Abstract
Legal national cultures have an own concept of “law”, and this has repercussions in the way each State conceives, construes, and applies international law. After examining some of these different perspectives, we will discuss how legal-diplomatic discourse is structured in the midst of the profusion of national legal discourses. We will see how legal-diplomatic discourse is the result of a complex process of international negotiations that often aims at constructive ambiguity in order to reach consensus, and obtain acceptance of a conventional text. Following, we will address how the linguistic dimension plays an important role in this process insofar as this discourse is often drafted in two or more languages, and may thus give margin to questioning on the compatibility of the contents conveyed in the different translations of the same document. Finally, we will see how resorting to translation studies will guide us in developing the topic and supplying concepts that will allow us to explore Chapter 6 on the authority of legal-diplomatic.
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Notes
- 1.
Kennedy (2000), at. 12. Still according to Kennedy, “if national law is situated in the courts and in codes, it would be difficult to imagine that international law could be something completely different. Moreover, if international means North Atlantic or GATT, then international law would focus strictly on these two agreements. If international law is defined in a military war scenario, then international law shall find its object of study in regulating warfare. In conclusion, in line with this, where international law means “the North”, international law is more concerned with trade than with conflict”. Ibid., at. 12.
- 2.
By using the phrase “national legal traditions” we mean the legal tradition established by the States through their organizations and their law. Glenn warns against misunderstanding the phrase “non-traditional societies” to mean modern or post-industrial societies based on the ideal of rationality, as opposed to the so-called “traditional societies” meaning societies lacking critical and independent thinking concerning the past. “History, with its relativizing effect, tells us, however, that we are all part of a tradition, or traditions. (…) Western societies, in spite of what is often said, are thus traditional societies, and western law is traditional law, as western lawyers often explicitly acknowledge”. Glenn (2004), at. 2–3.
- 3.
Legrand (1999), at. 11–12.
- 4.
Cohen-Tanugi establishes the difference between the American and the French model according to whether the model is founded on the rule of law or on the power of the State. Cohen-Tanugi (2007), at. 33–45. The fact that legal authority is carried out by society in its own name and against the excesses of the State, or carried out by government in defense of the State and in the name of society, has determined the way the law is perceived, created, and enforced in the United States and in France.
- 5.
“The law, in all countries belonging to the Romano-Germanic family, seems to encompass the entire legal system”, says David. However, the author adds, “for historical or sociological reasons, it may be that, in this or that country, there is a greater concern in maintaining the appearance that the law is the only element complied with when decisions are issued”. David (1998), at. 110, 108–109, respectively.
- 6.
It is by no means our intention to state that this is what actually takes place in civil law cultures, but to affirm that this is the discourse used to legitimize the exercise of authority on behalf of those representing the courts and the legislature, regardless of the transformations through which the law is undergoing due to the increasing exchange of legal experience with foreign cultures.
- 7.
Today, this is called the creative role of the court in establishing the meaning of a legal norm. The legal solution provided to a controversy would not result from a logical interpretation of the law; but from a rational operation on which the action of a series of ideological and cultural motivations are found in the judge’s ethos. In any case, David stresses “the role of case law in Romano-Germanic countries can only be defined in connection with the role of statute”. R. David, op. cit., at. 118.
- 8.
Poirier and Debruche (2005), at. 394.
- 9.
Garapon and Papadopoulos (2003), at. 51.
- 10.
R. David, op. cit., at. 108.
- 11.
D. Poirier and A.-F. Debruche, op. cit., at. 83.
- 12.
To Cohen-Tanugi, in the Anglo-Saxon tradition, “only facts really matter, as well as the creativity of lawyers”. Differently from the French legal spirit which “has a profound distaste for facts, which are by nature rebellious, and strives to classify them in preestablished categories of what it calls ‘the law’”. Le droit sans État: sur la démocratie en France et en Amérique, op. cit., at. 78. Thus, a fundamental difference between these two legal cultures comes to the surface: one is oriented by custom, the other by legal norm.
