El desenvolupament d'un enfocament integrador per a l'accés a coneixements sobre dret comparat aplicables a la traducció
| Autor | Jan Engberg |
| Cargo | Aarhus University |
| Páginas | 5-18 |
DEVELOPING AN INTEGRATIVE APPROACH FOR ACCESSING COMPARATIVE
LEGAL KNOWLEDGE FOR TRANSLATION
Jan Engberg*
Abstract
In this paper, a multi-perspectivist approach to translation-relevant comparative law is presented. The approach is
conceptually oriented and joins three lenses with relevance for the study of meaning construction and development
in the eld of law: National cultural inuences, inuences from systemic-functional epistemic aspects, and inuence
from interpersonal knowledge communication. Focus in the article is upon the argumentative grounding of the three
perspectives and upon possible methods with special relevance for the different lenses. In order to present the backdrop
against which the approach is developed, the paper starts out with an overview of recent developments and suggestions
in the eld of comparative law, especially for the purposes of legal translation.
Keywords: Legal translation; legal culture; epistemic culture; interpersonal communication; corpus analysis.
EL DESENVOLUPAMENT D’UN ENFOCAMENT INTEGRADOR PER A L’ACCÉS A
CONEIXEMENTS SOBRE DRET COMPARAT APLICABLES A LA TRADUCCIÓ
Resum
En aquest article, abordem des de diversos punts de vista el dret comparat rellevant per al camp de la traducció.
L’enfocament que presentem està basat en aspectes conceptuals i combina tres perspectives signicatives per a
l’estudi de la construcció i el desenvolupament del signicat en el camp del dret: les inuències de la cultura jurídica,
les inuències dels aspectes epistèmics sistemicofuncionals, i les inuències de la comunicació interpersonal del
coneixement. L’article centra l’atenció a aportar una base argumental que justiqui aquestes tres perspectives i
proposar mètodes d’una importància especial per als diferents punts de vista. A de presentar els antecedents a partir
dels quals es construeix aquest enfocament, l’article comença amb una descripció general de les últimes contribucions
al camp del dret comparat i que han estat rellevants per a la traducció jurídica.
Paraules clau: Traducció jurídica; cultura jurídica; cultura epistèmica; comunicació interpersonal; anàlisi de corpus.
* Jan Engberg, Aarhus University, je@cc.au.dk
Article received: 21.07.2017. Review:15.09.2017. Final version accepted: 20.10.2017.
Recommended citation: Engberg, Jan. “Developing an Integrative Approach for Accessing Comparative Legal Knowledge for
Translation”. Revista de Llengua i Dret, Journal of Language and Law, issue 68, 2017, p. 5-18. DOI: 10.2436/rld.i68.2017.3014
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 6
Summary
1 Introduction
2 Aspects of modern Comparative Law with relevance for translation
3 A multi-perspectivist approach to the (comparative) description of legal concepts
4 Perspective of national legal culture
5 Perspective of law as a functional and epistemic system
6 Perspective of Interpersonal Knowledge Communication
7 Concluding remarks
References
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 7
1 Introduction
One longstanding trend in the development of the study and the teaching of legal translation is to see relations
between legal translation and comparative legal studies, some even going so far that they see legal translation
as a kind of applied comparative law (de Groot, 1988). However, studies have shown that although it is true
that there are overlaps between the two disciplines, the basic interests of legal translation and comparative
law, respectively, are too far from each other for them to be just two sides of the same approach (Doczekalska,
2013; Engberg, 2013a, 2013b; Simonnæs, 2013). This makes it apt for members of the disciplines to seek
inspiration from each other, but without seeing one discipline as merely a part of the other. More concretely,
lawyers use the methods and approaches of comparative law to solve legal problems like setting up new
statutory rules or evaluating the efciency or consistency of existing rules. Translators, on the other hand,
are mainly interested in conceptual elements and their overlaps and differences across languages, but not
in systematic efciency or consistency. Furthermore, translators need insights into collocational aspects
and they need to know what parts of a concept are more prominent in expert discourse in source and target
culture. The main intention of this paper is to sketch out the contours of an integrative approach with special
relevance for the needs of translators. As an aside, such an approach may also help build a bridge over the
gap between lawyers and translators in order to enhance the comparative legal work of both groups for their
respective purposes and improve the conceptual discussions between the two groups. I will revert to this
supplementary aim in the concluding remarks.
