Conflicts and Clashes




© The Author(s) 2015
Rosanna Masiola and Renato TomeiLaw, Language and TranslationSpringerBriefs in Law10.1007/978-3-319-14271-5_5


5. Conflicts and Clashes



Rosanna Masiola  and Renato Tomei 


(1)
Social and Human Sciences Department, International University ‘Stranieri’ of Perugia, Piazza Fortebraccio 4, 06124 Perugia, Italy

 



 

Rosanna Masiola (Corresponding author)



 

Renato Tomei



Woe to you, scholars of the law!

You have taken away the key of knowledge.

You yourselves did not enter and you stopped those trying to enter

(Luke 11.12)

Guai a voi, dottori della legge,

che avete tolto la chiave alla scienza. Voi non siete entrati, e a quelli che volevano entrare l’avete impedito.

(Luke 12.4; emphasis added)

There is a substantial difference between ‘knowledge’ (African Bible based on the New American Bible, 2005) and ‘science’ (Italian Vangelo, official version, 2005). This conceptual difference equally affects the field of jurisprudence as defined ‘science’ or ‘knowledge.’ The tree in the Garden of Eden was the tree of ‘knowledge of good and evil.’



5.1 Concepts and Crimes


This section highlights questions of power and ideology that may explain the causes and effects of unequal treaties, as a consequence of linguistic manipulation in drafting and translation. The history of the conquest of the New World involves cultural and linguistic misunderstanding, violence, genocide, slavery and dispossession of the soil. The topic of political violence and globalization is a dramatic one, its representation and resonance being mediated through translation (Bielsa and Hughes 2009). In this sense, the present approach to law and translation encompassing a range of cross-disciplinary activities and comparative studies in history, international relations, diplomacy, language, literature highlights a broader approach to law and humanities.1 In this chapter we discuss focus and approach as the common theme of translation in contexts such as warfare, colonial expansion and declarations of war.

One basic concept of law in the Western world, derived mainly from Roman law, is that of property and property rights. Not all the peoples of the earth, however, perceive and conceptualize the sense of possession in the same way. Law is also reflected in terms of reality and space as well as the correlation and interconnections derived from the shared meaning, values and beliefs.

How can someone ‘own’ a territory or space that is tribal and sacred? The land is God’s, and its people are part of the land in cohesive and cosmic harmony. There is no question of ‘real estate,’ property, ownership or nationalization here. The history of the American continent, the Westward expansion and the genocide caused by the reservation system is only one of the many episodes in history that demonstrate failures in the translation and communication of treaties. This section only focuses on some of the major factors that determined subversion in terms of natural law and equal justice.

The colonization of Australia and New Zealand is also a case of dispossession of the soil, genocidal policies and destruction of communal spaces and tribal grounds. The land-claims movement and consequent policies are yet another aspect. The most egregious wound was inflicted not on the community per se, but on those laws that were not conventionally written down in statutes according to the Western mind’s systems of order. The wars between England and Spain, the ensuing wars and massacres in the New World and the slavery route are a dark side of the history of the conquest.

These tragic events developed in the context of legal instruments and imposed laws. The subsequent treaties with the Indians centuries later, the colonization of Australia, the dispossession of the soil in New Zealand, are only a few examples. In most native Amerindian cultures, the land and its people, the waters and the sky were all part of a cosmic and spiritual order. Moreover, Aboriginal languages do not categorize reality and space in terms of ‘I have’ ‘yours’ and ‘mine,’ and the concept of ‘possession’ linked to personal pronouns is not part of the language. In this context, the concept of ‘I am the owner of this land’ or ‘this place belongs to him’ is unfamiliar and disruptive to a world-order that is not based on property. There is an intricate web of cross-cultural and language issues surrounding conflicts and warfare, both between the European empires and between the Empire (i.e. Britain, Spain, France, Portugal) and its colonized natives, which calls into question ‘the law’ and indigenous laws against Empires.2 One legal stereotype based on racial supremacy stated that a society that did not possess property relations and did not live within a community of laws ‘could not for that reason claim ownership, possession, equity of land, soil and of what the soil contained, i.e. precious metals.’ Cultural incompatibility was total, and natives had no rights. Anthony Pagden supports this evidence with historical juridical arguments, as Stephen Greenblatt notes in his influential Marvelous Possessions:

… the jurist Palacios Rubios had argued in 1513 that a society that did not possess property relations (and hence did not live within a legitimate civil community) could not for that reason claim on behalf of any of its individuals dominium rerum when confronted by invaders attempting to seize their lands. In other words, a full recognition of the profound disparity between the indigenous culture and that of the invaders would not necessarily lead to what we regard as equity: on the contrary, it could lead to a justification for seizure (Pagden 1987, pp. 81–92; in Greenblatt 1991, p. 169, n. 24).

So much for the justification of imperialism and conquest on doctrinal grounds. What comes to the fore in this quote, however, is that the Spanish system is not common law but is instead based on Latin or Roman law. The term ‘equity’ is alien jurisprudence based on Roman law, since ‘equity’ has been added to common law, which offers no adequate remedies, and both have been incorporated into statute law. This concluding observation focuses on the remoteness not only of the indigenous cultural systems, but also the divergence of the legal systems of Spain and England as imperial powers.


5.2 ‘Possessions’ and Colonial Conquest


As already noted, a key concept lies in the significance of the term /property/, possession and its Latin derived ‘real estate.’ The latter being based on the modifier ‘real’ which conceals a Latin etymology, based on resrei, ‘the thing.’ The compounds: real action, real estate, real property, real right suggest that this is a direct reference to civil law (Italian) and the partition between:

diritti reali → /real rights//rights in rem/in English, and

diritti obbligazionari, diritti di obbligazione → obligation law, personal rights, rights in personam, obligation. Common law and its complement equity law coexist with ‘legal’ rights.

The case of the Spanish conquest of the New World relies on the interpretation of Latin, translated into the two different concepts of ‘possession.’ In order to understand the divergence of meaning in legal systems, contextualization and diachronic variation have to be accounted for in explaining the distinction between possession and active ‘ownership’:

the Spanish term tomar posesiòn (and the Portuguese tomar posse) did not have the same meaning as the English ‘to take possession.’ ‘Possession’ in Elizabethan royal patents such as that granted to Sir Humphrey Gilbert and Sir Walter Raleigh means to ‘have, hold, occupy and enjoy’ and to wield over the territory so held ‘full power to dispose thereof…according to the lawes of England. (Greenblatt 1991, p. 167, n. 7)

In Spanish, the legal concept of tomar posesiòn referred to formulaic pronouncements and the rituals of symbolic actions, and consequently did not imply an active use and fruitful enjoyment or the exercise of ‘ownership’ rights. Elizabeth responded to Spanish complaints against Frances Drake and the ‘empire’ of Guyana, denying that the Spanish had ‘established’ possession.

According to William Camden, the Queen denied that the Spanish had established ‘possession’: Spaniards, she said, ‘had touched here and there upon the coasts, built cottages, and given names to a river or a cape, which does not entitle them to ownership;… Prescription without possession is worth little (Greenblatt 1991, p. 167, n. 7).

The Latin quote from the Rerum Anglicarum by Camden (1639, p. 328) cum praescriptio sine possessione haud valeat gives a clear-cut distinction. The current term ‘prescription’ in common law has a network of meanings and applications in the disciplines of jurisprudence and is also used in international law. Today the querelle implies the concept of ‘positive’ or ‘acquisitive prescription.’ The matter is subject to different regulation in civil law. The terms ‘ownership’ and ‘property’ are used in common law, and in ‘property law,’ ownership also extends to rights, such as ownership of ‘patent’ and copyrights. However, ‘possession’ originates from ‘property’ (Rose 1985). The dynamics of colonial and postcolonial cultural and legal conflicts in land claims and the extension into native territories essentially rely on diversity in concepts, values and beliefs within community practices (Belmessous 2011, 2014).


5.3 Clashes of Cultures: Signs, Symbols, Symptoms


From what we have discussed in the opening section of this chapter, it clearly emerges that the problem of understanding is not so much the terms of language and word-for-word translation, but the cultural patterns and world perception.

If the notorious ‘to take possession’ (Masiola Rosini 1997, pp. 174–175) were based on the meaning of the written words of the law, Roman law or common law, and Latin were still used and referred to by Spanish and English legal scholars, the case of colonial expansion and dominion would be beyond the ‘legal quibbles’ and word manipulation that were common practice in disputes over throne successions or rights to conquest in different European languages (Valdéon 2014).

In the case of the conquest of the New World, the clashes and irreparable damage had other origins, where the sense of spirituality and the divine were united in the figure of the emperor. The episode of the Inca Emperor and the bloodbath at Cajamarca epitomizes the clash of systems based on different ritual codes and communicative modalities.

