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When Kelsen Meets U.S. Law

Last month’s posts demonstrated how difficult legal concepts can be to grasp and highlighted how they are sometimes even harder to translate. Legal translators know that the preliminary challenge is working with different languages, but that conclusions are drawn by translating contrasting legal systems. These legal systems are created by societies who naturally have distinct views on how to govern themselves.

A society articulates these views and rules of governance through language and values. This means that legal translators have to constantly keep up on a number of skills from source and target language mastery to subject-matter and cultural expertise. And this blog is all about helping you do that. It’s about helping legal translators in particular better understand what is at the heart of the meaning of certain legal concepts. Now that we’ve taken a step back and thoroughly covered the meaning of common law and equity, it’s time to jump in to the...

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The Concept of Equity: Part 3

As you may have garnered from my last two posts on the concept of equity (in the historical sense and in the philosophical sense), there’s a third sense in which we use this term in legal contexts and it is the most widely used of the three. 

While this third sense also relates to the historical origins we’ve analyzed in the last two posts, the meaning of the term is no longer linked to a specific institution. Why? Because today in the U.S. only three states have courts of equity: the states of Delaware (Delaware Court of Chancery), Mississippi (Chancery Court), and Tennessee (Chancery Courts of Tennessee). Ergo understanding the concept of equity from its historical origin alone gives us an incomplete picture of how the term is used in the modern sense. 

To bring things into focus, let’s take a step back and understand equity as what developed in the Courts of Chancery throughout history, with its, “distinctive mode of reasoning [… i.e.]...

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The Concept of Equity: Part 2

In my previous post on the concept of equity, we took a brief (and very simplified) look at this complex term and learned that:

  • Equity can be understood in opposition to a very narrow sense of the concept of common law.
  • In that sense, its meaning is related to its historical origins.
  • Its historical origins can be traced back to Middle Ages England.
  • At one time, some jurisdictions in the United States also had equity courts.
  • Equity courts gave rise to rules and principles that still exist today.
  • Equity courts also gave rise to remedies that continue to exist to this day.
  • All that, in turn, gave rise to language we, translators, must thoroughly understand.

Let’s recap: in the sense we've explored so far, equity refers to certain doctrines and remedies that first originated in the English courts of equity, specifically at the Court of Chancery. You’ll recall I gave you some examples of that sense of the term:

But that’s only a very small slice of the equity...

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The Concept of Equity: Part 1

My last post described four different senses with which we use the term common law and how to translate them. I explained that I use the word sense deliberately (and not as in meaning or connotation) and that we’re still working our way up to fully understanding why. For now, we’re learning about the Common Law tradition and the key terms that all legal translators must know if English is one of their working languages.

Now we’re going to learn about a second concept that is also characteristic of the Common Law tradition: equity—and it’s a hard one. The concept of equity is deeply connected to that of common law, so if you haven’t read my previous post and you’re not already familiar with the multiple meanings of the term common law, read that one first. These posts are written as a series that starts with the basics and moves up from there, so be sure to follow along in order.

Let’s hit refresh: in my last post, I wrote that in...

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