Translation Equivalence as Legal Fiction

Abstract

A translated text shall be the same as the original text. This simple and often assumed, but hardly incontrovertible requirement provides the foundation of the language policy of many bilingual or multilingual jurisdictions (hereafter, ‘bilingual jurisdictions’). An important question associated with the proposition persists, however, regarding the kind of equivalence that underlies the stated notion of ‘sameness’. Bilingual jurisprudence assumes that a translation and its original will carry the same meaning. Yet such an assumption is frequently challenged by instances where textual differences are discovered that call for painstaking reconciliation based on interpretative principles. Although it is widely recognised outside law that translations can hardly be perfect, bilingual legal systems rely on an unsafe assumption of translation equivalence, presumably because for law in particular the notion has a certain utility. Is textual equivalence, in these circumstances, a legal fiction (as historically ‘benefit of clergy’, John Doe and ‘steward of the Chiltern Hundreds' were, and others remain today)? If so, what function, as a part of legal reasoning, does this putative legal fiction serve? This chapter analyses the specific nature and significance of translation equivalence as a legal fiction, as well as the purposes it may serve. That analysis is then used to illustrate broader issues regarding law, translation, and the relationship between the two.