Foreignization and Domestication in Russian-English Legal Translation

DOI: 10.22363/2686-8199-2020-7-140-147

FOREIGNIZATION AND DOMESTICATION IN RUSSIAN-ENGLISH LEGAL TRANSLATION

Yury Muravev Peoples’ Friendship University of Russia (RUDN University) Moscow, Russia e-mail: [email protected]

Abstract. This paper evaluates foreignizing and domesticating strategies in Russian-English legal translation. The author defines foreignization and domestication and covers the limitations and possibilities of foreignization and domestication in written and oral translations of five major types of legal documents (contracts, memoranda, judgments, case briefs, acts, and other pieces of legislation) at the levels of legal terminology, grammar, and syntax. The paper also assesses the correlation between the surface structure and the deep structure of legal texts in Russian-English language pair. It concludes that the adequate and equivalent translation of specialized legal texts requires the balanced application of the foreignizing and domesticating strategies at the lexical, grammatical, and syntactic levels. The choice of strategy depends on the type of legal document in the target language's jurisdiction (England and Wales was chosen for this research). It is suggested that domestication should be avoided in the translations of Russian federal constitutional laws, federal laws, regulations, and judgments, while in contracts, memoranda, and case briefs, foreignization is a viable strategy, sometimes even mandatory. The reason is that formal and binding legal documents, such as acts and statutes, contain much more specific legal terms, which are unique for the source jurisdiction — the Russian Federation (culture-specific professional concepts, legal terms of art, names of key institutes of law, unique branches of law). Simultaneously, the translation of the less formal documents like contracts, memoranda, legal opinions, court transcripts, corporate records, or case briefs may require a less formal approach. In these texts, domestication helps to ensure the pragmatic and functional dimensions of translation. Moreover, international business practice requires clear contract terms and plain English definitions of contract terminology. The use of archaisms and legalese in legal English is sometimes inevitable because written documents have constituted the law itself for over five hundred years in England. Yet in Russian-English pair, they should be replaced by the synonymous plain English alternatives to improve the overall quality of translation. The research results may improve the output quality of machine translation systems and legal tech software development. This study's novelty is the deep- structure analysis of legal documents and the variety of analyzed types of documents. Keywords: Legal English, legal translation, English for specific purposes

140 Introduction Among multiple difficulties of legal translation, the problems of non- equivalence and translatability are the most challenging. Even the best available machine translation algorithms and computer-aided translation systems cannot convey into English some jurisdiction-specific legal terms of art employed in the legislation and other formal documents of the Russian Federation. In finding the 'correct' translation of a non-equivalent lexical unit (Catford, 1965: 14), a translator should consider both the source text's linguistic and legal aspects. Absolute terminological correlation, such as a pair of matching terms in the source and target language, is rare in the two unrelated legal systems: the system of Russia, which belongs to the continental (Romano-Germanic) legal family, and the Common law jurisdictions, such as the United Kingdom, USA, Canada, Australia, and New Zealand. The two standard translation strategies for the disambiguation of polysemy in unrelated languages for specific purposes are foreignization and domestication. Both strategies may be used in the translation of the non- equivalent legal terms of art. Legal translation is undergoing a rapid transformation. Among the most advanced tools are the multilingual legal reference systems, algorithmizing search for optimal translation solutions with big data translation, and translation memory software. However, in machine translation, the foreignization-domestication scale is yet to be implemented. Objectives/Purpose of the study The study evaluates how foreignization and domestication may be used in different legal texts, introducing a scale to measure relative domestication of legal terms, set expressions, ‘hard’ collocations, and legal formulae in Russian-English language pair. Methodology This research's primary methods are case study method, analysis of translation tools materials, comparative linguistics methods, and qualitative comparative analysis of legal text corpora translated by the author from Russian into legal English. Results/Findings The author assesses the correlation between the surface structure and the deep structure of legal texts in Russian-English language pair and concludes that the adequate and equivalent translation of specialized legal texts requires the balanced application of the foreignizing and domesticating

