JAN ENGBERG

LEGAL MEANING ASSUMPTIONS – WHAT ARE THE

CONSEQUENCES FOR LEGAL INTERPRETATION
AND LEGAL TRANSLATION?

ABSTRACT. In this article, I discuss similarities and differences between legal trans-
lators and legal interpreters. The discussion is centred around the impact that the choice
of background assumptions as to meaning of linguistic items in legal texts has on the way
lawyers and translators conceptualise their own work, respectively. The dispute between
proponents of a strong and a weaker approach to legal meaning in legal interpretation
is presented and the relations to legal translation is investigated. By way of conclusion I
present some of the major consequences for legal translators of opting for the empirically
more easily justifiable weaker approach.

1. I NTRODUCTION – L EGAL I NTERPRETATION AND L EGAL

T RANSLATION – T WO S IDES OF THE S AME C OIN ?

When performing communicative activities in the legal field, interpreting

texts (be it statutes or other kinds of legal sources, contracts or any kind
of legally relevant utterances traditionally looked upon in connection with
court cases) is a key issue. Interpreting texts in this context is predomi-
nantly a quest for the contextual meaning of the texts in order to discover
what consequences the text has in the legal situation in which the interpre-
tation is carried out. It is not only the interpretation carried out by a judge
in court that belongs to this group of communicative legal activity; legal
translation, which will be a central issue in this article, also falls under
this description. By way of definition, I take legal translation to be trans-
lation of texts for legal purposes and in legal settings, i.e., a functionally
– and situationally – defined translation type. This definition is slightly
different from the traditional definitions that scholars in the field base their
work upon, as will be shown later. The most important consequence of
this definition lies in the fact that not only prototypical legal texts like
statutes and contracts, but also restaurant bills and other texts to be used as
evidence, for example in a court case, might be subject to legal translation
in this view.
Legal translation in this sense normally has as its purpose the creation
of a target-language text that is interpreted in the same way by readers
International Journal for the Semiotics of Law
Revue Internationale de Sémiotique Juridique 15: 375–388, 2002.
© 2002 Kluwer Law International. Printed in the Netherlands.
376 JAN ENGBERG

familiar with the target-language legal system as the source-language text

is interpreted by readers familiar with the source-language legal system.1
Thus the work of the legal translator necessarily shares features with the
work of the interpreting legal specialist, for in order to create such a target-
language text, the translator must be able to assess the different possible
legal interpretations laid down in the source-language legal text. He must
be able to assess not only one of the possible contextual meanings of a
text, but the relevant legal meaning of the text, i.e. the meaning that a
legal practitioner would reach when reading the text. Pelage2 sees so much
overlap in the work of lawyers and translators that he thinks they are posi-
tioned in the same area (the area of language) and faced with the same
problem (the problem of finding the contextual meaning of elements in a
text). However, he sees a difference between the two in the way that the
lawyer must interpret the text fully and completely in order to see whether
it is applicable to the actual situation under scrutiny, while the translator,
on the other hand, can concentrate more on the concrete written text at
hand and must primarily see to it that the target text has the same meaning
potential as the original text. He does not (or at least in many cases not)
have to check all details of the evolution of the contextual meaning of an
element of a text to be translated.3 Concerning differences in the work of
legal interpreting specialists and translators, Weyers4 states that a major
difference might be seen in the fact that in their interpretation, lawyers
tend to take their point of departure in the meaning of words, whereas
translators rather take larger textual units like the sentence or the section
as their point of departure.5

