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 occur?
Because of its open texture.
The more abstract a concept, the more difficult it is to delimit it. And because the law is pure abstraction, it’s inherently open-textured and prone to vagueness. The law tries to overcome this vagueness with definitions. We find defined terms in statutes, contracts, deeds, etc. But that doesn’t always help bring clarity to what is being discussed.
Look at this example from Section 170 of the U.S. Federal Tax Code.
Any contribution made by a corporation in a taxable year … in excess of the amount deductible for such year … shall be deductible for each of the 5 succeeding taxable years in order of time, but only to the extent of the lesser of the two following amounts: (i) the excess of the maximum amount deductible for such succeeding taxable year under subsection (b)(2)(A) over the sum of the contributions made in such year plus the aggregate of the excess contributions which were made in taxable years before the contribution year and which are deductible under this subparagraph for such succeeding taxable year; or (ii) in the case of the first succeeding taxable year, the amount of such excess contribution, and in the case of the second, third, fourth, or fifth succeeding taxable year, the portion of such excess contribution not deductible under this subparagraph for any taxable year intervening between the contribution year and such succeeding taxable year.
Surely there are much clearer ways to put a limit on corporate gifts to charities and let corporations know that they can’t give away more than 10% of their net income and what happens if they give away more than that. But the legal language in this section is not just dull and lifeless, it’s also inherently vague.
Think of the word contribution. It can mean anything from donación to contribución to donativo. The lexical unit is vague. It’s a hybrid term. And there are several techniques for finding the correct equivalent in translation.
One such technique boils down to analyzing the extension and intention of the term in context. By extension, we mean the range or scope of the term. And extension is measured by the number of things the term applies to. By extension, a contribution could mean a donation, gift, or even a benefaction or charitable donation. But when we balance extension with intension, we can get a better feel for the correct term. If the intention of the statute in question is to limit how much net income a corporation can donate to charities each year and we contrast the source term with its potential matches, our options narrow.
Let’s look at the term contribution in English and three possible equivalents in Spanish:
1. Something one gives or does in order to help an endeavor be successful. 2. An amount of money that one gives in order to help pay for something.
(Relevant definitions from Black’s Law that fit our context; remaining definitions have been omitted.)
Donación: contrato por el que una parte (donante) atribuye a otra (donatario) un bien o derecho sin contraprestación.
Contribución: tributo, aportación económica a las arcas publicas
Donativo: cosa, normalmente dinero, que se entrega con fines benéficos o culturales, sin contraprestación alguna
(Definitions from the Diccionario panhispánico del español jurídico de la Real Academia Española. Legal concepts may vary in different Spanish-speaking jurisdictions.)
Notice how when we stick solely to the extensional level of the term, we can’t narrow down on the right translation. They all seem equally viable. But when we bring the intentional level into the equation, only one term fits our context.
I randomly picked three out of at least ten possible terms for the sake of brevity. One could object to the conclusion that donativo is the right term and one may only do so in jurisdictions that have no concept of donativo. Other jurisdictions might use the term obsequio instead. And that brings me to my second consideration: locale. Not all Spanish-speaking jurisdictions call things the same way. So if you’re going to do this exercise, you need to compare and contrast monolingual legal dictionaries that apply to the target locale.
This was a relatively straightforward type of vagueness to overcome. In my next post, we’ll look at more complex terms that require comparing and contrasting connotational and denotational levels. So stay tuned!
Where to go from here?
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