Volume 12, Issue 4 (2021)
LRR 2021, 12(4): 531-564 |
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Sassani F, Nassiri H. A Case Study of the Translation of Iranian Legal Concepts Based on the Jurilinguistics of Geneva. LRR 2021; 12 (4) :531-564
URL: http://lrr.modares.ac.ir/article-14-44099-en.html
URL: http://lrr.modares.ac.ir/article-14-44099-en.html
1- Assistant Professor, Department of French Translation Studies, Allameh Tabataba’i University, Tehran, Iran , sassani@atu.ac.ir
2- Ph.D Candidate in Criminal Law and Criminology, Ferdowsi University of Mashhad, Mashhad, Iraan
2- Ph.D Candidate in Criminal Law and Criminology, Ferdowsi University of Mashhad, Mashhad, Iraan
Abstract: (4246 Views)
Legal translation study is a contemporary and innovative topic in the field of translation studies. Analysis of the procedure of selecting and applying a legal equivalent in the target language is one of the issues in this area. Legal translation study answers this question with the Geneva jurilinguistics approach. The question posed in the present study are what are the rules of Geneva theory of jurilinguistics and to what extent are these rules implemented in the translation of Iranian legal concepts into French legal language? What is the solution of Geneva jurilinguistic theory for a legal translator and how should he choose equivalents? We first begin with a descriptive study of the theory of Geneva jurilinguistics from the point of view of Jean-Claude Gémar (principal theorist); Then, we will conduct a case study on the applicability of the solutions presented in this theory in translating Iranian legal concepts into French legal language.The corpus which was analyzed in this paper is the seventh book of the second volume of Iranian Civil Code on marriage and divorce. The main rule of this theory is the necessity of using a functional equivalent.The main purpose of this study is to evaluate ,through a case study, how the functional equivalent of Iranian legal concepts is selected in the French legal language (target language), according to the rules set out in the Geneva theory of jurilinguistics. We want to examine the degree to which the chosen equivalents in French reflect the function and legal effect of the concept in question in Iranian law, and in other words, to what extent the function changes when the concept is transferred; What is the reason for this functional change; What factors influence this change; To what extent is the study of comparative law effective in educating the translator of the factors causing these changes, and whether the transfer and translation of the Iranian legal concept into french language (and french legal system) can be achieved without functional change.
1. Introduction
Legal translation study is a contemporary and innovative topic in the translation studies. Analysis of the procedure of choosing and applying a legal equivalent in the target language is one of the issues in this area. Legal translation study answers this question with the Geneva jurilinguistics approach. The aim of this article is to assess the utility of the theory of jurilinguistics of Geneva through a case study of the translation of some of Iranian legal concepts in to French. The question posed in the present study are what are the rules of Geneva theory of jurilinguistics and to what extent are these rules implemented in the translation of Iranian legal concepts into French legal language? What is the solution of Geneva jurilinguistic theory for a legal translator and how he should choose the equivalents? One of the important issues in legal translation is the lack of correspondence between the linguistic equivalent and the legal equivalent. The translator is looking for a linguistic equivalent (appealing to the linguistic form) and the lawyer is looking for a legal equivalent (appealing to the legal concept). To answer these questions, first, we will study the Geneva jurilinguistics which was introduced by contemporary legal linguists Jean-Claude Gémar. Then we will examine the applicability of the solutions presented in this theory in the translation of Iranian legal concepts in to French.
The main rule of this theory is the necessity of using a functional equivalent. The main purpose of this study is to evaluate, through a case study, how the functional equivalent of Iranian legal concepts is chosen in the French legal language (target language), according to the rules set out in the Geneva theory of jurilinguistics. We want to examine the degree to which the chosen equivalents in French reflect the function and legal effect of the concept in question in Iranian law, and in other words, to what extent the function changes when the concept is transferred; What is the reason for this functional change; What factors influence this change; To what extent is the study of comparative law effective in educating the translator of the factors causing these changes; and whether the transfer and translation of the Iranian legal concept into French language (and French legal system) can be achieved without functional change. The theory that forms the basis of our research is the Geneva jurilinguistics Theory, which is derived from the "product-oriented" research of communication linguistic theory. Geneva's theory of jurilinguistics is an interdisciplinary approach to the field of law, language, and translation. It studies the role of "functional equivalents" in legal translation. The purpose of this theory is to persuade legal translators to choose functional equivalents that conform to the culture and legal system of the target language.