1 Gerd R. Weyers, “Das Übersetzen von Rechtstexten: eine Herausforderung an die

Übersetzungswissenschaft. Betrachtungen zur deutschen Fassung des EG-Vertrags und zur
deutschen Übersetzung des niederländischen Bürgerlichen Gesetzbuches”, in Recht und
Übersetzen, eds. Gerard-René de Groot and Reiner Schulze (Baden-Baden: Nomos, 1999),
151–174. Here p. 152.
2 Jacques Pelage, “L’apport de la traductologie au droit”, Terminologie et Traduction 3
(2001), 18–29. Here p. 21.
3 Supra, n. 2, at 23.
4 Supra, n. 1, at 151.
5 Supra, n. 1, at 171. Weyers demonstrates that this preference is reflected, for example,
in a recent translation of the Dutch Civil Code into German carried out by linguistically
skilled lawyers, where in the area of terminology functional equivalents are preferably
used, whereas in the area of phraseology, syntax and textual structure the translators adhere
fairly closely to structures of the source text, even where this is not at all necessary from the
point of view of the purpose of the target text. Supporting Weyer’s claim are the findings
reported by Solan (2001: 2), who examined all cases under the federal bribery statute and
the federal perjury statute, and found disputes over the applicability of more or less every
word in the two statutes, but only one case over a syntactic issue. Thus, interpretation
 LEGAL MEANING ASSUMPTIONS 377

Still, the overlap in the work of lawyers and translators is extensive

enough to make it important for the interpreting work in both fields to
determine the basic assumption as to the status of the textual elements
in legal texts upon which interpretation is based: Is the legal meaning of
texts seen as a stable and inherent feature of the text that the interpreter
just has to dig out of the text (metaphor: “find the right meaning”)? Or
is legal meaning of texts a fluid and dynamic entity, subject to constant
change with the development of society and according to the background,
objectives and arguments of the individual interpreting lawyer (metaphor:
“establish the intended meaning”)? The answer to these basic questions is
important to the way interpretation is carried out, especially to the choice
of contextual factors the interpreter can include.
In this article, I will contrast these two approaches represented in legal
interpretation today. For this purpose I will concentrate upon the following
questions:
• Which status do textual elements have when determining the actual
content of a provision? Are the text and the elements of which
it consists as such semantically stable and thus normative, or is
normativity only a contextual feature?
• What are the consequences of the answers to these questions for
legal interpretation and for legal translation? To what extent are the
consequences the same? If they are not, where then are the differ-
ences, and what do they tell us about the difference in the work of
legal interpreters and legal translators?
I will start out by examining two different approaches to the status of
meaning in legal texts (section 2). I will then discuss the recent devel-
opment in studies of legal translation seen in the light of the presented
approaches to meaning (section 3). And I will conclude by focusing on
the consequences for legal translation of following the newest of the two
approaches presented in section 2, namely the one characterised by the
metaphor “establishing the intended meaning”.

problems based on syntactical or other kinds of structural features do not seem to be

within the scope of lawyers’ challenges. For a discussion of the relevance of structural
features to the interpretation of texts, see Visconti (2000: 42–47). Lawrence M. Solan,
“Ordinary Meaning in Legal Interpretation”, in Proceedings from the conference “Law
and Language – Prospects and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and
Iris Tukiainen (Rovaniemi: University of Lapland, 2001) (CD-ROM). Jaqueline Visconti,
“La traduzione del testo guiridico: problemi e prospettive di ricerca”, Terminologie and
Traduction 2 (2000), 38–66.
378 JAN ENGBERG

2. M EANING IN L EGAL T EXTS

Two opposing viewpoints might be isolated when examining the way that
legal texts are conceptualised by the legal community: One point of view
has it that the legal text is an imperative, a text that in its own right presup-
poses norms and that must therefore be interpreted without recourse to
(most) contextual elements. The other point of view takes as its point of
departure the notion that legal texts are merely the raw material for the
communicative process, in which the text is supplied with its normative
character by the way the participants apply the text in the discourse. Thus,
according to the second point of view, the legal text is not normative in its
own right. Normativity is created over and over again by the way people
communicate about the text, and it may lose its normative character if it
is no longer used this way. In the following, we will have a closer look at
these two viewpoints.

