Comparative Law - Engaging Translation

Simone Glanert

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135047467
• Edition: 1
• Topic: Filología
• Subtopic: Traducción e interpretación

In an era marked by processes of economic, political and legal integration that are arguably unprecedented in their range and impact, the translation of law has assumed a significance which it would be hard to overstate. The following situations are typical. A French law school is teaching French law in the English language to foreign exchange students. Some US legal scholars are exploring the possibility of developing a generic or transnational constitutional law. German judges are referring to foreign law in a criminal case involving an honour killing committed in Germany with a view to ascertaining the relevance of religious prescriptions. European lawyers are actively working on the creation of a common private law to be translated into the 24 official languages of the European Union. Since 2004, the World Bank has been issuing reports ranking the attractiveness of different legal cultures for doing business. All these examples raise in one way or the other the matter of translation from a comparative legal perspective. However, in today's globalised world where the need to communicate beyond borders arises constantly in different guises, many comparatists continue not to address the issue of translation. This edited collection of essays brings together leading scholars from various cultural and disciplinary backgrounds who draw on fields such as translation studies, linguistics, literary theory, history, philosophy or sociology with a view to promoting a heightened understanding of the complex translational implications pertaining to comparative law, understood both in its literal and metaphorical senses.

Chapter 1

Translation matters

Simone Glanert

‘All forms of comparison are problems of translation and all problems of translation are ultimately problems for comparison’

Aram Yengoyan (2006: 151)

As languages are deterritorialising on an unprecedented scale, as monolingualism is being denaturalised, not least on account of the emergence of global assemblages such as the European Union, translation is materialising as never before. Everything is being translated. However, 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 post-nationalism. Or could it? Can French law, for instance, exist in a significant manner (that is, 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, detraditionalise 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 an era marked by an increased interaction between different legal cultures, one would expect that comparative law would offer a privileged space for reflection on the many issues arising from legal translation. Indeed, the process of legal comparison implies the activity of translation since the task of the comparatist is to explain, using her language, a foreign law, which moreover is generally formulated in a different language. Unsurprisingly, then, recently some scholars have repeatedly urged comparatists to recognise the importance of translation in comparative legal research (Weisflog 1996; Großfeld 2003; Pommer 2006; Curran 2006; Legrand 2008; Brand 2009; Glanert 2011; Pozzo 2012).¹

However, many academics writing in the field do not show any interest in translation. For example, neither Konrad Zweigert and Hein Kötz’s textbook Introduction to Comparative Law (1996), which has dominated comparative legal studies both in Germany and the United Kingdom for the past 40 years, nor René David’s monograph Les Grands systèmes de droits contemporains (2002), which after 11 editions is still highly regarded in France, addresses difficulties arising from legal translation. Other comparatists also fail to apprehend legal translation as problematic for comparative legal studies. In particular, H. Patrick Glenn argues, in the most recent edition of his Legal Traditions of the World, that ‘differences in languages are obstacles to understanding and communication, but not insuperable ones. The translation industry in the world stands as testimony to this’ (2010: 49).

Finally, there are comparatists who, while they show themselves to be sensitive to translation issues, do not provide their readership with the requisite theoretical background. For example, Werner Menski, although he emphasises the need for the comparative lawyer to take into account irreducible linguistic pluralism, refrains from exploring the issue of legal translation at any length (2006: 78). In effect, the pressing practical significance and considerable theoretical interest raised by questions of translation has hitherto been neglected by most comparatists. As such, a recent guidebook to comparative constitutional law, an emerging field within comparative legal studies engaging various aspects of national constitutional law and investigating, among others, the possibility of a generic or transnational constitutional law, does not feature any serious analysis of language and translation issues over its many hundreds of pages (Rosenfeld and Sajó 2012).

But why are comparatists so reluctant to discuss the matter of legal translation? At least four reasons seem to explain the absence of a meaningful focus on translation in comparative legal studies. First, comparatists tend to lack interdisciplinary knowledge. Very often, a lawyer will have developed an expertise in her own field but know little about other disciplines. Spanish philosopher José Ortega y Gasset famously referred to such a person as a ‘learned-ignoramus’, that is, someone who ‘will act in all areas in which he is ignorant, not like an ignorant man, but with all the airs of one who is learned in his own special line’ (1930: 98). Many comparatists therefore find it difficult to come to terms with writings that are not deemed ‘legal’ in the traditional sense. Indeed, a French comparatist laments how ‘complex cultural and interdisciplinary comparison […] renders the discipline so complicated’ (Fauvarque-Cosson 2006: 61).