141 strategies at the lexical, grammatical, and syntactic levels. The choice of strategy depends on the type of legal document. 'Legal language' may be defined as any form of legal discourse which can range from the language of different types of legal documents to the law reports, court speeches, and textbooks (Haigh, 2004: 15). Most legal texts are formal, professionally exclusive, and usually prescriptive or descriptive (Schane, 2006: 14). Legal English is classified as English for specific purposes (Harding, 2007: 82). First of all, it is essential to define foreignization and domestication in the study's context: Russian-English legal translation. Domestication results from a translator's attempt to create a translation, which is transparent and clear to a) the native speakers of English; b) legal professionals in a Common law jurisdiction (in-house lawyers, solicitors, barristers, justices). It aims to minimize the 'strangeness of the foreign text' in legal Russian by choosing the legal terms of art already known to the legal practitioners who are usually experienced lawyers in the target jurisdiction (Tiersma, 1999: 11). To reach this goal, a translator of a legal term performs comparative legal research to find a relatively equivalent variant of translation (Medrea, 2012: 5475). Excessive domestication may lead to translatability issues because in English for specific purposes (such as legal English), the capacity of meaning to be transferred from one language to another without undergoing fundamental change is much more limited than in general English (Yang, 2010: 77). Foreignization implies deliberately breaking the conventions of the target text (Paolucci, 2017: 79). A translator intentionally refrains from choosing the legal terminology of an English-speaking Common law jurisdiction. Instead of legal English, the original Russian legal terms of art are used. Thus, the source language and the source jurisdiction's realities (Russia) dictate the translator's choices at all levels of translation. Therefore, in the case of ‘full’ foreignization, such translation techniques as transliteration, calquing, the use of translation loan words, and even transcription could be necessary (Harvey, 2002: 177). However difficult it may be in the pair of unrelated languages (Slavic and Germanic), modeling words and constructions after Russian semantic patterns is sometimes the only optimal translation strategy. A translator, who uses the foreignization strategy, should give full definitions to all of the non-equivalent legal terms in Russian in the translator's notes (Cheng, 2010: 90). In other words, legislation and other legal texts should be translated so that native speakers of English can understand them without consulting the textbooks on Russian law or Russian legislation. In general, it should be noted that domestication is a preferred translation strategy in ESP (English for specific purpose) translation (Biel,

142 2014: 25) because of the frequent use of specialized terms. For example, in legal English, the legal terms of art are jurisdiction-specific technical words, phrases, and legal jargon with precise and fixed legal meanings. In most cases, they cannot be replaced by other words (Williams, 2005: 76). This paper presents a conclusion that foreignization and domestication in the choice of a suitable variant of translation is not a binary choice but a multiple-choice with a set of variables. Even though some texts on the unique aspects of Russian law may require a more complex approach, a 3-tier scale is sufficient (see Table 1 below).

Table 1 Domestication ‘Standard’ Foreignization (Common law legal term (Russian civil law) of England in Property law and Wales) Неограниченное freehold full title right of ownership право собственности (fee simple) to property of property на недвижимость

Strictly speaking, domestication should be avoided in the translations of Russian federal constitutional laws, federal laws, regulations, and judgments, while in contracts, memoranda, case briefs, and judgments domestication is a viable strategy, sometimes even mandatory. The reason is that formal and binding legal documents, such as acts and statutes, contain much more specific legal terms, which are unique for the source jurisdiction — the Russian Federation (culture-specific professional concepts, legal terms of art, names of key institutes of law, unique branches of law). Simultaneously, the translation of the less formal documents like contracts, memoranda, legal opinions, court transcripts, textbooks, law reports, corporate records, or case briefs may require a less formal approach. In these texts, domestication helps to ensure the pragmatic and functional dimensions of translation. Moreover, international business practice requires clear contract terms and plain English definitions of contract terminology. Nowadays, international commercial contracts' language is relatively standardized, thanks to INCOTERMS, the United Nations Convention on Contracts for the International Sale of Goods (CISG), and the documents of the international commercial arbitrations. The rules and regulations of conflict of laws are also universal and the fundamental language of international case law on trade and commerce is relatively harmonized.

143 In Company and Commercial law (business correspondence, constitutional documents, powers of attorney, shareholder agreements, and partnership agreements), the choice between foreignization and domestication may depend on the following criteria: 1) The availability of the standardized templates of corporate documents in addenda and exhibits of the applicable rules and regulations under Russian law — if such samples are available in Russian, foreignization may be a more handy solution to the problems of non-equivalence and translatability; 2) The frequency of universally accepted boilerplate clauses in such documents. The following table presents the qualitative comparative analysis of contents of various legal documents:

Table 2 Document Strategy Rationale Examples Act of law Foreignization 1) The jurisdiction- The term “автономная specific legal terms некоммерческая of art; организация”: 2) The need to Foreignization — convey lawmaker’s independent non-profit intention and the organization. equity of statute as Domestication — close to the text as registered charity. possible. Case law / Foreignization 1) Legal formulae Standard sentence Plenum and standard wording: “осознавая wording in the общественную judgments of опасность своего Russian courts; деяния”: 2) Legal and Domestication: mens rea doctrinal requirement. interpretation of Foreignization: terms in plenums. knowingly / deliberately. Contract, Domestication Universally Boilerplate: “Договор corporate accepted boilerplate содержит весь объем document clauses, wordings, договорённостей and legal formulae. сторон”. Domestication: Entire Agreement clause. Foreignization: definite agreement.

