1.Introduction

Arabic-English legal translated texts are supposed to reflect two markedly different worldviews: one regarding religion as a frame of reference where all human behavior is analyzed and one focusing on the secular aspect of human activities (Krämer 2015Krämer, Gudrun 2015 “Islamic Discourse Contested: Middle Eastern and European Perspectives.” https://​www​.eume​-berlin​.de​/fileadmin​/pdf​/EUME​/texte​_grundlagen​/discourse​.pdf). The religious view maintains that the divine origins of lawmaking is non-negotiable and any secular thinking would undermine the nature of religion itself. This stance is based on the belief that Allah is the sole source of legislation to all Muslims. The secular stance, on the other hand, takes it that religious thinking should not regulate the secular democratic community, hence the need for secular law-making. Jurilinguists’ work, in both the source and target cultures, seems to be influenced by these opposing worldviews. These views evidently generate various types of conceptual asymmetries that translators and terminologists grapple with on a daily basis (Šarčević 1989Šarčević, Susan 1989 “Conceptual Dictionaries for Translation in the Field of Law.” International Journal of Lexicography 2:277–293. , 1997Šarčević, Susan 1997 New Approach to Legal Translation. London: Kluwer Law International.), which warrants the question “how equivalent is equivalence in Arabic-English legal translation?”

There is overwhelming evidence in the Arabic-English legal translation literature that “legal translators who translate Islamic legal texts into English do not usually find a specific English legal term that can wholly convey the concept in question.” (Alwazna 2013Alwazna, Rafat 2013 “Testing the Precision of Legal Translation: The Case of Translating Islamic Legal Terms into English.” International Journal for the Semiotics of Law 26(4):897–907. , 903). However, the reason driving this conclusion has always been that this is due to the conceptual asymmetries characterizing the legal systems, and that the functional approach to legal translation provides viable solutions to the related issues. In this chapter, we will argue that making headway in this regard requires understanding why it is that this problem persists and what should be done to solve it. We take it that overcoming the problem of the related terminological incongruence is due to some factors that mask rather than highlight conceptual asymmetries, and that concerted efforts should be made to provide legal translators with reliable resources that would help them go beyond adopting a target-oriented functionalist approach to the translation of legal texts (Garzone 2000Garzone, Giuliana 2000 “Legal Translation and Functionalist Approaches: a Contradiction in Terms?” In La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice (Proceedings, Geneva, 17–19 February 2000), 395–414. Bern: ASTTI/ETI.).

A key position in this chapter is that Islamic law is religious in terms of both language and spirit, and adopting a target-oriented functionalist approach leads almost automatically to secularizing Islamic law terms in target English texts, which violates the very principles of interpreting laws, namely literal interpretation, systematic interpretation, historical interpretation and teleological interpretation. Islamic law terms should have equivalents guided by what could be termed functional fidelity, drawing on the insights proposed by Šarčević (1997)Šarčević, Susan 1997 New Approach to Legal Translation. London: Kluwer Law International. and Szemińska (2011)Szemińska, Weronika 2011 “Translating Law into a Dictionary: A Terminographic Model.” Research in Language 9(1):177–186. , among others. That is, to give a rational meaning to sharia legal terms, the English equivalent should be transparent enough to (1) be understood in the target legal culture and (2) reflect the conceptual components inherent in the source legal culture. This could be achieved by building enriched term bases that combine insights from terminology, translation studies and jurisprudence. This move would provide key information for translators, academics and jurists to be aware of conceptual asymmetries without engaging in time-consuming research.

This chapter outlines the factors that blind translators to the conceptual asymmetries underlying terminological incongruence in Arabic-English legal translation, namely historical shifts, functional approach and equivalence, the practice in the translation industry (translators, localizers and machine translation), as well as terminology resources (legal bilingual dictionaries). We will show that these factors contribute to masking rather than highlighting conceptual asymmetries, which slows down the pace of solving the problems related to terminological incongruence in Arabic-English legal translation. We will argue that a viable way to avoid masking conceptual asymmetries is to provide translators with well-organized rich term bases that would highlight such asymmetries to help them make informed decisions when they are in doubt or when the translation solution is not straightforward enough.

The translation of highly system-bound terms (e.g. Arabic/English legal texts) involves remarkable masking of conceptual asymmetry. Such masking should make room for conceptual analysis to determine this asymmetry between an English functional equivalent and its Arabic source term, especially in the cases where terminological resources such as dictionaries and glossaries fall short of preserving the major features of concepts in the source culture. This is because legal terms are depositories of knowledge fed by legal culture, which should be preserved in the translation. Šarčević (1997)Šarčević, Susan 1997 New Approach to Legal Translation. London: Kluwer Law International. takes it that in legal translations the strategies adopted should observe a key principle, namely fidelity to the source text. She claims that though legal translators strive to produce natural target texts, fidelity to the source text has always been upheld in their approaches. Ideally, equivalence aims to assign equal meaning to legal terms in two languages, keeping the same legal effect based on the legal interpretation of the source legal culture. However, this ideal objective seems difficult to capture mainly because the conceptual asymmetry between Islamic law and western law has been systematically masked by the major factors outlined below.

