Electronic copy available at: http://ssrn.com/abstract=2326910

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

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 Ordi-

narily, 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 con-

sciously conceived. However, if there is more than one official legal language then the connec-

tion 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 today’s Europe. Undoubt-

edly, legal translation is of the utmost importance for the process of legal harmonization in Eu-

rope. 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 sug-

gestions 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 Cul-

tures (Dartmouth: Aldershot, 1997).

Electronic copy available at: http://ssrn.com/abstract=2326910

legislation is not merely a technical challenge which may adequately be met through using a suf-

ficient 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 linguistical-

ly complicated environment as the EU. Now, it can be surely assumed that genuine legal harmo-

nization 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 ac-

cording to which it is absolutely crucial to grasp that the law of the EU cannot be properly con-

ceived if its multilingual character is not taken into account.4 This, in turn, emphasizes the im-

portance 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 lan-

guage 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

3 This is not difficult to grasp. As has been seen in the EU’s 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 concern-

ing 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

EU’s 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 Union’s centralized 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 impossi-

ble to do. Of these radical arguments see, e.g., P. Legrand, Le droit comparé (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.

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 con-

tains specific problems which are caused by the multiplicity of legal language itself which is du-

plicated when there is more than one language. Legal language contains not only different func-

tions but also different levels of comprehension. At least, we can separate the technical surface-

level 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 under-

line 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 trans-

late 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 espe-

cially difficult to translate from one foreign language to one’s own mother-tongue which is also

the legal and cultural home-base of the translator. The problems which are also of concern for a

7 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 con-

cepts (e.g., right, obligation, legal, non-legal etc.). Cf. G. Samuel, ‘Epistemology and Comparative Law’, in Episte-

mology and Methodology of Comparative Law, ed. M. Van Hoecke (Oxford/Portland: Hart, 2004), 36. 8 See also Galdia, Legal Linguistics, 210–211 (discussing Dworkin’s 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 legal-

epistemic language, let us first look into the nature of the legal translation challenge in contem-

porary EU.

2 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 Un-

ion’). In 2007, the Court gave a preliminary ruling in a case which dealt primarily with the dif-

ferences 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 conse-

quence, since it follows from settled case-law that Community provisions must be inter-

preted and applied uniformly in the light of the versions existing in all the Community lan-

guages 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-

9 Cf. M. Galdia, ‘Comparative Law and Legal Translation’. In The European Legal Forum 2003: 1 et seq.

10 See for more detailed discussion L.J. Constantinesco, Traité de droit comparé. Tome II (Paris: Librairie Générale

du Droit et du Jurisprudence, 1974),144–150. 11

Case C-54/05 Judgment of the Court (Second Chamber) of 15 March 2007 – European Commission v. Republic of

Finland. 12

Para 20.

ences between Italian and other language versions.13

In this referred case’s 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 EU’s mega multilingual environment is the fact that basi-

cally 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 na-

tional legal cultures and that of the EU and still maintain coherence? Out of this acknowledge-

ment of the problem grew the Inter-Institutional Agreement of Common Guidelines for the Qual-

ity of Drafting Community Legislation in 1999.16

In its Section 5, it is said that ‘concepts or ter-

minology 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

13

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 Wörfsdorfer, née Koschniske v. Raad van Arbeid, paras 5–8 (concerning the Dutch expression diens echt-

genote – 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 fol-

lowed 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 today’s 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. Plurilin-

gualism 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 compe-

tence 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 un-

derstanding 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.

18

Case 29/69 Judgment of the Court of 12 November 1969, Erich Stauder v. City of Ulm (preliminary ruling), para

1. 19

The Common European Framework of Reference for Languages (Cambridge, Cambridge University Press, 2001),

4. 20

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 – Compara-

tive Law and the Appreciation of Diversity’, in Comparative Law – A Handbook, ed. E. Örücü & D. Nelken (Ox-

ford/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 lan-

guage 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, advo-

cates 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 com-

mune 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 pos-

sible 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 con-

cepts, doctrines and institutions in a legally conceivable order.

