Instead of starting this first post in the New Year with the usual promises to be more regular and frequent in my posting (things I am admittedly working on …), I would like to take a short moment to reflect on the purpose of this blog and of law blogs in general by citing a recent (very interesting) article by Katharina Isabel Schmidt, a J.S.D. candidate at the Yale Law School.
By way of conclusion, I would suggest that the particular merit of law blogs […] results from their capacity to advance the following two objectives: Firstly, to facilitate transnational self-reflection on the kind of endeavor we, as jurists, consider ourselves to be engaged in. Secondly, to give a voice to younger scholars and practitioners who have historically been excluded from important conversations about the future of law and the legal profession. For this purpose we should by all means continue to take advantage of the dynamic, democratic and decentralized nature of non-traditional approaches to legal knowledge production for the purpose of remedying the particular flaws of traditional national law journal culture […].
Hopefully CompareLex will play a role in this new era of broadcasting legal knowledge and discourse through non-traditional channels.
In my last post, I discussed multilingualism in the European Union and its complexity, especially with regards to the translation of official legal texts. Legal academia experiences a similar problem: there is a multitude of national legal journals that often publish articles of transnational interest. Unfortunately, these articles are mostly written in the native language and therefore inaccessible to a broad spectrum of potential readers. This situation can be seen as academic multilingualism.
The question is whether one should try to overcome this academic multilingualism by publishing all legal articles in English – the language spoken or at least mastered by most lawyers. I suggest writing all articles in English, because even articles on domestic legal issues might be of use for jurists from other countries.
Of course, the issue of translating specific legal concepts into English remains. Yet, other than with binding EU treaties, the wording in academic articles does not have to be exact or concise. Legal terms that are foreign to the English language could easily be circumscribed or defined and thus made known to a broad audience. This way, legal academia could in fact play an important role to overcome multilingualism in law by spreading legal concepts across borders.
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).