© The Author(s) 2015Rosanna Masiola and Renato TomeiLaw, Language and TranslationSpringerBriefs in Law10.1007/978-3-319-14271-5_2
2. Theoretical Concepts
Social and Human Sciences Department, International University ‘Stranieri’ of Perugia, Piazza Fortebraccio 4, 06124 Perugia, Italy
The first thing we do, let’s kill all the lawyers
William Shakespeare, Henry IV
2.1 Preliminary Observations
Translation efforts are constantly thwarted by lack of equivalents, missing slots (Joint Stock Company), shifts in meaning, diverging systems, desemantization (the generalization of meaning of a sign) and symmetrical void. This may affect some of the most common words such as the Italian cambiale, which has government stamp duty, whereas an IOU ‘I owe you’ has no equivalent, or the Joint Stock Company, which does not correspond to the Italian Società per Azioni, SpA. In English ‘spa’ (/Spa/) has a different meaning, although in is also used in Italian in the sense of ‘stazione termale.’ Mistakes featured in international headlines are no excuse for mistakes courtroom interpreting.1 As noted, the first letters and words in legal dictionaries have triggered endless discussions with experts and colleagues: for example, letter-A terms entered in legal dictionaries such as abigeato (cattle stealing) and abduzione are asymmetrical to their English equivalents in denotative and connotative features. ‘Abduction,’ extends to other conceptual domains of application, as in C.S. Peirce’s science of signs. There are also questions concerning the indeterminacy of law and language, and the relationship between different legal systems. The challenge increasingly facing legal communication is the usage and spread of varieties of English around the world and the idea that international legal English is not strictly ‘international law.’ The two different areas of study and action do, however, overlap and are mutually reinforcing factors in language globalization. Moreover, this implies that any legal lexicography cannot be severed from conceptual meaning, interpretative practice and the hermeneutic motion, or shun legal reasoning and legal theory (Atria 2002, 2012).
In its first section, the study starts with such postulates on theories of meaning and interpretation. In the second section it moves from concepts to specific lexicon and semantics. In Chap. 4, it progresses to a comparative case study of a specific theme. Subsequently, the historical roots of ‘tribal crimes’ such as horse stealing from Apaches, and consequent Indian wars are briefly outlined in order to identify language issues and compare variations in cross-cultural legal issues.
The aim isn’t to provide solutions, but to raise issues, problematize and to be a caveat against oversimplified approaches to the interpretation and translation of legal systems and jurisprudential doctrine. The comparative cross-cultural thematic and linguistic approach has been useful as it can highlight variations in place and time with regard to the perception and evaluation of crimes, ranging from myth to brigands and cowboys and Indians. What do the Wild West outlaws, Apaches and Comanches, Billy the Kid in Lincoln County (New Mexico), Australian duffers, and African rustlers have in common? This brief surveys aims at stimulating reflection and investing more in the socio-cultural and linguistic implications when crimes become ‘trendy’ again and the death penalty is enforced as has recently been the case of South Sudan where ‘blood compensation’ has been called for. In Jamaica in June 2013, a ‘higgler’ was ‘chopped to death.’
The question of international law and civil rights issues is examined in the final section. Legal instruments, international negotiations, treaties and memoranda are all subject to translation and interpretative issues. There is no declaration of war, no subsequent treaty of peace and cooperation that is drafted in one language. English is used for international bilateral treaties and constitutionally in most post-colonial states. It is used as an international language in bilateral treaties or multilateral treaties. A simple premodifier or the concept of ‘possession’ and its interpretation can change the course of world history, as it did in the case of the ‘conquest of America.’ The history of colonialism, Western expansion and territorial acquisitions developed on the basis of linguistic mediation, translation and interpretation of such treaties, right or wrong. What is interesting in terms of understanding the dynamics is not so much the ‘whys,’ but the ‘hows’ and detecting the language mechanisms that caused things to go wrong.
2.2 Introductory Topics: From Theory to Theme
In its introductory second chapter, this survey highlights aspects of language and law as a realm that is integral to every culture, such as language interpretation and translation of the language of the law and theoretical concepts. The study moves on to an applicative third chapter, where it focuses on the problems of definition and multilingual lexicography. This section addresses the dynamics of communication and translation as a cross-cultural phenomenon. A conclusive fourth chapter features comparative thematic analysis of a criminal offense as reported in the media and as perceived and constructed in terms of cultural and legal discourse. The common topic is that of ‘cattle stealing’ in different languages, cultural traditions and legal systems, and its synchronic and diatopic variation. The issue is not without relevance: in Italy it is no longer an individual crime, only an aggravating circumstance of theft, and the dramatic global increase in violence and bloodshed as a result of this crime is hardly reported in the European media. Little information is given about a crime caused by hunger and depression. Criminals are sentenced to death (Texas and Arizona); ‘blood compensation’ has been made legal (regions of South Sudan), and digital media promotes the use of emotional language. In Jamaica, as already noted, a ‘higgler’ was ‘chopped’ to death, and New Zealand’s, South Africa’s and Australia’s innocent farmers are ‘down on their knees.’ When borders are crossed, when the crime is subject to international law or in the case of extradition, the question of language and interpretation is determinant in all phases of the law, in defining jurisdiction and subsequently the applicable norms. The notorious case of the two Italian marine officers detained in India has been presented by the media as highly intricate and impenetrable legal proceedings (national, federal, state, international, etc.).
