With this post, I intend to close the loop by bringing together comparative law and legal linguistics. More specifically, I am going to point out a common denominator of both disciplines: functionalism. Interestingly, functionalism plays an integral part in the development of both areas, though in a somewhat contrary way.
The introduction of functionalism to comparative law has been attributed to Ernst Rabel. Its establishment, however, as a core comparative law methodology is due to the detailed treatment of functionalism by Konrad Zweigert and Hein Kötz in one of the most popular comparative law textbooks Introduction to Comparative Law. According to them, the term functionalism stems from the premise to focus on the functions of the law as the tertium comparationis when comparing two or more legal systems. The question is where to look for the functions of the law: only the written law or law as it is practiced, including social norm or culture. It is safe to say that strict focus on the written law alone is no longer acceptable in comparative law. The extent, however, to which a comparatist should consider other non-traditional sources of law is still subject to great discussion.
Legal translation has traditionally been extremely technical with an exclusive focus on semantics. Any divergence from the text strictu sensu was unacceptable. Only recently, legal translators started to look beyond the text as written. As a result, functions and social purpose of legal norms are becoming more and more relevant in legal linguistics. This kind of functionalism in legal translation is still far from uncontested as it opens the field for interpretation and subjectivity.
This very brief synopsis of the methodological development of comparative law and legal linguistics illustrates the key part functionalism played – and still plays – in both of these fields. Interestingly, the significance of functionalism in these areas seems to be orthogonal. Thus, modern comparative law criticizes functionalism as being too strict and not giving enough consideration to cultural diversity in law. For legal translation, however, functionalism represents a step towards more flexibility that allows a translator to also include cultural aspects into his work.
- Giuliana Garzone, Legal Translation and Functionalist Approaches: a Contradiction in Terms? in Legal Translation: History, Theory/ies and Practice. Proceedings of the International Colloquium, Univ. of Geneva, 395-414 (2000).
- Jaakko Husa, Comparative Law, Legal Linguistics and Methodology of Legal Doctrine, in: Methodologies of Legal Research, Hoecke and Ost (eds.) 209-228 (2011).
- Konrad Zweigert and Hein Kotz, An Introduction to Comparative Law 33-47 (1998).
When it comes to legal texts, idiosyncrasies are very important. And in the international context this renders legal translation incredibly complex. Consequently, there have been efforts to establish a lingua franca for cross-border legal transactions , mainly within the European Union.
A lingua franca is a neutral language that is used by a group of people from diverse lingual backgrounds. Historically, in medieval Europe, tradesmen first used an artificial mixture of French and Italian to communicate. Other examples of lingua francas are Arabic and Chinese. In law, a colloquial form of Latin used to be the legal lingua franca in large parts of Europe due to the vast application of the ius commune, even after the Roman Empire ceased to exist. It is quite hard to describe the quality of legal Latin in this context because it represented more than just an independent language for cross-border communication. Instead, other than mere terminology, it incorporated a specific way of legal thought and culture that was familiar to everyone who used legal Latin.
Given this background, recent efforts in Europe to establish English as a lingua franca seem to be flawed. Certainly, most – if not all – lawyers in Europe, possess some level of English proficiency. Such proliferation of the English language, however, does not per se justify its establishment as a legal lingua franca. In fact, legal English itself – like legal Latin – is inextricably connected with a specific way of legal approach – the common law. It thus seems wrong to separate language from culture and proclaim English to be the new lingua franca.
Does this mean that the quest for a legal lingua franca is lost? Possibly not. Maybe history repeats itself and – after a period of legal and thus linguistic individualism – Latin appears to be the ideal lingua franca even today. In fact, Latin terms are still prevalent in both common and civil law and their implications are historically rooted and should be unambiguous. Maybe it is time for a re-emergence of legal Latin. What do you think?
- Jaakko Husa, Understanding Legal Languages: Linguistic Concerns of the Comparative Lawyer, in: The Role of Legal Translation in Legal Harmonization (Jaap Baaji ed., 2012).
- Merike Ristikivi, Latin: The Common Legal Language of Europe?, Juridica International 199-201 (2005), available here.
I recently watched Mark Weiner’s (Worlds of Law) video on the Austrian Versteinerungstheorie (Versteinerung meaning petrification). According to the Versteinerungstheorie, words in constitutional provisions must be given the meaning they had at the time the provision was made – they are set in stone, if you will. While watching the video, I immediately thought of the two potential issues the Versteinerungstheorie would pose to legal translation.
First, the translation of the term itself. In fact, a literal translation of Versteinerungstheorie would not make much sense. And, while one could off-handedly translate Versteinerungstheorie with originalism, it might lead to misunderstanding because other than originalism it is an established rule rather than a method of interpretation.
Second, the implication of theory on translating provisions of the Austrian constitution. As the Versteinerungstheorie stipulates, you have to dig in the past in order to grasp the meaning of a tem used. It is therefore not sufficient to be fluent in contemporary Austrian (German), because language has obviously evolved since the Austrian constitution came into force.
So the example of the Austrian Versteinerungstheorie just further illustrates how complex translation of foreign legal texts can be: In addition to being fluent in the languages presented, a legal translator has to know the legal background and culture as well as the linguistic evolution.