Principios Generales Del Derecho
In the Latin American Civil Law world there is a little something called principios generales, which are often problematic in translation for more reasons than one. When transferring these “principles” into English, many legal translators resort to formal equivalence (i.e. word-for-word translation), forcing English speaking lawyers to try to decipher very foreign concepts like principle of procedural acquisition (say what, now?).
- Principios Generales Del Derecho Chile
- Principios Generales Del Derecho Ambiental
- Principios Generales Del Derecho Definicion
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I. Understanding principios generales
Essentially, there are two kinds of principios generales: principios generales de derecho and principios generales del derecho procesal. Similar to the general principles of law of the International Law system, principios generales de derecho are the principles or rules behind the content of the law (which, to this day, many legal scholars still argue are “moral” principles). They should never be confused with principios generales del derecho procesal, which are rules of civil procedure aimed, mostly, though not exclusively, at guiding judges and the parties in a lawsuit. Confused yet? Let me explain.
While the former set of principles refer to broader questions (such as: What is law? (Hart 1961) or What reasons does the law give us to obey it? (Alexy 2008) (Gaido 2011), the latter are more down to earth and simply provide rules to follow to keep the process moving along.
By that distinction then, in dubio pro reo (aka “the presumption of innocence”) is a principio general del derecho, i.e. a principle of law by which a person is innocent until proven guilty, but iura novit curia (i.e. “the judge knows the law”) is a principio general del derecho procesal, i.e. a rule of legal procedure by which the court may base its decisions on legal theories that were not necessarily put forward by the parties in the lawsuit.
II. Calling a duck a duck
Now if principio generally translates into English as principle, why not just translate each individual principle of procedure word-for-word? (Rendering things like principle of procedural acquisition, for example).
I can think of, at least, two reasons:
1) Just because words exist in the target language that does not mean that those particular words combined in that particular way will be understood by the target reader the way it was intended. Of course, the words “principle” and “of” and “procedural” and “acquisition” exist in English, but that doesn’t mean that when you slap them together as principle of procedural acquisition a lawyer from the Common Law world will necessarily understand that you are talking about a rule stipulating that evidence produced by one party to the case can be used by the other party to his or her own benefit. So, you can call the duck a duck, but unless your target reader knows what a duck is, your translation may be faithful but incomprehensible.
2) If your target reader is an international law specialist, “general principles” refer to principios generales del derecho in their mind unless context indicates procedure. What I mean by that is that the word principle will not immediately take them to the second group of principles we discussed above (procedural rules), but will mostly likely take them to the first group (principles of law) instead, forcing the reader to make an extra (and usually unnecessary) effort to understand what we’re talking about.
Now, you may be thinking this never happens. But it does. In the International Human Rights arena many documents describe two levels of law at the same time: international and domestic. For example, both the official reports submitted by States to the Human Rights Committee for Universal Periodic Review as well as the shadow reports challenging each State’s official report contain language describing both the international and domestic level, especially when referring to monist countries. Lawyers in those countries, therefore, go out of their way to use language that easily separates the two realms and clearly describes the interaction between the two systems. And our translations should be just as clear.
III. What are general principles in the context of International Law?
Glad you asked. According to Malcolm Shaw, the guy who literally wrote the book on International Law (Shaw 2008):
“In any system of law, a situation may very well arise where the court in considering a case before it realizes that there is no law covering exactly that point, neither parliamentary statute nor judicial precedent. In such instances, the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy […]
There are various opinions as to what the general principles of law concept is intended to refer. Some writers regard it as an affirmation of Natural Law concepts [this, by the way is what I was referring to above when I said that many legal scholars still argue that principios generales are “moral” principles], which are deemed to underlie the system of international law and constitute the method for testing the validity of the positive (i.e. man-made) rules. Other writers, particularly positivists, treat it as a sub-heading under treaty and customary law […]. Between these two approaches, most writers are prepared to accept that general principles do constitute a separate source of law but of fairly limited scope […]” (emphasis added).
IV. Can general principles of international law also include general principles of legal procedure?
Yes, but only those that are generally recognized by most legal systems and in their most abstract form. For example, res judicata (i.e. the rule that the decision in a particular case is final, binding and without appeal) is typically a general principle of procedural law, but was recognized by International Law as a general principle of law (see, for example, Bosnia and Herzegovina v. Serbia and Montenegro, ICJ Reports 2007, para. 113), but this will typically only happen in cases of gaps in procedural law at the international level. And even when it does, those procedural principles are not going to be the ones typically found in the Civil Law world’s code of civil or penal procedure. They are broader principles
V. Found in translation
So, what are translators to do? I’ve found that the best translation of principios generalesde derecho involves actually calling them general principles of law. However, when it comes to the specific principios generales del derecho procesal (i.e. principio de eficacia procesal, principio de economía procesal, principio de eventualidad, etc.) the best solution is that in Tom West’s Spanish-English Dictionary of Law and Business, where he basically translates each principle individually as the “rule that [explanation of what the principal means].” For example, Tom translates principio de contradicción as “rule that both parties to a lawsuit must be heard,” principio de eventualidad as “rule that all allegations in a lawsuit must be made simultaneously and not staggered over time,” etc.
Principios Generales Del Derecho Chile
Bonus Note: There’s only one particular principle for which I dissent with Tom’s translation: principio de inmediación, which he translates as “rule that exceptions to a judgment must be made at once.” But that’s not what that means in Argentina (Palacio and Palacio 2010), Mexico (Secretaría de Gobernación n.d.), Uruguay (Pereira n.d.), etc.
Instead, principio de inmediación is the rule that judges must personally hear the parties and see all the evidence presented to them by the parties. In Latin America, courts typically have much larger case loads than they are able to handle. Thus, judges tend to order their clerks to attend hearings in their place or to examine evidence for them that they should have examined themselves. Hence, if they fail to personally attend a hearing, their decisions can be appealed.
Alexy, Robert. 2008. 'On the Concept and the Nature of Law.' Ratio Juris 281-299.
Gaido, Paula. 2011. Las pretensiones normativas del derecho. Madrid: Marcial Pons.
Hart, H.L.A. 1961. The Concept of Law. Oxford: Oxford University Press.
Palacio, Lino Alberto, and Luis Enrique Palacio. 2010. Manuel de derecho procesal civil. Buenos Aires: Abeledo Perrot.
Pereira, Santiago. n.d. Biblioteca CEJ Americas. Accessed April 1, 2019. http://biblioteca.cejamericas.org/bitstream/handle/2015/1907/Principiodeinmediacionenlasaudiencias.pdf?sequence=1&isAllowed=y.
Principios Generales Del Derecho Ambiental
Secretaría de Gobernación. n.d. gob.mx. Accessed April 1, 2019. https://www.gob.mx/segob/articulos/que-es-el-principio-constitucional-de-inmediacion-en-el-nuevo-sistema-de-justicia-penal.
Principios Generales Del Derecho Definicion
Shaw, Malcolm N. 2008. International Law. Cambridge: Cambridge University Press.