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UNDERSTANDING LEGAL LANGUAGES: LINGUISTIC CONCERNS OF THE COMPARATIVE LAWYER

JAAKKO HUSA*

let us go down and confuse their language so they will not understand each other.1

Introduction

The relation between law and language appears to be ambiguous; no one denies its significance, yet this relationship is not explicitly present in the work of legal professionals. However, we can safely argue that law and language are deeply intertwined within Western legal cultures. 2 Ordinarily, the everyday practice of law and the mundane workings of a legal system camouflage this connection; this is especially so in systems where there is only one legal language. Simply put, law and language are so intimately intertwined that the relation between the two is not consciously conceived. However, if there is more than one official legal language then the connection between law and language emerges; for example, how can we translate from one language to another in such a manner that the precise legal content of legal text remains unaltered? This question carries a great amount of specific relevance for todays Europe. Undoubtedly, legal translation is of the utmost importance for the process of legal harmonization in Europe. For example, interpreting and applying twenty-three authentic language versions of EU
*

Professor of Legal Culture and Legal Linguistics at the University of Lapland (Finland), Invited Fellow at the Maastricht European Private Law Institute, and Adjunct Professor of Comparative Legal Science at the University of Helsinki. The author wishes to thank Professor Juha Karhu and Associate Professor Petri Keskitalo for their suggestions and thoughtful comments on the earlier draft. 1 Genesis 11:7 (in this biblical quote the idea is that after the Great Flood people were united and spoke only one language; however, people were ignorant and tried to reach too high, and thus, God decided to confound their speech). 2 However, it is important to conceive that written law is not the only possibility. In this paper, however, such things as indigenous tribal law, African customary laws or oral legal tradition based on Torah are not taken into account because the focus is on the EU legal sphere. For a broader discussion see D. Nelken (ed.), Comparing Legal Cultures (Dartmouth: Aldershot, 1997).

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legislation is not merely a technical challenge which may adequately be met through using a sufficient number of linguist-translators; there are also theoretical issues which accompany, whether we like it or not, the challenge of proper legal translation in such a multi-layered and linguistically complicated environment as the EU. Now, it can be surely assumed that genuine legal harmonization requires somewhat uniform interpretation and application of EU legislation. But, the question of the legal language of the EU does not exclusively deal with harmonization; it touches deeply rooted legal cultural national values also.3 In such a situation it is inevitable that legal translation comes to possess a vital role. This vitality is based generally on an observation according to which it is absolutely crucial to grasp that the law of the EU cannot be properly conceived if its multilingual character is not taken into account.4 This, in turn, emphasizes the importance of legal translations. However, legal translation is possible only if those who translate understand the legal language and legal culture(s) of source and target-language(s).5 Of course, there are different levels or at least layers in translating and not always deep legal-cultural knowledge is needed. Yet, when problems arise concerning terminology or precise legal meanings, these problems tend to be such that deeper legal cultural knowledge turns out to be sometimes crucial. In this paper, it is not sought to discuss the feasibility of harmonized law in the EU but rather the challenge of understanding legal language is addressed from the point of view of comparative law. In particular, the lingual character of law and language challenges facing multilingual translation is highlighted. The main argument of this paper is simple: to show that there are different levels or layers in legal language, and that the epistemic level of legal language is more relevant than the surface level of actual legal texts (statutes, judgments, decisions of public authorities, private documents) as linguistic end-products.6 This produces an argument
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This is not difficult to grasp. As has been seen in the EUs patent issue , the fear of some legal languages having the upper hand is real: many would rather have the Tower of Babel than any common language. The proposal concerning the usage of just three languages caused really serious eruptions. The idea that a new European patent would be granted in only one major European language (English, French or German) aroused serious criticism concerning the EUs future language-regime. The problem is highlighted well in Opinion 1/09 by the Advocate General Juliane Kokott (2 July 2010). In her opinion, the Unions centrali zed patent litigation system would not comply with EU law. She pointed out that the proposed linguistic system would have violated the rights of defence. 4 For a convincing display of this, see M. Derlen, Multilingual Interpretation of European Union Law (The Hague: Kluwer, 2009). 5 The arguments provided by those who underline radical legal-cultural relativism are not taken into account here. These arguments, if followed logically to their conclusion, would mean that one could not really understand foreign law at all. For legal translation this would mean a strangely dark conclusion; it would turn out to be almost impossible to do. Of these radical arguments see, e.g., P. Legrand, Le droit compar (Paris: Presses Universitaires de France, 1999). 6 For different text types in law see M. Galdia, Legal Linguistics (Frankfurt am Main: Peter Lang, 2009), 90 91.

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which is controversial at first glance: understanding legal language is more complicated than we normally think, but at the same time understanding of foreign legal language is easier than we fear. These questions are discussed here mainly in terms of linguistically sensitive comparative law. In other words, the underlying theoretical basic assumption of this paper assumes that legal language is a complicated phenomenon and understanding different legal languages contains specific problems which are caused by the multiplicity of legal language itself which is duplicated when there is more than one language. Legal language contains not only different functions but also different levels of comprehension. At least, we can separate the technical surfacelevel and deeper epistemic level.7 These two levels are demonstrated by two kinds of examples: The first one (section 4) concerns the language of ius commune, and it seeks to point out that for legal understanding, the legal-epistemic level is vital. The second part (section 5) seeks to underline what kind of problems there may be in understanding legal language which is relatively easy to understand on the surface-level but difficult to understand on the legal-epistemic level. The second part deals also with the challenge of understanding common law English. In the last part (section 6), the author draws some conclusions concerning legal translation in a multi-lingual environment. It is hoped to answer the question concerning what kind of translators are needed and, more importantly, what kind of challenges good legal translation faces in difficult situations. The spearhead of the argument concerns legal translation in difficult situations in so-called hard cases, that is, a translation problem which goes undiscovered until a translator is forced to translate a hard case. Here the focus is on these numerically less significant but legally crucial hard cases in which strict application of standard-translation will not suffice or in which there is a risk for misunderstanding.8 The argument is concentrated around second and third language translation, that is, it is not especially difficult to translate from one foreign language to ones own mother -tongue which is also the legal and cultural home-base of the translator. The problems which are also of concern for a
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Epistemic level refers here to constitutive forms of law. These forms are general categories which are necessary for understanding legal text like a lawyer. Such general categories contain rules of legal argumentation (how one can make claims about law in a valid manner), doctrine on sources of law (what sources must and can be used, what are the hierarchical relations between different sources), systematic structure of the legal system and general legal concepts (e.g., right, obligation, legal, non-legal etc.). Cf. G. Samuel, Epistemology and Comparative Law, in Epistemology and Methodology of Comparative Law, ed. M. Van Hoecke (Oxford/Portland: Hart, 2004), 36. 8 See also Galdia, Legal Linguistics, 210211 (discussing Dworkins separation of hard and routine -cases from the point of view of legal linguistics).

