Power Issues in Legal Translation: The Methodological Battleground

Abstract

As the receptacle of bilateral sociocultural representations converted in text, translation pits against one another sociocultural and normative models heralded by different anthropological communities, thereby eliciting power issues. Legal texts are the herald of agreed-upon sociocultural truth upon which life within a community is organised. Terms are avatar of normative paradigms. Their use, especially beyond their cognitive anchorage and textual boundaries, deserves to be investigated as they can create resistance as revealed by the legal translation of OHADA in bijural Cameroon. Legal translation is a space, where power is extended on the one hand or restricted on the Other by agents who are translators. Through recourse to specific translation methods, the former lean power on one side rather than the Other. Methodology, therefore, becomes a space, where decisions are made and power constructed. This chapter aims at identifying the methodological processes used by translation to manipulate power. The investigation of this shall be done using Neumann’s game theory to figure out power dynamics at the micro-structural level. Pergnier’s sociolinguistic theory shall be used to demonstrate the necessity to accommodate the Other using symbols likely to draw a parallelism in social function.

1. Introduction

Views on legal translation as a mere transfer between terms and concepts from one language to the Other have grown into gradual disrepute since the ‘cultural turn’ in the 1980s [1]. Linguistic items, which have a social embeddedness, combined in the syntagmatic chain of legal texts express the normative perspective of communities engaged in cultural mediation. This has tended to raise the stakes around cultural accuracy and receptivity of legal translation in the target community and text [2]. The extratextual (social and institutional) reach of legal translation issues elicited conceptual borrowings, especially in social sciences with the notion of ‘power’, to characterise the dynamics and high-stake issues behind legal translation, especially in spaces marked by a range of dualisms, such as Cameroon. Indeed, owing to historical and power-related factors (colonialism), the country is a bilingual country, where French and English are the official languages. Secondly, the country is endowed with official Bijuralism as Continental Law and Common Law are the two legal perspectives in force in the legal system. Last but not least, the geographical bipolarity. As pointed out by Eyelom [3] after colonisation the country has been symbolically divided between French-speaking and English-speaking communities, which occupied distinct geographical spots. The Western part of the country, where the minority group has the English language and Common Law as identity markers, whereas the Eastern part, which is home to the majority group in terms of institutional representativity and space, is organised around different anthropological determiners: French language and Continental Law. Legal text is the epitome of social norms. Therefore, effective intercultural communication achieved inter alia through translation dwells in the capacity to preserve legal models ethnographically represented in terms and concepts reflecting the epistemic peculiarities serving as heralds of those distinctive geographical areas. The textual embodiment of power, which gained momentum in several fields within social sciences, especially in political sciences and philosophy [4] has also caught the attention of translation studies experts [5, 6] and also in legal translation studies [7] who have set a critical eye on methodology as the decision-making space of power dwelling in the equal distribution of references in either part of the textual boundaries.

2. Power issues in legal translation

2.1 Some epistemic considerations

The legal translation of OHADA uniform acts pits the Continental Law model against the Common Law. Terms specific to Continental Law are applied without accommodation or cultural conversion. Resistance marked by Common Law practitioners following the reception of that translation is a testimony the effects linguistic forms have on collective mind and culture. Following Neumann’s game theory [8], one can infer that the practice of translation is to be regarded as a profit-and-loss activity, where stakeholders to the linguistic and intercultural mediation extend or restrict their potential of representation depending on the structural determinism of the cognitive space on the one hand, and the epistemological/methodological tools used by actors of mediation on the other hand. In addition to what can be dubbed as the methodological habitus used in a specific milieu to preserve the orientation of meaning and power structures, the political apparatus can also be pointed out as an instrument of status quo. Following the perspective of anthropological linguistics Sapir-Whorf hypothesis and the philosophy of representation [9], one can contend that language has the capacity to frame the cultural perspective of anthropological communities anchored in a geographical spot at a historical moment. The encounter between anthropological communities established a de facto economy of cultural exchange through the medium of language. Ideally, translation, which hosts distinctive representational models, aims at preserving the authenticity of the cultural model of each community taken part in the exchange. Meanwhile, the methodology used in translation at times creates conceptual imbalance, where alterity (target language) is represented according to the source language standards of representation. Legal language and texts are special in that regard. Indeed, Harvey [7] defends the view that unlike other types, legal texts have the capacity to influence patterns of behaviour, models of culture and identity within a group. Therefore, the circulation of legal terms across systemic boundaries is to be scrutinised.

