COMPARATIVE LAW AND LEGAL TRANSLATION: WHAT DO THEY HAVE IN COMMON, HOW ARE THEY DIFFERENT AND HOW CAN THEY BE USEFUL FOR EACH OTHER?

Currently, in the course of preparing my PhD thesis at Department of International Legal Communication , I am conducting research on the usefulness of the application of comparative law methods in legal translation.

Links between comparative law, also known as comparative legal studies, and legal translation are noticed and commented on from different points of view by authors representing both fields. Numerous statements indicate a certain overlap between the translation process and the practice of comparative law (Kielar, 1977, p. 36; Schroth, 1986; de Groot, 1987; Pieńkos, 1999, pp. 172-177; Husa, 2011, p. 224; McAuliffe, 2014; Gortych-Michalak, 2017, p. 69; Monjean-Decaudin & Popineau-Lauvray, 2019; Jopek-Bosiacka, 2019, pp. 246-249; Husa, 2022, pp. 45-54). Voices from both sides highlight need to educate translators in the field of comparative law (de Groot, 1987; Kischel, 2019, p. 12; Klabal, 2020). There is a research stream concerning terminological equivalence which includes a number of papers that contain references to comparative law (de Groot & van Laer, 2006; Jopek-Bosiacka, 2013; Kęsicka, 2014; Bielawski, 2017; Prieto Ramos, 2021; Sassani & Nassiri, 2021 ).

At the same time, one can get the impression that references to comparative law in translation studies are quite superficial. The authors do not indicate what exactly the application of comparative law in the translation process is supposed to look like. Often only selected methods or elements of comparative law theory are cited (e.g. Pommer, 2008; Jeanpierre, 2011; Kozanecka et al., 2017; Ioriatti, 2021; Skytioti, 2021). Nor is it always clear which method of comparative law was used by a particular author (e.g. Sanchez Lasaballett, 2018). In-depth theoretical analyses as well as more practical studies are rare (Soriano-Barabino, 2016; Engberg, 2017, 2020, 2021).

Numerous studies feature the functional method of comparative law (Šarčević, 1997, pp. 235-336; Galdia, 2003; Jopek-Bosiacka, 2013; Bajčić, 2017, pp. 113-115), which is associated with the concept of functional equivalence in translation. However, the literature indicates that the notions of functional equivalence in legal translation and comparative law are not necessarily identical (Doczekalska, 2013). Within the academic field of comparative law, functionalism has been the subject of disputes and criticism for over two decades (Grosswald Curran, 1998; Legrand, 2003; Graziadei, 2003; Michaels, 2006; Örücü, 2007, p. 52; Watt, 2012). Some alternative methods have also been proposed, including approaches labelled as postmodern or critical (Husa, 2015, pp. 134-135; Siems, 2018, pp. 115-146; Kischel, 2019, pp. 97-101). Other methods are, for instance, the structural method (Samuel, 2014, pp. 96-107; Husa, 2015, pp. 127-133; Monateri, 2021, pp. 8-10), quantitative approaches (Parisi & Luppi, 2012), and the contextual comparative law (Kischel, 2019, pp. 166-174).

Furthermore, it can be observed that representatives of both fields do not always understand each other. Some comparatists ignore translation (e.g. the leading textbook by Zweigert and Kötz (1998)) or associate it only with their own needs (Pozzo, 2012, pp. 94-95; Glanert, 2014, pp. 3-8; Baaij, 2014; Gémar, 2014, p. 69). Language and translation are pointed out as obstacles to comparative law research (Brand, 2009) or a source of confusion (Gutteridge, 1946, pp. 117-126; Tokarczyk, 1999, pp. 38-39). Translation scholars are, in turn, rarely interested in the more detailed methodology of comparative law.

Some authors also point to difficulties in applying comparative law by translators. These include economic factors as well as the fact that comparative legal analyses are time-consuming (Šarčević, 1997, p. 237; Biel, 2008, p. 22; Simonnaes, 2013, p. 151; Bestué, 2019, p. 143 -169). Legal and linguistic challenges related to legal translation clearly manifest themselves in the process of drafting international treaties (cf. Osiejewicz, 2016).

In the current state-of-the-art, it seems that – despite numerous references to the links between legal translation and comparative law – there is a shortage of publications comprehensively presenting the methodology of comparative law and at the same time discussing the practical aspects of using this methodology in legal translation. It is therefore reasonable to carry out a detailed review of comparative law methodology and then test the set of methods thus gleaned in terms of their usefulness for legal translation on a selected set of data. This, among other things, is the subject of my current research.

My publications related to translation and comparative law:

  • Legal transplants and legal translation: a case study of the borrowing of the U.S. limited liability partnership into the Polish legal system, “Perspectives”, 2024
  • The right to the environment? Article 4(1) of the Polish Environmental Protection Law Act from a combined comparative law and Polish-English legal translation perspective, “Comparative Legilinguistics”, 2023, nr 56, s. 195–221
  • English Translation Equivalents of Selected Polish Partnership Types Revisited from the Perspective of Comparative Law, “Lingua Legis”, 2022,  30, pp. 7–21
  • Louisiana and Quebec Terminology as a Tool in Polish-English Legal Translation, “Studies in Logic, Grammar and Rhetoric”, 2018, no. 53 (1), s. 163-176

Conferences:

  • “Language and Law – Traditions, Trends and Perspectives”, Białystok, 1-2.06.2023. Paper: Comparative Law in the Eyes of Translation Scholars. Is Legal Translation Really an Exercise of Comparative Law?
  • “I Legal SciComm Conference: Communicating Legal Research”, Coimbra,  30.11.2023. Referat:  Communicating the Methodology of Comparative Law Research in Legal Translator Training: A Gap to Be Filled