Secondly, there are comparative lawyers who do not undertake interdisciplinary research for what they regard as practical reasons. The underlying idea governing these comparatists is that they must provide concrete solutions to specific legal problems involving foreign law. In this respect, one comparatist, showing great scepticism with respect to interdisciplinary approaches, argues that ‘this new material is not likely to be of use to applied research of the kind that judges, legislators, and practitioners would ever wish to consult’ (Markesinis 2006: 142).

Thirdly, the ascendancy of law may explain some at least of the comparatist’s unwillingness to take an interest in translation studies. Traditionally, law has been envisaged as more prestigious than other disciplines such as anthropology, sociology or linguistics. For example, in France, during their first year of studies, law students learn to distinguish between ‘the law’ and ‘the auxiliary sciences of the law’ (Aubert and Savaux 2012: 47–51; Cornu 2007: 128–32).

Fourthly, in civil law countries, where statutes are considered to constitute the epistemological substance of the law and where most legal knowledge is articulated around the idea of ‘law as science’, there is but little epistemological room left for the interaction of law with other fields of knowledge (Kiesow 2010). Against this background, it is perhaps not so startling after all that the majority of comparatists tend to ignore, minimise or disqualify translation issues.

In this introductory chapter, I briefly address what I deem to be 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.

In a paper entitled ‘Issues in the Translatability of Law’, Pierre Legrand suggests that ‘the task of comparatists-at-law is to measure the gap or the écart between laws, not unlike the way in which literary translators constantly seek to apprehend the distance between languages’ (2005: 41, original emphasis). For example, comparatists should not assume that the French words plaider coupable could account for the US legal ‘reality’ as it is expressed in plea bargaining. The comparatist should also be aware of the fact that the German expression Eigentum (‘property’) cannot adequately reflect the French legal landscape where the matter is about propriété. The whole history of translation in fact shows that faithful renderings from one language into another are impossible. Indeed, the numerous retranslations of literary or religious texts, such as Shakespeare’s plays, Dostoyevsky’s novels or the Holy Scriptures, demonstrate that a ‘true’ and ‘ultimate’ translation cannot be achieved. In fact, all translators, including legal translators, have to face at least two important challenges.

First, languages do not signify identically. In his influential essay ‘The Task of the Translator’, published in the early 19th century, German philosopher Walter Benjamin explains that the disparities between languages are essentially due to there being different ‘modes of intention [Arten des Meinens]’ at work (1923: 75). The translation of the German word Brot (bread) into the French pain strikingly illustrates this phenomenon. In the two languages, what is ‘meant’ is essentially the same. Both the word Brot and the word pain thus refer to ‘bread’, that is, a consumable good made of water, salt, flour etc. Therefore, the German and French expressions are readily presented as equivalent. However, in the two languages, the ‘modes of intention’ are not the same. Certainly, one would not want to schematise national behaviours. Nevertheless, one can reasonably assume that a German, when using the word Brot, will probably be thinking of Vollkornbrot (whole-grain bread). By contrast, the French person, when referring to pain, will most likely have in mind a baguette. Because of the different ‘modes of intention’ – whole-grain bread and baguette – the two words ultimately signify something different for the German and the French. In the event, Brot and pain are therefore not interchangeable. Indeed, they can be said to exclude each other.

It is important to keep in mind that languages evolve in particular economic, geographical, historical, legal, social and political contexts. In his famous essay on the ‘The Misery and the Splendor of Translation’, Ortega y Gasset highlights the fact that the German word Wald (forest) cannot constitute a faithful translation of the Spanish expression bosque, although most dictionaries present these two words as equivalent (1937: 96). Indeed, for a German, the signifier Wald evokes the idea of an immense terrain with a significant number of trees. By contrast, the Spaniard associates the signifier bosque with probably only a small parcel of land featuring only a small number of trees.

