Res ipsa loquitur: internet trolls, a colorable approximation, and a clarificationvon , veröffentlicht am 10.05.2019
Prinzipiell gilt aber wohl, dass man nicht jedes Auslegungsproblem und jede komplizierte Begrifflichkeit einer höchstrichterlichen Rechtsprechung in einem einzelnen Wort einer Übersetzung in einer jede Unklarheit beseitigende Weise unterbringen kann.
Gast’s trolling is disguised as advice, a bit of Weisheit, intended to discredit me and the argument I offered – as though anonymous trolling is or ought to be convincing. At best, trolling is paradoxical: its perpetrators wish to speak from a position of authority, but hide, yellowbellies and all, behind pseudonyms, rendering impossible the verification of their qualifications. At worst, trolling gets bogged down in its own confusions. As it happens, this is the internet, and Gast’s trolling was both paradoxical and confused.
I responded to this specific bit of trolling by saying, among other things, that I was not trying to capture or to accommodate every problem of construction or every complicated term of art in a single word of a translation. Yet, I want to update – even renege on – my response. Professional legal translation does consist of trying to capture and to accommodate problems of construction and every complicated term of art in instances of translation. Such trying is, to some extent, precisely what professional legal translation is all about. Or to rephrase: trying to capture and to accommodate terms of art in instances of translation constitutes the attempt to establish a colorable approximation between two terms of art emanating from differing legal systems (see here and here).
For instance, soundly translating the German term of art Schriftform into American English requires finding a translation, preferably an American term of art, which most closely approximates the German one. Such translating also requires that one entirely refrain from consulting the UNENG-BGB and that one ignore EU usage whenever necessary and appropriate. In this case, there exists just such an American term of art: i.e., signed writing. … In Germany, Schriftform requires that a document (Urkunde) be signed in one’s own hand (§ 126(1) BGB); in the United States, signed writing requires that a writing, a “printing, typewriting, or any other intentional reduction to tangible form” (§ 1-201(43) UCC), be signed: i.e., that it include the use of “any symbol executed or adopted with the present intention to adopt or accept a writing” (§ 1-201(37) UCC). As such, the term signed writing is as sound a colorable approximation of Schriftform as one might hope to find.
In point of fact, translations informed by the kind of analysis above are the kind of translations one ought to aim to bring about. In professional legal translation, the quality and soundness of colorable approximations are, each in its own right, a measure of accuracy. And internet trolls should not get to decide nor should one allow them to arrogate to themselves the privilege of deciding what constitutes a measure of accuracy in a field in which they hold no qualifications. … Remember, trolls are anonymous: we can justifiably deny any and all qualifications due to a lack of knowledge.
Yet, one might object that their anonymity forces us to concentrate on their arguments. Of course, that is true of anonymous commentators such as OG, who earnestly engage with the issues and offer obviously thought-out and well-argued criticism. But this is not true of trolls; nothing written by them indicates even a semblance of thought-out and well-argued criticism.
The trolls think that linguistic nuance can be justified by bootstrapping their own language skills and opinions, which amount to little more than generalizations (see here and here). They think that foreign words are avoided in legislation due to supposed incomprehensibility, but in the next breath claim that those same foreign words somehow become comprehensible when incorporated into the compound nouns used in legislation (see here). They misread blog posts on purpose (see here and here). They spew racist and discriminatory nonsense (see here and here). They claim to lack any translation experience or training, but to know how to translate (see here). They cite articles and books which they have demonstrably misunderstood (see here). They confuse Google hits with back-up material and evidence (see here). They twist and contort views (see here). … The anonymity betrays cowardice and permits the yellowbellied trolls to say and to write things they would not dare say or write under their real names.
The comments on my last blog post suggest that readers are liable to confuse trolls, anonyme Iche, with anonymous commentators; I was accused of thinking that I am better than other people and of accusing them of being stupid (“intellektuell unterbemittelt” was the word used). Even if – admittedly – I do aim to make some readers uncomfortable and ashamed of themselves, I have done nothing that would justify such accusations. I always engage anonymous commentators, perhaps with a bit of snark, but always sachlich (see, for instance, here). In my responses to trolls, I have always aimed and will, until boredom with the whole affair strikes, continue to aim to reproduce what they have written and to reproduce those written words in such a way that they speak for themselves. In this respect, my motto is: res ipsa loquitur. … Comments exhibiting any of the abovementioned fallacies, misreadings, racist and discriminatory nonsense, etc., are not written by people who want to have engaging discussions. I have no idea whether or not they are “intellektuell unterbemittelt.” Whatever else they are, they are trolls, disagreeable internet personalities, who wish to sow discord and to make others look foolish. The truth is: I don’t care much for their views and opinions; I have done little more than give them a dose of their own medicine, even though it would be best that they not comment at all.