Materialization in Legal Communication - the Translating Process

Anne WAGNER

Associate Professor, Habilitation à Diriger des Recherches

Centre Droit et Perspectives du Droit (Lille II), équipe René Demogue

President – International Roundtables for the Semiotics of LawEditor-in-Chief – International Journal for the Semiotics of Law

Series Editor – Law, Language and Communication

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TRANSLATING: FROM BABEL TO BABEL

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Myth of Babel

translation as a means of transferring meaning between languages

a “Space in-between” (Wagner 2015)

Space in-between

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THE IMPOSSIBLE QUEST

We are doomed to be separated by language not only from other societies, but also from people within our own society (Hitchins – 2011)

The political and civil laws of each nation … should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another (Montesquieu, The Spirit of Laws).

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Law and Translation – A forced Partnership?

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Translation is the result of a compromise, or of a “negotiation” (Eco) of sorts

Translating comes down to “dire quasi la stessa cosa” (Eco)

To say almost the same thing

PART I.

Jurilinguistics in the field of Legal Communication

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DEFINITION OF COMMUNICATION

Transfer information from SL to TL

Common & significant framework

conceptualisation

Beneficiaries• Translation• Interpretation• Mediation

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SPECIFICITY OF LEGAL TEXTS

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Each trade, craft and profession possesses its own language.

1. Legal texts (statute, contract, judgment) bears rules that are enforceable in law

2. Legal terms convey notions and meanings specific to a legal system3. Legal texts are written in a unique form which differs from one system to

another.

Translating law is a a type of specialized translation – A Craft of Translation

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DIVERSIFICATION OF DOMAIN-SPECIFIC KNOWLEDGE

Where?Across nations and cultures

“Culture … derives from historical experience – so do the forms that culture embraces, such as legal rules. It would be absurdly reductionist to see a rule simply as a rule” (Legrand)

Legal actors’ role:To act as

Language and culture mediators

AimTo convey correct contents of utterances and/or speech acts

Target:Their communities & Their clients

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COMMUNICATION STRATEGIES

Garden of forking paths (Borges) Multistage dynamics (Wagner) Analyses of mechanisms of transfer & importation

Importation and Transfer

Field: Verbal & written speech

How to proceed?1- Active & collaborative work

a- PurposeMediate, decide and analyze under real constraints with cultural challenges.

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PROCESS & OUTCOME

How to proceed?2- Decision-making

a- GoalElaborate multiple and viable solutionsHave “culture mediation” in the legal field.

Combination of:o Function-o Process-o Solution-

Approaches to language and culture mediation

Complex in the process and the outcome

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I. THE PROCESS

Transfero Not a static mechanism,o A living process (Bentham),o Should fit the representation setting.

The chief problem … will always be, not the individual état de langue, but the relationship between different stages of a single language and between different languages, their similarities and their

differences (Hjelmslev)

Empowers a cultural turn, an interdisciplinary turn, a technological turn.

Decision-making• across fields• Shapes the emergence of jurilinguistics“an overlapping of segments of disciplines, a recombination of knowledge in new specialized fields”

(Dogan)

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I.1. DECISION-MAKING – AN ENDOGENOUS ENTITY

Primarily focus Learning Adaptation to the environment

Dynamic process

Human factors,Environmental forces

ObjectivesTo maximizeFairly adjust decisions Ends & means

Endogenous?- Content & meaning determined in

the social field- Uncertain, indefinite and subject to

incalculable changes.

Every culture that has faith in itself tends to spread its own institutions. Anyone with the power to do so tends to impose his own upon others […]. The desire arises because this

work has a quality one can only describe as prestige. (Sacco)

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DECISION-MAKING – AN ENDOGENOUS ENTITY

Goals Reflects, Consolidates, Forms, and transforms

What?o Value perceptions

Known as historically changing

1st Level of analysis 2nd Level of analysis

Criteria of legal language Slippery Fluid Highly unpredictable

SpecificitiesEither an unintended ‘bug’Or a necessary ‘feature’ in part of the political bargain that made legislation possible

Level of interpretative flexibility in law (Wittgenstein)

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I.2. NEGOTIATING PROCESS

« rather than being ordered by a single legal order, modern societies are ordered by a plurality of legal orders, interrelated and socially distributed in different ways » (Boaventura de Sousa Santos, 1995).

Visions of Legal pluralism

no definite and definitive enclosures,

Ideas of openness in cultures (Wagner & Bhatia 2009),

Positive nurturing and tolerance in diversity (Clark 1989):

« it is apparent that people everywhere, as they struggle to adjust their traditional worldviews to meet changing circumstances, must take care that they do not throw out the « baby » of cultural meaning and bondedness with the « bath water » of maladaptive institutions, lest they end up with new institutions that are destructive of the human psyche itself ».

