State University - Higher School of Economics (Russia)
Comparative Analysis of Anglo-American and Russian Legal Systems and Terminology
This article is part of the project “Contrastive Analysis of the Civil Law Concept in the English and Russian Languages” (# 08-01-0145) realized under the auspices if the Higher School of Economics
There are no two identical legal systems in the world. Even if two countries speak the same language and belong to the same legal family, for example, the USA and Great Britain, their legal systems differ greatly. Not by chance people say that these two countries are divided not only by the common language, but also by the common law. If a country speaks a different language and belongs to another legal family, any comparative analysis becomes even more complicated.
What legal system does Russia belong to? To answer this question we should first consider in a nutshell the peculiarities of the major modern legal systems. Professor C. Osakwe gives a brief but thorough review of existing legal families, paying special attention to the main branches in the Western system of law, Roman-German or continental European law and Anglo-American common law systems. (Osakwe 2002: 27-46). Do these systems differ greatly?
The first distinguishing feature of the European law is the influence of Roman law. Roman-German law is deeply rooted in the Roman private law, it was formed under its influence and still preserves and follows many of its concepts. In contrast, Roman legal traditions did not exert such influence over Anglo-American law.
The second feature of the continental law is its systematic character, emphasis on logic and theory. The main character here is a scholar, a professor of law, that is why in Germany it is called “professorenrecht”. This peculiarity contrasts continental law with common law because the latter was formed under the influence of decisions of Westminster Royal courts, which were pragmatic and close to reality. Due to the above reason, Anglo-American law sometimes lacks systematic approach and academic accuracy, focuses more on practical application of laws, and is called “the judge-made law” or “juristenrecht”.
The next feature is their attitude towards codification. In all European countries all main branches of law are codified, they have civil, commercial, and criminal codes. Codes are considered important because they put in good order the country’s system of law, they make legislation more intelligible even to lay people and thus contribute to the growing legal literacy in the society. Codes also provide courts with guidelines and make finding the right decision much easier for people who practice law. On the other hand, advocates of common law system give their arguments against codification. They say that codes “freeze” the natural development of law, turn courts and judges into passive executors of ready-made decisions and only hinder the administration of justice because they are not able to foresee all possible turns of real life. Countries belonging to common law system are not very strong supporters of codification. Nowadays, for example, in the UK there are no any codes. In the USA some branches of law are codified but these codes are not similar to their continental counterparts and typically present the collection of laws and judicial decisions.
The structure of the law is also different. Continental law divides the substantive law into public and private parts. Private law is represented by civil law, commercial law and international private law. Anglo-American system recognizes neither the division of substantive law into two branches, nor the existence of civil and commercial law. The major parts of their system are common law and equity law.
The next peculiarity that distinguishes the two legal families is their attitude towards private law. Historically, continental law gives priority to private law, i.e. the concept of primacy of private law over public law is observed. This principle contradicts the common law tradition where the stress on public law is made . The different approaches are easy to explain, if we look back into the history of English law and see that Royal courts dealt mostly with public law matters ( cases in the field of land law, criminal law and financial law) and private law matters (law of obligations) were sent to manorial courts. . Consequently, substantive law has always been considered more important than procedural law on the continent. In the common law countries, the principal of prevalence of procedural law is used. There are many more features that distinguish one legal system from the other and only a few fundamental ones were outlined here (for more details see: Osakwe 2002:34-40). For our linguistic research, it is crucial that continental and common law systems apply their own specific terminology even if they use the same language.
Modern post-soviet Russian legal system has many features of European continental law but we cannot say that it fully fits into the family of the Western law countries. Our legal culture does not allow us to be included into the system of Western law so far. Before the socialist revolution (1917), Russian law system borrowed much from German legal system and formally could be included into the German sub branch of the continental law. After the October Revolution Soviet lawyers decided to find their own unique way in law and followed this path for at least 75 years, they tried to find their own identity and to create soviet socialist law in Russia. After these attempts failed, Russia tried to come back to its roots, i.e., to the European system of law. Therefore, from the formal point of view the Russian law system is closer to the Roman-German law than to the Anglo-American one. Comparative analysis of Anglo-American and Russian legal systems is given in Table 1.
Different nature of legal systems leads to translation problems. Terminology systems are very difficult to compare because the volume of meaning of similar notions does not coincide in different languages. Translation equivalents are easy to find in a dictionary but they often cause much confusion. One can never be sure about the quality of translation because there are several types of equivalence including full and partial equivalence. Full equivalents are easy to deal with, you just consult a dictionary and find a solution, but there are also “partial cognates”: equivalents with a more narrow (broader) meaning or with overlapping meanings.
