Continuities and Discontinuities in German Legal Thought

How does the history of your country and its legal traditions affect your identity as a citizen, researcher, teacher? In case you happen to be from Germany, how do you live with the memory of national crimes - and the fact that legal academia identified in significant numbers with the Nazi regime? Are there affinities in German legal traditions to anti-liberal ideologies and authoritarian mentalities? How did post-war Germany face its past? The essay does not try to address these questions systematically but through a narrative which seeks to trace the biographical impact of the German history.

     

Language-bound terms—term-bound languages: the difficulties of translating a national civil code into a lingua franca

The present paper—taking the example of the English translation of the Hungarian Civil Code of 2013—aims to give an overview on the legal and terminology-related challenges and pitfalls that might occur during the process of translating a civil code with civil law traditions into the language of the common law world. An attempt is made to categorise terminology-related conceptual problems and elaborate how the different types of translation methods (functional equivalence, paraphrasing and neologism) could be applied; moreover, how a kind of legal-linguistic checks-and-balances can be achieved through the well-dosed combination, having also the ratio of similarities to differences (SD-ratio or SD-relationship) of legal concepts behind the respective terms in mind. Legal translators must act beyond the role of a simple translator: they must be comparatists, being aware of the legal origin of the relevant concepts and using the methods of comparative private law and translation studies at the same time, since both law and language are system-bound and are heavily influenced by the cultural and social environment. The authors strive to identify the significance of those problems (and possible solutions) from the perspective of how language-related aspects can perform some fine-tuning on the comparative methodology and findings, whether they are barriers only or provide also an opportunity to verify or refute prima facie comparative results. Comparative law—no doubt—supports legal translation, but their relationship is reciprocal: legal-linguistic subjects and problems emerging in the course of legal translation supply valuable feedback and further sources of inspiration.

     

Legal Translation and Cultural Transfer: A Framework for Translating the Common Law into Chinese in Hong Kong

It is widely held in translation studies that translation proper is not merely a process of linguistic transfer but also of cultural transfer. But how cultural transfer is effected or whether it can be effected is not at all clear. The study begins with a critical analysis of the problems relating to law translation in general and translating the common law into Chinese in particular. It then examines the nature of cultural transfer in law translation with special reference to the translation of common law terminology. The study purports to set out the framework for legal translation as cultural transfer, in particular, for translating the common law into Chinese in Hong Kong. It argues that successful transfer of the legal culture of foreign laws always requires the adjustment of translating language and the employment of metalanguage.     

法律英语汉译中归化与异化之选择

法律英语汉译时应兼顾其语言转换和文化转换,但在具体转换时应采用不同的方法:从译文的可读性要求出发,应发挥译者的创造性和能动性,法律英语汉译中应在语言转换中使用归化方法;从法律英语汉译的目的、功能等角度出发,应在文化转换中使用异化方法,而异化的最终目的是为了实现真正的归化,从而对接受外国法律文化和丰富本土法律文化均不无裨益。     

法律文化与法制现代化互动关系简论

我国是一个具有深厚法律文化传统的国家 ,如何处理现代法制与传统法律文化之间的关系是中国的法制现代化进程面临的重要课题。本文从法律文化与法制现代化的一般理论入手 ,着重分析了法制现代化过程中的两种不同的法律文化资源选择模式的差异和联系 ,并结合中国传统法律文化的特点 ,试图探寻出一条适合我国国情的法制现代化道路来。     

The Inevitability and Indeterminacy of Game‐Theoretic Accounts of Legal Order

How is legal order possible? Why do people comply with law when it prevents them from doing what they think best? Two important books show how these questions can—and from some methodological perspectives must—be answered in the form of game‐theoretic accounts that show how legal compliance can be compatible with the broad self‐interest of officials and citizens. Unfortunately, however, these books also serve to demonstrate that game‐theoretic accounts along these lines lack the resources to explain how real‐world legal systems emerge and evolve or the various institutional shapes these systems take. The fundamental limitation of game theory, in this context and more generally, is its inability to predict or explain the size and shape of cooperative equilibria.     

Testing the Precision of Legal Translation: The Case of Translating Islamic Legal Terms into English

Legal translation is viewed as “a category in its own right” (Weston in An English reader’s guide to the French legal system. Berg, Oxford, (1991, p. 2). It is a kind of translation of the language used for specific purposes (Zhao in J Transl Stud 4:28, 2000). Legal translation requires accuracy in relaying the substance of the message, while respecting the form thereof as well as the genius of the target language (Zhao in J Transl Stud 4:19, 2000; Sarcevic in New approach to legal translation. Kluwer Law International, Hague, 1997, p. 52). As generally accepted worldwide, precision is deemed of paramount importance in legal translation. With this in mind, the present paper deals chiefly with the concept of how legal translation can correctly be tested in order to ensure precision and validity for application and implementation. The paper will argue that the main goal of legal translation and the major criterion against which the precision of legal translation should be tested is to reproduce the same legal effect in the target text as that conveyed in the source text regardless of the method(s) used in the translation process.     

