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ABSTRACT. In this article, I discuss similarities and differences between legal trans-
lators and legal interpreters. The discussion is centred around the impact that the choice
of background assumptions as to meaning of linguistic items in legal texts has on the way
lawyers and translators conceptualise their own work, respectively. The dispute between
proponents of a strong and a weaker approach to legal meaning in legal interpretation
is presented and the relations to legal translation is investigated. By way of conclusion I
present some of the major consequences for legal translators of opting for the empirically
more easily justifiable weaker approach.
Two opposing viewpoints might be isolated when examining the way that
legal texts are conceptualised by the legal community: One point of view
has it that the legal text is an imperative, a text that in its own right presup-
poses norms and that must therefore be interpreted without recourse to
(most) contextual elements. The other point of view takes as its point of
departure the notion that legal texts are merely the raw material for the
communicative process, in which the text is supplied with its normative
character by the way the participants apply the text in the discourse. Thus,
according to the second point of view, the legal text is not normative in its
own right. Normativity is created over and over again by the way people
communicate about the text, and it may lose its normative character if it
is no longer used this way. In the following, we will have a closer look at
these two viewpoints.
Here we also see the idea of the statutory text and the words contained in it
to be autonomous to a degree that makes it possible to “enforce [them]
“Ordinary Meaning in Legal Interpretation”, in Proceedings from the conference “Law and
Language – Prospects and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris
Tukiainen (Rovaniemi: University of Lapland, 2001) (CD-ROM).
8 Ralph Christensen and Michael Sokolowski, “Wie normativ ist Sprache? Der Richter
zwischen Sprechautomat und Sprachgesetzgeber”, in: Sprache und Recht, ed. Ulrike Haß-
Zumkehr (Berlin/New York: de Gruyter, 2002), 64–79. Here pp. 66–68.
9 Supra, n. 8, at 67.
10 Lawrence M. Solan, “Ordinary Meaning in Legal Interpretation”, in Proceedings
from the conference “Law and Language – Prospects and Retrospects”, eds. Tarja Salmi-
Tolonen, Richard Foley and Iris Tukiainen (Rovaniemi: University of Lapland 2001)
(CD-ROM): 5.
380 JAN ENGBERG
not how it might be used, or what might be meant by it. Thus the dictionary
cannot solve the problem, for the rules represented in it are not normative
in this sense, but rather probabilistic. The consequence of this is that the
rules in dictionaries show uses, but they do not exclude uses.
For the assumption of context-independent meanings presented above,
this fact is fairly problematic, since its basic assumption is theoretically
and empirically proven to be false.15 But in fact, to legal interpretation as
such, the change in basic assumption does not necessarily present a major
problem. However, it does require that we give up the fiction that meaning
is actually something objective and objectifiable that exists outside of
communication. Under the (empirically more easily justifiable) assump-
tion that meaning is ONLY present in communication, the task of the
judge is actually not to discover what a specific word means, or what it
may not mean, as is implied by such standards for legal argumentation
as “the literal meaning” or “the plain meaning”.16 Rather the task is to
decide whether the use of a specific word (and meaning) by a specific
person in a specific situation and the consequent behaviour of the person
is in accordance with the rule or regulation stated to be the basis of his
action.17 This task might be categorized under the heading of searching for
the “ordinary meaning”18 of a word. The job of the judge in a court case
is thus not to find existing meanings, but to decide on meanings, to end
the meaning conflict between the parties and thus to establish the meaning
most probably intended by the utterer.19
The most important consequence of this necessary change of basic
assumptions, from the default assumption being that meanings are rule
governed, stable and thus at least to a large extent independent of contexts
and use, to the default assumption being that meanings only exist through
use and that they are constantly subject to potential change through the
impact of context and communication, is that the judge can no longer hide
behind the (objective, normative) meaning of the word, but must produce
convincing arguments for his interpretation.20 Thus for theoretical as well
as empirical reasons, the weaker language theory and the quest for the
ordinary meaning seems to be at best in accordance with what is actually
– Prospects and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris Tukiainen
(Rovaniemi: University of Lapland, 2001) (CD-ROM).