Hence, I depart from the position that important characteristics distinguish the practice of lawyers and
translators and that these characteristics have an impact upon the specic requirements for a useful approach
to comparative law for the two groups of experts. Let us try to specify the characteristics of the translation
side of this duality. The practice of the legal translator may be described as follows: “Professional legal
translation is a search for the legal-linguistic equivalence towards the background of translation strategies
that steer the choices within the translation process “ (Galdia, 2013, 92). In other words, legal translation is
based upon conscious choices by translators in order to achieve a legally relevant relation in meaning between
source and target text. Focusing upon the characteristic that legal translators are interested in conceptual
aspects when comparing legal systems, we can take the idea one step further and dene the component of
legal translation where comparative law is most relevant (the translation of specialized terms) as follows:
“Translating terms in legal documents consists in strategically choosing relevant parts of the complex
conceptual knowledge represented in the source text in order to present the aspects exactly relevant for this
text in the target text situation in order to enable a receiver to construct the intended cognitive structure.”
(Engberg, 2015)
The task of the legal translator is thus to get to know the concept behind a word in a source text well enough
to be able to interpret which parts of the full concept play a central role in the contextual understanding of the
source text. Furthermore, the translator has to establish what parts of this contextual understanding are most
relevant in the concrete target text situation. Finally, the translator needs to elicit possible target concepts
and get to know these well enough to nd a formulation that enables the target text receiver to construct a
relevant cognitive structure and thus understand the target text relevantly.
In order to carry out all of these decision tasks, translators need to assess and acquire relevant knowledge
from source and target contexts so that they can enable the target text reader to construct the relevant
concepts after reading the target text (hence I talk about legal translation as a knowledge communication
process, cf. section 3 of this paper). This process of assessing or acquiring knowledge requires systematicity
and a relevant degree of completeness in order for it to be successful. In this paper, I want to sketch out the
contours of a multi-perspectivist approach that may function as a tool for legal translators and that fulls the
requirements concerning systematic generation of relevantly complete knowledge. The approach is intended
to function as a basis for a broad comparative description of legal concepts with relevance for the solution of
the problem of translational practice described above. Due to the present stage of development of the ideas
behind the approach, focus in this paper will be on describing and arguing for the relevance of and the internal
relations between three different dimensions or lenses applicable for comparative work. Furthermore, in
connection with the description of the lenses I will present methods that are relevant for assessing the content
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 8
of the dimensions and thus for actually acquiring and structuring the knowledge relevant for performing
the knowledge communicative task of legal translation. Focus is thus on sketching the approach and its
application. Showing how the methods and lenses may be played out by way of empirical analyses of my
own, on the other hand, is not part of the intention behind this paper (cf. instead Engberg, 2016).
I will start the chapter by discussing recent developments in comparative law with potential relevance for
translation in section 2. The following main part of the paper will rst present the overall principles for the
multi-perspectivist approach (section 3) and subsequently go into more detail with the three dimensions and
the respective methods for investigating them (section 4-6), before the paper ends with concluding remarks
(section 7).
2 Aspects of modern Comparative Law with relevance for translation
As already stated above, there are differences between the purposes of contrastive analysis performed by
lawyers and by translators. These differences lead to differences in relevance of the methods to be applied.
Specically, I claim that where functional approaches are often central in comparative law performed
by lawyers, translators need a more conceptually oriented approach (Engberg, 2013b). The reason why
functionality plays a central role in lawyers’ comparative legal work has to do with the fact that lawyers
prototypically perform this type of study in order to assess how different legal systems solve similar societal
problems. Hence, the function of specic legal rules and the functional aspects of the concepts presented
in the rules acquire a centre-stage position here. But legal translators are less interested in comparing rules
and their functional role in solving societal problems in a specic way. They are much more interested in
comparing concepts and in comparing them along more dimensions, as these may be relevant in connection
with the relation between source and target context of the text to be translated.
On this basis, I challenge the position held by for instance Sandrini and underlying the work by Soriano-
Barabino (2016), i.e., that a functional approach is most central also for translation-relevant comparative law,
due to its closeness to the general comparative method of terminology. I would opt for a more conceptual
approach, combining different elements and stripping function of its necessary primary value - function is
only one of more potentially relevant conceptual elements. This position is neither totally new nor only mine.
