Translator as the "law-maker"?

     Before you dive into the post, I suggest you browse through the previous one (“Legaltranslation: differences in common and civil law related to judicial decisions”) as both are strongly related.

In relation to the arguments in the previous post, it can be claimed that judges are law-makers, since the judgments they issue are authoritative legal texts. Likewise, as Šarčevič (cf. 1994:301) argues in the context of multilingual law, the translated text shows no inferiority towards the original, hence both the source and the target texts are often referred to as authoritative, i.e. they have the same legal effect. At this point a question arises: if judges, as the original text producers, are called law-makers, can translators be considered law-makers as well, since they produce a text of the same legal effect, though in the target language?

However disappointing it may sound for the translators, the answer is simply negative; the text production by the judge differs considerably from the one of the translator, and the difference lies in the process of interpretation. Alcaraz and Hughes (2002:24) provide a clear explanation of this issue:

For the translator, the purpose of interpretation is to decide on the closest possible linguistic equivalent in the target language, while for the judge it is to match up the resulting propositions against the definitions established in existing law. The difference, of course, is that the translator’s work is over once the semantic hurdle has been negotiated, whereas the judge must go on to apply the results of the linguistic analysis and announce a decision in accordance with the rules and principles of law.

Bibliography

 Alcaraz, Enrique; Hughes, Brian. Legal Translation Explained. Manchester: St. Jerome

 Publishing, 2002.

Šarčevič, Susan. New Approach to Legal Translation. The Hague: Kluwer Law International,  

1997.

Legal translation: differences in common and civil law related to judicial decisions

Legal translation is one of the most difficult areas to specialize in. Translators need to overcome not only linguistic differences but also discrepancies in the legal systems, namely common law and civil law (e.g. in the case of English – Polish translations). The main incongruity between common and civil law, which directly influences for example the judiciary and their decisions, exists on the level of legislation, i.e. the sources of law.

The continental civil law system, which has its origins in Roman Law, is a strictly codified law, thus it derives its authority from codes and statutes (Alcaraz and Hughes 2002:48). The judiciary then plays a role solely of applying the law while common law judges may state the law. This “authoritative source by virtue of the rule of precedent which obliges judges to observe the decisions made by their colleagues of higher courts” (Šarčevič 1997:12) is called case law. As stressed by Griffith (1997:5): “The common law is made as judges decide cases and state the principles on which they are basing their decisions, this accumulation of principles building into a body of law”.

Both the legislator and the judge are lawmakers. Nevertheless, the legislative (statutory) law-making is basically different from judicial law-making, and the statutory form of regulation prevails (Cappelletti 1989:54). Judicial decisions will never be of the same legal force as statutes. The basic rule which governs the case law is that judicial decision making is determined mostly by previous judgments (precedence) made by other judges (Gibbons 2003:6). Such practice though, is inconceivable in the civil law system, where judicial decisions appear “as standard and almost mechanical ‘applications’ of the law” (Cappelletti 1989:53). There seems to be no place for any flexible interpretation, nor for creativity, which by contrast can be observed in the common law jurisprudence; in case of doubt the judges decide how to interpret the statute and as a result, they define its meaning. Such authority, together with their creative function, make the judges’ work of considerable importance, since whenever the question of law arises, their decision will determine the subsequent cases (Griffith 1997:6). The functions of English judges were defined by Philips (2003:52), who, apart from the role of interpreting the law, recognized the function of declaring the law, which is the same as the creative function mentioned by Griffith, and of applying the law, i.e. fitting it to the particular situation.

Bibliography

 Alcaraz, Enrique; Hughes, Brian. Legal Translation Explained. Manchester: St. Jerome

 Publishing, 2002.

Cappelletti, Mauro. The Judicial Process in Comparative Perspective. Oxford: Clarendon

Press, 1989.

Gibbons, John. Forensic Linguistics: An Introduction to Language in the Justice System.

Blackwell Publishing, 2003.

Griffith, J.A.G. The Politics of a Judiciary. London: Fontana Press, 1997.

Philips, Alfred. Lawyers’ Language. New York: Routledge, 2003.

Šarčevič, Susan. New Approach to Legal Translation. The Hague: Kluwer Law International,  

1997.

English - Polish Translation of English Courts Names

As a predominantly legal translator, I decided to share with you some knowledge on law and legal language. This is why this blog is going to seethe with English and Polish legalese and with advice on how to deal with it. Hopefully, it will be of some use to those of you who struggle with the language of law as well as to novice translators who will find it as a good source of reference.

The first post of the series will feature the names of the English courts, their jurisdiction and Polish translation. The names will be put in hierarchy from the highest court to the lowest.

Here we go!

Hierarchy of English Courts (source: www.hmcourts-service.com)

English Courts hierarchy and their jurisdiction in Polish: