第八届“华政杯”全国法律翻译大赛初赛试题

试题1（519 words）

Appreciating the role of property in promoting public welfare necessitates rejecting the Blackstonian conception of property because market failures and the physical characteristics of the resources at stake often require curtailing an owner’s dominion so that ownership can properly serve the public interest. A similar lesson emerges from the robust economic analysis of takings law. This literature indeed shows that compensation is at times required to prevent risk-averse landowners from under-investing in their property and to create a budgetary effect that, assuming public officials are accountable for budget management, forces governments to internalize the costs of their planning decisions. These considerations are particularly pertinent to private homeowners, who are not professional investors and who have purchased a small parcel of land with their life savings, as well as to members of a marginal group with little political clout. But providing private landowners and public officials with proper incentives also implies that, in other cases, full compensation should not be granted. Where a piece of land is owned as part of a diversified investment portfolio, full compensation may lead to inefficient overinvestment, while the possibility of an uncompensated investment is likely to lead to an efficient adjustment of the landowner’s investment decisions commensurate with the risk that the land will be put to public use. Similarly, landowners who are members of powerful and organized groups can use non-legal means to force public officials to weigh their grievances properly. An indiscriminate regime of full compensation may therefore distort the officials’ incentives by systematically encouraging them to impose the burden on the non-organized public or on marginal groups, even when the best planning choice would be to place the burden on powerful or organized groups. The absolutist conception of property and the strict proportionality takings regime are also anathema to the most attractive conceptions of membership and citizenship, which insist on integrating social responsibility into our understanding of ownership. The absolutist conception of property expresses and reinforces an alienated culture, which “underplays the significance of belonging to a community, [and] perceives our membership therein in purely instrumental terms.” In other words, this approach “defines our obligations qua citizens and qua community members as ‘exchanges for monetizable gains,’ . . . [and] thus commodifies both our citizenship and our membership in local communities.” To be sure, the impersonality of market relations is not inherently wrong; quite the contrary, by facilitating dealings “on an explicit, quid pro quo basis,” the market defines an important “sphere of freedom from personal ties and obligations.” A responsible conception of property can and should appreciate these virtues of the market norms. But it should still avoid allowing these norms to override those of the other spheres of society. Property relations participate in the constitution of some of our most cooperative human interactions. Numerous property rules prescribe the rights and obligations of spouses, partners, co-owners, neighbors, and members of local communities. Imposing the competitive norms of the market on these divergent spheres and rejecting the social responsibility of ownership that is part of these ongoing mutual relationships of give and take, would effectively erase these spheres of human interaction.

试题2（509 words）

In the common-law tradition, lawyers and jurists consult the reports of judicial decisions to determine applicable rules of law. Common lawyers conduct this evaluative process both as they plan transactions in the shadow of the law and as they frame cases for litigation. With careful attention to particular holdings, and to trends, dominant voices, and cogent rationales, adept practitioners of the common law can say where the law has settled for the moment and how it might evolve in the future. Judges often emerge as actors in the formulation of legal rules, sifting through the available materials to play the cautiously dynamic role that has come to be seen as the hallmark of common-law judging in the Anglo-American tradition. Occasionally, judges issue transformative opinions, ones that allow us to see both the past and the future more clearly and give voice to a bold new conception of the law that will one day be seen as self-evident. Few such opinions have emerged in the course of the war-on-terror litigation. Instead, as dissenting judges have warned, we have witnessed the “silent erosion” of human rights through the accumulation of balancing opinions by the federal courts. True, the Supreme Court has creatively deployed the writ of habeas corpus to ensure a measure of judicial review for enemy combatants detained, indefinitely, at Guantanamo Bay. In Boumediene v. Bush, moreover, the Court narrowly but decisively reaffirmed the role of the federal district courts in the face of legislation that proposed to confine judicial oversight within the narrow appellate-review boundaries set forth in the Detainee Treatment Act. The Constitution was said to guarantee detainees access to the privilege of the writ of habeas corpus, and Congress was said to have violated that guarantee by restricting review without providing an adequate substitute. The alternative vision, boldly stated in Justice Scalia’s dissent, called for complete judicial deference in the treatment of alien detainees to the war-making power of the president. Although Justice Scalia did not accuse the majority of treason, he did describe the majority opinion as a bait-and-switch that would complicate the task of prosecuting the war and “almost certainly” lead to the death of more Americans. Wholesale judicial deference leaves the law inarticulate, as judges fail to perform the common-law function of passing on the legality of challenged conduct. As we have seen, the federal courts have failed to define what it means to torture a detainee, to opine on the legality of extrajudicial kidnaping (extraordinary rendition), and to specify what sorts of detainee abuse can be permitted before it rises to the level of cruel, inhuman, or degrading conduct. The federal courts have similarly failed to conclude that war-on-terror detainees enjoy the same protections that apply to other prisoners and pretrial detainees under the Fifth and Eighth Amendments. As a result of these judicial silences, one can say very little about the concrete legal status of the rendition, detention, and interrogation tactics deployed in the Bush administration’s war on terror, other than that they appear to be lawful more or less by default.

试题3（485 words）

The notion of restrictive interpretation is often used interchangeably with the principle of in dubio mitius, but the former can also be used to refer to other methods of interpretation, such as the interpretation of exceptions. According to the principle of in dubio mitius, ‘if the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties’. Treaty language is not to be interpreted so as to limit state sovereignty or a state’s ‘personal and territorial supremacy’, ‘even though these stipulations do not conflict with such interpretation’. If the language on the existence or scope of an obligation is unclear, the in dubio mitius principle supports the proposition that no or only a minimal obligation should be applied. The application of the principle essentially results in an interpretation in deference to the sovereignty of one specific signatory, the party assuming an obligation (in practice, this is often the respondent state). Such an interpretation is supposed to protect the sovereignty of the parties to a treaty. But most treaty law restricts sovereignty, albeit through the exercise of state sovereignty. The Permanent Court of International Justice (PCIJ) initially formulated the in dubio mitius principle as applicable ‘when, in spite of all pertinent considerations, the intention of the Parties still remains doubtful’ and unless its application would lead to an interpretation ‘contrary to the plain terms … and would destroy what has been clearly granted’. The principle is not codified in the VCLT (Vienna Convention on the Law of Treaties) and is unlikely to qualify as a general principle of law or part of customary international law. The validity of applying the principle has also been denied where the language in different authentic versions of a treaty conflicts and the conflict cannot be resolved through the general principles of interpretation. The use of the principle appears to have received more support from scholars than from international courts and tribunals. Although the PCIJ cited the notion of restrictive interpretation (meaning, in this context, the principle of in dubio mitius) in several cases, it relied upon it only as a last resort and always emphasized its limits. The starting point of interpretation remains the terms of the treaty, not the interests of those who drafted the treaty in exercise of their sovereignty with the effect of transferring parts of that sovereignty. In the Wimbledon case, the PCIJ found that a restrictive interpretation stops ‘at the point where [it] would be contrary to the plain terms of the article and would destroy what has been clearly granted’. In the Nuclear Tests case, the ICJ (International Court of Justice) applied a restrictive interpretation to unilateral statements limiting a state’s freedom of action, followed by an extensive approach to whether a commitment existed.