Kjaer on Translation of Judgments of the ECtHR into Non-Official Languages @KjrAnne @OxUniPress

Anne Lise Kjaer, Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism, in Language and Legal Interpretation in International Law (Anne Lise Kjaer and Joanna Lam, eds.,Oxford University Press, Forthcoming)(Oxford Studies in Language and Law).

The paper examines the role that translation of judgments of the European Court of Human Rights (ECHR) has played in the dialogue between the Member States of the Council of Europe and the Court over time. The judgments of the ECHR are produced in the two official languages, English and French, only. Translation into other languages was never an issue in the discussions leading to the adoption of the European Convention on Human Rights, and not until the beginning of the reform process at the turn of the century was translation of ECHR judgments into non-official languages put on the agenda. It was introduced into the reform discourse under the heading of Member States’ implementation of the convention and their knowledge and understanding of the Court’s case law. The paper traces the development of translation arguments in the reform discourse and discusses the possible reasons why translation into languages other than English and French was not an issue until the Court faced challenges from the Member States in the early 2000s. It is argued that the choice of language policy and considerations regarding translation into the national languages of the Member States indicate the institutional balance that exists at any given time in the interface between the national and European level of lHuman Riights law.

Download the essay from SSRN at the link.

Kearley on Roman Law Scholarhip and Translation in Early Twentieth-Century America

Timothy G. Kearley, University of Wyoming College of Law, has published Roman Law Scholarship and Translation in Early Twentieth-Century America. Here is the abstract.

This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.

Download the article from SSRN at the link.

Jimenez on a Borgean Theory of Constitutional Interpretation

ICYMI: Marco Jimenez, Stetson University College of Law, published Towards a Borgean Theory of Constitutional Interpretation in volume 40 of the Pepperdine Law Review (2012). Here is the abstract.

This Article presents a reworking of Jorge Luis Borges’ short story, Pierre Menard, Author of the Quixote, as applied to the U.S. Constitution. In Borges’ original story, which deals with important issues governing interpretation, the creation of meaning, and the ascertainment of original intent, Borges’ fictional scholar, Pierre Menard, undertakes to translate Cervantes’ Don Quixote for a modern audience by creating a Quixote that could have been written by Cervantes today. To do so, Menard begins by immersing himself in the world of 17th century Spain, much as an originalist today might immerse him or herself in 18th century America, as a first step in providing an accurate, yet modern, “translation” of the text. As he undertakes the process of translation, however, Menard comes to recognize that the words and phrases used by Cervantes have come to mean something quite different today. Further, he realizes that any change to the words themselves would fail to produce a truly modern translation of this canonical text because it would cause the loss of textual richness and interpretative understanding accumulated over generations. Therefore, in a stroke of genius, Menard recognizes that the best way to translate the Quixote to preserve the text’s modern meaning is to produce word-for-word, line-for-line “translation” of the antiquated original! It is important to note that Pierre Menard adamantly maintains that his word-for-word rendition of the original words is not simply a “copy” of the original text. Rather, as Borges’ original story suggests, Menard has actually produced a much more nuanced text than Cervantes, one that, though verbally identical, “is almost infinitely richer” in that the words penned by Cervantes no longer mean what they once did, but have become imbued with the accumulated historical understanding of many generations. The parallels to the current debate surrounding the interpretation (or translation, if you will) our own Constitution are unmistakable. The words no longer mean what they once did, and the best way to convey the current meaning of the Constitution is by using the antiquated words and phrases of the 18th century original. These words and phrases, though they have themselves remained the same, are now viewed through the lens of the historical events (e.g., the Civil War, Reconstruction, and New Deal) and judicial precedents (e.g., the Dred Scott decision, Plessy v. Ferguson, and Brown v. Board of Education) so powerful as to have changed the meaning (though not the spelling) of the words themselves! Therefore, in the text that follows, I have attempted to present these parallels by adapting Borges’ story to the U.S. Constitution. I have tried to keep as much of Borges’ original text as possible – including even the structure of his seemingly obscure academic footnotes – while changing what was necessary of the characters, footnotes, and themes to discuss legal, rather than literary, topics. More specifically, in my version of the story, I attempt to propose, through the text, and develop, through the footnotes, a theory of constitutional “interpretation as translation” based on the scholarship of Borges’ fictional character, Pierre Menard, as told by a law professor intimately familiar with Professor Menard’s work. In my version, Professor Menard takes it upon himself to update and revise the U.S. Constitution for the twenty-first century and, in so doing, is confronted with a difficult problem of preserving the document’s modern meaning. Professor Menard acknowledges that many of the original words, phrases, and clauses used by the Framers have taken on new meaning over time, or have lost their meaning altogether, which renders the process of interpretation particularly elusive and odious. In a deeply profound exploration of the meaning of meaning, Professor Menard comes to the stark realization that his project of updating the Constitution for the modern generation must necessarily consist not in interpreting the text, but in translating it. Having made this methodological leap, Professor Menard is next faced with the daunting task of choosing carefully the words, phrases, and clauses that will convey to the modern generation how the Constitution’s text, which was drafted over two centuries ago, should be understood today. Here, Professor Menard makes his second leap: given that the words of the constitution have become imbued with new meaning over time, in part due to historical circumstances, in part due to subsequent legislation, and in part due to judicial “interpretation” and development, the best way of “translating” the Constitution to capture and preserve how it is commonly understood today consists, ironically, in rewriting the text so that it is identical to the original! In undertaking this task, Professor Menard shows how constitutional “interpretation,” even (especially) while remaining faithful to the original text, can be better thought of not as an act of constitutional discovery, but one of constitutional creationism, in which the reader (usually a judge, but arguably the governed) creates meaning by translating and transforming the source text into something simultaneously new and familiar. This places Professor Menard’s theory in the unique position of both accepting textualism while rejecting its usual bedfellow, originalism, at least as that latter concept is commonly understood today. According to Professor Menard, original intent is relevant only to the extent that We The People of the here and now have interpreted this intent, but by this point, it is our contemporary translation (or interpretation, if you prefer) of the Founders’ intent, rather than the Founders’ intent itself, that ultimately controls and governs what we call meaning.

Download the article from SSRN at the link.

Lo on the Need for a Clearer Set of Arbitration Rules on the Issues of Translation and Language Interpretation

Chang-fa Lo, National Taiwan University, has published Beyond Semantics and Semiotics ─ Arguing for a Clearer Set of Arbitration Rules on the Issues of Translation and Language Interpreting at 9 Contemporary Asia Arbitration Journal 197 (2016). Here is the abstract.

Although the linguistic issues concerning the appropriate and accurate translation of documents and concerning language interpreting of statements in an arbitration proceeding are important, it is of even higher systemic importance that legal issues relating to translation and language interpreting are properly identified and addressed in arbitration rules. The paper argues that translation and language interpreting between different languages in arbitration and other legal proceedings involves certain important legal issues. Since translation and language interpreting involves legal issues, the paper argues that it is legally and practically desirable to include certain provisions in arbitration rules to address such legal issues so as to avoid translation and interpreting being made and conducted in a manipulated or distorted manner. The paper proposes some general principles to be included in the arbitration rules, such as the requirement of good faith in translation; the requirement that all translation and interpreting are subject to the other party’s challenge, among others. The paper also proposes some specific principles to be included in arbitration rules, such as the submitting party to be responsible for the result of its translation; an interpreter to be prohibited to actually help correct, modify or distort the statement of the party, and the translator or language interpreter to be prohibited to actually “interpret” or “distort” the law or contract provision or the evidence.

Leung on Translation Equivalence as Legal Fiction

Janny H. C. Leung, University of Hong Kong, Faculty of Arts, School of English, has published Translation Equivalence as Legal Fiction in The Ashgate Handbook of Legal Translation 57 (K. K. Sin, A. Wagner, and L. Cheng, eds.; Ashgate, 2016). Here is the abstract.

A translated text shall be the same as the original text. This simple and often assumed, but hardly incontrovertible requirement provides the foundation of the language policy of many bilingual or multilingual jurisdictions (hereafter, ‘bilingual jurisdictions’). An important question associated with the proposition persists, however, regarding the kind of equivalence that underlies the stated notion of ‘sameness’. Bilingual jurisprudence assumes that a translation and its original will carry the same meaning. Yet such an assumption is frequently challenged by instances where textual differences are discovered that call for painstaking reconciliation based on interpretative principles. Although it is widely recognised outside law that translations can hardly be perfect, bilingual legal systems rely on an unsafe assumption of translation equivalence, presumably because for law in particular the notion has a certain utility. Is textual equivalence, in these circumstances, a legal fiction (as historically ‘benefit of clergy’, John Doe and ‘steward of the Chiltern Hundreds’ were, and others remain today)? If so, what function, as a part of legal reasoning, does this putative legal fiction serve? This chapter analyses the specific nature and significance of translation equivalence as a legal fiction, as well as the purposes it may serve. That analysis is then used to illustrate broader issues regarding law, translation, and the relationship between the two.

Download the essay from SSRN at the link.

Ricca on Law, Cultural Categories, and Legal Geographies

Mario Ricca, University of Parma, has published Errant Law: Spaces and Subjects. Here is the abstract.

The essay addresses the following topics: I will talk about the intertwining between cultural categories and spatial categories. The first axis for the analysis will address the interspatial blurring and blending produced by the translating of the individuals through manifold and culturally plural circuits of state/territorial sovereignty. The second axis will focus on the intercultural translation intended as place of convergence and condensation of categorical connotations used by different cultures for marking the space. I will try to show how translating cultures, each into another, by means of law’s spectrum could be equivalent and coextensive with translating different ‘spatialities’, and viceversa. Reaching this interlocutory target allows for the configuration of inter-spaces capable of working as a platform to assure the legal relevance of different culturally oriented subjective agencies. The theoretical toolkit to investigate these topics is “legal chorology”. It will be explained by these sequential steps: a. Legal chorology and a timely intercultural translation. b. Inter-spatial dynamics and cognitive deficiencies of legal qualifications across cultures. Subsequently, I will apply the above considerations to envisage a pluralistic legal approach conceived beyond the exclusive use of inter-normative devices and inter-legality.

Download the article from SSRN at the link.

Legal Translation As Knowledge Transfer

Lena Foljanty, Max Planck Society for the Advancement of the Sciences & Max Planck Institute for European Legal History, has published Legal Transfers as Processes of Cultural Translation: On the Consequences of a Metaphor at Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, Heft 2 / 2015. pp. 89-107. Here is the abstract.

During the last decade, cultural studies faced a so-called “translational turn”. The concept of translation was taken up and reinterpreted in a figurative sense. The concept of translation is no longer confined to the process of putting a text from one language into another, but describes also processes in which foreign knowledge, values or practices are adapted. The article deals with the question whether this expanded concept of translation proves to be fruitful in order to gain a better understanding of legal transfers. By discussing ideas of Walter Benjamin, Homi K. Bhabha and Dipesh Chakrabarty on translation it shows how the concept of translation opens our view for the complex positioning of the actors, which is characteristic for transfer processes and which enables reflecting the transformations that take place beyond the idea of a linear give-and-take.

Download the article from SSRN at the link.

The Process and Concept of Translation as a Transfer of Knowledge

Lena Foljanty, Max Planck Society for the Advancement of the Sciences; Max Planck Institute for European Legal History, has published Legal Transfers as Processes of Cultural Translation: On the Consequences of a Metaphor in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, Heft 2 / 2015, S. 89-107 (Der Beitrag ist hier auf Deutsch erschienen: Rechtstransfer als kulturelle Übersetzung. Zur Tragweite einer Metapher). Here is the abstract.

During the last decade, cultural studies faced a so-called “translational turn”. The concept of translation was taken up and reinterpreted in a figurative sense. The concept of translation is no longer confined to the process of putting a text from one language into another, but describes also processes in which foreign knowledge, values or practices are adapted. The article deals with the question whether this expanded concept of translation proves to be fruitful in order to gain a better understanding of legal transfers. By discussing ideas of Walter Benjamin, Homi K. Bhabha and Dipesh Chakrabarty on translation it shows how the concept of translation opens our view for the complex positioning of the actors, which is characteristic for transfer processes and which enables reflecting the transformations that take place beyond the idea of a linear give-and-take.

Download the article from SSRN at the link.

A Workshop On the Role of Language, Linguistics, and Translation In Developing Precedent In EU Law

From Karen McAuliffe, University of Exeter, news of a one-day workshop on "Precedent in EU Law: The Linguistic Aspect," to be held at the Dun Library, Dublin, Ireland on December 5, 2015. Register online here.

Here's more.

Tribunals and Translation

Alessandra Asteriti, University of Glasgow School of Law, has published 'Three Grades of Evil': Nabokov, Wittgenstein and the Perils of Treaty Interpretation as European Society of International Law, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper no. 1/2014. Here is the abstract.

The article investigates the interpretative practice of investment tribunals in the light of Wittgenstein's theory on rule following and usage, to advance the hypothesis that arbitral tribunals run the risk to interpret the language of the treaties so as to effect a deracination of their terms. In order to do so, the article employs Vladimir Nabokov's reflections on the perils of translation, contextually arguing that the incorporation in investment treaties of language developed in specific domestic frameworks (i.e. United States' constitutional jurisprudence) is an example of semantic hegemony accompanied by hermeneutic conformity on the part of tribunals.