Accordingly, when we talk about language and law, we must exercise great care to ex-

press 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

21

H.E.S. Mattila, Comparative Legal Linguistics (Aldershot: Ashgate, 2006), 4. 22

The private law common-core movement has also been said to think that law of the common core is fundamental-

ly 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, 128–131. 24

Ibid., 125. 25

M. Bellomo, The Common Legal Past of Europe: 1000–1800 (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 dimen-

sions.28

However, for the discussion in this paper a more dynamic definition is suitable. Accord-

ing to the dynamic point of view, it is stressed that legal language is also a ‘form of communica-

tion’ allowing legal discourse between various legal actors.29

In what follows, the historical lin-

guistic lesson of ius commune and legal Latin are looked into in order to give more concrete con-

tent to the concept of ‘legal-epistemic language’.

4 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 dif-

ferent 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 up-

per hand in its relation to ius proprium. This was due to the fact that ius commune was not mere-

ly 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 dif-

ferent idealized values. In this deeper legal cultural sense, ius commune was not merely a subsid-

26

E. Örücü, 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, 3–4 and 11–12. 29

See A. L. Kjær, ‘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 Eu-

rope there were relational non-territorial laws. See H. P. Glenn, ‘Transnational Common Laws’, in Fordham Inter-

national Law Journal 29 (2006): 462–464 (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 epis-

temology; 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 im-

portant 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 con-

tained 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

31

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 78–90. 33

Ibid., at 116. 34

Ibid., at 179. 35

Ibid., at 219. 36

See, e.g., T. Weir, ‘Die Sprachen des europäischen Rechts – Eine skeptische Betrachtung’, in Zeitschrift für Euro-

päisches 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 sec-

tion 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 his-

tory, 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 fur-

ther, it is important to recognize that this appears to be very much true for today’s 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: know-

ing 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 skele-

ton 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 état 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

5 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 lan-

guage 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. Kjær puts it: ‘What language do lawyers speak when they communicate across

languages and legal systems?’ One of Kjær’s 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 concep-

tions 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. Kjær, moreover, quite daringly believes that

presuppositions about law in Europe are fundamentally the same. She refers here to old ius com-

mune 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

See supra n. 39, 94–96. 42

See supra n. 29, 378–379. 43

Kjær, ‘A Common Legal Language in Europe’, 384 and 388. See also Galdia, Legal Linguistics, 89–90. 44

Kjær, ‘A Common Legal Language in Europe’, 391–395.

in Europe would be accepted. She holds that what is common is not the actual language of dif-

ferent 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 sub-

stance 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 central-

ist 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. Undoubted-

ly, 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 communi-

cation 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

45

Ibid., 396–397. 46

See supra n. 25, 15. 47

For this line of ‘neopandectist’ thinking, see especially R. Zimmermann, ‘Savigny’s 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),

202–213 (note: Roos abbreviates novum ius commune europaeum as NICE).

understand a legal language which one does not understand in a technical sense than to under-

stand a legal language which one does understand in a technical sense! The previous example of

ius commune’s 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 comprehen-

sion. 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 for-

eign 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 (1913–2005) 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 Ricouer’s 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 Ricouer’s point basically says that law is intelli-

gible 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 legal-

cultural 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 le-

gal terms may be acquired in routine-translation. But, when dealing with ‘hard case legal-

48

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 tradition’s

‘own vision of its own world’).

linguistic translation’ the ability to reach the legal-epistemic level or ‘the world of the work’ be-

comes utterly important. The conclusion implied is that the legal epistemic level is more im-

portant 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 lan-

guage 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 ‘under-

stand anything written in a foreign language if we are thus imprisoned in our own?’52

This ques-

tion 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 im-

portance. Yet, what the text says and what the text means cannot always be separated which in-

dicates 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 fol-

low 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

H.G. Gadamer, Truth and Method (New York: Continuum, 1994), 387. 50

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

7 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; in-

visible 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 creat-

ed. 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 con-

tains 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 Eng-

lish contract law.59

Of course, the law of contract in England appears rather similar on the sur-

face 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., 384–385. For the point of view of comparative law theory, see V. G. Curran, ‘Comparative Law and Lan-

guage’, in Oxford Handbook of Comparative Law, ed. M. Reimann & R. Zimmermann (Oxford: Oxford University