2.1. The legal text as an imperative

If the legal text is seen as an imperative, then it has in its own right a
normative impact on the area and actors that it regulates. This viewpoint
is the traditional background assumption behind the role of the statute
in code-based legal systems like those of Germany or France. Here, the
statute plays a central role as the overall norm, whereas case law is seen
only as a secondary source, because ideally case law is merely to be the
application of the norms in the concrete situation and not a development
of the law. Ideally, the court is merely “la bouche de la loi”, i.e., a kind of
interpreting machine making objective and non-arbitrary decisions.6
If the normative character of the text is thus seen as an inherent feature
of the legal texts, this has important repercussions for the way linguistic
elements in such texts are conceptualised, for in order for the text to be
autonomously normative, the linguistic elements that it consists of must
also be supplied with fairly fixed and given meanings with normative
features.7 Only in this way can the text be normative in its own right,
6 This ideal is, among other things, reflected in the fact that, for example, in German and
Danish judgements the sentencing judges are not textually present, as they traditionally are
in England and the US. Passive voice is used frequently, and if active voice is applied, the
agent is the court and not the individual judge (Engberg 1997). Jan Engberg, Konventionen
von Fachtextsorten. Kontrastive Analysen zu deutschen und dänischen Gerichtsurteilen
(Tübingen: Narr, 1997).
7 Christensen/Sokolowski (2002: 65) discusses this approach as the “strong language
theory”. Solan, talking about the same phenomenon under the name of “plain meaning
approach” (Solan 2001: 3 and below), points to the socalled “New Textualism” propagated
by Justice Scalia as a recent example of this approach (Solan 2001: 5). Lawrence M. Solan,
 LEGAL MEANING ASSUMPTIONS 379

without recourse to the actual situation in which it is used. It is on the basis

of this feature that I stated above that the suitable metaphor for legal inter-
pretation in this approach is “finding the meaning”, for the meaning has
been laid down in the text, it exists in its own right within the autonomous
text, and it only has to be dug out by the legal interpreter.
Furthermore, this view presupposes a high degree of stability of mean-
ings in linguistic elements. The meaning of a word must be fairly insensi-
tive to the influence of context, otherwise the linguistic element cannot
contribute to the textual meaning in the necessary way.
The rationale behind this line of thought is to be sought in the ideal
mentioned above, under the title of the judge as a mere “bouche de la
loi”: Sentences imposed by the court are not subjective decisions in the
discretion of the individual judge or judges, but neutral and objective
decisions taken on the basis of facts existing independently of the deciding
judge or judges. Therefore, interpretation of meanings in texts should be
based on sources lying outside the mind of the judge, and this makes it apt
to construe the legal text as an autonomous entity carrying its normative
meaning in its own right.8 An important methodological consequence of
following this approach is that when interpreting legal texts one important
instrument is to look for normatively prescribed meanings, for example, in
dictionaries.9
The ideal of the autonomous normative text is traditionally closely
connected to the code-based continental legal systems. However, this ideal
is not limited to such systems. Solan10 cites a 1917 United States Supreme
Court decision (Caminetti v. United States) for the following statement:
It is elementary that the meaning of a statute must, in the first instance, be sought in
the language in which the act is framed, and if that is plain, and if the law is within the
constitutional authority of the law-making body which passed it, the sole function of the
courts is to enforce it according to its terms.

Here we also see the idea of the statutory text and the words contained in it
to be autonomous to a degree that makes it possible to “enforce [them]
“Ordinary Meaning in Legal Interpretation”, in Proceedings from the conference “Law and
Language – Prospects and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris
Tukiainen (Rovaniemi: University of Lapland, 2001) (CD-ROM).
8 Ralph Christensen and Michael Sokolowski, “Wie normativ ist Sprache? Der Richter
zwischen Sprechautomat und Sprachgesetzgeber”, in: Sprache und Recht, ed. Ulrike Haß-
Zumkehr (Berlin/New York: de Gruyter, 2002), 64–79. Here pp. 66–68.
9 Supra, n. 8, at 67.
10 Lawrence M. Solan, “Ordinary Meaning in Legal Interpretation”, in Proceedings
from the conference “Law and Language – Prospects and Retrospects”, eds. Tarja Salmi-
Tolonen, Richard Foley and Iris Tukiainen (Rovaniemi: University of Lapland 2001)
(CD-ROM): 5.
380 JAN ENGBERG

according to [their] terms”. Thus, rather than being an idea connected

to different types of radically different legal systems, the idea of the
autonomous normativity of legal texts and words contained in such texts is
connected to a specific view of language, independent of the legal system
in which the language is used.11

