloomsbury.); for the European Court of Human Rights, see Brannan 2013Brannan, James 2013 “Coming to Terms with the Supranational : Translating for the European Court of Human Rights.” International Journal for the Semiotics of Law 26:909–925. , 2018Brannan, James 2018 “Specificities of Translation at the European Court of Human Rights: Policy and Practice.” In Institutional Translation for International Governance. Enhancing Quality in Multilingual Legal Communication, edited by Fernando Prieto Ramos, 170–180. London: Bloomsbury.; Peruzzo 2019aPeruzzo, Katia 2019a National Law in Supranational Case-Law: A Linguistic Analysis of European Court of Human Rights Judgments in English. Trieste: EUT Edizioni Università di Trieste.; Weston 1988Weston, Martin 1988 “The Role of Translation at the European Court of Human Rights.” In Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J. Wiarda, edited by Franz Matscher and Herbert Petzold, 2nd ed., 679–689. Köln: Carl Heymanns Verlag., 1995Weston, Martin 1995 “Translating at the European Court of Human Rights.” Terminologie & Traduction 3:121–34., 2005Weston, Martin 2005 “Characteristics and Costraints of Producing Bilingual Judgments: The Example of the European Court of Human Rights.” In Jurilinguistique: Entre Langues et Droits / Jurilinguistics: Between Law and Language, edited by Jean-Claude Gémar and Nicholas Kasirer, 445–459. Montréal: Bruylant – Les éditions Thémis.). In addition to these mainstream studies, the terminology used by multilingual supranational organizations has also spurred some still relatively marginal but valuable research into another phenomenon related to the creation of multilingual legislation, namely the transposition of supranational legal acts into the national legislation of Member States (Biel and Doczekalska 2020Biel, Łucja and Agnieszka Doczekalska 2020 “How Do Supranational Terms Transfer into National Legal Systems? A Corpus-Informed Study of EU English Terminology in Consumer Protection Directives and UK, Irish and Maltese Transposing Acts.” Terminology 26(2):184–212. ; Ruiz-Cortés 2020Ruiz-Cortés, Elena 2020 “Legal-Linguistic Analysis of EU Law and Its Transpositions: A Useful Approach to Explore Harmonisation Problems?” Revista de Llengua i Dret/Journal of Language and Law 74:1–17. ; Temmerman 2018Temmerman, Rita 2018 “European Union Multilingual Primary Term Creation and the Impact of Its Neologisms on National Adaptations.” Parallèles 30(1):8–20. ), which involves intralinguistic rather than interlinguistic translation.

The main strands of research outlined above revolve around legislative and judicial texts that are supposed to maintain the same function in their translated versions. This is so because source and target texts are expected to be equivalent in order to produce the same legal effect, and thus the legal translation involved pursues a normative purpose. However, Legal Translation Studies have also directed attention to other types of translation which have an informative rather than normative purpose, i.e. those intended to provide information to the target readers without being legally binding (Cao 2007Cao, Deborah 2007 Translating Law. Clevedon: Multilingual Matters. , 11).

