Legal Translating

Rainbow with a foot in both camps

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Being an interpreter in court requires a depth of skill and mastery not much seen elsewhere.

 

courtinterpreting

 

Translating a court case and judgment, from one jurisdiction and system to another, requires an even greater mastery.

You can’t just go, “X is like Y” (even though it may be), because it is too misleading for those who have never been on or seen the other side.

The French for ‘London’ is Paris.

On the other hand, with willing listeners in the tour group, two systems, although different at street-level, will have similarities and equivalences at a more abstract, functional level: deciding a question of fact, for example, will be the task of the tribunal of fact (however constituted), and so a court-panel in France or Italy, made up of career judges and community citizens acting as a board, can be referred to as a ‘jury’ in that respect, even though how they are selected and how they enter and leave the courtroom and where they sit is different. (More like a grand jury than the petty jury of TV shows.)*

 

*TV is another influence on how people** perceive a court case  should be like.

**Including law students.

Subjunctive Fading

Like the Cheshire cat’s grin

The subjunctive has faded so much from common view that its usage is now being marked as anomalous, overlapping with typing errors.

If it were the case otherwise, who would know? Probably only those with access to old matter.

subjunctive

Established Precedent

Incentive to vary from custom = none or not much

Literature studies

To say that Latin, French and English were in use in England in mediaeval to early modern times is not to imply that there were no other languages. There was, for example, Hebrew, as in the Alexander saga, where, opening up the modern translation side at a random page, we read:

 

“Afterwards Alexander sent the following letter to all the provinces of the kindom of Persia: “Alexander, son of the god Ammon and son of Queen Olympias, to all the princes and peoples in all the provinces of the kingdom of Persia …” ”

—  Israel Kazis, The Book of the Gests of Alexander of Macedon: A mediaeval Hebrew version of the Alexander Romance by Immanuel Ben Jacob Boneils, (1962) [Print-on-Demand* 2016] (Sefer Toledot Alexandros ha-Makdoni), s 74 (p 113).
ISBN 9780915651344

 

Aside from the reference to ram-horned deity, in form and structure, this letter’s greeting is just like a Common Law writ, with the mediaeval king of England writing to the sheriff of a county and charging them with a duty in a legal matter. And the same wording carried through centuries.

 

Diplomatic letters between ancient kingdoms thousands of years earlier also followed similar patterns, or precedents.

 

Copying an earlier example as a template makes good sense. Over time, though, archaic language features (words, syntax, sentence structures) barnacle themselves into the process and then conjectures naturally arise as to why the language has to be archaic.

 

It “besots lawyers and nonlawyers alike”  —  Bryan A Garner, Garner’s Dictionary of Legal Usage, 3rd edition, (2011) [Oxford University Press, 2011], “Myth of Precision” (p 596).
ISBN 9780195384208

with Garner assigning it to ‘the myth of precision’ (understandably enough, since a straw man is needed as antagonist in his quest for Plain Language).

 

The technical term (in some jurisdictions) for an earlier exemplar letter/deed/contract/lease/writ in general/etc is ‘precedent’.

 

“In England, Australia and Canada, lawyers use precedent to refer to a legal form. American lawyers speak of a form, while Scots lawyers speak of a style.”  —Garner’s, “Precedent D.” (p 696).

“in Scots law, a model form or precedent of a deed or pleading”  —  “Style 3” (p 849).

 


* As an aside, not infrequently, self-printed and print-on-demand works start on the wrong page (2, instead of 1), thus throwing everything on what would have been odd pages onto even pages, and vice versa. Whether readers or the person pressing the Print button notice is another question.

All at Sea

The thread of the silver oar

Scots law and translating

Scots law provides ready-made terminology for translating legal material from Italian, French, Spanish and similar systems.

A Scots court has the pursuer and the defender, ‘repels the reasons’ of a party (or sustains them), ‘assoilzies the defender’ (the ‘z’, representing the letter yogh ȝ because of its similarity in shape, is silent) and so on. These are all terms that are almost identical in Italian.

In English, take that last item for example: it would be ‘assoils the defendant’ (from Norman assoiler) to match with the Italian assolvere (to acquit, and with related shadings of: absolve (the cognate word), pardon, forgive, discharge, release, clear).

