Some legal terms just don't exist in some countries, and that presents special challenges when legal documents need to be translated. Translating legalese word for word is virtually impossible for conveying the intent of a legal instrument. A depth of knowledge and understanding about the legal systems, cultures and languages of different countries is called for, in order to produce a translation that has the same legal effect in each place.
Code Law, Case Law
Legal systems for most countries are based on either civil law or common law. Civil law uses legal codes, and common law is based on case law, or precedents, where laws are established through rulings made by judges. Generally, English-speaking countries use common law legal systems, and continental Europe and most of South America use civil law. Some countries use a combination of both civil and common law, and differences can exist within the framework of the legal systems of each nation. Even when countries share the same language, legal concepts can vary.
The growth of international trade has increased the need for translation for corporate documents. Commercial law systems introduce another layer of complexity to translation, as corporations seek to harmonize agreements in a globalized culture.
The legal knowledge of the translator is put to the test when a legal concept is unfamiliar in the target language, and an equivalent term needs to be found that expresses the intent.
For example, in Turkey, the term "barrister and solicitor" doesn't exist; the Turkish words for "lawyer in court" and "consulting lawyer" might be used to define that role. Japan has few lawyers, but legal tasks in different branches of the law are carried out by people with other titles, such as judicial scriveners, administrative scriveners, and civil law notaries.
Translating to English might mean using different words for the same thing, depending on whether the target is American or British. For example, the Turkish "hapishane" is "prison" in Britain and "penitentiary" in the United States.
Legalese often contains words that mean something different than their use in ordinary life, and little words can mean a lot. For instance, "shall" denotes obligation and authority in legal English; in Turkey, "shall" is translated to "take," to achieve the same weight.
Familiarity with the legal system of each country is essential when embarking on the translation of legal text, but that's not the only consideration. Legal systems are influenced by the culture of a country. In Japan, lawsuits are avoided, for example, while the United States has a reputation for being litigious. Lawyers in the United States conduct oral presentations and examine witnesses, tasks which are the domain of judges in Japan. Written briefs are relied on in Japanese law practice to a greater degree than in the United States.
Sometimes concepts that are fundamental to one country's legal system don't exist at all in another's. One such dilemma is posed in translating to Turkish, where no system of "common law" or "equity" exists. The legal translator must pull out more techniques from the toolbox to bridge the gap in those situations.