1.2Legal terminology and translation for informative purposes

While it is undeniable that legal translation for informative purposes has also been the subject of research interest, it is also true that the attention it has attracted is less copious than translation for normative purposes. In this regard, let us mention the second type of translation of domestic legislation considered by Cao (2007Cao, Deborah 2007 Translating Law. Clevedon: Multilingual Matters. , 101), i.e. translated legislation “found in any monolingual country where its laws are translated into a foreign language or languages for information purposes” (the first one being translation in bilingual or multilingual national jurisdictions). This type of legal translation is certainly recognized in the literature and required in the professional market, also due to the increasing interconnectedness of today’s world. Given the preeminent role of English in all fields of human endeavour, it should come as no surprise that English is pervasively present also in the translation of national legislation. Evidence for this can be found in websites containing collections of translated national legislation, which are frequently topic-specific.11.A rich list of databases containing legal materials translated into English is provided by the webpage Foreign and Comparative Law Basics: Translation of Hugh F. Macmillan Law Library, available at https://​guides​.libraries​.emory​.edu​/c​.php​?g​=1082987​&p​=7894383 (last access: 05/04/2021). One such example is Legislationline​.org,22.Available at https://​www​.legislationline​.org/ (last access: 02/04/2021). the free-of-charge database managed by the Office for Democratic Institutions and Human Rights (ODIHR) and created to assist the participating States of the Organization for Security and Co-operation in Europe (OSCE) in bringing their legislation into line with international human-rights standards, where the legislation relevant to ODIHR’s aim is mostly available in English. Another resource worth mentioning is Oxford Constitutions of the World,33.Available at https://​oxcon​.ouplaw​.com​/home​/OCW (last access: 02/04/2021). which contains “fully-translated English-language versions of all the world’s constitutions (both national and sub-national)”. Yet another example is the Guide to Law Online: Nations of the World 44.Available at https://​www​.loc​.gov​/law​/help​/guide​/nations​.php (last access: 05/04/2021). of the Law Library of Congress, which lists sources for national legislative material and specifies whether they are available or summarized in English. While these resources have a far-reaching scope, trying to cover as many countries as possible, there are also other, more limited resources, which nevertheless prove the importance of translating national legislation. One such example is Foreign Law Translations,55.Available at https://​law​.utexas​.edu​/transnational​/foreign​-law​-translations/ (last access: 05/04/2021). available on the website of the School of Law of the University of Texas at Austin, which gathers French, German, Austrian, and Israeli legal materials in the fields of constitutional, administrative, contract, and tort law.

An interesting fact about some of the translation-oriented legal resources just mentioned is that their developers are aware of the status of these translations, for which they clearly state that they are unofficial, or even that they “may not be reliable, and are rarely current”.66. https://​guides​.libraries​.emory​.edu​/c​.php​?g​=1082987​&p​=7894383 (last access: 05/04/2021). In some cases, they identify the end users they were developed for, with Legislationline​.org listing “law drafters, academic researchers, legal professionals, government officials, students, and legal specialists in international organizations”, and Foreign Law Translations mentioning “students and teachers interested in foreign law”. What is even more remarkable and interesting for the purposes of this chapter is that the latter webpage contains a disclaimer notifying the visitors that “[t]he translations have been made by various specialists in the field. There has been no attempt to create a uniform terminology or style throughout. In rendering the texts into English, the emphasis has been on readability, which means that the texts reproduced here could be described as ‘free’ translations”.77. https://​law​.utexas​.edu​/transnational​/foreign​-law​-translations​/copyright​.php (last access: 05/04/2021).