And on the analogy of the Scots Advocate Depute, Sheriff Substitute, and Procurator Fiscal, the Italian sostituto procuratore can be translated as Proctor Depute or Proctor Substitute. (Side note: The Queen’s Proctor matching up with the Treasury Solicitor, in terms of rank and role.)

For technical accuracy, I would recommend using the Scots matching term, rather than ‘free-translating’ into (English, jurisdiction-dependent) almost-equivalents.

 

Thread and Tapestry

Calling England and Wales a Common Law jurisdiction almost sounds as if it has always been a Common Law jurisdiction, and only a Common Law jurisdiction.

Yet Civil Law existed in England for centuries and so there were proctors and advocates (as in the historical Doctors’ Commons), eventually replaced by their Common Law counterparts, the barristers and solicitors, as the Common Law courts expanded their ambit and purview, and the Civil Law jurisdictions dwindled and shrunk like patches of remnant Old Forest.

Over time, the Civil Law courts were either forgotten about (like the High Court of Chivalry), or swallowed up comparatively recently in the Judicature reforms (like Admiralty, or those dealing with Probate and Marriages), or left alone (like Coroner’s Courts, with their inquests following inquisitorial procedures).

A history of Common Law in England is different to a history of law in England.

In a similar way, in Literature studies, not one, but three major language streams were running concurrently in England until, also, comparatively recently: English (with its Old and Middle), French (especially the Anglo-Norman version earlier and then Parisian import later), and Latin (for scholarly and matters of import). Chaucer straddled all three, and Shakespeare had memory of them.

Probably Law French could be included somewhere in the mix, as well. (And running quietly along, like hidden small brooks, Cornish and Breton and Welsh and so on.)

 

===

It almost sounds as if legal studies would benefit from an ‘emanations of the Crown’ approach, with the history of each ‘emanation’ following its own thread and its intertwining with the others.

So, for example (and simplifying greatly), the High Court of Chivalry was the Lord High Constable’s court (and ran until he got the chop, literally, and afterwards the Earl Marshall had to preside as its president); and Equity, of course, originated with the Lord Chancellor’s court (plus they had the scribes who write and issue the parchment-work and later paper-work that ran the writ machinery used by the entire system). And Exchequer, too, for fiscal matters. And the Lord High Admiral.

The National Archives page, on the Black Book of the Admiralty, says:

The languages used can be dual text (pages side by side) in Old French and contemporary English, Latin alone, French alone or English alone.
NatArch

 

The bigger picture is the one worthwhile starting from, to get the perspective.

The current system is shaped not only by its own history, but by its interactions with the shapes left behind by other systems. And that applies not only linguistically, but also legally.

 

An Ornament of One

When is a borderline on the other side?

At this time of year (late spring, early summer), there are some garden cypresses visible along the street in peoples’ front-yards which produce juicy cones of such an attractive flavour to birds of the parrot kind (such as corellas, and sulphur-crested cockatoos) that flocks of them divert especially to have an early-morning breakfast feast.

The trees are dark green and and shaped like a picture-drawing Christmas-tree, and a flock of snowy-white birds perched on the sides of the tree look like ornaments.

I hereby propose a new collective noun: `an ornament of corellas’, or `an ornament of cockatoos’.

Even one perching cockatoo gives that effect.

Which raises the idea: can one bird be a flock?

Certainly there is an implication. Cockatoos and corellas and rainbow lorikeets and so on are gregarious and move about in family groups and larger, chattering and gossiping all the while, so the presence of one necessarily implies the presence of others somewhere nearby (within coo-ee, in fact, since they keep in touch by sound, and, for the larger birds like the cockatoos, that sound carries a long way).

A Flock of One

A membership of one constitutes the category (mathematicians would go one step further with their null set: a membership of none constitutes the category).

One person doing manual work makes it a factory: Griffith v Ferrier 1952 SC(J) 56.

The question then moves to: what is manual work?

Language

Language is vague, by its nature.

“what really is a chair”

— Janny Leung,
“On the edge of reason: Law at the borderline”,
in Marco Wan (ed),
Reading the Legal Case: Cross-Currents between Law and the Humanities, (2012)
[Routledge, 2012], pp 128-141, p 138.
ISBN 9780415673549

Or red, or bilingual, or a machine, or a chicken-coop?