2.2. The legal text as raw material

As already stated above, the literature also reflects a point of view opposing
that presented in the previous section, namely the idea that normative
texts are not normative (and thus do not have normative meanings) in
their own right, but only as a consequence of the way they are handled
in communication.12
This basic assumption of the weaker meaning theory challenges
primarily the idea of the autonomous text with its context-independent
meaning and thus the rationale of the stronger theory shown in section 2.1,
namely, that interpretation of legal texts is an objective task carried out
without influence from the interpreter. Proponents of the weaker theory
attack primarily the (normally not explicitly stated) necessary prerequisite
of the stronger theory, namely, that in order for words to have autonomous
meanings, it would be necessary to establish exact and stable context-
independent rules for the use of these words and for the limits to their use.13
Only such rules can guarantee the necessary stability of interpretation.
Legal experts supporting the idea of context-independent meanings apply
dictionaries for this task, presupposing dictionaries to constitute rules to be
followed by all language users14 But dictionaries are hardly good instru-
ments for this task, as they can primarily show how a word has been used,
11 Looking at this aspect from a systemic-functional point of view, Wagner (2001: 7)
shows with reference to many French scholars and to her own empirical studies of English
legal texts that the aspect of fluidity in meaning in legal discourse is a reflection in textual
regularities of language- and text-external features present in the French as well as in the
English legal system. It is thus not dependent on a specific legal system and its basic
assumptions. Anne Wagner, “Le discours juridique de la Common Law: jeu de strategie”,
in Proceedings from the conference “Law and Language – Prospects and Retrospects”,
eds. Tarja Salmi-Tolonen, Richard Foley and Iris Tukiainen (Rovaniemi: University of
Lapland, 2001) (CD-ROM).
12 Christensen/Sokolowski (2002), 66–71. They call this approach “the weak language
theory”. Ralph Christensen and Michael Sokolowski, “Wie normativ ist Sprache? Der
Richter zwischen Sprechautomat und Sprachgesetzgeber”, in Sprache und Recht, ed.
Ulrike Haß-Zumkehr (Berlin/New York: de Gruyter, 2002), 64–79.
13 Supra, n. 12, at 67–68.
14 See Solan (2001), 15 for details on the important role played by dictionaries in
US Supreme Court decisions in the late 20th century. Lawrence M. Solan, “Ordinary
Meaning in Legal Interpretation”, in Proceedings from the conference “Law and Language
 LEGAL MEANING ASSUMPTIONS 381

not how it might be used, or what might be meant by it. Thus the dictionary
cannot solve the problem, for the rules represented in it are not normative
in this sense, but rather probabilistic. The consequence of this is that the
rules in dictionaries show uses, but they do not exclude uses.
For the assumption of context-independent meanings presented above,
this fact is fairly problematic, since its basic assumption is theoretically
and empirically proven to be false.15 But in fact, to legal interpretation as
such, the change in basic assumption does not necessarily present a major
problem. However, it does require that we give up the fiction that meaning
is actually something objective and objectifiable that exists outside of
communication. Under the (empirically more easily justifiable) assump-
tion that meaning is ONLY present in communication, the task of the
judge is actually not to discover what a specific word means, or what it
may not mean, as is implied by such standards for legal argumentation
as “the literal meaning” or “the plain meaning”.16 Rather the task is to
decide whether the use of a specific word (and meaning) by a specific
person in a specific situation and the consequent behaviour of the person
is in accordance with the rule or regulation stated to be the basis of his
action.17 This task might be categorized under the heading of searching for
the “ordinary meaning”18 of a word. The job of the judge in a court case
is thus not to find existing meanings, but to decide on meanings, to end
the meaning conflict between the parties and thus to establish the meaning
most probably intended by the utterer.19
The most important consequence of this necessary change of basic
assumptions, from the default assumption being that meanings are rule
governed, stable and thus at least to a large extent independent of contexts
and use, to the default assumption being that meanings only exist through
use and that they are constantly subject to potential change through the
impact of context and communication, is that the judge can no longer hide
behind the (objective, normative) meaning of the word, but must produce
convincing arguments for his interpretation.20 Thus for theoretical as well
as empirical reasons, the weaker language theory and the quest for the
ordinary meaning seems to be at best in accordance with what is actually

