Translation Matters

As languages are deterritorializing on an unprecedented scale, as monolingualism is being denaturalized, not least on account of the emergence of global assemblages such as the European Union, translation is materializing as never before. Everything is being translated. Yet, it remains the case that nothing is translatable. Indeed, it has become trite to observe that ‘secularism’ does not carry the same meaning as ‘laïcité’ or that ‘contract of sale’ does not mean the same as ‘Kaufvertrag’. Law, immingled as it is with language, could not have escaped this aporetic manifestation of linguistic postnationalism. Or could it? Can French law, for instance, exist in a significant manner (i.e. in the sense that it would make sense) beyond the French language? Specifically, can the German translation of an English casebook usefully account for English contract law in the German language? To move one step further, is it possible to design a law that would mean the same thing across various legal languages and that could therefore legitimately claim the status of ‘uniform’ law? Can the language of the law really unbelong, that is, detraditionalize itself? Or does it have a border, in French ‘un bord’, that would suggest an inside and an outside of it, that would entail that it can find itself, at some juncture, ‘débordé’ (or overcome), facing something like intractable alterity? But then, does legal translation need to imply (as it is reflexively assumed to do) sameness, isomorphism, commensurability and adaequatio? Could it not depart from the philological tradition and legitimately involve something other than fidelity to an original text? Is legal translation not an original work in and of itself? In this introductory chapter, I briefly address what I deem some of the most important problems arising from translation in the context of comparative legal studies. In the first part, I foreground the impossibility of translation. Contrary to unexamined assumptions, law simply cannot be faithfully translated from one language to the other. Turning to the second aspect of my argument, I claim that the comparatist must however make the impossible possible. Despite the irreducible differences across languages and cultures, the comparative lawyer cannot refrain from translation. Moreover, she must choose, among the various available strategies, an approach to translation that values the otherness of the foreign law. In my third section, I introduce the various contributions to this volume, which all offer comparatists invaluable insights into the theory and practice of translation in comparative legal studies.