What emerges clearly from this brief and incomplete overview is that the demand for this type of translation exists and is addressed in a variety of ways and places, since “[s]ome translations of legal materials are available on foreign government sites, commercial databases, university websites, and foreign bar associations and law firms” (Flick 2021Flick, Amy 2021 “Foreign and Comparative Law Basics: Translation.” Hugh F. Macmillan Law Library 2021 https://​guides​.libraries​.emory​.edu​/c​.php​?g​=1082987​&p​=7894383). Both the compilers of these databases and the translators involved show awareness of the challenges posed by this type of translation, such as the need to make the target text readable and comprehensible, but also of the significant role of terminology. However, while the existence of this type of translation is undeniable and recognized in the literature (Cao 2007Cao, Deborah 2007 Translating Law. Clevedon: Multilingual Matters. ; Kocbek 2009Kocbek, Alenka 2009 “A Targeted Approach to Legal Translation.” In Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, edited by Susan Šarčević, 43–62. Zagreb: Globus.), the body of research in this field seems still relatively scarce (Brannan 2017Brannan, James 2017 “The Benefits and Challenges of Translating a Code of Criminal Procedure.” In The Italian Code of Criminal Procedure. Critical Essays and English Translation, edited by Mitja Gialuz, Luca Lupária and Federica Scarpa, 2nd ed., 97–112. Milano/Padova: Wolters Kluwer/CEDAM.; Frade 2014Frade, Celina 2014 “Translating Domestic Legislation: A Comparative Analysis of English Versions of Brazilian Law of Arbitration.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 209–222. Farnham: Ashgate., 2015Frade, Celina 2015 “Legal Translation in Brazil: An Entextualization Approach.” International Journal for the Semiotics of Law 28(1):107–24. ; Matulewska 2016Matulewska, Aleksandra 2016 “Walking on Thin Ice of Translation of Terminology in Legal Settings.” International Journal of Legal Discourse 1(1):65–85. , 2017Matulewska, Aleksandra 2017 “Communities of Message Senders and Recipients in Legal Settings and Their Communicative Needs. The Translator’s Perspective.” International Journal of Legal Discourse 2(1):29–46. ; Prieto Ramos 1998Prieto Ramos, Fernando 1998 “La Terminología Procesal en la Traducción de Citaciones Judiciales Españolas al Inglés.” Sendebar 9:115–35.; Scarpa, Peruzzo, and Pontrandolfo 2017Scarpa, Federica, Katia Peruzzo, and Gianluca Pontrandolfo 2017 “Methodological, Terminological and Phraseological Challenges in the Translation into English of the Italian Code of Criminal Procedure: What’s New in the Second Edition.” In The Italian Code of Criminal Procedure. Critical Essays and English Translation, edited by Mitja Gialuz, Luca Lupária and Federica Scarpa, 2nd ed., 57–95. Milano/Padova: Wolters Kluwer/CEDAM.; Takeda and Yasuhiro 2014Takeda, Kayoko and Sekine Yasuhiro 2014 “Translation of Japanese Laws and Regulations.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 223–236. Farnham: Ashgate.). For this reason, this chapter is meant to bring attention to the challenges posed by legal terminology when translating domestic legal material for a foreign audience, in particular legislation and case law, which in what follows are conceived as constraints to the translators’ and drafters’ work.

3.1Target audience

The main constraint that affects the dissemination of legal knowledge is the target audience, or rather the difficulty of defining the target audience. By way of simplification, depending on the text type and its function, national legal texts are usually written for a target audience capable of interpreting them correctly or at least having access to all the resources necessary to do so. When these legal texts cross national borders, identifying their interpretive community is all but an easy task. In fact, the audience addressed by these texts is highly undefined, making it almost impossible to profile the target reader. Broadly speaking, the target audience could be said to be made of readers who do not have direct access to the national legal system they are reading about in the language it is generally expressed in. But what else do translators, scholars, and drafters know about the readers?

If we take into consideration the translation of domestic legislation for informative purposes, we could say that the ideal reader is a lawyer with an interest in the legislation of that country. However, if the purpose of the translation is to reach an audience as wide as possible, unfortunately the profiling of the target reader cannot go much beyond this very basic information. Therefore, what happens is that the text is recontextualized in a context with blurred boundaries and a stock of vague references. This is so because meanings must be negotiated with a highly undefined target audience, whose language and reference legal system are difficult to foresee. While it is undeniable that “[f]ailure to adjust the target text to the communicative needs of translation recipients is a serious source of problems” (Matulewska 2016Matulewska, Aleksandra 2016 “Walking on Thin Ice of Translation of Terminology in Legal Settings.” International Journal of Legal Discourse 1(1):65–85. , 65), it is also true that adjusting to such communicative needs is only possible when the profile of the target audience is known. Therefore, not knowing who exactly the target readers are or what their reference legal systems and languages are means that what is generally advocated as the starting point for providing adequate translation solutions, i.e. the consistent use of the comparative method to solve problems of “inter-systemic incongruity” (Prieto Ramos 2021Prieto Ramos, Fernando 2021 “Translating Legal Terminology and Phraseology: Between Inter-Systemic Incongruity and Multilingual Harmonization.” Perspectives 29(2):175–183. ), has a limited application when translating or drafting for a heterogeneous international audience (see Sections 3.3 and 3.4).