Comparative Law for Legal Translation: Through Multiple Perspectives to Multidimensional Knowledge

With this paper, I suggest a multiperspectivist approach for assessing conceptual legal knowledge with relevance for the translation of legal terms in translation between two or more different legal systems. The basic quest is to present a set of categories and analytical approaches for legal translators to generate (collect) and classify knowledge necessary for their professional conceptual needs. In this paper, I will focus on the translational, juridical, and cognitive basics of such an approach. In order to cope with the broad range of possible translational purposes in different translational situations and choose relevantly between alternative formulations, translators need methods and strategies in order to construct the necessary conceptual knowledge. This presupposes a broad knowledge structured in ways that enable the translator to recognize relevant characteristics of legal systems and relevant differences between different legal systems. Concerning translational theory, the basis is the functional theory of translation as adapted to legal translation, based upon the idea of translation as choice between alternatives and distinguishing between documentary translation, at one end of a scale, and instrumental translation, at the other. This basis and the distinction presuppose relevant knowledge from comparative law. Hence, existing approaches and fundamental tenets concerning comparative law inside and outside of translation are presented. In order for knowledge to be presented in a manageable way with relevance to translators, I work with the approach of concept frames as basic unit of knowledge gathering and categorization. This way of presenting knowledge is embedded more generally in a knowledge communication approach, focusing on knowledge asymmetry. Within this general framework, the multiperspectivist approach combines insights from cultural studies (especially the study of law-as-culture), law as a disciplinary social system, and communicative interaction generating meanings in legal communication, also across national borders.

     

A Genre-based Approach to the Translation of Private Normative Texts in Legal English and Legal Spanish

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), we must unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the ??convergence?? of the two traditions truly enrich and strengthen national and international legal culture.     

Cyber Law Terminology as a New Lexical Field in Legal Discourse

The cyber domain is one of the newest and most rapidly evolving fields of knowledge which has led to the development of a new area of law—cyber law, that regulates the use of the Internet and activities performed over the Internet and other networks. The cyber domain is particularly dynamic: new concepts are constantly developed and need new terminological designations, which in turn need new counterparts in other languages. Formation of these designations and their counterparts often raises terminological issues that are important to deal with in order to develop a coherent system of the cyber domain terms. The given paper focuses on the terminology that includes the lexical item cyber which may be considered as the main signifier of the cyber domain indicating its specific nature. The aim of the paper is threefold: to analyse the origin and development of the lexical item cyber, to investigate conceptual categories of the EU legislation terminology that includes the lexical item cyber and to establish the Lithuanian counterparts that are used for translation of the lexical item cyber in the Lithuanian equivalents of the English terms. For the purposes of the study, the ad hoc English and Lithuanian corpora of the EU legislative documents were compiled. Corpus-driven methodology was used to extract and investigate the terminology used in the corpora. The results of the research are believed to provide useful information to learners and teachers of the legal language and legal translation, as well as drafters of legislative and administrative documents and other professionals engaged in cybersecurity matters.

     

The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession

The purpose of this article is to consider the effect the United Kingdom’s currently prevailing legal culture is likely to have on the realization of cultural change presaged by the Human Rights Act. The article is in five parts. The first two address the preliminary questions: what is meant by ‘legal culture’ for these purposes, and what type of ‘human rights culture’ does the Human Rights Act envisage? The answers define the scope of the remainder of the article’s inquiry into the ways in which the Act itself and the culture of the United Kingdom legal profession and judiciary are likely to interact. The third part of the article identifies some examples of the sorts of culturally specific aspects of current legal practice which are likely to operate as serious practical constraints on the emergence of a human rights culture worthy of the name, before the fourth part considers what sorts of cultural changes will be required of judges and lawyers for the presaged cultural transformation to come about. Finally, the article asks whether there is any reason to believe that courts and lawyers can find from within their present culture the resources to bring about the necessary shift.     

