Research Handbooks in Comparative Law series
Edited by Pier Giuseppe Monateri
Chapter 13: Iudex Translator: The Reign of Finitude
JOBNAME: Monateri PAGE: 1 SESS: 5 OUTPUT: Mon May 28 12:22:31 2012 13. Iudex translator: the reign of ﬁnitude Jeanne Gaakeer Beginning is not what one ﬁnds ﬁrst: the point of departure must be reached, it must be won.1 1. PROLEGOMENA: IT ALL DEPENDS In Henry Fielding’s novel Joseph Andrews we ﬁnd this conversation between two characters on the penalty for theft: ‘“Jesu!” said the squire, “would you commit two persons to Bridewell for a twig?” “Yes,” said the lawyer, “and with great lenity too; for if we had called it a young tree, they would have been both hanged”.’2 Steal a twig and you end up in jail, steal a tree and capital punishment is the result. But what makes a tree a tree and when is a tree merely a twig? Is there a ﬁxed list on the diameters of trees classiﬁed according to species in order to facilitate the decision? Put differently, what elements with respect to the piece of wood the defendants stole made it fall under the concept of a twig?3 I am a judge. What idea and what image does this sentence conjure up before your mind’s eye? My guess is that it depends to a large extent on the legal system that you yourself are accustomed to. If you a jurist educated in the Anglo-American common law tradition your ﬁrst impression will be different from that of, say, a French, a Dutch or a German jurist. Perhaps you...
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