|Trans||Internet-Zeitschrift für Kulturwissenschaften||16. Nr.||April 2006|
Diana Yankova (Applied Linguistics Department, New Bulgarian University, Sofia)
"There is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative, and so forth"
Jacques Derrida, Forces of Law: The Mystical Foundation of Authority, 1992
Against the background of current developments of unified and unifying Europe we are witnessing the creation of texts "produced in a supranational multicultural discourse community where there is no linguistically neutral ground" (Trosborg 1997). The ongoing harmonization of legislation within Europe entails the translation of primary and secondary EU legal instruments in the now 21 official languages within the European Union. The languages used to describe this new legal order are free from the traditions of and are not constrained by the legal language of the individual member states.
Undoubtedly this process has become one of the key factors in shaping and remodeling each nation’s cultural, social, legal identity. The presentation will consider issues stemming from the correlation of form and function with social practices within the paradigm of Critical Discourse (CD) analysis and Systemic functional linguistics. It will follow Fairclough’s approach to textual processes which are combined with the study of political and ideological change. It will attempt to demonstrate how the translation of EU legislation discourse molds and is molded by social, cultural, political, and economic contexts. The analysis is based on the translation of 120 pages of EU directives from English into Bulgarian.
Any type of discourse operates with the interaction of linguistic forms and social meanings, or with linguistic choice and its interpretation in context. Linguistic choices and textual strategies employed are contingent on the context of situation, including the power relations between text producer and text recipient. One of the claims of Critical Discourse analysts is that social identities are manifested in distinctive discourse features such as the thematic and informational organization of discourse, modality, clause structure, presuppositions, etc.
For Kress (1985) discourses are "systemically organized sets of statements which give expression to the meanings and values of institutions". Fairclough (1995a) considers discourse as "language as social practice determined by social structures". Discourse moulds social structures and is shaped by them, it is determined by sets of conventions associated with social institutions. Analysis of any interaction entails the inquiry of each of the three dimensions of discourse: "social practice, discourse practice (text production, distribution and consumption), and text" (Fairclough 1995b:74). In this approach, a text analysis investigates the systems of knowledge and belief and social relations and identities in texts, or the ideational and interpersonal function as expounded by systemic functional linguistics. What is of importance also is not simply what is present in texts, but also what is absent that builds towards representations of social practices, constructions of writer and reader identities and relationship.
One important aspect in discussing discourse and social power within the framework of Critical Discourse analysis is access to discourse. Through control over public communication "the knowledge, attitudes, norms, values and ideologies of recipients are - more or less indirectly - affected in the interest of the dominant group" (van Dijk 1996:85). Therefore, the scrutiny of patterns of discursive access will reveal the expression of power relations and the way they influence discourse production and reception.
Studying the meaning encoded in language entails looking into the correlation of text and text producers. The knowledge that speakers need in order to function as members of their society is their culture, which may differ in meanings even for speakers of the same language because of differences in culture.
The Hong Kong Special Administrative Region of the People’s Republic of China (among a few others) merges the English common law system and the Chinese civil law legal system resulting in the formula ‘one country, two systems’. Supranational law, on the other hand, presents a remarkable experiment in legal structure and formation and cultural configuration displaying the pattern ‘many countries, one system’. Community law is a prime example of supranational law and given the now 21 official languages presents quite an idiosyncratic legal, linguistic, social, cultural setting. The Acquis communautaire or the collection of EU legislation encompasses primary legislation (the Treaties), secondary legislation (deriving from the Treaties) and case law. There are five types of secondary EU instruments: regulation, directive, decision, recommendation, and opinion, of which the first two are the most important and most recurrent. It is essential for the translator to be aware of the parts that compose each instrument, the functions it performs and whether and to what extent it is binding.
What are some of the characteristics of the specific EU context and how do they shape the linguistic and cognitive structure of the produced texts? The distinctive nature of the EU setting lies in the fact that a Member State translates and incorporates Community legislation into its own national law and language, whereas in traditional cases nations draft their own laws, rather than adopt them from outside.
The supranational environment in which EU legal instruments are drafted and the absence of a single culture are defining features of this setting. EU’s multilingualism is a challenge for the translation of legislative texts since the legal systems are not comparable. Terms that are used in one Member State sometimes cannot be easily rendered into the languages of another (e.g. summary judgement in English law is non-existent in the German legal system). Other realities that bear upon the way texts are shaped are the recommendations of the ‘fight the fog’ campaign, the non-binding observance of age-long linguistic and legal traditions (as is the case in Britain for instance), the equal footing of all the official languages, the aspiration to draft legislation that will be comprehensible to the public at large and that can easily be translated into different languages, the fact that sometimes legislation in English is drafted by non-native speakers. Supranational and multilingual are the two most salient features of Community law. At least in theory.