- 13.
Lótman (1998), at. 125.
- 14.
Eco (2000), at. 126.
- 15.
I. Lótman, op. cit., at. 127. The phrase “collective consciousness” conveys the idea of culture as “the collective programing of the mind that distinguishes the members of one group or category from people from another”. Hofstede (2001), at. 10.
- 16.
Ibid., at. 127.
- 17.
Quoting examples from the Russian legal experience, Lótman notes that grammars introduced “top down” in a textual culture system in fact operate as texts. In other words, in these cases, “the laws are enforced as customs”. Ibid., at. 131.
- 18.
However, Roberts notes, “recent signs have shown that ‘traditions’ norms and practices are perceived as a proud memory of a precolonial past, symbols of unity in an uncertain contemporary world”. Roberts (1998), at. 183.
- 19.
M. Chiba, “Ce qui est remis en question dans la culture juridique non-occidentale”. In: W. Capeller and T. Kitamura (dirs). Une introduction aux cultures juridiques non occidentals, op. cit., at. 249. Notwithstanding the high frequency with which the phrases “Western law” and “non-Western law” are employed, this classification oversimplifies the world’s legal systems. It assumes that the law in non-Western countries share common features that differentiate them from Western legal systems. Chiba himself warns that the notion of “non-Western law” has not been scientifically established because it comprises many meanings. Therefore, he states, “the phrase ‘non-Western law’ may mean (1) the law in non-Western countries, (2) state law in non-Western countries, (3) non-state law in non-Western societies in capitalist and socialist countries, (4) the coexistence of state law with non-state law in non-Western countries, or still (5) the legal culture in non-Western countries”. Ibid., at. 37.
- 20.
M. Khadduri, “Le droit islamique dans la culture, la structure du style de vie islamique”. In: W. Capeller and T. Kitamura (dirs). Une introduction aux cultures juridiques non occidentales, op. cit., at. 192. According to the words of the Koran, “man is the enemy of man” (Q. XX). Based on this belief, only a Supreme authority would have the power of preserving society. And given that “God bestows his sovereignty to whomever He wishes” (Q, II, 248; III, 25), it was the Prophet Muhammad the one chosen, through divine inspiration – and, in a certain way, through delegation – to be the interpreter of God’s will.
- 21.
B. Botiveau, “Le droit islamique comme ensemble de normes et de valeurs, comme savoir et techniques, comme modes de realization d’une exigence sociale de justice”. In: W. Capeller and T. Kitamura (dirs). Une introduction aux cultures juridiques non occidentales, op. cit., at. 200. Milliot and Blanc explain that Muslim law is the law that governs the followers of Islam. “The term muslim comes from the word ‘isläm’, which means submission to God. Islam is the group of all peoples that have accepted the religion revealed by Muhammad in the Koran” Milliot and Blanc (2001), at. 1.
- 22.
Fiqh corresponds to “case law”. However, despite being considered positive law, it has a special feature: it must be “inspired” by the sharî’a. The “qânûn wad’î”, which translates as the established law, and is concerned with tax, trade, military and criminal legislation. Botiveau notes that, “in the twentieth century, the term means the law ‘imported’ (wâfid) from Europe and more widely the law of the Nation-State in the form of laws and regulations. The current Islamic movements express their independence from religion, and often label this kind of law as ‘heretical’ or ‘sacrilegious’, incapable of carrying out justice”. Ibid., at. 201.
- 23.
B. Botiveau, “Le droit islamique comme ensemble de normes et de valeurs, comme savoir et techniques, comme modes de realization d’une exigence sociale de justice”. In: W. Capeller and T. Kitamura (dirs). Une introduction aux cultures juridiques non occidentales, op. cit., at. 197–198. To Milliot and Blanc, “if one brusquely considered Muslim Law anachronistic, no spiritual foundation would remain to the State. Islam has no Cromwell, or Joan of Arc, Voltaire, Goethe, Lincoln; nor the Storming of the Bastille, or Independence Day. Their heroes are the companions of the Prophet and their only classic the Koran”. Introduction à l’´étude du droit musulman, op. cit., at. 76.
