Is That a Fish in Your Ear?

Legal translation between the official languages of countries that have more than one—Canada, Belgium, or Finland, for example—is not exactly easy, but it is usually better rewarded and less stressful, partly because the translators often have legal training themselves. The issue of the incommensurability of legal systems does not really affect this kind of work, since it is the same language of law that is being expressed in both tongues. All the same, it is crucial that the two versions be construed in exactly the same way. Given the natural anisomorphism of languages, that is often very difficult to achieve. Law translation in such circumstances tends toward a homogenization of tongues—creating similar-sounding formal equivalents in the two versions of the law—to reduce the risk of a clever lawyer exploiting an apparent verbal discrepancy between two versions of the same text.

The trend toward making legal languages look the same when put into a different tongue seems to be driven on the one hand by a rather naïve idea of how languages work and on the other by an overriding concern that laws be seen as the same by all who fall under their sway. An illustration of the seemingly irresistible drift toward homogenized transnational legalese is provided by the history of the words used to express the broadest and least national juridical principle of all—the notion of fundamental human rights.

In 1789, the new revolutionary regime in France drew up its famous declaration of the rights of man and called it the Déclaration des droits de l’homme et du citoyen. Its purpose was to sweep away the religious and feudal underpinnings of the legal system inherited from the monarchy and to establish, under the authority of a Supreme Being who could not be called God lest that be seen as a sop to the Catholic Church, the basic rights of the citizen in his relationship to the new French state.

There was no question of these rights being accorded to any who were not fully emancipated citizens. As no one had yet thought of enfranchising women, the use of a masculine term, homme, was not just a convenience of language—it was what the declaration meant to say. It established and made explicit the rights of male subjects who were also citizens.

Unlike French or English, German has a noun for “human being” that covers men and women without distinction—ein Mensch is just any member of the human race. The other word for “man,” Mann, refers exclusively to a male, and in many contexts it also means “husband” or “married man.” That’s why Männerrechte can’t serve as a translation of droits de l’homme—it could too easily be taken to cover conjugal and domestic affairs, which “human rights” obviously do not. So French droits de l’homme was quite naturally represented by Menschenrechte in German translation. In fact, the declaration needed translating into German within a few years of its drafting, because large parts of what is now Germany were conquered by France and incorporated into the republic and then the empire, where they stayed until 1814.

Because Mensch cannot be translated directly into English without saying either more or less than the original, it became customary to refer to Menschenrechte in English as Human Rights, even though the phrase “Rights of Man” had been made famous by Thomas Paine’s pamphlet of 1791. The English formula of a generalizing adjective plus a plural noun (human + rights) is the third alternative form of a concept that began as a plural noun plus a singular noun phrase linked by a genitive (droits + de + l’homme) that had transited by way of a noun-plus-noun compound of which both parts are plural (Menschenrechte ). These changes in grammatical form engendered subtle shifts in implication that became apparent only in later times. “Human rights” was intended as a “translation” of les droits de l’homme et du citoyen, but it was something more, and something less. It went on to acquire a life—and a power—all its own.