What is the open-texture of legal language and what does it mean for translators?

law and language Feb 08, 2021

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 reasons. First, the two dominant theories before Hart’s so-called “light” positivism were incomplete. On the one hand, following Austin and Kelsen, positivists believed that the law was simply orders backed by threats. Hart calls this “the imperative theory.” And on the other, natural law proponents by then had an artificially atheist version of “law is what God says it is” that had been reformulated as something like “law and moral are one in the same” (i.e. “the normative theory” in Hart’s terms). Sure, there were realists out there saying law boils down to predictions about how judges are going to adjudicate cases (“the predictive theory”) but that was far too Common Law-centric to gain too much traction (at the time) outside of the English-speaking world (this changed a few years later).

So along comes Hart and says something in the lines of, “You’re all wrong!” He claimed these theories were “reductive” and that none of them could account for three “recurrent issues.” In his words:  

How does law differ from and how is it related to orders backed by threats?

How does legal obligation differ from, and how is it related to, moral obligations?

What are rules and to what extent is law an affair of rules.

See, for Hart, not being able to answer these three questions meant not being able to clearly answer the question What is law? And not being able to answer that question meant not having the full picture of what lawyers and courts do and how they serve the public. So he set out to find an answer, not to provide a one-size-fits-all definition of law but, as he put it, “to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences among law, coercion, and morality, as types of social phenomena.” In other words, he wanted to figure out what law is to society in general, and not just to a specific society.

Things get super philosophical from there. Let me sum it up for you and show you how it relates to legal translation.

Hart believed that even though a comprehensive definition of law that accounts for legal phenomena as a whole is impossible to obtain (meaning, you can’t arrive at an accurate dictionary definition that truly captures what law is), if we want to know what law is, we need to analyze its language. Because to Hart, language is what ties law to society, to business, to politics, and to everything else you can think of.

But here’s the thing, language has this annoying little habit of being inherently vague and open to interpretation because of its main characteristic feature: its open texture. So just exactly what is that open texture? It’s what Wittgenstein was referring to when he talked about the linguistic turn. Wittgenstein’s linguistic turn was one of the most significant developments in Western philosophy in the 20th century and it goes something like this: Humans can’t conceive of anything that hasn’t reached the conceptual level. And if something hasn’t reached the conceptual level, it hasn’t reached the linguistic level either. So “the limits of my language are the limits of world.” If you can’t think it, you can’t say it, if you can’t say it, you can’t think it. Catch 22? Totally!

Now Hart thought what Wittgenstein had to say was pretty darn cool and could explain the problem with the concept of law. Language, you see, affects how we conceive of the law as a practice but also how we practice law. But Wittgenstein never really talked about the “open texture of language” and Hart didn’t have Wittgenstein directly in mind. Instead, Hart was interpreting Wittgenstein through the eyes of Friedrich Weismann who did use the term open texture to explain the inherently vague nature of language. It goes something like this: there are always going to be clear-cut cases of the concept we’re trying to explain. Think of a word like elephant. If you speak English, you know when I say elephant I’m referring to an animal that looks like this:

 

But then there are always going to be not so clear-cut cases. Think of a word like fairness. You and I can have radically different conceptions of what is and isn’t fair. And legal language, says Hart, is rigged with those types of concepts: the ones we can’t always agree on. He takes this a step further and says that ultimately when the courts interpret those words and breathe meaning into them, they’re legislating. And that’s where other jurisprudents started refuting his theory. We don’t have to go there. We can stop at this: legal language is inherently vague and open to interpretation. So working with legal terminology means we need to be aware that everything is not always as crystal clear as our glossaries or bilingual dictionaries will have us think it is. We, as legal language professionals, need to tread very lightly around heavily nuanced legal terms.

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. And those are the terms we’ll talk about next Monday on this blog. If you don’t want to miss it, subscribe to my newsletter and get the link as soon as it goes live!

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