Forum Summary: Law as Translation in the Complex Making of Divergent Legal Systems
What follows is a summary of the Meridian 180 forum "Law as Translation in the Complex Making of Divergent Legal Systems" (August-September 2015).
Summary by Jiaxin Zhou, Nimrah Alvi, and Damian Holden-Smith
Translation is one of the most powerful tools in cross-cultural legal scholarship, yet it is also one of the most difficult to use. As today’s legal challenges have become increasingly more complex, this difficulty is highlighted by the inability of many scholars to accurately convey their ideas across different languages. Law as Translation (“LaT”) is one new legal perspective that helps address this growing problem. LaT is important because it examines not only the translational connections between legal norms and values, but also the connections between cultural and societal orders across East Asia. This two-pronged approach addresses the very nature of interpretation and translation in legal thinking across divergent societies in ways that previous legal theories have not.
This summary focuses on three main topics discussed in the forum: the importance of LaT’s as a new legal perspective, the need for an interdisciplinary approach in legal scholarship, and the role of translation in the context of Meridian 180. When taken together, these topics help facilitate a conversation about the importance of LaT in the global legal community, and how it can apply beyond the bounds of this forum.
I. The Importance of LaT as a New Legal Perspective
Professor Ko Hasegawa (School of Law, University of Hokkaido) first introduces LaT as a broad idea, encompassing the numerous ways in which one can think about law acting as a medium for the transportation, translation, and exchange of norms and values across divergent societies. Hasegawa notes that the interaction of cultures, norms and values ultimately leads to the formation of a societal order. LaT analyzes this mixing process through two sub-perspectives, law’s infrastructure and translation of legal language and concepts, both of which will be explained below.
Translation in and of law is essential to the law’s infrastructure perspective. This forum presents two examples of this, highlighting the complications created by translation in courts practice. Professor Miyako Inoue (Department of Anthropology, Stanford University) describes how the introduction of a stenographer in post-war Japanese courts improved court efficiency. The effectiveness and impact of law’s infrastructure on the formation of law while translating court proceedings was essential in this case. Similarly, Professor Ichiro Ozaki (School of Law, Hokkaido University) describes an instance where one Japanese court interpreted the sincere “apology” from one Spanish-speaking defendant to be evading responsibility. These two examples just begin to scratch the surface of this perspective.
Considering translation in language and legal concepts reveals parallel complications. Naruhito Cho (Graduate School of Law, Hokkaido University) uses the translation of the Japanese Constitution to demonstrate this phenomenon. One passage in Article 25 of the Constitution reads as “all kokumin,” which means “all Japanese nationals.” When translated into English, however, the equivalent is “all people.” Siyi Huang (Cornell Law School) presents a similar anomaly in the transplantation of legal concepts. Huang points out that even when the word “judge” is translated in French, the word refers to the common law characteristics of a judge in the French system. She notes that while Chinese judges are deeply entrenched in local administrative systems, French judges play a more formalist role than common law judges. This structural difference highlights the problem of comparing the way judges behave in different legal systems.
In addition to the complications raised by translation, cultural clashes also lead to misunderstanding in the law. Michael Mcllwrath (Global Chief Litigation Counsel for GE Oil & Gas) illustrates this point in his example of one international mediation proceeding that failed due to a cultural clash. Here, the mediator was familiar with the national cultures involved, but lacked knowledge of the professional culture of the two parties. In this case, both the national and professional cultural clashes existed simultaneously, deepening this misunderstanding.
Another illustrative example of the adaptation of foreign laws (both Chinese and Japanese) by Taiwan in order to suit the requirements of its population demonstrates the importance of LaT. Professor Tay-sheng Wang (College of Law, National Taiwan University) describes this as a process of “localization of laws.” Wang notes that while Taiwan either transplants or accepts foreign legal concepts or systems continuously, the choice of specific legal concepts and norms actually reflects the value judgments shaped by the interests of local people and ruling groups in the political, economic, and social context of various periods. These examples both demonstrate the need for LaT as a new perspective, and as will be discussed below, also highlight the basic need for an interdisciplinary approach in legal scholarship.
II. The Need for an Interdisciplinary Approach in Legal Scholarship
LaT is affected by other disciplines as well. The operation of translation of language, concepts, cultures or norms does not simply occur in a vacuum. There are in fact attenuating and aggravating parameters that contribute to the overall impact of translation. Professor John Whitman (Department of Linguistics, Cornell University) discusses two such perameters: power and control. The impact of LaT is especially apparent in the Japanese control of translation in various domains like medicine and law during the Meiji in the 19th early 20th century. Additionally, Tzung-Mou Wu (Institutum Iurisprudentiae, Academia Sinica) notes that law has a technical and pragmatic aspect, which means that even if a term in a legal context is vague or inaccurate, legislators and actors can still use it to their advantage.
LaT is not only affected by external parameters, however. Qiu Zhaoji (School of Criminal Law, Northwest University of Politics and Law) discusses the impact that legal translation has had on the development of legal research and jurisprudence of China. He notes that Chinese jurisprudence is largely based on Western legal translation, which has only been sporadically applied within its laws. Consequently, legal study in China has been especially difficult. Here, LaT’s broad scope results in interdependence with other disciples and affects certain external parameters thus calling for an interdisciplinary approach.
On another note, there are seldom precise equivalents in any two languages. According to Naruhito Cho, one word in a given language may have several different equivalents when translated into another. As Elizabeth Mertz notes, if legal translation operates "to create equivalence among diverse and normative ideas," shifts and subtle erasures in meaning are bound to occur. What’s more, Huaihong He (Peking University Department of Philosophy) notes that one idea may be so unique to a particular culture that it cannot be accurately explained, even if there may be an equivalent way to explain it in another language. To address this problem, translators may use the terms that people are most familiar with as a substitute. Thus, it is important to “see translation as a dynamic process,” to invite the audience to “look beyond and supplement them with what is social and cultural,” Siyi Huang suggests.
Similarly, legal language often does not precisely reflect legislative intent across different cultures. Professor Wu introduces the concept of “language pragmatics,” which is derived from the field of linguistic anthropology. To illustrate this, Wu provides one example from Taiwanese colonial legislation. Written in an irrigation facilities statute, the word “公共” (gōng gòng) literally means “public and/ or common,” which is not the actual meaning legislators refer to (because in Taiwan at that time, the subject of this statute, irrigation networks, belonged to individuals and not the general public). However, considering the context of the statute (there were no irrigation networks serving the general public at all), both legislators and irrigation facilities officials could understand that individual networks were under the regulation of this statute.
According to Yu Xingzhong (Cornell Law School), this interdisciplinary approach can be broadened if one thinks of LaT as a unique jurisprudence. That is, LaT offers an alternative to mainstream jurisprudence because it helps distinguish cultural relativism from universalism, contributes to comparative legal studies, and helps in harmonizing various value systems across divergent cultures. While LaT has a broad scope in external legal scholarship, it is nonetheless important to examine its impact in the context of Meridian 180 internally as well.
III. LaT and the Role of Meridian 180
As a former translator for Meridian 180, Naruhito Cho (Graduate School of Law, Hokkaido University) shares his insight on how LaT plays a role in the translations and dialogues within the forum. Cho suggests that translation is in fact a process of (de/re) centralization. “Translation is ‘centralizing’ because the choices translators make facilitate the merger of two sets of norms, values, and meanings – those in the original language and those in the target language,” Cho says. Alternatively, the process of decentralization begins when the recipients of the translation interact and provide their own views and understandings of the word, bringing to light the different elements and meanings that the words convey. As Cho notes quite persuasively, however, decentralization will eventually lead to recentralization as scholars attempt to facilitate the infusion of these new and different perspectives through translation.
Siyi Huang expands on this idea. As Huang notes, such a platform “enables communications, corrections, clarifications, and even critiques of terms and concepts,” she says, and enriches the process of translation in a way that makes genuine understanding of legal notions and norms more possible. That is, such a platform can be seen as “in-betweens”, as it not only produces translated works, but also inspires the further exchange of ideas as discussed by Cho.
In response to Huang, Zhaoxin Jiang (School of law, Shandong University) notes that he would rather not see Meridian 180, or translation as “in-betweens.” He rather sees translation more broadly as “transformative and collaborative innovation.” Thus, LaT may facilitate better quantity and quality of translation, eventually changing the meaning of a legal “transplant.” Jiang notes that other scholars in the forum wrongly focused on disappointed or failed conversations that occurred due to the lack of common understanding of laws. To Jiang, this implies the need to rethink translation itself and see law as a conversation, not merely as a native or transplanted command.
As many of the comments point out, LaT efficiently facilitates the exchange of ideas as well as the fusion of legal norms within the Meridian 180 community. Naruhito Cho’s description of LaT highlights how language pragmatics cause a constant movement of meaning within groups such as Meridian 180. Many contributing scholars provided examples of how this process of fusing cultures, norms and values influences the ever-widening scope of LaT. Finally, LaT calls for an interdisciplinary approach that goes beyond translation, looking to social and cultural distinctions in the process of exchanging ideas. For LaT to remain influential in the law, the conversation must continue beyond this forum and across other disciplines. As all disciplines interact more and more with the global community, the need for translation cannot be avoided. Thus, the principles of LaT and examples mentioned by the authors of this forum can help shape the way concepts and ideas are translated on an interdisciplinary level. This is key not only to the success of LaT as a concept, but also to the ways in which the academic community interacts in the future.