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.
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)
Recently, the Florida Senate passed a bill restricting the choice and applicability of foreign law in a certain set of cases. According to this bill, a court would not apply foreign law that contravened Florida strong public policy. Such “foreign law bans” have raised severe criticism or at least strong skepticism. In fact, the scope of the bill is limited to family law cases and intends to clarify existing case law. Most critics see the bill as an affront against foreign law in general, and Sharia law in particular.
Now, as a lawyer that has also studied conflict of laws in civil law countries, I am familiar with the ordre public exception. In cases, where conflict of laws rules lead to the applicability of foreign law, a court has to examine whether such foreign law violates the ordre public (public order). In Germany, my native country, the ordre public exception is applied to inheritance cases that involve Sharia law and would discriminate against a woman’s fundamental right of economic equality (gender discrimination). It is, however, important to note that here the ordre public exception is case-specific and not a general exclusion of, say, Sharia inheritance law. Also, when a law has been deemed inapplicable because it was contrary to German law, it does not mean that German law automatically applies to the case. Instead, a judge has to create a new legal norm that no longer discriminates, but that also takes into consideration the legal philosophy of the law that would normally be applicable (i.e. Sharia law).
Well, this is a complicated procedure and requires a German judge to have quite some cultural finesse. Thus, in Great Britain, the legal community has taken a different approach. There, the Law Society, which represents solicitors in England and Wales, has published guidelines that are aimed at clarifying Sharia succession rules for British courts. Of course, such a step has also raised quite some criticism.
So here we have three different approaches to a similar problem. A problem that will become more and more common as people from different cultural backgrounds interact with each other and legal cultures clash or converge. It would be interesting to know – not only from a standpoint of comity – how similar situations, e.g. inheritance cases governed by Western law, are treated in countries where Sharia law usually regulates family law.