Le rôle de la traduction dans le transfert des connaissances juridiques : le cas des codes civils marocain et tunisien

To date, very few studies have focused on the translation of civil codes in geographic regions such as Morocco and Tunisia. Based on the assumption that translation is the means through which the civil codes in these countries came into existence, we wanted to not only verify this assumption, but also to identify the reasons for this disinterest in translation, in this part of the world, as a means of transferring legal knowledge.  This research focuses on legal translation in the context of the transfer of knowledge of civil law as instituted in a colonial setting. It follows the legal life of Morocco’s Dahir formant code des obligations et des contrats (D.O.C.) [Moroccan Code of Obligations and Contracts] since its development in French in 1912, to the final publication of its translation into Arabic in 1964. Reading the Moroccan code would never have been possible without taking into consideration its predecessor, Tunisia’s Code des obligations et des contrats (C.O.C.) [Tunisian Code of Obligations and Contracts], developed in French in 1899 and whose Arabic version was published as early as 1906. The transfer of a legal code is a phenomenon that is significant in the history of a society’s legal history. When law is received in a language other than the language of its host society, translation largely contributes to its development, writing and, at times, the distribution of the new law among the local population. This research focuses on a specific type of translation – legal translation – which is the translation of laws and, more specifically, codes (regulatory texts bringing together all of the legal rules relating to a branch of law). This research falls within the scope of the study of translation as it relates to sociology. It considers translated texts as real proof of the contextual influences in which the translator, as the main actor, chooses between multiple possible translations and where these choices themselves are motivated by the target and source societies, influenced by the translator’s preferences and the affiliation with a certain textual model. As a whole, ideological considerations are never far off. The analysis of the Arabic target versions unveils the translational tendencies created through the terminological and stylistic choices adopted by the translators. We examine the terminological and stylistic choices made by the translators of the Moroccan Dahir formant code des obligations et des contrats (D.O.C.) and the Tunisian Code des obligations et des contrats (C.O.C.) to highlight the legal affiliation between civil law and Muslim law, two types of law that are often presented as antagonistic.  This thesis is divided into five chapters. The first chapter describes the research issue in which we present the elements of our work (law and languages, differences between Muslim and civil statements) and the particularities of legal statements for each type of law in question. As the field of civil law is large, we focus on obligations and contracts, attempting to understand the difference between the civilist approach and the Muslim approach to legal statements. In the second chapter, we describe the current state of traductology and we situate our research in the theoretical framework to which it belongs: the sociological aspect of translation. As a social phenomenon, the translation of a code is approached comprehensively with regard to its aesthetic, legal and religious aspects. The third chapter focuses on the history of the codification of civil law in Morocco and, by extension, the history of the source of this codification: the Tunisian code (C.O.C.). The fourth chapter presents the historical contexts of the source and target texts (codification and translation). The fifth and last chapter is dedicated to the comparative analysis of the Arabic texts in our corpus to explore the texts’ terminological and stylistic aspects. In the source and target texts, we highlight the textual elements belonging to a particular system. To do so, we focus on the articles that are common to both Arabic versions to identify the translator’s strategy and explore the factors (sociological, cultural and ideological) that could have served as motivation to adopt a certain form of translation over another.

Keyphrases: Code civil, Fiqh, Legal translation, Legal transfer, Civil law, Civil code, Textual model, Civil statement