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When Kelsen Meets U.S. Law

Last month’s posts demonstrated how difficult legal concepts can be to grasp and highlighted how they are sometimes even harder to translate. Legal translators know that the preliminary challenge is working with different languages, but that conclusions are drawn by translating contrasting legal systems. These legal systems are created by societies who naturally have distinct views on how to govern themselves.

A society articulates these views and rules of governance through language and values. This means that legal translators have to constantly keep up on a number of skills from source and target language mastery to subject-matter and cultural expertise. And this blog is all about helping you do that. It’s about helping legal translators in particular better understand what is at the heart of the meaning of certain legal concepts. Now that we’ve taken a step back and thoroughly covered the meaning of common law and equity, it’s time to jump in to the...

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The Concept of Equity: Part 3

As you may have garnered from my last two posts on the concept of equity (in the historical sense and in the philosophical sense), there’s a third sense in which we use this term in legal contexts and it is the most widely used of the three. 

While this third sense also relates to the historical origins we’ve analyzed in the last two posts, the meaning of the term is no longer linked to a specific institution. Why? Because today in the U.S. only three states have courts of equity: the states of Delaware (Delaware Court of Chancery), Mississippi (Chancery Court), and Tennessee (Chancery Courts of Tennessee). Ergo understanding the concept of equity from its historical origin alone gives us an incomplete picture of how the term is used in the modern sense. 

To bring things into focus, let’s take a step back and understand equity as what developed in the Courts of Chancery throughout history, with its, “distinctive mode of reasoning [… i.e.]...

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The Concept of Equity: Part 2

In my previous post on the concept of equity, we took a brief (and very simplified) look at this complex term and learned that:

  • Equity can be understood in opposition to a very narrow sense of the concept of common law.
  • In that sense, its meaning is related to its historical origins.
  • Its historical origins can be traced back to Middle Ages England.
  • At one time, some jurisdictions in the United States also had equity courts.
  • Equity courts gave rise to rules and principles that still exist today.
  • Equity courts also gave rise to remedies that continue to exist to this day.
  • All that, in turn, gave rise to language we, translators, must thoroughly understand.

Let’s recap: in the sense we've explored so far, equity refers to certain doctrines and remedies that first originated in the English courts of equity, specifically at the Court of Chancery. You’ll recall I gave you some examples of that sense of the term:

But that’s only a very small slice of the equity...

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The Concept of Equity: Part 1

My last post described four different senses with which we use the term common law and how to translate them. I explained that I use the word sense deliberately (and not as in meaning or connotation) and that we’re still working our way up to fully understanding why. For now, we’re learning about the Common Law tradition and the key terms that all legal translators must know if English is one of their working languages.

Now we’re going to learn about a second concept that is also characteristic of the Common Law tradition: equity—and it’s a hard one. The concept of equity is deeply connected to that of common law, so if you haven’t read my previous post and you’re not already familiar with the multiple meanings of the term common law, read that one first. These posts are written as a series that starts with the basics and moves up from there, so be sure to follow along in order.

Let’s hit refresh: in my last post, I wrote that in...

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The Multiple Translations of the Term “Common Law”

This is the first of a series of posts for legal translation newbies (or old bees who need a refresher). This series will start with the basics and slowly build up to more complex legal-linguistic problems. My examples and translations will be in Spanish, but even if Spanish is not one of your working languages, my hope is that this series might still help you understand certain concepts and terminology in English. 

So let’s start at the beginning. Today’s question is: What do we mean when we say common law

Common law can be used in several different senses.

In its narrowest possible sense (sense 1), it can mean: “the law found in or traced back to the decisions of a particular group of courts which existed in England from the early middle ages until the late nineteenth century—the King’s courts, also referred to as common law courts” (Cartwright 2007, 2013). In that narrow sense, common law can, to some extent, be understood in...

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The Blurry Boundaries of UK Common Law

In one of my recent free webinars, I said the legal tradition of the United Kingdom is the Common Law tradition and a webinar attendee took issue with my statement. This person further criticized that I didn’t mention three mixed jurisdictions within the Common Law World: Scotland, Ottawa, and Louisiana. 