- 24.
The Law of Islam assembles religion, morality and law. “There is, therefore, a close connection between the birth and formation of religion and the development of the law; it is impossible to separate them at birth”, state Milliot and Blanc. Introduction à l´étude du droit musulman, op. cit., at. 78.
- 25.
Pansier and Guellaty (2000), at. 24.
- 26.
A. Ehr-Soon Tay, “Culture Juridique Chinoise”. In: W. Capeller and T. Kitamura (dirs). Une introduction aux cultures juridiques non occidentales, op. cit., at. 206. For this reason, according to Tay, “China is not and has never been a legal culture focused on the Law. It prioritizes social relations as well as the duties resulting from them in detriment of an abstract and impersonal idea of laws and rights”. Ibid., at. 205.
- 27.
Piquet notes that the number of disputes submitted to the courts has increased lately, and that this is a result of the increasing awareness of the population of having rights and legal means to enforce these rights. But he calls attention to an exception: “the Chinese no longer fear to resort to the courts, except when the other side is perceived as being protected by the Party”. Piquet (2005), at. 65.
- 28.
Ibid., at. 207.
- 29.
Ibid., at. 218
- 30.
According to Milliot and Blanc, while interacting with interlocutors belonging to Islamic legal culture “it is necessary to respect, a appear to do so, the religious prohibitions that hamper economic processes, hinder trade relations, separate genders”. Introduction à l´étude du droit musulman, op. cit., at. 76. An example of the wrongful use of a legal code is pointed out by Cao concerning the Chinese expression “quanli”. According to Cao, the idea conveyed is “rights”, as conceived in Western political science, and introduced in China in the nineteenth century through the word “quanli”. However, this word was already used in ancient times to mean “power” (Quan) and “profit”, “interest” or “benefit” (Li), thus completely subverting the meaning intended to be attached to “rights”. To Cao, “this linguistic ambiguity may indicate a perspective ambivalence in the Chinese thinking since the two terms may not be conceptually very different to the Chinese, and not as mutually incompatible as they are usually understood in Western languages”. Cao (2006), at. 42.
- 31.
P. Legrand, op. cit., at. 119.
- 32.
R. David, op. cit., at. 4.
- 33.
Constantinesco (1998), at. 229.
- 34.
P. Legrand, op. cit., at. 23.
- 35.
Kennedy himself warns against the differences between comparatists and internationalists notwithstanding being of the opinion that they have more things in common than one could imagine. Kennedy writes “to comparatists, internationalists seem to be people more concerned with the present, relentlessly looking for lessons, ways of applying them, and solutions, and are convinced that the other was understood if he consented in being dominated. To internationalists, comparatists are considered snobbish or dilettantish, believing that society could be organized through understanding without domination”. (“Les clichés revisités, le droit international et la politique”.) In: P-M. Dupuy and C. Leben, Droit international, op., cit., at. 61.
- 36.
Ibid., at. 83.
- 37.
Romano (1975), at. 106.
- 38.
The legal identity is spurred by national legal entities. This identity teaches and reproduces the way we create the law and what we consider as being the law. In the international sphere, the idea of an identity attached to national law is responsible for reinforcing a certain feature unique to a certain State that differentiates it from the remaining sovereign entities.
- 39.
For instance, the Napoleonic Codes, as well as the ideals of the Enlightenment and of the French Revolution in favor of human rights spread across the globe and were elements that made French legal culture and values a reference to numerous national legal systems in the nineteenth century.
- 40.