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PLURAL REALITY

Fuzziness

• Ability to allow polysemy without reducing the comprehensibility of the discourse, unduly restricting its applicability, or leaving it open to conjecture.

• Not a misunderstanding• Not a failure

It is a negotiating process, a negotiating space

More open decisional spaceHave a “reservoir of organized patterns”

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LEGAL ACTORS’ ROLES

They can maximize their decisional space:

o Prioritize relevant patterns,

o Generate plausible solutions,

o Assess their impacts, and so

o Implement the most relevant decision in the context under consideration.

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LEGAL TRANSLATION DIFFERS FROM GENERAL TRANSLATION

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A translated text is never identical to the ST, but it may, to a certain degree be equivalent to it.

Translator faced with the problem of incongruity and “culture-bound terms” (Sarcevic 1985)

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I.3 JURILINGUISTICS - RECOMBINATION OF KNOWLEDGE

Poles

• Law = Supreme guardian of society

• Jurilinguistics = its prime instrument

LawEmbedded in culture

JurilinguisticsLegal transfer or “transplant” (Ewald)

But

Degrees of transferability can vary

Canada• An exception

Other countries• Historically and socially rooted• Specific period of time and space

Culture Mediators as Central tenets

• To manage interaction between social and legal realities,

• To seek and find out the best possible and plausible solutions.

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II. CULTURAL MEDIATION TECHNIQUES – THE OUTCOME

• Interactions between

Different languagesDifferent ways of making sense of lifeDifferent systems of thought and expression.

• In search of perfection? ImpossibilityCreation of effective and comprehensible working relations

between different systems of language and thought

Role of cultural mediators

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II.1. TRANSLATORS’ ROLES – CULTURAL MEDIATORS

• Cultural mediator’s skills transfers intercultural knowledge from SL to TL in order to enhance

understanding, and share information,Able to bridge between two different worlds,Remains neutral,Transfers knowledge accurately for both parties, Is flexible and continues to refine his/her skills for the benefits of his/her

clients.

• Definition of cultural competenceo Understanding of two cultureso Acquisition of social and pragmatic knowledgeo Generalizations should be avoided

PART II.A space-in-between – Legal Translation as ‘Third Space’

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STRATIFICATION OVER THE COURSE OF TIME

ANOTHER LANGUAGE

Societal evolution

History

Source Language

Legal Translation

--- A space of possibilities

-- An autonomous realm of “cross-cultural events”

Transfer process

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‘THIRD SPACE’ IN LEGAL TRANSLATION - ASSUMPTIONS

Complexity in Legal Translation

- To gather terminology of multiple origins

- To transfer it into another linguistic framework

Characteristics of the Linguistic Framework

1- Binary code:

- Source space- Target Space

2- Translation process: a space in-between, the ‘Third Space’

- All forms of cultures are continually in a process of hybridity

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‘THIRD SPACE’ CRITERIA

‘Third Space’

- Undefined,- Vague,- Fluid

Precondition for:

- Negotiation,- Transformation, and- Translation.

It is that Third Space […] that ensure that the meaning and symbols of culture have no primordial unity or fixity; that even the same signs can be appropriated, translated, rehistoricized, and read anew (Bhabha)

‘Third Space’ permits manipulation of the consciousness and unconsciousness of legal discourse

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DEFINITION OF ‘THIRD SPACE’

Space of enunciation

A space within which cultural identities themselves are transformed

It acts asAn absent structure (Eco)

Mechanisms of transfer, of importation

Hindrances Passage brought effect of distortions and appropriation (Sherry) A struggle between possession and dispossession (Iser)

Decision-making (Wagner & Gémar)

To elaborate multiple and viable solutions

CULTURAL MEDIATION

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CONCEPTUAL SPACE OF ELABORATION

Main idea- beliefs and values provide potential and valuable keys for research in the field

of legal translation

Third Space- A space of expansion,- A space organised and classified.

