Translating Across Legal Systems Part 1: Beyond the Basics

Every seasoned legal translator knows that understanding the differences between their source and target languages is the secret ingredient in the exceptional translation sauce. Experienced legal translators know what first, second, and third instance courts are called in both legal systems, why some but not all judges are called justices, why words like “magistrate” may be false cognates in some language combinations, and whether or not their working legal systems are codified.

To an experienced legal translator, those are just the basics; and acquiring that knowledge can take years of hard work, dedication, and research. But, once acquired, that knowledge is an asset that sets us apart as language professionals while serving as the foundation for the handsome fees many of us are paid to translate legal texts.

However, even in the internet era, that knowledge is not easily accessible to legal translators. Those of us who went to law school in codified countries learned these basics in our comparative law courses. But, for the rest of our colleagues in the language profession, comparative law is a mystery—one I sincerely hope to help unravel in this first series of thematic posts throughout the first quarter of 2019.

So, let’s start at the beginning. If you’re reading this post, which as you may have noticed is written in English, it’s safe to assume that: 1) you are a legal translator or other professional with an interest in legal translation; 2) you speak English; 3) English is either your source or target language. If #3 is true, then it follows that Common Law is either your source or your target legal system. So, I don’t need to tell you how important it is for you to understand the Common Law tradition. But Common Law is tricky in more ways than one.

1) What’s in a name?

In the context of legal traditions, the term Common Law (notice it’s capitalized because it’s a proper compound noun) refers to the legal system of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, Bangladesh, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (on a state level excluding Louisiana), and many other former British colonies.

However, the term Common Law can also be used to refer specifically to “the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages” (see Collins English Dictionary). The difference with the first form of Common Law and the second being that the former refers to the body of customary law of England and not to the legal tradition of other Common Law countries. How do you know the difference? Context, my dear Watson. And that will become evident throughout this series of posts.

Lastly, the term common law (notice no caps) refers to judge-made law in the broader context of the Common Law tradition. Confused yet? Don’t worry. The more you read about this, the clearer it will become.

2) All that glisters is not Common Law (…or even the right kind of Common Law)

English Common Law resulted from the shifting and centralizing powers of the king of England during the Middle Ages that was brought about by the Norman Conquest in 1066. At the time, medieval kings throughout all of Europe had begun to consolidate their power by establishing new institutions of royal authority and justice. This process resulted in new forms of legal action that were set up by the crown and functioned through a system of writs (or “royal orders”) which provided a specific remedy for specific wrongs.

The system of writs became so formalized, however, that the laws the courts could apply on the basis of the system often became far too rigid to adequately achieve justice. When that occurred, a further appeal to justice could be made directly to the king. Thus, a new kind of court arose, the court of equity, which was also known as the court of Chancery because it was the court of the king’s chancellor.

Courts of law and courts of equity functioned separately until the writs system was abolished in England in the mid-nineteenth century. But, even today, some U.S. States (such as Delaware, Mississippi, New Jersey, South Carolina, and Tennessee) maintain separate courts of equity.

So, when we speak of the Common Law tradition, we’re always referring to the system of law that originated in the United Kingdom during the middle ages which evolved to take on distinctive features in each of the countries in which it was installed. Its traits will vary from country to country and, naturally, so will its terms of art.

That is why the first thing we need to do as language professionals is to narrow down the language (English, in this post), legal tradition (Common Law), and the country in which the text was drafted (if source) or in which it will be read (if target) to make sure the terms of art we’re using in our translation not only fit the language and capture source meaning, but also fit the target country.

3) Knowing the sure uncertainty

Thinking that just because the language is right and the dictionary definition matches up then the term of art must be right too is actually one of the most common mistakes legal translators make. Legal translators must not only know whether or not a term is right in the target or source language, but also whether or not it is right in the target or source country. So, for example, if you’re translating into English and you’re thinking of using the word “delegation” in your translation, then you need to know what English-speaking country your text is going to be used in and, consequently, what that word means in the legal system of that country.

Let’s look at some examples:

3.1. Example 1: Delegation

Source tradition: Common Law

Source language: English

Context: Contracts

Meaning per English-speaking country:

3.1. Example 1: Novation

Source tradition: Common Law

Source language: English

Context: Contracts

Meaning per English speaking country:

If instead, you’re translating from English, then knowing what your problem word means in the source legal tradition and country (as compared to other English-speaking countries) is just as important for pinpointing the right translation. Say you’re translating our problem word delegation in the context of a contract from English U.S. to French from France (versus French from Quebec or other former French colonies). Then knowing what delegation means in the United States as compared to England or Australia, will help you determine whether the French word résilier is the right translation or not.

Do these definitions match up? How relevant is it that the French term implies nonfulfillment of an obligation while the English word does not necessarily imply that? Is there a better term in the target language?

As language professionals, we must be able to answer these and other more pressing questions for every term of art we use across legal systems. But we can’t do that if we don’t know how to compare those systems to each other. This will become particularly more evident in upcoming posts in which we will look at terms that relate specifically to legal procedure. So, stay with me! More on this next week.