English Matters III 29 [621531]

English Matters III 29
FUNCTIONAL EQUIVALENCE AND ITS ROLE IN LEGAL
TRANSLATION
Marcela Müllerová Shiflett
Abstract: Lega l translation is a challenging and complex process. Legal translators face
numerous factors that influence their ability to translate certain terms. Besides the obvious
linguistic side of legal translation, legal translators are faced with challenges , such as cultural
and social norms and traditions within legal systems of the country where the text originated,
as well as the country for which the translation is prepared. Furthermore, even if the legal
translators are skilled linguists, and are familiar with the nuances of the two aforementioned
legal systems, they will come across terms that are difficult to translate. In such instances, the
translators must employ one of a slew of translation techniques, including the search for terms
of functional equi valence.
Key terms: functional equivalent, near-equivalence, partial equivalence, non -equivalence
Introduction
Legal translation is considered by many to be extremely challenging. Particular
challenges are posed by the specificity of legal language and, in particular, the system -bound
nature of legal terminology and differences between the common law and civil law systems.
Martin Weston adds that "the basic translation difficulty of overcoming conceptual
differences between languages becomes particularly acute due to cultural and more
specifically institutional reasons (Weston 1983:207).
Legal translators are obligated to not only speak the target and the source languages
fluently, they must be closely familiar with the law and the legal system in the cou ntry where
the translated text originated, and the country for which the translation is being prepared.
Šarčević’s profile of the legal translator is as followed:

(a) translators need subject expertise in addition to translation skills,
and (b) translator s must be competent in both translation and law to
make legal -linguistic decisions. Legal competence presumes (a) indepth
knowledge of legal terminology, and (b) a thorough
understanding of legal reasoning and the ability to solve legal
problems, to analyz e legal texts, and to foresee how the courts will
interpret and apply a legal text (Šarčević 1997:113).

Legal translation requires usage of methodology according to the challenges it poses;
challenges that are different from the ones connected to other types of specialized translation.
According to Newmark (Newmark 1988: 151), special ized translation can be divided into two
categories: technical and institutional translation. Technical translation is non -cultural and
therefore universal; therefore the terminology is not culture dependent; it is mostly known
internationally. Institution al translation, which includes legal translation, is culture dependent;
making it typical for particular culture.
Legal translation is a specialized, culture dependent translation, and it the legal
translators’ task to stay faithful to the intent, tone, an d the format of the original, source legal
document, yet make the text clear and understandable to the receiver, without taking any
creative liberty, which is considered unacceptable in the formal constraints of legal language.

English Matters III 30
Experienced legal translato rs deal with a plethora of transla ting challenges. The direct
translation of a name of an institution, a concept, or legal terminology , which is understood
equally well in the target language (TL), as the original was in the source language (SL) may
not be found. The technique employed in such cases is referred to as finding a functional
equivalence, and it is described by Newmark as “a procedure that occupies the universal area
between the SL and the TL” (Newmark 2005: 83).
Functional Equivalence
Dr. Nid a’s theory of functional equivalence has a great influence on translation,
including legal translation. The term functional equivalence highlights the impact the message
has on the target language and the source language reader. We can use the often quoted
diagram to illustrate this theory:

Figure (Nida, 1982:22)
The first box represents the source (S), who sends the message (M1), which is received by an
original recepto r (R1). The translator, who is both receptor and source, first receives M1, as if
he were an R2, and then produces in a totally different historical -cultural context a new
message M2, which he wants to be understood by the final receptor R2. The difference s
between the two languages and the two cultural settings are represented by the different
shapes. The squares represent the source -language factors and the circles represent the
receptor -language factors.
Šarčević (Šarčević 1988: 964; 1989: 278 -279) defines the legal functional equivalent
as a term in the target legal system designating a concept or institution, the function of which
is the same as that in the source legal system. Weston describes the valu e of functional
equivalence in legal translation by suggesting that the technique of using a functional
equivalent may be regarded as the ideal method of translation (Weston 1991:23).
As Dr. Nida (2001) says, “in general it is best to speak of ‘functional equivalence’ in
terms of a range of adequacy, since no translation is ever completely equivalent. A number of
different translations can in fact represent varying degrees of equivalence” (Nida 2001) .
According to Jean -Claude Gémar, functional equivalence s hould be used for
translation of contracts (Gémar 1995 -II: 163 – 166), suggesting that the target term would be
understandable to the target reader, as well as close to the source term. Vermeer (2000)
further adds:

For instance, in regard to contracts, th e decision whether and to what extend target –
language formulae should be used is determined primarily by the law governing the
contract. This fact is essential because it determines whether the contract will be
interpreted according to the source or the t arget legal system (Vermeer, 1982: 99, as
translated in Šarčević, 2000: 19) .