3.2 Lingua franca

The second major constraint is closely linked to the target audience and consists in the need to resort to a language intended to serve as a lingua franca. Today, the lingua franca par excellence, also used as a target language in translation (Albl-Mikasa 2017Albl-Mikasa, Michaela 2017 “ELF and Translation/Interpreting.” In The Routledge Handbook of English as a Lingua Franca, edited by Jennifer Jenkins, Will Baker & Martin Dewey, 369–383. London: Routledge. ; House 2013House, Juliane 2013 “English as a Lingua Franca and Translation.” The Interpreter and Translator Trainer 7(2):279–98. , 2016House, Juliane 2016 “ELF and Translation.” In English as a Lingua Franca: Perspectives and Prospects. Contributions in Honour of Barbara Seidlhofer, edited by Marie-Luise Pitzl and Ruth Osimk-Teasdale, 187–192. Berlin: De Gruyter Mouton. ; Taviano 2010Taviano, Stefania 2010 Translating English as a Lingua Franca. Milano: Mondadori Education/Le Monnier.; Taviano 2018Taviano, Stefania 2018 “ELF as a Translational Lingua Franca: Reciprocal Influences between ELF and Translation.” Translator 24(3):249–262. ; Williams 2013Williams, Malcolm 2013 “Plain Language Translation: Principles and Techniques.” FORUM 11(2):201–230. ), is English. Yet, the reflections made here would apply to any other language used for this scope. If the purpose of the text is to allow access to legal knowledge embedded in a national legal system to a wide audience, and the characteristics such an audience, especially in terms of reference legal system, are impossible to foresee, then the lingua franca used should be devoid of references to legal systems other than the one being described – or at least try to avoid them as much as possible.

However, the choice of a lingua franca in general and English in particular does not necessarily result in a straightforward message for the target audience. Kocbek (2009Kocbek, Alenka 2009 “A Targeted Approach to Legal Translation.” In Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, edited by Susan Šarčević, 43–62. Zagreb: Globus., 54), for instance, warns that the choice of English as a lingua franca entails – on a lexical, or rather terminological level – “a risk of introducing concepts from the legal system underlying the lingua franca (in the case of English the Common Law), which are alien to the legal systems of the communicating parties and may as such prejudice communication”.

Although not relevant to the dissemination of legal knowledge through national legal terminology, it is important to notice that Kocbek (2009Kocbek, Alenka 2009 “A Targeted Approach to Legal Translation.” In Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, edited by Susan Šarčević, 43–62. Zagreb: Globus., 54) also mentions the “problems deriving from the discrepancy between the Common and Continental Law […] within the EU where English as the most widely adopted lingua franca […] is used to describe specific concepts of the European Law or of national legal systems pertaining to the continental legal family within the EU by using terms tainted by the meaning attributed to them within the Anglo-American legal system”. At the EU level, English is used as a de facto lingua franca but at the same time has the same legal status as any other official and working language of the EU.

In 2000, the relevance of language for ensuring that the legal acts drawn up by the European institutions are drafted clearly and precisely resulted in the publication of the Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation. This Guide establishes general principles that apply to drafting, and thus also to translation, but also sets out principles regulating the use of terminology, stating that “concepts or terminology specific to any national legal system are to be used with care” (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation. Luxembourg: Publications Office of the European Union. , 16) and that “[a]s regards legal terminology, terms which are too closely linked to a particular national legal system should be avoided” (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation. Luxembourg: Publications Office of the European Union. , 18). These principles, which apply to any language of the EU, are accompanied by another principle, according to which terms should be provided with a definition where there is a risk of ambiguity (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation. Luxembourg: Publications Office of the European Union. , 41). It follows that, despite the possible links of English with the Common Law tradition, the linguistic strategies put in place by the EU ensure that the risk of misinterpretation is kept at a minimum.

However, when using English as a lingua franca for the dissemination of domestic legal knowledge, considering on the one hand the variety of contexts in which this occurs (as mentioned above, in translated domestic legislation, academic literature, and international case law) and on the other the absence of a clear profile of the target audience, there is always a risk of creating undesirable associations and links to other legal systems when translating national legal terminology in the absence of guidelines comparable to those developed by the EU. Moreover, when national legal material is to be recontextualized in English, the very fact that numerous varieties of English exist makes it necessary to thoroughly evaluate which one is the most appropriate target language, as well illustrated by Chromá (2016Chromá, Marta 2016 “Traps of English as a Target Language in Legal Translation.” Comparative Legilinguistics: International Journal for Legal Communications 26:71–97. , 77–80). However, given the use of English as a lingua franca for a wide international audience, the answer is very likely to be a variety of English devoid of connections with any legal system, if any such variety really exists.

