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Legal research, legal writing, and legal translation are the lights that illuminate the dark, unknown regions in the universe of law.

Research

Can we translate our customary methods and techniques when research transports us into another legal culture?

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Writing

Cultures and legal systems other than our own have made valuable contributions to the history of written law.

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Translation

Translation provides a laboratory in which we can learn to elevate our capacity to select and use legal terminology.

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LEGAL RESEARCH

The English word “research” derived from the Old French verb recercher, or “seek out, search closely.”[1]  That French verb derived from the Latin words circā and circum,[2] both of which meant something like “around, round about, all around.”[3]  With the addition of the prefix re-, cercher (later chercher) transformed into the more intense verb rechercher.[4]

“Research” continued to evolve with the addition of the senses “careful search” and “a careful hunting for facts” for the English noun and “investigate closely” for the corresponding verb.[5]  The noun “investigation,” which is a synonym of research,[6] derived from the same Latin word that produced the Spanish noun investigación,[7] as in investigación jurídica (legal research).[8]

This history[9] of the word “research” gives us some indication of the complex and varied nature of legal research.[10]  During the process of legal research, we translate across time.[11]  But can we translate our customary[12] methods[13] and techniques[14] when research transports us into another legal culture?

  • What do we know about the legal system,[15] the language,[16] the terminology,[17] and the sources of law?[18]
  • Where should we search, in books or online?[19]
  • Which books, documents, and electronic resources are available?[20]
  • When do we need to consult sources outside of law?[21]
  • How can we utilize our time[22] and evaluate resources most effectively?[23]
  • Why is our investigation important?[24]
  • Who can help us locate the information that is the object of our investigation?[25]

Even the most fundamentals aspects of legal research can change when we cross into another legal system or tradition.[26]  Rather than translate our methods, we need to adapt[27] them.  In other words, we need to adapt our “legal research” to the investigación jurídica of another legal system or vice versa.[28]



[1] Robert K. Barnhart and Sol Steinmetz, eds., Chambers Dictionary of Etymology (Edinburgh: Chambers, 2008), s.v. “research.”

[2] Oscar Bloch and Walther von Wartburg, Dictionnaire étymologique de la langue française, 3rd ed. (Paris: Quadrige/Presses Universitaires de France, 2009), s.v. “chercher.”

[3] Charlton T. Lewis, An Elementary Latin Dictionary: With Brief Helps for Latin Readers (Oxford: Oxford University Press, 1996), s.v.v. “circā,” “circum.”

[4] Bloch and von Wartburg, Dictionnaire étymologique de la langue française, s.v. “chercher”; Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v. “research.”

[5] Barnhart and Steinmetz, Chambers Dictionary of Etymology, s.v. “research.”

[6] Christine A. Lindberg, comp., Oxford American Writer’s Thesaurus, 2nd ed. (New York: Oxford University Press, 2008), s.v. “research.”

[7] Santiago Segura Munguía, Nuevo diccionario etimológico Latín-Español y de las voces derivadas, 4th ed., Serie Letras 34 (Bilbao: Universidad de Deusto, 2010), s.v. “investīgātĭō.”

[8] Here the appropriate Spanish equivalent for the English noun “research” is investigaciónGran diccionario Oxford: Español-inglés; inglés-español, eds. Beatriz Galimberti Jarman, Roy Russell, Nicholas Rollin, and Carol Styles Carvajal, 4th ed. (New York: Oxford University Press, 2008), s.v. “research¹.”  The appropriate equivalent for the adjective “legal” is jurídico.  Carlos Machado Schiaffino, Diccionario Jurídico Polilingüe: Español, alemán, francés, inglés, italiano, portugués (Buenos Aires: Ediciones La Rocca, 1996), s.v. “jurídico.”  Because the Spanish word investigación is a feminine noun, the rules of agreement require that the adjective take the feminine form jurídica.  Real Academia Española, Diccionario esencial de la lengua española (Madrid: Espasa Calpe, 2006), s.v. “investigación”; Real Academia Española and Asociación de Academias de la Lengua Española, Diccionario panhispánico de dudas, with the collaboration of Instituto Cervantes (Madrid: Santillana Ediciones Generales, 2005), s.v. “concordancia 1.a.”

