Abstract
Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation.
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Notes
McAuliffe [24, p. 70] puts it well: ‘legal translation in particular, is important, since the flow of information between legal systems take place through translation’.
‘Constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong’. But, this does not give full freedom to the interpreter because, as Dworkin continues, ‘It does not follow… that an interpreter can make of a practice or a work of art anything he would have wanted it to be’ [7, p. 52].
Harvey [17, p. 177] says that, ‘Bold claims have been made about legal translation’.
Obviously, the above choice (i.e. to use contract law as an example) tells us how legal language is understood here i.e. it is not only a special way of communication between specialists, but it also includes communication between lawyers and non-lawyers. Harvey [17, p. 178] rightly criticises the narrow definition of legal language.
As Herbots [18, p. 421] says ‘…parties often make an unclear or incomplete contract, and they often have divergent opinions as to what it means. Contracts…suffer from the problem of unclear meaning’.
Of course, it is not very clear what actually constitutes ‘clear’ and ‘common’ meaning. But, generally speaking, ‘When a lawyer considers a legal text to be “clear and unequivocal”, it just means that, on the basis of an unconscious interpretation, the text seems prima facie to be clear to its reader’ [30], p. 129].
The point here is not to argue that the contract as such would not be the primary source of law in contract law. Obviously, the contract document is the starting point for any legal clarification i.e. the contract is the primary legal basis for the parties. What is argued here is that in many cases the text of the contract is, even though the most important source of law, the starting point for contract interpretation. So, the text of the contract does certainly not become obsolete, but it loses its overtly dominating position as the sole source of a contractual framework for the parties.
Long-term contracting is typically a phenomenon that is important in business. As contracts these contracts have typical qualities which are long duration, uncertainty, and interdependence [25, pp. 6–8].
One dimension of this is renegotiation, which may be regarded as a part of the long-term contract even if there is not a written clause concerning the duty to renegotiate [25, pp. 44–45].
The significance of a contract’s context (or its business environment) becomes especially pertinent when we have a contract between parties from different legal cultures [13].
Importantly, these kinds of contracts are disputed outside the courts. Accordingly, contract parties may rely on arbitration, but even that is often avoided with the governance of contractual relations taking place through other means [25, p. 7].
This view may be described as a Nordic view of the contract because it accepts a certain type of pragmatism and avoids the positivism of Romanic–Germanic contract law as it avoids the formalism of the common law contract law. As Andersen and Runesson [1, p. 16] put it: ‘The concepts therefore provide a starting point and a resting point in an intellectual process that leads to the legal conclusion, balancing the legitimate interests of the stakeholders in the outcome of a legal problem’.
One might argue that this paper contains the seeds of speech act theory, where the notion of intention is a key one as well as other fundamental concepts such as relevance, context, and other significant rhetorical issues. However, this paper does not discuss speech act theory but, rather, builds on the dynamic (legal) nature of business contract.
The need for this kind of translation becomes evident when the translator tries to find the functional equivalent in a situation where there is no similar systematic and structural embedding between source and target legal systems [8, pp. 540–541].
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Husa, J. Translating Legal Language and Comparative Law. Int J Semiot Law 30, 261–272 (2017). https://doi.org/10.1007/s11196-016-9490-9
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DOI: https://doi.org/10.1007/s11196-016-9490-9