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Civil Law, Common Law and certified translation

When considering the needs of a certified translation to be used internationally, one of the most relevant notions that usually appears initially is the distinction between the legal systems called Civil Law and Common Law.

In summary, the concept of a legal system is defined as the concept of law that traditionally governs a group of countries and which presents historical and institutional similarities. The terms Civil Law and Common Law refer to two legal systems which, at first sight, may be considered as opposing. Indeed, these two conceptions of law are the subject of many differences that are the subject of study in legal translation.

The extensive doctrinal and pedagogical work that has focused on highlighting the differences between Civil Law and Common Law responds, mainly, to the fact that these legal systems have traditionally been the most important in the world. This was due to their application to very large territories, which stood out for their economic development. For these reasons, for many decades the certified translation of legal texts has been about texts belonging to these two great legal systems.

Broadly speaking, the one known as Civil Law, Continental Law or Romano-Germanic Law; governs in practically all of Europe (with the exception of some territories belonging to the United Kingdom), a large extension of Latin America and various African countries. The legal concept that corresponds to the Common Law system, of Anglo-Saxon origin, is applied in England, Wales, Ireland and a large part of the former colonies of the United Kingdom, including the United States (with the exception of the state of Louisiana), Australia, New Zealand and Canada (with the exception of the French-speaking area).

In particular, the opposition between Civil Law and Common Law has been related to two types of texts: those texts of direct application of the law, such as contracts concluded between parties whose origin is rooted in different legal systems; and judicial texts, which reflect the great differences between the legal systems described here.

However, it should be noted that the exclusive study of the differences between the Civil Law and Common Law systems does not portray the globality of the discipline known as legal translation. On the contrary, the complete study of this relevant subject requires bringing up several factors that modify the educational approach to be followed in the study of legal translation. This is due to various causes, the existence and consequences of which in the field of certified translation are analyzed below.

Firstly, the existence of other legal systems in the world in addition to the Common Law and the Civil Law, as well as various mixed systems that combine elements similar to these two great families, must be highlighted. Although these legal families have traditionally occupied an almost residual place, today they are applicable in states with recent economic development. As a result, there are legal systems other than the Common Law and the Civil Law that today play a major role in international commercial transactions. For this reason, the systematic approach to the distinction between Common Law and Civil Law is currently biased and Comparative Law is presented as an alternative to the classic dichotomy as the ideal technique for dealing with a specific translation assignment.

Likewise, it is necessary to reflect that legal translation is not alien to the phenomenon of world-wide globalization that has occurred in innumerable fields, permeating even the everyday sphere of people. Thus, it is increasingly common for translation assignments received by a certified translator to have points of connection with different jurisdictions. This inevitably forces professionals to adopt a global view that analyses the different institutions in the material and spatial environment in which they are to be virtually applied. Once again, the distinction between Common Law and Civil Law is insufficient and it is necessary to combine the knowledge of these traditional systems with new techniques of knowledge of the law and of the reality that subsists in the regulation of the different countries.

To complete the map of the current study of legal translation, it is convenient to address the knowledge of private international law institutions, such as the choice of applicable law and the forum for conflict resolution. In the documents of private application of the law, which are mostly made up of contracts of an international nature, the parties have much to say about the different legal systems that apply to their business relations. In this regard, there is nothing to prevent a Chinese manufacturer and a audi purchaser concluding a contract for the distribution of products with delivery in Spain. The manufacturer and the distributor may even decide that any disputes arising from the application of their contract shall be settled in an arbitration court in Singapore, applying Swiss law. This translation assignment may be entrusted to a certified translator, if the parties to the contract have decided to draft all these provisions in English.

Assumptions such as the one mentioned above are worth considering: is it necessary to know the differences between Common Law and Civil Law in order to undertake this translation assignment? Or rather, is it necessary to apply an international approach that will enable the assignment to be carried out with the utmost fidelity and precision in the legal institutions mentioned?

All the above shows that the classic distinction between Common Law and Civil Law, which has traditionally been the subject of study in legal translation, has shortcomings in relation to the reality of the globalised world. Thus, in order to undertake the translation assignments that are generated today with a certain standard of quality, it is necessary to broaden the focus of the translation activity. Consequently, professionals in this discipline are called upon to overcome the classic dichotomies and place themselves in a position that allows for an international perspective when facing their activity.

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