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Gaakeer, Jeanne --- "Iudex Translator: The Reign of Finitude" [2012] ELECD 589; in Monateri, Giuseppe Pier (ed), "Methods of Comparative Law" (Edward Elgar Publishing, 2012)

Book Title: Methods of Comparative Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802529

Section: Chapter 13

Section Title: Iudex Translator: The Reign of Finitude

Author(s): Gaakeer, Jeanne

Number of pages: 18

Extract:

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 immediately think in terms of constitutional interpretation and
the issues involved ...