(This last is in reference to “whether a chicken-coop may be considered a vehicle” — Leung, p 128. A hen-house, on iron bogies, was being towed along a road by a tractor: for the purposes of the relevant motor vehicle statute (whose purpose was to help with road maintenance), the hen-house was deemed to be a vehicle.)

“The nature of language also presents its own challenges. A V Crabbe wrote in Understanding Statutes, Cavendish Publishing Ltd, London, 1994, p 8:

… it is … the very nature of language that presents the greatest problem to successful communication. Language is considered

‘perhaps the greatest human invention’,

 

yet it is a most imperfect instrument for the expression of human thought. It has tremendous potential for vagueness, ambiguity, nonsense, imprecision, inaccuracy … [footnotes omitted]

— Kath Hall and Claire Macken,
Legislation and Statutory Interpretation, 3rd edition, (2012)
[LexisNexis Butterworths, 2012], [3.34] (p 66).
ISBN 9780409330656

In Haygarth v J & F Stone Lighting & Radio Ltd, [1968] AC 157, the question was: what is manual labour, and how is that different to the work that `ordinary brain workers’ do? More specifically, Was a radio and television repairman working in a back room in a television sales shop in Upper Brook Street, Ipswich, Suffolk, in May 1964, when a factory inspector visited, doing manual labour? If yes, then that place is a factory, and occupational health and safety applies, such as the provision of a first-aid box or cupboard.

Here we are only concerned with the words “employed in manual labour.” The word ” employed ” is clear. The words ” employed in ” denote employed to do. The word ” manual ” denotes something done with the hands. (As long ago as in 1884 Bowen L.J. said in Morgan v. London General Omnibus Co. (1884) 13 QBD 832, 834 (CA) that manual labour could only mean ” labour performed by hand.”) In one sense every person is employed in manual labour who is employed to do work with his hands. But nearly everyone who is employed must do some work with his hands. How then is a decision to be made as to whether an employed person is or is not employed in manual labour?

Per Lord Morris of Borth-y-Gest, at 175

Although the case ‘raises no question of general importance’ (Lord Reid, at 174), in the sense of legal principle, the various courts and judges held different opinions about where the dividing line (never hard and fast) should be drawn about what constitutes manual labour.

Prior cases looked to for guidance dealt with:

  • dispensing pharmaceuticals at a chemists’
  • being a tugboat captain
  •  doing lithography and engraving
  •  modellers moulding clay into ornaments and other things using photographs supplied by the employer
  •  being a grocer’s assistant
  •  making bouquets in a florist’s shop
  •  making decorative hampers from an assortment of bonbons and sweetmeats
  •  being a bus conductor
  •  being a tram driver

Terms like ‘borderline’ and ‘very borderline’ were used.

Where would you draw the line?

Or would it be more of a fuzzy smudge, like an artist’s thumb rubbing of a charcoal mark on the canvas?

Common Law and Roman Law

Two peas in a pod

The Common Law system is sometimes contrasted with the Roman one and its successor Civil Law systems, but, leaving aside the sour anti-Napoleonic taint which has flavoured some of the discussions on how different the two systems are, the two systems are, in fact, quite close.

Firstly, in the concept of equity, in the broad sense, sensu latu:

 

“Like their republican predecessors, the jurists of the Empire attached particular importance to the concept of aequitas and its role in correcting or expanding the existing body of law so it could meet the demands of social and commercial life. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 51).
ISBN 9783642428135

 

And secondly, in the practical, hands-on, case-by-case approach to seeking what the law is in concrete, rather than abstract, situations; not to mention, the reliance on Nature [read: Reason] in formulating solutions:

 

“They developed the content of natura [natural law] in close connection with the practical aspects of legal life and always in response to concrete needs and problems emerging from actual cases. From their viewpoint, discovering the appropriate legal rule or devising an acceptable solution to a legal problem presupposed a reasonable familiarity with both the nature of practical reality and the ordinary expectations that social and legal relations entailed. In this respect, the postulates of nature did not emanate from metaphysical speculation but from the findings of common sense and the need for order in human relations. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 52).
ISBN 9783642428135

 

The academic approach, — theoretical, abstract, classificatory (and later, the more easily codifiable) –,  is a different matter.*

 

*And, again, even here, the inference to be drawn from observing that one developed from the other (from practical Roman to theoretical Civil) is that they are not entirely (substantively) “different”, anymore than the tip of a leaf and the tip of a root are different yet on the same tree: it’s the same sap.