– Prospects and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris Tukiainen
(Rovaniemi: University of Lapland, 2001) (CD-ROM).
15 Supra, n. 12, at 69–70.
16 Supra, n. 14, at 3.
17 Supra, n. 12, at 76–77.
18 Supra, n. 14, at 2.
19 Supra, n. 12, at 69.
20 Supra, n. 12, at 72–77; and Supra, n. 14, at 19.
382 JAN ENGBERG

going on in legal interpretation and as well as with how this task certainly
ought to be performed in a modern legal system of a democratic state.21

3. T HE R ELATIONS TO T RANSLATION S TUDIES

In this section, I will establish relations between the two opposing

approaches to legal interpretation presented above and the development
in the area of studies of legal translation, where a similar development
can be seen, in part based on the same basic assumptions concerning
meaning.
General translation studies in the last several decades have moved from
concepts taking the source text and its structures as the guiding light and
the standard upon which every translation is to be measured, to concepts
focusing more on the target text and the target-text receiver when deter-
mining how to translate a text and leaving the source text more in the
background. Thus, recent models emphasize the target text and its commu-
nicative situation when deciding how to translate or when assessing the
quality of an actual translation.22 The translation is seen as an independent
text which should be capable of functioning on its own in the new situation
without necessary recourse to the source text.
In modern work on legal translation, this attitude is also widely
supported:

21 The two authors upon whose work I have based my argumentation here, despite their
many overlapping views, still differ slightly in their view to the nature of the object sought
in legal interpretation. They agree on the context sensitivity of all meaning. But where
Solan (2001: 13–18) describes a number of ways in which the legal interpreter might
establish a rule-like ordinary meaning of a word, Christensen/Sokolowski (2002: 68–69)
totally discard the idea of rules as being constitutive of meaning in context. They talk
of meaning as a mere snapshot in the ever-ongoing process of creating meaning of the
input to the individual from the world. I take this latter view to be a philosophically-
adequate approach, but for practical purposes some recourse to meaning regularities (as
presupposed by Solan) is certainly useful. Lawrence M. Solan, “Ordinary Meaning in
Legal Interpretation”, in Proceedings from the conference “Law and Language – Prospects
and Retrospects”, eds. Tarja Salmi-Tolonen, Richard Foley and Iris Tukiainen (Rovaniemi:
University of Lapland, 2001) (CD-ROM). Ralph Christensen and Michael Sokolowski,
“Wie normativ ist Sprache? Der Richter zwischen Sprechautomat und Sprachgesetzgeber”,
in Sprache und Recht, ed. Ulrike Haß-Zumkehr (Berlin/New York: de Gruyter, 2002),
64–79.
22 See for example Christiane Nord, Translation as a Purposeful Activity (Manchester:
St. Jerome, 1997).
 LEGAL MEANING ASSUMPTIONS 383

Like other areas of translation, the translation of legal texts is (or ought to be) receiver
oriented.23

Similar statements can be found in the majority of recent papers and

books on the subject, like for example, Arntz,24 Berteloot,25 Ballansat-
Aebi26 and Weyers.27 However, there is also, to a certain extent in the
same works, a contradictory tendency in the field to nevertheless adhere
partly to the former source-text orientation, merely due to what is said to
be the special character of the legal texts. One example of this is found in
Sarcevic.
When selecting a translation strategy for legal texts, legal considerations must prevail.28

