Keywords
Legal translation
corpus linguistics
translation studies
English Language of the Law
How to Cite
Abstract
European courts and legal scholars are accustomed to construing codes that have been in place for long periods of time. In the U.S., most laws are recent enough that the meanings of their words have not changed very much over time. This, however, is not true of the Constitution, which was adopted in the late 18th century. There are debates in the U.S. about how faithful current interpreters of the Constitution should be to the original meaning of the Constitution’s language, and over what it means to be faithful to the original meaning of the Constitution’s language. Should we care about what the original drafters had in mind, or about how the public that voted on the Constitution understood the language? Scholars and judges have turned to old dictionaries for help. Now, however, corpus linguistics has entered the scene, including a new corpus of general 18th century English. In this paper, I will suggest that scholars and judges interested in the meanings of the words as then understood should put themselves in the position of lexicographers writing a bilingual dictionary that translates the terms from a foreign language
into contemporary English. Such a stance will bring out the many difficult problems in using a corpus as a means of making legal decisions today.
References
Ainsworth, Janet. 2014. Lost in Translation? Linguistic Diversity and the Elusive Quest for Plain Meaning in Law. In The Ashgate Handbook of Legal Translation (Le Cheng, King Kui and Anne Wagner, eds.), 43-55. Surrey, England: Ashgate Publishing Limited.
Baaij, Cornelis J. W. 2012(a). Fifty Years of Multilingual Interpretation in the European Union. In Oxford Handbook of Language and Law (Peter M. Tiersma and Lawrence M. Solan, eds.), pp 217-231. Oxford: Oxford University Press.
Baaij, Cornelis J.W. 2012(b). The Significance of Legal Translation for Legal Harmonization. In C.J.W. Baaij (ed.), The Role of Legal Translation in Legal Harmonization. Alphen aan den Rijn, The Netherlands: Kluwer Law International.
Baaij, Cornelis J.W. 2015. Legal Integration and Linguistic Diversity, unpublished doctoral dissertation, Faculty of Law, University of Amsterdam.
Balkin, Jack. 2011. Living Originalism. Cambridge, Mass.: Harvard University Press.
Beaupré, Michael. 1988. Litigating the Meaning of Bilingual Legislation, In Advocate’s Quarterly 9: 327-340.
Cao, Deborah. 2007. Inter-Lingual Uncertainty in Bilingual and Multilingual Law. In Journal of Pragmatics 39: 69-83.
Durant, Alan. Forthcoming. Seeing Sense: The Complexity of Key Words that Tell us What the Law Is. In Meaning and Power in the Language of Law (J. Leung and A. Durant, eds.). Cambridge: Cambridge University Press.
Dworkin, Ronald. 1988. Law’s Empire. Cambridge, Mass.: Harvard University Press.
Eskridge, William N., Jr. 2016. Interpreting Law: A Primer on How to Read Statutes and the Constitution. St. Paul, Minnesota: Foundation Press.
Fuller, Lon L. 1958. Positivism and Fidelity to Law – A Reply to Professor Hart, Harvard Law Review 71: 630-672.
Hart, H.L.A. 1958. Positivism and the Separation of Law and Morals, Harvard Law Review 71: 593-629.
Hendry, Jennifer. 2014. Legal Comparison and the (Im)possibility of Legal Translation. In Comparative Law: Engaging Translation (Simone Glanert, ed.). New York: Routledge, 87-103.
Husa, Jaakko. 2012. Understanding Legal Languages: Linguistic Concerns of the Comparative Lawyer. In The Role of Legal Translation in Legal Harmoization C.J.W. Baaij, ed.), 161-182. Alphen aan den Rijn, The Netherlands: Kluwer Law International.
Khan, Ali. 1999. The Evolution of Money: A Story of Constitutional Nullification. University of Cincinnati Law Review 67: 393-443.