2. Literature Review
In the field of jurilinguistics (or legal linguistics), legal terminology, and legal translation especially in French legal language, Jean-Claude Gémar, a Prof. emeritus at the Department of Linguistics and Translation of University of Montréal and Prof. "honoraire", at University of Geneva is the most prominent theorist. Jean-Claude is a "traductologue" and a jurilinguist doing research in Language and Law, legal translation, terminology and comparative law. He is one of the members of Geneva Jurilinguistics Circle. Here some of his works can be named: Books such as "The Language of the Law and Translation : Essays on Jurilinguistics"(1982); "Jurilinguistique Comparée Langage Du Droit" (2012); "Traduire Ou L'art d'interpreter "(2000) and Articles such as "Traduire le droit ou le double langage de Thémis"(2009); "De la traduction (juridique) à la jurilinguistique. Fonctions proactives du traductologue"(2005);"La jurilinguistique: entre langues et droits "(2005). Claude Bocquet is another member of the Geneva juriLinguistics Circle, a French scholar who has written books and articles on legal translation, the most famous of which is "La traduction juridique. Fondement et method (2008). Also in the field of legal terminology in Iran, the greatest terminologist and scholar is Dr. Mohammad Jafar Jafari Langroudi, who is known for compiling legal encyclopedias and terminologies. In the present study, we have referred to his books entitled "Legal Terminology"(1999; 1378) and "Almabsut in legal terminology" (2007; 1386) in order to show how to choose the functional equivalent for the Iranian legal concepts.
3. Methodology
In this research we apply descriptive and case study methods. We first begin with a descriptive study of the theory of Geneva jurilinguistics from the point of view of Jean-Claude Gémar (principal theorist). We describe the characteristics of the theory studied. We conduct descriptive research using case study method. We will case study the applicability of the rules presented in this theory in translating Iranian legal concepts into French legal language. Case study here leads to a hypothesis and widen a further scope of studying the theory of Geneva jurilinguistics. Through the case study we analyze a defined problem consisting in a real situation and uses real information as methodological tool. The corpus which was analyzed in this paper is the seventh book of the second volume of Iranian Civil Code on marriage and divorce (Family Law). Here, for example, we have chosen some legal concepts related to family law from the book of Iranian civil law, then compared them with their equivalents in French law to assess whether these equivalents are functional equivalents at all, and if so, to what extent they are functional equivalents: perfect or relative.To determine the functional equivalence, we studied the historical, religious, and cultural background of the legal concept in question in Iranian and French law. We even came across equivalents that were previously functional but have lost their functionality due to the abrogation of the law and have become zero functional equivalents.
4. Results
The first result of this study is that due to the fundamental and substantial differences and the high degree of differentiation between the Islamic legal system of Iran and the French legal system, especially in the area of family law, choosing the perfect equivalent is rare. Most of the functional equivalents that have been chosen are relative equivalents. Sometimes equivalents that are chosen have no function in the French (target) legal system. The jurilinguistics of Geneva also acknowledges that the higher the degree of affinity and kinship between the language and the legal system of the source and the target text, the greater the possibility of perfect equivalence. Therefore, knowing the degree of such linguistic and legal affinities will be effective in evaluating the legal translation. Sometimes the laws of two countries may be based on a single legal system (such as European countries other than Britain or Latin American countries); But their legal institutions and language structure do not quite match. Therefore, in such countries where their legal systems are the same, choosing the equivalent is also a relative matter. Studies of comparative law today have been able to show the commonalities or differentiation of legal concepts in different legal systems. Thus, the legal translator is required to become familiar with the differentiated aspects and commonalities of legal concepts in legal systems by comparative study of law.