These divergences between the German and the Spanish language are a result of the fact that, in Germany, the wooden surface is much more important than in Spain. Here again, the ‘modes of intention’ are fundamentally different in the two languages, which is why, on reflection, Wald cannot be regarded as equivalent to bosque. One can even go one step further by asking whether a German citizen of the 21st century from the industrial area of the Ruhrgebiet has the same understanding of the word Wald as a German painter of the Romantic period of the 18th century during which some trees, such as the oak, were mythified. Appositely, Martin Heidegger observes that translation operates even within a language (1943: 63).

Lawyers should not suppose that legal language is exempt from such challenges, as described by Benjamin and Ortega y Gasset. In this respect, the word ‘privacy’, which is part of the legal language both in the United States and in the United Kingdom, presents a useful illustration. A close examination of this term reveals that even two legal cultures sharing the same law world (that is, the common law tradition) and using the same language (that is, English) do not have the same understanding of certain legal concepts. The idea of a right to privacy, which commonly refers to the law governing the treatment of personal information (for example, the prohibition on the use of a person’s name without consent for trade or advertising purposes), was first addressed within a legal context in the United States. Louis Brandeis (later appointed to the US Supreme Court) and another young lawyer, Samuel Warren, published an article entitled ‘The Right to Privacy’ in the Harvard Law Review in 1890, arguing that the US Constitution and the common law allowed for the formulation of a general ‘right to privacy’.

A few decades later, William Prosser, a US tort lawyer, developed specific principles of privacy law (1960). By contrast, in the United Kingdom, there is no independent ‘privacy tort doctrine’. The Supreme Court of the United Kingdom, formerly the House of Lords, which refuses to recognise a tort of privacy, requires the claimant to refer either to an existing tort such as a breach of confidence or a specific legal text such as the Data Protection Act 1998. The highest court has repeatedly confirmed its position on this issue, for example, in the landmark cases of Wainwright v Home Office [2003] and Campbell v MGN Ltd [2004].² As a result, the word ‘privacy’ carries a different meaning for US and English lawyers.³ The ‘modes of intention’, as Benjamin would argue, are not the same in the United States and in the United Kingdom.

Secondly, every act of translation involves a process of interpretation. Indeed, the translator, before translating from one language to another, must first understand the source text. This act of interpretation is neither neutral nor objective. In his ground-breaking book Truth and Method, first published in 1960, Hans-Georg Gadamer, one of the most influential German philosophers of the 20th century, offers useful insights into the matter of understanding (1986). Contrary to the processes prevailing in the sciences, Gadamer argues that understanding never follows a logical method: rules, as precise and rigorous as they may be, simply cannot lead the interpreter straight to the ‘right’ meaning of the text. The text does not contain ‘one’ sense that the interpreter would ‘discover’, for example in the way an archaeologist digs up an amphora that has been lying hidden under stone slabs or a museum director unveils a statue on the occasion of an opening ceremony. On the contrary, an interpreter’s understanding of a text or situation is realised through her ‘pre-understanding’, that is, through an anticipatory apprehension of meaning. Access to the text and to the questions arising from it is already, perhaps unconsciously, fashioned according to the historical tradition to which the interpreter belongs.

The modalities under which understanding takes place can be illustrated through the following example. Suppose a German tourist is visiting New York’s Bronx Zoo for the first time, which is often described as the world’s largest metropolitan zoo. While walking around, the German comes across an exotic animal, an okapi, native to the Ituri rainforest located in the northeast of the Democratic Republic of Congo, in Central Africa. Now, the German tourist has never encountered this animal before and she is struck by its quite peculiar physical characteristics. The body shape is similar to that of a giraffe, except that okapis have much shorter necks. Further, okapis have dark backs, with striking horizontal white stripes on the front and back legs making them look like zebras. How can the German tourist ascribe sense to this unfamiliar creature? As I have just suggested, she has no choice but to refer to familiar or pre-existing ideas – giraffe and zebra – in order to gain a certain understanding of the animal. Having said that, we can expect that an inhabitant of the Ituri rainforest who has been living alongside okapis all her life will approach the animal from a different point of view and will probably not (need to) think of it as being like a giraffe or a zebra. In other words, her pre-understanding will differ. The point is Gadamer’s: the historical tradition to which the interpreter belongs matters to the act of understanding.

The same is ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Acknowledgements
• Translation matters
• Addressing translatability
• The specificity of comparative law
• Translation beyond translation
• Index