[9] In linguistics, “etymology” is the name for “[t]he study of the historical relation between a word and the earlier form or forms from which it has, or has hypothetically, developed.”  P.H. Matthews, comp., The Concise Oxford Dictionary of Linguistics, 2nd ed. (Oxford: Oxford University Press, 2007), s.v. “etymology.”  Etymology has a very long history if we include “[t]he attempt to find or explain the source(s) of a word,” which “is as ancient as anything we know in human documents.”  Eric P. Hamp, “Etymology,” in International Encyclopedia of Linguistics, ed. William J. Frawley, 2nd ed. (New York: Oxford University Press, 2003), 2:7.  As the users of dictionaries, however, we need to recognize that “[t]he bracketed etymological inclusions in general-purpose dictionaries are of varying quality.”  Hamp, “Etymology,” 2:11.

[10] A U.S. textbook offers this description of legal research:

Legal research is the process of identifying and retrieving information necessary to support legal decision-making.  In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.

Steven M. Barkan, “An Introduction to Legal Research,” in Roy M. Mersky and Donald J. Dunn, Fundamentals of Legal Research, 8th ed. (New York: Foundation Press, 2002), 1.

[11] “When we read or hear any language-statement from the past, be it Leviticus or last year’s best-seller, we translate.  Reader, actor, editor are translators of language out of time.  The schematic model of translation is one in which a message from a source-language passes into a receptor-language via a transformational process.  The barrier is the obvious fact that one language differs from the other, that an interpretative transfer . . . must occur so that the message ‘gets through’.  Exactly the same model – and this is what is rarely stressed – is operative within a single language.  But here the barrier or distance between source and receptor is time.”  George Steiner, After Babel: Aspects of Language and Translation, 3rd ed. (Oxford: Oxford University Press, 1998), 28-29.

[12] The English adjective “customary” is used here in the sense “commonly done” or “usual.“  Shorter Oxford English Dictionary: On Historical Principles, 6th ed., s.v. “customary.”  Both the adjective and the related noun “custom,” however, have meanings in law as well as in ordinary language.  Shorter Oxford English Dictionary, s.v.v. “custom,” “customary.”

[13] The modern English term “method” derived from the Greek term methodos and possesses senses that include “[a] mode of procedure; a (defined or systematic) way of doing a thing, [especially] . . . in accordance with a particular theory or as associated with a particular person.”  Shorter Oxford English Dictionary, s.v. “method.”  The Greek term signified “a following after; a scientific inquiry or treatise; method, system.”  [Henry George Liddell and Robert Scott], A Lexicon: Abridged from Liddell and Scott’s Greek-English Lexicon (Oxford: Oxford at the Clarendon Press, 1996), s.v. “μέθοδος” (colons replaced by semicolons).  Here is one explanation of “method” in the context of science:

The term “method,” strictly speaking, “following a way” (from the Greek μέτα “along,” and ὁδόϛ, “way”),  refers to the specification of steps which must be taken, in a given order, to achieve a given end.  The nature of the steps and the details of their specification depend on the end sought and on the variety of ways of achieving it.

Peter Caws, “Scientific Method,” in The Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan, 1972), 7:339.

[14] The senses of the English noun “technique” include “[m]anner of [especially] artistic execution or performance in relation to mechanical or formal details,” “skill or ability in this area,” and “[a] skillful or efficient way of doing or achieving something.”  Shorter Oxford English Dictionary, s.v. “technique.”  The origins of “technique” and the related words “technic,” “technical,” and “technology” extend at least to the Greek term tékhnē.  C.T. Onions, ed., The Oxford Dictionary of English Etymology, with the assistance of G.W.S. Friedrichsen and R.W. Burchfield (New York: Oxford University Press, 1996), s.v. “technic.”

The Greek philosopher Plato used the terms ἐπιστήμη and τέχνη interchangeably.  Alexander P.D. Mourelatos, “Plato’s Science — His View and Ours of His,” in Science and Philosophy in Classical Greece, ed. Alan C. Bowen, Sources and Studies in the History and Philosophy of Classical Science 2 (New York: Garland, 1991), 15.  The senses of the Greek term τέχνη included “art, skill, regular method of making a thing”; “art, craft, cunning, sleight”; “generally, a way, manner, means whereby a thing is gained”; and “an art, craft, trade.”  [Liddell and Scott], A Lexicon, s.v. “τέχνη.” 