“Les clichés revisités, le droit international et la politique”. In: P-M. Dupuy and C. Leben, Droit international, op. cit., at. 13.
- 41.
Ibid., at. 16. “An American international jurist considers international law a relatively stable “process” according to which reciprocal claims, whether political or legal, are made or addressed”. Ibid., at. 16.
- 42.
Jouannet (2008), at. 60–61. Cohen-Tanugi holds a different opinion. To him, in the relations between France and the United States there is a clash between two kinds of international relations practice: the American approach tends to be more legalist and the French approach privileges diplomacy and the Realpolitik. There is a difference in the kind of language. “Whereas Americans firmly believe in the superiority of legal instruments, both in the domestic and foreign environments, and take advantage of them, Europeans traditionally believe that conflicts resulting from policies related to trade, industry, technology, and strategy, actually belong to the field of diplomacy and should be solved mainly through purely political negotiations before being submitted to legal arbitration or court proceedings”. Le droit sans État: sur la démocratie en France et en Amérique, op. cit., at. 40. The author ponders, however: “legal Europe has today become a more important reality in [our] daily life than political Europe”. Ibid., at. 41.
- 43.
D. Kennedy, “Les clichés revisités, le droit international et la politique”. In: P-M. Dupuy and C. Leben, Droit international, op. cit., at. 60.
- 44.
See Kennedy, op. cit., at. 62–68. Dubrulle notes that cultural identity associated to the State is defined by geographical borders. Dubrulle (2005), at. 172. And, according to Duroselle, “from the moment a border exists, the two sovereign entities it separates, the two social groups it divides, commence to drive themselves apart in opposite directions”. Duroselle (2000), at. 77. It is important to stress, however, that “culture” and “nation” are terms that carry different meanings. The attempt to conceal this difference is corroborated by the ideological authority of the notion of “state border”, as though the geographical separation produced by it could not only separate a people from a certain State from all the peoples on Earth, but also unify this people around a so-called “national” culture, which would stand out from all the other national cultures and be placed above the remaining “minor” cultural manifestations that may be present in the same sovereign territory. To consider “culture” and “nation” as synonyms simplifies international reality in behalf of greater control over international relations. The association of these terms seems to be decisive for the very own legitimacy of international law. After all, to separate “culture” from the term “nation” can weaken the power of persuasion of the State’s legal discourse and disclose the role played by the State as not being the role of an international agent with own identity and own cultural characteristics, but by being the role of a formalist and bureaucratic apparatus, a mechanism of making law, controlled by a myriad of social and cultural groups. In such a case, the borders would not fulfill their role of being the material projection of a national project validated by domestic law.
- 45.
D. Kennedy, op. cit., at. 64–66.
- 46.
E. Jouannet, “Les visions française et americaine du droit international: cultures juridiques et droit international”. In: Droit international et diversité des cultures juridiques, op. cit., at. 48.
- 47.
Kennedy, op. cit., at. 70. The goal of creating an international economical and commercial legal system free from the political interference of the numerous governments and protected from the influence of the myriad of national legal systems, was responsible for the Sates deciding to set up a group of specialized bodies, such as the International Monetary Fund, the World Bank, and the WTO, devoted to standardizing legal terms and practices. The complexity of topics and issues being negotiated in these organizations started to increasingly require the presence of specialists to aid diplomats. This had a significant impact on traditional diplomatic culture. Specialized language used by specialists, because it is less susceptible to variations of humor and semantic subtleties than the political language employed by the States, was able to establish a standard language code that reduced the influence of culture on the negotiations.
- 48.
To Legendre, to submit oneself to written text is a profession of faith on the part of jurists that presume that “the truth corresponds to a being written”. Legendre (1983), at. 52.
- 49.
Jouannet highlights that “yes, there is a common language which is international law itself and, therefore, in this sense, it is a common embryonic culture”. E. Jouannet, “Les visions française et americaine du droit international: cultures juridiques et droit international”. In: Droit international et diversité des cultures juridiques, op. cit., at. 43.
- 50.
This discourse is also a relevant and significant manifestation for countries that do not take part in it. Thus, legal-diplomatic discourse may be studied from the viewpoint of communication (as far as the signing parties of a treaty are concerned), or from the viewpoint of signification – the perspective of a third-party country with regard to an agreement signed by other subjects of international law to which it is a third party.
- 51.
Therefore, those who are able to communicate in their field participate in the international system. This opinion is different from Aron’s, who opted for political and military criteria in detriment of communication criteria in order to define the participation of an actor in the international system. According to Aron, the essential aspect of this system would be to shape the power relations so as to eliminate Nation-States that are militarily insignificant, because only “the political units that the government of the main Nation-States take into consideration when making their calculations of force” would be full members of the international system. (R. Aron, op. cit., at 152.) The weight of this realist position is reduced if one takes into consideration the capacity of producing legal-diplomatic discourse as a criterion to determine the participation of an actor in the international system.
- 52.
In a less strict definition, legal-diplomatic discourse can include the content conveyed by international organizations. These organizations use three kinds of normative instruments: conventions, regulations for mainly technical questions, and recommendations. The normative characteristic of the latter two is questionable: their legal value is defined by the treaty. This is what takes place in the International Labour Organization for instance example. Recommendations are generally addressed to Nation-States in the form of a simple proposal that creates no legal norm. On the other hand, the power of a recommendation’s legal-diplomatic discourse is, in some international organizations, noteworthy: for example, the supremacy of community law over national law in the European Community.
- 53.
While bilateral diplomacy is characterized by the involvement of only two Nation-States, multilateral diplomacy takes place within international organizations and in international conferences.
- 54.
Kovacs (2003), at 269.
- 55.
Ibid, at 269. Flesch, points out that in international organizations only rarely are texts written by only one author: “as a general rule, it is done by ‘groups’ in which there is the contribution of drafters belonging to different languages and cultures, in detriment of, in many cases, clarity and conciseness.” Flesch (1999), at 98.
- 56.
G. Cornu, op. cit., at 317.
- 57.
Y. Delahaye, op. cit., at 28.
- 58.
P. Allott, “The concept of international law”, op. cit., at 43.
- 59.
Based on Y. Delahaye, op. cit., at 46.
- 60.
As previously mentioned, the negotiator of an international treaty usually employs words that carry an undetermined semantic load when terminological precision does not favor consensus. However, in the normative discourse of international treaties – as in all legal text – there are terms, which are extremely precise, and others that are purposely flexible. As a result, I would like to highlight that the vagueness of words is not only a feature of general language and that precision is also not only inherent to specialized legal language. The law is often based on general concepts (such as good-faith, indivisibility, etc.). The choice for excessive precision is usually found, above all, when one is employing terms belonging exclusively to the field of law (or employing terms in their legal meaning in the case of terms that also belong to general language) or when one is attempting to regulate aspects only somewhat related to the political dimension of normative discourse. On the other hand, vagueness of terms and phrases is significant in legally dealing with highly political topics or when the normative content may be better specified or defined as a result of experience.
- 61.
R. A. Roland, op. cit., at 123.
- 62.
According to Ostrower, “Numerical superiority of speakers alone has never sufficed to bring about linguistic ascendancy but does, of course, represent a significant factor. National wealth or commercial prominence is also an important element in the attainment of linguistic universality, but only in conjunction with other factors.” A. Ostrower, op. cit., at 80.
- 63.
See Hudson (1932, at 368–372). However, according to Ostrower, “there seems to be no reason to doubt that official linguistic practices could not be solved by way of treaty to eliminate the complexity of official intercommunication.” A. Ostrower, op. cit., at 781.
- 64.
Universal international organizations do not make any restrictions to the admission of new Nation-States. They are divided in organizations that have general goals, such as maintaining world peace and safety (the UN), and organizations that have specific missions, such as the World Health Organization (WHO), the International Labour Organization (ILO), the Food and Agriculture Organization of the United Nations (FAO), and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
- 65.
A. Ostrower, op. cit., at 803.
- 66.
This distinction was debated at the San Francisco Conference in 1945. On the occasion, Chinese, Spanish, French, English, and Russian were considered the official languages pursuant to Article 111 of the UN Charter. The UN Charter was translated into all of these languages, although the working languages were only English and French. Many times the official and working languages are the same, as a result of this condition the differences in the specific roles attached to each individual language disappear.
- 67.
See Article 43 do Statute of the Court.
- 68.
Article 29, § 1, Chapter VI, “Languages” of the Rules of Procedure of the CJEC reads: “The language of a case shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish or Swedish.”
- 69.
Pursuant to Article 31 of the Rules of Procedure of the CJEC, “The texts of documents drawn up in the language of the case or in any other language authorized by the Court pursuant to Article 29 of these Rules shall be authentic.”
- 70.
Take the example of the Article 29, § 2, of the Rules of Procedure of the CJEC: “The language of a case shall be chosen by the applicant, except that: (a) where the defendant is a Member State or a natural or legal person having the nationality of a Member State, the language of the case shall be the official language of that State; where that State has more than one official language, the applicant may choose between them; (b) at the joint request of the parties, the use of another of the languages mentioned in paragraph 1 for all or part of the proceedings may be authorized; (c) at the request of one of the parties, and after the opposite party and the Advocate General have been heard, the use of another of the languages mentioned in paragraph 1 as the language of the case for all or part of the proceedings may be authorized by way of derogation from subparagraphs (a) and (b); such a request may not be submitted by an institution of the European Communities.”
- 71.
Article 29, § 5, of the Rules of Procedure of the CJEC.
- 72.
G. Cornu, op. cit., at 12.
- 73.
There are countries that have established multilingualism, such as Switzerland, where, according to Article 4 of the 1999 Constitution, there are four official languages: German, French, Italian, and Romansh. This multilingualism coexists in the middle of a single legal system promoted by the Swiss state. It is not the same as what takes place in Canada, where both two official languages (Article 16 of the Constitution Act of 1982) and two different legal cultures coexist. The Canadian situation places translation – or co-drafting – at the heart of the rules that govern drafting of laws and creating a common law terminology in French and civil law terminology in English. Cf. Levert (1995), at 255 et seq. Gaudreault-DesBiens warns that linguistic barrier is one of the causes that explain “the indifference of most Canadian common lawyers with the dual legal system and their hesitation in promoting increased dialog with their civil-law colleagues in Québec.” Gaudreault-DesBiens (2007), at 114.
- 74.
G. Cornu, op. cit., at 12.
- 75.
On the contribution of translators to the different spheres of society, see Delisle and Woodsworth (1995).
- 76.
This definition is by no means the only one applicable to translation studies. According to Rey, “translation is a complex process where the source-discourse, produced by an utterance which is suppressed or absent, must be analyzed and deeply understood before being able to move, with the help of other formal laws and semantic contents, towards a new utterance, articulated based on both the source-utterance and on rules and lexical resources that are completely different from the ones in the target language.” Rey (1992), at 21. Goetschalckx, while admitting that all the definitions given to date are incomplete, makes an attempt to provide his own definition: “To translate is to recreate in a B language, – and fully and exclusively resorting to all the resources of this B language,– a text is produced in an A language that has a given content, form and emotional load, and in which each one of these three factors may vary between 0 and infinity and may be present at different levels; nevertheless, they must find in the B language the same value and the same proportions.” Goetschalckx (2003), at 271.
- 77.
The translation of spoken discourse can be done in many ways. In consecutive interpreting, the person speaking pauses periodically in order to let the interpreter convey the message from the source to the target language. In simultaneous interpreting, the interpreter speaks, from a sound-equipped interpreting booth, at the same time as the sender with a lag of only a few words. Simultaneous interpreting can also take place without the use of sound equipment. In this case, the interpreter whispers the message in the ear of the recipient. This kind of simultaneous interpreting is known as whispering or “chuchotage”.
- 78.
Translation concepts that fall outside the scope of this book include the notion of translation encompassing linguistic variations in the broadest sense, such as regional dialects, social variants (sociolects), and individual variants. We have also chosen to leave aside the concept of intralingual translation, such a paraphrases or signifier-signified relationships. This stand would probably bring confusion to Language Sciences and Translation Theory. Thus, this book is only concerned with interlingual translation.
- 79.
Hadi (1992), at 49–50, emphasis in the original.
- 80.
It is worth stressing that according to Vega, literal translation is not problematic when dealing with contents that refer to elements in the physical-natural, biological, or chemical worlds, or elements of the “the natural sciences as they are universally understood, from the perspective of positivist Western rationalism.” However, the same cannot be said of the historical and cultural world, “where languages attain the highest degrees of subtlety and differentiation.” (“La Europa futura y los problemas de la traducción”, op. cit., at 42.). According to García, “translation is not only the translation of words, but also the translation of words plus concepts (especially concepts that are paramount, although they will always be), plus culture, plus customs, and plus everything else that shape the ways of the peoples.” García (2002), at 88.
- 81.
Lederer (2002), at 24. It is important to mention the importance of the author’s opinion concerning the value of words in isolation: “A word out of context, for language that did not become message, is like a coin unspent. A 50-franc bill, while still unused, may serve to buy food, books or a train ticket; its realization however is no more than one of these possibilities. The analysis of the worth of a 50-franc bill can lead us far in its description, but will not allow us to foresee how it will be used. It is the same for words when compared to text; the knowledge of language is an elementary and essential pre-requisite for translation, but it is not its realization; only the use of language is of interest to translation.” Ibid, at 24.
- 82.
M. Lederer, “Transcoder ou réexprimer?”, op. cit., at 25. According to the author, “[…] what matters to translation is the faithfulness to what the author wants to say, it is the refusal in allowing it to be replaced by a message resulting from insufficient knowledge or a desired inflection that some other interest would possibly attribute to the utterance.” Ibid, at 23.
- 83.
Arrojo (1993), at 73–74.
- 84.
R. Arrojo, op. cit., at 19, emphasis added.
- 85.
If the goal of translation is to convey sense, it cannot be denied that translation takes place through an act of interpretation. As a result, one can state that there is no such thing as an “untranslatable” word. The absence of a certain expression capable of representing the term in another language does not mean it is impossible to translate it, rather, it means it is impossible transcode it. What is put in check is the correspondence between a word and another word in a different language; but never a correspondence between meaning and the target language, between thought and speech, between signified and signifier. “Languages fall outside of the process of translation; they are the recipient of meaning that may be conveyed in any one of them. Languages are not to be confused with sense”, explains Lederer. (“Transcoder ou réexprimer?”, op. cit., at 36.)
- 86.
J. B. White, op. cit., at 241. Reinforcing his opinion, the author states: “No sentence can be translated into another language without change”; “The meaning and identity of the original are defined in the differences we perceive in it, in what makes it strange to us. To another it will present a different set of differences, and thus be a different text, with a different meaning”; “To try to ‘translate’, in the sense of fully reproducing meaning, is to experience radical failure.” Ibid., at 250, 252 and 254, respectively. Nombela distinguishes a faithful translation from literal translation. “As far as loyalty is concerned, it is important to again point out that it does not mean the same as literalness. The translation of English legal topics into Spanish is difficult due to the disparity of the two legal systems: one, the Anglo-Saxon, is case law based; the other, the Spanish, is notably codified. To translate faithfully, respecting the abovementioned principle, will often require finding equivalents for terms that, in our language, either do not exist or have different characteristics that make any attempt to convey them in our language appear dubious. Thus, loyalty to the original obliges us to maintain the terms in the original language.” R. G. Nombela, “Sugerencias para la traducción de textos jurídicos en inglés”, op. cit., at 259.
