Multilingual Law

A Framework for Analysis and Understanding

Colin D Robertson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317093480
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book introduces and explores the concept of multilingual law. Providing an overview as to what is 'multilingual law', the study establishes a new discourse based on this concept, which has hitherto lacked recognition for reasons of complexity and multidisciplinarity. The need for such a discourse now exists and is becoming urgent in view of the progress being made towards European integration and the legal and factual foundation for it in multilingualism and multilingual legislation.

Covering different types of multilingual legal orders and their distinguishing features, as well as the basic structure of legal systems, the author studies policy formation, drafting, translation, revision, terminology and computer tools in connection with the legislative and judicial processes.

Bringing together a range of diverse legal and linguistic ideas under one roof, this book is of importance to legal-linguists, drafters and translators, as well as students and scholars of legal linguistics, legal translation and revision.

Part I

Introduction

1The concept of multilingual law

Introduction

The theme of this book is multilingual law. It seeks to draw together in one volume many threads and strands that have a bearing on law and languages in a multilingual context. The purpose is to organise information from a variety of disciplines in a way that brings them together as a conceptual tool to analyse and understand different types of multilingual legal systems from a legal-linguistic point of view. The conceptual tool proposed takes the form of a ‘framework’, set out in appendices. The purpose of this book is to describe fields and activities that have a bearing on the practice and theory of multilingual law and to link them together conceptually within a frame of reference that can be used as a tool for enquiry. A secondary purpose is to reflect on the language(s) of law, and the law of language(s), in a multilingual context. No prior knowledge of any of the disciplines covered is assumed.

There is nothing new about multilingualism in law or making and applying laws in several languages. It is a phenomenon that is as old as civilisation. In the ancient Near East multilingualism was widespread among peoples. Ostler observes that ‘unlike Egypt, China or India, its cities and states had always been consciously multilingual, whether for communication with neighbours who spoke different languages, or because their histories had made them adopt a foreign language to dignify court, religion or commerce’ (Ostler 2005: 34).

The sacred texts at the roots of world religions, and legal systems, also bear witness to multilingualism. The texts comprising the Old Testament of the Bible were first written in Hebrew and Aramaic and translated into Greek, the language of the New Testament. Both Old and New Testaments were translated into Latin,¹ followed by many other languages. One estimate is that the Bible has now been translated wholly or partly into at least 2,287 languages and dialects (Biblica 2013). The Roman Empire at its height used Latin in the West and Greek in the East (Herrin 2008, Kirby 2014). The inscription on the Rosetta Stone, a decree of 196 BC by a council of priests, was in hieroglyphic and demotic Egyptian and also in Greek, and provided the key to decipherment of the hieroglyphs by Jean-François Champollion.²

Why does one need a book on multilingual law? If multilingualism is so ancient, there seems little to say. It is just a matter of translation and little more, surely? Maybe; but the reality of modern life is that there is an intensification of proximity in every direction. We travel more often abroad. We have the Internet, which allows us to consult and communicate round the world instantly. We have immigration and emigration and movement of goods, services and capital throughout the European Union and the world. We are told that climate and weather patterns are changing in disadvantageous ways. The social, economic and political consequences of all these circumstances need to be managed and organised somehow. This is done in part through making rules in the form of laws and these are made using language. People need to be employed, paid and told what to do – in a language they can understand. People speak different languages and come from different cultures, so organising everything requires taking that into account. Is single language use preferable, as a lingua franca, or many languages, and if so how many and which ones? Is every language suitable and adapted for the purposes of law with respect to any matter? If not, why not and how could it be made suitable? How does one produce complex legal texts in different languages? How does one decide on such matters? What are the methods?

These questions raise deep issues and they are charged with emotion and identity. Yet they are important and urgent because technological and environmental factors are forcing the pace of international, intercultural and interlingual cooperation. Industrialisation, trade, urbanisation, population growth and movement are taking place in a context where the climate is changing, weather patterns are changing, water resources are becoming a source of pressure and there is an ever-growing need for closer international cooperation to tackle a multitude of problems. That implies methods of negotiation, shared rule-making and acting in coordination. These processes cut across cultures, legal systems and languages. Making rules in many languages is not new, but understanding the processes involved is acquiring an unprecedented urgency.

The concept of multilingual law provides a starting point for organising and structuring information we already have about law and language. We can try and shape what we know, bring it together and make a picture to help more of us to see how different parts fit together and to actively plan for further cooperation and coordination across languages and cultures. Exploring the concept allows us to reflect in a structured way and to make informed choices. It draws on the knowledge of specialists in different fields and opens doors to information-sharing across cultures. It is a living field and it is undergoing constant change. This book draws on many specialist strands and brings them together. The unifying and organising factor is the concept of multilingual law. The objective is to create a picture of the different strands and how they fit together in a legal-linguistic way, that is to say drawing on concepts from law and linguistics. Each of the fields is introduced successively in as non-technical language as possible and gradually an overview is built up. The picture, or overview, is presented in lists of topics as a ‘framework’. The picture is a linguistic image. It is in the mind, like law, and is a legal-linguistic image.