3.3Legal system of reference

As emerged clearly from the discussion above, the dissemination of legal knowledge relies on making national legal material available to a wide, undefined audience, in a language that serves as a lingua franca. What is important in this recontextualization process is to keep in mind, and make the target audience aware of, the fact that the legal system of reference remains the original domestic legal system, which is generally expressed in a language other than the lingua franca. In other words, the underlying legal conceptual system is one, but the languages used to express it are at least two, the original one and the one used to make the circulation of legal knowledge possible. This means that when the circulation of national legal knowledge is the aim (or one of the aims) of legal translation (also as part of a broader writing or drafting process), the national legal system is the focal point of this operation, which must be maintained and conveyed in the lingua franca, and thus represents a constraint for the translator or drafter involved in the operation.

3.4Comparative law methods

The need to express the legal knowledge embedded in a legal system in a language that functions as a lingua franca has repercussions on the application of comparative law methods in legal translation. Traditionally, legal translation scholars have seen these methods as highly desirable or even essential to solve practical translation issues, especially when it comes to dealing with legal terminology. However, comparative methods in Legal Translation Studies have found their most obvious application when the object of comparison is different national legal systems. For instance, in the comparative law field, Galdia (2003Galdia, Marcus 2003 “Comparative Law and Legal Translation.” The European Legal Forum/Forum Iuris Communis Europae 1:1–4., 3–4) states that “the structural feature common to legal translation – the absence of universally operative terms of reference […] – can be overcome only through the comparison of legal institutions on a case-by-case basis”. Galdia mentions the German Treuhand as a possible equivalent of the English trust, and thus his discussion revolves around the comparison of legal terms under different national legal systems. The same applies in Legal Translation Studies, and the title of Engberg’s paper “Comparative Law for Translation: The Key to Successful Mediation between Legal Systems” (2013Engberg, Jan 2013 “Comparative Law for Translation: The Key to Successful Mediation between Legal Systems.” In Legal Translation in Context. Professional Issues and Prospects, edited by Anabel Borja Albi and Fernando Prieto Ramos, 9–25. Bern: Peter Lang.) is particularly significant in this sense. Such an application of comparative law methods, however, is only possible when the type of legal translation involves a text produced in one national legal system to be translated into the language of another national legal system. In these cases, both the source and the target legal systems of reference are known to the translator, scholar, or drafter.

Comparative law has also been used in the production of multilingual law or the transposition of supranational law in national legal systems. If we take the creation of European Union multilingual law as an example, we can notice that comparative law is necessary in any harmonization attempt. However, the very nature of the EU on the one hand and the complexity of the linguistic regime adopted by it to guarantee, as much as possible, uniform interpretation on the other, have led to the publishing of the Joint Practical Guide mentioned in Section 3.2. Considering the harmonization policies of the EU and the need for legislative texts to avoid terms which are too closely linked to national legal systems, in this context comparative law is used during the creation of multilingual legislation in two ways, namely from a legal perspective, to compare national legal systems in view of creating harmonized supranational law, and, from a linguistic perspective, to avoid the use of terminology that is bound to a national legal system since the reference legal system is the European one, which is expressed in 24 official languages.

