Legal Foreignization VS Domestication

TransLegal

Cambridge International Legal English Certificate
Dr. Salvatore Ivan Italiano. Accreditation Number 500/4287/7.

© (2017) Lawinwords by Ian Barton & Dr. Salvatore Ivan Italiano

Abstract

The primary objective of this article is the legal translation as the primary means to render the legal message contained in any foreign source text – English in this instance – readily understandable for those readers who are not native English speakers. Here, we take account of the translation process rendering legal texts into a style both usable and understandable.

Legal Translation: Foreignization VS Domestication

When translating into Italian an English legal text originating within a Common Law jurisdiction, such as the USA, a key element to be taken into consideration is the degree to which the nuance and meaning of words and concepts can deviate from the meaning as understood by a native English speaker after rendition into the target language, for example, Italian.

When translating concepts and ideas established within the mind of a reader native to a Civil Law jurisdiction such as Italy, frequent regard must be had to cultural, historical and traditional factors influencing to a greater or lesser extent different legal approaches. For example, in some cultures, economic efficiency is the single and most important value for any legal or social institution. In others, harmony between legal, moral and religious principles will be the bedrock upon which legal decisions are made.

This is the reason why, as a legal translator from American English into Italian, it is important to make certain that legal principles and their meaning are accurately conveyed avoiding swathes of doubt and misunderstanding. Before contemplating potential solutions it is necessary to review some basic principles of the translation theories available today.

Domestication translation involves reducing the source-text foreign elements to the cultural values of the target language (Munday 2001). Foreignization, at the other extreme, involves the retention of the foreign aspects of the original language text (Shuttleworth & Cowie, 1997). From Venuti’s perspective, the foreign elements should be highlighted by the translator to draw attention to the linguistic and cultural difference of the foreign text (Venuti 1995). Nida is the scholar regarded as the representative of domestication translation as the strategy achieving a completely natural expression by means of dynamic equivalence. It follows that “the message has to be tailored to the receptor’s linguistic needs, cultural expectations (Munday 2001, p. 42) and technical knowledge” (1). Therefore, in legal translation, the stance of the Venuti foreignization principle is untenable given that concepts such as:

– Distinguishing, Equity, Class action, Estoppel and The mail box rule are terms which do not represent anything as currently understood within the legal institutions and concepts of the Italian Civil Law system.

Hence, what is the possible solution?

The suggestion is to approach the issue at hand and seek resolution by resorting to the language of the Italian legal tradition and its related roots in ancient Roman law. Given that it is fundamentally important that the message conveyed is immediately recognized by the reader and compatible with his/her cultural understanding of recognizable legal institutions and values it follows that:

– The American Open Shop can better be translated with Organizzazione sindacale. 
– Level playing field with libera contendibilità. 
– Small return could also be translated with the Italian Peculio. 
– Accountability with obbligo di rendiconto. 

According to Ferdinand de Saussure, founder of the Science of Linguistics, the meaning of a given word (la parole) is related also to the existence of other exclusionary words.

For example, in the Italian language, the existence of the word responsabilità is an accepted fact, and it is not permissible to translate responsibility and accountability with responsabilità only, given that the two words in question – accountability and responsibility – carry between them a degree of difference in the value of their meaning.

The issues at hand are limitless on account of the differences in concept and values between the two legal systems. Deed in Italian law is an atto formale, which includes a vast area of legal procedure such as donazione (deed of gift), promesse unilaterali (deed of covenant), atti costitutivi di diritti reali (deed of grant), la remissione del debito (deed of release) etc (2).

Furthermore, it is interesting to note that the form of a deed can be attributed to a contract; in this instance, its legally binding nature derives from the formal qualities of a deed one of which removes the need for consideration. This explains the existence in the Anglo-Saxon legal world of the expression “contract under deed” (promessa a titolo gratuito) Vs. “Contract” – the meaning of a given word (la parole) is related also to the existence of other exclusionary words.

The Italian Civil Code (art. 1321) underlines the requirement of an ‘economic motive’ for any contract and the French Civil Code requires the same: any agreement supported by ‘economic motive’ is considered to be a contract. In contrast, the German Vertrag does not require an exchange of ‘economic motive’ between the parties involved.

When considering the above, is it still appropriate to translate the German word Vertrag as Contract, Contratto, and Contrat respectively in English, Italian and French? This subject will be analyzed further later on this blog.

(1) Author’s addition.
(2) CFR. .F. Galgano, Atlante di diritto comparato, Bologna, 1998, p.67. 

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Dr. Salvatore Ivan Italiano
Dr. Salvatore Ivan Italiano

Ian Barton and Salvatore Ivan Italiano are the directors of Lawinwords.com which is a translation and communication bureau with a focus upon the legal, corporate and political sectors. Ian Barton is an Anglo-American legal practitioner being admitted as a Solicitor in England & Wales and as an Attorney in New York. He has worked in the financial institutions’ department of the Deutsche Bank AG in Munich and in Frankfurt am Main. Dr. Salvatore Ivan Italiano has a Master’s Degree and has majored as a simultaneous interpreter and translator specializing in comparative law, literature, politics, and commerce. In addition, he is a published literary translator whose current project includes: French and Italian > American English translation of books soon to be published.