2.Historical shifts in Islamic law

The historical shifts that Islamic law has undergone contributed significantly to masking the conceptual asymmetries between Islamic law and western laws, which complicates the task of legal translators, who serve as cultural mediators, as can be seen along the following lines. Most of the Islamic world was subjected to colonization starting from the last quarter of the eighteenth century. In order to ensure their economic and political control over Islamic countries, the European colonizers had to adjust the legal content of Islamic law, which regulated life in all its aspects in these countries (Moosa 2009Moosa, Ebrahim 2009 “Colonialism and Islamic Law”. In Islam and Modernity: Key Issues and Debates, edited by Muhammad Masud, Armando Salvatore & Martin Van Bruinessen, 154–181. Edinburgh: Edinburgh University Press. ; Powers 1989Powers, David 1989 “Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India.” Comparative Studies in Society and History 31(3):535–571. ). A case in point is endowment property (waqf), which, under Islamic law, cannot be the object of any commercial transaction. The European colonial powers had to abolish it on the ostensible reason that the Quran does not refer to waqf in any explicit way. Waqf is inalienable property reserved for specific purposes, and is not subjected to the law of inheritance. The continuity of waqf is guaranteed by the successive appointment of trustees (mutawilli). The waqf trusts were also used to build hospitals and medical schools, covering various related expenses such as maintenance and the payment of doctors, teachers and students (El Shamsy 2013El Shamsy, Ahmed 2013 The Canonization of Islamic Law: A Social and Intellectual History. New York: Cambridge University Press. ). The significance of this point is that vast sums of money and property constituted these Islamic endowments and the colonial state had to make the required changes in laws for them to derive economic benefits from such material resources.

Waqf trusts is a good example showing the changes brought to Islamic law by the French in North Africa and the British in Southeast Asia to justify their colonial expansion (Kugle 2001Kugle, Scott 2001 “Framed, Blamed, and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia.” Modern Asian Studies 35(2):257–313. ). The colonizers criticized the weaknesses of Islamic law to motivate their intervention with a view to making it substantively rational. This move paved the way to the beginning of the demise of Islamic Law Schools, which were supported by funds generated by waqf endowments, especially in Morocco, Algeria and Tunisia. Such schools were replaced by western-style law schools. The Europeans also established western legal codes as the official legal framework for Islamic countries. By way of illustration, in the early stages of colonization (protectorate) in Morocco, a set of legal measures were adopted, inspired from French laws, such as the Law of Contracts (1913), Family Law for Foreign Citizens (1913), Civil Procedure Law (2013), Trade Law (1913), Maritime Trade Law (1919) and Property Law (1915). With the entry into force of these legal texts, the major legal branches, like civil law and criminal law, were no longer regulated by Islamic law.

Apart from Family Law and Inheritance Law, the Islamic community in North Africa was regulated for the entire colonization period under western laws. After the independence, the Moroccan authorities continued the adoption and extension of French laws, expanding their scope of its application to include all Moroccan citizens. Moreover, starting from the year 1957, the Islamic provisions applied in family affairs were codified into an official legal text (revised 1985). The same applies to countries such as Egypt and Iraq, where western-type laws predominated during the entire colonization period. After these countries regained their independence early in the 20th century, the governments that took over continued adopting the colonial legal codes, claiming that this was part of modernizing their countries (Moosa 2009Moosa, Ebrahim 2009 “Colonialism and Islamic Law”. In Islam and Modernity: Key Issues and Debates, edited by Muhammad Masud, Armando Salvatore & Martin Van Bruinessen, 154–181. Edinburgh: Edinburgh University Press. ; Powers 1989Powers, David 1989 “Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India.” Comparative Studies in Society and History 31(3):535–571. ).

Similarly, the British colonial state codified Islamic law in Southeast Asia through translation and drafting. By way of illustration, Hedaya is a twelfth-century Hanafi legal manual written by the scholar Al-Marghinani, recording various Hanafi opinions relating to all aspects of law. It was translated from Persian by Charles Hamilton in 1791. The translation did not reflect the content of the original texts, as it not only remarkably changed emphasis but it introduced new content into Islamic law as well (Kugle 2001Kugle, Scott 2001 “Framed, Blamed, and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia.” Modern Asian Studies 35(2):257–313. ). Through translation, Hedaya became a new text only concerned with marriage, divorce, custody and inheritance. It now focused more on fasting and prayer, which the British did not consider as part of law. The colonial state even engaged in criticizing Islamic law in India and intervened in its codification with a view to justifying their colonial expansion.

