The Quest for a Legal Lingua Franca

Posted on by Anita Frohlich

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?

Bibliography

  • 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.

 

Legal Translation in the EU in the Face of Cultural Challenges

Posted on by Anita Frohlich

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.

Bibliography

  • 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.

Harmonization through Principles

Posted on by Anita Frohlich

When I wrote about the Common Core project, I mentioned that it was strictly descriptive without any intention to aid harmonizing the laws of Europe. There are, however, also some comparative legal efforts that strive to foster cross-border uniformity of laws in order to aid transnational commerce. These efforts, again, are of an academical nature, i.e. detached from any political body or parties. Their goal, however, is to provide such political bodies with a working basis that will eventually lead to harmonization of laws. On the European level, two recent (and subsequent) groups are worth to be mentioned: the Commission on European Contract Law (Lando Commission) and the Study Group on a European Civil Code (SGEC).

The Lando Commission set out to draft uniform principles of contract law. The first commission under the chairmanship of Ole Lando started its work in 1982 and published the first set of principles on performance, non-performance and remedies for non-performance in 1995. A second commission (established in 1992) focused on contract formation, interpretation and validity as well as on agency. It published its conclusions in 1999.

The Study Group on a European Civil Code, established in 1997, emanated from the Lando Commission. It had a broader scope than the Lando Commission focusing on patrimonial law which includes contracts, non-contractual obligations and movable property. Contentious areas such as family law have been left untouched. The SEGC published its Draft Common Frame of Reference (DCFR) in 2009.

Both the Lando Commission and the SEGC were comparative legal research efforts striving to create a body of principles of private (contract) law that is most suitable for Europe-wide application. While the SEGC does not have any legislative intent and only sees its work as a starting point for possible future EU law-making, the Lando Commission, at least initially, had intended a more direct political impact of its work.

A part from this more political focus, the main difference between the Lando Comission/SEGC and the Common Core Project are that the latter solely strives to carve out the common core of the existing European private laws, i.e. it constitutes a description of the status quo. The Lando Commission/SECG, in turn, do not stop there but aim to formulate the ideal provisions that a European private law regulation would contain (which does not necessarily have to be the most common type of provision within European national laws).

From a more philosophical perspective, the Lando Commission/SECG are the brain child of a comparative law analysis on how unification can work in a complex network of different legal entities. In particular, the European efforts have been inspired and aim to imitate the work of the American Law Institute (ALI). The ALI is an independent body of legal scholars in the United States that, by publishing Restatements, purports to facilitate a unification of the laws of the U.S. states. While these Restatements are by no means binding on any state, legislators and courts have often drawn inspiration from them resulting in a less diverse legal landscape within the United States. It remains to be seen whether a harmonization through principles also works on the long run in the European context.

Bibliography

  • Ole Lando, Salient Features of the Principles of Contract Law: A Comparison with the UCC, 13 Pace Int’l L.R. 339-369 (2001).
  • Von Bar et al., Principles, Definitions, And Model Rules of Private Law, Draft Common Frame of Reference (2009), available here.