In the translation that allows for the dissemination of domestic legal knowledge among an international audience, the possibilities to apply comparative law methods are limited. In fact, the desire to reach a wide audience, and thus the impossibility to establish a detailed profile of the target reader (Section 3.1), combined with the use of a lingua franca ideally capable of maintaining the link with the national legal system (Section 3.2) and the impossibility to identify a reference legal system for the target audience (Section 3.3), means that comparative law methods have a very limited scope in this type of legal translation. Indeed, in the translation of national texts for informative purposes for broad international audiences, comparative law methods cannot be used to compare legal systems and find possible translation equivalents (e.g. functional equivalents) to include in the target text. In this sense, this type of legal translation is close to translation for multilingual law-making since it resorts to comparative methods to exclude translation equivalents in order to avoid ‘interference’. However, there are two fundamental differences between EU multilingual legislation and national legislative texts translated for informative purposes. The first lies in the legal effect of the final product. In multilingual legislation, the resulting linguistic versions are to be considered equivalent, which means that they are ideally meant to produce all the same legal effect. In the translation for disseminating legal knowledge, the resulting text has no legal effect at all. The second difference consists in the target audience. In EU law, the community of recipients is ideally made of EU citizens. This means that, when multilingual law is created, comparative law methods are applied to exclude cases of interference or overlapping with the legal systems of the Member States. This is not possible when national legislation is translated for informative purposes, since not knowing who the recipients are means not knowing what the legal system to be compared is.

3.5Intertextuality

Another constraint affecting the translation of national legal material and thus of system-bound terminology which seems to have gone unnoticed in the literature so far is intertextuality. Within any national legal system, a legislative or judicial text does not come out of the blue and is rather produced as part of a broader legislative or judicial ‘network’ of texts expressed in the same language as the new text. The texts that are part of this network are frequently recalled in all the texts examined above (legislation, academic literature, and international case law), either because this is functional to the discussion or because referencing is (almost) compulsory.

If we consider the texts used in the dissemination of domestic legal knowledge examined in this chapter, it is not difficult to recognize that the translation is selective in the sense that only a limited number of texts, or portions of texts, are actually translated, while the rest of the ‘network’ they may be part of or related to remain untranslated. This means that, although the source and the target text contain the same intertextual references, the untranslated texts remain inaccessible to the target audience. Example (3) from the English translation of the Italian Code of Criminal Procedure (Gialuz, Lupária, and Scarpa 2017Gialuz, Mitja, Luca Lupária, and Federica Scarpa eds. 2017 The Italian Code of Criminal Procedure. Critical Essays and English Translation. 2nd ed. Milano/Padova: Wolters Kluwer/CEDAM.) will help clarify this point:

Article 33-bis lists the offences that are assigned to the collegial Tribunal. However, instead of identifying the offences by means of terminology (e.g. murder, blackmail, etc.), the Code frequently refers to the legislative act containing the terms and the statutory definitions of such offences. Therefore, this Article refers to a variety of legislative acts, such as the Italian Civil Code or royal and presidential decrees. While in some cases at least the field can be identified (e.g. bankruptcy), in other cases the reader is left totally adrift, since very often the legislative acts mentioned are not translated and are therefore of no help for understanding the legal qualification of offences. Therefore, although some national legal material is translated, what remains untranslated in the target language may impede the effective dissemination of legal knowledge and the circulation of the relevant legal terminology.

3.6Type of publication

The fact that only selected domestic legal material is translated and that the translations are produced by a variety of different text producers (e.g. public bodies, academics, or commercial publishing houses) also means that these translations tend to be scattered over a wide range of books, periodicals, and online repositories. This, in turn, means that for translators, scholars, and drafters it is almost impossible to keep track of all the existing translations, which may otherwise be useful in the translation, writing or drafting process, especially if an attempt at ensuring a certain degree of consistency in the translation of national legal terminology is pursued.

3.7Editorial policies and linguistic precedent

As seen above, the dissemination of legal knowledge beyond the boundaries of a national legal system is possible through different forms of overt or covert translation in various text types. Such a variety of text types inevitably corresponds to a variety of text producers (translators, scholars, or drafters), who may be more or less free to choose a certain strategy as regards the translation of national legal terminology or may be subject to editorial policies limiting their freedom of choice.

