While quantitative comparative law mainly focuses on differences (i.e. the common law – civil law divide), another way to look at things is to pay attention to the similarities among legal systems. Hence, the Common Core of European Private Law (Common Core Project) maps legal systems based on hidden analogies. The Common Core Project is an ongoing research project initiated in the 1990s by Ugo Mattei and Mauro Bussani. It is largely influenced by the Cornell Project previously conducted by Rudolf Schlesinger in the 1960s from which it draws its methodology. However, the scope of the Common Core project is
much smaller different than that of its role model. Continue reading Viewing Comparative Law from Another Angle: The Common Core Project
Last week, I wrote about the European Union (EU) as a legal melting pot. Today, I would like to focus on the legal language diversity within the EU. Currently, there are 24 official working languages in the EU. This means that legal texts and decisions have to always be translated into the 24 languages. All translations are considered equal.
The issue is that legal languages (like legal cultures) are different. It is incredibly difficult – if not impossible – to achieve the same meaning throughout all translations. Sometimes languages do not share the same nuances, sometimes a legal term does simply not exist. The question is how to deal with this kind of multilingualism. Three kinds of solutions come to mind: (1) creating special terminology for EU law, (2) choosing the best translation when a dispute arises between different versions of a text, or (3) looking for the original meaning of a text.
The European Court of Justice (ECJ) has in its decisions insisted on maintaining multilingualism and opted for an originalist approach (option 3). Thus, in North Kerry Milk Products Ltd. v Minister for Agriculture and Fisheries, the ECJ refused to choose a specific translation and resolved the issue of diverging translations of a regulation by consulting texts and legislation surrounding the contested regulation. Subsequently, the ECJ resorted to interpreting different language versions of a text by “reference to the purpose and general scheme of the rules of which it forms a part” (Regina v Pierre Bouchereau).
Keeping up multilingualism in the EU comes at a price. The EU Commission has one of the largest translation services worldwide. Other institutions, including the ECJ, employ a large number of lawyer-linguists as well. Given such overhead the question arises whether the EU should adapt a more pragmatic approach and opt for an official language or a specific EU metalanguage. So far this have only been tentative suggestions by the Commission.
- Case 80-76 North Kerry Milk Products Ltd. v Minister for Agriculture and Fisheries  ECR 425.
- Case 30-77 Regina v Pierre Bouchereau  ECR 1999.
- Karen McAuliffe, Enlargement at the Court of Justice: Law, Language and Translation, 14 European L J 806-818 (2008).
- Tadas Klimas and Jurate Vaiciukaite, Interpretation of European Multilingual Law, 3 Int’l J Baltic L 1-13 (2005).
In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.
Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.
So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.
Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.
- Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
- Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
- William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).