In practice, some languages like Greek or Danish hardly ever function as source languages. Most documents are drafted in French, German, English or Spanish (cf. Robertson 2001:699, Trosborg 1997:150) with a marked predominance of English. The English text of a document is often used for negotiations between delegations and in the accession procedures with non-member countries. According to a 2001 public opinion survey in the then 15 Member States, conducted by INRA-Europe, although the proportion of EU population with English as a mother tongue is only 16% (24% for German) the total proportion of the population speaking this language both as mother and non-mother tongue is 47% (32% for German), making it the most widely used language in the European Union. Data for the new Member States are not yet available but I would venture to suggest that with the 2004 accession of Poland, Hungary, the Czech Republic, Estonia and Finland, German will rise in importance although English is likely to remain the most widely-spoken language within Europe. This is also in keeping with the worldwide tendency to employ English as the lingua franca in international communication.
Notwithstanding the existing linguistic diversity, the working groups which try to institute a common European legal framework chose English as the language of communication. From a practical point of view, this precludes the necessity to elaborate a uniform terminology in each language and facilitates concentrating more on the legal issues to be tackled. Concurrently, it aggravates potential language problems since English legal language is closely related to English legal concepts, which can sometimes depart significantly from civil law notions.
EU citizens that speak regional languages like Catalan (an estimated 4.5 mother tongue speakers in Spain, France and Andorra) or Saami, for instance, do not enjoy the same linguistic rights as those speaking the national languages of the Member States. More people speak Catalan than those who speak the official languages Swedish, Portuguese, Greek, Danish and Finnish (Forrest 1998). Jacques Delors (The Economist, April 11, 1992:32), among other EU officials, has expressed concern about the feasibility of maintaining language equality in an expanded and expanding European Union. Furthermore, at its 2667th meeting on 13 June 2005 in Luxembourg the Council of the European Union decided to amend the 1958 Regulation No 1 to grant Irish full status as official and working language and authorized the limited use at official EU level of languages recognized by member States other than the official languages.
The implications of this supranational, multilingual, multicultural context on professional interaction within EU institutions and more specifically on the communicative situation are manifold and equivocal. The principal purpose of the huge EU translation service is to safeguard the equal footing of all official languages, thus, multilingualism is, at least in theory, one of the main features of the European Union. Council Regulation No 1 (art. 2 and 3) provides that every EU citizen has the right to address and be addressed in his or her own national languages. When this Regulation was drafted, there were only four official languages and the present situation of 21 official and working languages was hardly foreseen. There is, in fact, a vicious circle - an enormous translation machinery which might soon become unmanageable in terms of efficiency and costs and the 'illusion' that all official languages have an equal standing.
Now let us consider some features of the genre of legislation from the point of view of the communicative situation:
Concerning addressees in the communication process, translation theorists have always pointed out that recipients of the source text are not the same as those of the translated text. Sager (1997:28) talks of primary and secondary readership, stating that "most readers of translations are secondary readers". Bhatia (1997:206) claims that "a newspaper report, when translated into Danish, should preserve all or at least the representative generic features of news reports in the Danish version". I would venture to suggest that this might not apply to EU legislation. Owing to recent socio-economic and political developments in Europe in the past several years, some of the variables in the communicative situation have undergone significant changes. The concepts of primary and secondary recipients of a text have become rather fuzzy. EU legislation is drawn up in all the official languages of the Community. There is hardly any division between primary and secondary readership. EU legislation covers the same issues and fulfills the same function. The concepts of source and target language are also on their way of becoming obsolete in the above context.
The analysis is based on 120 pages of EU directives (Council Directives 91/250/EEC, 92/100/EEC, 93/83/EEC, 93/98/EEC, 96/9/EC) on intellectual property, copyright and related rights and their respective translations from English into Bulgarian. Source texts and translations were examined as regards translation shifts on different discourse levels.
As well as being faithful to the content of the message, the translator of legislation strives to avoid any possible misinterpretation of the legal definitions by rendering the intention of the drafter as closely as possible. Depending on the type of translation, different factors become more important. When translating EU legislative acts, as is the case with most directive and instructional texts, the intention of the drafter is of utmost importance; thus the pragmatic aspect should be preserved.