It emerges from this short exposition that these historical shifts markedly contributed to creating a new system of law by the French and British colonial powers, using the terminology of Islamic law on the surface, but making it completely different in terms of substance and application. This has had far-reaching consequences on how the conceptual dimensions of legal terms are understood and interpreted today, as Kugle (2001Kugle, Scott 2001 “Framed, Blamed, and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia.” Modern Asian Studies 35(2):257–313. , 266) succinctly puts it:

Under the guise of preserving Islamic law there was a ‘conceptual invasion’ and English assumptions and legal concepts […] framed the technical vocabulary of Islamic law, and guided how those rules were applied, thereby reshaping Islamic law itself.

Against this backdrop, Islamic countries adopted very different positions. Some of them opted for the adoption of the principles of secularism of laws and the separation of the state from religion, and thus gave preference to western law over sharia. This is the case of Turkey after the First World War. Others, on the other hand, expressed their strong and literal adherence to Islamic law, the case of countries such as the Kingdom of Saudi Arabia and the Republic of Iran. Yet others, including Morocco, for example, have adopted a compromise solution. The ramifications of the colonial codification process were profound. Not only did the colonizers change Islamic law to serve their interests, but they also changed how Muslims perceived Islamic law. Consequently, when the post-independence calls came to reapply Islamic law or reapply the sharia, what emerged in the post-colonial period was something very different from what came before, because Islamic law in many areas was now applied by a state using fixed written law codes. Colonial and postcolonial Islamic law contained concepts markedly different from the Islamic law of the past (see Hussein 2016Hussein, Izza 2016 The Politics of Islamic Law: Local Elites, Colonial Authority and the Making of the Muslim State. Chicago: University of Chicago Press. for a full account). This trend was exacerbated in time by the exclusion of Islamic law from the study of law by relegating the Islamic legal system to religious studies (Hussein 2016Hussein, Izza 2016 The Politics of Islamic Law: Local Elites, Colonial Authority and the Making of the Muslim State. Chicago: University of Chicago Press. ; Salaymeh 2015Salaymeh, Lena 2015 “Comparing Jewish and Islamic Legal Traditions: Between Disciplinarity and Critical Historical Jurisprudence.” Critical Analysis of Law 2(1):153–172. ). This relegation has also reinforced the perception that secular law is superior to religious law.

Holt (2004)Holt, Malcolm 2004 “Translating Islamist Discourse.” In Cultural Encounters in Translation from Arabic, edited by Said Faiq, 63–74. Clevedon: Multilingual Matters. takes it that translating Islamic legal discourse tends to shift the discourse world from a religious into a secular western world of discourse (Krämer 2015Krämer, Gudrun 2015 “Islamic Discourse Contested: Middle Eastern and European Perspectives.” https://​www​.eume​-berlin​.de​/fileadmin​/pdf​/EUME​/texte​_grundlagen​/discourse​.pdf). It seems that the historical shifts Islamic law has undergone play a key role in this regard. More specifically, Islamic law, which is inherently religious in character, has been so secularized that the conceptual asymmetries marking it off from western-type laws have been eroded through both direct and indirect translation. The Islamic law terminological apparatus, underlying the conceptual structure as well as the rules of classification and sources of law, especially for countries adopting the compromise solution, have been fraught with ambiguity, masking such terminological asymmetry. Put differently, this hybridity in Islamic legal content seems to be a driver that masks the conceptual asymmetries outlined below.

3.Conceptual asymmetries

Several conceptual asymmetries indicate that Arabic and English legal terms are at best partially equivalent with the same referents but different connotations, which compromises accuracy in translation. Such asymmetry is generated by the difference in legal systems, linguistic variation, or a combination of the two. This section outlines the conceptual characteristics that mark Islamic law off from western law. Islamic law is religious in nature and should not lose this key feature in the translation process. The first feature is the unity and divinity of law. Sharia is one law for all people in the entire Muslim community in the world, made by God not humans; what humans (legal scholars) can do is to try to understand that law. Secondly, the sources of Islamic law are purely religious (Qur’an, Hadith, Analogy and Consensus), supported by fatwas, legal opinions issued in response to legal issues. Thirdly, unlike western laws, there are five legal values characterizing behavior in Islamic law, namely reprehensible (makrūh), mandatory (wājib), preferred (mandūb), permissible (ḥalāl), and prohibited (ḥarām). This five-point categorization of behavior is a key feature of Islamic law, as opposed to the two-scale legal values of western-type laws (legal and illegal). The sanctions motivated by these values are dual, partly because what is prohibited or allowed relates to this world and the other world, and partly because there are sanctions fixed by God (ḥudūd) and sanctions rendered by the discretion of the judge (taʿzīr). Fourthly, Islamic law is characterized by the absence of written law codes. When a new legal situation arises, scholars would search through the sources of law and draw analogies, they would consider the opinions of major authorities from the past, or they refer to the authoritative consensus expressed by Muslim jurists.