Press, 2006), 706–707. 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, 221–240. 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 fol-

lowing 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 promisor’s 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 pre-

requisite for both parties to offer some consideration before a contract can be thought of as legal-

ly 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

P. Shears, & G. Stephenson, James’ Introduction of English Law (London: Butterworths, 1996), 219–220. 61

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 Euro-

pean 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 Stand-

ard English. Oxford English Dictionary (OED) defines ‘consideration’ as the action of consider-

ing which means primarily the action of looking at or surveying with bodily or mental eyes; be-

holding, contemplation. In this sense ‘consideration’ is certain manner of viewing a thing, an as-

pect 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 cer-

tain 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 another’s benefit; especially, in the law of contracts. It may it-

self 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 transla-

tors 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, Bürgerliches 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

Oxford English Dictionary <http://dictionary.oed.com/>, 1 November 2010. 67

What is argued here has some resemblance with what Galdia says about pragmatics and study of legal language;

see supra n. 6, 35–44. 68

Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Treu und Glauben mit Rücksicht auf die Ver-

kehrssitte es erfordern.’

among the continental legal systems.69

The lenient idea of this rule was deemed as important be-

cause 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 tradition’s 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 con-

tract 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’ mean-

ing that ‘Contract must be interpreted in good faith’. Also Greek Civil Code Art. 288 states that ‘Ο οφειλέτης έχει

υποχρέωση να εκπληρώσει την παροχή όπως απαιτεί η καλή πίστη, αφού ληφθούν υπόψη και τα συναλλακτικά ήθη’

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), 189–201. 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), 16–18. 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 inconceivable

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 di-

viding factor between the German and English legal cultures, it does not stand as an insurmount-

able 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 ap-

plied 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 system-

atically 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 appre-

hension of common law before it actually becomes epistemically possible for a translator to con-

sider 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 sub-

stance 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 trans-

lators 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 ut-

most rigor (ius strictum or strict law), that is, without any moderation by the judge. Equity may also refer historical-

ly 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., 154–155. 77

Clearly ‘contract law equity’ is linguistically constructed neologism. See also supra n. 21, 112–117. 78

See supra n. 46, 701.

enced by their accompanying legal cultures: we simply cannot be oblivious to this fact. Obvious-

ly, 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 gain-

ing sufficiently legal cultural contextual knowledge of a legal language. Mattila’s fully elaborat-

ed answer to this problem is to genuinely combine comparative legal and language analyses. Ac-

cording 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.

8 Evading the Babel: Conclusion

The basic tenor of this chapter has been to underline that the question concerning the compre-

hension 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 for-

mer 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 Gadamer’s sense requires attaining the epistemic level of the text

which Ricouer calls ‘the world of the work’. This may appear as helplessly theoretical and woe-

fully 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, 261–262. 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 tremen-

dous 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 re-

garded as an essentially hermeneutical concept. So, text is not an end-product which is being an-

alysed 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 target-

language 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 Chromá (in

this volume) in her chart about the intersemiotic or bijural translation struggling to encode cul-

turally 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 ex-

clusively deal with harmonization; it touches deeply rooted legal cultural national values and cul-

turally 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 en-

gage legal and linguistic comparison of multilingual texts. Crucially this is double-headed chal-

lenge 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 sur-

face level and deeper legal-epistemic level. And, for proper legal understanding, the deeper epis-

temic 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. Gadamer’s thinking, see H.G. Gadamer, ‘Text und intepretation’. In Gesammelte

Werke. Band 2 (Tübingen: 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 dic-

tionaries 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’ they

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 today’s comparative law which is divided into different schools and frac-

tions 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 be a more re-

alistic 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 cul-

tural context does not evaporate; general grammar of law comes first, only then comes the tech-

nical 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 EU’s

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 (Chel-

tenham/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 comparé 57 (2006): 1095.

(lawyer or linguist/translator) but both.89

Moreover, today we should think what kind of interac-

tive 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 harmoniza-

tion.

To conclude, the fact that legal texts in today’s Europe are no longer confined and con-

structed 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 lan-

guages simultaneously is such a grave concern for both linguistically sensitive comparative law-

yers and legal linguists.91

Moreover, even understanding does not suffice because this under-

standing must also be transformed into language-wise good translations, that is, clear, under-

standable 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

See also S. Šaršević, New Approach to Legal Translation (The Hague: Kluwer, 1997), 114–115. 90

‘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 compar-

ative lawyers; internal (legal) and external (linguistic) dimensions of law cannot be truly separated. H. E.S. Mattila,

‘Oikeuslingvistiikka ja oikeusvertailu’ (Legal Linguistics and Comparative Law), Lakimies 108 (2010): 719. Never-

theless, 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’, 691–693.