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Can we translate our customary methods and techniques when research transports us into another legal culture?

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Cultures and legal systems other than our own have made valuable contributions to the history of written law.

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Translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.

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The Greek deity Hermes was known as “the messenger of the gods, the god of science, commerce, eloquence, and many of the arts of life.”[1]  The noun ερμηνευς or “hermeneut,” which means “interpreter,” came from the name of Hermes “in his character of tutelary deity of speech, writing, and traffic.”[2]

However, Hermes was also known as “an ingenious god” who “was skilled in trickery and deception.”[3]  The checkered[4] reputation of Hermes presaged the mixed[5] character of one of the mutual concerns of language and law[6] — interpretation.[7]

We can define interpretation as simply “[t]he action of explaining the meaning of something.”[8]  But the multiplicity of names under which we encounter interpretation demonstrates that it is not simple:

Interpretation is “a complex phenomenon” in law,[17] where the term “interpretation” possesses the sense “[a]n explanation or characterization of a text whose meaning or significance is not self-evident.”[18]  The boundaries of legal interpretation are uncertain,[19] and the versatility of interpretation is evident in the varying manifestations that we encounter among texts,[20] audiences,[21] translators,[22] judges,[23] legal systems,[24] search engines,[25] etc.

Legal researchers,[26] writers,[27] and translators[28] must not ignore the interpretation of writing.[29]  In a global environment, it is more important than ever to anticipate[30] the possible interpretations of the words[31] that we employ in research, writing, and translation.[32]

We cannot control the interpretation of our words, but we can minimize — or maximize — the possible interpretations.

[1] “In Greek mythology, a deity . . . represented as the messenger of the gods, the god of science, commerce, eloquence, and many of the arts of life.”  The Compact Edition of the Oxford English Dictionary: Complete Text Reproduced Micrographically, 1971 ed. ([New York]: Oxford University Press, 1977), s.v. “Hermes.”  Hermes was similar to the Egyptian god Thoth and the Roman god Mercury.  Bruce Murphy, ed., Benét’s Reader’s Encyclopedia, 4th ed. (New York: HarperCollins, 1996), s.v.v. “Hermes,” “Hermes Trismegistus.”

[2] The Compact Edition of the Oxford English Dictionary, s.v. “hermeneut” (diacritical marks omitted).

[3] “Hermes is an ingenious god, expert in both technology and magic.  From his birth onwards, he was skilled in trickery and deception.”  John Roberts, ed., The Oxford Dictionary of the Classical World (New York: Oxford University Press, 2005), s.v. “Hermēs.”

[4] The adjective “chequered,” also spelled “checkered,” is a metaphor that signifies “[w]ith alternations of good and bad (like the white and black squares of a chessboard).”  Shorter Oxford English Dictionary: On Historical Principles, 6th ed., s.v. “chequered”; P.R. Wilkinson, Thesaurus of Traditional English Metaphors, 2nd ed. (London: Routledge, 2002), s.v. “Chess; chequered,” K.74.  The variation in spelling reflects one of the differences between American English (“check”) and British English (“cheque”).  Bryan A. Garner, Garner’s Modern American Usage, 3rd ed. (New York: Oxford University Press, 2009), s.v. “check. A. And cheque.”

[5] Which sense of the adjective “mixed” is the most relevant here?

  • “Mingled or blended together; formed by the mingling or combining of different substances, individuals, etc.”
  • “Consisting of different or dissimilar elements or qualities; not of one kind, not pure or simple.”
  • “Containing people from various backgrounds; unrestricted.  Also, containing people of doubtful character or status.”

Shorter Oxford English Dictionary, s.v. “mixed.”

[6] “[L]aw and language share many common grounds.  Both are concerned with meaning and interpretation.”  Deborah Cao, preface to Chinese Law: A Language Perspective (Aldershot: Ashgate, 2005), viii.

[7] Writer Ambrose Bierce, for example, cynically defined an “interpreter” as “[o]ne who enables two persons of different languages to understand each other by repeating to each what it would have been to the interpreter’s advantage for the other to have said.”  Ambrose Bierce, The Devil’s Dictionary (New York: Dover Publications, [1958]), s.v. “interpreter.”

[8] Shorter Oxford English Dictionary, s.v. “interpretation.”

The English nouns “meaning” and “interpretation” are synonyms of one another in the sense “explanation.”  Christine A. Lindberg, comp., Oxford American Writer’s Thesaurus, 2nd ed. (New York: Oxford University Press, 2008), s.v.v. “meaning,” “interpretation.”  In their dictionary definitions, they once included one another as well as “signification” among their senses.”  The Compact Edition of the Oxford English Dictionary, s.v.v. “interpretation,” “meaning.”

