Instead of starting this first post in the New Year with the usual promises to be more regular and frequent in my posting (things I am admittedly working on …), I would like to take a short moment to reflect on the purpose of this blog and of law blogs in general by citing a recent (very interesting) article by Katharina Isabel Schmidt, a J.S.D. candidate at the Yale Law School.
By way of conclusion, I would suggest that the particular merit of law blogs […] results from their capacity to advance the following two objectives: Firstly, to facilitate transnational self-reflection on the kind of endeavor we, as jurists, consider ourselves to be engaged in. Secondly, to give a voice to younger scholars and practitioners who have historically been excluded from important conversations about the future of law and the legal profession. For this purpose we should by all means continue to take advantage of the dynamic, democratic and decentralized nature of non-traditional approaches to legal knowledge production for the purpose of remedying the particular flaws of traditional national law journal culture […].
Hopefully CompareLex will play a role in this new era of broadcasting legal knowledge and discourse through non-traditional channels.
The connection between legal language and culture can be best seen in post-colonial settings. In particular, the respect for indigenous language and tradition is important when drafting treaties between Indian tribes and governments. Some of these treaties try to integrate the indigenous while others establish institutions intended to translate between the colonial and the indigenous system. Evidently, such interactions between two systems are problematic in terms of socio-legal communication.
In his article, ‘‘What Are You Going to Do with the Village’s Knowledge?’’ Talking Tradition, Talking Law in Hopi Tribal Court, Justin B. Richland compellingly describes the difficulty of applying Anglo-American legal principles to Hopi Indian traditions and customs. Richland presents a property dispute among members of a Hopi village. The dispute took place in front of a Hopi judge sitting as Hopi Tribal Court. This kind of court proceeding is set to accommodate Anglo-American procedure with Hopi customs and traditions. It is exactly such type of interaction between two fundamentally different legal systems that poses socio-legal challenges for all parties involved. In this particular case, the judge forwent a cross-examination and took questioning of the witnesses into his own hand. To prevent any future argument that he was partial, the judge tried to remain as abstract as possible and demanded that the witnesses only state general principles of village customs and traditions. Historically, however, such customs and traditions are the reserved knowledge of a privileged part of the village population and are transferred among members much like personal property. Therefore, the resistance of the witnesses to testify on general principles of custom and tradition was vehement. Furthermore, as the witnesses represented village elders that possessed such privileged knowledge, they challenged the (external) judge’s power to decide the case. Instead, they saw the reason for their presence in helping to decide this particular property dispute. Evidently, given such conflicting conceptions, the hearing did not go at all smoothly.
This case is an excellent illustration of the difficult relationship between law and culture. While some still challenge the relevance of culture and tradition and focus exclusively on legal principles, such an approach is problematic, as the above-mentioned case shows. The question then is how these sometimes clashing concepts of law and culture can be best accommodated. An important goal would be the cultural awareness and the respect for culture among lawyers. For comparative law this means that comparatists should not only focus on the positive laws of different legal systems, but also on their traditions and customs.
Justin B. Richland, “What Are You Going to Do With the Village’s Knowledge?” Talking Law, Talking Tradition in Hopi Tribal Court, 39 Law & Soc Rev 235-272 (2005).
As we have seen here and here, translating legal texts can be tricky. Often a literal translation is not possible or would not make much sense. Therefore, proper knowledge of the foreign legal system is key. That is why comparative law and legal translation are inextricably intertwined … and why comparative lawyers should master the basics of legal translation. Below is a description of the two-step process of legal translation.
First Step: Looking for Equivalent Legal Terms
If the legal terms are equivalent, they can be translated literally. For instance, there is no reason to create a complicated German circumscription for contract. Yet, one should avoid translating legal language into colloquial words. Furthermore, there may be pitfalls and legal terms that seem to have a literal translation could in fact be more complex in nature. Thus, it may be tempting to blindly translate the French erreur (mistake) with the German Irrtum, yet in reality some erreurs are treated under the German Wegfall der Geschaeftsgrundlage (fundamental change of circumstances). In these cases, it is absolutely essential to have proper knowledge not only of the meaning of a legal term, but also of its function within the whole legal system. In fact, full equivalence of legal terms is very rare. Instead there may be near full equivalence depending on legal development and context.
Second Step: Finding Subsidiaries in Case of Too Much Discrepancy
If there is no equivalence of legal terms, a translator has to find subsidiaries. Usually, subsidiaries are expressed in one of the three following ways:
- no translation: the foreign term is preserved and incorporated into the translation;
- paraphrasing: the foreign term is incorporated into the translation via definition;
- neologism: a new term is created in the translation usually on the basis of Roman law terms. [Strictly speaking, the first point – no translation – is also a form of neologism!]
It depends on the particular circumstances which of the above subsidiaries best fits the purpose of a translation. Sometimes all three solutions can be found within the same translation. Out of my personal experience, however, paraphrasing should be the standard. Although providing a definition instead of a translation may restrict the word flow, neologisms or no translation requires that the reader is well acquainted with the technical term – which in a translation seems rather paradox. Also, only paraphrasing ensures that legal concepts are spread across borders.
Gerard-René de Groot, Legal translation, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 423-433 (Jan Smits ed., 2006).