Cultural Transfer in Legal Translation ; Domestication of Legal practices in Nepali Laws and Legal Systems

Abstract

Foreign legal apparatuses and values have been appropriated in Nepali laws and the legal system through translation. As a set of skills that help a message travel from the source language (SL) to the target language (TL), translation involves language, values, and cultural perspectives that play a significant role in legal translation as well. Such a transfer involves word-for-word or sense-for-sense appropriation, and this research uses the second one to appropriate foreign legal culture into Nepali laws and legal systems. In the legal field, such an appropriation and transfer is evident. During this process, the SL culture is prominently transferred to the TL. In Nepali laws, foreign culture has been appropriated congruously and incongruously, and this study examines such appropriation through translation, the reasons, and produces textual and practical evidence. This qualitative research has collected primary data from the Constitution of Nepal 2015, the National Civil (Code) Act 2017, the National Penal (Code) Act 2017, the Evidence Act of 1974, and the Act Relating to Children 2018 using the SL and the authorized TL version and has compared and contrasted with the US Constitution, the Marriage Act 1949 of England, Matrimonial Causes Act, 1973 (divorce) of England and Wales, the International Convention on Civil and Political Rights, 1966 (ICCPR), the Convention on the Rights of the Child, 1989 (CRC), and the Rome Statute of the International Criminal Court, 1998 (ICC), the French Civil Code, the German Penal Code, and the Japanese Penal Code to explore the congruities and incongruities. This is descriptive analytical work that has interpreted data using the hermeneutic interpretative method. As a conceptual framework, this research has used Alex. Fraser Tytler's (1907) principles of translation, J. L. Austin's (1962) speech act theory, and H. Paul Grice's (1975) cooperative principles to explore the legislative intent of the source text. Hans J. Vermeer and Mary Snell-Hornby's (1980s) concepts of translation as a cross-cultural event, Lawrence Venuti's (1990s) domestication and foreignization strategies for cultural transfer, and Alan Watson's (2006) concept of legal transplant. This research finds that, due to the influence of globalization and the need for modernization of Nepali law, Nepal has adopted foreign legal culture congruously in principles and incongruously in practices. In the Constitution of Nepal and the national civil and penal codes, Nepal has appropriated foreign legal principles as a cultural compromise. The appropriation of human rights, corporate, and environmental laws is a need to modernize the Nepali legal system. Not only the laws, but also legal maxims and terminologies are appropriated. This research enriches the readers with new knowledge that legal translation has transferred foreign legal culture to the Nepali legal system, and based on this research, the prospective researcher can explore the cultural identity, policy implications in legislative drafts, future law reform plans, and translation practices in Nepal.