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
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.
