When Two Legal Texts Exist, Which One Controls?

When legislation, a judgment, a treaty, or another legal instrument is available in more than one language, it is natural to think of one version as the original and the other as its translation.

But that assumption is not always correct.

In some legal systems, both language versions are equally authoritative. In others, one version may be designated as the authentic or authoritative text.

For a legal translator, that distinction is fundamental.

Official Does Not Always Mean Authoritative

The International Court of Justice provides a particularly clear example.

The Court's official languages are English and French. Under Article 39 of the Statute, when the parties agree that proceedings will be conducted entirely in one of those languages, the judgment is delivered in that language. When there is no agreement and the judgment is issued in both English and French, the Court determines which text is authoritative.

The Court's Rules of Court go further. Article 96 provides that when the proceedings have been conducted in one official language and the judgment is delivered in that language, the text in that language is the authoritative text. The judgment itself also identifies the authoritative text.

So two versions can exist, both published by the same international court, while only one is legally designated as the authoritative text.

That is more than a translation issue. It is a question of legal status.

Another Legal System Can Take the Opposite Approach

Canada provides an interesting contrast.

Federal legislation in Canada is enacted in English and French, and the two language versions are not treated as one original text and one translation.

Under section 18 of the Canadian Charter of Rights and Freedoms, federal statutes and records are to be published in English and French, and both versions are equally authoritative. The federal Official Languages Act similarly provides that materials covered by its bilingual publication requirements are to be made, enacted, printed, published, or tabled simultaneously in both languages, with both versions equally authoritative.

The Canadian Department of Justice describes this as the equal authenticity rule.

That means a Canadian court interpreting bilingual federal legislation cannot simply assume that one language is the original and the other is a translation. Both versions are part of the law and must be considered together.

This creates a very different relationship between law and translation. In one system, the central question may be: which language is authoritative? In another, the question may be: how should two equally authoritative language versions be interpreted together?

Treaties Add Another Layer

International treaties introduce yet another possibility.

The International Law Commission's work on treaty interpretation recognizes that when a treaty has been authenticated in two or more languages, the texts are generally equally authoritative unless the treaty itself provides, or the parties agree, that one text will prevail in the event of a divergence.

This is an important distinction because a multilingual legal instrument does not necessarily have one universal translation model. The legal instrument itself may determine the status of its language versions.

That is why the first question for a translator should not always be: "What is the best translation?" Sometimes the first question should be: "What is the legal status of the text I am translating?"

Why This Matters to Legal Translators

This distinction changes the translator's task.

Suppose a document contains a legal concept that does not have an exact equivalent in another language. A translator may be tempted to focus entirely on terminology: find the closest expression, check the dictionary, compare previous translations, and make the sentence sound natural.

Those steps are important. But they are not necessarily enough.

The translator also needs to understand the legal relationship between the two texts. Is the translated version intended to reproduce an authoritative legal text? Is it an official version? Is it merely provided for information? Are both language versions equally authoritative? Is one language expressly designated as authentic?

These questions can affect how a translation should be approached and, more importantly, how the finished text should be understood by its users.

Accuracy and Authority Are Not the Same Thing

This leads to a distinction that is easy to overlook.

A translation can be accurate without becoming an authoritative text. Likewise, two texts can both be authoritative even though differences between their wording may require careful judicial interpretation.

The Canadian model illustrates the second situation. The ICJ model can illustrate the first.

In both situations, linguistic accuracy remains essential. But linguistic accuracy does not by itself determine the legal status of a text.

Authority comes from the legal system.

That is why legal translation cannot be separated completely from legal interpretation and legal institutions. The translator works with words. The law determines what status those words have.

The Real Difficulty Is Not Always Finding the Equivalent Word

This is one of the reasons legal translation is different from ordinary translation.

In ordinary translation, the goal may be to communicate the meaning of one text naturally and accurately in another language.

In legal translation, the translator may also need to preserve concepts that exist within a particular legal system, terminology that carries established legal consequences, and distinctions between texts that have different legal statuses.

Sometimes the most important question is not whether two sentences sound equivalent. It is whether they occupy the same position within the legal system.

That is a much more difficult problem. And it explains why a legally sophisticated translation requires more than linguistic fluency.

A Final Distinction

When lawyers work with multilingual legal texts, it is tempting to think in terms of "original" and "translation."

But the law does not always use that model. Sometimes there is one authoritative language. Sometimes there are several equally authoritative languages. Sometimes the legal instrument itself determines which text prevails in case of divergence.

The translator therefore needs to know not only what the words mean, but also what legal status those words have.

That distinction may be invisible to a reader. In legal work, it can be decisive.

Sources

• International Court of Justice, Statute of the Court, Article 39. icj-cij.org/statute
• International Court of Justice, Rules of Court, Articles 95–96. icj-cij.org/rules
• Constitution Act, 1982, Canadian Charter of Rights and Freedoms, section 18.
• Government of Canada, Official Languages Act, section 13.
• International Law Commission, work on the law of treaties and multilingual treaty interpretation.