15 Supra, n. 12, at 69–70.
16 Supra, n. 14, at 3.
17 Supra, n. 12, at 76–77.
18 Supra, n. 14, at 2.
19 Supra, n. 12, at 69.
20 Supra, n. 12, at 72–77; and Supra, n. 14, at 19.
382 JAN ENGBERG
going on in legal interpretation and as well as with how this task certainly
ought to be performed in a modern legal system of a democratic state.21
21 The two authors upon whose work I have based my argumentation here, despite their
many overlapping views, still differ slightly in their view to the nature of the object sought
in legal interpretation. They agree on the context sensitivity of all meaning. But where
Solan (2001: 13–18) describes a number of ways in which the legal interpreter might
establish a rule-like ordinary meaning of a word, Christensen/Sokolowski (2002: 68–69)
totally discard the idea of rules as being constitutive of meaning in context. They talk
of meaning as a mere snapshot in the ever-ongoing process of creating meaning of the
input to the individual from the world. I take this latter view to be a philosophically-
adequate approach, but for practical purposes some recourse to meaning regularities (as
presupposed by Solan) is certainly useful. Lawrence M. Solan, “Ordinary Meaning in
Legal Interpretation”, in Proceedings from the conference “Law and Language – Prospects
and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris Tukiainen (Rovaniemi:
University of Lapland, 2001) (CD-ROM). Ralph Christensen and Michael Sokolowski,
“Wie normativ ist Sprache? Der Richter zwischen Sprechautomat und Sprachgesetzgeber”,
in Sprache und Recht, ed. Ulrike Haß-Zumkehr (Berlin/New York: de Gruyter, 2002),
64–79.
22 See for example Christiane Nord, Translation as a Purposeful Activity (Manchester:
St. Jerome, 1997).
LEGAL MEANING ASSUMPTIONS 383
Like other areas of translation, the translation of legal texts is (or ought to be) receiver
oriented.23
This statement is surprising in the light of what the same author says
only a few pages earlier (cf. citation above), since it means that she sees
legal texts as characterised by being so neatly tied into a legal commu-
nicative system that they can also only be translated as parts of the
legal communicative system. Thus, the background assumptions behind
this approach are similar to those cited above in connection with the
plain-meaning approach to legal interpretation: Legal texts and the words
contained in these texts have autonomous characteristics untouched by the
context in which they are put to use.
As in the conflict between the quest for plain or ordinary meaning in
legal interpretation, in connection with legal translation I take the idea of
23 Susan Sarcevic, “Legal Translation and Translation Theory: A Receiver-oriented
Approach”, in La Traduction juridique. Histoire, théorie(s) et pratique. Actes (Berne,
Genève: Université de Genève, Ecole de Traduction et d’Interpretation / ASTTI, 2000),
329–347. Here p. 329.
24 Reiner Arntz, “Juristisches Übersetzen zwischen Sprachvergleich und Rechtsver-
gleich”, in Saarbrücker Symposium als Euroconference. Translation and Interpretation
in Science and Technology: Models, Methodology and Machine Support. Manuskripte,
ed. Heidrun Gerzymisch-Arbogast (Saarbrücken: Universität des Saarlandes, Advanced
Translation Research Center, 2001), 5–16.
25 Pascale Berteloot, “Der Rahmen juristischer Übersetzungen”, in Recht und Über-
setzen, eds. Gerard-René de Groot and Reiner Schulze (Baden-Baden: Nomos, 1999),
101–114.
26 Suzanne Ballansat-Aebi, “ ‘Attendu que’ – französische Gerichtsurteile als Heraus-
forderung für den Übersetzer”, in La Traduction juridique. Histoire, théorie(s) et
pratique. Actes (Berne, Genève: Université de Genève, Ecole de Traduction et
d’Interpretation/ASTTI, 2000), 713–736.
27 Gerd R. Weyers, “Das Übersetzen von Rechtstexten: eine Herausforderung an die
Übersetzungswissenschaft. Betrachtungen zur deutschen Fassung des EG-Vertrags und zur
deutschen Übersetzung des niederländischen Bürgerlichen Gesetzbuches”, in Recht und
Übersetzen, eds. Gerard-René de Groot and Reiner Schulze (Baden-Baden: Nomos, 1999),
151–174.
28 Supra, n. 23, at 332.
384 JAN ENGBERG
5. C ONCLUSION
ACKNOWLEDGEMENTS
The central ideas in this article have also been presented at the symposium
“Law and Language – Prospect and Retrospect” held in Levi, Finland,
December 12–15, 2001. I want to thank the participants of that symposium
for valuable comments that have had a considerable impact on the current
version of the article. Errors and inconsistencies, however, are my sole
responsibility.