comparative lawyer come forth when translators translate into such languages in which they have no legal-cultural embedding. In this paper terminological details, which usually tends to trump other issues while discussing about legal translation, will not be referred to.9 It is sought to avoid technical and detailed questions and instead uncover deeper theoretical dimensions concerning legal languages and their legal cultural embeddings.10 Before discussing the concept of legalepistemic language, let us first look into the nature of the legal translation challenge in contemporary EU.

Challenge of Multilingualism in EU Law: All the Other Language Versions

Legal translation in a multilingual environment, like the EU, is not only a linguistic undertaking, but it may have also direct legal consequences which are caused by faulty translation. There are many complicating factors. Law and language are intertwined in various ways when there is more than just one legal language. Let us take an example from the case law of the European Court of Justice (after the Lisbon Treaty entered into force in 2009 Court of the European U nion). In 2007, the Court gave a preliminary ruling in a case which dealt primarily with the differences between language versions.11 The Court stated that: Although the Finnish version of that provision contains no reference to the requirement that overheads be allocated pro rata to the operation in question, that fact is of no consequence, since it follows from settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in all the Community languages and since, in this case, the language versions other than the Finnish expressly refer to the requirement that overheads be allocated pro rata or proportionally to the operation in question.12 To state that language version other than requires explicit comparison of multilingual legal texts. Only then does it become possible to argue that other systems expressly refer whereas the Finnish version fails to do this. The previous case referred to a judgment dealing with the differ-

Cf. M. Galdia, Comparative Law and Legal Translation. In The European Legal Forum 2003: 1 et seq. See for more detailed discussion L.J. Constantinesco, Trait de droit compar. Tome II (Paris: Librairie Gnrale du Droit et du Jurisprudence, 1974),144150. 11 Case C-54/05 Judgment of the Court (Second Chamber) of 15 March 2007 European Commission v. Republic of Finland. 12 Para 20.
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ences between Italian and other language versions.13 In this referred cases key paragraph, the Court stated that:

In fact, as the Court of First Instance rightly held, it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in the other Community languages This is unaffected by the fact that, as it happens, the Italian version of Article 85, considered on its own, is clear and unambiguous, since all the other language versions expressly render the condition set out in Article 85(1) of the Treaty in the form of an alternative.14 Again, to state that all other language versions expressly render requires legal and linguistic comparison of multilingual legal texts. Now, these are just examples, but they demonstrate what may be at stake. The problem with the EUs mega multilingual environment is the fact that basically translation from one source-language to twenty-two target-languages should be as uniform as possible. Without a shadow of a doubt, this is unattainable even in the modest technical sense. Clearly, this demonstrates the extent of the problem concerning, understanding and translating legal languages. These cases cast light upon the nature of translating legal language within the EU. This as such is certainly not a surprise unheard of. It was judicially well understood already in the 1990s that there is genuine legal need for a consistent terminology of law.15 The quintessential question was and is how to mix linguistically and legally different national legal cultures and that of the EU and still maintain coherence? Out of this acknowledgement of the problem grew the Inter-Institutional Agreement of Common Guidelines for the Quality of Drafting Community Legislation in 1999.16 In its Section 5, it is said that concepts or terminology specific to any one national legal system are to be used with care.17 In other words, legal languages carry the meanings of natural languages, thus, legal variants of natural languages cannot be separated from their legal-cultural environment. Then, it is justified to ask do we really need to use all of the twenty-three languages simultaneously all the time? Of course not, because
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Full reference inside brackets: see by analogy, in particular, Case C -219/95 P Ferriere Nord v. Commission [1997] ECR I-4411, paragraph 15. 14 Paragraph 15. (Please note that the numbering of the Articles has since changed.) 15 In case law this was clearly understood all along, see, e.g., one of the all the other versions case law. Case 9/79 Marianne Wrfsdorfer, ne Koschniske v. Raad van Arbeid, paras 58 (concerning the Dutch expression diens echtgenote whose wife which camouflaged the meaning of spouse/aegtefaelle/ehegatte/conjoint/coniuge covering both genders in other language versions. 16 Official Journal C 073, 17/03/99. 17 Manuela Guggeis and William Robinson (in this volume) discuss about the difficulty of finding culturally and linguistically neutral language (e.g., rather negligence than tort or rather lawyer than solicitor or barrister).

the sharp increase in the number of official EU languages has also injected some realism into the linguistic dimensions of the EU legislation. In the famous case of Stauder in 1969, the Court of Justice thought that for the sake of uniform interpretation it was impossible to consider one version of the text in isolation, and it was required that the text should have been interpreted on the basis of both the real intention of its author and, crucially, in the light in particular of the versions in all four languages.18 If followed to the extreme conclusion this would imply that we really should work with twenty-three languages simultaneously. Notwithstanding, the rule of Stauder seems practically unattainable today for it would be a terrifyingly heavy burden for judges or public officials to actually check twenty-three different language versions every time interpretations are made. So, in todays multilingual environment, comparison of fewer language-versions seems like a practical possibility. One of the consequences of the rich multilingual character of EU law is the fact that today the concept of plurilingualism is used instead of mere multilingualism. Plurili ngualism goes beyond multilingualism and emphasizes that individuals experience languages in their cultural contexts so that individuals do not keep these languages and cultures in strictly separated mental compartments. Instead, individuals are constructing a communicative competence to which all knowledge and experience of language contributes and in which languages interrelate and interact.19 Accordingly, this allows different levels of understanding. However, for legal translation the problem remains that it requires almost in all cases rather extensive understanding of the source and target-languages. Fundamentally, the challenge to understanding legal text in a legally relevant manner is inseparably part of EU legal translation whether we conceive it as a multilingual or plurilingual environment.20 In particular, what reliable legal translation needs is an understanding of the deeper level of legal language, something we may tentatively coin as the legal-epistemic level of legal language.

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Case 29/69 Judgment of the Court of 12 November 1969, Erich Stauder v. City of Ulm (preliminary ruling), para The Common European Framework of Reference for Languages (Cambridge, Cambridge University Press, 2001),

1.
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4.
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This is based on a simple fact which can be formulated in the following manner: The meaning of law depends on how a legal discourse reacts to its specific environment says R. Cotterell, Is it so Bad to be Different Comparative Law and the Appreciation of Diversity, in Comparative Law A Handbook, ed. E. rc & D. Nelken (Oxford/Portland: Hart, 2007), 141.

3.

About Legal-Epistemic Language

In order to be able to define even roughly what is meant by legal epistemic language one needs to say something about legal language in general. From a very general point of view, legal language can be divided into many sub-genres according to various groups of legal professionals. For instance, we may separate the language of legal authors, administrators, legislators, advocates and judges.21 Today we may regard English as a legal-technical lingua franca, although there is an abundance of problems with this.22 Barbara Pozzo (in this volume) describes English fittingly as a forced choice. So, others would prefer Latin, the old common continental legal language.23 Latin obviously came originally from the Romans, yet, not directly from the Romans themselves but, rather, from the heritage of transformed Roman law and legal Latin. Ius commune was not a historically genuine Roman law but rather a submerged and flexible legal system that was built on the fragmented base of Roman law by university scholars mainly in the high and late Middle Ages.24 Nevertheless, it is important to conceive that Latin and the loose system of ius commune was not truly a single legal language and strictly speaking a system of positive law but rather a general conceptual system of legal thought dressed up in Latin. And, in this possible meta-linguistic conceptual-frame there was hidden, its most important significance: legal grammar.25 This is what is meant here with the legal-epistemic level of language: it places concepts, doctrines and institutions in a legally conceivable order. Accordingly, when we talk about language and law, we must exercise great care to express clearly and distinctively what is meant by this kind of special language. Simply put, the concept of language may mean many things. If one would follow the argument that says that it is impossible to create a new legal lingua franca, one should also accept that it is not realistic to expect that even the European legislators and judges could share the same language in the deep

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H.E.S. Mattila, Comparative Legal Linguistics (Aldershot: Ashgate, 2006), 4. The private law common-core movement has also been said to think that law of the common core is fundamentally meta-linguistic as to its nature. However, this approach can be questioned and criticized; see N. Kasirer, The Common Core of European Private Law in Boxes and Bundles, Global Jurist Frontiers 2 (2002) Iss. 1, Article <http://www.bepress.com/gj/frontiers/vol2/iss1/art2>, 1 December 2010. The problem is that legal meta-language is something more than just a natural language of a system or of systems. See also Galdia, Legal Linguistics, 281. 23 See supra n. 21, 128131. 24 Ibid., 125. 25 M. Bellomo, The Common Legal Past of Europe: 10001800 (Washington DC: The Catholic University America Press, 1995), 184.

sense of the word.26 The feasibility of one common legal lingua franca may look tempting from a certain point of view that understands language in a quite technical sense as a mere language of law; as, for example, legal French or legal Danish. Be that as it may, something more is required if we take into account the epistemic level of legal language.27 Consequently, legal language may be understood in several ways. From a general point of view, we may argue that they are LSPs: a functional variant of natural language, and it carries certain specific features concerning morphological, syntactic, semantic and pragmatic dimensions.28 However, for the discussion in this paper a more dynamic definition is suitable. According to the dynamic point of view, it is stressed that legal language is also a form of communication allowing legal discourse between various legal actors.29 In what follows, the historical linguistic lesson of ius commune and legal Latin are looked into in order to give more concrete content to the concept of legal-epistemic language.

Epistemic Level of Legal Language: The Case of Ius Commune Comprehension

According to basic legal distinction in the Middle Ages, the way law was conceived was divided into two main compartments: local and transnational. The concept of ius proprium described different local laws (in plural iura propria) that were somehow opposed to the ius commune. Ius proprium was considered as a particular or territorial law which was normally applied in the courts of law before non-local ius commune. In this sense, iura proprium had formally a stronger position than ius commune. However, in practice ius commune had a certain epistemological upper hand in its relation to ius proprium. This was due to the fact that ius commune was not merely a system of positive law, that is, it had other important dimensions.30 These language-laden dimensions had to do with ideological and cultural beliefs which were, in turn, affected by different idealized values. In this deeper legal cultural sense, ius commune was not merely a subsid-

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E. rc, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Leiden/Boston: Martinus Nijhoff Publishers, 2004), 201. 27 This is comparable with such an expression as the language of art. 28 See supra n. 21, 34 and 1112. 29 See A. L. Kjr, A Common Legal Language in Europe, in Epistemology and Methodology of Comparative Law, ed. M. Van Hoecke (Oxford/Portland: Hart, 2004), 387 388. 30 In many ways, it could be compared with the history of English common law; moreover, even elsewhere in Europe there were relational non-territorial laws. See H. P. Glenn, Transnational Common Laws, in Fordham International Law Journal 29 (2006): 462464 (multiple sources of law which were applicable within the same territory).

iary law because it spread legal logic, legal concepts, and terminology of law and different mechanisms of legal reasoning. Therefore we might speak of the Roman way of thinking about the law.31 In short, there was a common non-territorial legal lingua franca containing shared epistemology; legal grammar if you prefer. In a way, one might be able to describe ius commune as a language-intertwined (legal-cultural) factor that was a kind of a mode of being for jurists and judges.32 There was an important linguistic element behind the very possibility of ius commune of being able to function as the mode of legal being. This was, to be sure, the linguistic cement of Latin, a language that helped to create a kind of cultural unity between professionals in law.33 Nevertheless, the actual key-factor was not Latin itself; it was merely the linguistic vessel of legal grammar. There is a crucial legal-linguistic dimension here: ius commune was a product of a (legal-epistemic) language that was shared. As M. Bellomo states, language was and is an important factor in this:

