Nous souhaitons la bienvenue à Cynthia Hazelton qui a bien voulu analyser « Reading Law, The Interpretation of Legal Texts », à notre intention. Ce livre
a été écrit par Antonio Scalia, juge à la Cour suprême des États-Unis, et Bryan
A. Garner, avocat, auteur (« Garner's Modern American Usage »),
lexicographe et rédacteur de nombreux ouvrages juridiques (dont « Black’s
Legal Dictionary », la bible des juristes américains).
Cynthia Hazelton
Cynthia Hazelton (qui connaît M. Garner et a assisté à plusieurs de ses conférences pendant ses séminaires de rédaction juridique). est née et a grandi
aux États- Unis. Elle est diplômée de la faculté de droit de l'Université
d'Akron et est membre du barreau de l'État de l'Ohio. Cynthia a un mastère en
français du Middlebury College ainsi qu'un mastère en traduction
de l'« Institute of Applied Linguistics » de Kent State University.
Elle enseigne la traduction juridique, commerciale et diplomatique à cette
université.
Voir aussi la préface de cette analyse, intitulée « La common law (anglo-américano-canadienne) et le droit civil (français-québécois) » et publiée sur ce blog la semaine passée.
Do legal documents change their meaning over time? This question is the opening line of Reading Law: The Interpretation of Legal Texts, co-written by Senior Associate Supreme Court Justice Antonin Scalia and Bryan Garner, the Editor-in-Chief of Black's Law Dictionary and author of more than 20 books on legal writing. Published by West, Reading Law is not for the casual reader. But it is an invaluable reference book for lawyers, legal writers, law professors, legal translators and "word nerds" as Garner likes to say during his legal writing seminars.
Statutory interpretation is the process by which courts interpret and apply legislation. Weighing in at 567 pages, Scalia and Garner's work lists and explains 57 canons of legal construction, organized under the following categories: Semantic, Syntactic, Contextual, Expected-Meaning, Government-Structuring, Private-Right and Stabilizing. Following each title, the authors explain and discuss the particular rule, using 630 interesting and often entertaining legal cases throughout the book as examples. As daunting as this may seem, the book is also filled with some wonderfully funny remarks, such as referring to President William Henry Harrison's death from pneumonia after giving a two hour inauguration speech as "a lesson to all bloviators."
Following the legal canons, the authors expose thirteen "falsities" regarding judicial interpretation. All case names are listed in the Table of Cases. A forty-one page bibliography and an exhaustive Index section complete the book.
The following is a brief review of Reading Law:
The authors begin by introducing Sound Principles of Interpretation and highlight five fundamental principles that apply to all texts. They then move on to specific legal canons.
Semantic Canons. The authors list 11 canons under this heading. Most seem obvious: the Ordinary-Meaning Canon: General terms are to be given their general meaning; the Presumption of Nonexclusive "Include"
Canon: The verb 'to include' introduces examples, not an exhaustive list; and the Unintelligibility Canon: An unintelligible text is inoperative. But others, like the Omitted-Case Canon: Nothing is to be added to what the text states or reasonably implies, are particularly pertinent for legal translators.
Syntactic Canons. This category lists seven canons, most of which are also relevant for translators. For example, the Last-Antecedent Canon provides that a pronoun, relative pronoun or demonstrative adjective generally refers to the nearest reasonable antecedent. The authors cite a 2003 U.S. Supreme Court ruling to illustrate this canon: "Parents warn a teenager, 'You will be punished if you throw a party or engage in any other activity that damages the house.' The Court ruled that 'if the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The relative pronoun that attaches only to other activity, not to party as well."
Contextual Canons. The
14 canons listed here are also of interest to the legal translator: the Surplusage Canon provides that Every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence. And the Presumption of Consistent Usage Canon reminds us that A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning. Terminology consistency is critical in all translations, but especially so in a legal document.
The final four categories apply specifically to governmental prescriptions.
Expected-Meaning Canons. The seven canons in this category include the Constitutional-Doubt Canon: A statute should be interpreted in a way that avoids placing its constitutionality in doubt and the Extraterritoriality Canon: A statute presumptively has no extraterritorial application. These concepts may seem obvious, but they are critical theories for statutory interpretation.
Government-Structuring and Private Right Canons. The seven canons discussed in these categories are illustrated by interesting case law. Two of the major canons are the Mens Rea Canon: A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission and the Rule of Lenity: Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor. In the event you're wondering what lenity means, it's a common law doctrine designed to avoid violation of the accused's due process rights by requiring courts to interpret ambiguous statutes in favor of the defendant. It's synonymous with leniency.
Stabilizing Canons: The final category deals with canons designed to prevent statutes from being interpreted as changing the common law, unless such changes are clearly indicated. For example, Canon 52 sets forth the Presumption Against Change in the Common Law, requiring that any change must be clearly indicated in the statute. The Canon of Imputed Common-Law Meaning states that undefined words in a statute are to be interpreted and applied according to their common-law meanings.
In the final section of the book, the authors set forth thirteen "falsities" regarding judicial interpretation. They conclude that a textual approach must be used for interpreting statutes and other legal documents, one that focuses on the originally intended meaning of the text.
In the Afterword, Justice Scalia and Mr. Garner explain that their intent was to use "the best available approach to textual interpretation, i.e., one that is both linguistic and historical." For readers who are interested and/or working in the field of legal translation, this makes for a fascinating and highly useful reference work.
Cynthia Hazelton, LL.B.
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