A Brief Discussion on the Linguistics of Comparative Legal Translation

Dec 09, 2022
 

Language and Interpretation

This post will first (briefly) focus on linguistics and how limitations in language can affect our ability to translate effectively.  We will then segue into how our full understanding of the legal concepts used by both legal systems will improve our interpretation of the source text and identify and understand legal concepts, which, despite being freely adaptable, will most likely not be 100% equivalent under both systems.

Linguistics is defined as the “scientific study of language.”  While we can apply the scientific method to language and extract certain rules to better understand how we communicate and how we can improve communication, I hesitate to compare linguistics to other REAL sciences, such as physics, where rules the rules extrapolated are accurate 100% of the time.  

 Language, as a human construct, is never going to be 100% precise, as it is dependent on human interpretation and is restricted by human intelligence.  So, as scientific as we try to be, we will never achieve 100% accuracy in language expression 100% of the time.  Moreover, language expression is used by the writer/speaker to convey a certain meaning to the reader/listener, which often times is not interpreted in the same way by both sides.  We, as translators, face this same problem when translating.  First, our translation is based on our interpretation of the source text.   Even when we believe we fully grasp the source text, it’s possible that we are not interpreting it in the same way as the original author.  

 This same approach obviously and necessarily applies to legal translation as well.  However, given that legal language is a technical language, it can be more difficult to interpret.  Like all technical languages, legal language is a derivative of natural language, but what makes legal language more difficult to interpret is that many legal terms are disguised by their natural language counterparts.  In other words, many times legal language doesn’t “look” technical, and this makes it more difficult to decipher what the author of the source text is attempting to convey.  Therefore, the more we know and understand the legal concepts employed by both the civil and common law systems, the better we will get at identifying the language used to describe these concepts. 

 Comparative Law Translation

By now we should know that the U.S. legal system is referred to as common law, and Mexico's is civil law. However, each legal system has been further shaped by each country’s personal history (or historical events), culture, even religion, philosophy, etc., and each legal concept is a reflection of these.  So, in comparative law translation, which I define as "the juxtaposition of two legal systems for translation purposes," we will most likely never encounter a legal concept under both US common law and Mexican civil law that will be 100% equal 100% of the time under both systems, even if this concept is freely adaptable.  If you recall, I divide legal concepts for translation purposes into three categories: 1) freely adaptable, 2) quasi-adaptable, and 3) unadaptable.  Freely adaptable means that a concept exists in both legal systems and there’s a suitable term that is “equivalent” in both legal languages.  Even the word CONTRACT, and its cognate CONTRATO, a concept with a very straightforward meaning that elicits a clear interpretation or rendering, is not going to be 100% accurate 100% of the time and will depend on context.  For example, Articles 1792 and 1793 of the Código Civil Federal distinguishes between the two types of agreements:  

Artículo 1792.- Convenio es el acuerdo de dos o más personas para crear, transferir, modificar o extinguir obligaciones.

 Artículo 1793.- Los convenios que producen o transfieren las obligaciones y derechos, toman el nombre de contratos.

 A convenio is therefore an agreement between two or more people to create, transfer, amend, or terminate a duty (or obligation).  And those convenios that are used only to create or transfer a right or duty/obligation are referred to as CONTRACT.  So, if we want to translate contract from legal English into legal Spanish accurately, we must grasp the legal concepts employed in the contract so we can what the purpose of the contract is, so we know the proper term to use. 

Under US common law, the terms contract and agreement are used interchangeably, despite their not being technically synonymous.  Whereas every contract is an agreement, not every agreement is a contract.  The difference lies in that a contract is legally enforceable and an agreement is (technically) not.

 The elements for a legally binding agreement under Mexican law, according to Article 1794, are 1) consent and 2) a lawful purpose:

Artículo 1794.- Para la existencia del contrato se requiere: I. Consentimiento; II. Objeto que pueda ser materia del contrato.

The Federal Civil Code goes into more detail about these two elements—discussing what consent is, the requirements for a person who can, legally, give consent (consentimiento), representation/representación (agency) vitiated consent (vicios en el consentimiento).

 US contract law, which has developed through years of legal precedents, has established a series of requirements that must be satisfied for there to be a legally binding agreement: 1) offer (oferta), 2) acceptance (aceptación), (together mutual assent (consentimiento)) 3) consideration (contraprestación), 4) legal capacity (personalidad or capacidad legal/jurídica), 5) lawful purpose (fin/objeto licito)

 We can never be too careless when speaking of absolutes in anything, and that especially goes for the law, legal language, and translation.  So, I can't say that there will never be a time when a legal concept is 100% equivalent under both U.S. common law and Mexican civil law, but in 99.9% of the time, this will be the case, and there will be some differences.  This still doesn’t mean they aren’t freely adaptable, however.  Take for example, corporation and sociedad anónima.  As we learned in a previous video, these two terms refer to the exact same type of business entity.  They are both regulated and have certain requirements for their validity.  They have shareholders, a board of directors, etc.  We will get into these elements in a future video, but the reason this is important is because comparative law translation will necessarily require us to translate concepts that are not wholly equivalent, due to certain reasons, be it historical, cultural, religious, etc., but their essential elements are the same. In future videos, starting with general partnerships, we will discuss legal concepts that I will claim are freely adaptable, even though there may be differences, sometimes significant, between them.  These differences, however, will not outweigh their essential elements.  

If you have any questions about this blog post or its accompanying video, feel free to contact me at any time at [email protected] or write it in the comments section under the video.

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