As the national or regional languages were many, so were local laws (the iura propria). And as the national languages not only recognized the Latin language but accepted it and intermingled with it, so the various iura propria intertwined with the ius commune, from which they might also diverge profoundly, however, just as the Romance languages split off from Latin.34 If we follow Bellomo with this, we may suspect that ius commune contained a common method based in the use of one language and also common legal concepts, doctrines, and institutions.35 In this legal-epistemic sense, Latin was not only the technical language of law but it also contained inter-woven legal grammar, which the Euro-English of today certainly does not contain.36 From this point of view, we may not regard Latin and English as genuinely comparable legal languages. Surely, English is situated on the surface level of law enabling technical and practical

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P. Legrand, Structuring European Community Law: How Tacit Knowledge Matters, in Hastings International and Comparative Law Review 21 (1998): 873. 32 See supra n. 25, at 7890. 33 Ibid., at 116. 34 Ibid., at 179. 35 Ibid., at 219. 36 See, e.g., T. Weir, Die Sprachen des europischen Rechts Eine skeptische Betrachtung, in Zeitschrift fr Europisches Privatrecht 4 (1995): 368.

legal communication, but it does not contain a common European legal-language grammar.37 On the contrary, it carries inborn common law elements in its structures and concepts (see later section 7.5).38 In accord, if one is to talk about common legal language and in specific understanding this special language (i.e., text as end-product), one cannot restrict the scope of analysis merely to external aspects of legal language as a technical language. From the point of view of legal history, we can denote to the fact that, as expressed by F. Wieacker, Roman law and its language, for the medieval lawyers, was a loose method that contained a juridical grammar. Apparently, it was this hidden grammar that was of immense importance, much more than law as a set of positive rules of ius commune, dressed up in a Latin garment, that would have been capable of application potentially in any particular place in Western-Europe.39 Before we proceed any further, it is important to recognize that this appears to be very much true for todays Europe too positive rules in the Treaties and other legal instruments applied by the EU and Member States are merely the surface as is the case with the European Convention on Human Rights too: knowing the precedents is what really counts. Currente calamo; there are deeper layers which reside in legal concepts, doctrines and institutions. So, the cultural legal-epistemic dimension of legal language is of importance. Languages have actual being in cultural and epistemic communities which are constructed and maintained with the help of linguistic symbols, interpretations and discourses. Undisputedly, language is an indispensable medium for this. But language in this deep sense is not only words or grammar for it contains also practical understanding of shared legal meanings.40 Similarly, when Wieacker evaluated the reception of Roman law in Germany, he did not put much weight on the adoption of actual legal rules; rather he underlined the process of development in which the legal-cultural indoctrination of jurists took place. And, what was important was the legal-cultural grammar of law that penetrated into the public life. The focal point had less to do with the actual rules, that

37

In this paper, the concept of grammar refers broadly to the underlying features of legal language that define the manner in which legally relevant sentences (i.e., arguments) are constructed, cited and used. It is an invisible skeleton which helps to organize legal language in a legally comprehensible manner. 38 One detects this basic fact very rapidly when trying to translate even some of the very rudimentary concepts on the field like, for example, Rechtstaat or tat de droit into English rule of law these expressions are clearly not functionally equivalent, yet, they seem to deal roughly with common questions. 39 F. Wieacker, A History of Private Law in Europe (New York: Oxford University Press, 1995), 55 56. 40 V. Gessner, A. Hoeland & C. Varga, National Legal Orders Without a European Legal Culture?, in European Legal Cultures, ed. V. Gessner, A. Hoeland & C. Varga (Aldershot: Dartmouth,1996), 493 et seq.

is, substantive law and its legal language in a technical sense. In this process of reception the role of discourse, especially scholarly discourse of jurists played a very relevant role.41

What Language Law Speaks?

But as already stated, today there is no lingua franca as Latin supposedly was; so it means, in turn, that jurists that belong to different national legal cultures do not have a shared legal language in its epistemic sense, but merely technical languages for practical legal communication. Nonetheless, if we do not accept that a cross-cultural legal dialogue is impossible, there should be a way out of the territorial and nationalistic boundaries of legal languages. 42 One possible manner by which to conceive legal language is to underline it as a means of communication of jurists that are members of a certain social group and are participating in its professional culture. If we follow this line of reasoning, we grasp that meaningful legal language is dependent on the culture and social group to which the users of the legal language belong. Accordingly, a key question is as A. Kjr puts it: What language do lawyers speak when they communicate across languages and legal systems? One of Kjrs interesting ideas is to regard legal language not as a stable symbolic system but, instead also a variable flow of discourse between legal actors. This requires legal language to be beheld as discourse, that is, a communicative practice (containing legal information) used in certain social contexts.43 Focal point is what law means, the legal meaning of a legal document, not how it is linguistically expressed in the form of text. When the members of a group use this sort of legal language, it has an impact on the people that belong to the group. The legal discourse has an effect on the concepts and conceptions about the world of law; how it is understood in a legal sense. This means that even though European legal languages differ from each other they are not unchangeable; instead, they are constantly changing because of the legal discourse. Kjr, moreover, quite daringly believes that presuppositions about law in Europe are fundamentally the same. She refers here to old ius commune and the heritage of Roman law.44 Now, one does not need to go as far as she does in her assumption of similarity even while her argument concerning the nature of legal communication
41 42

See supra n. 39, 9496. See supra n. 29, 378379. 43 Kjr, A Common Legal Language in Europe, 384 and 388. See also Galdia, Legal Linguistics, 8990. 44 Kjr, A Common Legal Language in Europe, 391395.

in Europe would be accepted. She holds that what is common is not the actual language of different legal texts; but, rather the discourse in which different legal actors are involved. These considerations highlight the essential point that legal language in its technical meaning does not count for ius-commune-like-language, but rather like iura propria. Further, according to this view, one should not talk about common legal language but rather of common European legal discourse, that is, interplay between legal texts, courts and non-territorial legal doctrine.45 To conceive legal language in the proposed sense would require seeing it not as a substance but as a form of dialogue. One of the most relevant outcomes of this line of thinking is seeing European law as an organic and living being that is profoundly alien to different centralist and codifying-centred impositions. Discourse is difficult for anyone to control or direct unlike a codified set of rules, institutions and competences that the substantive rules and institutions centred understanding of things like constitutionalism or rule of law would prefer. Undoubtedly, this does have an effect upon the way the ius commune of today may possibly be defined. It would appear that this sort of epistemic ius commune might be perceived as a form of communication for which comparative law in a very broad sense provides the legal language. 46 As such, this sort of ius commune seems to be quite different from what has been discussed in Roman and private law driven novum ius commune europaeum debates.47 To simplify it a great deal, legal English in England does not speak English but English common law. For a civil law lawyer or legal translator, this fact poses an epistemic problem.