Another example is the legal formulation of the requerimento or ‘pronouncement,’ which was read to the indigenous people as a ‘declaration’ that the Conquistadores had come to tomàr posessiòn of the new land in the name of the Spanish Crown. The requerimento was translated from Latin into Spanish and then retranslated. The tragedy of Cajamarca, (November 15, 1532), with the capture of Atahualpa is one of the most abominable examples of bloodshed in the conquest. The Spanish Conquistador, Francisco Pizarro was accompanied by his lieutenant Hernan De Soto and the Dominican Fray de Valverde. There was a poorly executed attempt to explain the precepts of the Catholic religion to the Inca, an attempt that was certainly not helped by the native interpreter Felipillo. The Comentarios Reales written after the event by Inca Garcilaso de la Vega reports that Valverde pointed to a book saying that it contained God’s words and handed it over to Atahualpa. When the Inca was presented with the book, he shook it closely to his ear and is said to have asked why the book did not speak to him. The subsequent act of smelling and licking the book was seen as an offense by the Spaniards, who were ready to attack (Masiola Rosini 1997, pp. 129–144).3

In translation theory and practice, this case can be contextually defined as: symbol, symptom, signal (Kelly 1979, pp. 70–88; Masiola Rosini 1988, pp. 45–49). ‘Signal’ aims at provoking a response in the recipient, and ‘symbol’ is centered on the subject matter. The question of speaking the truth in reciprocal trust, from the invader to the invaded was paramount, and this is where failure occurred.4 If ‘truth’ (quality of information) and ‘trust’ are intentionally set aside, it will have dire effects on the whole communicative process. This may also affect international legal documents, where matters of ideology and translational issues add to the complex dynamics of cross-cultural clashes, violent conflict and the role of mediators (Inghilleri and Harding 2010, pp. 165–174; Cunico and Munday 2007, pp. 141–150).

An understanding of the differences in codes, rituals, beliefs, values and world perception would seem important considering the magnitude of violent conflict between the Western world and Islamic terrorism and fundamentalism. The cultural gaps that occur in shifting from one culture to another highlight how language affects not only international communication, but also the ‘way of thinking’ and what ethnolinguists generally call ‘frames of mind.’ David Katan in his Translating Cultures notes in his conclusion that he began the book by asking “what is the culture factor?” and ends by suggesting that culture is not a factor, but the framework (the context) within which all communication takes place. The mediator, translator, bilingual drafter and translating team will need to be aware of this to be able to act within the culture of the law and legal concepts:

The cultural orientations are filters that help individuals orient themselves in society. They provide individuals with a way of interpreting the environment and guide visible behaviour that is congruent with other members of the same culture. Misperception, misinterpretation and mistranslation can easily result when these out-of-awareness orientations are not taken into consideration.

The map individuals, as representatives of a culture, make of the world is a local map, and is not a good guide to understanding texts produced by other cultures. Hence, the heart of the mediator’s task is not to translate texts but to translate other cultures, and help strangers give new text welcome (Katan 1999, p. 241).

Legal texts are highly complex as they are subject to different and sometimes mixed juridical systems. The written text is the result of multilingual and sometimes secret negotiations for which there are no tapes or transcripts.


5.4 Ethnic Cleansing: Aborigines and the Law


The international debate on the abolition of slavery in popular and religious literature and in parliaments is also a matter of translation and cultural and linguistic contact. For more than two centuries, the slave trade went virtually unchallenged. The international abolition campaign that ultimately resulted in parliamentary acts of abolition was a slow process. Each colonial power had its own legal language and slavery terminology with definitions, categorization and a hierarchical scale of concepts institutionalized in definitions of ethnic hybridity, with a view to improving the outcome of incidental ‘mixing of the races.’

Quarteroon, quinteroon, octoroon, and Zambo were Spanish labels based on normative standards and adapted into English and paved the way for laws related to programs of enforced racial protection of half-castes and their offspring. When it comes to the meaning of such terms and their translational equivalent, the concepts not always clear, such as the idea of métissage or mestizaje (no English here), which connotes fluidity, mutability, and ambiguity, rather than defined values of syncretism, reconciliation, unity or totality (Legrand 2005, p. 46, n. 23).5 There were tables depicting the ‘mixture of different castes under their common or distinguishing names’ of over twenty different combinations, with complicated numerical fractions for South America made by the Spaniards.6 More generally, there are several themes and legal issues that may cause legal and statutory problems, such as the communication of litigation (Beke 2014) and the understanding of passed judgment and sentences; the topic of law and language becomes a sensitive issue in postcolonial contexts.

