Lost in the Eurofog: The Textual Fit of Translated Law

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Abbreviations and acronyms

Glossing abbreviations

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Acknowledgements

This study was financed by research grant no. 2251/B/H03/2010/38 (2010–2012) from the Polish Ministry of Science and Higher Education.

I wish to thank Professor Anna Duszak of the Institute of Applied Linguistics at the University of Warsaw for reading the manuscript and making insightful comments which helped me to improve my work. I am also grateful to Professor Stanisław Goźdź-Roszkowski of University of Łódź for reading the draft version of the book and for his valuable feedback. Special thanks are due to the Professors from the Translation Research Summer School (University College London, 2007) and CETRA — 20^th Doctoral Summer School (Katholieke Universiteit Leuven, Belgium, 2008), who helped me to shape, refine and narrow down my initial research design. Any shortcomings remain my own.

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Introduction

The language of Europe is translation.
Umberto Eco

Translation has been perceived both as an agent of regeneration and degeneration in the history of legal Polish. Since its early phases of development in the Middle Ages, legal Polish has changed to a large extent through contacts, not always voluntary and welcome, with other languages and legal systems — Latin, German, Russian and most recently English. The latest evolution of Polish, an Eastern European language spoken by about 40 million people, is connected with two momentous events in the history of Poland: (i) the fall of Communism in 1989 and transition from a centrally-planned to market economy, and (ii) accession to the European Union (EU) in 2004. As a result, in the last two decades the country has experienced a tide of political, economic, social and cultural changes, facilitated by an unprecedented transfer of know-how, via translation, from Western Europe and Northern America.

This book addresses the second round of changes, resulting from Poland’s accession to the EU. The condition for EU membership was to translate Acquis, the body of EU law, and harmonise national law with EU law. The harmonisation of national law was based directly on translated law. EU-related legal translation, as stressed by Lambert, goes beyond legal issues and has also social, cultural and political implications: “It is (also) about identity, about entering a new world, first of all in terms of discourse, then (later) in terms of rights and commitments” (2009: 91). Poland’s accession to the EU was, above all, symbolic in that it has restored a sense of belonging to Europe and strengthened the European identity. Despite some sceptical voices, 78% of Poles voted for EU membership in the 2003 referendum.

This project intends to answer the question whether the Polish of EU law, a substantial portion of which is directly applicable in Poland, is different from the language of national law and, if so, to what extent and how. For this purpose the hypothesis was formulated that, despite the harmonisation, translated EU legislation differs from nontranslated Polish legislation due to two major groups of factors: (i) those related to the hybridity of EU discourse, its goals and institutional norms of translating, and (ii) those related to distortions typical of the translation process and source-language (SL) interference. To test the hypothesis, the following research questions were formulated:

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(1) How does translated EU legislation differ from nontranslated national legislation:

(a) globally as a genre (text-structuring and grammatical patterns)?

(b) locally at the microstructural level (term-embedding, term-forming and lexical collocations)?

(2) Have the differences between translated and nontranslated legislation left an imprint of Europeanisation on the post-accession Polish legislation (2011) compared to its pre-accession version (1999)?

The corpus-based methodology was an obvious choice for the study due to its potential to analyse and compare a large set of data and to uncover patterns of language in an objective, reliable and systematic way. The analysis was conducted with comparable corpora of Polish: (i) JRC-Acquis, a corpus of EU law from which two subcorpora of regulations and directives were separated, and (ii) the Polish Law Corpus built by the author as a reference corpus with a subcorpus of codes and law-type statutes in their 2011 and corresponding 1999 versions to study recent language change potentially induced by the avalanche of translated EU law; (iii) the National Corpus of Polish used as a reference corpus to analyse legal genre conventions against general Polish.

The choice of recurrent lexicogrammatical patterns for the analysis has been dictated by a recent surge of interest in patterns awoken by corpus-based advances in various branches of linguistics, translation studies, terminology and neighbouring disciplines. The introduction of electronic corpora to language studies has been compared to the introduction of telescopes in astronomy (Stubbs 2004: 107), and one of the fundamental theoretical aspects that has been brought into focus is the prefabrication of language. This study will investigate to what extent it is possible to recreate the natural patterning in legal translation, with reference to key generic features of legislation.