Third Space is entwined in the source space and target space:• Aim:

o Several sets of translation

They are very diverse map-tracing, rhizomeroot assemblages, with variable coefficients of deterritorialisation (Deleuze & Guattari)

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LEGAL TRANSLATION – ‘SPATIO-TEMPORAL WHOLE’

Core ideaTo achieve a comprehensible and readable ‘Third Space’ in the Target Language

of what is immediately presented as a spatio-temporal whole … knowing how to orientate oneself in space and time, knowing how to construe presentations or appearance in terms of

spatial and temporal ‘reality’ (Heron)

Spatio-temporal wholeAspects of ‘foreignization”, and/or “domestication”

The translator can either leave the writer in peace as much as possible and bring the reader to him, or he can leave the reader in peace as much as possible and bring the writer to

him (Wilss)Cannot be evaluated in a mechanical way

A procedure based on both linguistic and legal comparative approaches (Tomasek)

Needs the interpretation of the objective reality

Training in dealing with the diverse multilayered socio-legal aspects in translation

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MAIN ROLES OF TRANSLATORS

- Texts are intentional and relational. The meaning of the original is assumed not to reside wholly within the original. There are silences to be addressed (P. Legrand)

- Experts have to “negotiate the other’s terrain, while trying to conceptualize our own modes of representations and the commensurability of cultures (Hermans)

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LEGAL TRANSLATION AS A CONTACT ZONE

Inbetweenness

- Acts as a contact zone between the SL and the TL- Has a coordinate function between the S Culture and the T Culture o with high or low connectivity in the legal transfer

Low connectivityHybridized discourse with many variants in the TL

High connectivityProper transfer without modifying boundaries of the original meanings

- intercultural efforts of creations, - shifts in meaning

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PIVOTAL ROLE OF TRANSLATION

Concept of a Rhizome (Deleuze & Guattari):

A rhizome may be broken, shattered at a given spot, but it will start up again on one of its old lines, or on new lines… Every rhizome contains lines of segmentarity according to which it is stratified, territorialised, signified, attributed, etc. as well as lines of deterritorialisation down which it constantly flees.

Pivotal role in the re-interpretation and/or deterritorialisation of identity:

- To assume new and different meanings- To accept that this transfer is never pure between the signified and the signifier (Derrida)

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LEGAL TRANSPLANT

- the moving of a rule or a system from one country to another, or from one people to another (Watson)

- the pact of interpretation [could never be] simply an act of communication between the I and the You (Bhabha)

TWO PLACES BE MOBILISED IN THE PASSAGE THROUGH THIRD SPACE (Bhabha)

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PASSAGE THROUGH ‘THIRD SPACE’

To analyze the modus operandi in relation to contextCultural turnLegal discourse reflects the organization of society and its institutions and the roles and power structures inherent therein (Wodak)

SL Text cannot be encapsulated within the limits of the S Legal systemLegal language is culturally labelled.

But Nietzsche moderates this idea:

the various languages, juxtaposed, show that words are never concerned with truth, never with adequate expression…

To better master translation practices

ASSUMED TRANSLATION (Toury)

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TOP PRIORITY FILL THE CONCEPTUAL GAP IN THE TARGET LANGUAGE

To build metalinguistic devices

When the target language and the source language relate to different legal systems, absolute equivalence is impossible. For example, can the German word Ehescheidung be translated into French with divorce or into Italian with divorzio? We know that the grounds for divorce are different in Germany, France and Italy and further, that there are essential differences regarding the nature of the marriage, which is dissolved, specifically in the field of marital property law. […] (De Groot).

No absolute equivalence BUT NEED FOR TEXTUAL ADJUSTMENT

Living notion (Gény) where:concepts are more like chess pieces. They can be maneuvered to produce certain results but the players have a choice as to the move. Similarly, lawyers and judges often have a choice as to how they will move the concepts (Wagner; Farrar & Dugdale)

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FROM MEANING-MAKING TO MEANING-FINDING

Meanings in law - cultural nuances- collective memory

Law and legal language are system-bound, that is, they reflect the history, evolution and culture of a legal system (Cao)

Translators with technical producing activities: - solid text-based competence, - solid social knowledge SL and TL

Priority:

- To fill the conceptual gap in TL,- To find a way from meaning-

making to meaning-finding in TL.

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Plurality in meaning

EscroquerieTypes of behaviours

Obtaining by false pretences, fraud, deceit

Swindle, fraudulent representation

EmbezzlementRestricted to employeesNo longer an offenceSubsumed under theft

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CULTURAL TRANSFER OF MEANING

Détention provisoire“Detention on remand, remand in custody, detention pending investigation or trial,

pre-trial detention, custody for short period” (Bridge)

“Remand is ordered by magistrates and partly because, notwithstanding the etymology of the word remand and the definition given in English dictionaries, the term refers to the disposal of an accused pending a later hearing of his case after an adjournment” (Weston)

Weston’s viewpointRejects the first two translations as unsatisfactoryApproves “detention pending investigation” or “pre-trial detention”

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DIFFERENCES BETWEEN INSTITUTIONS

Juge d’instruction(S)He enjoys considerable powers:

1. Building up the dossier on the case2. Formally accusing a person against whom there are ‘serious and concordant indications of

guilt’3. Ruling on the accusations that have been made and sending the accused for trial before the

appropriate court.

