Legal Translation Challenges in Common Law Systems

The history of law has thousands of years of evolution and development of legal systems in different civilizations and cultures. From the earliest historical records to the present day, law has been a fundamental tool for establishing norms, resolving conflicts and regulating coexistence among people.

A glimpse into the past

One of the earliest documented legal systems is found in the ancient Code of Hammurabi, created in Mesopotamia around 1750 BC. This code established written laws governing different aspects of Babylonian society, such as property, commerce and justice. Throughout history, other empires and civilizations, such as ancient Egypt, Greece and Rome, also developed codified legal systems that would influence the subsequent evolution of law.

During the Middle Ages, the canon law of the Catholic Church played an important role in the regulation of European society. The Corpus Juris Civilis, compiled in the 6th century by the Byzantine Emperor Justinian, was rediscovered and had a significant impact on the revival of the study of Roman law in Europe. This laid the foundation for the development of civil law in many countries.

Time would bring the Enlightenment and the French Revolution, which together marked a period of radical changes in law. At this time, concepts such as equality (with large quotation marks, of course), liberty and individual rights were promoted. The Declaration of the Rights of Man and of the Citizen of 1789 established fundamental principles of human rights that have influenced legislation and legal systems around the world.

The 20th century saw significant advances in international law, with the creation of international organizations such as the United Nations and the International Court of Justice. These bodies sought to establish norms and resolve disputes between countries in a peaceful manner.

Today, law continues to evolve to adapt to social, technological and cultural changes. Legal systems have become more complex, addressing areas such as commercial law, labor law, environmental law and digital law, among others.

Seen in this light, the history of law is a fascinating journey in itself, spanning thousands of years. From the earliest written codes to modern legal systems, law has played a fundamental role in the organization of society, the protection of rights and the resolution of conflicts. It continues to be a dynamic force that adapts and develops to meet the challenges of the contemporary world.

But isn't there only one right?

Well, there are several types of legal law covering different areas of life and society. Civil law is the set of rules that regulate the relationships between individuals in areas such as contracts, property, inheritance and civil liability. Criminal law, on the other hand, is responsible for establishing the rules and sanctions for crimes and misdemeanors, thus protecting public order and the security of society. Labor law, on the other hand, regulates relations between employers and employees, guaranteeing labor rights and social protection. Commercial law deals with commercial transactions, commercial contracts, corporations and business regulations. Other types of law include administrative law, which regulates the actions of the public administration; constitutional law, which establishes the fundamental principles and norms of the State; and international law, which governs relations between different countries. Each of these types of law has its own set of rules and principles, and their application varies according to the context and jurisdiction in which they are found.

As can be seen, to think of law as an object of study and homogeneous applicability is more than a crass mistake, and that is why when it comes to combining it with the area of translation, it should be taken with tongs and qualified professionals should be consulted. Linked to a great extent to the act of translating legal documents, we come across a branch of law that helps us navigate the vicissitudes presented by the diverse legal systems of each country, recognizing their idiosyncratic aspects as a vehicle to understand the local context.

This is customary law, a legal system based on the customs and traditional practices of a particular community or society that, unlike written law, is codified in laws and statutes. It develops and evolves over time through the repetition of accepted practices, as well as being recognized as legal norms.

This is based on the idea that the common customs and practices of a community reflect the will and consensus of its members, and therefore must be recognized and enforced by the courts and legal authorities. Customs and practices are transmitted from generation to generation and become accepted legal rules governing various aspects of daily life, such as family relations, property, contracts and crimes.

One of its distinguishing characteristics is its flexibility and adaptability. Unlike codified law, which can be rigid and difficult to change, customary law can adapt to social and cultural changes as the community and its people evolve. This is because it is based on people's daily practice and experience, rather than on abstract rules established in advance.

The application of customary law is based on the interpretation of courts and judges, who analyze the customs and practices of the community to determine their relevance and applicability to a specific case. It is often considered proof of a custom that it has been consistently and widely followed over time.

Although this particular type of law may vary from one community to another, it shares certain fundamental principles, such as respect for tradition, equity, equality and justice. In addition, it is often complemented by written law, as communities may adopt laws and regulations to address areas where custom is insufficient or inappropriate.

More or less, customary law as a branch of law is a legal system based on tradition that ultimately defines a community. It develops and evolves over time and is applied through interpretation by the courts. It is flexible and adaptive, and seeks to reflect the consensus and will of the community in the regulation of its legal affairs.

And does that have a lot to do with translation?

Clearly. Legal translation in systems of this branch of law presents unique challenges due to the particularities of this type of legal systems based in some cases merely on custom and tradition. Unlike civil or codified law systems, where laws are written down, customary law is based on practices and customs that evolve and are transmitted orally from generation to generation. This poses difficulties for its translation and application in different legal contexts.

One of the main challenges lies in the lack of standardized legal terminology. In these systems specifically, the legal rules and principles in force are often expressed in the form of sayings, proverbs or stories that encapsulate the accumulated wisdom of the community over time. These expressions can be difficult to translate accurately and capture the appropriate legal meaning and context in another language.

In addition, the cultural and social context plays a fundamental role in their understanding and application. This set of legal rules and practices is rooted in the history, habits and beliefs of a particular community. Thus, legal translation must keep these cultural elements in mind and make sure to convey the original meaning and purpose of the legal customs, at least as closely as possible.

Another important challenge is the adaptation of customary law to modern and transnational legal systems. As societies become more globalized, it is necessary to translate and apply this type of law in different legal contexts and jurisdictions. This involves reconciling differences and understanding how legal practices can be adjusted or interpreted in a new environment in legal terms.

The lack of written documentation can also make legal translation difficult in these. Unlike codified legal systems, where laws are written and available for reference, customary law is transmitted orally and may lack comprehensive written documentation. Thus, careful research and collaboration with local experts is required to collect and properly understand what their laws are intended to convey.

In summary, legal translation in common law systems presents challenges related to terminology, cultural context, adaptation to modern legal systems and lack of written documentation. Overcoming these challenges requires a careful approach, collaboration with local experts and a thorough understanding of the particularities and history of common law systems.