In the European Union (EU) the issue of comparative law and translation is of special importance. There are 24 official and working languages within the EU and some regional languages (i.e. Catalan, Welsh) have gained recognition as co-working languages. All EU citizens have he right to access legal texts in their own language and to be able to correspond with EU institutions in their own language. For this purpose, the EU employs a large body of translators and interpreters. It is important to make sure that all language versions of any legal act are consistent with each other.
The real issue, however, is not accessibility of EU law at the community level, but what happens on the national level. There are various kinds of community legal acts, each of which requires a different level of domestic incorporation. Thus, regulations apply directly and override any conflicting national law whereas directives have to be transposed into the laws of the member states. Accordingly, directives provide more flexibility to accommodate different legal cultures than regulations. While transposition of EU legal acts ensures coherence within the domestic laws and preserves the legal culture of the individual member states, it poses the risk of incoherent application of community law.
One example for such legal cultural hurdles is the Pretty case and its reception in France. The case was about a terminally ill woman from the UK suing the government for refusing to assure immunity to her husband if he assisted her suicide. After exhausting all her legal remedies in the UK, Ms. Pretty filed a petition with the European Court of Human Rights (ECHR). While the ECHR denied Ms. Pretty’s petition, it emphasized the flexibility each government had in proscuting and/or punishing individual cases of assisted suicide. The reception of the Pretty decision, especially in France, has been criticized.
The main point of misunderstanding was the way in which a person’s liability can or should be mitigated. Common law countries tend to consider this issue at an earlier stage when it comes to determining for which offense a person should be tried. Civil law countries, however, usually reserve the question of mitigating factors for the question of the extent of the punishment. In the Pretty case the ECHR endorsed both solutions giving the UK government even the option to not pursue on a case by case basis. The French scolar-commentator seems to have been baffled by that.
Another issue that arose with regards to the French comment was the form and role of judgements. In France, court decisions tend to be very brief – traditionally consisting of one single (admittedly sometimes quite long) sentence. The pure length and the consideration of case law in the Pretty decision was therefore foreign to French lawyers and this is partially reflected in the scolarly criticism. This points, in turn, to one of the main practical hurdles towards a uniform community law – the difficult reconciliation of case law and codification. Thus, French jurists tend to see the consideration of cases as superficial as in France the written law as well as scholarly comments assume a major role. Other codified countries seem to be more open to accepting court decisions as law. They, however, often misconceive the concept of stare decisis and try to extract from individual cases very broad general rules (similar to the written law in codes).
Thus, the example of the Pretty case shows that the mere accessibility of an officially translated version of a community text (here a court decision) does not guarantee correct reception at the national level. Differences in legal concepts and practice are deeply entrenched in legal culture. It is very difficult to change the way lawyers think. Even an open-minded person trained in more than one legal system will find it hard to overcome her cultural roots.
- Application 2346/02. Decision 29/07/2002 4th section ECHR, available here.
- Vivian Grosswald Curran, Re-Membering Law in the Internationalizing World, 34 Hofstra L. Rev. 93 (2005).
- La Cour EDH ne reconnaissance pas l’ existence d’un droit a la mort, 15-16 La Semaine Juridique 676 (2003).
- Colin Robertson, How the European Union functions in 23 languages, 28 SYNAPS 14 (2013), available here.
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).