Is That a Fish in Your Ear?

Translation was at the heart of the International Military Tribunal that opened in Nuremberg, Germany, in November 1945. What had to be established first was the overall legal procedure to be used, and that was no straightforward task. Two of the victorious Allies used a common-law system, and the other two, France and the U.S.S.R., like defeated Germany, had different but related versions of what is called civil law. In civil-law systems, defendants make opening and closing statements but do not participate in any other part of their own trial. They sit in a special place and cannot be subject to further examination, since that is supposed to have been conducted exhaustively by the examining magistrates, who brief the prosecuting team. In the common-law tradition, on the contrary, a defendant is held to be innocent until found guilty and is therefore treated formally as just another witness to the crime. That’s the reason American courtroom dramas are so much more exciting than French versions of the same genre. The Nuremberg court adopted a mixed system: it was not a jury trial, as it would have been had it been conducted entirely within British or American systems, but a tribunal judged by an international panel of judges. But it did impose cross-examination on the defendants, who were called to the witness box in German. However, in German, “witness” is Zeuge, and a Zeuge cannot give testimony at his own trial. The arguments about how to proceed at the Nuremberg Trials were not only about language but about the incommensurable differences among the languages, institutions, and customs of different languages of law. Law translation in international affairs always runs up against huge obstacles of that kind: law words do not mean the same thing when translated, and the institutions they serve are not the same.

Over the last sixty years, the scope and implementation of international law has expanded at a prodigious rate. The sought-after effect—sought after by political will but implemented by legal translation teams—is to bring the different meanings of words belonging to incommensurable systems of law into greater harmony, or, as critics of this process protest, to homogenize and standardize the idea of what the law is. Karen McAuliffe reports that lawyer-linguists working at the European Court of Justice are aware that European Union law is a legal system “built from approximations of law and language from different legal cultures and different legal languages, which come together to form a new supranational legal system with its own language.”[139]

This is exactly what the Saussurean theory of the sign would entail. What language scholars rarely take into account is that, given sufficient effort and political will, new systems can be made.

TWENTY-ONE Ceci n’est pas une traduction : Language Parity in the European Union

This Treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. Pursuant to the Accession Treaty of 1994, the Finnish and Swedish versions of this Treaty shall also be authentic. Pursuant to the Accession Treaty of 2003, the Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovak and Slovene versions of this Treaty shall also be authentic.