This statement is surprising in the light of what the same author says
only a few pages earlier (cf. citation above), since it means that she sees
legal texts as characterised by being so neatly tied into a legal commu-
nicative system that they can also only be translated as parts of the
legal communicative system. Thus, the background assumptions behind
this approach are similar to those cited above in connection with the
plain-meaning approach to legal interpretation: Legal texts and the words
contained in these texts have autonomous characteristics untouched by the
context in which they are put to use.
As in the conflict between the quest for plain or ordinary meaning in
legal interpretation, in connection with legal translation I take the idea of
23 Susan Sarcevic, “Legal Translation and Translation Theory: A Receiver-oriented
Approach”, in La Traduction juridique. Histoire, théorie(s) et pratique. Actes (Berne,
Genève: Université de Genève, Ecole de Traduction et d’Interpretation / ASTTI, 2000),
329–347. Here p. 329.
24 Reiner Arntz, “Juristisches Übersetzen zwischen Sprachvergleich und Rechtsver-
gleich”, in Saarbrücker Symposium als Euroconference. Translation and Interpretation
in Science and Technology: Models, Methodology and Machine Support. Manuskripte,
ed. Heidrun Gerzymisch-Arbogast (Saarbrücken: Universität des Saarlandes, Advanced
Translation Research Center, 2001), 5–16.
25 Pascale Berteloot, “Der Rahmen juristischer Übersetzungen”, in Recht und Über-
setzen, eds. Gerard-René de Groot and Reiner Schulze (Baden-Baden: Nomos, 1999),
101–114.
26 Suzanne Ballansat-Aebi, “ ‘Attendu que’ – französische Gerichtsurteile als Heraus-
forderung für den Übersetzer”, in La Traduction juridique. Histoire, théorie(s) et
pratique. Actes (Berne, Genève: Université de Genève, Ecole de Traduction et
d’Interpretation/ASTTI, 2000), 713–736.
27 Gerd R. Weyers, “Das Übersetzen von Rechtstexten: eine Herausforderung an die
Übersetzungswissenschaft. Betrachtungen zur deutschen Fassung des EG-Vertrags und zur
deutschen Übersetzung des niederländischen Bürgerlichen Gesetzbuches”, in Recht und
Übersetzen, eds. Gerard-René de Groot and Reiner Schulze (Baden-Baden: Nomos, 1999),
151–174.
28 Supra, n. 23, at 332.
384 JAN ENGBERG

autonomous semantic characteristics in linguistic elements to be highly

questionable. Consequently, I would opt for the background assumptions
underlying the ordinary meaning view to be applied here. In Engberg29
I have shown some of the considerations the translator must take into
account in two different translational situations, i.e. when translating a
judgement for informational purposes, on the one hand, or as authori-
tative translation for use in court on the other, thus suggesting a division
between translation for legal vs. for non-legal purposes rather than a divi-
sion between the translation of legal vs. non-legal texts (cf. the definition
given in section 1). Differences occur especially in the degree to which it is
necessary to adhere to the source text structure etc. The relevant strategic
considerations are not of a legal nature, but rather depend on the choice of
either a legal or a non-legal setting for the target text. The same would be
the case if a judgement in a terrorist case was translated for publication in
a newspaper. In this case, too, legal considerations would have fairly little
impact on the choice of global or local strategies.30
Obviously, the same kind of difference in background assumptions that
was at stake in the conflict presented in section 2 is also influential in a
similar dispute in the area of translation of legal texts. The different back-
ground assumptions are reflected in the answer to the question: What is
the most prominent feature when deciding the strategy to be used in trans-
lation, the text (legal vs. non-legal texts) or the purpose of the translation
(legal vs. non-legal translation)? In legal interpretation as well as in legal
translation, theoretical considerations as well as empirical studies indicate
that the context-oriented, weaker theory of meaning must prevail. In the
last section of this article, I will consider the consequences of this preva-
lence, both for translation methodology and for the norms for translation
for legal purposes.

29 Jan Engberg, “Übersetzen von Gerichtsurteilen: Der Einfluß der Perspektive”, in

Übersetzen von Rechtstexten: Fachkommunikation im Spannungsfeld zwischen Rechtsord-
nung und Sprache, ed. Peter Sandrini (Tübingen: Narr, 1999), 83–102.
30 For a more thorough discussion of the dispute and more references to relevant liter-
ature, see Engberg, Jan, “Über die Notwendigkeit, bei der Beurteilung von Übersetzung-
squalität Linguistik zu betreiben”, in Linguistik – Übersetzungswissenschaft – Deutsch als
Fremdsprache, eds. Peter Colliander, Doris Hansen and Ingeborg Zint (Heidelberg: Groos
(submitted for publication).
 LEGAL MEANING ASSUMPTIONS 385

