A Pledge for the Importance of Comparative Law in the Ongoing COVID Pandemic (and Beyond)

Posted on by Anita Frohlich

I recently attended a meeting on “Comparative Law and the COVID-19 Pandemic” organized by the International Association of Legal Science. The presenters highlighted different local and regional reactions to the global pandemic. For me, these presentations emphasized that countries responded (and are still responding) to the global health threat with highly individualistic legal measures.

From a strictly political perspective, this makes perfect sense: there is an external threat to national security to which the government reacts with isolationism – which is reasonable in the short term. Now that the pandemic has been around for almost two years, however, I believe that it is time to reconsider this approach. In fact, thanks to social media, citizens have cooperated and mobilized across country borders. Hence, I think, it is time for governments to stop trying to reinvent the wheel and to start looking beyond their territorial lines. In other words, globalization makes it essential for legislators to get inspired by their neighbors and to cooperate internationally.

Comparative law could be an important tool for such legal cooperation. Thus, comparative law points out legal synergies while at the same time taking legal singularities and cultures into consideration. The importance of comparative law is true not only for regulations dealing with the current pandemic, but also for other issues of global implications, including legislation on climate change. My hope is that governments and legislators will recognize the increasing relevance of comparative law for solving issues that may have an impact on the future of our global society and our planet.

Sources

Contributions to Zoom Webinar on “Comparative Law and the COVID-19 Pandemic”, in particular by

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.

 

Translating Legal Quirkiness – The Austrian Versteinerungstheorie

Posted on by Anita Frohlich

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.