In the case of Australia, and the topic introduced below, there may have been Reconciliation and ‘compensation’ to the ‘stolen generation’ of Aboriginal half-caste children, but it was not explicitly cited as legal compensation in parliamentary address.

What happened in Australia is an example of genocidal policies and ethnic cleansing designed to achieve ‘racial improvement.’ The English used the Spanish words and exported them to Australia and the Aborigines. It was the legal practice of assigning the children of mixed races to the hegemonic or dominant group, under acts of the respective parliaments. Language was a priority there: native languages were strictly forbidden, and the final solution aimed at erasing the native culture and languages. This caused the loss of many languages and the disruption of the roots of many tribal communities. Implementation of this ethnic cleansing started in 1869, peaked in the 1950s and went on till the 1970s.7 Needless to say, when the ‘accusation’ or ‘legal remedy’ was read and explained by the appointed ‘protectors’ to the Aboriginal community, little could be understood of its purported ‘ethical’ grounds for improvement and social benefit of the children.

It was only in very recent years that legal translation services and linguistic mediation were offered to native communities (Neate 2003) on the grounds that often the defendant could not understand the accusation in English, let alone the type of offense or crime committed (Eades 1992). The issue here is Anglo/Aboriginal legal translation (Cooke 1995). As reported by Justice Kriewaldt back in 1960:

The plain fact is that in the Northern Territory of Australia, the trial of an Aborigine in most cases proceeds, and so far as I could gather, has always proceeded, as if the accused were not present. If he were physically absent, no one would notice this fact. The accused, so far as I could judge, in most cases takes no interest in the proceedings. He certainly doesn’t understand that portion of evidence which is of the greatest importance in most cases, namely, the account a police constable gives of the confession made by the accused. No attempt is made to translate any of the evidence to him. If the rule requiring substantial comprehension of the proceedings was applied to the Northern Territory, many Aborigines could simply not be tried. (Kriewaldt 1960, p. 23).

Compiling a legal glossary translating legal concepts across cultures into an Australian Indigenous language is a ground-breaking project. The language is that of the Torres Island community, the community who suffered deportation. The language is a lingua franca of the Aboriginal Australians of the area. There are social reasons for this legal glossary, aimed at helping the endangered community of the post-Stolen Generation when faced with charges and sentenced to imprisonment, as noted by Lysbeth Ford and Dominic McCormack, authors of the project:

The project is a response to the statistically significant incarceration rates of Indigenous Australians, particularly in the language area considered, whose limited command or complete lack of English puts them at a severe disadvantage when they are confronted head-on by the Australian legal system.

Magistrates, police and legal aid services regularly find themselves hamstrung by a lack of a common language to communicate with defendants, detainees and clients alike. Indigenous interpreters, while fluent in the first language of their clients, often lack sufficient and specific English competency to be able to decide the meanings of English terms. (Ford and McCormack 2005, p. 58)

What follows is one significant example of ethnic and conceptual transposition in the context of judgment and release, bail and conditional liberty. For native interpreters the term ‘bail’ means ‘you are free to go,’ as this is the last phrase the magistrate utters in the courtroom. They do not realize that it is a ‘conditional liberty’ requiring the defendant to return. So for BAIL the following expansion strategy has been adopted. A simplified literal English has been used, and then rephrased into Aboriginal language syntax and lexicon.

‘All rights, I will just set you free today. I want you to promise me to just do these things that I will tell you. These things are:

1.

You will come back here at a time that I will tell you to—that time is 4 July 2005, at 1 p.m.

 

2.

But suppose you break these conditions, within a short time you will just return to the court and I may lock you up again’.

 

In cases where there is a ‘suspended sentence,’ the definition of when imprisonment starts is decisive. Examples may better illustrate the practice of translation as mediation in court (Ford and McCormack 2005, p. 72).8

‘I am the magistrate and I will give you three months’

Ngay = ka pule ngay-ka nga + mpa + mut + nu

I = TOP boss big and I = TOP I will to you give = will

Merrk perrkenku + numi.

moon two + one.

With specific reference to that area and community, not until 2008 did Australian Prime Minister Kevin Rudd, at a sitting of the Parliament of Australia, present an apology to indigenous Australians as a motion to be voted on in the framework of Reconciliation policy and the centenary anniversary of the Federation of Australia (2001). Not a word in the Aboriginal language, and, no lawful compensation offered to what was a virtually genocidal policy of ‘half-caste’ children born within an Aboriginal community.