4. C ONSEQUENCES FOR T RANSLATION AND FOR THE R ELATION

BETWEEN L EGAL T RANSLATORS AND L EGAL I NTERPRETERS

In the following, I will present three important consequences of the discus-

sions so far in this article. The first consequence for legal translators is
that the original text as an autonomous and stable entity with a specific
meaning to guide the translator disappears. This means that the translator
must be aware of the fact that he cannot depend solely on context-free
knowledge of what specific words mean in legal texts. He must at all
times discover what specific words and terms mean in the concrete situ-
ation, depending on such factors as time and text author. Absolute stability
disappears, and the translator must take into consideration the fact that
concepts may change their meaning according to the way in which they
are used. Thus, the translator needs a well-developed awareness of the
communicative indicators of changes in the meaning of specific words,
if word meaning is a dynamic entity subject to change in connection with
the argumentative battle concerning meaning.31 The second consequence
(which is actually a consequence of the one mentioned above) is that a
space is created for the thinking and creative translator, even in the area
of official legal translation. I see two advantages of this change in view
for the legal translator. For one thing, this approach to meaning has as its
consequence that the translator must conceptualise himself, and must be
conceptualised by those for whom he works, as an artist, not only when
translating literature, but also when he is working in the area of legal
translation, for his work cannot be seen as a mere dictionary exercise or as
mere reproduction if the meaning he is looking for is not in the dictionary,
but at best may be constructed on the basis of dictionaries and of other
sources of legal knowledge.
The second advantage lies in the fact that through this change in view,
the scientific description of legal translation and the translational norms
deduced from this description fit the reality of legal translation much better
than is the case of the traditional framework. For example, Sarcevic32
31 For examples of this argumentative battle and the change in meaning, see
Schwarzenegger (2000) (on the concept of Mord (murder) in Swiss law) and Busse (1991)
(on the development of the concept of Gewalt (violence) in German penal law). Christian
Schwarzenegger, “Skrupellos und verwerflich! Über Emotionen und unbestimmte
Rechtsbegriffe im Strafrecht”, Schweizerische Zeitschrift für Strafrecht 118/4 (2000), 349–
377. Dietrich Busse, “Der Bedeutungswandel des Begriffs ‘Gewalt’ im Strafrecht: Über
institutionell-pragmatische Faktoren semantischen Wandels”, in Diachrone Semantik und
Pragmatik: Untersuchungen zur Erklärung und Beschreibung des Sprachwandels, ed.
Dietrich Busse (Tübingen: Niemeyer, 1991), 259–275.
32 Susan Sarcevic, New Approach to Legal Translation (The Hague/London/Boston:
Kluwer, 2000), 181–194.
386 JAN ENGBERG

describes how modern Canadian official translators of statutes in particular

rely much more on the style and the conventional generic features of the
language of the target culture than is possible according to the traditional
norms for legal translation, and their texts are accepted as official versions
by the relevant authorities.
So much for the consequences for the translator, which are dependent
primarily on the similarities between the legal translator and the legal
interpreter. These similarities are not surprising, as they are due to the
fact that both legal translators and legal interpreters are engaged in finding
and reflecting meanings in text, as stated by Pelage.33 But there is still at
least one important difference concerning the establishment of meaning
between the two groups that has an impact on the work of the translator
and for the norms that he must follow.
This third consequence lies in the fact that the translator is an outsider
not involved in the official and binding process of interpretation. Thus,
he has to work on the basis of the interpretations presented by the legal
interpreters. Whereas the legal interpreter is part of the meaning battle
and can have direct influence on the design of the meaning, for the legal
translator the picture is different, for he is an outsider who is precluded
from joining the argumentative battle directly. This creates a substan-
tial difference between the two groups: The task of the legal interpreter
consists of producing convincing arguments for his interpretation of what
is in a text on the basis of context and other sources he finds it suitable
and adequate to draw upon. Through this process, he may challenge and
change the meaning assumptions held by others, and if his interpretation
is convincing, “his meaning” is converted into “the meaning” accepted by
those working in the field. For the legal translator as an outsider to the
discourse community34 with access to “the meaning”, the task is different,
because he is restricted in his choice of context elements influencing his
construction of the meaning: The “standard interpretation” or the inter-
pretation that the text author has argued for (i.e., the meaning assumption
of the author) binds the translator qua outsider to a much higher degree
than is the case for the legal interpreter as an insider. To state the problem
metaphorically, what the legal translator can do is to observe the battle
from outside the battlefield and be aware of who is winning, what weapons
are used and what is the result in the form of standard interpretations and
individual deviations from the standards. On the basis of his observations,