2.2 Philosophical’s perspective on power

2.2.1 Saussure’s perspective on power at play through languages in contact

Within the purpose of this paper, power shall be discussed following the Foucauldian and Saussurian perspective. The latter views of linguistics as a sub-field of semiology are an indication of the ontological transfer and conversion of sociocultural perspective communities make in language. Talking of power issues emerging out of the encounter between anthropological (and therefore) linguistic communities, De Saussure [10] outlines two trends characterising the majority power and triggering resistance in the minority community: l’esprit de clocher and l’esprit d’intercourse. The first refers to the willingness each community has to preserve its sociocultural model, while the second has to do with the secret agenda each community has to extend its power (sociocultural/linguistic capital of representation) beyond its borders. Indeed, the symbolic borders and boundaries in translation require an adaptation to preserve the Other’s network of representation and abide to the first trend depicted by Saussure. Failure by the source community to do so is an implementation of the second Saussurian trend. This is realised through methodological perspectives used by translators (actors of cultural mediation) in transferring the message. The phenomenon at play in the corpus, which justifies the recourse to this perspective is the continuous ‘invasion’ of alien conceptual representation in English Common Law text to be applied in OHADA. Indeed, the clocher, which rang after the presence of alien symbolic textual artefact following the translation of OHADA, was meant to counter the intercourse offensive by the majority culture.

2.2.2 Foucault’s perspective

The second perspective, which shall also be instrumental in figuring power dynamics at play in legal translation, is that of Michel Foucault. Indeed, the French philosopher views power as an intellectual process at play by a majority entity to further expand and superimpose its cultural and symbolic model (of representation) on minority culture through the strategic of position of linguistic items in discourse. The key concept of this theoretical perspective is the archaeology of knowledge. Patterns of knowledge encoded into specific concepts got accustomed to be translated into Spanish and other languages pertaining to the Roman tradition serving as bridge to the circulation of a legal model. The shift from French into English requires not only surface changes but also cultural accommodation. What is more, the chronological precedence of a cognitive model in a dual network can account for its predominance in the representational space. In effect, the paratextual elements of the OHADA Uniforms Act clearly indicate that Continental Law is the legal building block on which the epistemic infrastructure of the organisation has emerged. Legal transcoding, which was realised through recourse to specific methodological tools preserving the unchallenged cultural hegemony of Continental Law representation. In order to preserve structures of conceptual hegemony between legal perspectives, the historically crafted methodological habitus is used in legal translation. Intellectual processes used to that end are subject to scrutiny, especially in spaces such as translation, where intercultural communication is expected to happen between actors abiding by different normative standards carried forward by ethnographic conventions. The circulation of (alien) concepts, notions and terms, which are cultural artefacts, beyond sociocognitive, linguistic and textual boundaries of their native space of conception has implications as far as power is concerned since it reframes the normative standards and habitus of the target community which at times resists the ‘foreignisation’ or alienation process. Foucault discusses the notion of ‘archaeology’ to find out elements, which, at a point in time, invades the ontological structures of an entity to incline it following the standards of a hegemonic power. The performative effects of legal terms and notions on the sociological model of the target community is a matter of great concern when intercultural communication is to be achieved between two communities endowed with distinctive standards of representation.

Foucault’s philosophical standpoint is inspired by influential philosophers who discussed power issues in society: Nietzsche, Marx and Sartre. Although all of them discuss strategies of liberation from structures of oppression and alienation, only the latter deals with issues of representation. From his perspective, two tendencies are observed in spaces, where power is unequally distributed: essentialism and existentialism, the one being the ascribed representation the majority group superimposes on the minority; and the other being the willingness by the minority group to have its avowed model of representation recognised by the majority. Foucault gives a linguistic orientation to that view by examining the way structures of power are constructed in discourse [11]. Critical attention is also given to space (physical, institutional or intellectual), where power dynamic unfolds. Epitomising Foucault’s thought, Gutting [11] discusses elements genealogical precedence on which hegemony of the majority culture representation is grounded.