6 The Lack of Epistemic Legal Language: The Case of Common Law from the Point of View of Civil Law

When we speak of understanding, it seems to be a somewhat unproblematic concept: either one understands or does not understand. However, this dichotomized manner works poorly when we deal with legal languages; plurilingualism seems to stress this. In fact, sometimes it is easier to

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Ibid., 396397. See supra n. 25, 15. 47 For this line of neopandectist thinking, see especially R. Zimmermann, Savignys Legacy , in Law Quarterly Review 112 (1996): 576 et seq and critical comments by N. Roos, NICE Dreams and Realities of European Private Law, in Epistemology and Methodology of Comparative Law, ed. M. Van Hoecke (Oxford/Portland: Hart, 2004), 202213 (note: Roos abbreviates novum ius commune europaeum as NICE).

understand a legal language which one does not understand in a technical sense than to understand a legal language which one does understand in a technical sense! The previous example of ius communes legal-epistemic language containing hidden general grammar of law indicates that the mastery over Latin was clearly secondary to the skill of thinking like a ius commune lawyer. So, it can be argued that it is more crucial to think like a lawyer (within a certain legal culture) than to know any specific legal language in a general linguistic sense. This claim may appear as controversial but is not as controversial as one might suspect because in understanding legal language, there are more possibilities than just two: there are different levels of comprehension. But what kind of epistemic understanding are we actually dealing with? While trying to define what it is meant here with the epistemic level and understanding of foreign legal text, we may look at hermeneutical philosophy. Hermeneutical philosophy in general seems suitable for the purpose of this paper which stresses the importance of understanding; hermeneutics central topic was the nature of understanding. However, it must be said that only some of the very basic ideas of hermeneutical philosophy are looked at here. For instance, P. Ricouer (19132005) spoke of the world of the work referring to certain dimension of the text. This proposed world is not situated behind the text as though it is obscured by the text. Instead, Ricoeur thought that this world is actually in front of the text, that is, something which the text unfolds and reveals. Thus, for Ricouer, understanding means to understand oneself in front of the text.48 While trying to understand legal text in a foreign language the key task, if one is to follow Ricouers lead, is to try to reach the world of the work. The world which Ricouer refers to can be understood as the world of a legal text; in short, a legal cultural level containing the legal grammar of that language. This idea calls for recognizing the intimate bond between law, language and the act of understanding because Ricouers point basically says th at law is intelligible for a jurist in and through language. However, if this world is not reached or touched, translating legal text into a foreign legal language is transformed into a technical-literal exercise which fails to reach the deep legalcultural dimension of law. Yet, we may exercise some modesty here. In routine-like translating, this is not a devastating problem. There is no Babel-effect here; the lock, stock and barrel of legal terms may be acquired in routine-translation. But, when dealing with hard case legal48

P. Ricoeur, Hermeneutics & the Human Sciences (Cambridge: Cambridge University Press, 1981), at 143. Cf. Legrand, Structuring European Community Law: How Tacit Knowledge Matters, 891 (speaks of legal traditions own vision of its own world).

linguistic translation the ability to reach the legal-epistemic level or the world of the work becomes utterly important. The conclusion implied is that the legal epistemic level is more important than the technical-linguistic mastery over a certain legal-language. Especially when a legal translator is dealing with difficult terms, concepts or idiomatic expressions translating quickly turns out to be actually interpreting. As H.G. Gadamer (1900 2002) said: every translator is an interpreter.49 Moreover, Gadamer basically argued that the situation of a translator and interpreter is fundamentally similar. Accordingly, when foreign language is being translated what really is going on is an attempt to conquer the aliennes of the text.50 On the whole, then, Understanding and interpretation are indissolubly bound together.51 And, Gadamer posed an important question by asking the following: how it is possible to understand anything written in a foreign language if we are thus imprisoned in our own?52 This question seems to take specific form when it comes to legal language. To put it provocatively: a translator is interested in what a text says whereas a lawyer is interested in what a text means. 53 Now, if we are dealing with difficult and problematic translations, this distinction is of importance. Yet, what the text says and what the text means cannot always be separated which indicates that the roles of a translator and lawyer cannot always be separated either.54 We can go even further and claim that a legal text which contains the legal-epistemic level is a living thing, whereas the surface level technical legal text is merely a silent document.55 In other words, law comes to life not because of its linguistic properties (signs, terms, sentences, structure of the text etc.) but because of its force as a normative creature identified by jurists. In accordance, a legal linguist is like a pathologist doing a dissection to the textual end-product, whereas a jurist is like a doctor dealing with the living meanings of the text. Some of what Gadamer says seems to be a bit problematic for legal translating. If we follow him a bit further, it seems that there is an unavoidable gap between the original text and a translation. Further, he thinks that this gap can never be completely closed. But, he also thinks
49 50

H.G. Gadamer, Truth and Method (New York: Continuum, 1994), 387. Ibid., 387. 51 Ibid., 399. 52 Ibid., 402. 53 Ibid., 413. 54 Obviously the existence of such a profession as lawyer -linguist or jurist-linguist proves this point crystal-clear. See J. F. Morgan, Multilingual legal drafting in the EEC and the work of Jurist/Linguists , in Multilingua 1 (1982): 109 et seq. 55 See supra n. 49, 397.

that one can learn foreign languages even perfectly.56 For a legal translator the situation is even more complex: first, one needs to learn a foreign language or languages, and then one must learn the equivalent legal languages. Thus, the challenge is twofold. This may sound complicated and overtly theoretical, but it is not necessarily so. Let us take a couple of examples from common law English even though only very general lines can be indicated here.57