Download the paper from SSRN at the link. 

A New Book On Legal Translation

Newly published:

The Ashgate Handbook of Legal Translation (Le Cheng, Ing Kui Sin, Anne Wagner, eds.; Ashgate, 2014) (Law, Language, and Communication). Here is a description of the contents from the publisher's website.

• This volume investigates advances in the field of legal translation both from a theoretical and practical perspective, with professional and academic insights from leading experts in the field. Part I of the collection focuses on the exploration of legal translatability from a theoretical angle. Covering fundamental issues such as equivalence in legal translation, approaches to legal translation and the interaction between judicial interpretation and legal translation, the authors offer contributions from philosophical, rhetorical, terminological and lexicographical perspectives. Part II focuses on the analysis of legal translation from a practical perspective among different jurisdictions such as China, the EU and Japan, offering multiple and pluralistic viewpoints.
  This book presents a collection of studies in legal translation which not only provide the latest international research findings among academics and practitioners, but also furnish us with a new approach to, and new insights into, the phenomena and nature of legal translation and legal transfer.
  The collection provides an invaluable reference for researchers, practitioners, academics and students specialising in law and legal translation, philosophy, sociology, linguistics and semiotics.
• Contents: Foreword: new challenges for legal translation, Heikki Eero Sakari Mattila; Legal translatability process as the ‘third space’: insights into theory and practice, Anne Wagner, King-Kui Sin and Le Cheng. Part I Legal Translation in Theory: Translation vs. decoding strategies in law and economics scholarship, Mariusz Jerzy Golecki; Cultural transfer and conceptualisation in legal discourse, Anne Wagner, King-Kui Sin and Le Cheng; Lost in translation? Linguistic diversity and the elusive quest for plain meaning in the law, Janet Ainsworth; Translation equivalence as a legal fiction, Janny H.C. Leung; Trying to see the wood despite the trees: a plain approach to legal translation, Víctor González-Ruiz; Minimal unit of legal translation vs. minimal unit of thought, Svetlana V. Vlasenko; Parameters for problem-solving in legal translation: implications for legal lexicography and institutional terminology management, Fernando Prieto Ramos; Structuring a legal translation course: a framework for decision-making in legal translator training, Catherine Way. Part II Legal Translation in Practice: EU legislative texts and translation, Colin Robertson; Phraseology in legal translation: a corpus-based analysis of textual mapping in EU law, Łucja Biel; Translating international arbitration norms into the Italian language and culture, Maurizio Gotti; Translating domestic legislation: a comparative analysis of English versions of Brazilian law on arbitration, Celina Frade; Translation of Japanese laws and regulations, Kayoko Takeda and Yasuhiro Sekine; Important translation strategies used in legal translation: examples of Hooper’s translation of the Ottoman Majalla into English, Rafat Y. Alwazna; On the translation of the criminal procedure law of the PRC, Lijin Sha and Jian Li; The new Czech civil code - lessons from legal translation: a case-study analysis, Marta Chromá; Multilevel translation analysis of a key legal concept: persona juris and legal pluralism, Sandy Lamalle. Afterword: the trials and tribulations of legal translation, Deborah Cao; Index.

Translation as Metaphor

Robert Leckey, McGill University Faculty of Law, has published "Filiation and the Translation of Legal Concepts," in Legal Engineering and Comparative Law (volume 2)(Geneva: Schulthess, 2009). Here is the abstract.

The paper argues for the use of the metaphor of translation of legal concepts in comparative law by exploring recent reforms to the law of assisted reproduction by the legislature of Quebec. It argues that lawmakers and comparative lawyers may learn from the cautions advanced for literary and legal translators by the translation literature. It argues that the Quebec instance of legislated changes in order to facilitate assisted procreation by lesbian couples shows an excessive literalism in the translation of rules applicable to "natural" procreation to assisted procreation. The legislature might constructively have looked to other parts of the existing private law, as well as to sociological accounts of intentional lesbian reproduction. Translation-as-metaphor also speaks fruitfully to comparatists: it may alert them to the losses of functionalist comparison. Specifically, the treatment of legal rules as "solutions" to a common problem elides distinctive institutional, rhetorical, and discursive differences.

Download the paper from SSRN here.