François Gény s libre recherche scientifique as a Guide for Legal Translation

• Author: Nicholas Kasirer
• Position: Faculty of Law and Institute of Comparative Law, McGill University
• Pages: 331-352

Page 331

Faculty of Law and Institute of Comparative Law, McGill University, and Director, Quebec Research Centre of Private and Comparative Law. The author extends thanks to Saúl Litvinoff, director of the Center of Civil Law Studies at Louisiana State University, for providing information on Jaro Mayda's career, and to Jean-Claude Gémar of the École de traduction of the Université de Genève for an invitation to present an earlier version of this paper at a colloquium on legal translation held at Geneva in February 2000, as well as for permission to publish in the Louisiana Law Review. At the request of the editorial board of the Louisiana Law Review-and at our own peril given the subject- matter of this paper-selected translations are offered in the footnotes. Where not otherwise noted, translations were prepared by the author.

Introduction

What attitude would a lawyer adopt when apprised of the scholarly disagreements over the best way to translate the title to Marcel Proust's masterpiece into English? For nearly half a century, C.K. Scott Moncrieff's rendering of À la recherche du temps perdu was an uncontested touchstone and, with time, Remembrance of Things Past took on a wholly Proustian sound in the ears of its English-language readership. In the 1980s, D.J. Enright and Terence Kilmartin prepared a new translation which revised rather than abandoned the Moncrieff work. In one of the few radical departures from the initial translation, Enright proposed a change of title in a late revision: In Search of Lost Time was offered up as the right way to imagine la recherche in English.

Ask a jurist: Which translation was right? One might expect objections to Moncrieff's title to come from lawyers who ally themselves, openly or otherwise, with the tradition of literalism that drives the dominant professional ethic in legal translation. Remembrance of Things Past evinces an apparent absence of "fidelity to the source text," the polar star of legal translation. "Remembrance," "Things," "Past"-indeed none of these words appears in the Journal officiel of Jean-Yves Tadié's second la Pléiade edition of the la recherche "established" in the late 1980s. By employing a metaphor that is not in Proust's title, Moncrieff raised the suspicion among some readers-famously Vladimir Nabokov-that he had acted ultra vires the role of the translator. Moreover Moncrieff left the letter of the législateur proustien behind further still in a final affront: his title comes not from Proust at all but is borrowed-a borrowed literary device no less-from Shakespeare. This mix of language and cultural reference is, for a lawyer, the literary equivalent of passing off a usufruit as a life estate in English.¹ In striving for familiarity with the target Page 332 audience, the translator seemed to have sacrificed precision and meaning at the altar of elegance. The literalist legal tradition would hold this as not only a liberty, but as wrong in law.

By contrast, the Enright proposal, which anglicizes Proust's wording rather than his imagery, seems more in keeping with prevailing attitudes among legal translators. In Search of Lost Time is du mot-à-mot, or nearly so, a time-honoured (if occasionally decried) technique from which lawyers only depart when the method itself threatens the sense it purports to render.² While conventional approaches to legal translation do include some safeguards against the excesses of literalism, it is generally accepted in translation circles that a trembling reverence is the right mode for the lawyer when beholding the source text. This would appear to be no more than the echo, in the field of translation, of the dominant approach to legal interpretation in western legal culture. Nourished by the primary place accorded to written text and in particular to legislative enactments in the theory of sources of law, the positivist tradition in legal interpretation champions the authority of the legislature as the ultimate source of law and of its meaning. According to this view, the process of discovery of meaning is reduced to what is sometimes called one of "declaration" by the person engaged in interpreting legal text. As applied to statute, this theory of interpretation proceeds from the sense that the legislature fixes its intention and gives it expression in the legislative text; the reader interprets the text by declaring the true sense of what the legislature meant. Leading Canadian scholar Pierre-André Côté³ has usefully characterized this traditional view of interpretation as an "activité déclarative de sens," to be contrasted with a competing understanding of interpretation which recognizes the reader's contribution to a process of constructing or creating meaning. For Côté, when interpretation is understood as an "activité constitutive de sens," the role of the reader as a participant in discerning meaning is more plainly acknowledged.

The conventional attitude to legal interpretation mimics the traditional understanding of the manner in which source texts in law are to be encountered by the translator-reverentially, with a view to discovering meaning through passive reading rather than creating meaning through an active, interpretative appropriation of the text. This positivist instinct, when transposed to legal translation, supports Page 333 the view of the translator as something of a non-actor for law, whose task is limited to transcribing a legal text from one language to another without participating in the production of new ideas. The translator is often depicted, if at all, as a faceless player in the transmission of legal ideas and his or her work is not understood to be a communicative act distinct from that of the author of the source legal text. Plainly labouring under the weight of the dominant positivist ethic for interpretation in law, the translator is not imagined as a legitimate creative actor but as a simple mediator of legal ideas. To return to the lawyers' consideration of the proper English title for la recherche, the word-for-word proposal is seen as best because it is likely to be most faithful to original intention: In Search of Lost Time is, along this view, not just correct but correct in law.

One might well look outside the positivist legal tradition when embarking on the recherche-remember this word!-for the right method for legal translation. Even among translation scholars who acknowledge the dangers of literalism in transposing text from one language to another, there is still an uncertainty as to how, from a theoretical perspective, this can be avoided.⁴ French legal thinker François Gény provides one possible guide with his theory of libre recherche scientifique, anchored in a world view of law-even when construed as positive law-that extended well beyond codes, enactments and other legislative forms. A rough contemporary of Proust who had few of the latter's gifts⁵ and yet apparently enough ambition to aspire to the novelist's accomplishments,⁶ Gény wrote the leading French work in legal hermeneutics of the last century wherein he set out a comprehensive theory for which the libre recherche scientifique was the foundation.⁷ Gény counselled that a jurist should set out on a relatively unencumbered search for meaning whenever the law, unclear or without a direct answer on its face, had to be interpreted. Where, for example, the legislative intent of a provision of the Code civil was not plain from the terms of the text itself, a judge should be free to explore and settle meaning in a wide-ranging though not wholly unconstrained fashion that proceeded according to Gény's established scientific method of interpretation. All interpreters of legal text were invited to Page 334 follow this lead in their own quest for meaning in law. Without completely forsaking deference to legislative authority, Gény's approach was a far cry from the servility of some of his French legalist contemporaries; he promoted a theory of interpretation that recognized the authority of the interpreter-the judge, the scholar, the citizen-as relevant to the determination of meaning in law. In this sense, his theory fell outside of the conventional approach to interpretation of the day which, in large measure, considered the role of the person charged with understanding meaning as less important, in service of the positivist ideal that the interpreter was not a creative agent in the theory of sources of law.

Just as Gény provides a counterpoint to the dominant theory of legal interpretation, he might be thought of as setting forth the theoretical basis for a challenge to the conventional view of the role of the translator in deciding on what is appropriate in legal translation. Applying the precepts of libre recherche scientifique to legal translation, one might imagine that the translator adopt a more creative posture in shaping the target text as a result of a less constrained method employed in the interpretation of the source text. Gény offers, therefore, a theoretical basis for a cautious departure from literalism in translation that is worthy of study by translators. Gény's own tip of the hat to French legal positivism means that his theory of interpretation cannot be said to be grounded in the free-form approach to translation argued for in some literary circles. But his suspicion of the legislature's monopoly over meaning clears the way for a recognition of the role of the legal translator as an independent source of meaning, perhaps even independent source of law (I).

Gény's idea provides its own litmus test for the legal translator. Before evaluating the potential for libre recherche scientifique as a substantive guide for legal translation, one must translate the term itself. Like the title to Proust's novel...