All at Sea

The thread of the silver oar

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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.)

 

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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.