Is That a Fish in Your Ear?

What, then, allows us to know that this sign is not that sign? That table and cable represent two different signs? Because they differ in respect of something that is a structural part not of “language” in any abstract sense but of the language called English. That is to say, the difference between the sounds represented by t and c is a basic element of the structure of the English language—and the entire structure that is the English language consists exclusively of sets of differences or oppositions of this fundamental kind. A language is then nothing other than a system of differences, because a sign in any language is exhaustively defined by all the things that it is not. What makes English not French or Chinese, for example, is the specific set of differences on which it is built. Rising and falling tones, for example, exist in any act of speech, but they are not parts of English. On the other hand, tones are signs in Chinese. Similarly, the difference between the sounds usually written as l and r is part of English but not of Japanese. To map the differences that are made use of in a language is to map the structure of the language itself.

Saussure’s approach to language makes each actual language sui generis, “of its own kind,” that is to say, an internally coherent system that can never be satisfactorily mapped onto any other. The automatic consequence is that no sign in any one language is fully identifiable with any sign in any other equally unique system of signs. Throughout the twentieth century, the Saussurean doctrine of the sign provided a reason for disregarding translation and ignoring the resources it gives for understanding how languages are used.

Saussure certainly didn’t have law in mind when he pursued this rich train of thought, but his doctrine of the sign is directly applicable to it. Law is a systematic use of language that relies for its coherence on the precise distinctions it makes between its own constituent terms. In any given legal language, “murder” is what the book of statutes and the records of cases judged have said it is—not what the ordinary language sign murder might be taken to mean among layfolk. Law is a system of signs.

Legal systems have different histories, different norms, different distinctions and ways of doing things. Even when the languages of different legal systems look the same—as in English and Scottish law, for example—the terms they use are not interchangeable. Each one is truly sui generis, constituted exclusively by the particular distinctions it makes. That’s the reason you can’t translate legal language—except that you must.

Defendants in many parts of the world are entitled to understand their own trial, and courts are obliged to find translators and interpreters for whatever languages are involved. They often have to scour far and wide. A request for an English–Hungarian interpreter for a murder trial in rural Scotland landed on my doorstep thirty years ago. The brave person who took on this awesome responsibility in the end had never seen a courtroom before and was barely more aware of the meaning of what was going on than the defendant herself. In the state of New Jersey today, the courts service employs many hundreds of mostly parttime interpreters, predominantly in Spanish, at low rates of pay and with little supervision. In New York City, where no fewer than 140 languages are represented, finding language intermediaries for court cases is a huge administrative task. In South Africa, too, where eleven languages now have official status, court interpreting is often a lamentable mess.[136] The language rights of linguistic minorities are important achievements, but their implementation often leaves a lot to be desired.

Court interpreting of this kind is internal to a single system of law: where the minority language does not have a strictly equivalent term—for prosecutor, attorney, or QC, for example—the source-language term is mostly used, as it is indeed the proper term for the individual or instance that matters at that point. But the interpreter may also have to add explanations or rephrase what is said in altogether different terms in order to make sure that what are understood are not just the words but the force and real-world consequences of the expression used. It is an extremely difficult and responsible job. It is rarely recognized as such.