Creating Legal Subjectivity Through Language and the Uses of the Legal Emblem: Children of Law and the Parenthood of the State

This paper constitutes a critical exploration of the functional features underpinning the unconscious of institutional attachment—namely an attachment which is understood in terms of the subject-infant’s love for his institutional parent-power holder, and the indefinite need for a subject to remain within its infantile condition under the parenthood of the State. We venture beyond the Paternal metaphor and move towards the neglected metaphor of the Mother, so focal in the individual process of identification, assumption of language and the permanent attachment to the space of prohibition and Law. A new position in Language is defined. To understand how the psychic space of the infant is artfully subjugated in the making of the Western culture and domination of the Western system of legal interpretation, an enquiry into the legal emblematic history of representations is necessary to map the process through which the subject learns its legal self and relationship with otherness through what Pierre Legendre coined as the Occidental Mirror and the triangular logic of reflexivity. A final enquiry interrogates the way the legal institution places itself in the position of the specular image that captivates the subject-infant within a procreated legal order, a law-giving and law abiding life starting from the laws of the familial structure reinforced by the role of the parents and by analogy, by the State assuming that role in the institutional life of the ad infinitum infant.     

论法律文化传播

法律文化传播是法律文化在空间上的变迁与发展 ,对各个民族和整个人类的法律发展具有重要的影响。本文首先评述了人类学界和法学界关于文化传播的理论争论 ,然后探讨了法律文化传播的基本性质 ,总结了法律文化传播的一般规律 ,论述了法律文化传播的主要途径 ,最后分析了法律文化传播的重要影响。     

The Limitations of a Multilingual Legal System

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.     

On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?

Abstract. In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication.     

文化差异对法律及经贸英语翻译的影响

人类的翻译活动受诸多因素的影响,其中包括文化差异。本文作者从英汉翻译实践出发,列举了大量论据,证明中国文化与西方文化之间的差异对法律及经贸英语翻译具有重大影响,值得人们认真研究和对待。     

The Syntactic Features of Islamic Legal Texts and Their Syntactic Implications for Translation

Certain religious texts are deemed part of legal texts that are characterised by high sensitivity and sacredness. Amongst such religious texts are Islamic legal texts that are replete with Islamic legal terms that designate particular legal concepts peculiar to Islamic legal system and legal culture. However, from the syntactic perspective, Islamic legal texts prove lengthy and condensed, with an extensive use of coordinated, subordinate and relative clauses, which separate the main verb from the subject, and which, of course, carry a heavy load of legal detail. The present paper seeks to examine the syntactic features of Islamic legal texts and the syntactic translation implications involved through studying three Islamic legal Arabic excerpts and their English translations. The paper argues that amongst the syntactic features of Islamic legal texts are nominalisation, participles, modals and complex structures. It also claims that the syntactic translation implications are indeed syntactic features of legal English, which are sentence combining versus sentence break, nominalisation, wh-deletion, passivisation, modals and multiple negations. Moreover, nominalisation, modality and complex structures are features of both Islamic legal texts and legal English, albeit with varying degrees.

     

Translation as a Complex Inter-linguistic Discourse and its Current Problematic Practice in the Genre of Legal Fiction in China

In comparison with the creation of language, translation from one language to another offers greater challenges for those working with languages, be the text for translation concerned with philosophy, literature or law, all of which are arguably highly professional domains. When it comes to the translation of legal fiction, a highly interdisciplinary genre, even experienced practicing translators tend to fall short of being well equipped with sufficient legal knowledge and terminologies, not to mention the capacity to detect the subtleties that are inherent in a legal term. All of the problems above account for the often less-than-satisfactory quality of legal fiction in translation, misleading or confusing the potential target audience. After making the prior theoretical investigations, this paper attempts to analyze some problems in the current Chinese translation of such legal novels as Franz Kafka’s Der Prozess and Charles Dickens’s Bleak House, and then take a corrective stance, hoping to arouse the translators’ awareness of the importance of this genre, as well as their awareness of the essential professional skills they still need to acquire, so that they can reach equivalent accuracy in legal technicalities, as well as subtlety and nuance that reflect the legal spirit.     

Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

This article undertakes a critical reading of the argumentsused at the bench and the bar in the 2004 ICJ Wall advisoryopinion. The Wall case included an unprecedented number of Stateand non-State participants and it is therefore a valuable sitein which to explore the parameters and limits of legal speech.What argumentative strategies were employed at the Peace Palace?How did different participants present the relationship betweenlaw and politics? In particular, because the example of Palestinecan be seen as a challenge to the post-colonial order, how didThird World States employ the language of international lawin support of Palestinian self-determination? It is shown thatalthough international legal speech is highly restrictive, manyThird World States are willing to challenge its boundaries througha deep-set faith in the dividends of legal argumentation.