In recent years, a number of conceptually oriented approaches to comparative law have been presented in
the context of translation studies:
• Monjean-Decaudin (2013) presents an approach where she sees the process of legal translation as a
three-step procedure: 1) interpreting the source text; 2) putting meaning from source text in relevant
relation to the target text context like the lock in a canal; and 3) choosing the conceptually adequate
formulations in the target context. Especially the second part (l’inexion de signié) comprises
concept-oriented comparative law investigations.
• Jopek-Bosiacka (2013) suggests the so-called ‘micro-comparison’ as a valuable approach to
translation-relevant comparative law. Here, singular concepts are described in their functional,
but also institutional and other contexts, seeing function as an important, but not the only relevant
criterion to use as tertium comparationis. She demonstrates its value on comparative work relevant
for translation in the European Court of Justice.
• Meyer (2016) suggests a constructivist and performance-oriented model for understanding foreign
legal concepts in their actual context and their recent state of development, emphasizing the
dynamic nature of legal concepts and the need to understand foreign legal concepts in their native
context instead of on the basis of the conceptual framework of the interpreter with a different legal
background. Conceptual aspects are central here, too.
Not only in comparative law approaches stemming from translation and domain-specic studies of language
consciousness of the value of conceptual approaches is growing. Even in the eld of comparative law for legal
purposes, similar ideas emerge as a consequence of the fact that legal scholars also begin to see functionalism
as perspective of observation and comparison as too scarce, if we want to catch all central aspects of legal
concepts. Hence, we see proposals to include also other perspectives and thus to go for a more global perception
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 9
as the basis for comparisons (Brand, 2007; Husa, 2013). A recent important empirical example including a
methodological perspective is the article by Zarco-Tejada and Lazari (2017). They present a comparative-
legal analysis of the concept of State responsibility in four national legal systems based upon the FrameNet
approach and discuss this approach in contrast with other approaches from concept-oriented linguistics.
For our purposes, the above developments may be taken as support for the pertinence of developing ideas
of how to perform such concept-oriented comparative work. The developments also show the pertinence of
seeing the development of such ideas as a bridge-building effort not restricted to the eld of legal translators.
A special consequence of giving up function as the very central aspect for comparisons is that it opens our
eyes for the inuence and interplay of different factors and dimensions. I take this consequence as inspiration
to suggest in the following an approach that explicitly intends to combine different and to some extent
incompatible aspects in order to gain sufciently wide and varied insights, still in a systematic way.
3 A multi-perspectivist approach to the (comparative) description of legal concepts
Central against the backdrop of the developments described above is the idea to intend not to reduce
comparisons to one primary dimension or facet (traditionally that of function) when describing legal concepts,
but instead to try to assess the concepts in their actual multi-facetedness. Following this argumentation and
in accordance with the approaches presented above, I suggest a multi-perspectivist and conceptual approach
to comparative law with special relevance for translators, but also of interest for conceptually interested
comparative lawyers. It combines approaches to the study of legal concepts that focus different aspects. In
this way, we get a good insight into the complex nature of legal concepts.
The discipline of studies in domain-specic communication (Fachkommunikation) especially in its German
branches has a tradition of such so-called integrative models. The models are integrative, because they
integrate different dimensions with each other in order to achieve a holistic description of the studied object.
Prominent examples are Hoffmann’s model of analysis and Baumann’s different versions of integrative
models (e.g., Baumann, 1992; Hoffmann, 1988). My approach follows the same basic idea as these models:
As law seen in relation to the knowledge to be assessed and acquired by translators is a multi-faceted
object of study, the models describing this object should also allow for a number of facets to be taken into
consideration. Naturally, it will always be part of any kind of venture of developing a scientic model of
relevant aspects of a concept to reduce the actual complexity of the real-world concept, as some abstraction
and idealisation is necessary. However, it is in my view sensible to intend to keep enough complexity in
a model for it to actually reect also the interplay (positive or negative) between factors from different
dimensions. Hence, as a pluralist by conviction, I am a fan of integrative models enabling us to describe
complex interplays and inuences.
This is what is meant when I state above that the suggested approach is multi-perspectivist and conceptual.
These two characteristics are important for the methodological design which is the central focus of this
paper. Let us have a look at the characteristics. The multi-perspectivist character is spelt out by the fact that
three different lenses have been suggested as especially relevant when studying legal concepts comparatively
for translational purposes (cf. Engberg, 2016).