Bilingualism and Bijuralism, which are the herald of dual narrative on experience lived in a space and opposite perspectives on social norms expressed in separate linguistic forms and ethnographic conventions offer a fertile ground to figure out the power dynamics observed in a specific environment [12]. The different actors involved in the symbolic clash and the role of cultural mediators in the process of intercultural communication and identity convergence building. Translation, in which scope of action and implications exceeded the boundaries of text is a ‘symbolsphere’ reflecting the dualism observed in critical social situations. The management of culturally-loaded linguistic symbols in text through an adequate methodology (space of dedicated to decision-making on the ways to achieve intercultural communication) by (un)biased agentivity is key an essential to an equitable power distribution.

2.3 Translatorial perspective

Linguistics and its offshoot translation (Studies) have been enmeshed in the shackles of structuralism following Saussure’s perspective on language and deciphering of meaning conveyed in symbols. This view was challenged by critical perspective on language as the social representation of (dual) sociological perspective observed in real-life experience [13]. The cultural and ideological turn illustrates that state of affairs [1]. Translation (Studies) as the symbolic space for the representation of dual sociological perspectives and narratives has emerged as a place of reconciliation and restoration of power.

Aristotle’s quote on the political involvement of all actors in the social space (man is a political animal) gives leeway to the scrutiny of translator activity and activism in power distribution. Political and sociological perspectives enshrined in law are expressed using words or terms. Translators in dual spaces of representation have the power to weigh in in favour of one cultural model. Representing the Other with alien symbols marks a restriction of power. Indeed, as the epitome of the social perspectives developed by communities during their historical experience, (legal) text linguistic symbols in texts are elements of power restriction or extension, depending on the strategies used by translators to negotiate between cultural groups involved in the interaction. Power in language dwells in the capacity to extend the potential of cultural representation beyond the boundaries of native space. Consequently, the crossing of terms in textual boundaries is to be done taking into consideration the norms of the target language. Baker [14] supports the view that the translator’s mind before the process leading to the translatum (product) is not a tabula rasa. Indeed, each individual is endowed with preferential cognitive and epistemic structures directing him to make a choice between two models. In doing so, the translator stops being a cultural mediator between languages and cultures and becomes an agent of a culture and its language. Clash of representation leading to conflicts of power distribution at the backdrop is experienced as two spaces. First, the social and institutional environment, where one model prevails over the Other, and second the translator’s mind in which the dominant cognitive and cultural model expressed in one language, which, at times, is the dominant language or the language of the dominant group in the sociopolitical space marked by dual cognition. Bilingual countries such as Cameroon, are home to dual cognitive models in several domains such as education or law face political challenges as the majority culture reduces space for the minority cultural representation, especially in text. The case of Cameroon, a bilingual (French-English language) and bijural (Continental Law & Common Law) country is one of the kinds.

3. The translation of OHADA

Inequality in power representation is generally the result of political force, which unequally occupies the physical, symbolic and cognitive spaces, thereby creating a co-culture (Orbe, 1997) seeking existence (in the sartrian sense) in text through the materialisation of self-using its symbols. In Cameroon, the social and security crisis, which broke out in 2016 was inter alia triggered by a legal translation issue. Indeed, the English-speaking lawyers using Common Law were against the overrepresentation of Continental Law perspective in legal text as there was no English version of the OHADA Law [15]. The translation produced after that sociopolitical uproar was symbolically in favour of the Continental law perspective. The lack of conceptual and terminological accommodation was regarded as a move geared toward preserving the dominant’s culture power. Thus, Baker [14] viewed translation as a space, where the political bias symbolically materialised in text can be corrected.

It is worthwhile mentioning that legal language or discourse is the embodiment and symbolic conversion of a normative paradigm adopted by an anthropological community in the course of history [16]. Law, which is expressed in language, is the enshrinment of such a paradigm, which can be in competition which another one in multilingual and bijural spaces. The image of a tug-of-war battleground between two challenging forces can be applied to depict the power contest taking place between two communities engaged in legal translation. Communities pit their cultural models against one another to secure recognition and the adoption of hegemonic position in the institutional space. Gémar [17] supports the view that in legal translation there is always a majority group (le mieux-disant), which huge potential in terms of power of representation, and a minority group (le moins-disant), which can hardly exist in the legal symbolsphere as its ontology is represented with the majority group symbols. More than other linguistic structures, where cases of cannibalism can be observed in translation, semantics (terminology) which is conceptually loaded expresses the cultural perspective a community has on law and normative organisation [18]. Failing to accommodate legal terms from one system to the Other is equivalent to superimposing alien identity traits into a culture, which does not recognise it. Gémar (2002: 166) supports the view that:

Autant de particularityé qui font du droit, lorsqu’il s’agit de traduire un texte juridique, un domaine particulier voire paradigmatique, compte tenu des différences que présente l’opération traduisante en l’espèce. Le droit est un des domaines les plus culturels, donc singuliers qui soient. Ils remontent aux sources de la civilisation de chaque langue et de la culture qu’elle porte. De plus, le droit est un phénomène local […] Le langage du droit d’un pays exprime en conséquence et au plus haut degré la charge historique d’une notion, d’une institution […] Leur traduction dans une autre langue, si tant est qu’elle existe (cf.common law) rend-elle justice à la richesse de la notion dont ces termes dont ces termes sont porteurs.

Translation requires not only a transfer of items composing the superficial structure but also foremost the deep structure. While the former has to do with semantics, stylistics and syntax (length of sentences, precedence of specific linguistic categories, etc.), the latter deals with the doctrine and other tenets on which legal specificities are grounded.

Cameroon’s profile within the institution is one of the kinds. In effect, the organisation for the Harmonisation of Business Law in Africa (OHADA) is grounded on the mainstream Continental law doctrine. Among its seventeen countries composing the organisation, Cameroon is the bilingual and bijural country. The country is in a condition of partial compatibility with other member states. Indeed, the Common Law does not fall in line with the organisation’s legal tenets. This legal system clearly stands out with Continental Law in terms of conceptual and terminological orientations. Elements, such as syntax and stylistics, are also to be accommodated as each community abides to a set of ethnographic conventions reflecting the overall orientation of a specific community. Literal translation used in the translation of OHADA does not take into consideration the specificities of the target community, thereby ascribing the source and dominant’s culture set of representation on the minority culture. Discussing the challenge and dilemma the legal translation of OHADA represents for this country, Engola and Bell Mandeng [19] present the peculiarities of cognitive peculiarities rendering the practice of legal translation complex.

Indeed, the political action is grounded on a set of legal principles (expressed in language), deriving from the sacrosanct cognitive environment established during the history. The conceptual dichotomy is the main challenge in translation. Discussing the inadequacy of direct translation processes, in a context of official Bijuralism, David [20] supports the view that Civil Law and Common Law texts cannot be translated. He used the metaphor of fauna and flora to support this view. In their enumeration of translation technics and processes, Vinay and Darbelnet [21] depict different cognitive situations requiring specific technics to be applied for adequate translation. They supported the view that legal translation. Indeed, they supported the view that literal translation can also be appropriate in cases of conceptual and semantic representations between languages are homogeneous. Equivalence in translation can be applied when both cultures involved translation have items expressing the same function. The last technics, equivalence and adaptation, used in instances when one culture has an element, which is not part of the Other culture’s set of representation. Instead of a systematic application of literal translation, those technics are to be used, depending on the level of compatibility between conceptual elements contained in terms. Ndongo [22] setting a critical glance on the legal translation strategies of OHADA defended the view that terms are generally opposite and a bridge is to be established for smooth communication.

Translation, and most especially legal translation has emerged as a mean whereby social peace can either be achieved or undermined. Discussing the necessity to adequately translate legal texts, Sarcevic [23] defends the view that legal translation can have effects on the social sphere. Indeed, resistance emerges out of a conflict of representation between the minority culture’s avowed identity expressed using specific cultural items in text and the ascribed identity, which is the set of symbols used by the majority group in cultural mediation to represent the minority. This mismatch creates resistance beyond the boundaries of text. The case of the legal translation of OHADA is iconic of that state of affairs. Indeed, Common Law in Cameroon has its own conceptualisation in terms of Business Law. Specific terms are used to convey those specificities and cognitive markers. The legal translation of OHADA from French Continental Law to English Common Law has been the scene of conceptual and terminological cannibalism. In the corpus, several elements demonstrate that state of affairs (Table 1).