The first type is represented by equivalents with a narrower (broader) meaning. Let us take a poly-semantic word in a Source language (SL) and its equivalent in a Target language (TL), which has only one of several meanings possible in the SL.
Commercial paper Securities
Promissory note Bill of exchange
The Russian term “tsennye bumagi” includes two American notions. The term “veksel” covers the twin notions of promissory note and bill of exchange. How shall we translate the Russian term? If we speak about these notions in general we should translate them as “commercial papers and securities” and “promissory notes and bills of exchange”. If we are talking about something in particular we should choose on of the given equivalents according to the context.
In the next example the term “upravlenie” can be translated either as “management” or as “administration”:
management in a joint-stock company;
trust administration of property.
(Examples are borrowed from the Civil Code of the Russian Federation).
Now we will consider the second type of partial equivalence, when partial cognates have several meanings, and some of them coincide in both languages while others do not (overlapping meanings).
The international words “administration” and “act” can be good examples.
Activity Governmental agency Administratsia
The word “administration” allows for a twofold usage: 1) as performance of executive duties (close to “management”) and 2) as ‘a group constituting the political executive in a presidential government’ or ‘a governmental agency’. The Russian word “administracija” is used only in the second sense of its English equivalent, but has an additional meaning ‘managerial body of an enterprise’ or administrative staff.
a thing done a product of legislative body Akt
any formal document
A similar example is “act” – in Russian ‘akt’. Here again, both words have two main meanings and only one in common.
The English word “act” means:
1. a thing done (cruel act, act of God)
2. a formal product of a legislative body (legislative act).
The Russian word “akt” means :
1 .= the above English meaning
2. a formal document in which observation of a special form is required (indictment, a statement of a traffic accident, etc.).
The terminology field of notions from property law constitutes quite a challenge for interpreters and translators. The lexical system describing the concept of property consists of partial equivalents, which are closely entangled with one another. Let us have a glimpse at the notion of property in the British legal system. British scholars mention (Panesar 2001) that sometimes the subject is difficult for the students to understand because it lacks the conceptual framework and sometimes the basic concepts are hidden behind details. Traditionally the property law focuses on the study of land law and trust law.
Most property law students are bored by the subject and lecturers, who teach the subject have long been familiar with “the Blackacre syndrome”. For a legal student property law often seems to be all about a place called Blackacre – a principal mansion house, girt by a timber estate, and settled on A for life, without impeachment of waste, with remainder over; and the main character is perceived as pacing the library (rich in volumes settled with land) while muttering peevishly “since I’ve no entail to bar, think I’ll extinguish a few manorial incidents.” (Panesar 2001:1).
Naturally, the property law cannot be limited to the real estate but the boundaries of the subject remain rather vague as compared with other areas of civil law such as contract law and tort law.
The traditional focus on land law or the law of real property is easy to explain. Academic lawyers treat land as a resource, which is very important and fundamentally different from other resources (Panesar 2001:3):
Land is said to be different from other resources in that it is permanent, indestructible and to be enjoyed by successive generations. Historically, land had been the most prized resource and as such attracted the most significant attention.
That is why lawmakers paid less attention to “less important” spheres and the law of personal property remained underdeveloped. Nowadays the conceptual drawbacks of the traditional approach are being overcome and the scholars pay much attention to the equally important topics of movable property and to the concepts of “ownership,” “possession” and “title.” Now let us compare some of these concepts in the British and Russian legal systems.
The notion of property is defined as follows:
1. the right to possess, use and enjoy a thing; the right of ownership
2. any external thing over which the rights of possession, use and enjoyment are exercised (Garner 2001:563).
That is, the notion “property” embraces two meanings: “the relationship” and “the object,” to which the relationship applies. It should be noted, that lay people use the term with the emphasis on a thing (the second meaning), whereas for lawyers the main characteristics of property focuse on the right to or over the thing (the first meaning). What makes a thing ours? It is our right to use this object and to do anything with it. Actually, we may speak here not about one right but about a bundle of rights.
In contrast, in the word combinations “insured property,” “moveable/personal property”, “immovable/real property” we see that the second meaning of the term is realized (object of property). Though the notion “property” is rather complicated and is difficult for lay people to understand, it does not cause much confusion in translation because Russian lawyers also treat the notion of property as one relating not only to things but also to the rights over things. A corresponding Russian word “sobstvennost” also has similar meanings.