• (National) legal culture (e.g., Glanert, 2006; Legrand, 2014)
• Law as an epistemic functional social system (e.g., Knorr-Cetina, 1999; Luhmann, 1993)
• Interpersonal communication among lawyers and in society (e.g., Engberg, 2008; Felder, 2003;
Felder, Luth, Vogel, 2016)
The list of lenses includes different studies, all performed under the hypothesis that the chosen dimension
has an important inuence upon creation and development of meaning of legal concepts. It is my claim to
be substantiated in sections 4-6 that the lenses constitute important perspectives to apply when looking for
information in order to investigate a legal concept. In their combination they give us a broad picture of the
studied concept. Basically, the dimensions are intended as a guiding structure for comparative legal studies
with relevance for legal translators looking for support for their formulation choices.
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 10
The three lenses to some extent follow different logics and thus may in fact be seen as incompatible. Hence the
integrative nature of the suggested approach leading to a holistic picture of the studied object. The different
logics may be exemplied as follows: The lens of national legal culture tends to see culture as a factor external
to members of the culture acting within it (culture as restricting meanings), whereas the lens of interpersonal
communication focuses upon the powers of individuals to inuence and change collective meaning through
their communicative textualizations of concepts. Thus, one approach sees culture as restricting meaning, the
other sees meaning as collectively constructed and dependent upon communicative interaction. In between,
the epistemic and systemic approach focuses upon conceptual systems as independent of people and external
contexts, but dominated by internal restrictions inside the social system of law dependent upon interaction
within the system.
The idea and claim behind the suggested design is that each of the lenses reect different important factors
and aspects of legal concepts and their emergence and development and that we therefore get a more complete
picture of the concept by shifting between the lenses: Legal concepts are inuenced by the fact that they are
seen as belonging to a specic national culture, that they emerge from a specic legal epistemic system,
and that they are part of a specic set of interpersonal communicative interactions. Before we proceed in
the justications for the design, one caveat is important: It is not necessary in my view that a translator or
a lawyer studying legal concepts comparatively has to adopt all three different logics in their work and
thinking for the integrative model to work. For instance, I am personally sceptical towards the idea of a stable
national culture governing our thinking without members having inuence upon it and power to change it,
which is the position I interpret as underlying the cited work by Glanert and Legrand above. But I think that
their approach mirrors an important intuition about legal concepts widespread in the legal community and
thus also certainly with inuence upon actual interpretive practice. Hence, including this factor and work
focusing upon it in a multi-perspectivist approach may supply us with input of the relevance of the factor for
our general insights into a legal concept. By way of conclusion: Different logics, paradoxic as they may be,
reect best the multifaceted nature of legal concepts (cf. Husa, 2011).
That the suggested approach is conceptual basically means that it intends to describe concepts, i.e., global units
constituting the knowledge of law. Object of study is the knowledge relevant for understanding legal texts the
way these texts are normally understood by lawyers belonging to a specic national legal culture (Engberg,
2009c). In the words of Busse (2015), we can here talk about verstehensrelevantes Wissen (knowledge
relevant for understanding). With the approach I want to gain access to the knowledge held by individual
lawyers in each of the relevant countries, of which they ‘know’ that it is knowledge they share with the rest of
the group of lawyers and which thus forms the basis of understanding the legal texts of others. A descriptive
instrument applied when investigating knowledge from the perspective of its simultaneous individuality
and collectivity is the concept of frame. It is not relevant in the light of the aim of this paper to discuss the
frame concept in detail.1 It will sufce to say that it is based on the general idea that concepts in the mind
and especially in long-term memory are stored in the form of structures, where components of concepts and
concepts themselves are related to other concepts and components along a number of dimensions related to
their co-occurrence or relatedness in different situations. It is a way to explain the many associative relations
that underlie actual understanding.
The central aspect of frames making them apt for our purpose is that concepts from this perspective are
seen as having a number of dimension (‘slots’) that together constitute the concept, but which not all have
to comply with the same logic. In this way, frames are empirically based and inductively generated rather
than given from theory or similar deductive sources: If studies of texts and interviews with relevant language
users demonstrate that these users hold knowledge of a concept with the same slots, then the frame may be
said to have these slots, no matter whether the slots constitute a consistent and compatible whole.
The suggested approach sees comparative legal studies as investigations of the slots of the studied legal
concepts as held by lawyers from different legal systems in order to assess relevant overlaps and differences.
Depending on the interests of the person doing the comparative legal study, other slots may be relevant, as
indicated in the comparison between the interests of the lawyers and translators in section 1 of this paper. The
1 For more general information on different frame approaches, cf. Barsalou, 2007; Bartlett, 1932; Busse, 2015; Engberg, 2007,
2009b; Fillmore, 1982; Ziem, 2014.
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 11
connection between the two mentioned characteristics of the approach (multi-perspectivist and conceptual)
is thus the multi-perspectivist nature of concept frames. The role of the three lenses to be presented in more
detail below, on their side, is to function as guides when the investigator (for instance, a translator) looks for
input in order to build frames and thus to get a structured picture of concepts from different legal systems.
Hence, the lenses do not structure the frames and their slot structure. But they help the translator to work
systematically when collecting the relevant input for creating a basis for their formulation decisions.
In section 1 above I described the work of legal translators as that of getting to know legal concepts from
source and target culture well enough to be able to nd relevant overlaps and differences important for them
to make their textual choices. With these formulation choices, translators construct a target text that aims
at enabling the receiver to construct cognitive structures of the kind the translator intends. It is clear from
this description that the key aspect in this component of legal translation (and thus the central eld that
comparative legal studies have to contribute to) is specialized conceptual legal knowledge held or acquired by
the translator. On this basis, I talk about translation studied from this perspective as an instance of knowledge
communication and hence of legal translators as knowledge communicators aiming at mediating knowledge
between members of different legal cultures. This focus upon knowledge (as individually held cognitive
structures conceptualized by the holder as shared with others) makes it pertinent for legal translators to
perform relevant comparative legal analyses, mainly due to the degree in which legal concepts are bound to
legal systems and the ensuing need for information to target text receivers.
In the remainder of the paper, I will briey present the basic characteristics of the three lenses that may be
applied when assessing or acquiring the relevant knowledge and discuss possible methods relevant for the
investigation of legal concepts under the respective lens (sections 4-6). The structure of each section is that I
present the central characteristics and the focus of the treated lens and hence give some examples of methods
of analysis with potential relevance for the investigation of the lens.
4 Perspective of national legal culture
The perspective of (national) legal culture has its focus upon the super-individual structures governing
thinking at the level of national culture. Methods and ideas in this perspective are linked to the assumption
that overarching traditions and ideas exist in a society and govern thinking and experiencing over long
stretches of time and that these are hardly inuenced by members of the culture. The basic idea is to see
culture as dominant, not dominated in connection with members of the culture. It restricts thinking and
perception of members of a culture:
But language identies what there can be for a linguistic community (or, which is another way of putting it,
what a community can say that there is): language concerns the possibility of access to an understanding of
an entity (and has nothing to say as regards the existence of an entity. (Legrand, 2008, 205)
Basically, tradition (as a reection of culture) is seen as something that people grow into and which shape
them: Growing up in a specic (national) culture determines specic ways of seeing the world, without
individuals having any inuence upon the way they see the world:
The meanings that the interpreter brings to the act of interpretation were internalized by him as he was
thrown into a tradition (linguistic, legal, and otherwise) that constituted him as the individual he is (and as
a member of the tradition). The basic point is that the individual’s sphere of understanding is, in important
ways, inherited and that it arises irrespective of any subjective preferences. (Legrand, 2008, 220)
For comparative ventures, the point of departure is that even what looks identical or overlapping, is in reality
different, because the background of the concept is different. And there is in this view no way to introduce
oneself into a new culture, as the comparatist is in the outset grounded in a different culture:
The law under scrutiny by the comparatist will continue to have been produced by a tradition and a culture
that differ from the tradition and the culture having constituted the comparatist and within which he continues,
perhaps unwittingly, to dwell. Both traditions and cultures do not share an object. (Legrand, 2008, 223)
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 12
The basic assumptions of this lens imply that focus is especially upon non-equivalent concepts across
cultures. Differences are more important than similarities, as similarities are not important and even by the
more radical propagators of the approach like Legrand above are rejected in the outset.
Thus, from a methodological point of view, the lens will concentrate upon describing national legal cultures
independently and contrastively, and relevant approaches will have to depart from this vantage point. A
good candidate for this approach is the general cultural-standard approach as developed by Thomas (e.g.,
Thomas, 1999). In this approach, cultures are seen as systems of perception and orientation, with a focus
upon values and norms: Cultural values and norms are acquired when growing into a culture (Thomas, 1999,
103-105). As long as members of the culture do not cross the boundaries of their culture, they will hardly be
aware of the cultural character of their values and norms. Only when confronted with the (differing) values
and norms of members of other cultures this awareness arises, often in the form of misunderstandings,
misinterpretations and conicts. The problems occur because the signals and behaviour of members of other
cultures are interpreted on the basis of the culture-bound norms and values of the own culture (Thomas,
1999, 91-92).