- 87.
As Arrojo points out, “the reader of a text is not capable of protecting the original meaning of the author, because, strictly speaking, not even the author can be fully aware of all the intentions and all the variables that the production and disclosure of his text allow.” (op. cit., at 18–9). In addressing the boundaries of “fidelity”, Aubert explains that the communicative interaction carries three types of messages: “the intended message, the virtual message and the actual message. The intended message is what the author ‘wants to say’, or his communicative intention. The virtual message is a group of possible readings from the linguistic expression generated. The actual message is the one realized by the addressee, and conditioned in part by linguistic expression, in part by the knowledge and receptive intention of the recipient.” The author continues: “In the specific case of interlingual translation, a further dimension is added: The translation act takes as a starting point an actual message, that is, the message derived from the original text, as decoded by the recipient-translator, and which is converted into a new intended message (not identical to the actual message). This second intended message will be prey to the same vicissitudes of the original intended message, undergoing a new linguistic expression, in another linguistic code, and taking into account an extralinguistic framework whose potentials and limitations differ from those that governed the original text, culminating in a new virtual message that, in turn, will be apprehended as a new set of actual messages (one for each act of reception/reading).” This is why the author asserts that “one cannot not demand fidelity from something which is by definition inaccessible: the intended message of the original sender.” Aubert (1994), at 73–75, emphasis in the original) (Translation by Aubert).
- 88.
See Eco (2007), Introduction.
- 89.
J. B. White, op. cit., at 236. Still about the difference between translation and interpretation, the author states: “the difference is that the translation offers itself as a kind of substitute for the original and undertakes to have an analogous form, as the interpretation does not.” And he asks: “Is there otherwise a difference in principle between translation and interpretation? I think not: one could imagine, for example, a translation that was ‘looser’, more ‘free’, than a particular interpretation which tied itself as closely as possible to the verbal forms of the original. The heart of both is the same: the presence of two texts, two voices, and the making of a relation between them” (Ibid, at 236–237). According to Lederer, “no translation can be carried out without a minimal analysis of sense; inversely, the interpretive method is never fully realized because, in many cases, it requires the interpreter to increase his knowledge and command of language to the extent it is not always possible. The theoretical differences between the two methods are, nevertheless, so profound and have so many repercussions in practice that they are worth stressing. Linguistics has, by obligation, approached translation via language, but the problems it has detected are not translation problems, but transcoding problems. It is our opinion that it is impossible to disassociate translation operations from mental operations in general; on the contrary, the study of the normal operation of language appears to open more fruitful horizons for research in translation than the horizons offered by comparing languages”. M. Lederer, “Transcoder ou réexprimer?” op. cit., at 34–35. Seleskovitch emphatically states that “all translation is interpretation, even though all interpretation is not translation!” (D. Seleskovitch, “Interpréter un discours n’est pas traduire une langue” In: D. Seleskovitch; M. Lederer, Interpréter pour traduire, op. cit., at 112.). According to García, interpreting norms is not the task of a translator. The translation of any legal document would be, however, a starting point, which in the case of litigation “only the judge could interpret, or at least give the ultimate and final interpretation.” (“Dificultad de la traducción de textos jurídicos”, op. cit., at 92).
- 90.
J. B. White, op. cit., at 245.
- 91.
F. H. Aubert, As (in)fidelidades da tradução, op. cit., at 32, emphasis in the original. Translation by Aubert.
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de Carvalho, E.M. (2011). Legal-Diplomatic Discourse. In: Semiotics of International Law. Law and Philosophy Library, vol 91. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9011-9_5
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