The fifth major conceptual asymmetry relates to the concept of right to which completely different values are attached in Islamic and western legal cultures. In the western legal tradition, it is closely related to the concept of the state. Hohfeld (1923)Hohfeld, Wesley 1923 “Fundamental Legal Conceptions Applied in Judicial Reasoning.” In Fundamental Legal Conceptions Applied in Judicial Reasoning and Other Legal Essay, edited by Walter Cook, 23–64. New Haven: Yale University Press. defined rights as entitlements, initiated by the state, (not) to perform certain actions, or (not) to be in certain states; or entitlements that constitute constraints or absence of constraints on behavior. These are powers, claims, privileges and immunities imposed by the state and enjoyed by individuals, groups or the state itself. On the other hand, in Islamic law, all the concepts relating to the concepts of right, truth and justice are closely associated with God, who initiates laws, as the Quranic verses below indicate:

1. Allah is the Truth (Al-Hajj, Verse 62)

2. We revealed the (Qur’an) in Truth, and in Truth did we reveal it (Al-Isra, Verse 105)

3. We have revealed to you, [Muhammad], the Book in Truth so you may judge between the people by that which Allah has shown you (Al-Nisa, Verse 105).

The constituent characteristics of the concepts above, along with the related asymmetries, have been fraught with ambiguity, which hampers legal translators’ work and drives them to resort to examining the original sources of Islamic law. Such ambiguity, both intercultural and intracultural, also contributes to the masking of the conceptual asymmetry characterizing the two legal cultures. By way of illustration, the court setting in Islamic countries reflect such ambiguity. The court, as a sign system through which society communicates its legal philosophy and perception of justice, informs us of this ambiguous underlying legal ideology. Islamic courts’ physical setting is mostly western, while the court slogan on the wall is usually a verse from the Quran saying “When you judge between people, you shall judge with justice” (An-Nisa 58). Also, hung on the wall is the picture of the king or president of the country, who is both the head of state and commander of the faithful, according to many constitutions of Islamic countries. He is also the head of the legislative authority that produces secular laws. However, it stands to reason that sharia is now serving merely as an ethical and moral guide to the judge.

In the absence of written law codes, reliance on analogies and legal opinions within the Islamic legal culture has led to other ambiguities reflected in the assessment of criminal conduct. For example, blasphemy is sanctioned by imprisonment, a fine or lashes in the Penal Code of Sudan, while it is punished by the death penalty in the Penal Code of Mauritania, as the articles below indicate (Bagga and Lavery 2019Bagga, Ferdaouis and Kirsten Lavery 2019 “Apostasy, Blasphemy, and Hate Speech Laws in Africa.” https://​www​.justice​.gov​/eoir​/page​/file​/1243281​/download):

1. Article 125 of the Penal Code of Sudan:

   Whoever, by any means, publicly abuses or insults any of the religions, their rites, or beliefs, or sanctities or seeks to excite feelings of contempt and disrespect against the believers thereof, shall be punished with imprisonment for a term not exceeding one year, a fine, or whipping which may not exceed forty lashes.

2. Article 306 of the Penal Code of Mauritania (Legal Order No. 162–83):

   Any Muslim, male or female, who ridicules or insults God or His messenger (May God bless him and grant him salvation), or His angels, or His books, or one of His prophets, shall be put to death, and he will not be called on to repent. Even if he repents, the death penalty will not be removed.

4.Functional equivalence

Šarčević (1997)Šarčević, Susan 1997 New Approach to Legal Translation. London: Kluwer Law International., Chromá (2004)Chromá, Marta 2004 Legal Translation and the Dictionary. Tübingen: Max Niemeyer Verlag. as well as Alcaraz and Hughes (2002)Alcaraz, Enrique and Brian Hughes 2002 Legal Translation Explained. Manchester: St. Jerome. argue that legal equivalence is achieved only if the same legal effect is clearly expressed in the target text, reflecting the legal conceptual meaning in the source text. However, due to the fact that equivalence between Islamic and western legal cultures can only be partial, the related conceptual gaps can only be bridged if the translator is provided with enough information about sharia legal concepts. The information available in dictionaries is hardly helpful to reflect the components of meaning in the legal context required. Therefore, the accuracy-clarity tradeoff requires striking a balance between the conceptual content of the source legal culture and the ease of communicating such content for the target reader to understand it clearly and use it easily. It is true that, as Alwazna (2016Alwazna, Rafat 2016 “Islamic Law: Its Sources, Interpretation and the Translation of it into Laws Written in English.” International Journal for the Semiotics of Law 29:251–260. , 255) suggests, the “strategies to surmount such a dilemma are also in place, and legal translators often resort to them to achieve and serve the main purpose for legal translation.” However, reliance on functional equivalence should not mask whether or not the conceptual nature of the functional equivalent and the source legal term have been assessed by the translator (Šarčević 1997Šarčević, Susan 1997 New Approach to Legal Translation. London: Kluwer Law International.).