Hence, focus of the approach of Thomas is to describe the value and norm system of members of one culture
in its differences to the value and norm system of members of other cultures with which they are confronted.
This focus ts the legal eld well, where norms and values are inherent parts of the concepts. Empirically,
the preferred method in this approach is to work with narratives about intercultural encounters narrated
by people who have experienced such encounters themselves. Examples are narratives by researchers or
business people with international experience about concrete problematic encounters. From such narratives
about negative confrontations, the investigator isolates points of difference between cultures in order to feed
information about possible general points of potential conict back to people with a need for intercultural
interaction in order to raise awareness about intercultural differences. Hence, the own norms and the norms
of the other culture are central, with a focus upon differences.
There are relevant overlaps with the task of legal translators as knowledge communicators from the perspective
of national legal culture making the approach relevant for methodological inspiration. Especially, the main
idea is to assess differences visible through a comparison. However, it is hardly relevant for legal translators
to gather personal narratives. Instead, comparing translators will have to look for authors and sources with
actual experiences contrasting the relevant legal cultures and concepts. Hence, the most central sources from
this point of view are actual studies by comparative lawyers (academics as well as practicing lawyers and
law rms) as the practice experts in this eld.
5 Perspective of law as a functional and epistemic system
The second lens is that of seeing law as a functional and especially epistemic system. A possible central
theoretical framework is that of epistemic cultures (Knorr-Cetina, 1999). She describes the idea of epistemic
cultures as follows:
This book is about epistemic cultures: those amalgams of arrangements and mechanisms – bonded through
afnity, necessity, and historical coincidence – which in a given eld, make up how we know what we know.
Epistemic cultures are cultures that create and warrant knowledge… (Knorr-Cetina, 1999, 1)
So, again, in this view, focus is upon the inuence of norms and conceptual systems acquired in the process
of entering a culture upon the way the world is experienced. Focus is upon the inuence of super-individual
factors in the form of shared meanings and symbolic systems. An important and dening difference to the
previous lens is that in the epistemic cultures approach there is no idea of a national basis behind the culture.
The basis is the discipline (in our case the law) as a closed group with educational prerequisites. Furthermore,
the view to the concepts and the description of the epistemic culture is that the studied object is not only
what members of a culture say, but also and maybe even more importantly how they actually perform the
knowledge production processes:
The traditional denition of a knowledge society puts the emphasis on knowledge seen as statements of
scientic belief, as technological application, or perhaps as intellectual property. The denition I advocate
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 13
switches the emphasis to knowledge as practiced - within structures, processes, and environments that
make up specic epistemic settings. (Knorr-Cetina, 1999, 8)
Thus, the approach also encompasses contexts and structures. This idea may well be combined with the
approach of functional, meaning creating systems (Luhmann, 1993). In this approach, focus is upon the
symbolic systems that bind social groups together, its systematic structures and the meanings they share and
on the basis of which they work. Focus is upon social groups as closed systems to which inuences can only
enter if they are relevantly in accordance with existing meanings and thus are attachable to the symbolic
system in a self-generating process (autopoiesis). The overlap between the two theoretical approaches is the
function, the action and the contexts of these.
Hence, if we relate these theoretical considerations to the comparative study of legal concepts, which is the
interest of the legal translator, focal points are function-based conceptual systems, contextual conditions
and the actual behaviour of members of the epistemic cultures, when they create and recreate the legal
knowledge and conceptual systems. When Knorr-Cetina compares the knowledge generation processes in
different disciplines as epistemic cultures, she uses anthropological methods of observation, interviews,
etc. Along these lines, relevant sources for comparative legal studies are systematic descriptions of the way
a legal concept is eshed out in a legal system. The important methodological difference due to the basic
differences between the two lenses is that the range of relevant sources is broader. Relevant sources must
not necessarily be comparative themselves. The comparing translators can collect and structure the culture
knowledge on their own, as there is less focus upon the impossibility of understanding cultures to which the
interpreters do not belong themselves.