When we say “things” we mean both tangible and intangible objects, but for tangible objects, the Russian language has a separate term “imushchestvo”. The relationships of the terms, is shown on the diagram :
Property = “Sobstvennost” tangible
So, when we choose the translation equivalent for the English term “property” we should bear in mind that though it is usually translated as “sobstvennost”, in some contexts another Russian equivalent should be used, or the idea of the original text may be distorted.
Let us switch to the notions of “ownership” and “possession”. These terms reflect the fundamental concepts of property law. As we have already mentioned, the main idea of property law is that property is a bundle of rights and the predominant right here is the right to possess a thing. To understand the complex relationship between the terms “ownership” and “possession” let us study the following text (Panesar 2001:111):
Ownership usually carries the right to possession of a thing. Ownership is a de jure relationship between a person and a thing. This simply means that ownership is a question of law. Possession, on the other hand, is a de facto relationship between a person and a thing.
Sometimes ownership and possession go hand in hand but is not always so. A person may have possession of a thing without being its owner. The most typical examples here are:
- a thief who stole a thing;
- a person who borrowed a book from the library.
They both have possession of things without ownership. A switch from an owner (ownership) to a possessor (possession) in the translation can change the entire meaning of a passage.
Contrastive analysis of Russian and English texts devoted to the above mentioned concepts has shown that the term “possession” has a Russian equivalent “vladenye” with the same semantics. The term “ownership” is not that easy to translate. If we consult a dictionary, we will find that it is “the collection of rights allowing one to use and enjoy property” (3, p.509). As you see the definition coincides with that of “property” in the first meaning.
Consider the diagram to understand how the terms overlap.
Right = Ownership
Property = “Sobstvennost” tangible
As we see, in some contexts the terms “property” and “ownership”can be interchangeable because they are synonyms (property right, right of ownership).
But in other contexts they reflect absolutely different notions. Law students may be brought to a deadlock when asked to translate into Russian the expressions:
to pass the ownership;
to pass the property.
Any English-Russian dictionary only hinders understanding because both expressions are translated in the same way. Similar difficulties arise when we deal with translation either of notions from the law of contract or terms concerning the forms of business organization, or types of legal entities and documents for incorporation. Translation of legal professions also causes problems.
These examples demonstrate clearly that the translation of legal texts cannot be based solely on the data borrowed from the dictionaries. It is much more efficient to study the inter-language equivalents within their subject areas because a quality translation requires understanding how the terms work in the natural environment, i.e. in legal texts.
Contrastive analysis of terminology in the legal sphere is very important and not well developed. Some 30 years ago, Russian scholars pointed out that it is necessary to develop a new branch of linguistics – “comparative terminology”. One of the main directions here is to outline and study some applied tasks, for example, to make contrastive analysis of terminology systems in various branches of law. Much research was done by Russian linguists in this sphere, and a number of interesting works can be mentioned, but all of them are devoted to solving a particular problem and the whole lexical field is not researched. Besides, the task of searching for an adequate inter-language equivalent does not always attract the researcher’s attention. Thus, the contrastive analysis is limited to the semantic level and does not include the choice of translation equivalents.
Comparative terminology could contribute to creating bilingual dictionaries of legal terminology, which would not only contain the translation of terms, but where the Russian-English lexical fields would be contrasted and equivalents explained.
Garner, Bryan (ed.) (2001). Black’s Law Dictionary (second pocket edition). St.Paul: West group.
Osakwe, Christopher (2002) Comparative Legal Traditions in Diagrams. Moscow: Delo Publishing House.
Panesar, Sukhninder (2001). General Principles of Property law. The UK: Longman.
Table 1. Comparative Analysis of Anglo-American and Russian Legal Systems
Originally was based on common law/ Now its influence is limited. Legislation of state Louisiana is based on Roman law but is strongly influenced by common law
- mixed system (in some states precedent is applied, in others it is not used)
- statutes and constitutions of states
- codes at all levels (federal, state)
States are independent, each has its own legal system following either the UK or European tradition
no influence of Roman law
Sources of law
- statutes (Acts of Parliament)
- no codes
- no written constitution
Levels of Regulation
- unilateral state
- one level
is based on continental law principles but influenced by the US system
- no precedents, but there are some decisions of the Supreme Court that are considered by some lawyers to be sources of law
Supremacy of federal regulation. Regional and local levels are not as independent as they are in the USA
Share with your friends: