26 Feb Common Law: Its Legal Translation
When translating any specialized text—whether medical, IT or legal—the translator must be extremely well versed in that field of knowledge. It’s not enough to master both languages; it’s an absolute must to have in-depth knowledge of the subject matter to do the translation justice.
In the legal field and in legal translation among major languages of the old continent and English, in particular, it is especially necessary to know the differences between the legal system of the source language and the legal system of the target language’s culture.
Although it happens that the French and Italian legal systems, or the Spanish and Portuguese legal systems, may be more or less similar, this is not the case between the legal systems of Anglo-Saxon countries, such as the United States, the United Kingdom or other Commonwealth countries, and countries whose legal system is based on Roman law, as is the case in most European countries.
A priori, Anglo-Saxon law is based on what is called Common Law and is a legal system based on tradition and custom, where the judicial decisions of courts play an important role in setting precedents that the court rulings of countries whose legal system is based on Roman law simply don’t have. The countries following the Roman tradition base their jurisprudence on the laws, all possible crimes and penalties must be legislated, and if they don’t exist in written law, they create a legal vacuum where criminals can fall through the cracks.
Judges in Roman law can interpret the law, but never amend it, and laws must be drafted as unambiguously as possible to avoid giving rise to multiple interpretations, although this is practically impossible. This calls to mind a well-known Spanish proverb that warns: every law has a loophole.
In the Common Law system, customs and judicial decisions feed the legal system itself. This makes its system much more dynamic, adapting much better to the specific circumstances and the changing times, without having to wait for legislators to pass laws on new crimes that constantly expand our criminal code.
The Common Law system is derived from customs and usage, which is why it’s so important—as we’ve seen from countless American movies—for lawyers to find prior judicial decisions that are favorable to their side in cases similar to the one they are currently working on. If at any point in history there was a judge who ruled in favor of Hudson in the case of Hudson vs. Texas, there will already be jurisprudence supporting a current verdict in the same regard. All of that, however, is meaningless in Roman law. The Romans were seriously intellectual people who liked leaving no loose ends, with everything in writing and in perpetuity. When it came to the law, the Romans wanted to know what to abide by, whether in Gaul or in Jacetania. The system sought legal stability in the entire empire through a unique yet consistent law that would endure over time throughout the Mediterranean. For the Anglo-Saxons, on the other hand, the most important consideration was the interpretation the judges made of social norms and customs—the basis of their legal system—, instead of giving priority to written law, which is the case in Roman law.
That being said, I think I’ve made it quite clear that when it comes to translating, we must tread carefully and be aware of the differences between the two legal systems and cultural differences which, in this case, could very well land us in jail.