144 Document Strategy Rationale Examples Memoranda, Domestication Standard structure Boilerplate: Отказ от legal and wordings. ответственности. opinions, Domestication: case briefs, Disclaimer / Liability textbooks waiver. Foreignization: a non- responsibility clause.

The only notable exception to the conclusions presented in Table 2 might be the translation of the plenums of the Supreme Court of Russia. These documents often contain persuasive interpretation and construction of the crucial aspects of Russian law, legal terms, and culture-specific concepts in all branches of Russian law. Plenums are often quoted in court documents and judgments. It would be hard to overestimate the importance of the Supreme Court plenums for Russia's legal practitioners. Plenums are widely used in civil and criminal procedure by advocates, lawyers, judges, and law enforcement officers. The plenums' terminology relies heavily on the legal terms of art strictly defined in the Russian Federation's current legislation. Therefore, foreignization seems to be the optimal translator’s strategy in the translation of these documents because the degree of terminological variation and inconsistency in the plenums is relatively low. Discussion As previously noted (Bajcic, 2020: 2–3), foreignization and domestication rules are not rigid. Both strategies may be to some extent applied in the same legal text, depending on the structure of the legal document, its scope, intended use, and function within a target jurisdiction. Although domesticating translations may sometimes be instrumental in commercial and arbitration practice, the overuse of Common law terminology may distort the original text's clarity and legal meaning. This is especially relevant for the Russian-English language pair because, in the translation of unrelated languages, there are many lexical, grammatical, and syntactic difficulties, which arise at all steps of text analysis (the 'false cognates,' ambiguity in meaning, obscure abbreviations, terminological variation, and other regular problems of legalese). Besides, Anglo-American law has always been rich in interpretive conventions (Scalia 2012: 11), while in continental legal systems, the rules of interpretation have been strict and formalized. As a consequence, legal terms and definitions play a significant role in the Russian legislation.

145 Parallel wordings and full functional equivalence are relatively rare in prescriptive texts but may appear in contracts and corporate documents from time to time. That being said, domestication becomes both an opportunity and a challenge in search for the functional equivalence. The correct use of domestication requires extensive background knowledge of Common law, while foreignization should consider the macro context of the Russian legal system. The careful attitude to the more formal aspects of legal Russian should not be viewed as linguistic and legal purism but as a reasonable precaution taken by a translator to secure the original text's coherence and semantics and prevent terminological inconsistencies. Here, Nida (Nida, 1964: 66) proposed an important criterion: the target text should yield the same effects on its recipient as the source text did on its recipients. The most valuable element of professional communication is the correct translation of the author's intention and the message itself (the “deep structure” of a legal text); that is why any non-justified extensional interpretations and irregular ad-hoc verbalizations may cause errors and omissions in the text translation. Even if the original text is vague (e.g., due to nominalization or other legalese), a legal translator is expected to convey at least the general message contained in the deep structure. It is also important to mention that the legal language of statutes and judgments is the language of power, enforcement, and legal sanction. Getting the legal terminology wrong in these documents could be a costly mistake. Even the slightest error in translating the deep structure may result in misinterpretation and have negative legal consequences for a legal practitioner. For example, a wrong choice of a modal auxiliary — shall or may — can potentially change the meaning of a translated document. If a legal text has a purely informative function (a case brief or a legal news article), however, it is more appropriate to use a domesticating approach. Therefore, as shown in Tables 1 and 2, the general guideline for the proper use of the discussed translation strategies may be as follows: the more binding the legal document, the less domestication should be used. Another recommendation may be, where possible, to opt for plain English equivalents of Russian terms. The use of archaisms and legalese in legal English is sometimes inevitable because written documents have constituted the law itself for over five hundred years in England (Tiersma, 1999: 38). Nevertheless, in Russian-English pair, they should be replaced by the synonymous plain English alternatives to improve the overall quality of translation.

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