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 world will have very little problem reading, writing, or following convoluted 500-or-more-word sentences, our counterparts in the common law world will have a hard time wrapping their heads around how we structure our thoughts.
When translators mirror the source text word for word, including grammar and syntax, they are doing the legal community a disservice in that they are failing to do the number one thing that defines our role: facilitate communication across languages, cultures, and legal systems.
But literality can fail in a second way, on the level lawyers care about most, i.e. precision. That, however, is just the tip of the iceberg.
Let’s look at an example.
Non-Literal Translation (recommended)
The Supreme Court dismissed the defendants’ appeal. On the assumed facts the defendants had “converted” the company’s shareholding when they procured or participated in its unlawful distribution.
La Corte Suprema desestimó la apelación de los acusados. Sobre los hechos supuestos, los demandados habían “convertido” la participación accionaria de la empresa cuando adquirieron o participaron en su distribución ilícita.
La Corte Suprema* desestimó la apelación de los demandados. Sobre los hechos admitidos declaró** que los demandados se habían «apropiado» ilícitamente del paquete accionarial de la sociedad cuando obtuvieron o participaron en su distribución ilícita.
* Note: locale is Spanish for Argentina. Tribunal Supremo may be more appropriate in other jurisdictions.
** Notice how much clarity is gained by adding a verb. Now we know who is doing the talking because the verb helps the reader infer the subject.
And now, let’s take this bit by bit.
Tribunal Supremo v. Corte Suprema: Depends on the jurisdiction. While Corte Suprema is the appropriate translation in Argentina, Tribunal Supremo would be more appropriate in Spain and Suprema Corte would apply to Mexico. The answer depends on the court structure (and therefore terminology) of the receiving jurisdiction. Pro tip: always ask what the target locale is.
Assumed facts: Spoiler alert. You will not find assumed facts in Black’s Law. But you will find assumption defined as “a fact or statement taken as true or correct without definite proof.” However, an attentive reader will quickly realize that this definition is relevant but incomplete. There must be something missing, legally speaking. And there is. We’re in the context of an appeal. The question then is, how do appeals work? Particularly, how do they work with regards to facts? (Notice how that subject-matter expertise I’m always raving about creeps in.)
An appeal basically boils down to asking a higher court to review a lower court’s decision. In the U.S., the appeals court reviews the record made in the trial court (primera instancia). And here’s the catch: nothing new can be added to the record, meaning no new facts or evidence can come into play. An appeal is nothing like the trials you see on lawyer shows on TV.
The lawyers, who are typically appeals lawyers, present the facts and law to the appeals court in a legal brief that looks quite a bit like a book. And the appeals court then decides whether to affirm (confirmar) or to reverse (revocar) the trial court’s decision (sentencia de primera instancia) based upon the written briefs (escrito de agravios or escrito de contestación de agravios, respectively).
With that bit of procedural knowledge, we can solve this part of our linguistic puzzle: assumed facts are facts that are taken to be true because they were already submitted at the trial court level and they are no longer part of the discussion. They are admitidos not in that someone admitted to them, but in that they have already been admitted at the trial court level and what we’re talking about now at the appeals court level is something else.
Some translators prefer hechos probados. Their argument is that these facts have been duly proven at the trial court level. While that’s a strong argument, the truth is that sometimes, assumed facts weren’t necessarily proven at all, they’re just not relevant to the matter brought to the appeals court for analysis. So I prefer admitidos. And you might prefer something different. Either way, notice how the question ultimately is both legal and linguistic.
Convert: A literal translation again fails legally. An attentive translator would realize we’re looking at a tort, specifically, one defined by Black’s Law as “[t]he wrongful possession of another’s property as if it were one’s own […].” So the question here is a matter of legal-linguistic equivalence across jurisdictions. In the target jurisdiction, conversion is called apropiación. Notice here the influence from comparative law.
Translational equivalence refers to the sameness or parity between terms in one language and another. In law, that sameness or parity is hard to find because, unlike other technical languages, legal language lacks universality. That makes legal linguistic equivalence a bit challenging. In my next post, I’ll show you three forms of equivalence in the legal world. Sign up here so you don’t miss it.