Another result to be drawn from the present study is that the legal translator must create harmony and balance between choosing the linguistic equivalent and the legal equivalent. In other words, in choosing the functional equivalent, form and content must have linguistic-legal harmony. In sum, functional equivalence means that the target word has the same semantic and lexical capacity as the source word, and the both words introduce a single legal concept to the audience in terms of legal basis. For this reason, the functional equivalent can also be called the conceptual equivalent. Finding a conceptual legal equivalent is actually finding an equivalent that has the same legal function and the same legal effect in the target legal system, and therefore the translator is forced to become familiar with the Geneva jurilinguistic approach, that teaches how to choose the functional equivalent of legal concepts based on classification of functional equivalents (by dividing functional equivalents into perfect equivalents, relative equivalents, and equivalents without function (or with zero function)).Geneva jurilinguists have a target oriented focus on legal translation and believe that the equivalent choice for the translation of legal institutions and legal concepts is relative. The use of functional equivalents in legal translation is in fact a way of moving translation away from absolute literal equivalence or word-for-word translation. According to this approach, success in legal translation is equal to achieving equivalence with equal legal effect, and since the whole issue of equivalence involves the personal and mental judgment of the translator, this legal effect will be inevitably relative and approximate. As a result, in order to create a balanced legal equivalence between the source legal text and the target, the translator's sufficient mastery of comparative law and having a strong linguistic intuition and skills in both the source and target languages are necessary conditions. Legal concepts include legal effects. So legal translation is not translating the words and transferring the meaning. The important point is that the legal effect of the original legal concept must be the same or somewhat equal to the legal effect of the target legal concept
1. Introduction
Legal translation study is a contemporary and innovative topic in the translation studies. Analysis of the procedure of choosing and applying a legal equivalent in the target language is one of the issues in this area. Legal translation study answers this question with the Geneva jurilinguistics approach. The aim of this article is to assess the utility of the theory of jurilinguistics of Geneva through a case study of the translation of some of Iranian legal concepts in to French. The question posed in the present study are what are the rules of Geneva theory of jurilinguistics and to what extent are these rules implemented in the translation of Iranian legal concepts into French legal language? What is the solution of Geneva jurilinguistic theory for a legal translator and how he should choose the equivalents? One of the important issues in legal translation is the lack of correspondence between the linguistic equivalent and the legal equivalent. The translator is looking for a linguistic equivalent (appealing to the linguistic form) and the lawyer is looking for a legal equivalent (appealing to the legal concept). To answer these questions, first, we will study the Geneva jurilinguistics which was introduced by contemporary legal linguists Jean-Claude Gémar. Then we will examine the applicability of the solutions presented in this theory in the translation of Iranian legal concepts in to French.
The main rule of this theory is the necessity of using a functional equivalent. The main purpose of this study is to evaluate, through a case study, how the functional equivalent of Iranian legal concepts is chosen in the French legal language (target language), according to the rules set out in the Geneva theory of jurilinguistics. We want to examine the degree to which the chosen equivalents in French reflect the function and legal effect of the concept in question in Iranian law, and in other words, to what extent the function changes when the concept is transferred; What is the reason for this functional change; What factors influence this change; To what extent is the study of comparative law effective in educating the translator of the factors causing these changes; and whether the transfer and translation of the Iranian legal concept into French language (and French legal system) can be achieved without functional change. The theory that forms the basis of our research is the Geneva jurilinguistics Theory, which is derived from the "product-oriented" research of communication linguistic theory. Geneva's theory of jurilinguistics is an interdisciplinary approach to the field of law, language, and translation. It studies the role of "functional equivalents" in legal translation. The purpose of this theory is to persuade legal translators to choose functional equivalents that conform to the culture and legal system of the target language.
2. Literature Review
In the field of jurilinguistics (or legal linguistics), legal terminology, and legal translation especially in French legal language, Jean-Claude Gémar, a Prof. emeritus at the Department of Linguistics and Translation of University of Montréal and Prof. "honoraire", at University of Geneva is the most prominent theorist. Jean-Claude is a "traductologue" and a jurilinguist doing research in Language and Law, legal translation, terminology and comparative law. He is one of the members of Geneva Jurilinguistics Circle. Here some of his works can be named: Books such as "The Language of the Law and Translation : Essays on Jurilinguistics"(1982); "Jurilinguistique Comparée Langage Du Droit" (2012); "Traduire Ou L'art d'interpreter "(2000) and Articles such as "Traduire le droit ou le double langage de Thémis"(2009); "De la traduction (juridique) à la jurilinguistique. Fonctions proactives du traductologue"(2005);"La jurilinguistique: entre langues et droits "(2005). Claude Bocquet is another member of the Geneva juriLinguistics Circle, a French scholar who has written books and articles on legal translation, the most famous of which is "La traduction juridique. Fondement et method (2008). Also in the field of legal terminology in Iran, the greatest terminologist and scholar is Dr. Mohammad Jafar Jafari Langroudi, who is known for compiling legal encyclopedias and terminologies. In the present study, we have referred to his books entitled "Legal Terminology"(1999; 1378) and "Almabsut in legal terminology" (2007; 1386) in order to show how to choose the functional equivalent for the Iranian legal concepts.