[15] “An American doing research on the law of a Civil Law country,” for example, “must be aware of the major differences between the Civil and Common Law systems, and the effect of these differences on how legal problems are viewed and how research is conducted.”  J. Paul Lomio and Henrik Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 2nd ed. (Copenhagen: DJØF, 2009), 103.

[16] “Thorough research on a foreign law issue can only be undertaken in the language of the jurisdiction.”  Lomio and Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 104.

[17] As researchers, we need to recognize the possibility of variations in the legal terminology of the different legal systems and traditions.  For example, “American scholars who want to undertake comparative research on E.U. ‘law’ (and Civil Law) should be careful about using legal terms, even ones well-known in American legal circles, as their meanings may be quite different in Europe (and Civil Law).”  Lomio and Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 171 (reference omitted).

The obstacles of legal terminology are not limited to the contrast between the terms used in the Common Law and Civil Law traditions.  In its legal language and terminology, the Islamic legal tradition, for instance, presents its own obstacles:

One of the most difficult issues in the study of Islamic law is that its legal language has a wide spectrum of connotations and thus lacks absolute boundaries.  Many legal concepts have not acquired a standardized and technical mode of expression.  A single word could bear multiple meanings, and a single meaning could be conveyed by a variety of distinguishable, yet interchangeable, terms.

Sharron Gu, The Boundaries of Meaning and the Formation of Law: Legal Concepts and Reasoning in the English, Arabic, and Chinese Traditions (Montreal: McGill-Queen’s University Press, 2006), 40.

[18] There is a notable contrast between the sources of law in the Common Law and the Civil Law traditions:

Common and civil law systems differ in their theories about the sources of law, the relative persuasiveness of the sources, and the ways in which the sources are used in legal reasoning.  For example, in legal systems that are part of the civil law tradition, the legislature creates a comprehensive code of legal principles that represents the highest form of law, and there is a presumption that code provisions apply to every legal problem.  In common law systems, there is no presumption that statutes or codes cover all legal problems; many legal principles are discoverable only through the “unwritten,” or common law.

Barkan, “An Introduction to Legal Research,” 3 (reference omitted).

[19] “The most effective research adopts a strategy of using both books and the computer.  Knowing when to use books, rather than an immediate online search, is a bit of an art, rather than a science.”  Lomio and Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 98.

[20] Legal research often requires us to consult sources that are not available in the libraries that we regularly use, but electronic resources, the Internet, and interlibrary-loan agreements offer us access to many materials that were once unavailable:

La investigación jurídica a menudo requiere que se consulten algunas fuentes que no están disponibles en las bibliotecas que utilizamos regularmente.  Afortunadamente los recursos electrónicos y la disponibilidad de fuentes por Internet nos permiten acceder a muchos materiales que antes no teníamos disponibles.  Además, existen acuerdos institucionales que permiten hacer préstamos de libros y materiales de otras bibliotecas, dentro y fuera del área geográfica en la que trabajamos.

Luis Muñiz Argüelles and Migdalia Fraticelli Torres, La investigación jurídica en el derecho puertorriqueño: Fuentes puertorriqueñas, norteamericanas y españolas, with the collaboration of Víctor Manuel Muñiz Fraticelli, 4th ed. (Bogotá: Temis, 2006), 40.

[21] “Many types of information are needed to support legal decision-making,” so “the process of legal research often involves investigation into other relevant disciplines.”  Barkan, “An Introduction to Legal Research,” 1.

[22] In research, time is a precious commodity:

[T]he skills of sophisticated researchers are measured as much by the knowledge of what can be omitted as by which research materials are used and how they are used.  The attorney’s stock in trade is time; a skilled legal researcher knows how to use it wisely.

Steven M. Barkan, “The Legal Research Process,” in Mersky and Dunn, Fundamentals of Legal Research, 20 (reference omitted).

[23] Like our language skills, our capacity to discover and navigate unidentified or alien resources can magnify the dimensions of legal research.  But we need to know how to evaluate such resources:

When inspecting and evaluating legal resources, it is important to determine and understand the purposes the resources were designed to serve. . . . An awareness of the functions, features, interrelationships, strengths, and weaknesses of available resources, whether they are traditional paper resources or electronic resources, proves valuable for effectively conducting legal research.

