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 opposition to the body of law deriving from the courts of equity (which I’ll tackle in my next post).
In a slightly broader sense (sense 2), it can mean: “tradition [that] emerged in England during the Middle Ages and was applied within British colonies across continents” (Berkley Law 2010). In that sense, it describes the legal tradition of England and Wales, Northern Ireland, the United States of America (with the exception of Louisiana), Canada (with the exception of Quebec), and several other countries as shown in the map below by the Foundation pour le droit continental.
In both those senses, common law refers to the name of a legal system (sense 1) or tradition (sense 2) and can be translated as Derecho anglosajón (which appears to be a more popular translation in Spain than on my side of the Atlantic) or Derecho de tradición anglosajona.
However, when it comes to the United States specifically (sense 3), it can mean: “the body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies <all states except Louisiana have common law as their legal system>” (Garner 2009). In that sense, the term Derecho anglo-americano though wildly popular in the legal world, has come into question for the appropriation of the term “American” to mean from or originating in the United States, which is why many scholars opt for Derecho anglo-estadounidense instead (Friedman 2014).
In its broadest sense, the term common law “is often used more widely to refer to the law found in the decisions of the courts in general, as contrasted with the law found in legislative enactments” (Cartwright 2007, 2013). In that sense (sense 4), common law is synonymous to judge-made law and often either left untranslated (Cabanellas de las Cuevas and Hoague 2019) or translated as derecho común (Becerra n.d.), other options include derecho de creación judicial (which can be appropriate when common law is the grammatical object of a clause, but not necessarily in other contexts).
Of course, none of this matters if we can’t bring it down to our professional practice somehow. So the question now is: How does this help you as a translator?
Let’s look at some common terms that can come up in translation.
In this post, we looked at four different senses in which we might come across the term common law when translating:
At the beginning of this post, I said that one sense in which we can come across the term common law is as opposed to equity, which is another problem term in translation that we’ll tackle together in my next post. For now, all you need to remember is that common law can, in some sense, be defined in opposition to equity... and the rest is context. 😉
If you're wondering why I used the word sense and not meaning or connotation, that's coming up in a future post too. So if you liked this post, sign up to receive my weekly newsletter and never miss a single post in this series, free glossary or other goody.
Becerra, Javier F. n.d. Dictionary of United States Legal Terminology – English/Spanish [online].
Cabanellas de las Cuevas, Guillermo, and Eleonora Hoague. 2019. Diccionario Jurídico inglés-español.Buenos Aires: Editorial Heliasta S.R.L.
Cartwright, John. 2007, 2013. Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer. Oxford: Hart Publishing Ltd.
Friedman, Max Paul. 2014. "Antiamericanismo y la política exterior estadounidense [en línea]." Biblioteca Digital de la Universidad Católica Argentina. Accessed June 27, 2020. https://repositorio.uca.edu.ar/bitstream/123456789/6550/1/antiamericanismo-politica-exterior.pdf.
Garner, Bryan A. 2009. Black's Law Dictionary. West Publishing.