Finally, the idea of functional and epistemic systems more than the idea behind the lens of national legal
cultures opens up for looking for similarities across the national borders. This is due to the fact that the
investigated systems are seen as dependent upon contextual and functional aspects, but without a necessary
primary position of the national identity in the context. Hence, in this lens it would also be relevant to look
for overlaps that are helpful for legal translators in their task as knowledge communicators. If we want to
make foreign concepts accessible for target text receivers, one important aspect is to know where conceptual
overlaps exist. For the process of understanding foreign concepts must run via the recognition of similarities
with known concepts that must be adjusted and changed in the process of understanding.
Along the methodological guidelines from Knorr-Cetina, it would be relevant to focus upon the (communicative
and institutional) behaviour of members of the epistemic culture, including not only descriptions in textbooks
etc., but also other meaning generating processes like court decisions, contracts, etc. Hence, with the focus
upon functions, probably comparative legal work in the eld of functional approaches are relevant. However,
classical functional works like Zweigert and Kötz (1996) are probably less relevant, as their general
objective is to describe macro-categories. Legal translators, on the other hand, may need such macro-insights
as a background, but are actually more in need of insights at a more detailed level, comparing individual
legal systems from a conceptual point of view. This also is correct concerning the acquisition of insights into
overlaps that enable the translator to guide the target text receiver towards constructing the intended concept
in the process of understanding the foreign legal system.
6 Perspective of Interpersonal Knowledge Communication
The last lens studies the inuence from interpersonal knowledge communication, i.e., the inuence from
the way experts at different level talk about a concept. These communicative-textual interactions create and
stabilize meaning in the epistemic culture and probably also in the national culture. Focus in this perspective
is upon the meanings that are created in communicative interactions due to the way texts are composed
and words are chosen and combined. We are interested in content aspects of the concepts involved in order
to generate input to the content of the knowledge unit, the concept, beyond functional aspects; and we are
interested in dynamical aspects of the conceptual systems.
The two previous lenses are mainly oriented towards assessing general aspects of the legal systems which
everyone agrees upon, due to their focus upon general values, norms and conceptual systems. Investigating
Jan Engberg
Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 14
such general aspects from texts of different kinds (comparative legal studies, central knowledge presenting
and knowledge performing texts) gives us relevant insights. Under this lense, the frame concept is central
because it models the generally held knowledge relevant for understanding texts in a specic domain or area
of communication, as indicated above. However, the frame concept also has a second characteristic which
is especially relevant when understanding the central traits of the third lens: Frames are in good accordance
with the general idea of the knowledge communication approach to see knowledge as simultaneously
individual and collective (Engberg, 2016, 37). Knowledge is individual in the way that it can only empirically
be assessed in the minds of individual persons. At the same time, it is collective in the way that every
individual perceives the bulk of their own knowledge as shared and has a clear idea about, where the personal
knowledge deviates from the collective knowledge. This state of affairs generates the possibility of assessing
the knowledge of others (when understanding others in communicative interactions) on the basis of the
personal knowledge (cf. also Engberg, 2009a). Frames are relevant here, because they exactly model the
elements of knowledge constituting conceptual meaning as a social fact interpreted on the basis of individual
communicative contributions.
In order to investigate such frames as result and background of interpersonal knowledge communication,
a qualitative approach can be used, in which frames are built on the basis of systematic interpretations of
individual texts. However, the quantitative aspect also plays a central role in many studies of frames (Ziem,
2014). The reason is that frame studies are also interested in the internal structure and the salience of the
different slots and their llers in order to be able to also say something about default interpretations, i.e.,
about how most participants in interactions interpret a text, an utterance, or a word. Hence, from the point of
view of methodology it is relevant to apply corpus analysis as a method in the context of this lens.
The purpose of the type of corpus analysis relevant for the comparative study of legal concepts under this
lens is a little different from what is regularly seen in the growing number of corpus analytical studies on
legal translation or with direct relevance for legal translation:
• Corpus analysis is often employed in order to describe the behaviour of legal translators in order to
assess, e.g., the tendencies concerning textual t of translators in the context of the EU to national
textual traditions (Biel, 2014), in the description of translational behaviour in a specic translation
(Saridakis, 2013) or in order to investigate more sociological questions like whether translators tend
to reproduce rather than challenge existing social and textual norms (Monzó, 2015).
• Corpus analysis is also often used in order to investigate, e.g., phraseological units as elements of a
system in order to describe the system as such. Examples of this very frequent approach are works
by Dobrić Basaneže (2015), Scarpa (2013), and Goźdź-Roszkowski and Pontrandolfo (2013).
However, none of these types of corpus analysis are fully in accordance with the purpose relevant here.
Instead, corpus studies intending to establish insights into relations between different content elements
constituting the dimensions of a frame, i.e., the knowledge structure, are more relevant. The following works
are examples of relevant approaches:
• Via an investigation of the collocational patterns of four legal terms ‘breach’, ‘contravention’,
‘infringement’ and ‘violation’, rst in the genre of contracts and then in the multi-genre context of
the entire corpus, insights are reached into overlaps and differences between the contexts of use of
the words. In this way, it is possible to establish semantic and functional characteristics of the words
in order to discriminate between the near-synonyms when choosing words for formulations or when
understanding the source text (Gozdz-Roszkowski, 2013)
• Corpus analytic methods can be used to support conceptual interpretations in legal contexts like
court settings, where quantitative aspects are frequently not considered. An example here is a corpus
linguistic study of the concept of ‘Arbeitnehmer’ looking at compounds with the word as one
element, predication phrases and patterns of co-occurrence, giving insights into aspects of the target
concept (Pötters & Vogel, 2015).
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Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 15
Relevant methods are thus investigations of keywords, collocations and other types of co-occurrence patterns
with keywords, N-grams, and similar approaches that investigate what words frequently occur together and
thus what concepts can be interpreted to be inuencing each other or contributing to each other’s meaning. In
this way, it is possible to also say something about the structure of a concept. Performed across legal systems,
as it is intended under this lens, such investigations may generate relevant comparative knowledge that can
help translators make necessary formulation decisions in order for them to ll their role as communicators of
knowledge between source and target culture.
7 Concluding remarks
The aim of this paper has been to present some methodological concerning how an approach to comparing
legal concepts could be designed in order for it to be specically relevant for translation. The founding idea is
to have a multi-perspectivist, integrative approach intending to model the studied concepts as (simultaneously
individual and collective) knowledge. In this connection, I have joined approaches together that focus on
different aspects of legal knowledge and that focus different factors with inuence upon the emergence and
development of legal concepts: The national culture they belong to, the symbolic and epistemic system of
meaning holding together the social system of law and the expertly communicative interaction driving the
stabilisation and development of the meanings in this context. As shown above, such a model allows us
to receive information about stable functional and other types of structures as well as to assess points of
polarization and crystallization in the ongoing discussion about and development of legal concepts. This
knowledge is important for the translator in order to be able to perform the active and responsible task which
legal translation is. The presented approach is an attempt to supply translators with a systematic way of
assessing and acquiring such knowledge.
A supplementary effect of the development of the approach from its present rather skeletal form could be to
improve the conceptual discussions between translators and lawyers. Some comparative lawyers hold the
position that legal translation is virtually impossible. In previous works, I have cited the following statement
as an example:
One of the rst, and maybe most astonishing insights a comparative lawyer will get, is that the translation
of legal texts remains a myth, a sublime aim never to be truly achieved. This is closely connected to some of
the typical problems in comparative law: linguistically equivalent legal notions will frequently have different
contents in different jurisdictions. (Kischel, 2009)
Beyond the fact that it is interesting to hear a comparative lawyer, who is probably dependent upon translations
in order to perform his research tasks, say that translation is not possible, I think that this position is based
upon an incomplete notion of meaning in language, namely one of a 1:1 relation between words and meaning.
The frame approach as it has been used already by Zarco-Tejada and Lazari (2017) for a comparative legal
analysis could very well offer a platform for a better mutual understanding of language and meaning between
translators and lawyers. Its component-oriented basic structure makes it easier not only to see how related
concepts from different cultures overlap and differ, as exemplied in the above-mentioned work. It also
lends itself as an instrument for translators to demonstrate to commissioners of translation, how alternative
translations render different parts of a source text’s meaning (Engberg, 2018). Hence, a multi-perspectivist
and conceptual approach like the one suggested and presented here in skeletal form has the potential of
contributing to what I set up as a supplementary goal in the introduction, viz. to contribute to building a
bridge between the comparative legal work of lawyers and of translators, respectively. Future work will
demonstrate, how we can put esh upon the bones of this skeleton to develop it into a bridge.
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Developing an integrative approach for accessing comparative legal knowledge for translation
Revista de Llengua i Dret, Journal of Language and Law, núm. 68, 2017 16
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