33 Jacques Pelage, “L’apport de la traductologie au droit”, Terminologie et Traduction 3

(2001), 18–29.
34 John Swales, Genre Analysis. English in Academic and Research Settings
(Cambridge: Cambridge University Press, 1990), 24–27.
 LEGAL MEANING ASSUMPTIONS 387

he then creates a painting showing a detail of the battle scene.Thus whereas

legal translators and legal interpreters may work on the basis of the same
background assumptions, creating the same kind of responsibility for the
actual meaning they put into their individual texts, the different roles as
insiders or outsiders concerning the process of legal meaning construction
has an important impact on their work. This difference is also reflected
in Pelage’s observation35 that the differences in the tasks performed by
legal interpreters and by translators, respectively, mean that the expertise
of translators might be a valuable help when establishing legal univer-
sals in multilingual and multinational legal systems like, for example, the
European Union. The reason for this is that translators have a high degree
of sensitivity to overlaps and differences in meanings of legal terms from
different legal systems (Pelage:36 24). Looking at this statement from the
point of view of translators as outsiders as opposed to legal interpreters as
insiders, I would say that this sensitivity is due to the translators’ exper-
ience (as outsiders) in establishing the exact intended meanings of text
authors without recourse to the insiders’ solution, namely to change the
meaning assumptions of others through argumentation. Thus although the
modern legal translator is to be seen as an artist, he is more of a classical
portrait painter than a designing architect.37

5. C ONCLUSION

In this article, I hope to have shown that basing interpretative as well as

translation work in the legal field on a dynamic approach to meaning can
actually help us to obtain a more inclusive description of what occurs when
we work with language.
In interpretation it forces us to make the actual arguments instead of
pseudo-objective arguments like “X is the meaning found in the diction-
aries”. In translation work it forces us to make decisions on well-founded
grounds and not simply revert to pseudo-objective arguments like “X
was like that in the source text”. Thus in legal interpretation as well as
in legal translation, the dynamic and context-oriented approach forces
the interpreter or the translator to take the responsibility he actually has
35 Supra, n. 34.
36 Supra, n. 34.
37 Christensen/Sokolowski (2002: 77) talks about it being necessary for modern legal
interpreters to accept the role of designing architect in connection with normative struc-
tures. Ralph Christensen and Michael Sokolowski, “Wie normativ ist Sprache? Der Richter
zwischen Sprechautomat und Sprachgesetzgeber”, in Sprache und Recht, ed. Ulrike
Haß-Zumkehr (Berlin/New York: de Gruyter, 2002), 64–79.
388 JAN ENGBERG

by depriving him of the pseudo-objective instrument by which context-

independent meaning functions. The difference between the two groups
lies in the fact that where the legal interpreter can be an architect and
construct new meaning because of the authority given to his discourse
community by society, the legal translator does not have access to the
construction of new meaning.38 His field is the text, and it is his primary
responsibility that the target text may fulfil its purposes as fully as possible
and that it presents a valid portrait of the meaning assumptions of the
author of the source text.

ACKNOWLEDGEMENTS

The central ideas in this article have also been presented at the symposium
“Law and Language – Prospect and Retrospect” held in Levi, Finland,
December 12–15, 2001. I want to thank the participants of that symposium
for valuable comments that have had a considerable impact on the current
version of the article. Errors and inconsistencies, however, are my sole
responsibility.

Aarhus School of Business

Department of German
Fuglesangs Allé 4
DK-8210 Aarhus V
Denmark
E-mail: je@asb.dk

38 Christensen/Solokowski (2002: 72) emphasise strongly that in a modern demo-

cratic society the legal interpreter has to earn his authority to construct new meaning
by presenting solid argumentation for his meaning decisions. Ralph Christensen and
Michael Sokolowski, “Wie normativ ist Sprache? Der Richter zwischen Sprechautomat
und Sprachgesetzgeber”, in Sprache und Recht, ed. Ulrike Haß-Zumkehr (Berlin/New
York: de Gruyter, 2002), 64–79.