In Canada, a few groups enjoy explicit constitutional recognition, including certain official language minorities and aboriginals. In light of the constitutional history of Canada, the Supreme Court of Canada affirmed in the Reference re Secession of Quebec that the protection of minorities forms part of the constitutional order in Canada. This article explores bilingual interpretation rules as a component of language rights in Canada. It first outlines the linguistic rights of minorities in Canada and then discusses the historical development of multilingual legislation in the country. The article also considers multilingual statutory interpretation, focusing on the rules of equal authenticity and shared meaning, selective application by jurists, the conflict between language versions, and erroneous applications of the equal authenticity and shared meaning rules. It concludes with a discussion of future challenges in Canadian bilingual jurisprudence as well as the publication of bilingual judgments.
Focusing on the link between law, language, and culture, J. B. White notes that legal translation is a ‘necessarily imperfect process’. This article focuses on challenges to legal translators caused by the inherent incongruity of legal systems, cultures, and languages. It attempts to ‘demystify’ the ‘miracle’ of legal translation, showing how skilled translators with legal expertise and cultural sensitivity use language effectively to compensate for conceptual incongruity by creating ‘terminological bridges’. The article then outlines some of the basics of legal translation, with the main emphasis on the special nature of legal texts, their function, and the degree of accuracy required to achieve intercultural communication for various purposes. It also considers the role of skopos (communicative purpose) in legal translation and considers terminological problems in legally binding instruments. Like comparativists, translators need to use methods of comparative law in their search for potential equivalents and to test their adequacy by comparative conceptual analysis. The article concludes by discussing considerations about the effectiveness of multilingualism.
Robert W. Bennett
Contemporary debates about constitutional interpretation in the United States seem fixated on what is called ‘originalism’, the view that, regardless of when some constitutional issue arises, guidance for resolving it is to be sought in ‘original’ sources, those which accompanied the promulgation of the constitutional language in question. The apparent alternative is ‘living constitutionalism’, in which a large dose of judicial discretion keeps constitutional interpretation in touch with a changing world. This is seen by originalists as relegating ill-defined responsibility to the doubtful authority of the judiciary. Originalists invoke the writtenness of the Constitution, the desirability of stability in the law, specific constitutional provision for amendments as signaling the acceptable mechanism for change, and the tenuous democratic credentials of life-tenured federal judges to depict originalism as the right approach to constitutional interpretation, and living constitutionalism as misbegotten. This article provides an overview of originalism and living constitutionalism. It first discusses constitutional language and original intention before focusing on the summing problem, degrees of generality of language, degrees of generality of intentions, unforeseen problems, and constitutional amendments.
This article describes the concept of courtroom interpretation. Legal interpreting is a branch of interpreting conducted when speakers of different languages have to communicate in legal or paralegal settings. Each legal system has its own unique court procedures, legal concepts, and terms that sometimes have no equivalent in other languages. This cultural asymmetry of legal systems creates substantial interpreting difficulties. In order to interpret competently, court interpreters must be well versed in legal terminology. The role of the court interpreter is to make communication possible between speakers of different languages. A courtroom interpreter has ethical responsibilities to fulfill. The challenges to courtroom interpreting include lack of bilingual legal dictionaries, obstacles to pragmatic influence etc. Court interpreters require training, in both interpreting skills and court interpreting. Effective courtroom interpreting can only be achieved by the professionalization of interpreters through compulsory education, adequate working conditions, and professional remuneration for effective multilingual dialogue.
Cornelis J. W. Baaij
Both the treaties of the European Union (EU) and the secondary legislation from EU institutions are currently issued in twenty-three different language versions. Discrepancies between these versions both jeopardize their equal authenticity, and make a uniform interpretation and application of EU law in all EU Member States more difficult. Yet, discrepancies between language versions have come up in the case law of the European Court of Justice (ECJ). Using a statistical analysis of fifty years of the ECJ's case law, all relevant judgments between 1960 and 2010, this article sheds further light on which interpretive method the ECJ is more likely to use in the event of linguistic discrepancies as an argument to justify its interpretation of EU law. It first discusses the discrepancies between the language versions that impede the multilingual interpretation of EU law. The article then makes use of the so-called ‘legal reasoning’ methodology to analyze the ECJ's case law, and considers the ECJ's use of the teleological approach and the literal approach to discrepancies.
Brian H. Bix
Law is guidance through language, whether the language of statutes, judicial decisions, constitutional provisions, contracts, or wills. It is therefore not surprising that lawyers, judges, and legal commentators have sought whatever assistance they could find from other fields which deal with the meaning and interpretation of words: including literary theory, linguistics, and semiotics. Assistance has also been sought from philosophy of language, and the various philosophical writers on the deeper understanding of truth, meaning, and reference. However, at the end of the day, it is not clear that any of these searches have taught the legal profession useful new knowledge or methods of knowing. This article offers an overview of some of the attempts to use philosophy of language to alter or resolve questions of legal interpretation. It first considers the determinacy and indeterminacy of law, and then looks at H. L. A. Hart and the ‘open texture’ of language. The article also discusses intentionalism, originalism, textualism, and plain meaning with respect to interpretation of the U.S. Constitution, and concludes by outlining the links between politics, law, and philosophy.
This article explores dimensions of legal translation theory. It examines the rationale for legal translation, explores the definitional scope and linguistic properties of legal texts and analyses the underlying doctrinal approaches to legal translation (the ‘stretch and snap’ theme). The purpose of legal translation is to create a text that will be interpreted in the same way by legal professionals in the target legal system, as it would be in the original legal system. The aim of translation is not to erase linguistic and cultural differences, but to accommodate them, fully and unapologetically. The challenge is to convey the legal text as a fragment of a living legal system. The legal translator needs awareness of how the text functions in the source country's institutional, political, and economic context. Legal translators should be driven by one overarching objective: to provide literate rather than literal translations.
Court interpreting, in its broadest sense, involves the conversion of source language material into its closest target language equivalent in a legal context. The notion of legal context, or domain, in turn, is broadly construed by court-interpreting specialists. In fact, the term ‘court interpreting’ itself is used interchangeably with labels such as ‘judiciary interpreting’ and ‘legal interpreting’, and while many experts in the interpreting field consider the distinctions among these concepts to be fuzzy, some use only one term, ‘court interpreter’, referring to persons who conduct interpreting both in the courtroom setting as well as in other types of legal context. Court interpreters are assigned to both quasi-judicial and judicial speech events. This article examines interpreting in three contexts: police interrogations, immigration and asylum cases, and small claims courts. Within the context of immigration, it considers the more formal role of interpreters in an immigration court, as well as the less formal interpreting contexts of asylum application interviews and the immigration detention process. The article concludes by analyzing interpreting in trial courts.
Lawrence M. Solan
In legal systems throughout the world, legislatures write laws, and judges construe and apply them when a dispute arises over their interpretation. This article focuses on the nature of the language issues which cause problems in statutory interpretation, and the ways that courts tend to address them. It looks at American law, in part because American judges, who operate in the common law tradition, generally justify their decisions in written opinions, creating a body of information about interpretive arguments and techniques that makes this legal system a good laboratory for investigating these issues. After describing and illustrating some of the linguistic problems that make language inadequate to define rights and obligations without considering other values, the article discusses linguistic indeterminacies of different sorts, including syntactic ambiguity, semantic ambiguity, ambiguity of reference, and vagueness. It also examines laws whose meaning changes over time, creating a mismatch between the language and the goals of the enacting legislature, and concludes by focusing on legislative errors.