Different Reader Connotations: Potentially Lost in Translation

It might appear as a tempting possibility to postulate that English could function as legal lingua franca. However, English within the EU has deep roots in common law, and it is very difficult, if not downright impossible, to fully eradicate these roots and create a purely EU legal English; invisible legal cultural remnants will linger. It is more likely that EU legislation will always lead to some interpretative divergences for one simple reason: legal language is context-bound. So, legal English is inseparably connected with specific historical circumstances under which it was created. In short, the characteristics of legal English even today can only be explained by the legal and linguistic history of England. This explains, in brief, why legal English is so different from legal languages of continental Europe. However, this is not all that there is to it. English law contains plenty of legal concepts, doctrines and institutions which are almost incomprehensible to a foreigner; lawyers and linguists included.58 One specifically difficult area of law for any continental lawyer or legal-translator is English contract law.59 Of course, the law of contract in England appears rather similar on the surface as in continental Europe: it may be regarded as a field of private law which is administered by the civil courts, and it is concerned with the rights and duties of parties between each other. These duties are imposed and defined by the contract, and they are targeted towards the other

56

Ibid., 384385. For the point of view of comparative law theory, see V. G. Curran, Comparative Law and La nguage, in Oxford Handbook of Comparative Law, ed. M. Reimann & R. Zimmermann (Oxford: Oxford University Press, 2006), 706707. 57 Here the emphasis is solely on English common law. For a concise look at its features, see G. Samuel, Common Law, in Elgar Encyclopedia of Comparative Law, ed. J. Smits (Cheltenham/Northampton: Edward Elgar, 2006), 145. 58 See Mattila, Comparative Legal Linguistics, 221240. 59 Cf. Ibid., 236 (features peculiar to legal English).

party of the contract. There are several ways of how contractual obligations can come into being, but the most typical are those based upon an agreement, that is, consensual contract.60 Terminologically and legally intriguing is the doctrine of consideration which is developed by the common-law courts. This word (consideration) was first used without any specific technical significance, but later it became a word of art that expressed the sum of conditions necessary for an action for breach of contract. In short, the word developed into a legally specific term which is used to mark promises that are according to the common law relevant enough to justify legal sanctions in order to enforce these promises.61 In a classical leading case within the area of English common law, V. Haldane argued that there are certain fundamental principles in the law of England concerning law of contract. He formulated the second of these principles in the following manner: if a person with whom a contract not under seal has been made is to be able to enforce it consideration must have been given by him to the promisor or to some other person at the promisors request.62 To make it simple, consideration includes an offer and the acceptance of the offer so that the acceptance contains a promise which can be judicially enforceable. There is a vital element of exchange: consideration means that the offer and acceptance are given in exchange. This means that both of the parties have the actual intention, as actually shown in their words and deeds, to create legal rights and obligations by entering into contract.63 Consequently, consideration may be anything of value promised to another party when making a contract. In practice, this can be typically money, services or promised actions taking place in the future if the contract is made. Consideration is crucial for a legally binding contract; it is a prerequisite for both parties to offer some consideration before a contract can be thought of as legally binding. Classically, no contract can be legally enforceable if there is no consideration. In fact, the notion of bargain lies at the heart of common law contract. 64 Thus, consideration may also be described as the price of the bargain, which must be of some ascertainably value from the legal point of view. Even while this does not mean that consideration ought to be of a certain value, as for example so-called market value, it is crucial that consideration has some value.65
60 61

P. Shears, & G. Stephenson, James Introduction of English Law (London: Butterworths, 1996), 219220. E. A. Farnsworth, Comparative Contract Law, in Oxford Handbook of Comparative Law, ed. M. Reimann & R. Zimmermann (Oxford: Oxford University Press, 2006), 908. 62 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847. 63 See also supra n. 6, 297. 64 C. Valcke, Convergence and Divergence of the English, French, and German Conceptions of Contract, in European Review of Private Law 16 (2008): 36. 65 See supra n. 62, 229.

All of these seem to be legally understandable, but what does this tell about legal translating? It may tell surprisingly much because the term consideration has quite another meaning in Standard English. Oxford English Dictionary (OED) defines consideration as the action of considering which means primarily the action of looking at or surveying with bodily or mental eyes; beholding, contemplation. In this sense consideration is certain manner of viewing a thing, an aspect of observation. The second meaning for the word refers to the keeping of a subject before the mind. This is attentive thought, reflection, or meditation. This second meaning refers to a certain thought or a mental reflection. If used as a phrase OED mentions to take into consideration and under consideration which both refer to the action of taking into account, or fact of being taken into account (i.e., regard). Moreover, the OED mentions the phrase in consideration of which refers to taking into account, in respect of or in return for. Finally, OED mentions only as a sixth possible meaning the legal meaning: anything regarded as recompense or equivalent for what one does or undertakes for anothers benefit; especially, in the law of contracts. It may itself be a promise. No promise is enforceable without consideration, unless made by deed, says OED.66 What does this mean in terms of legal translation? It is not maintained that legal translators would not know how to translate the common-law English term consideration. This would be futile, indeed: it is rather a well-known example. The point here is rather to make evident that legal language may contain a deeper epistemic element which is difficult to understand properly if the substance of the legal system is not known or taken properly into account. The key thing is the interactive bond between the legal-cultural context and linguistic expressions in the legal document.67 We may take another example which underlines the differences between legal English and legal German. No originality can be claimed here, since the example concerns the famous general clause Treu und Glauben in German Civil Code (BGB, Brgerliches Gesetzbuch 1900 242) which states that An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.68 This German doctrine is well spread

66 67

Oxford English Dictionary <http://dictionary.oed.com/>, 1 November 2010. What is argued here has some resemblance with what Galdia says about pragmatics and study of legal language; see supra n. 6, 3544. 68 Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Treu und Glauben mit Rcksicht auf die Verkehrssitte es erfordern.