EU translation is rarely researched within translation studies (cf. Koskinen 2008: 27). The present study is a pioneering project in that it addresses a number of the hitherto neglected areas: EU translation, EU Polish (a eurolect) and its impact on the language of national law. It offers a contribution to the ongoing debate on EU translation from the perspective of a Slavonic language, which is genetically different from Romance and Germanic languages. I reactivate the concept of textual fit, operationalise and extend it to the analysis of translated EU law, and demonstrate its applications. The methodological objective of the project is to test the potential of corpus-based methods to research legal translation.

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This book appears in the series Studies in Language, Culture and Society (edited by Anna Duszak, Andrzej Kątny and Piotr Ruszkiewicz). It reports on the data-driven corpus-based research of intra-language variation and change brought about by Poland’s accession to the EU, relating them to institutional, political and procedural factors. Thus, it presents research on an institutionalised form of mediated multilingual communication. The theoretical objective of the book is to increase our understanding of EU translation, its properties and impact on national law, while the applied objective is to improve the quality of EU translations and training methods.

SYNOPSIS

The book is divided into two parts. Part I sets the theoretical ground for measuring the textual fit and prepares an interdisciplinary conceptual framework for the analysis by integrating knowledge from a number of fields, most notably corpus-based translation studies, legal language studies, and EU translation, to account for various contextual factors and constraints which operate during the translation process and affect the target text. Chapter 1 discusses the basic properties of legal language, concentrating on its prefabrication and recurrent patterns that are typical of legislation. Chapter 2 introduces EU translation as an independent research field, analysing institutional drafting and translation processes and their impact on the hybridity of the genre of EU legislation and national legislation. Chapter 3 discusses the potential of corpus-based methodologies, their applications in translation studies and defines the parameter of textual fit as a linguistic distance between translations and nontranslations in terms of overrepresented and underrepresented lexicogrammatical patterns. Part II comprises an empirical study into the textual fit of EU legislation translated into Polish against nontranslated Polish legislation. First it describes the design of corpora and methodological issues (Chapter 4). Chapter 5 analyses the textual fit at the macrostructural level of key generic features, investigating grammatical and text-structuring patterns, in particular as they reflect mental models of legal reasoning. Chapter 6 analyses the textual fit at the microstructural level, examining term-embedding, term-forming and lexical collocations. The findings are juxtaposed with the pre-accession version of Polish law to see how the post-accession language changed and whether some changes could have been facilitated by the over- and underrepresentation of certain patterns in translated EU law. Chapter 7 contains a synthesis of the results and their qualitative interpretation, final conclusions, limitations of the ← 15 | 16 → study, suggestions for further research and practical applications of the study in translator practice and training. The findings of the study demonstrate that the textual fit of EU law is divergent; translated EU law markedly departs from the generic conventions of Polish law, invading its integrity and colonising the genre. As a result, translated law creates a distinct, foreignising, more European variety of Polish (a eurolect), which, in addition to being a product of efforts to ensure a uniform interpretation and application of multilingual law, seems to be a by-product of the unequal interaction between a majority and minority culture.

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Part I. Constraints of the Translation Process

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Chapter 1. Legal language and its patterning

1.1 System of legal genres

An attempt to define EU legal translation should be preceded by a discussion of its underlying structure, legal language, which contributes to its fuzziness. The term legal language has a broad meaning and is used interchangeably in a generic sense to cover all types of legal language, including the language of the law (cf. Tiersma 1999: 139), as well as in a narrow sense to refer to the metalanguage of the law and semi-legal language. To add to the confusion, the term language of the law is similarly used both in a generic sense (cf. Mellinkoff 2004[1963]: 3; Gémar quoted in Šarčević 1997: 9; Gibbons 2003: 15) and in a narrow sense (cf. Alcaraz and Hughes 2002: 101).