	Original version	First translation	Retranslation
1	PARTIE I – DISPOSITIONS GÉNÉRALES DE LA SOCIÉTÉ COMMERCIALE – LIVRE 2 – FONCTIONNEMENT DE LA SOCIÉTÉ COMMERCIALE – TITRE 4 – PROCÉDURE D’ALERTE – CHAPITRE 1 – ALERTE PAR LE COMMISSAIRE AUX COMPTES – SECTION 1 – SOCIÉTÉS AUTRES QUE LES SOCIÉTÉS PAR ACTIONS/ Article 150 (P38); Le commissaire aux comptes, dans les sociétés autres que la sociétés anonymes, demande par lettre au porteur contre récépissé ou par lettre recommandée avec demande d’avis de réception des explication au gérant qui est. tenu de répondre, dans les conditions et délais fixés aux articles suivants, sur tout fait de nature à compromettre la continuité de l’exploitation qu’il a relevé lors de l’examen des documents qui lui sont communiqués ou dont il a connaissance à l’occasion de l’exercice de sa mission.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 2 – FUNCTIONING OF A COMMERCIAL COMPANY – TITLE 4 – ALARM PROCEDURE – CHAPTER 1 – ALARM BY THE AUDITOR – SECTION 1 – COMPANIES OTHER THAN PUBLIC LIMITED COMPANIES /Article 150 (P143); In companies other than public limited companies, the auditor may, by hand-delivered letter against a receipt, or by registered letter with a request for acknowledgement of receipt, ask for explanations from the manager who shall be bound to respond, in accordance with the conditions and within the time limits set forth in the following articles, in respect of any matter likely to jeopardise the continued operation of the company which and the auditor noticed while examining documents forwarded to him or those he had access to in the performance of his duties.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 2 – OPERATION OF COMMERCIAL COMPANY – TITLE 4 – ALERT PROCEDURE – CHAPTER 1 - ALERT BY THE AUDITOR – SECTION 1 – COMPANIES OTHER THAN SHARE COMPANIES/ Article 150 (P224); In companies other than public limited companies, the auditor may request, by hand-delivered letter against a receipt, or by registered mail with request for acknowledgement of receipt, explanation from the manager who is required to respond, in accordance with the conditions and within the time limits set forth in the following articles, on any fact likely to jeopardise the company operations, which the auditor noticed while reviewing the documents forwarded to him or any fact he uncovered in the performance of his duties.

Table 1.

Procédure d’alerte.

The corpus of OHADA has been translated two times (a translation and a retranslation). In the first example, the term Procédure d’alerte with its conceptual load materialised in the definition was submitted to the translation process. The first proposal was Alarm procedure with the second was Alert procedure. Indeed, according to the Common law legal practitioners puzzled over the issue, the function of this term in the Continental law culture finds an equivalent in the Common Law culture. Early warning procedure has been used as the exact equivalent to this term. At the level of concepts, major adjustments were needed in order for the target culture’s model of representation to be preserved. The linguistic-oriented methodology used in the process of negotiating cultures via translation is linguistically relevant but culturally irrelevant, especially for the main target audience, which is the legal practitioners (Table 2).

	Original version	First translation	Retranslation
2	PARTIE I – DISPOSITIONS GÉNÉRALES DE LA SOCIÉTÉ COMMERCIALE – LIVRE 1 – CONSTITUTION DE LA SOCIÉTÉ COMMERCIALE – TITRE 3 – STATUTS – CHAPITRE 6 – DURÉE-PROROGATION/Article 32 (P13); La durée de la société peut être prorogée une ou plusieurs fois.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 1 – FORMATION OF A COMMERCIAL COMPANY – TITLE 3 – ARTICLES OF ASSOCIATION – CHAPTER 6 – DURATION - EXTENSION – SECTION 2 – EXTENSION/ Article 32 (P122); The existence of a company may be extended one or more times.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 1 – FORMATION OF A COMMERCIAL COMPANY – TITLE 3 – ARTICLES OF ASSOCIATION – CHAPTER 6 – DURATION – EXTENSION – SECTION 2 - EXTENSION/ Article 30 (P196); The duration of a company’s existence may be extended one or several times.

Table 2.

Durée – Prorogation.

The second example discusses another term: durée de la compagnie. In effect, there is a paradigmatic contrast between legal cultures when it comes to the issue of duration. While in the Continental Law, the life span of a company is 99 years, in the Common Law culture the company once incorporated is set for perpetual existence. Using literal translation in such an example is tantamount to ascribing legal identity to a community, which abides to different epistemic standards. A pragmatic or function-oriented approach used thanks to comparative law is, therefore, necessary to carry out translation task (Table 3).

	Original version	First translation	Retranslation
3	PARTIE I – DISPOSITIONS GÉNÉRALES DE LA SOCIÉTÉ COMMERCIALE – LIVRE 1 – CONSTITUTION DE LA SOCIÉTÉ COMMERCIALE – TITRE 3 – STATUTS – CHAPITRE 6 – DURÉE-PROROGATION/Article 34 (P14); La prorogation de la durée de la société n’entraine pas création d’une personne juridique nouvelle.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 1 – FORMATION OF A COMMERCIAL COMPANY – TITLE 3 – ARTICLES OF ASSOCIATION – CHAPTER 6 – DURATION - EXTENSION – SECTION 2 – EXTENSION/ Article 34 (P122); The extension of the duration of a company shall not entail the creation of a new legal entity.	PART 1 – GENERAL PROVISIONS GOVERNING COMMERCIAL COMPANIES – BOOK 1 – FORMATION OF A COMMERCIAL COMPANY – TITLE 3 – ARTICLES OF ASSOCIATION – CHAPTER 6 – DURATION – EXTENSION – SECTION 1 - EXTENSION/ Article 34 (P196); The extension of the duration of the company’s existence shall not lead to the formation of a new legal person.

Table 3.

Durée –prorogation.

The last example of this corpus discusses another term – durée|prorogation showcasing a legal specificity of Continental Law. Indeed, as mentioned above, the Continental Law provides a limited time span for a company. Once the time limit is reached, a renewal is required. Common Law, which provides a limitless time span to companies does not abide to such standards of representation. Adaptation therefore is to be applied in order to effective identity convergence to be reached between both groups.

4. Methodology as the decision-making space in legal translation

4.1 Epistemic considerations and methodological guidelines

Before any considerations, as far as methodology in (legal) translation is concerned, note should be taken that power is materialised in the transfer of semantic and even stylistic structures without accommodation to the Other’s norms of representation. Fields, such as law (and legal translation), are particularly concerned in that regard. Legal texts enshrine the culture-specific social norms. Superimposing alien structural patterns in the sociocognitive environment through translation and resorting to specific methods (strategies and technics) is a bid by a source community to extend its power of representation while restricting that of the Other. The introduction of alien normative patterns in legal translation is likely to have critical effects as evidenced by Sarcevic [23]. In spite of the numerous definitions of translation, [24, 25] produced over time, some invariants prevail. Translation is a (rational) process, where a set of research methods tailored to the epistemological requirements of the cognitive contexts are used to realise a positive transfer in a target culture. Saldanha & O’Brien [26] support the view that translation methodology inspiring the choice of translators in the performance of their task is guided by a prior step consisting in figuring out the cognitive composition of translation. The product to be received in the target culture is also an important area of translation studies subject to scientific investigation. Last but not the least, translation is a profession engaging the translator to follow some ethical and deontological principles during the translation process to secure a positive transfer in the target community. Although correlation between these fields is obvious and directs toward transversality in the analysis of empirical studies, emphasis shall be laid on methodology. In the era translation studies (TS), seminal thinking about methodological issues has been developed by Holmes [27] under the heading of descriptive translation studies (DTS). DTS, which is the ground on which methodological considerations in TS emerged, has established three main sub-fields notably: Product-oriented DTS, function-oriented and process-oriented. Lack of access to the translation processes of OHADA has been an impediment to a thorough investigation of this research, thereby restricting the scope of analysis to the product-oriented and function-oriented DTS. Inference has been the methodological instrument used to discuss the methodological options taken by translators during the translation process. An overview of the translation methods used in the legal translation of OHADA shall help shed light on the double phenomenon of power extension on the one hand and power restriction on the other.

Seminal thinking on the accuracy of translation methods to suit sociocognitive patterns of the translatorial situation dates back to Vinay and Darbelnet [21] contribution, where a panorama of technics has been made. The awareness of the critical effects methodological options can have led to dramatic improvements in the range of options made available to legal translators. These were divided into two main categories: the direct translation methods and the indirect translation methods. The first encompass literal translation determining the translator to realise semantic correspondence through shift in grammatical items from one language to the Other as evidenced in the tables above. The second category hosts translation technics adopted by the translator after the notice conceptual discrepancies during ethnographic investigation and the logical choice of epistemological actions leaned on the accommodation of the Other following the new trends adopted in legal translation, especially amid Bijuralism. These decisions made by decision-makers during the methodological process prior to the production of the translatum into the target culture. The analysis of methodological processes, whereby power in text was extended from French Continental Law to English Common Law shall be done. Then, prospective methodological actions for an equitable power distribution shall be discussed.