This person is not entirely wrong. I didn’t mention those jurisdictions; but in all fairness, I didn’t mention mixed systems at all because an exhaustive jurisdiction-by-jurisdiction description of the Common Law vs. the Civil Law world was not the point of my presentation. And if we’re being truly intellectually honest and morally consistent, then this person should have also taken issue with the fact that I didn’t mention St. Lucia, Puerto Rico, South Africa, Zimbabwe, Botswana, Lesotho, Swaziland, Namibia, the Philippines or Sri Lanka either. There’s only so much you can cover in a free one-hour webinar and we have to cut the frills...

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The Concept of Contract: What Translators Should Know about the Term “Contract”

Whether we realize it or not, we enter into contracts every single day. Our contractual transactions are more obvious to us when we actually sign an agreement or click “Agree” on an online adhesion contract than in other more passive contractual transactions, but they are contracts non the same. Basically, every single time a promise is a made which can be enforced by law, we’re looking at a contract. In fact, the word contract is defined as:

A promise or set of promises by a party to a transaction, enforceable or otherwise enforceable at law; the writing expressing that promise or set of promises.[1] 

We can infer two things from the above definition. First, that a legally enforceable promise is a contract. Second, that in English, we use the word contract to refer both to the abstract enforceable promise and to the actual document people sign (or click on). But the matter is even more complex than that:

The term contract has been used indifferently to refer...

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Three Keys to Accurate Contract Translations

contract translation Mar 10, 2020

“Read drafts critically—even hypercritically,” writes Bryan Garner in his Guidelines for Drafting and Editing Contracts. Sound advice for primary drafters, but I’d argue the same advice applies to translators as secondary drafters. Where Garner advises lawyers to “[b]e sure you’ve actually said what you mean to say,” I’d advise translators to be sure you’re reflecting what your client actually meant to say, which is not always an easy feat. Rendering accurate contract translations means reading the contract critically, even hypercritically, and translating meaning, not words. 

When it comes to translation specifically, critically reading your source text will help you better understand what the parties intended to convey, but it can also help you catch many common translation errors when proofreading the final draft of your translation. So here are some tips to achieve just that.

I. Avoid Party Swapping

Look at the...

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5 Contract Translation Tips for English to Spanish Translators

Uncategorized Feb 24, 2020

If you’re a professional translator working between the common law tradition of the United States and the civil law tradition of Spain and Latin America, you’ve probably realized American contracts are much longer than their civil law counterparts. 

This is because civil law countries are codified. So when drafting contracts, civil lawyers can incorporate the codes by reference. Common lawyers can do no such thing. Instead, they have to try to foresee every possible scenario that could potentially affect their clients and draft accordingly, which naturally results in longer contracts. 

These long common law contracts are typically divided into 5 parts; and each part poses a particular translation challenge.

 

Part 1: The Title 

The title is the first indicator of how much legal and linguistic equivalence we are likely to have in our working languages. For example, a trust agreement between English and Spanish will have a lot of legal-linguistic...

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A Quick Technique for Translating Archaisms

english quick tip spanish Feb 17, 2020

Legal language can be very stiff and is all too often riddled with old-fashioned syntax and antiquated vocabulary. This is, in part, out of tradition. But legal language also typically preserves terms of art that were coined many centuries ago. It does so, because, for legal experts who know exactly what those terms of art mean, they have the advantage of precision and clarity.

The downside, of course, is that when documents are layperson-facing, the reader will be lost. That’s why so many jurisdictions are moving toward plain language for documents that are aimed, not at specialists, but at the general public.

The question, however, is what are translators to do when they come across syntactic oddities arising out of the linguistic stiffness of the law? We know literal translators won’t work.

Think of phrases like witnesseth that. While in many contexts it may mean attests or affirms that, in others, like contracts, it may mean nothing at all and is just there out of...

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