Kjær, Anne Lise. 2007. Legal Translation in the European Union : A Research Field in Need of a New Approach. In Language and the Law: International Outlooks (Krzysztof Kredens and Stanislaw Gozdz-Roszkowski, eds.). Frankfurt am Main: Peter Lang.
Kjær, Anne Lise. 2015. Theoretical Aspects of Legal Translation in the EU: The Paradoxical Relationship between Language, Translation and the Autonomy of EU Law. In Susan Šarčević (ed.), Language and Culture in EU Law: Multidisciplinary Perspectives, 91-107. Surrey, England: Ashgate Publishing Limited.
Kosem, Iztok. 2016. Interrogating a Corpus. In The Oxford Handbook of Lexicography (Philip Durkin, ed.), 76-93. Oxford: Oxford University Press.
Lessig, Lawrence. 1993. Fidelity in Translation. Texas Law Review 71: 1165-1268.
Leung, Janny H.C. 2014. Translation Equivalence as Legal Fiction. In Cheng, Le, King Kui and Anne Wagner (eds.), The Ashgate Handbook of Legal Translation, 57-69. Surrey, England: Ashgate Publishing Limited.
Macdonald, Roderick A. 1997. Legal Bilingualism. McGill Law Journal 42: 119-16.
Mouritsen, Stephen C. 2010. Note, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning. Brigham Young University Law Review 2010: 1915-1978.
Phillips, James C., Daniel M. Ortner, and Thomas R. Lee. 2016. Corpus Linguistics & Original Public Meaning: A New Tool to Make Originalism More Empirical. Yale Law Journal Forum 126.
Šarčević, Susan. 2012. Legal Translation: Possible, but not Perfect. In Peter M. Tiersma and Lawrence M. Solan (eds.), The Oxford Handbook of Language and Law, 187-199. Oxford: Oxford University Press.
Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, New Jersey: Princeton University Press.
Schauer, Frederick. 2015.On the Relationship Between Legal and Ordinary Language. In Speaking of Language and Law: Conversations on the Work of Peter Tiersma (Lawrence Solan, Janet Ainsworth, and Roger W. Shuy, eds.). New York: Oxford University Press.
Slocum, BrianG. 2015. Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation. Chicago: University of Chicago Press.
Solan, Lawrence M. 2009. The Interpretation of Multilingual Statutes by the European Court of Justice. In Brooklyn Journal of International Law 34: 277-301.
Solan, Lawrence M. 2010. The Language of Statutes: Laws and their Interpretation. Chicago: University of Chicago Press.
Solan, Lawrence M. 2014. Multilingualism and Morality in Statutory Interpretation. In Language and Law/Linguagem e Direito 1: 5-21.
Solan, Lawrence M. 2016. Can Corpus Linguistics Help Make Originalism Scientific? Yale Law Journal Forum 126.
Solum, Lawrence. 2015. The Fixation Thesis: The Role of Historical Fact in Original Meaning. In Notre Dame Law Review 91: 1-78.
Stein, Mark S. 2009. The Domestic Violence Clause in ‘New Originalist’ Theory. In Hastings Constitutional Law Quarterly 37: 129-140.
Stoyanov, Dimitar. 2016. Causa and Consideration: A Comparative Overview. In CKS 2016: Challenges of the Knowledge Society. Bucharest: Nicolai Titulescu University Publishing House, available at http://ssrn.com/abstract+2819799.
Sullivan, Ruth. 2004. The Challenges of Interpreting Multilingual, Multijural Legislation. In Brooklyn Journal of International Law 29: 985-1066.
White, James Boyd. 1990. Justice as Translation: An Essay in Cultural and Legal Criticism. Chicago: University of Chicago Press.
Whittington, Keith E. 1999. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence Kansas: University Press of Kansas.
Winter, Steven S. 2001. A Clearing in the Forest: Life, Law, and Mind. Chicago: University of Chicago Press.
Zweigert, Konrad and Hein Kötz. 1996. Introduction to Comparative Law (Second Revised Edition). Oxford: Oxford University Press.
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