For this functional fidelity to be achieved, legal translators should not stick to the translation brief provided by the commissioner lest they fall short of reproducing the same legal effect as the original. In support of this claim, two examples are presented below, where the conceptual asymmetries exposed above are masked in accounting for Islamic law concepts. The first illustration relates the famous coffee debate sparked in Islamic societies about the legal status of coffee-drinking and the gatherings it involved. Interestingly, the western accounts of this incident, such as Standage (2005)Standage, Tom 2005 A History of the World in Six Glasses. New York: Bloomsbury., are conducted based on whether coffee is lawful or unlawful (intoxicating). However, the Arabic sources accounting for this incident, such as Arnaut (2012)Al-Arnaut, Mohamad 2012 min al-tārīkh l-thaqāfī lil qahwa wa l-maqāhī. [On the History of Coffee and Cafés]. Beirut: Jadawil., draw on the five-point scale (obligatory, recommended, neutral, discouraged, and prohibited) to assess whether coffee drinking should be legally treated as alcohol in Islamic communities. It is also analyzed with reference to shubha [uncertainty], an illegal act that seems like a legal one, which is an additional concept peculiar to Islamic legal culture. This indicates that the transfer into English of this legal controversy ignores the classification assumed in the Islamic legal culture.

The second illustration that indicates that the functional approach leaves much to be desired comes from the functionalist principle that translation from Arabic into English should respect the thematic structure of English and the related rhetorical patterns. For example, in criminal law, legislative Arabic sentences always start with the sanction (action), followed by the subject (offender) before introducing the conditions that qualify the sanction (exceptions). English sentences, however, start with the offender, followed by the sanction, as the example below shows:

Any person who, being married, marries any other person during the life of the former husband or wife shall be guilty of an offence and liable on conviction to imprisonment for seven years.(Bigamy 141- Penal Code of the Caribbean)11. http://​agc​.gov​.ms​/wp​-content​/uploads​/2010​/02​/penal​_code​.pdf

المادة 194

يُعاقَب بالسجن مدة لا تقل عن سبع سنوات كل موظف عام أو مكلَّف بخدمة عامة اختلس مالاً أو أوراقاً وُجِدت في حيازته بسبب وظيفته.

Literal translation: [Shall be liable to imprisonment for at least seven years any public employee who has embezzled money or documents found in his possession because of the duties entrusted to his office.].(Article 194 of Law 3/2018 – Bahrain Penal Code)

Starting with the sanction may reveal the rhetorical (syntactic) structure of Arabic, but does not tell the reader anything about Islamic legal culture, as the example relating to the concept of ʾamān below indicates:

من أَمَّنَ رَجُلاً عَلَى دَمِهِ، ثُمَّ قَتَلَهُ، فَأَنَا مِنَ الْقَاتِلِ بَرِيءٌ، وَإِنْ كَانَ الْمَقْتُولُ كَافِرًا.

[Whoever gives a man an assurance of protection for his life and then kills him, then I have nothing to do with the killer or his deed, even if the victim is a disbeliever.]

Authentic Hadith reported in Al-Albani (1987)Al-Albani, Nasir al-Din 1987 silsilat al-ahādīth al-sahīha [Series of Authentic Hadiths]. Riyadh: Al-Maarif Publishing House. http://​archive​.org​/details​/sahiha07ab​/sahiha02i.(Hadith # 6103)

The concept of ʾamān in Islamic law is complex as it includes the semantic notions of truce, peace, treaty, trust, assurance and safety, and its legal force is conditioned by the nature of the person who grants it (in terms of age, religion and status), the place where it is granted (Muslim or non-Muslim land) and duration (limited or unlimited in terms of time), as explained in the juristic accounts of Al-Shaybānī outlined in Dhamiria (2009)Dhamiria, Othman 2009 arkān al mu’āhadāt fi fiqh al-imām Muhammad bin al-Hasan al-Shaybāni. [Principles of Conventions in the Jurisprudence of Imam Mohammad bin Alhasan Al-Shaybāni]. Mecca: Publications of Muslim World League.. Moreover, the major motivation underlying granting ʾamān is serving the interest of Islam and the Islamic community; otherwise granting ʾamān would be invalid. Due to such complexity, the translation of terms derived from this concept are even more challenging. By way of example, the functional equivalence of ʾistiʾmān [seeking assurance of protection] is listed in Al-Jamhara, an online termbase of Islamic legal terms,22. https://​islamic​-content​.com as seeking asylum. However, asylum, in international law, is the protection granted by a state to a foreign citizen against his own state. The person for whom asylum is established has no legal right to demand it, and the sheltering state has no obligation to grant it.33. Britannica Law Encyclopedia (https://​britannica​.com​/topic​/asylum) Therefore, picking the translation of this concept from this term base would not reflect the actual conceptual details in the Islamic legal culture. This leads us to exposing the contribution of translators, localizers and artificial intelligence resources to masking conceptual asymmetries.

5.Translators’ practice

An independent small-scale survey has been conducted to collect information as to how professional translators deal with legal terms (Alaoui 2020Alaoui, Ahmed 2020 “Demerits of Artificial Intelligence in Arabic-English Legal Translation.” Paper presented at CIUTI2020 Conference @ISIT Artificial Intelligence & Intercultural Intelligence: Actions and Interactions in Translation, Interpreting and Target Contexts , Paris, December 8–11.). The survey consists of 16 questions and it was sent to 37 Arab professional translators who frequently work on legal documents. The data collected is meant to assess their strategies of dealing with the translation of sharia terms into English and French. Below are the answers to the questions related to the topic of this chapter:

Question 6

If you are not sure about the translation of a legal term, what do you do?

1. Google it (45.94%)

2. Google it, but make sure that it is used in an official website (21.62%)

3. Check it on specialized glossaries online (24.32%)

4. All of the above (8.10%)

5. Other [please specify] (0%)

Question 11

How often do you consult Arabic-English legal term bases?

1. Always (5.40%)

2. Sometimes (27.02%)

3. Rarely (43.24%)

4. Never (24.32%)

This small-scale survey was followed by WebEx interviews of 8 (out of 37) translators, focusing on asking for clarification of the answers provided by the interviewees in the survey. The interviews were conducted simply to confirm the interpretation of the data collected (Alaoui 2020Alaoui, Ahmed 2020 “Demerits of Artificial Intelligence in Arabic-English Legal Translation.” Paper presented at CIUTI2020 Conference @ISIT Artificial Intelligence & Intercultural Intelligence: Actions and Interactions in Translation, Interpreting and Target Contexts , Paris, December 8–11.). The practice and perception of the translators interviewed indicate key assumptions that blind translators to the conceptual asymmetries in Arabic-English legal translation. For one thing, the trade-off between speed and accuracy in legal translation tends to be in the benefit of time-saving. The Internet seems to be perceived as a valuable source of ready-to-use translation solutions. It is also assumed that the terminology available in artificial intelligence sources, such as parallel corpora as well as alignment and corpus tools, is valid enough to be conclusive and could safely be used without engaging in any extensive research. This amounts to saying that the use of such resources blinds translators to the key aspects of terminological asymmetry outlined above.

More importantly, some of the translators interviewed (24.32%) feel obliged to avoid more accurate equivalents and opt for the less-accurate terms available in artificial intelligence resources partly because doing the required research is time-consuming and partly because the target readers would find them unfamiliar, since they are themselves users of artificial intelligence sources. That is, the tendency of both commissioners and target users of a legal document to uphold the validity of artificial intelligence sources drives legal translators to sign on to the communicative value of such sources (Bestué 2016Bestué, Carmen 2016 “Translating Law in the Digital Age. Translation Problems or Matters of Legal Interpretation?” Perspectives Studies in Translatology 24(4):1–15. ). This practice, in turn, contributes to masking the conceptual asymmetries characterizing Arabic-English legal translation.

The technologization of translation seems to have marginalized the role of the translator as an intercultural mediator. Legal translation is not merely a matter of terminology; it is the specific definition of such terminology that matters in understanding, a key requirement in the translation process. Legal translation should be guided by functional fidelity, where messages are transferred clearly, while the concepts of the source legal culture are preserved. Such understanding can only be adequately ensured if the meaning of legal terms is searched in the source legal culture before selecting a functional equivalent. That is, specifying the meaning of legal terms with reference to the source legal culture is a necessary requirement for the interpretation of the legal effect of the target legal text. Therefore, failure to consult the source legal culture for the full meaning of sharia terms contributes to blinding translators to the conceptual asymmetries characterzing Islamic and western-type laws.

6.Localization

Another related factor that contributes to blinding translators to conceptual asymmetries is localization. Localization discourse depicts translators as language agents in charge of changing words from a language into another. This compromises the role of translators as intercultural mediators even within the localization sector, to the extent that translation itself is referred to as localization (Austermuhl (2007)Austermuhl, Frank 2007 “Translators in the Language Industry: From Localization To Marginalization.” In Gebundener Sprachgebrauch in Der Ubersetzungswissenschaft: Festschriftfur Joachim Kornelius Zum 60. Geburtstag [Constrained Uses of Language in Translation Studies. In honor of Joachim Kornelius on his 60th birthday], edited by Kerstin Brenner and Anja Holderbaum, 39–51. Trier: Wissenschaftlicher Verlag Trier.. The localization literature is replete with the promotion of such discourse. By way of example, Olvera-Lobo and Castillo-Rodríguez (2019)Olvera-Lobo, María Dolores and Celia Castillo-Rodríguez 2019 “Website Localization in the Corporate Context.” Journal of Digital Information Management 17(1):34–43. take it that “ideally, the different agents involved in the creation of the product (localizers, customers, web developers) should work in close collaboration, since only in this way can the end product reach a satisfactory quality level” (41–42). Translators, called here localizers, are depicted as agents with strictly limited linguistic mechanical tasks, and they are subordinated to the technologically advanced digital tools. It seems that such localization discourse contributes to masking conceptual asymmetries, since it persuades legal translators that they are merely word-changers rather than competent experts in intercultural communication.

