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.

 

Interdisciplinarity in Comparative Law – A Blessing or A Curse?

Posted on by Anita Frohlich

Interdisciplinary research – the collaboration or conglomeration of knowledge of two or more disciplines – is probably one of the main features in academia over the last 50 years. In comparative law, interdisciplinarity has been honed as the sine qua non. Yet, some have warned against or even criticized interdisciplinary efforts in comparative law research.

Comparative law is often linked with social sciences, economics and linguistics. Some of this interdisciplinary research has been more accepted than the other. Acceptance is usually contingent upon the perceived compatibility of the fields. Thus, comparative law research drawing from legal history is much more recognized than the application of law and economics concepts on a macro-comparative question.

Such bias is unfortunate, because comparative law as a discipline may greatly benefit from thinking outside the box by looking at other – more unusual -fields of research. The challenge is just to make sure that the basic principles of all disciplines combined are kept intact. Generally, collaboration among researchers seems to be the ideal way to go. Yet, unfortunately, legal academia tends not to be very open for that. So another solution might be to ensure better knowledge on an individual level through in-depth study of the other field used.

In subsequent posts, I intend to discuss some recent research on and in interdisciplinary comparative law.

Bibliography

  • Jaakko Husa, Interdisciplinary Comparative Law – Between Scylla and Charybdis?, 9 J. Comp. L 28-42 (2014).
  • Pierre Legrand, Le Droit Compare 3e ed. 47-48 (2009).
  • Geoffrey Samuel,  Does One Need an Understanding of Methodology in Law Before One Can Understand Comparative Law Methodology? 177-208, in: Methodologies for Legal Research: Which Kind of Method for What Kind or Discipline (Mark van Hoecke, ed. 2011).

The Second Phase of Comparative Law – Ernst Rabel and the Focus on (Social) Functions

Posted on by Anita Frohlich

Due to its purely theoretical nature, the Paris Congress of 1900 left many comparatists with an unsatisfied feeling, mostly with regards to the long-term effects the Congress may have on the reception and acceptance of comparative law research. Most agreed that a new approach was needed. This new approach came several years later with the Austrian Ernst Rabel.

Although Rabel saw comparative law as purely scientific in its quest for legal knowledge, his writings also stress its practical implications. He himself openly lived this dichotomy by being professor and judge at the same time. Yet, the demonstrated two-sidedness of comparative law was not Rabel’s main achievement. Thus, Rabel can be seen as the founder of the functional method in comparative law – a method that even today has a prominent place in comparative law research. It is of note, however, that Rabel never personally mentioned and defined this methodology, but that it was later ascribed to him by his students.

The idea to look at legal functions came from Rabel’s mentor, the legal historian Ludwig Mitteis who taught Rabel to look at the functions of historical legal provisions. Rabel subsequently applied this idea to the comparison of modern legal systems. In particular, Rabel encouraged comparative lawyers to distance themselves from the written text of a norm and focus on its context and application instead.

Rather than comparing fixed data and isolated paragraphs, we compare the solutions produced by one state for a specific factual situation with those produced by another state for the same factual situation, and then we ask why they were produced and what success they had. (Rabel in “Fachgebiete des Kaiser Wilhelm Instituts” at 187 as quoted by Gerber, Sculpting the Agenda of Comparative Law, 199.)

The application of this approach can be seen in Rabel’s four-volume treatise on the “Conflict of Laws: A Comparative Study.”

So what makes Rabel’s work stand out from “first-phase comparative law” as defined by the Paris Congress? First, and foremost, Rabel did not restrain himself to the theoretical definition of a methodology (in fact, he did never really define a specific method), but instead focused on the legal realities in different legal systems and compared their solutions for specific legal issues. Second, Rabel explicitly looked beyond the official legal texts and also considered their applications and interpretations. Third, and as a consequence of the second point, Rabel’s method left room to consider the common law and compare it with the civil law systems of continental Europe. In fact, he spent a good part of his later life in the United States.

It is therefore fair to say that Rabel’s new and innovative take on comparative law marks the beginning of the second phase of comparative law. His students and friends propagated functionalism in comparative law by further developing and promoting his original idea to identify specific social functions of legal rules as terra comparationis.

Bibliography

  • David Gerber, Sculpting the Agenda of Comparative Law: Ernst Rabel and the Facade of Language 190-208, in: Rethinking the Masters of Comparative Law (Annelise Riles, ed., 2001).
  • Christine Godt, The Functional Comparative Method in European Property Law, 2 Europ. LJ 73-89 (2013).
  • Max Rheinstein, In Memory of Ernst Rabel, 5 Am. J Comp. L 185-196 (1956).