5.5 Defining ‘Genocide’ and ‘Democracy’ in Africa


The case of Rwanda is different than the above cases in its dynamics and context, but there is a language issue here, too, since the massacre and bloodshed originated in the tribal warfare between Tootsie and Hutus. In recent years, the bleak and disquieting question of how to technically define genocide at the time of the Rwandan massacre has resounded ominously. Shunning the term ‘genocide’ and calling it something else (‘final solution’) was a way of not taking action or implementing any strong international measures during the Clinton administration. The notorious phrase ‘how can you technically define genocide?’ seemed to be the watchword that caused inaction on the part of President Bill Clinton and the US Ambassador to the UN, Madeleine Albright. For months (from April to May 1994), the American government debated the word ‘genocide,’ a crime banned by the Convention for the Prevention and the Repression of Crime and Genocide (adopted by the General Assembly of the United Nations 1948).9

In international law, the definition of the crime of genocide is found in Articles II and III of the 1948 ‘Convention on the Prevention and Punishment of Genocide.’

Article II describes two elements of the crime of genocide:

(1)

the mental element, meaning the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,’ and

 

(2)

the physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called ‘genocide.’

 

Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity.

Following the massacre and genocide in Rwanda in 1994, Canada and other international councils made up the International Convention on the Prevention and Punishment of the Crime on Genocide. The convention confirmed that under international law, genocide is a crime whether committed in peace or war. The convention’s purpose is to prevent, suppress and punish genocide. The convention states that it includes acts intended to destroy all or parts of a national, ethnical, racial, or religious group, among the first five points: 1. Killing members of the group; 2. Causing serious bodily or mental harm to members of the group; 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4. Imposing measures intended to prevent births within the group; 5. Forcibly transferring children of the group to another group.10 These points are followed by reference to actions and behavior inciting genocide.

In the wake of genocidal warfare and the global spread of bloodbaths, web pages offer multilingual glossaries of the concept, listing synonyms and equivalents in the different languages and contexts. A link for the translation of the convention is available in eighty languages, with a definition of genocide and its euphemisms or coded equivalents.11

The German term Endlösung, or final solution, is historically contextualized denoting the extermination of Jews. The term ‘ethnic cleansing’ denotes more recent events. Tragically, such terms are used internationally, and are translated into eighty languages, although they do not have lexical symmetry. For instance, French lists a lexeme that does not exist in English: Génocidaire, as the active agent who perpetrates the crime.12 The French term was used by the French media during the 1994 Rwanda massacre and was also used in the English media. German and French have many co-synonyms and metaphors, whereas Chinese, for example, lists only one word. Declarations of war, peace treaties and institutionalized propaganda rely on such keywords. From a tragic and negative perspective, such terms are context-dependent and ethnically marked in terms of linguistic and cultural hegemony.

Political studies currently highlight a communicative and translation-based approach. There has been intensive work on the transition from colonial rule or protectorate to final emancipation and the need to adopt concepts and set up constitutions and legal systems. There may be many European or other languages involved (African languages, Arabic varieties, the languages of India, China).

Frederic Schaffer in his study Democracy in Translation focuses on the term ‘democracy.’ The author approaches the topic in relation to one keyword and its contexts of usage and diachronic variation in meaning.13 There are two coexisting terms with a variation in perceived meaning, orthography and pronunciation of the Greek-derived word ‘democracy’ (power of the people). An analysis of written texts revealed that the French term démocratie, as currently used in the press, was a close parallel to the American English usage of ‘democracy.’ Another example is the Wolof loan-word demokaraasi, which was adopted when the French colonizers were establishing the foundations of the modern Senegalese state. Like its rough equivalents in English and French, the Wolof term can today be used to refer to electoral institutions and multipartism. All three concepts, in short, have similar institutional referents. The main question, however, is whether they also share ideals or standards (Schaffer 1998, p. 19). The context is of many post-colonial nations, with the language of the colonizers and conceptualization of key terms when it came to setting up a judicial system, laws and a constitution that is drafted and available in the different languages (e.g., Sudan, South Africa).

Language and culture is what makes the difference. The next section focuses on ethics, culture and ideology in translation. Moral conflicts and real conflicts are part of the dynamics of legal reasoning (Veitch 1999) overlapping with legal adaptation and advocacy to translational ethics


5.6 Translation: Ethics, Culture and Ideology


Different channels are used for translation in the form of bilingually drafted memorandums and agreements on the one hand, and for the translation of the negotiations that precede them on the other. Negotiations, concessions and denials take place within a bargaining zone of mutual consent. The dialogue and the verbal phase of discussions and the minutes and drafts are private and confidential and remain undisclosed but are, however, the basis for the final written treaty.