It is true that time-constraints and immediacy in the business world would naturally drive service providers to focus more on digital tools and efficiency, but this should not persuade legal translators to follow suit. This is because of the need to preserve the capital of the source legal culture, translators should develop intercultural along with artificial intelligence. Reliance on digital tools in this regard seem to shift rather than solve translation problems related to the representation of Islamic legal culture in English. This contributes to masking the conceptual asymmetries at hand, and drives legal translators to shy off from engaging in the required research to preserve the relevant aspects of the source legal culture.

7.Law bilingual dictionaries

Overwhelming evidence has been put forth for the inadequacy of bilingual legal dictionaries because the set of equivalents they provide may turn out to be inadequate or misleading (Chromá 2004Chromá, Marta 2004 Legal Translation and the Dictionary. Tübingen: Max Niemeyer Verlag. ; Šarčević 1989Šarčević, Susan 1989 “Conceptual Dictionaries for Translation in the Field of Law.” International Journal of Lexicography 2:277–293. ). They are not conceptually oriented to highlight the conceptual gap that specifies the degree of equivalence achieved by functional equivalents, allowing the legal translator to compensate for terminological incongruence through various techniques in the translation process. Dictionaries can help in the accurate transfer of legal cultural content only if they are based on comparative legal analysis. While this chapter does not claim to provide a systematic analysis of terminological resources, it points out to their major shortcomings involved.

At least three types of terminological resources are available to legal translators. The first are bilingual dictionaries that contain purely western legal terms presented in English/French and Arabic, providing a brief explanation in Arabic. A case in point is the Law Dictionary (French-Arabic)44. Law Dictionary (French-Arabic) published by Arabic Language Academy (Amiri Publishing House) in Cairo in 1999 (749 pages), https://​www​.edunewprof​.com​/2019​/08​/734​.html. published by Arabic Language Academy. This type of dictionary could be useful for understanding the concepts of western law, but it is not related in any way to Islamic law. It simply lists and defines terms relating exclusively to western type laws. Therefore, the help it provides to Arabic-English legal translators is rather limited. The second type of terminological resources relates to bilingual glossaries and dictionaries containing both Islamic and western type legal terms. A good example is the Comprehensive Dictionary of Legal Terms (English-Arabic-English), compiled by Al-Harahsheh (2017)Al-Harahsheh, Ahmed 2017 Comprehensive Dictionary of Legal Terms. Amman: Amwaj for Publication and Distribution.. Such resource lists English/Arabic legal terms and their counterparts, but there is no way the translator can detect any terminological and conceptual misalignments for them to pick an adequate equivalent.

The third type of terminological resources is terminology databases explaining legal terms in Arabic, drawing on sharia resources. A good example of such resource is the Al-Jamhara terminology database available at islamic​-content​.com. The weakness of such resource is that it does not provide enough information in English with regard to the definition and context of legal terms for the user to spot any potential terminological and conceptual misalignment, and then deal with it in the translation strategy. Also, the back translation of the terms proposed in English does not reflect the semantic content of sharia legal terms as pointed out with regard to the concept of ’isti’mān mentioned above. The same holds for most glossaries available online.

A better model than the sources above is TransLegal World Law Dictionary,55. https://​www​.translegal​.com a recent online database of legal terminology, prepared by jurilinguists (lawyer-linguists) and broken down by field of law. In addition to the translations, the database provides notes explaining the source European legal concepts involving asymmetries to help the user understand and explain differences between source and English legal concepts. It also defines and contextualizes the source legal concepts that do not correspond to any equivalent in the English jurisdictions. Though this dictionary represents a viable model for our purposes, it still does not include Arabic or sharia law, as it focuses on ten European languages so far.

It emerges from this short exposition that the historical shifts undergone by Islamic law, the practice of translators, the inadequate use of artificial intelligence resources, the nature of functional equivalence as well as the bilingual dictionaries available are all factors that do not help much in preserving the qualities of the source legal culture in Arabic-English legal translation. They rather contribute to masking the stark conceptual asymmetries that mark off Islamic law from western laws. A solution to this issue is suggested below with reference to conceptual analysis and the organization of term bases, which hopefully would assist to achieve the functional fidelity approach to legal translation defended in this chapter.

A word of caution is in order here. This chapter does not claim that all resources must provide detailed information about aspects of terminological asymmetry, or that all dictionaries and glossaries are useless. Terminological asymmetry does not arise in every single aspect of Arabic-English legal translation. These resources would help in providing equivalent terms to simple concepts such as court. However, they fail to help the translator in providing the information needed to translate highly complex concepts such as waqf endowment, whose related law is one of the most intricate laws in sharia since it is interwoven with far reaching religious, social, and economic aspects in Islam. This is the reason underlying the quest for a more adequate resource, namely the term base.