[9] The senses of the noun “reading” include “[t]he interpretation or meaning one attaches to something; the view one takes of a situation; the rendering given to a play, a character, a piece of music, etc., as expressing the actor’s or the performer’s point of view.”  Shorter Oxford English Dictionary, s.v. “reading.”  With regard to writing, two senses are relevant here: “The process of deriving meaning from written text,” and “[a]n interpretation or meaning of an inscription or text.”  Florian Coulmas, The Blackwell Encyclopedia of Writing Systems (Oxford: Blackwell, 1999), s.v. “reading.” 

[10] The translation of a written message is often distinguished from the interpretation of an oral message:

The word “translation” refers globally to the transfer of a message from a [Source Language] to a [Target Language] or [Receptor Language], whether the languages are in written or oral form.  Such interlingual message transfer is often categorized, according to the language mode employed, as translation (written discourse) vs. interpretation (oral discourse).

Roda P. Roberts and Nancy Schweda Nicholson, “Translation and Interpretation,” in International Encyclopedia of Linguistics, ed. William J. Frawley, 2nd ed. (New York: Oxford University Press, 2003), 4:281 (emphasis omitted).

[11] Some distinguish between “interpretation” and “construction”  “with regard to how these terms apply to statutes and other types of drafting.”  Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. (New York: Oxford University Press, 2011), s.v. “interpretation . . . B. and construction.”

[12] During recent decades, the meaning of the English noun “hermeneutics” has evolved from “[t]he art or science of interpretation” to “[t]he branch of knowledge that deals with (theories of) interpretation.” The Compact Edition of the Oxford English Dictionary, s.v. “hermeneutics”; Shorter Oxford English Dictionary, s.v. “hermeneutics.”  In law, the term “hermeneutics” has been explained as “[a] theory or method of interpretation, often focusing on how the text in question was understood by contemporaries,” but “[s]ometimes the term ‘hermeneutic’ is used more loosely and more generally to refer to any search for the meaning of some text.”  Brian H. Bix, A Dictionary of Legal Theory (New York: Oxford University Press, 2009), s.v. “hermeneutics.”

[13] Hermeneutics is, or at least was, “[c]ommonly distinguished from exegesis or practical exposition.”   The Compact Edition of the Oxford English Dictionary, s.v. “hermeneutics” (emphasis omitted).  The French legal term exégèse is used in the general sense “[i]nterpretation of a text” and the more specific sense “method of interpretation of the law”:

  • 1              (sens gén.) Interprétation d’un texte ; étude critique de ses origines et de son sens.
  • 2              Plus spécifiquement, méthode d’interprétation de la loi (nommée méthode exégétique ou interprétation exégétique) dont le principe est de rechercher ce qu’a voulu dire l’auteur du texte à partir de celui-ci, du contexte, des travaux préparatoires et de l’objectif général de la loi, d’en dégager le sens d’après l’intention du législateur, afin d’en régler la portée sur la ratio legis, de manière à appliquer la règle dans la plénitude de sa raison d’être, en en faisant au besoin prévaloir l’esprit sur la lettre.

Gérard Cornu, ed., Vocabulaire juridique, rev. Marie Cornu, Marie Goré, Yves Lequette, Anne-Marie Leroyer, and Jean-Louis Sourioux, 9th ed. (Paris: Quadrige/Presses Universitaires de France, 2011), s.v. “exégèse” (format and emphasis modified; internal references omitted).

Exegesis is also an important part of the Islamic legal tradition:

The term “exegesis” in Qur’anic studies means explicating the meaning of the Qur’an in order to make the Qur’anic discourse more accessible and intelligible to the reader. . . .

The need for Qur’anic exegesis has stemmed from the Muslims’ urgent needs especially the non-Arab Muslims.

Hussein Abdul-Raof, Qur’an Translation: Discourse, Texture and Exegesis, Culture and Civilization in the Middle East (London: Routledge, [2006]), 174-75 (single quotation marks changed to double).

[14] With the sense “explanation, interpretation, comment,” one version of the noun “gloss” entered the English language during the sixteenth century CE as “a reborrowing” through Latin (“glōssa obsolete or foreign word which needs explanation”) of a Greek term that signified “obscure word, language (literally, tongue).”  Robert K. Barnhart and Sol Steinmetz, eds., Chambers Dictionary of Etymology (Edinburgh: Chambers, 2008), s.v. “gloss².”  The English noun has gained additional meanings since that time:

  • “A note inserted between the lines or in the margin of a text to explain a difficult or obscure word in the text.”
  • “A collection of explanations; a glossary.”
  • “A pronouncement about meaning; an interpretation.”

Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (St. Paul: West, 2009), s.v. “gloss.”

[15] Are the English terms “jurisprudence” and “interpretation” synonyms, at least in part?  The synonyms of the Spanish term “jurisprudencia” include “interpretación.”  María Laura Casado, [ed.], Diccionario de sinónimos jurídicos, 3rd ed. (Buenos Aires: Valletta Ediciones, 2008), s.v. “jurisprudencia.”  The oldest of the diverse senses of jurisprudencia is “[c]iencia del derecho,” but the sense “interpretación” is more current:

La palabra jurisprudencia tiene diversas acepciones.  Ciencia del derecho es la más antigua; en la actualidad, se denomina así a la “interpretación que la autoridad judicial da ordinariamente a una ley, y así se opone la jurisprudencia a la doctrina como expresión de la ciencia.”

Rafael de Pina and Rafael de Pina Vara, Diccionario de Derecho, rev. Juan Pablo de Pina García, 35th ed. (México: Porrúa, 2006), “jurisprudencia” (reference omitted).

[16] The possible synonyms of the English noun “interpretation” also include “explanation,” “clarification,” “definition,” “inference,” “conception,” “presentation,” “translation,” “transliteration,” and “paraphrase.”  Jerome Irving Rodale, ed., The Synonym Finder, rev. Laurence Urdang and Nancy LaRoche, with the assistance of Faye C. Allen et al. (Emmaus: Rodale Press, 1978), s.v. “interpretation.”

[17] “Legal interpretation is a complex phenomenon in which semantic and syntactic arguments play an important part.  Even if problems of legal interpretation cannot be resolved on the sole basis of these semantic and syntactic arguments (there are several other types of argument), they form an important element of legal interpretation.”  Heikki E.S. Mattila, Comparative Legal Linguistics, trans. Christopher Goddard (Farnham: Ashgate, 2006), 15 (reference omitted).

[18] Bix, A Dictionary of Legal Theory, s.v. “interpretation.”

[19] The boundaries between legal interpretation and other types of interpretation are uncertain:

As interpretation occurs in other fields with texts — most obviously with literature — there are questions regarding the extent to which legal interpretation is similar to, or can learn from interpretation in other fields. . . .

The debate regarding the connection, or lack thereof, between literary/artistic and legal interpretation raises general issues about interpretation that have applications to interpretation in the legal context.

 Bix, A Dictionary of Legal Theory, s.v. “interpretation.”

[20] In French law, the distinction between the systems of interpretation that are known as l’Exégèse and la Glose is explained by the text that is the object of interpretation: 

Les deux systèmes d’interprétation que sont l’Exégèse et la Glose s’expliquent par la nature spécifique des corps de législation qui les ont suscités et ne peuvent se comprendre sans s’y référer.

Marguerite Boulet-Sautel and Jean-Louis Harouel, “Glose et exégèse,” in Dictionnaire de la culture juridique, eds. Denis Alland and Stéphanie Rials (Paris: Quadrige/Lamy-Presses Universitaires de France, 2007), 765.

Although the techniques of the two forms of interpretation belong to the same family, the connections between l’Exégèse and Napoleon’s Civil Code and between la Glose and Justinian’s Corpus Juris Civilis were established in the distant past, with different political purposes, few common features, and often contradictory solutions:

La comparaison entre les deux thèmes du Code civil et de l’Exégèse, du Corpus juris [civilis] et de la Glose, n’est pas chose aisée.  Il n’existe qu’une filiation lointaine entre les deux prestigieuses codifications, celle de Justinien et celle de Napoléon.  Les finalités politiques poursuivies ont peu de traits communs, les solutions apportées sont souvent contradictoires.  À tout le moins pourrait-on relever que la science technique de l’une et de l’autre est de la même famille.

Boulet-Sautel and Harouel, “Glose et exégèse,” 767-68.

[21] According to some, “one of the sources of the richness of Islamic intellectual history . . . is the variety of interpretations provided for the same [Qur’anic] structure”:

The language of the Qur’an is synthetic and imagistic — each word has a richness having to do with the special genius of the Arabic language.  People naturally understand different meanings from the same structure.  The richness of Qur’anic language and its receptivity towards different interpretations help explain how this single book could have given shape to one of the world’s great civilizations.  The Book had to address both the simple and the sophisticated, the shepherd and the philosopher, the scientist and the artist.