Barkan, “An Introduction to Legal Research,” 12. 

Sometimes we need to adjust our expectations so that we do not underestimate the value of websites that appear strange but contain accurate information:

Non-Western or non-US Web sites may not look like what US researchers expect. . . . The page may not look especially sophisticated, but it contains the accurate text of, and citation to, official law.  Thus, a researcher would not want to dismiss these sources simply because of their appearance.

Marci Hoffman and Mary Rumsey, International and Foreign Legal Research: A Coursebook (Leiden: Martinus Nijhoff, 2008), 68.

[24] Every issue requires a different focus:

Es necesario poner en justa perspectiva el propósito que persigue la investigación antes de elaborar un plan o estrategia de trabajo. . . .

Cada asunto requiere una atención particular y un enfoque diferente.  El diseño de una investigación varía según el propósito inmediato y los efectos a largo plazo que persigue el abogado o investigador.

Muñis Argüelles and Fraticelli Torres, La investigación jurídica en el derecho puertorriqueño, 38.

[25] “Two valuable and often overlooked research sources are people and organizations.  While the Internet has sometimes made personal contacts unnecessary, people remain the best source of information on some topics.”  Hoffman and Rumsey, International and Foreign Legal Research, 15.

[26] The fundamental differences include the  instruction of legal research:

Courses on “legal research” in Europe are not about how and where to find “the law” physically or online.  Broadly stated, the legal research courses in Europe deal with the theoretical (scientific) question of “what is law (in the European sense)” and how to (correctly) interpret “the law.”

Lomio and Spang-Hanssen, Legal Research Methods in the U.S. and Europe, 110-11.

[27] The senses of the verb “adapt” include “[f]it,” “adjust,” “make suitable,” and “[a]lter or modify to fit for a new use, new conditions, etc.”  Shorter Oxford English Dictionary, s.v. “adapt.”  In the field of translation studies, “[a]daptation may be understood as a set of translation interventions which result in a text that is not generally accepted as a translation but is nevertheless recognized as representing a source text.  As such, the term may embrace numerous vague notions such as appropriation, domestication, imitation, rewriting, and so on.”  Georges L. Bastin, “Adaptation,” trans. Mark Gregson, in Routledge Encyclopedia of Translation Studies, eds. Mona Baker and Gabriela Saldanha, 2nd ed. (London: Routledge, 2011), 3 (emphasis omitted).

What can the motives for a translator to resort to adaptation teach us about the adaptation of our methods of research or, for that matter, our process of writing?

The most common factors (i.e. conditions) which cause translators to resort to adaptation are:

  • cross-code breakdown: where there are simply no lexical equivalents in the target language . . .
  • situational or cultural inadequacy: where the context or views referred to in the original text do not exist or do not apply in the target culture
  • genre switching: a change from one discourse type to another (e.g. from adult to children's literature) often entails a global re-creation of the original text
  • disruption of the communication process: the emergence of a new epoch or approach or the need to address a different type of readership often requires modifications in style, content and/or presentation.
 

Bastin, “Adaptation,” 5 (emphasis omitted).

[28] For example, those who have studied law in the U.S. need to adapt their research skills when they explore Chinese law:

Especially if you are an American law school graduate who possesses a highly developed set of research skills geared to American legal materials and the American legal system and have gotten used to well classified, indexed, cross-referenced, and updated legal information, you have to change your legal research perception and try to utilize your basic legal research skills but adjust these skills to a successful adaptation to the Chinese legal system and materials that are available.

Wei Luo, Chinese Law and Legal Research, Chinese Law Series 8 (Buffalo: William S. Hein, 2005), 302.

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Data
Title of page Legal Research
Address of page http://lawexplorers.com/legal-research.html
Geographic areas Europe; United States of America; China
Languages English; Old French; French; Latin; Spanish; Greek
Terms and phrases research; rechercher; circa; investigacion juridica; legal research; legal system; source of law; etymology; customary; method; technique; legal terminology; επιστημη; τεχνη; adapt; website
Publications Fundamentals of Legal Research; International Encyclopedia of Linguistics; Legal Research Methods in the U.S. and Europe; International and Foreign Legal Research; Chinese Law and Legal Research
Authors George Steiner; Sharron Gu; Luis Muniz Arguelles; Migdalia Fraticelli Torres
Individuals Plato