8.Term base for sharia legal terms

Legal translators need a resource that helps them avoid sweeping under the rag the conceptual asymmetries inherent in Arabic-English legal translation, for them to make viable decisions as to the equivalents they choose to reflect the relevant aspects of Islamic legal culture in target English texts. Therefore, there is a pressing need for a rich term base for sharia legal terms to highlight the conceptual gaps between the two legal systems (functional fidelity). Opting for a term base is motivated by the need to avoid the shortcomings of dictionaries described above. The benefits of a term base in this regard are quite obvious. The term base opens the possibility of focusing on specialized terms as they are used in a specific knowledge domain, which guarantees that a given entry only allows one meaning (concept). It also allows the inclusion of information relating to how legal terms are used in specific contexts or domains. For legal translators to make appropriate decisions when confronted with equivalence issues, they need information relating to the (1) domain of the legal term, (2) its definition, (3) the context of its use and (4) the degree of equivalence involved. All these components should be accompanied with reliable sources, for both languages, that translators can consult if they need more explanation, without engaging in extensive research.

The term base proposed here could be in the form of a database of domain-specific concepts in Islamic law along with the terms that designate them. Unlike bilingual legal dictionaries, it would not contain the uses of a term from outside the scope of its particular domain. Like the TransLegal World Law Dictionary, the proposed term base represents domain-specific knowledge that would be divided into concepts approved by expert jurists in Islamic law. If a term has more than one meaning, each meaning would be contained in a separate concept entry. This would enable the translator to compare concepts and make informed decisions without engaging in time-consuming research.

The structure and content of term base entries would look like the sample below, relating to the concept of slander in criminal law, using an example from UAE Criminal Law:

Article 20 of Law 5 (2012) of the Penal Code of UAE

Without prejudice to sharia provisions, anyone who commits the crime of qadhf (slander) shall be punished by imprisonment and/or a fine up to AED 500,000.

مع عدم الإخلال بأحكام جريمة القذف المقررة في الشريعة الإسلامية، يعاقب بالحبس والغرامة التي لا تجاوز خمسمائة ألف درهم أو بإحدى هاتين العقوبتين كل من سب الغير….

The sample entry above provides information about the concept of slander derived from sources reliable and rich enough to specify the conceptual gap between the two legal cultures, including sources such as sharia law references, Black’s Law Dictionary, American law and specialized websites. Reference in the term base is also made to juristic rules and sacred source material of sharia because these would influence how the courts interpret laws when they apply Islamic law. The related domain and context of use are made available in the entry in both the source and the target language with a view to enabling the translator to compare concepts and make informed decisions in the translation process.

Again, this does not mean that all terminological resources are required to provide detailed information about aspects of terminological asymmetry. The point is that most Arabic-English dictionaries and glossaries available are largely insufficient in terms of the contexts they provide to translators to make informed decisions in the translation process. The information relating to conceptual analysis outlined in the term base sample above serves as a significant tool for improving accuracy in legal translation. It opens the legal translator’s eyes to the conceptual differences and similarities between a functional equivalent and its source term. This allows translators to repair terminological incongruence by using lexical expansion to delimit or expand the sense of a functional equivalent. In so doing, they would avoid functional equivalents that could be misleading due to key conceptual differences between the two legal cultures. More specifically, term bases help translators make a translation decision in moments of doubt or introduce repairs where a translation solution is not straightforward enough.

The term base sample above highlights the predominantly religious spirit of Islamic law, in line with a key requirement of legal translation, namely the preservation of the qualities of the source legal culture in the target English texts. The ultimate goal of the approach upholding functional fidelity is to help legal translators to forge English equivalents to sharia legal terms that are transparent enough to (1) be understood in the target legal culture and (2) reflect the conceptual components inherent in the source legal culture. This could be achieved by building enriched term bases that combine insights from terminology, translation studies and jurisprudence. This move would provide key information for translators, academics and jurists to be aware of conceptual asymmetries without engaging in time-consuming extensive research.

9.Conclusion

All translation codes of ethics available call for the faithful rendering of the original text message, especially highly system-bound texts. Islamic law and western law are conceptually maximally opposed legal cultures. While in the former religion is outside the scope of law, it is the law itself in the latter. Whereas the First Amendment in the United States Constitution provides that “Congress shall make no law respecting an establishment of religion”, the Quran clearly states that “whoever fails to judge by what Allah has revealed, they are the unbelievers”(Chapter 5, Verse 44). The functional approach to legal translation should observe fidelity to the source legal culture. This can only be delivered if the translator is endowed with adequate intercultural intelligence, which should take precedence over artificial intelligence in legal translation. A well-organized term base would be a valuable step to support legal translators in achieving this endeavor. Using a term base would water down the practices that mask such asymmetries, for the Arabic legal culture to be preserved in the translation. Though this chapter is not directly associated with postcolonial discourse, it signs on to the essentialist argument that Islamic law is inherently religious and should be represented as such in legal translation. This can only be achieved if legal translation adopts the functional fidelity approach defended in this chapter, facilitated by a well-organized rich term base.