Functional equivalent“Examining magistrate”

Substantial differences between institutions• Proceedings before an examining magistrate tend to be fairly summary• He is not a professional judge

PreferenceInvestigating judge.

But Examining magistrate is firmly entrenched, cannot be ignored.

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TOWARDS A NEUTRAL TRANSLATION

Translator’s role Tend to avoid changing initial meaning Tend to avoid to bring into line with national reforms

Garde d’enfant Droit de visite

New concept of “residence”

A form of a “contact”, “visiting contact” under Children Act 1989

“Custody”Old term

“Access”Old term

Why?Enshrined in some international instrumentsThe Hague Convention on International Child Abduction

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WORDS WITH SILENT DIMENSION

Night

• “Night shall be considered and is hereby declared to commence at the expiration of the first hour of sunset, and to conclude at the beginning of the last hour before sunrise” (Night Poaching Act 1828)

• “Night means the period between 11 p.m and 5 a.m.” (Customs and Excise Management Act 1979)

• “Means the time between half an hour after sunset and half an hour before sunrise” (Highways Act 1980)

Complainant

• “One who makes a complaint to the justices” (Jowitt Dictionary)• “A woman upon whom, in a charge for a rape offence to which the trial in question

relates, it is alleged that rape was committed, attempted or proposed” (Sexual Offences Act 1976)

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MEANING OF WORDS

Their meanings:become binding in situation when applied as an instrument to a specific reality

“They have the meanings they have because of their relations to contexts of possible action and social practice. At the same time, the meaning of these actions and practices themselves depend upon the availability of a certain vocabulary of concepts and ideas” (Warnke).

Legal language as• a prominent testimony of legal history• a source of the study of society and culture

“Legal discourse includes indications how things, phenomena, processes are designated by words, what terms have been used in the creativity of law, in the practice of applying law, and in the doctrine of law” (Wagner)

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CONCLUDING QUOTATIONS

The task of translation is not simple. The words in which English law is expressed reflect the culture in which those laws and legal principles were enacted. Legal expressions, like other technical expressions, often become imbued with a meaning derived from judicial interpretation in literally hundreds of decided cases. (Croxen)

“Over the last sixty years the scope and implementation of international law has expanded at a prodigious rate. The sought-after effect – sought after by political will, but implemented by legal translation teams – is to bring the different meanings of words belonging to incommensurable systems of law into greater harmony, or, as critics of this process protest, to homogenize and standardize the idea of what the law is.” (Bellos)

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TRANSLATORS’ PRIMORDIAL ROLES

- To make decisions and choices that reflect common knowledge

- To operate within the constraints set by the principle of cultural reality in TL

Third Space:

- Mitigating solutions invoking tradition and evolution

Translation thus is not simply an act of faithful reproduction but, rather, a deliberate and conscious act of selection, assemblage, structuration, and fabrication […] In these ways translators, as much as creative writers and politicians, participate in the powerful acts that create knowledge and shape culture (Gentzler)

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BABEL’S MAIN LESSON

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It is not one of language but one of « legal pluralism » (Rod Macdonald 1997)

The meaning of a word is its use in the language (Wittgenstein)

The possibilities for meaning always exceed what a sign explicitly signifies (Lieberman)

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CONCLUDING REMARKS – JURILINGUISTICS AND ‘THIRD SPACE’

LEGAL INDETERMINACY is a necessary tool involves rhetorical speculation can lead to the creation of a new living reality

• To reassign meaning to words and to play with words• Core issue of legal adjudication

• Answer: • Open avenues for interpretive struggle

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MOST IMPORTANT PUBLICATIONS

Language and Culture in EU Law: Multidisciplinary Perspective, Guest edited by Susan Sarcevic – Ashgate – 2015

Ashgate Handbook of Legal Communication – Guest edited by Anne Wagner, Cheng Le and King Kui Sin - 2014.

Legal Lexicography: A Comparative Perspective, Guest edited by Mac Aodha, Asghate – 2014

Comparative Legal Linguistics: Language of Law, Latin and Modern Lingua Francas, Heikki E.S. Mattila, Ashgate - 2013

Jurilinguistics: Between Law and Language, guest edited by Jean-Claude Gémar and Nicholas Kasirer, Themis – 2005