English Matters III 31
Dr. Nida (1993) suggests that functional equivalence is appropriate mostly when application
of formal translation would not be adequate, as depicted in these three principles of functional
equivalence.
Principle I: Functional equivalence is necessary if a close, formal translation is likely
to result in misunderstanding of the designative meaning, certain changes must be introduced
into the text of the translation.
Principle II: Functional equivalence is necessary if a close, formal translation makes
no sense, certain changes may be introduced into the text.
Principle III:Functional equivalence is necessary if a close, formal translation is likely
to result in serious misunderstan ding of the associative meanings of the original text or in a
significant loss in a proper appreciation for the stylistic values of the original text, it is
important to make such adjustment as are necessary to reflect the associative values of the
origina l text. (Nida, 1993:125)
Šarčević (2000: 238) divides functional equivalence into three groups: near –
equivalence, partial equivalence, and non -equivalence.
Near -equivalence
Near -equivalence occurs when legal concepts in the source language and the target
language have common prim ary and incidental characteristics or are the same.
To demonstrate near -equivalence, the term ‘common -law wife’ (source term, English
being the source language) can be used. It defines a female cohabiting with a male as his wife
without being married to hi m. This term translated into Slovak language (target language in
this instance) is ‘dru žka’. In the context of the legal system in which the source term
originated, a ‘common -law wife’ has certain rights and in some aspects of the law she is
recognized as equal to a married person to receive protection against domestic violence, for
some pro visions of the Rent Act or inheritance (Dictionary of Law, 2003). According to the
law in Slovakia, ‘družka’ has the same legal rights.
Another example that demonstrates near -functional equivalence is the term ‘annual
bonus’ as a source term in English. W ithin the law of the source country, this term means
certain amount of money awarded once a year as a reward for employees for fulfilling their
responsibilities and for delivering superior services. The culturally relevant term with the
same connotation in Slovak language would be ‘trinásty plat’, which in literal translation into
English means ‘thirteenth salary’. However, the term ‘annual bonus’ can also be translated as
‘ročný bonus’, a term that the Slovak speaker will easily understand and for its universality it
will became near -equivalent to the source term.
Partial Equivalence
Partial equivalence happens when the source and target language legal concepts are
quite sim ilar and the differences can be clarified by methods such as lexical expansion.
One ex ample of partial functional equivalence is the term ‘director’. In Slovak
language the equivalent for ‘a director’, ‘riadite ľ‘does not have to be a member of the Board
of Directors in order to hold that title. However, in the United Kingdom a non -member would
not be able to hold such title. To make the differences in between the source term and the
target term clear, a legal tr anslator can add ‘a člen rady riaditeľov ’ (and member of the Board
of Directors) in parentheses.
The term ‘contract’ can be used as an other example of partial equivalence in legal
translation. The Slovak meaning of ‘contract’ (zmluva) is much broader than its English
equivalent and it can also be replaced by the term ‘agreement’. It is up to the legal translator

English Matters III 32
to consider the circumsta nces and decide whether lexical expansion is needed when
translating this term into Slovak as the target language.
Non-Equivalence
Non-equivalence happens when a few or none of the important aspects of the source
and target language legal concepts coincide or if there is no functional equivalent in the target
legal system for a specific source terminology. It is the legal translator’s challenge to
descriptively paraphrase the term or phrase followed by the original in parenthesis. This
particular translatin g situation requires the legal translator to be closely familiar with the law
of the source and target countries, so that the paraphrased term is truly adequate.
A good example of a non -equivalent term is ‘severability’. The term does not have a
functional equivalent in Slovak legal terminology. Therefore, the translator has to fully
understand the implications of the term in English law and then find an adequate concept in
the legal terminology of the target language, Slovak in this case. ‘Severability’ is the name of
a contract clause that is meant to condense the meaning of the entire clause and which defines
consequences for the entire contract if part of the contract is not fulfilled. Instead of looking
for a way to translate this term, it should be replaced by a neutral paraphrase: ‘rozdielna
interpret ácia kontraktuálnych provízií‘(separate interpretation of the contract provisions)
which has the same legal effect as ‘severability’, followed by the original term in the source
language.
Conclusion
Legal translation is a challenging process. Legal translation, as institutional, culture
dependent translation, requires of a translator to be fully ling uistically proficient in the source
and target languages, as well as to be perfectly familiar with the cultures and legal systems of
the source and target countries.
One of the challenges of legal translation lies in the fact that legal terminology is ver y
system and country specific. Many times the legal terminology in the source language cannot
be translated directly, or literally. This issue brings forth the functional equivalence.
Functional equivalence finding is the process, where the translator unde rstands the concept in
the source language and finds a way to express the same concept in the target language in the
way, in which the equivalent conveys the same meaning and intent as the original. This can be
achieved through finding a phrase of the same meaning , lexical expansion, or descriptive
paraphrasing.
Consequently, the method that the legal translator chooses depends on the degree of
equivalence within the concept. While near equivalence may require the translator to simply
find a phrase in the target language with the same meaning, non -equivalence needs more
involvement, where the translator needs to paraphrase carefully, without loosing any of the
original information and intent.
Inadvertently, legal bodies using the legal translators depend on the translators‘
abilities to make sound translating decisions, even when the source and target legal systems
and legal terminology make it an extremely involved process.

English Matters III 33
References
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traduction , Québec: Presses de l’ Université du Québec.
Nida, E. A. (1993): Language, Culture and Translating , Shanghai Foreign Language
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Author
Marcela Müllerová Shiflett, M.Ed., Faculty of Philosophy, Prešov University, e-mail:
marcelashiflet t@gmail.com