On first glance, one of the areas that comes to mind when looking at interdisciplinarity in comparative law is the intersection of comparative law and legal linguistics. Evidently, any comparative lawyer who is looking at legal texts from different countries has to deal with legal translation. And legal linguistics plays an eminent role within the multi-lingual environment of the European Union.
On second glance, however, modern comparative law and linguistics may not be as compatible as one might think due to the differences in focus. Thus, ordinarily, legal linguistics is a very technical discipline that is primarily focused on semantics. Such a pragmatic view of legal translation might satisfy a strict functionalist. Modern comparative law, however, looks beyond legal texts and considers the cultural background of laws as well. So a technically correct translation of a legal term might not properly take into account the real, historically-shaped meaning of it. Therefore, a more contextual approach to legal translation might be appropriate. Law and legal language are not absolute concepts, but have to be seen in their cultural context. This means that, on the one hand, a “proper” translation gets difficult if not impossible. On the other hand, many legal languages share cultural backgrounds and this intermingling or plurilingualism needs to be taken into account when translating (or interpreting) legal texts. Consequently, legal translators should at least have some background in comparative law.
On the premise of such benefit in collaboration of legal linguistics and comparative law, professor Mattila created the discipline of comparative legal linguistics – a combination of legal linguistics, legal semiotics, legal informatics and comparative law. This area of truly interdisciplinary research should help avoid cultural mishaps in translation while at the same time bringing together so far divergent movements within comparative law.
- Sofie Geeroms, Comparative Law and Legal Translation: Why the Terms Cassation, Revision, and Appeal Should Not Be Translated, 50 Am. J. Comp. L. 201 (2002).
- Vivian Grosswald Curran, Comparative Law and Language, in The Oxford Handbook of Comparative Law (Reinhard Zimmermann&Mathias Reimann eds., 2006).
- Jennifer Hendry, Comparative Law and the (Im)Possibility of Legal Translation, in: Comparative Law: Engaging Translation (S. Glanert ed., 2014).
- Jaakko Husa, Interdisciplinary Comparative Law – Between Scylla and Charybdis, 9 J. Comp. L 28-42 (2014).
- Jaakko Husa, Understanding Legal Languages: Linguistic Concerns of the Comparative Lawyer
- Heikki E. S. Mattila, Comparative Legal Linguistics: Language of Law, Latin, and Modern Lingua Franca (2nd ed. 2013).
With this post, we quickly set aside the issue of interdisciplinarity in comparative law and focus on applied comparative law in a broader sense. Specifically, I would like to look at the question whether the United States Supreme Court (and courts in general) should consider foreign law and practices.
In this regard, Justice Breyer of the United States Supreme Court just published his book The Court and the World: American Law and the New Global Realities. The book essentially is a commented synopsis of recent Supreme Court decisions that mention foreign law. Most of these decisions concerned the interpretation of international treaties or statutes where consideration of foreign law is fairly accepted. Sometimes, however, foreign law was consulted on questions relating to the United States constitution and its interpretation. In particular, issues relating to national security and antitrust triggered a look across borders, but also questions about gay rights and the death penalty.
According to Justice Breyer, foreign law – while by no means binding – could be quite “instructive” in cases involving questions of constitutional interpretation in general and more specifically questions relating to the Eighth Amendment and the death penalty.
“It [the Eighth Amendment] uses the word ‘unusual,’ and the founders didn’t say unusual in what context.”
Generally, judges – and lawyers – across borders could learn from each other. Unfortunately, drawing inspiration from abroad is still very limited – not just for ideological reasons, but also because of lack of understanding foreign law and its terminology.
- Adam Liptak, Justice Breyer Sees Value in a Global View of Law, The New York Times, September 12, 2015 (available here)
In my previous post, I pointed out that comparative law could benefit from other disciplines. Such incorporation of external research needs to be done in a way that makes it acceptable from a legal standpoint. And principles of (applied) comparative law may just be the key – admittedly a somewhat circular reasoning, but nevertheless something worth looking into.
Applied comparative law considers the question of legal transplants, i.e. which legal provisions could be transferred from country A to country B. In order to determine which law should be transferred, lawyers have to figure out the overall best solution by taking into account what is reasonable and just. Here, the issue of cultural and ideological discrepancies arises: because what works well in country A does not necessarily be acceptable in country B. So in the end, lawyers have to decide on a case-by-case basis whether the prima facie better law is in fact ideal in the country it should be adopted.
So what does this previous paragraph tell us about interdisciplinary comparative law? Adopting an idea or reasoning from another discipline might just be similar to transferring legal provisions from country A to country B. Thus, any effort in incorporating interdisciplinary research has to determine on a case-by-case basis whether a particular idea from another discipline is reasonable and just in the particular comparative law research at hand. In this regard, Giesen proposes a (non-exhaustive) set of questions that any lawyer who considers empirical research should ask himself before incorporating this research into his work:
– whether the empirical work is in fact relevant for the question of law that arises,
– whether the work is up to the current state of the art in the field methodologically, as well as regards its research design, etc., and its implications,
– whether (more generally) the research is valid and reliable,
– whether there is conflicting empirical work on the same issue,
– whether the study has been replicated and confirmed or not,
– whether the study is but one building block of a larger set of studies needed for policy implications,
– whether the researcher is both an expert and objective and independent, and so on.
The advantage of this approach is that it may help prevent premature adoption of empirical ideas into comparative law research.
- Ivo Giesen, The Use and Incorporation of Extralegal Insights in Legal Reasoning, 11 Utrecht L R 1-18 (2015).
- Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law 33-47 (1998).