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Comparative Law - Engaging Translation
No full textIn an era marked by processes of economic and political integration that are arguably unprecedented in their range and impact, the translation of law has assumed a new significance. The following situations are typical. As the expression of a strong postcolonial commitment, various African states have decided to draft their legislation in more than one official language with a view to conferring equal authority upon colonial and traditional languages. Elsewhere, an influential group of European lawyers is seeking to develop a civil code for the European Union that potentially stands to be translated into 23 languages. Meanwhile, former political and military leaders are being prosecuted for genocide before the International Criminal Court, a body consisting of judges from many different legal backgrounds and operating according to a complex multilingual procedure. And, controversially, the US Supreme Court has relied upon foreign law in order to assess the constitutionality of a Texas statute criminalizing certain forms of sexual behaviour. Each of these instances raises the matter of law in translation, broadly understood. Can legal rules carry identical normative implications in more than one language? Can law achieve uniformity despite needing to be rendered in many languages? How do interpreting and translation affect adjudication in a multilingual courtroom? To what extent can a given legal text make sense in a different legal culture? These questions, among others, are addressed here within a comparative legal context in which, it is demonstrated, translation issues are a central feature of the contemporary legal landscape
Translation Matters
No full textAs languages are deterritorializing on an unprecedented scale, as monolingualism is being denaturalized, not least on account of the emergence of global assemblages such as the European Union, translation is materializing as never before. Everything is being translated. Yet, it remains the case that nothing is translatable. Indeed, it has become trite to observe that ‘secularism’ does not carry the same meaning as ‘laïcité’ or that ‘contract of sale’ does not mean the same as ‘Kaufvertrag’. Law, immingled as it is with language, could not have escaped this aporetic manifestation of linguistic postnationalism. Or could it? Can French law, for instance, exist in a significant manner (i.e. in the sense that it would make sense) beyond the French language? Specifically, can the German translation of an English casebook usefully account for English contract law in the German language? To move one step further, is it possible to design a law that would mean the same thing across various legal languages and that could therefore legitimately claim the status of ‘uniform’ law? Can the language of the law really unbelong, that is, detraditionalize itself? Or does it have a border, in French ‘un bord’, that would suggest an inside and an outside of it, that would entail that it can find itself, at some juncture, ‘débordé’ (or overcome), facing something like intractable alterity? But then, does legal translation need to imply (as it is reflexively assumed to do) sameness, isomorphism, commensurability and adaequatio? Could it not depart from the philological tradition and legitimately involve something other than fidelity to an original text? Is legal translation not an original work in and of itself? In this introductory chapter, I briefly address what I deem some of the most important problems arising from translation in the context of comparative legal studies. In the first part, I foreground the impossibility of translation. Contrary to unexamined assumptions, law simply cannot be faithfully translated from one language to the other. Turning to the second aspect of my argument, I claim that the comparatist must however make the impossible possible. Despite the irreducible differences across languages and cultures, the comparative lawyer cannot refrain from translation. Moreover, she must choose, among the various available strategies, an approach to translation that values the otherness of the foreign law. In my third section, I introduce the various contributions to this volume, which all offer comparatists invaluable insights into the theory and practice of translation in comparative legal studies
The Interpretation of Foreign Law: How Germane Is Gadamer.
No full textGlobalization processes attest to foreign law’s increasing relevance. Consider how the US Supreme Court, one of the most influential interpreters in the legal world, has been referring to foreign law in high-profile decisions regarding the meaning of the US Constitution. Also, in cases involving immigrants German judges are having to assess whether a defendant’s cultural background should impact a decision on guilt or civil responsibility. Meanwhile, New York University has established the Hauser Global Law School, Georgetown the Center for Transnational Legal Studies, Harvard the Institute for Global Law and Policy and King’s College London the Dickson Poon Transnational Law Institute. Journals like the Columbia Journal of Transnational Law, the Indiana Journal of Global Legal Studies and Transnational Legal Theory have emerged, not to mention an immense proliferation of exchange programmes, summer schools, curricula, courses, symposia, colloquia, books, dissertations and blogs. This massive paraphernelia of collective intellectual effort makes challenging interpretive demands on lawyers and suggests the need for reliable theoretical frameworks. In this respect, Hans-Georg Gadamer’s philosophical hermeneutics solicits special attention. Not only has Gadamer had a profound impact on literary and social theory by underwriting the “interpretive turn”, but he devotes important sections of his masterpiece, Truth and Method, to law. However, can Gadamer’s work on interpretation assist ascription of legal meaning across cultural lines? Reactions about the applicability of Gadamer’s interpretive insights to intercultural understanding diverge widely (this situation incidentally vindicating his claim that “one always understands differently, if one understands at all”). I address this controversy
Law’s Hermeneutics: Other Investigations
No full textThis edited collection of essays brings together a dozen leading academics hailing from different scholarly and cultural horizons with a view to revisiting legal hermeneutics by making particular reference to philosophy, sociology and linguistics. On the assumption that theory has much to teach law — that theory solicits, motivates and enables —, the writings of such intellectuals as Martin Heidegger, Hans-Georg Gadamer, Jacques Derrida, Paul Ricœur, Giorgio Agamben, Ronald Dworkin and Ludwig Wittgenstein will receive special consideration. As it explores the matter of reading the law and as it inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader’s worldly finiteness, the book wishes to contribute to an improved appreciation of the merits and limits of law’s hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis. By generating a fruitful exchange between leading scholars from various disciplines in order to highlight the modalities under which understanding takes place, this work will give lawyers the opportunity to think more critically about legal interpretation
Introduction: Hermeneuticizing the Law
No full textWhat are the possibilities and limits of legal interpretation? Are lawyers neutral interpreters of legal texts? Can they ever become unprejudiced, say, through resort to a method? Are there words that can constrain the most activist of judges? Must even the adherent to the strongest form of judicial restraint accept that words carry inherent interpretative latitude? Does legal interpretation involve more than the simple application of the law to the facts? To what extent do economic, socio-political or religious factors influence the interpretation of law and how legitimately so? Ought the age and gender of the interpreter to play a determining role in the understanding of legal texts? Can rules of interpretation lead the interpreter to the correct meaning of the law? Is there the exact meaning of the law in any event? Further, one may ask whether it is not problematic that the interpretation of international legal texts should vary significantly from one country to another. For example, does one expect Chinese and Japanese judges to adopt the same approach to the legal interpretation of an international treaty? Can we at least assume that English and North-American lawyers read legal texts in English in the same way? Is it possible to achieve a uniform interpretation of an international legal instrument across a great number of different countries or Member States? This collection of essays explores the matter of reading the law and inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader’s worldly finiteness. It wishes to contribute to an improved appreciation of the merits and limits of law’s hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis. In this regard, the various chapters purport to supplement and update the body of work to be found in the available literature on legal hermeneutics, whether ancient or recent. More precisely, the contributions to this volume aim to revisit legal hermeneutics by making particular reference to such other disciplines as philosophy, sociology and linguistics
Zur Sprache gebracht: Rechtsvereinheitlichung in Europa
No full textEuropean lawyers who favour greater harmonisation of laws tend to minimise the fact that such process necessarily relies on language. Drawing on translation theory, this paper shows how the inherently local character of language resists moves towards the establishment of uniform laws and how no uniform law, irrespective of the language in which it is written, can account for local legal experience. This analysis thus allows the author to highlight the inherent limits of the ongoing harmonization process in Europe
Law-in-Translation: An Assemblage in Motion
No full textLaw-in-translation, as it manifests itself in either oral or written form, can be usefully described as an assemblage in motion. Oscillating between the generic and the singular, legal translation has gradually affirmed a disciplinary identity of sorts vis-à-vis other well-established genres, such as literary translation or the translation of Scripture. Further, legal translation has been moving from the local to the ‘glocal’ scene. This neologism wishes to capture the idea that while law is more and more subject to translation on the European or international level, it remains unable to escape local forms of understanding. Finally, legal translation has been amplifying its semantic range from the literal to the metaphorical. Long confined to the transmission of oral or written statements across languages, law-in-translation features new instantiations as can be illustrated, for instance, through the ever-expanding circulation of legal concepts from one country to another and the re-formulation of law into economic language within international business relations
Guest Editor for Special Issue on 'Law in Translation'
No full textIn an era marked by processes of economic and political integration that are arguably unprecedented in their range and impact, the translation of law, whether understood in its literal or metaphorical sense, has assumed a significance that can hardly be overstated. The following situations are typical. As the expression of a strong postcolonial commitment, various African states have decided to draft their legislation in more than one official language with a view to conferring equal authority to colonial and traditional languages. Elsewhere, an influential group of European lawyers is seeking to develop a civil code for the European Union that stands to be translated in 23 languages. Meanwhile, former political and military leaders are being prosecuted for genocide before the International Criminal Court, a body consisting of judges from many different legal backgrounds and operating according to a complex multilingual procedure. Controversially, the US Supreme Court has relied upon foreign law in order to assess the constitutionality of a Texas statute criminalizing certain forms of sexual behaviour. Each of these instances raises the matter of law in translation. Can legal rules carry identical normative implications in more than one language? Can law achieve uniformity despite requiring to be rendered in many languages? How do interpreting and translation affect adjudication in a multilingual courtroom? To what extent can a given legal text make sense in a different legal culture? These questions raise only some of the difficult issues that confront lawyers and translators currently acting across national borders. This special issue of The Translator features a number of critical, innovative and interdisciplinary contributions drawing on fields such as translation studies, linguistics, literary theory, sociology, philosophy and postcolonial studies which probe the interface between law, language and translation, with specific reference to the transnational situation as it is currently unfolding
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