Academic journal article Contemporary Readings in Law and Social Justice

Some Risks and Rewards of Europe's Multilingual Legal Order*

Academic journal article Contemporary Readings in Law and Social Justice

Some Risks and Rewards of Europe's Multilingual Legal Order*

Article excerpt

1.Introduction

By banding together through the EU, Europe has taken on a leadership position in the world as far as human rights are concerned, and its large collective economy is a significant player, even in difficult times. It has, perhaps ironically, achieved these goals by creating a supranational legal system in which there is no common language of the law that everyone understands. This structure creates a strange contradiction: The difficulty in communication that comes from a l legal system in which every law is written in 24 different versions, many of which are not widely understood outside of a single country, is not an unintended consequence of a system that is otherwise functioning smoothly. Rather, it is an important element of the system's design. Simultaneous recognition of European law and the cultural and linguistic autonomy of the member states is precisely what has enabled the European Union to attract members and to keep them. Thus, all laws enacted by the EU are promulgated in all 24 official languages and each version stands as equally authoritative as the other 23.

This article discusses some of the many costs and benefits of this system. The costs are fairly clear: First, the EU structure enables conflicts among various versions that have nothing to do with the case at hand to have legal influence over disputes in which each side regards the language version on which that side relied as authoritative. Second, and most obviously, it costs a lot to translate laws into 24 versions that are as equivalent as the translators can make them. The EU now budgets 330 million Euros annually for translation services, and even with the use of cost-saving technology, predictions are that this sum will rise before it falls.1 And third, even a perfunctory reading of the literature on legal translation demonstrates that the expectation of true equivalence is a fantasy.

These costs of multilingualism are real, especially the rule of law issues. Yet, the interpretive methods of the Court of Justice of the European Union (CJEU) produce results that seem fair when there appears to be a conflict among the various language versions. The Court most typically examines multiple versions of the law, and then triangulates to extract a core intended meaning. I have elsewhere (Solan 2009) called this method Augustinián Interpretation after the method employed by St. Augustine in late antiquity to interpret the Scriptures. It is sometimes (misleadingly) referred to in EU law as the literal method in that a look at various language versions without much further inquiry suffices. The method most often coincides with investigating the purpose of the law using other legal tools. When either there is significant divergence among the various versions, or the purpose of the law appears clear in any event, the court defaults to the traditional teleological approach and advances the purpose of the law, consistent with the most common method of interpretation in civil law legal systems (see Baaij 2012a).

Below I will argue that this method is largely successful, and explore what it is about the human language faculty makes it successful. Somewhat ironically, the absence of a single text protects interpretation against linguistic accidence. By permitting the interpreter to consider more data points, the system increases the likelihood of interpretation faithful to the goals of the legislature, as the system, by adding new members and new languages, decreases the mutual comprehensibility of the law throughout the EU. It is the irony of developing a text-oriented system of interpretation in a system that has no single text that brings success to the interpretation of laws by European courts.

This article looks at three different scenarios: cases in which multilingual drafting successfully disambiguates those language versions that would permit multiple interpretations; cases in which outlying versions are rejected as inconsistent with the will of the legislature; and cases in which the versions are not in accord, and the court must rely on other methods, such as discerning the purpose behind the law, to come to a single legal interpretation. …

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