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).
Now, that I have established the basics in comparative law methodology, it is time to bring everything together. Therefore, in this post, I will illustrate what steps a comparative law study should follow.
Preliminary Step: Determine the Scope
Typical questions to ask are: How far shall the comparison go? Shall it encompass all legal systems of the world or only a subset of them? Shall it compare a whole legal systems or only specific legal issues? There is no given answer as to which scope to choose. It all depends on your personal strategic goals and resources.
First Step: Get a Concept
Typical questions to ask are: Shall the comparison be intra- or cross-cultural? What legal aspects are to be compared: structures, institutions, functions? At this point, I would also decide what comparative methodology to apply, i.e. functionalism, comparative law and economics, comparative cultures, or a combination thereof.
Second Step: Describe the Data
Now is the moment to compile factual research. Again, it is a matter of personal choice whether to focus on hard facts (e.g. norms) or soft issues (e.g. socio-economic problems). At this point, however, a proper classification is indispensable.
Third Step: Identify Similarities/Differences
Based on the data gathered during the previous step, one can now juxtapose all the similarities and differences found in step two.
Fourth Step: Explain Similarities/Differences
This phase probably depends most on the exact methodology chosen for the comparative work.
Fifth Step: Confirm the Theory
The final step of a comparative study should consist of some generalized statement. Usually, such a statement will formulate a suggestion for improvement or it would demonstrate the general applicability of the study.
Esin Örücü, Methodology of comparative law, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 442-454 (Jan M. Smits 2006).
In general, comparative legal studies can be divided into two main groups: macro-level comparison and micro-level comparison. While the former represents the comparison of two or more legal systems as a whole, the latter describes the analysis of a specific legal issue and how it is treated in two or more legal systems. Thus, if you compare the entire German and the US legal system, you do a macro-level comparison. If, on the other hand, you are interested in a juxtaposition of the ways contracts are made in the United States and Germany respectively, you would compare the two laws on a micro-level.
The macro-micro-level distinction, however, is only a cursory one. On the substantive side, the following five main groups of comparative legal studies have been distinguished:
- comparing one or more foreign legal system(s) with the domestic system;
- analyzing the solutions different legal systems offer for a legal problem;
- investigating the causal relationship between legal systems;
- contrasting the different stages of various legal systems; and
- examining the general legal evolution.
Overall, a comparative legal study requires a balanced and thorough analysis of two or more legal systems or some aspects thereof (as opposed to just mentioning the legal situation in a foreign country).
PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 7 and 227 (2nd ed. 1999).