In my last post, I mentioned that if we view the difference between common law and civil law as a matter of codification v. judge-made law alone, we’re missing a key piece of the puzzle. Our legal traditions don’t simply differ in terms of what sources of law they use, but of how those multiple sources compel legal actors to think differently.
Judge-made law means parting from the concrete (the facts of the case) to the abstract (a general rule that can then be applied to similar cases in the future); and this in turn means relying on inductive reasoning.
Codification, on the other hand, means the exact opposite. Codified jurisdictions part from the abstract (the law laid down in the codes) and then subsume the facts of the case under those abstract definitions and rules. This, alternatively, means relying on deductive reasoning.
These factors converge to mean that our brains are wired differently in law school. So while a lawyer from the civil law...
Legal actors do not think the same way in the common law world as they do in the civil law world. I don’t mean that they have thoughts and opinions of their own, I mean that their thought processes differ by virtue of how these two legal traditions look at their sources of law.
While common lawyers are masters of induction, civil lawyers are masters of deduction. Where common lawyers see a need to focus on facts, civil lawyers see a need to focus on statute. In law school, our brains are rewired to look at the world differently and this explains why we argue cases the way we do and ultimately why we write the way we do. It also explains why there’s often no translation equivalence between countries in the two legal traditions, but we’ll work our way up to that over the next few posts. For now, let’s keep it simple and start with how our brains are rewired.
When we think of what differentiates common law countries from civil law countries, we often...
You might have heard translators say, “Context is king”! But what does context actually mean? Well, it depends on who you ask.
If you ask a pragmatist, context is the actual physical and temporal environment in which a communication is taking place. In technical terms, this is also known as the ‘context of utterance.’ It’s the when and the where, which naturally are useful questions to ask ourselves as we translate.
We can also look at context from a different angle (its so called “co-text”), which is that of the immediate verbal environment in which a specific utterance takes place. In plain language, that means we can figure out context by looking at the words or phrases immediately before and after the utterance we’re trying to decipher.
But there’s a third way we can look at context, which is extralinguistic and consists of everything the society concerned deposits into these words or sentences. Remember...
The language of the law is inherently open-textured. Its open texture creates an environment where hybrid terms flourish. Hybrid terms can be vague. Legal translators apply different techniques to bridle this vagueness. In my last post, I showed you one technique that consists of comparing and contrasting the source word’s extension and contextual intention with that of each of its candidate translations to narrow down which term best fits the context at both levels.
Today I want to show you another technique for analyzing denotation and connotation. Denotational and connotational comparison is essential when candidate terms may have a whole different world of meaning associated with them.
Think of the Spanish term estado de emergencia. You might recall this as one of my recent terms of the week on Instagram. There I explained that estado de emergencia doesn’t always mean state of emergency, but why?
Although Spanish-speaking lawyers and politicians will...
If we learned anything about language from Saussure, it’s that language is arbitrary. When putting a “face” (read signifier) on a “concept” (read signified), the different languages spoken throughout the world do so quite randomly (albeit within an existing structure, of course). Think of Saussure’s classic examples:
The Latin equos is no less random than the English horse or the Spanish caballo. No term is more accurate than the other to describe the four legged animal in the above picture. And speakers of each language will be able to understand what is being referred to when they hear the word for it in their own language.
How each language ended up with each term is a matter of linguistic history, the evolution of related languages, etc. But all languages are equally good at putting thoughts into words (or lexical units) so that others can understand what is being said.
So if language captures concepts so well, why does vagueness...
In my last post, I explained what hybrid terms are and argued that most translation fails are a result of the translator not being able to identify these terms. The best way to identify hybrid terms is by focusing on their number one trait: they are polysemic. And the fact that they are polysemic makes them more complex semantically. And that is the whole reason why they are so hard to recognize.
The dilemma for translators usually arises at the connotational level or relates to the term's ambiguity, partial synonymy with other terms, or context-dependence. Let’s look at some examples:
The testator died without issue.
El testador murió sin problemas.
In legal contexts, issue is a hybrid term. As a verb, it can mean expedir in some contexts and notificar in others. As a noun it can mean cuestión or, as in this case, descendencia. While I’m glad the testator no tuvo problemas al morir,...
In my last post, I referenced the open texture of language and how it relates to law and translation. I ended my post with a teaser: “Most legal translators believe that true terms of art are the real problem terms in translation. My argument? They’re not. Instead, our problem terms are hybrid terms – words that appear to have an ordinary meaning, but don’t.” I didn’t stop there because I’m devilish, but because I like to break down complex ideas into bite-sized chunks. So today, we’re tackling two complex ideas: terms of art and hybrid terms.
Now I have an inkling about what you’re thinking. You already know what terms of art are. They are words or phrases that have a precise, specialized meaning within the legal field. Kudos to you for owning a dictionary! But really, what does that mean when we’re translating?
Look at the following list of words. Which ones would you classify as terms of art?
HLA Hart’s The Concept of Law can be read in many different ways. One way proposes a concept of law that equates law to a matter of social fact. Today, saying that law is a matter of social fact might seem like stating the obvious. But that wasn’t always the case. In fact, when Hart first wrote The Concept of Law, he was limited by the theoretical framework of two opposing theories of what law is: Austin’s positivism and natural law theory. And neither one of those had yet thought to describe law as a matter of social fact.
So what do we mean by law as a matter of social fact? It’s a philosophical take on what the law is that parts from the belief that law is essentially a social rule that is made up of convergent social practices that get their authority for law as a matter of social fact. It’s basically a way of saying that law is what a specific society in a specific place and point in time says that it is.
Now why is this important? For many...
Wherever there are people, there’s the potential for human conflict, and in the modern world, wherever there is human conflict, there’s law. So law is everywhere. And because the law necessarily needs to be expressed and enforced in language, wherever there is law, there is a need for translation and interpretation.
There used to be a time when lawyers didn’t need to specialize. In fact, there used be a time when law schools didn’t exist at all but lawyers still did. But those days are long behind us and it’s impossible for a lawyer today to master every area of the law. So we specialize. It’s just common sense. Yet legal translators don’t. And I’m here to challenge that. In fact, I’m here to say that in my 20+ years in the legal translation world, the best legal translators have just about two or three sub-specializations and are able to recognize when the subject matter is beyond their area of expertise. That’s called...
In the internet era, journals are not always people’s first choice for reading material. It seems people these days want information to be brief and easy-to-follow. They want to immediately know what they’re getting and why they should care about it. And they want it in three seconds or less–at least that’s what the communication gurus say. Journals, on the other hand, are wordy and complicated. They force us to patiently wait for the author’s building blocks to take shape before we can appreciate the full scope of their argument. And more often than not by the time we do, we realize we’re not even sold on it anyway. Reading journals is an exercise in patience and—when the subject is interesting but the writing is not—it’s also an exercise in perseverance.
But I love journals anyway and I’ll tell you why: scholarly writing forces us to take a step back and think about our professional practice from a more rational and...