The texts presented above as examples of texts allowing for the circulation of national legal knowledge (the Italian CCP, the Global Review, and ECtHR judgments) are used here to illustrate different degrees of freedom of choice in terms of translation strategies and techniques applied to system-bound terminology, although they are not to be taken as representative of the whole category they belong to (translated domestic legislation, academic literature, and international case law). The team involved in the translation of the Italian CCP (Peruzzo 2015Peruzzo, Katia 2015 “Disseminating National Legal Knowledge via European English: The Translation of the Italian Code of Criminal Procedure.” Textus 2:163–80.; Scarpa, Peruzzo, and Pontrandolfo 2017Scarpa, Federica, Katia Peruzzo, and Gianluca Pontrandolfo 2017 “Methodological, Terminological and Phraseological Challenges in the Translation into English of the Italian Code of Criminal Procedure: What’s New in the Second Edition.” In The Italian Code of Criminal Procedure. Critical Essays and English Translation, edited by Mitja Gialuz, Luca Lupária and Federica Scarpa, 2nd ed., 57–95. Milano/Padova: Wolters Kluwer/CEDAM.), for instance, decided to avoid borrowings and preferred the creation of neologisms through secondary term formation (most often by means of calques) and sometimes the use of Latinisms. Although, obviously enough, in the paper by Faraguna et al. (2020)Faraguna, Pietro, Michele Massa, Diletta Tega, and Marta Cartabia 2020 “Italy.” In 2019 Global Review of Constitutional Law, edited by Richard Albert, David Landau, Pietro Faraguna & Šimon Drugda, 198–202. I-CONnect and the Clough Center for the Study of Constitutional Democracy at Boston College. published in the Global Review no mention is made of the translation strategy adopted in the writing process, in this case a preference is shown for avoiding both borrowings and Latinisms, with national terminology being recreated in English through calques.

Conversely, a study on ECtHR judgments involving Italy as the respondent State (Peruzzo 2019bPeruzzo, Katia 2019b “When International Case-Law Meets National Law. A Corpus-Based Study on Italian System-bound Loan Words in ECtHR Judgments.” Translation Spaces 8(1):12–38. ) revealed that borrowings are one of the possible ways to refer to Italian national system-bound elements in portions of texts obtained by means of either overt or covert translation. However, any choice made in the translation process at the ECtHR must be carefully pondered, since the Court needs its decisions to be consistent, and thus uses such a language that allows a consistent interpretation of its case law. This means that any segment of an ECtHR judgment may constitute a “linguistic precedent” (Brannan 2013Brannan, James 2013 “Coming to Terms with the Supranational : Translating for the European Court of Human Rights.” International Journal for the Semiotics of Law 26:909–925. , 917ff.; 2018Brannan, James 2018 “Specificities of Translation at the European Court of Human Rights: Policy and Practice.” In Institutional Translation for International Governance. Enhancing Quality in Multilingual Legal Communication, edited by Fernando Prieto Ramos, 170–180. London: Bloomsbury., 178ff.; Weston 1988Weston, Martin 1988 “The Role of Translation at the European Court of Human Rights.” In Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J. Wiarda, edited by Franz Matscher and Herbert Petzold, 2nd ed., 679–689. Köln: Carl Heymanns Verlag., 687), which is a portion of text from previous judgments used in later judgments. Therefore, any decision related to the translation of national legal terminology may have an impact on the future formulation or translation of ECtHR case law.

The space available does not allow for an in-depth discussion of the possible solutions, in terms of translation strategies and techniques, to overcome the constraints described in this chapter. Suffice it to say that the translators’ choices may lead to different results depending on the premises of the decision-making process and the legal system(s) involved even in translation projects that are very similar. For instance, if we compare the techniques adopted in the translation of the Italian CCP mentioned above and the English translation of the Hungarian Civil Code of 2013 (Fuglinszky and Somssich 2020Fuglinszky, Ádám and Réka Somssich 2020 “Language-bound Terms – Term-bound Languages: The Difficulties of Translating a National Civil Code into a Lingua Franca.” International Journal for the Semiotics of Law 33:749–770. ), we can notice that in both cases borrowings were avoided to facilitate understanding and neologisms were created to prevent misleading impressions of similarity between the target readers’ legal system and the legal system of the source text. However, Latinisms were only used in the translation of the Italian CCP as translation equivalents of Italian terms (and phrasemes), while functional equivalents were used with a higher frequency in the Hungarian Code especially when the national concepts referred to were the result of legal transplants of common law concepts.