The final chapter is based on the problem of international treaties in translation. It is aimed at stimulating a debate and raising awareness of the dangers and perils in international relations and conflicts. It examines several case studies where, in the course of history as well as in more recent times, negotiations and conflict resolutions were put at stake by erroneous interpretation and translation. Language, law and cultural systems are three factors that have a global impact—especially in light of tragic events and videos posted by Isis terrorists.
2.3 Concepts and Definitions
The European advocacy of ‘harmonization of the law’ within the multilingual jurisprudence of the ECJ (Lòpez-Rodrìguez 2004; Falkner et al. 2005; McAuliffe 2012, pp. 200–216) is one of the great challenges of the global millennium, and is based on a new ‘world order’ (Wagner et al. 2007). In a perfect world, the role of ‘the law,’ shunning any theoretical limitations, is to serve the community, the people and individuals alike, communicating across cultures, nations and linguistic barriers (Gibbons 1994). It may seem, however, that the ‘world order’ is constantly challenged by ‘word disorder’ and constantly thwarted by linguistic barriers. Legal communication is at risk when semantic polysemy, indeterminacy and ambiguity fail to provide clear-cut definitions and equivalents in bilingual or multilingual lexicography or in translation or multilingual statutory interpretation (Bennion 2002).
As further observed, the question of ambiguity and indeterminacy, which call for a good deal of intentional flexibility in terms of application in legal contexts (Bix 1993), may also be a stumbling block in linguistic translation (Joseph 1995; Azar 2007; Poscher 2012). Accordingly, the present study refers to the major Western systems and some specific ‘words’ in legal language and their conceptual and implied meanings (Benjamin 1989; Harris 1980). This highly specific domain covers the well-founded discipline of legal philosophy (Rottleuthner et al. 2007), theories of meaning and translation (Guethner and Guethner-Reuter 1978), the ‘effability hypothesis of translation,’ the ‘exact translation hypothesis’ or ETH (Katz 1978)2 and accommodation. Conceptual dictionaries for translation in the field of law (Šarčević 1989) would, however, be useful if also extended to legal philosophy and linguistics.
The Latin and Roman juridical traditions of civil law have played a primary role in promoting the dissemination of its statutory principles and corpus, combining the law of the Republic and the Roman Empire in those countries where this system is implemented. The other major system and tradition is that of English common law. Today, the two systems co-exist within the mosaic of the world scenario on a globalized scale, where the Latin words also pertaining to common law and used as such in English acquire supranational currency. The use of Latin words extended to the linguistic area of Eastern Europe epitomizes this trend and presupposes common European and Latin roots.
Some key terms have been selected on the basis of semantic dissymmetry ranging from taxonomic concepts and hyperonyms or superordinates, e.g. ‘rule’ (Nida 1964, 1975) as observed in this chapter. In the following sections, the focus is on a comparative theme (cattle stealing) and its variations in register (interlingual) in European languages and legal systems, and range of synonyms within English (varieties of English). On the basis of the definition of the crime, there are social and cultural dynamics, which impact equally on the law, language and media resonance. The question is not ‘beyond conjecture’ for although Europe considers cattle stealing a crime belonging to a legendary past featured in western movies, it is subject to the death penalty (Texas, Arizona) and ‘blood compensation’ is called for (South Sudan) against a background of tribal warfare and famine in contemporary Africa.
2.4 Materials and Methods
Partly inspired by George Steiner’s ‘hermeneutics’ and translation, and Pietro Perlingieri’s concept of ‘subsumption,’ this second chapter highlights issues related to conceptual juridical lexicon. Cultural filters and linguistic constraints due to different traditions (Ehrmann 1976), the main trends from the earliest surveys on law and linguistics (Mellinkoff 1963) and the recent updates (Tiersma 2012) have been taken into account.3 The field of legal translation (Morris 1995; Cao 2007) is now an accredited academic discipline together with forensic linguistics (Coulthard and Johnson 2007, 2010). At the same time, there are also countless contributions to comparative law (De Cruz 1999). In view of the existing approaches, the current aim is to provide further insights into the discipline of comparative legal linguistics (Mattila 2006) from a cross-cultural and multilingual perspective (Bahtia et al. 2003). The methods rely on comparative thematics and translation studies and theories. Materials are authentic and based on a study of cattle stealing.
Examples focus on instances of polysemy, asymmetry, register in usage, significance and definition when diachronic and diatopic variation is consistent, even within the same legal system, let alone between the major legal systems used around the world today (Ehrmann 1976; David and Brierly 1985). The adopted approach examines the lexicon and conceptual meaning in literary citations and legal discourse. The examples range from inquiries into the conceptual and epistemological lexicon to more recent colloquialisms or newly coined ‘trendy’ words, and the degree to which translating them produces shifts in meaning and stylistic register. Dictionaries, whether specialized or multilingual, have their limitations.
There are theoretical key concepts (sussunzione) in Western juridical traditions, not even recorded in bilingual law dictionaries.4 The increasing trend in acronyms (DASPO in Italian), means that semantic shifts and variation in language usage often occur. These terms coexist in legal templates in the stylized and frozen legal language. There are numerous examples of terms with many meanings and of several terms with one meaning. An interesting case is the term ‘posse.’ In legal English, ‘posse’ deriving from posse comitatus comes from medieval Latin, meaning ‘to have power, signifying’:
An assemblage of the able-bodied male inhabitants of a county, except peers and clergyman. The sheriff of the county could summon it either to defend the county against the King’s enemies or to enforce the King’s writ. (WLCD 1988)
The Italian equivalent entered in West’s multilingual dictionary (WLCD) has no institutional equivalent of a ‘county.’ The item that is entered is potere di una contea (power of a county). The German definition is far more helpful ‘Hilfspolizei.’