The main difficulty encountered is that study of the concept of multilingual law embraces many disciplines: law, languages, language theory, translation and terminology, to mention only the main ones. Each of these involves different specialist knowledge, and it is difficult to bring them together under one roof. We can use the theory of signs, semiotics, as a tool to that end, but doing so involves adding yet another discipline to the study. A full picture should also take into account back-up and support arrangements such as computerisation and training. So a rather large number of technical fields soon impose themselves for attention. That makes things difficult to describe and explain. Lawyers generally work in their own, usually single, language and are not often called on to deal with issues which involve other languages. Linguists, on the other hand, generally lack training in law. Terminology work is specialised and relatively few people have knowledge about it. There are demarcations between specialist activities that are difficult to overcome.

Modern research in linguistics, in particular applied linguistics, has been moving steadily into the study of language used for special purposes (LSP). It differs from general language (language for general purposes: LGP) in various ways, most notably in the use of technical forms of language connected to particular jobs and professions (Swales 1992). Legal language is one of the fields of research of applied linguistics and LSP, and goes by the name of legal linguistics (Mattila 2006, 2013). By extension multilingual legal language comes within the scope of legal linguistics and LSP, since it implies a study of multilingual legal texts from a language point of view. Adopting an approach that draws on linguistic as well as legal knowledge and experience makes it possible to achieve new insights into both law and language for special purposes; this is the ‘legal-linguistic’ point of view, that of the lawyer-linguist. The concept of lawyer-linguist as such is to a certain extent a product of the 60 years of the European Community/Union and stems from the need to have specialised lawyers translating, revising and checking language versions of EU legislative and court texts to ensure as far as possible that each of them contains the same message (Šarčević and Robertson 2013).

Analysis and understanding are both made easier if it is possible to simplify and categorise into abstract groups. This implies proposing a series of models of legal systems, with different combinations of languages as variants. If a legal system falls within a given model, then it becomes less necessary to recount all the details of the system for comparison with other systems, since simply to indicate the model and variant could be enough to give a broad initial picture, subject to detailed analysis. This approach is introduced. It has a link with the theory of signs, semiotics, because a model stands for or represents something else, the real thing. These ideas will be raised in the course of the narrative. This book is offered as a journey of exploration, encountering phenomena and reflecting on what they involve and how they fit into the picture. The fruit of the journey is summarised in the appendices, and these in turn are starting points for further studies and researches into individual systems of law and language. This is semiosis, the making of new signs.

The rest of this chapter introduces the theme, provides background and explains how the subject matter is to be handled, together with inevitable limitations. Chapter 2 continues the introduction by setting out how the field of enquiry is to be structured and providing an outline of the chapters. Part I gives a broad introduction to serve as background and overview. Parts II to VII examine individual fields, disciplines and activities. Part VIII introduces the appendices which comprise the framework and reflects on their use and application. It concludes with some observations of a general nature.

Field of enquiry: multilingual law

The theme of this book is multilingual law. The focus of attention is on the concept as an abstract idea separate from, but reflected in, each and every multilingual system of law. There are many legal systems that function in more than one language. We can cite a few examples:

Belgium: three official languages (Dutch, French, German);³

Canada: two official federal languages (English and French);⁴

Ireland: two official languages (Irish and English);⁵

Switzerland: four official languages: (German, French, Italian, Romansh).⁶

However, the concept of multilingual law does not apply solely to states; it extends to international organisations and any forms of law-making in more than one language. Thus, for example, it embraces the United Nations with six official languages (Arabic, Chinese, English, French, Russian, Spanish)⁷ and the European Union currently with 24 languages (Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish and Swedish).⁸

International relations are conducted in languages chosen by the negotiating participants. They make agreements and contracts that bind themselves like laws, and these too form part of the picture. One could go further and include all forms of agreements and contracts between private individuals, commercial corporations and non-government bodies (NGOs) and organisations, but it is preferable to draw a line and reserve these for a separate study. There is also a formal reason to hold back on them. Private individuals, corporations and NGOs are generally subject to the rules of individual legal systems and act according to the rules created by those systems, including the rules on languages. Attention is placed in this book mainly at the system level and on the rules and methods of systems as a whole. Nonetheless, the concept of rule-making through contract does form part of the picture and needs to be addressed, notably in the international context.

Another way of expressing the foregoing is to say that attention here is principally on what lawyers refer to as ‘public law’, the field of law that addresses the exercise of public authority by governmental and public authorities, as opposed to ‘private law’, which is the field addressing individual people and their businesses. Public law addresses the exercise of public power by institutions connected directly with state power and the constitutional relationships of legislature, executive and judiciary, whereas the agreements of private persons and bodies are connected to the exercise of rights that are conferred by the system and remain governed by the system. That said, there seems no reason why the concepts and methods explored in this book may not also be applied to private contracts and arrangements. It is something to explore.⁹

Having identified some multilingual legal systems, should we not then dive into each of them...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• List of abbreviations
• Part I Introduction
• Part II Law
• Part III Language
• Part IV Signs
• Part V Meaning
• Part VI Translation and revision
• Part VII Back-up, support and training
• Part VIII Framework, models and applications
• Appendix I States, languages and official languages
• Appendix II Legal-linguistic models
• Appendix III Searching for rules, practice and guidance on language(s), drafting and interpretation
• Appendix IV Classifying languages by use and status
• Appendix V Drafting and revision checklist for multilingual acts
• Appendix VI Making a presentation or writing a paper on multilingual legal language
• Appendix VII Training questions on law and legal language
• Appendix VIII Framework for analysis and understanding
• Bibliography
• Index