Wednesday, 12 September 2012

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.


 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,  


1 comment:

  1. Indeed. Legal translation is one of the most sensitive and challenging areas of the translation and interpreting industry. It is important to ensure that a legal translation is undertaken by a qualified and specialized professional in the field so that any inconsistencies and misinterpretation of the law is avoided. Translation companies are a valuable source of professional translations, since their legal translation service is one that guarantees high level and precise translations.