Abdul-Raof, Qur’an Translation, 65 (reference omitted).

[22] Professor George Steiner noted a “symbolic” example of misinterpretation in the history of translation:

An error, a misreading initiates the modern history of our subject.  Romance languages derive their terms for “translation” from traducere because Leonardo Bruni misinterpreted a sentence in the Noctes Atticae of Aulus Gellius in which the Latin actually signifies “to derive from, to lead into”.  The point is trivial but symbolic.  Often, in the records of translation, a fortunate misreading is the source of new life.  The precisions to be aimed at are of an intense but unsystematic kind.  Like mutations in the improvement of the species, major acts of translation seem to have a chance necessity.  The logic comes after the fact.  What we are dealing with is not a science, but an exact art.

George Steiner, After Babel: Aspects of Language and Translation, 3rd ed. (Oxford: Oxford University Press, 1998), 311 (single quotation marks changed to double).

[23] “So utterly unformed is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is.”  Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” in A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann, University Center for Human Values Series (Princeton: Princeton University Press, 1998), 16 (emphasis omitted).

[24] “[L]egal interpretation forms an important source of Chinese law,” for example, but “China is quite different” in this respect from “countries that adopt the governmental structure of three divisions (legislative, executive, and judicial branch), in which the power of law interpretation is vested in the judicial branch or court system.”  Wei Luo, Chinese Law and Legal Research, Chinese Law Series 8 (Buffalo: William S. Hein, 2005), 117.  The ambiguity of Chinese laws and regulations “give[s] policy makers and government officials great flexibility in interpretation and implementation.”  Luo, Chinese Law and Legal Research, 117 (reference omitted).

[25] A search engine is a website that is designed to help us navigate the Internet by directing us to particular pages according to the content of each page, but this is not a simple process:

[M]erely pointing users to every occurrence of a keyword isn’t useful in its own right. . . . A search engine earns respect by listing pages most likely to be relevant first.  While most search engines establish the credibility of sites by determining how many other sites link to them, reliable page ranking is challenging, and leading engines such as Google and Yahoo! sort search results differently because they use different proprietary algorithms. . . . Many engines avoid the problem altogether by giving pride of place to their advertisers.

Jonathon Keats, Control + Alt + Delete: A Dictionary of Cyberslang (Guilford: Lyons Press, 2007), s.v. “search engine” (emphasis omitted).

[26] “Statutory interpretation is an important part of legal research.  Researchers must not merely find the statutes applicable to a problem, but must also find information that will help determine what the statutes mean and how they should be applied.”  Steven M. Barkan, “An Introduction to Legal Research,” in Roy M. Mersky and Donald J. Dunn, Fundamentals of Legal Research, 8th ed. (New York: Foundation Press, 2002), 8 (reference omitted).

[27] “Experience shows that complex documents poorly drafted often allow several interpretations: an outsider may understand them quite differently from what the author intended.”  Mattila, Comparative Legal Linguistics, 20.

[28] “Since the translator’s task is to select terminology that will achieve the desired results, the success or failure of a legal translation may depend on his/her ability to predict how the courts will interpret and apply the terms of the particular text.  For the purpose of legal translation, the acceptability of a potential equivalent is determined primarily by the results in practice, i.e., the legal effects.”  Susan Šarčević, New Approach to Legal Translation (The Hague: Kluwer Law International, 2000), 229.

[29] Philosopher Hans-Georg Gadamer offered this observation:

The word “hermeneutics” points back, as we know, to the task of the interpreter, which is that of interpreting and communicating something that is unintelligible because it is spoken in a foreign language — even if it is the language of the signs and symbols of the gods.  The capacity to perform this task has always been the object of possible reflection and conscious training. . . . But when it is a question of writing, the task of interpretation is quite clearly imposed.  Everything that is set down in writing is to some extent foreign and strange, and hence it poses the same task of understanding as what is spoken in a foreign language.  The interpreter of what is written, like the interpreter of divine or human utterance, has the task of overcoming and removing strangeness and making its assimilation possible.

Hans-Georg Gadamer, “Hermeneutics and Historicism (1965),” in Truth and Method, rev. ed., trans. Joel Weinsheimer and Donald G. Marshall (London: Continuum, 2006), 533.

[30] As writers, for example, we need to consider how readers will interpret our words:

All writing involves a planning stage, during which we organize our thoughts and prepare an outline of what we want to say.  Even the shortest of messages requires a moment or two of planning.  At the very least, we need to work out what our readers need to know, in order for our message to be understood.  We also need to anticipate the effect our words could have.