4.2 Translation for normative purpose and literal translation

Differences in doctrinal principles have been pointed out as a major impediment to the harmonisation project of Business law in OHADA [22]. Amid Cameroon’s Bijuralism, which encompasses Continental Law and Common Law, legal translators are to play a key role in preserving the authenticity of cultural representations through adequate methodological options. Translation for normative purpose is a strategy, which applies in contexts of homogeneous conceptual representation. In effect, as pointed out by Bell Mandeng [28] OHADA hosts to more than seventeen countries. All of these countries have Continental Law as legal system. Cameroon is the only country having Common Law and Continental Law in the organisation. Therefore, the temptation to resort to literal or formal translation is high. Meanwhile, the specificities (conveyed in text) of the minority English-speaking Common Law culture, which is part of Cameroon are to be taken into consideration in the translation methodology to be used for intercultural legal communication. Millet [29] talks of several spaces where specific translation methods are to be used. International settings were an agreed-upon consensus on the interpretation of law is made can warrant the use to translation for normative purpose and literal translation. This is ‘almost’ the case for OHADA but the minority English Common Law in Cameroon calls for a further reflection on the issue as English Common Law stands out clearly from Continental Law.

As a showcase to sociocultural and normative perspective adopted by a community, the manipulation of terms, notions and concepts in legal translation is key to intercultural communication. Critical attention has been put on methodology as the place, where decisions are made and intercultural communication achieved. Indeed, (legal) translation before being a product and a process is first an intellectual planning, where the patterns of the cognitive space are carefully assessed in order to figure out the epistemic composition of the environment hosting the cultural perspective used by actors involved in translation. Direct translation processes can be used when homogeneity in representation is observed. Conversely, in cases of conceptual heterogeneity, translation methods should fit in that context. Equivalence and adaptation seem to be suitable in such cases. Legal translation, which deals with the management of cultural specificities, is to be carried out using the latter translation methods. Way [30] supports the view that globalisation and its shrinking impact especially on minority legal stakeholders give translators a unique opportunity to preserve the endangered models of representation using groundbreaking methods to assist them in decision-making materialised in the micro-text. Discussing the necessity to use methodological elements likely to guide translators in equal power distribution through equitable restitution of ethnographic representation in legal text, Biel & Engberg [31] defend the view that:

Studies in legal translation require not only methodological eclecticism and triangulation but also interdisciplinarity. Similarly, to other areas of Translation Studies known also as an interdiscipline or a polidiscipline […] research into legal translation is stimulated by developments in neighbouring disciplines, in particular legal studies, comparative law, terminology and various brands of (functional) linguistics. These contacts have both opened new research perspectives and brought into life new themes concepts and methods.

The numerous implications of legal translation ranging from linguistic to social and legal, and the unpredictability of semantic content call for methodological and eclectism. The extent to which two terms in separate systems are close shall determine the level of terminological and conceptual adjustment to be made in order to achieve positive transfer in translation.

Groundbreaking methods to be used in the translation processes stems from a philosophical revolution. Indeed, as point out by Vidal Claramonte [32], law which for philosophers of enlightment, such as Descartes or Kant stems, is ground on Universalism. The expression of the latter concepts, therefore, is the same in all languages and translation methods must be leaned on that very idea of universalism. The opposite philosophical trend grounded on the very idea of relativism was defended by the likes of Foucault who underscores power dynamics around the legal issues. Including legal translation as a power-related activity, Vidal Claramonte [32] defends the view that:

Whereas the enlightenment modernism of Descartes or Kant saw reason as a universal faculty, thinkers such as Foucault, Horkheimer and Adorno, Lyotard and Rorty have taught us about the limits and dangers of reason. They argue for a socially constructed reason always situated within existing practices and discourses and, therefore, biased in favour of existing power relations […]Foucault discusses the idea of justice as an idea, which has been invented and put into practice in different societies as an instrument of political and economic power. According to Foucault [33], power should be considered to be present not only in state but also legal systems,

Legal translation is to act as a watershed between communities ‘legal perspective, which concepts carry to forth asymmetric truth. Linguistic perspectives, which are grounded on the ideas of universalism, seem inappropriate mediating differences between legal cultures. Function-based approaches in legal translation seem to be more suitable for conceptual asymmetries. Consequently, choices made in translation methodologies are key to legal intercultural communication as each method used can potentially have critical consequences in the social sphere.