among the continental legal systems.69 The lenient idea of this rule was deemed as important because it anchored BGB into societal higher morality and, thus, helped to balance the otherwise triumphant legal idea of private autonomy (Privatautonomie).70 In German legal language the expression Treu und Glauben originates from medieval Roman law and its famous concept of bona fides; in the end of 1800s, Treu und Glauben was considered as a legal synonym for the Latin expression.71 From ius commune traditions point of view German expression means fidelity and faith. The commonly used English translation uses the expression good faith which is, however, not a decent translation. This as such has certainly not been a surprise to those who are even vaguely familiar with the contract law of Germany and that of England. This largely explains why Treu und Glauben is normally translated into good faith and fair dealing, which seems to solve some of the problems because it contains the idea of fair dealing which is more easily fitted into common law contract law than the idea of bona fides. And yet, it has been shown that the idea of good faith fits poorly to the English common law culture mainly because the underlying production regimes are different as G. Teubner has vigorously pointed out.72 In fact, we may claim that common law is traditionally unaware of such a rule of default, and English courts have remained even strictly reluctant to accept such a rule which is regarded as vague restraint on the behaviour of a contracting party.73 Much ink has been spilled by comparative lawyers concerning English and German contract law saying basically that the German understanding of Treu und Glauben is specifically German with strong ius commune roots. Albeit, it would hardly make any sense to repeat all

69

For example, Italian Civil Code Art. 1375 states that Il contratto deve essere eseguito secondo buona fede meaning that Contract must be interpreted in good faith. Also Greek Civil Code Art. 288 states that , which means that The debtor shall be bound to fulfil the performance in accordance with the requirements of good faith taking also into consideration business usage. Other examples could also be listed (e.g., Portugal, France, Netherlands and Belgium). Also, the Principles of European Contract Law Art. 1-106 uses the expression of good faith (with an extension and fair dealing). For a concise overview, see J. Smits, The Making of European Private Law (Antwerp: Intersentia, 2002), 189201. 70 See also supra n. 64, 56. 71 S. Whittaker & R. Zimmermann, Good Faith in European Contract Law: surveying the legal landscape, in Good Faith in European Contract Law, ed. S. Whittaker & R. Zimmermann (Cambridge: Cambridge University Press, 2000), 1618. About the germanization of German legal language see Mattila, Comparative Legal Linguistics, 166 167. 72 G. Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, Modern Law Review 61 (1998): 11 et seq. Legal history plays an important contextual role here: it is inconceivabl e that British good faith will be the same as Treu und Glauben German style which has developed in a rather special historical and cultural constellation (ibid., at 20). 73 See supra n. 62, at 919.

what has been said. Instead, we might point out that even while good faith seems to be the d ividing factor between the German and English legal cultures, it does not stand as an insurmountable obstacle. Correspondingly, M. Hesselink has pointed out that Good faith does not differ much from what the English lawyers have experienced with equity. Should we take his point seriously, we might end up translating Treu und Glauben as contract law equity which is applied by the courts.74 Notwithstanding, should we underline the technical level of legal language then the idea of translating Treu und Glauben as contract law equity does look susceptible or even incompetent.75 Nevertheless, if the legal-epistemic level of common law legal language is taken into account it is believable that the constructed expression contract law equity is systematically and structurally better embedded in common law than the unfortunate concept of good faith.76 The problem with this kind of translation seems rather obvious: it requires deep apprehension of common law before it actually becomes epistemically possible for a translator to consider this path.77 For these reasons, the real trick having to do with the legal-epistemic level is not to perceive that good faith may be considered as a common core principle of European contract law but to know why it can be considered as such.78 Again, the knowledge of the substance of legal discourse is even decisive: it trumps the surface level of legal language. Both of these examples, which were shortly addressed above, indicate how perilous it would be to translate literarily. In other words, literal translations of such legal-culturally loaded concepts as consideration in common-law contract law and Treu und Glauben in German law would be clearly misleading. The point to be stressed here is not to claim that professional translators could not translate these terms properly. Instead, it is argued that these examples are telling us something about legal languages and especially about how these languages are deeply influ-

74

M. Hesselink, The Concept of Good Faith, in Towards a European Civil Code, ed. A.S. Hartkamp et al. (The Hague, London, Boston: Kluwer, 2004), 497. 75 Equity here refers specifically to the idea according to which it is in opposition to the idea of applying law to utmost rigor (ius strictum or strict law), that is, without any moderation by the judge. Equity may also refer historically to the whole body of law as opposed to common law. See supra n. 58. 76 Yet, it ought to be reminded that there is really no structure in English common law as in civil law systems, see Ibid., 154155. 77 Clearly contract law equity is linguistically constructed neologism. See also supra n. 21, 112117. 78 See supra n. 46, 701.

enced by their accompanying legal cultures: we simply cannot be oblivious to this fact. Obviously, common law and civil law are but prime examples of this.79 Moreover, it has been shown by comparative legal linguist H.E.S. Mattila that there are real difficulties which are intimately connected to understanding correctly legal institutions and concepts when struggling to translate them faultlessly. He also points out the importance of gaining sufficiently legal cultural contextual knowledge of a legal language. Mattilas fully elaborated answer to this problem is to genuinely combine comparative legal and language analyses. According to this line of thinking, the general legal-cultural analysis is of tremendous importance for: These analyses could improve the chances of avoiding mistakes and misunderstandings in the comprehension and translation of legal texts.80 Once more, we encounter the hermeneutical significance of the inner world of law.

Evading the Babel: Conclusion

The basic tenor of this chapter has been to underline that the question concerning the comprehension of substance of law is more fundamental than purely technical linguistic orientation.81 Argument leans on an idea according to which legal languages ought to be approached primarily as legally meaningful objects, containing the legal-epistemic level. Also, the case law of the former European Court of Justice seems to strengthen the conception advocated here. However, this argument fits best for such situations in which there are difficult legal concepts to be translated. To understand legal text in Gadamers sense requires attaining the epistemic level of the text which Ricouer calls the world of the work. This may appear as helplessly theoretical and woefully abstract hermeneutical philosophy but in fact what it says is actually rather simple: legal language is a specific type of discourse which is a set of legal linguistic signs. To understand this language (i.e., the signs of it) properly, one must understand the legal discourse itself. In a multi-

79

Mattila, Comparative Legal Linguistics, 261262. We can even regard these two as having differing legal ways of life: The Romanist and common law traditions give effect to two different ways of life in the law, Legrand, Structuring European Community Law: How Tacit Knowledge Matters, 879. 80 Mattila, Comparative Legal Linguistics, 267. 81 This is not to say that skills in legal languages and the linguistic ability to translate them would not be of tremendous importance; it goes without saying that it is.