EU directives are one of the means for achieving the aims and purposes of the European Community and can be considered European internationally binding instruments for the harmonization of legislation in a certain sphere, in this case intellectual property, copyright and related rights. The Directives are binding on all Member Sates who have the discretion to decide how to incorporate them in the respective national legislation. Non-Member States seeking membership have also started proceedings for harmonization of their national laws.
Structurally, Directives consist of a Preamble and a normative part. The preambles contain a number of citations made up of non-finite clauses or ‘whereas’ clauses. The preambles of the Directives under study are made up of between 30 to 60 clauses and it is quite common for the grammatical subject to be separated from the grammatical predicate by several pages.
In principle, Bulgarian legal language is not much different from other types of formal language. Bulgarian Acts can, as a rule, be read like ordinary prose with ordinary words with familiar meaning and ordinary grammar: they are easy to apprehend. Being part of the Continental tradition, the stress is on general principle at issue (or the ratio legis) resulting in brevity of expression.
The Bulgarian translation of the Directives under examination, however, demonstrates a marked deviation from this tradition, especially in the numerous Preambles and long and complex sentences. Certainly, a point to consider is the standardization of texts produced in the Union. All the different versions have to be uniform not only regarding the content, but also regarding the organization of the text. The layout, articles, paragraphs, sentences have to match completely in order to facilitate reference to the document in any of the official languages. The full stop rule requires "an equal number of full stops in source text and translations" (Trosborg 1997:152). The translator, although constrained by EU requirements for standardization and uniformity of legislation, should observe the natural word order in the target language, making the sentence sound as natural as possible.
Let us adduce some examples of English-Bulgarian translation shifts that are significant in view of the analysis and the level on which they are effected. These translation choices lead to cumbersome and untypical discourse in the target language.
1. On the structural level:
a. Lengthy sentences - the motivation behind it in statutory texts is the desire to position all information deemed necessary within one sentence and thus, presumably, avoid or reduce substantially any ambiguity that might arise in interpreting the respective provision if the conditions and cases of application were placed in a separate sentence. This idiosyncrasy results not only in long sentences but what is more in complex subordination with a number of embedded clauses.
b. Unusual syntax (unusual sentence structure) for Bulgarian:
Нееднократното и системното извличане и/или повторно използване на несъществените части от съдържанията на бази данни или когато неоснователно увреждат законните интереси на производителя на базата данни не са разрешени.
[The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.
Article 7 ( 5 ), 96/9/ EC]
c. Preservation of the legal ‘shall’:
Закрилата по силата на тази Директива относно авторското право ще се прилага и по отношение на бази данни, създадени преди датата, посочена в....
[Protection pursuant to this Directive as regards copyright shall also be available in respect of databases created prior to the date referred to....
Article 14(1), 96/9/EC]
Тази Директива се отнася до правната закрила на бази данни в каквато и да е форма.
[This Directive concerns the legal protection of databases in any form.
Article 1(1), 96/9/EC]
2. On the lexical level:
a. Choice of unusual words (foreign elements) in the Bulgarian language, in most cases due to a bad choice of words in the translation, belonging to the international lexis, but not very common in the target language:
making or operation of databases translated as произвеждане или опериране на база данни , incorporate as инкорпорира
b. Influence of past semantics
Contrary to most researchers from Eastern Europe I have not yet come across any instances of past semantics hindering the adoption of a loan word or the non-use of a Bulgarian word due to its past connotation and connection with the former totalitarian regimes. The connotation of the word Directive itself is reminiscent of socialist times. Obviously, it has undergone a motivated shift of content and is at present employed freely in relation to the institutional discourse of the European Union.
c. Translation of new terms not existing in Bulgarian legal language due to the fact that the institutions or concepts themselves are in the process of formation (cultural differences).
In cases when the term is transparent or semantically motivated the tendency is to opt for a literal translation (Community law, Green Paper, Ombudsman rendered in Bulgarian as право на Общността, Зелената книга , омбудсман ).
3. On the suprasentential level:
a. Thematic distribution: the order of the various qualifications in relation to the main provision in the statutory text can be said to be determined by a number of factors connected with the way it is structured as a message; or with its thematic and information structure. Most of these factors are genre-specific - not much influenced by the linguistic system of the particular language. The data of the present study show an almost identical distribution of thematic progression in relation to the place of the preparatory qualification in English and Bulgarian.
b. Cohesion: the predominant type of cohesive device is lexical repetition, with higher frequency in English. Second in frequency is pronominal reference. This is in keeping with the legal reasoning of the text type - statutory writing strives to be both precise and all-inclusive. Less lexical repetition in Bulgarian can be accounted for by the fact that that the Continental style of drafting emphasizes statements of general principle, simplicity of expression, brevity.