3. Methodology
In this research we apply descriptive and case study methods. We first begin with a descriptive study of the theory of Geneva jurilinguistics from the point of view of Jean-Claude Gémar (principal theorist). We describe the characteristics of the theory studied. We conduct descriptive research using case study method. We will case study the applicability of the rules presented in this theory in translating Iranian legal concepts into French legal language. Case study here leads to a hypothesis and widen a further scope of studying the theory of Geneva jurilinguistics. Through the case study we analyze a defined problem consisting in a real situation and uses real information as methodological tool. The corpus which was analyzed in this paper is the seventh book of the second volume of Iranian Civil Code on marriage and divorce (Family Law). Here, for example, we have chosen some legal concepts related to family law from the book of Iranian civil law, then compared them with their equivalents in French law to assess whether these equivalents are functional equivalents at all, and if so, to what extent they are functional equivalents: perfect or relative.To determine the functional equivalence, we studied the historical, religious, and cultural background of the legal concept in question in Iranian and French law. We even came across equivalents that were previously functional but have lost their functionality due to the abrogation of the law and have become zero functional equivalents.
4. Results
The first result of this study is that due to the fundamental and substantial differences and the high degree of differentiation between the Islamic legal system of Iran and the French legal system, especially in the area of family law, choosing the perfect equivalent is rare. Most of the functional equivalents that have been chosen are relative equivalents. Sometimes equivalents that are chosen have no function in the French (target) legal system. The jurilinguistics of Geneva also acknowledges that the higher the degree of affinity and kinship between the language and the legal system of the source and the target text, the greater the possibility of perfect equivalence. Therefore, knowing the degree of such linguistic and legal affinities will be effective in evaluating the legal translation. Sometimes the laws of two countries may be based on a single legal system (such as European countries other than Britain or Latin American countries); But their legal institutions and language structure do not quite match. Therefore, in such countries where their legal systems are the same, choosing the equivalent is also a relative matter. Studies of comparative law today have been able to show the commonalities or differentiation of legal concepts in different legal systems. Thus, the legal translator is required to become familiar with the differentiated aspects and commonalities of legal concepts in legal systems by comparative study of law.
Another result to be drawn from the present study is that the legal translator must create harmony and balance between choosing the linguistic equivalent and the legal equivalent. In other words, in choosing the functional equivalent, form and content must have linguistic-legal harmony. In sum, functional equivalence means that the target word has the same semantic and lexical capacity as the source word, and the both words introduce a single legal concept to the audience in terms of legal basis. For this reason, the functional equivalent can also be called the conceptual equivalent. Finding a conceptual legal equivalent is actually finding an equivalent that has the same legal function and the same legal effect in the target legal system, and therefore the translator is forced to become familiar with the Geneva jurilinguistic approach, that teaches how to choose the functional equivalent of legal concepts based on classification of functional equivalents (by dividing functional equivalents into perfect equivalents, relative equivalents, and equivalents without function (or with zero function)).Geneva jurilinguists have a target oriented focus on legal translation and believe that the equivalent choice for the translation of legal institutions and legal concepts is relative. The use of functional equivalents in legal translation is in fact a way of moving translation away from absolute literal equivalence or word-for-word translation. According to this approach, success in legal translation is equal to achieving equivalence with equal legal effect, and since the whole issue of equivalence involves the personal and mental judgment of the translator, this legal effect will be inevitably relative and approximate. As a result, in order to create a balanced legal equivalence between the source legal text and the target, the translator's sufficient mastery of comparative law and having a strong linguistic intuition and skills in both the source and target languages are necessary conditions. Legal concepts include legal effects. So legal translation is not translating the words and transferring the meaning. The important point is that the legal effect of the original legal concept must be the same or somewhat equal to the legal effect of the target legal concept
Keywords: Jurilinguistics, Legal concepts, Comparative Law, Functional equivalence, Dynamic equivalence
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