David Crystal, How Language Works: How Babies Babble, Words Change Meaning, and Languages Live or Die (New York: Avery, 2007), 127.

The selection of words is one way in which we can promote comprehension.  It is not always necessary to use the “terms of art” of U.S. legal language, for example, because a more comprehensible alternative is frequently available:

[N]ever assume that traditional legal expressions are legally necessary. . . . Use words and phrases that you know to be both precise and as widely understood as possible.  Rarely can you justify the little-known word on grounds that it is a term of art.

Bryan A. Garner, The Elements of Legal Style, 2nd ed. (New York: Oxford University Press, 2002), 193.

[31] “In law, words often become points of legal contention,” and “[i]n translation, due to the systemic differences in law, many legal words in one language do not find ready equivalents in another, causing both linguistic and legal complications.”  Deborah Cao, Translating Law, Topics in Translation 33 (Clevedon: Multilingual Matters, 2007), 53.  Sociologist Max Weber emphasized the interpretation of words when he criticized the empiricism of English law:

In the purely empirical conduct of legal practice and legal training one always moves from the particular to the particular but never tries to move from the particular to general propositions in order to be able subsequently to deduce from them the norms for new particular cases.  This reasoning is tied to the word, the word which is turned around and around, interpreted, and stretched in order to adapt it to varying needs, and, to the extent that one has to go beyond, recourse is had to “analogies” or technical fictions.

Max Weber on Law in Economy and Society, ed. Max Rheinstein, trans. Edward Shils and Max Rheinstein, 20th Century Legal Philosophy Series 6 (Cambridge: Harvard University Press, 1954), 202 (reference omitted).

[32] The selection of words requires countless decisions by legal researchers, writers, and translators.  During research, for example, we need to be flexible in our selection of terms when we use search engines to locate laws and legal information.  Marci Hoffman and Mary Rumsey, International and Foreign Legal Research: A Coursebook (Leiden: Martinus Nijhoff, 2008), 69.  And when we use commercial online legal research services, we need to learn the appropriate search terms, symbols, and strategy techniques.  Pat Newcombe, “Electronic Legal Research,” in Mersky and Dunn, Fundamentals of Legal Research, 545; Gail Levin Richmond, “Federal Tax Research,” in Mersky and Dunn, Fundamentals of Legal Research, 651.

As writers, we need to remember that “[t]he reader of a legal document is entitled to assume that a shift in terms is intended to signal a shift in meaning.”  Richard C. Wydick, Plain English for Lawyers, 5th ed. (Durham: Carolina Academic Press, 2005), 70.  A related complication of writing is that “the use of a word in one sense and its repetition shortly after in a different sense” can cause difficulty for the reader.  Wydick, Plain English for Lawyers, 70.

In translation, we encounter the principle of language or linguistic consistency.  Šarčević, New Approach to Legal Translation, 118; Cao, Translating Law, 127.  Here is one explanation of that principle:

The general principle of linguistic consistency is that within a statute or other legislative instrument, the same words have the same meaning and different words have different meanings. . . . Thus stylistic variation in the choice of words or patterns of expression must be avoided. . . .

In terms of translation, this entails two kinds of consistencies, that is, consistency of terms within a legal document, and consistency of terms in relation to existing or past laws.  Whenever words are repeated, their translated corresponding terms need to be employed consistently.  Any variation could introduce extra uncertainty.

Cao, Translating Law, 127.


Title of page Interpretation
Address of page
Geographic areas United States of America; China
Languages Greek; English; French; Arabic; Spanish
Terms and phrases ερμηνευς; hermeneut; interpretation; reading; translation; construction; hermeneutics; exegesis; gloss; jurisprudence; legal interpretation; word; checkered; meaning; search engine; statutory interpretation
Events Corpus Juris Civilis; Code civil (France); Quran
Publications International Encyclopedia of Linguistics; Chinese Law and Legal Research; Fundamentals of Legal Research; New Approach to Legal Translation; International and Foreign Legal Research
Authors Bryan Garner; Deborah Cao; Ambrose Bierce; Brian Bix; Gerard Cornu; Hussein Abdul-Raof; Heikki Mattila; George Steiner; Antonin Scalia; Hans-Georg Gadamer; David Crystal; Max Weber; Richard Wydick
Individuals Justinian; Napoleon Bonaparte
Deities and other sources of divine inspiration, authority, or action Hermes; Thoth; Mercury