lingual environment this means, in turn, that Translators of legal terminology are obliged to practise comparative law as De Groot and Van Laer put it.82 The deeper, philosophical underlying idea here concerns the nature of (legal) text which is regarded as an essentially hermeneutical concept. So, text is not an end-product which is being analysed from the point of view of grammar or linguistics regardless of the legal meaning of the text. Hence, a jurist does not try to reach a textual end-product which would be analysed from the point of view of function of the language as such but what the text says legally, not how it says it. Thus, a legal translator is epistemologically closer to a lawyer than linguist because he or she is expected to communicate the legal meanings of a text from source-language to targetlanguage or in other words to communicate legal meanings from one legal language and legal culture to another.83 The inborn difficulties with this are evident as shown by Marta Chrom (in this volume) in her chart about the intersemiotic or bijural translation struggling to encode culturally rooted legal messages. Where does the above said leave legal translation in a multilingual environment? The above discussion certainly implies that the question of the legal language of the EU does not exclusively deal with harmonization; it touches deeply rooted legal cultural national values and culturally rooted legal messages. This challenge cannot be avoided: the established case law of the EU court uses the expression all other language versions expressly render forcing one to engage legal and linguistic comparison of multilingual texts. Crucially this is double-headed challenge which requires combining legal and linguistic perspectives, thus, producing inevitability of multi-disciplinary approach. Nevertheless, no clear-cut answer seems to emerge. At least one can separate the technical surface level and deeper legal-epistemic level. And, for proper legal understanding, the deeper epistemic level appears more important. If this argument is expanded and followed further, it seems inevitable that in a problematic translation case, which the author parallels with the hard case concept familiar in legal theory, it is the below surface level of legal language which appears more crucial than the surface level. And, when dealing with foreign law, this seems to transform

82

G.R. de Groot & C.J.P. van Laer. The Quality of Legal Dictionaries: An Assessment, <http://ssrn.com/abstract=1287603>, 1 December 2010. 83 The idea above is based on H.G. Gadamers thinking, see H.G. Gadamer, Text und intepretation. In Gesammelte Werke. Band 2 (Tbingen: JCB Mohr, 1983), 330 et seq.

every multi-lingual translator into a comparative lawyer of a kind. 84 Obviously it can be claimed that these problems are not insurmountable because translators can use help-devices such as dictionaries with legal definitions. However, as has been clearly pointed out, only a few bilingual dictionaries are of quality.85 Also various legal databases and accompanying multilingual legal dictionaries are undisputedly helpful, but when confronted with linguistically hard case t hey may not suffice.86 There are some who think that comparative study of law might offer a way out of this cul-de-sac. In principle this idea seems to be plausible because the comparative study of law and legal languages look as if they would be in a nice position to develop a common legal language for Europe or even for global law.87 Besides, this idea, as wonderful as it might be, seems rather alien to the realities of todays comparative law which is divided into different schools and fractions which regard each other with open or hidden contempt.88 It seems that we must be content with something much less ambitious. Some kind of amalgamation of comparative law and legal linguistics, we may call it as Mattila does comparative legal linguistics, seems to b e a more realistic possibility. Yet, we can certainly produce better bi- and multilingual legal dictionaries for the purposes of legal translation, and we can undoubtedly update multilingual legal terminology, but the fundamental challenge to understanding law and legal language within its own legal cultural context does not evaporate; general grammar of law comes first, only then comes the technical mastery over a language. However, we must be clear not to oversimplify and argue that lawyers would be the optimal translators, or that all translators should necessarily be lawyers. No, in fact it would appear that we need a genuine amalgamation of skills in law and skills in translation. For instance, the EUs lawyer-linguist should not only be a lawyer with subsiding skills in many EU languages but also a person with skills in linguistics and translation. Accordingly, when it comes to translating legal texts in a plurilingual environment the skill required is not to be reduced into categories either/or

84

See also G.R. de Groot, Legal Translation, in Elgar Encyclopedia of Comparative Law, ed. J. M. Smits (Cheltenham/Northampton: Edward Elgar, 2006), 423 424. 85 See supra n. 84. 86 For example, IATE (Inter-Active Terminology for Europe), which is the inter-institutional terminology database of the EU, <http://iate.europa.eu/>, 1 January 2011. 87 See supra n. 6, 274. 88 See J. Husa, Methodology of Comparative Law Today: From Paradoxes to Flexibility?, in Revue internationale de droit compar 57 (2006): 1095.

(lawyer or linguist/translator) but both.89 Moreover, today we should think what kind of interactive teams we should build than to cling on with outdated one person fixation, which leads in to futile dichotomy.90 At least, it seems self-evident that legal translation studies are of importance to translators coping with the challenges of legal translation for the purposes of legal harmonization. To conclude, the fact that legal texts in todays Europe are no longer confined and co nstructed to function within a certain national legal system makes things very complex. This is precisely why the challenge of plurilingualism or the dire need to understand many legal languages simultaneously is such a grave concern for both linguistically sensitive comparative lawyers and legal linguists.91 Moreover, even understanding does not suffice because this understanding must also be transformed into language-wise good translations, that is, clear, understandable and legally, as precise as possible, texts in TLs. The size of the challenge is not to be underestimated; the biblical story about the Tower of Babel comes only too easily to mind.92 But it is important to recognize the limits of legal translation without coming overburdened and, thus, paralyzed because of these limits.

89 90

See also S. arevi, New Approach to Legal Translation (The Hague: Kluwer, 1997), 114115. Translators not lawyers, Not linguists but lawyers etc. 91 This claim is based on an idea according to which there is no strict borderline between legal linguists and comparative lawyers; internal (legal) and external (linguistic) dimensions of law cannot be truly separated. H. E.S. Mattila, Oikeuslingvistiikka ja oikeusvertailu (Legal Linguistics and Co mparative Law), Lakimies 108 (2010): 719. Nevertheless, this requires understanding broadly what legal linguistics are; it may come close to all sorts of academic fields studying legal language in general (e.g., legal theory, law & literature, legal philology etc.). 92 About the Tower of Babel-argument, see also Curran, Comparative Law and Language, 691693.