4.3 Translation for functional purpose and equivalence

Although the recourse to functional-oriented and receiver-oriented methodology is highly recommended, especially in the new trends in legal translation [23], recourse to functional approaches in legal translation still cast doubts as conceptual symmetry expected at the end of the translation is not actually achieved [34]. Translating a term using equivalence can be regarded as a betrayal of the source language perspective, which shall lose its specificity. the translation is not actually achieved Nord [35] defends the view that translation is a purpose-oriented activity. The purpose in legal translation is to achieve equivalence not only in meaning but also foremost in legal effects. Cultural (and at times social) issues are at stake in legal translation. Methodological pathways to be taken are, therefore, to be leaned on equality in distribution of references. This inspired new trends like the collaborative (translaboration) approach meant to avoid mismanagement of cultural artefacts in translation.

4.4 Experiencing legal translaboration

Translaboration (collaboration in translation) has emerged as a buzzword to refer to a groundbreaking translation method meant not only to adequately convey a message from one language to the Other but also to connect cultures and to achieve intercultural communication [36, 37]. This method discusses power-related issues as it depicts translators as manager of power to be symbolically distributed in text. Owing to the unequal potential of historical forces patterning the extratextual space on which translation takes place, unequalities in power of representation is observed and reflected in the distribution of references in text. Bilingual spaces on which translation activities are carried out are characterised by imbalance power potential [12]. As an act of communication between languages and cultures, translation is to equate potential of representation. As key actors in the methodological process, legal translators play a key role in the choice of methods and the collection of references to be used to achieve equivalence in legal effects between legal communities. Indeed, the methodological phase becomes a place of consensus-building between actors from different cultures.

5. The social responsibility of legal translators

Conditions for the preservation of social peace and order, which dwell in the adoption of norms falling in line with a community’s anthropological patterns. These are expressed in terms and concepts found in legal texts. Breach observed in the materialisation of sacrosanct law can have critical consequences on the social sphere as evidenced by the legal translation of OHADA which ethnocentric methodology is in favour of one community. More than a mere issue of meaning, legal translation is a political endeavour both at the domestic level in bilingual and bijural states and also at the international level, especially in organisation. Samoyault in the preface the book authored by Froeliger and Xiangyun [38] defends the view that:

Car la traduction, loin d’être uniquement une défense et illustration du multilinguisme et du dialogue des cultures a souvent aussi été dans l’histoire un instrument au service du plus fort et un moyen de réduction de l’autre. Penser la traduction en termes politiques implique de tenir compte de la dimension de conflit qu’il y a en elle. La traduction est un lieu d’antagonisme dans la pratique, d’abord, et tout traducteur a vécu ces moments où la langue à traduire violente la langue maternelle, où il est placé devant l’impossibilité à bien traduire ou au dilemme du choix. Parce que l’équivalence n’existe pas, toute traduction est imparfaite et cette imperfection est un lieu de conflit.

Sarcevic’s reader-oriented model [23], which marks a methodological shift is first a way to preserve peace in the social environment, where two communities engage into a dialogue for mutual recognition. The cognitive inclination of the translator during the translation process has inspired new methodological avenues to secure neutrality and equality in the distribution of power in translation.

6. Conclusion

Methodological perspectives adopted in legal translation are critical to intercultural communication and identity convergence in social milieus especially in dual spaces of representation, such as bilingual and bijural countries, where opposite paradigms are expressed in legal texts using terms and notions endowed with different conceptual load. Avoiding conceptual ethnocentrism in legal translation is key for legal translation to be a mediator between languages and cultures. Literal translation, which is a translation method widely used to translate law appears as the ethnocentric lever whereby the dominant culture extends its power through the ascription of its ethnographic conventions in legal text. Equal distribution of power in legal translation depends on the translatorial acumen demonstrated by legal translators in choosing (function-oriented) methods adequate in heterogeneous networks of representation.