All these features foreign to Bulgarian legal discourse are ideologically significant in the sense that they construct an image of an authoritative institution, implying particular ideological representations of addressor-addressee relations.
The discourse, however, is to a certain extent contradictory - autocratic constituents merge with democratic ones, but usually with the egalitarian elements restricting the authoritarian elements. We are witnessing a change in discourse events which break with a long-standing legal tradition - a mixture of formal and informal features, and of technical and non-technical lexis. There is undoubtedly an obvious democratization of legal discourse which is manifest in the reduction of explicit (overt) markers of power asymmetry between people of unequal institutional power - legislators and those for whom the law is intended. Perhaps this is not a change of power asymmetry, but its metamorphosis into implicit forms. Democratization of discourse is connected to the general move from coercion and duress to consent and pluralism in the exercise of power. Contemporary power in democratic societies is persuasive and manipulative rather than coercive
Expression of ideology in discourse is a complex process encompassing choices in propositional content, recurrent vocabulary, mood and modality preferences, etc., functioning on propositional and pragmatic levels. Equality before the law calls for specific communicative and pragmatic competence in grasping the meaning of the statute. People can be seriously disadvantaged on account of cultural and linguistic differences that might find expression in communicative conflict and difficulties in effective access to justice. All levels of language can be ideologically invested, all aspects of meaning are important: lexical meanings, as well as presuppositions, implicatives, cohesion, coherence. Ideology is content which is manifest in formal features; it is a dynamically shifting relationship of discourse practice to power struggle. Different types of discourse are not ideologically invested to the same degree.
Further lines of research ensuing from this investigation that merit attention are a closer look into the effect of the ‘migration of ideas’ in the form of different social orders and the ways in which this crossborder movement shapes, conditions, modifies the constitution of identities and defines the social processes that it entails. Some directions that can be exploited involve the relationship between the transnational and local context as instrumental in blurring the boundaries of self/otherness, the divergence of the contexts of EU legislative text production and consumption as well as the change in national discourse models as conducive to the formation of non-migrant diasporas. Can Sheffer’s (1986) prototypical notion of the diaspora incorporate non-migrant members of the home society after Glick Schiller et al (1995)? Or is a redefinition of the term warranted?
© Diana Yankova (Applied Linguistics Department, New Bulgarian University, Sofia)
Bhatia, Vijay (1997). Translating Legal Genres. In: A. Trosborg (ed.) Text Typology and Translation. Amsterdam/Philadelphia: John Benjamins.
Derrida, Jacques (1992). Force of Law: The 'Mystical Foundation of Authority'" In: Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (eds.) Deconstruction and the Possibility of Justice.
Glick Schiller, Nina, Basch, Linda, and Szanton-Blanc, Christina (1995). From Immigrant to Transmigrant: Theorising Transnational Migration, Anthropological Quarterly, 68, 1, 48-63.
Fairclough, Norman (1995a). Language and Power 17.
Fairclough, Norman (1995b). Critical Discourse Analysis. The Critical Study of Language. London:Longman.
Forrest, A. (1998). The Challenges of Languages in Europe. T & T 3:101-121.
Kress, Gunther (1985). Linguistic Processes in Sociocultural Practice 11.
Robertson, Colin (2001). Multilingual Law: A Framework for Understanding LSP within the EU. In: Mayer, F (ed.). Language for Specific Purposes. Perspectives for the New Millennium, vol. 2., Tübingen: Gunter Narr Verlag.
Sager, Juan (1997). Text types and translation. In: A. Trosborg (ed.) Text Typology and Translation. Amsterdam/Philadelphia: John Benjamins.
Sheffer, Gabriel ( 1986). A New Field of Study: Modern Diasporas in International Politics. In: Gabriel Sheffer (ed.) Modern Diasporas in International Politics, London: Croom Helm, 1-15.
Trosborg, Ana (1997). Translating hybrid political texts. In: A. Trosborg (ed.) Text Typology and Translation. Amsterdam/Philadelphia: John Benjamins .
Van Dijk, Teun A. (1996). Discourse, Power and Access. In: Carmen Caldos-Coulthard and Malcom Coulthard. (eds.) Texts and Practices: Readings in Critical Discourse Analysis. New York: Routledge, 84-104.
9.4. Translation and Ideology
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