Law in a Multilingual Environment
The Advantages of Cross Fertilization
by Nancy Festinger

How does Canada draft dual language versions of the law? How does the European Community resolve legal differences when the legal systems of the member countries are so different? How does the United States negotiate multilateral treaties when the negotiators and the text versions are multilingual? With difficulty, but those difficulties are fascinating for what they reveal of human psychology, law and linguistics, not to mention modern age identity politics.

An all-day conference on September 19, 2003 held at Brooklyn Law School tackled the seldom- discussed but thorny issues that hover, like the witches of Macbeth, in multilingual and multijural environments. Sponsored by the Center of the Study of International Business Law, the Center for the Study of Law, Language & Cognition, and the Brooklyn Journal of International Law, the conference gathered approximately 130 law professors, law students, translators, interpreters, and educators to hear speakers from Canada, Europe, and the United States recount how the reality of multiple languages and cultures affects the work of government and political entities such as the European Community.

The processes discussed were drafting of laws, legislative action, bilingual publication of codes, principles governing how judges should approach legal interpretation of bilingual texts, historical precedents for different legal cultures, and how multilingual instruments can affect treaty negotiations and the resolution of disputes.

The Canadian Experience

Lawmaking is a craft that requires expertise, patience and conceptual teamwork: nowhere is this more evident than in the drafting process used in Ontario and other Canadian provinces (the same model is also used in Latvia and Estonia), which relies on direct consultation among translators, linguistic revisors, editors, and attorneys who function as “translation counsel,” all working side by side in the same office. Donald Revell, chief legislative counsel for the province of Ontario, described how this constant dialogue ensures either “vertical equity” (English and French versions of the law having the same effect) or “horizontal equity” (parallel versions with content in the same order), and sometimes both. For the process to be credible, time, money, talent and terminology need to be dedicated to the effort. Other models used in Canadian provinces are co-drafting, done in a “war room” with several computers and various personnel, or double-drafting, where one bilingual person drafts both versions of a bill. Interestingly, in the Nunavut region, a working language of the legislature is Inukitikut, a language of oral tradition. People there are now developing computer literacy because their laws, while not published in statute form, are available online.

Ruth Sullivan, law professor at the University of Ottowa, detailed governmental responses to cultural diversity, ranging from genocide to integration, and pointed out that groups need linguistic and cultural security to be assured of a place in an evolving culture. The Canadian experience shows that when cultures are given legitimacy and evolve together, a new legal culture can emerge. For example, to some extent the drafting style in English has evolved to accommodate French preferences. There is also a growing tendency to join civil law and common law concepts in each language, so that the English common law concept of “fee simple” has become known in legal texts as “fee simple or ownership” while the French civil law concept is now called propriété ou fief simple. In a similar vein, “act of God” is now known in French as cas fortuit ou force majeure. These examples show the growing phenomenon of bijuralism, or one legal system co-existing with another.

In Canada’s bilingual environment — where there are two official languages but only 17% of the population is actually bilingual — statutory interpretation can be carried out in a bijural or unijural fashion, as Pierre André Coté of the University of Montreal explained. Despite four agreed-upon principles for statutory interpretation (the whole text is both versions; they are to be equally relied upon; ambiguity is to be resolved by looking to purpose, consequence, history, and context; if one language version is ambiguous and another clear, the intended or true meaning is the meaning shared by both versions — known as the “shared meaning rule”), in reality a kind of legal dualism is practiced whereby both versions may be looked at if time and cost permit, but the English version is relied upon in English-dominant provinces while the French version is relied on French-dominant areas.

The European Experience

The European Community emerged from a Roman based tradition and has no doctrine of binding precedent such as exists in English law, but the advantage of the community system is that its purposes have been specifically articulated, according to Ian McLeod of London Metropolitan University. With English courts having to interpret EC law, judges are becoming more integrative. The civilian tradition, of engaging in more schematic interpretation, causes judges to look more for meaning in context, taking into account the overall purpose of a particular law. Just how meaning is gleaned in statutory interpretation was examined by Jan Engberg of the University of Aarhus (School of Business ) in Denmark. Where terms in two languages do not overlap, provisions must be interpreted by referring to the purpose and general scheme of the rules. The translator may supply input to the problem but cannot solve it. Translation itself, as Tarja Salmi-Tolonen of Finland reminded us, is the ultimate test for any source text: problems in translation will be minimized if the text is well written and the thoughts are clear. However, the European Union does not share a common legal culture: legal chauvinism still exists, and distinctions between common law and civil law make transposition of concepts a risky proposition, which has resulted in a patchwork, somewhat chaotic legal picture, according to Ana López-Rodriguez, also of Aarhus. Even with the growing numbers of member countries, the principal working languages are French, English and German, with French being the common working language of the European Court of Justice. The harmonization of contract law, which she emphasized was needed, requires as a minimum a common legal discourse, informed by legal education, research and a common legal method. Indeed, the panelists agreed that Europe’s population and experience in multilingualism makes it more open to new ideas and expression in other languages. The Commission of the European Communities recently issued a communication detailing an action plan (COM 2003 449 final) to promote language learning and language diversity throughout the EC, calling on all member states to promote the learning of two foreign plus the native language by all its citizens.

The International Arena

The role that language plays in international negotiations was discussed by Harry Sigman and Neil Cohen. Mr. Sigman, who has represented the U.S. in various commercial treaty negotiations, characterized the U.S. as “possibly semilingual” and referred to a choice of law convention currently in negotiation that may introduce a new approach to conflicts. (He surely counts among the enlightened: he once spent eight hours meeting ahead of time with his interpreters before he gave a legal speech in Macedonia.) Mr. Cohen characterized lawmaking in the international arena as more akin to the process of negotiation, and warned that perceived agreement is not always real agreement, but a perception created by language in order to permit parties to move forward. (In this way, ambiguity has practical uses!) While most complex issues are discussed by first hashing out the definition of terms to be used, these words are often divorced from context. He concluded that people treat language differences as “regrettable, rather than something worthy of attention.”

But language differences are mind-expanding, and the more languages one knows, the more philosophical one becomes. Maybe this was the purpose of the tower of Babel after all? Divergences in mental constructs become apparent when moving between or among languages. And these differences need to be taken into account if we truly want to understand one another, or at the very least, do business with one another. The presentations at this conference underscored the fact that seeing human phenomena from a variety of perspectives has distinct advantages: greater conceptual understanding inevitably results from studying the wealth of ways humanity has found to express certain ideas. That’s why we have to keep talking.

The conference papers will be published in the Brooklyn Journal of International Law. Hurray for dem!

Websites of Interest:

• Law, Language and Cognition Center: www.brooklaw.edu/centers/cognition.
• International Business Law Center: www.brooklaw.edu/centers/
• The International Law Journal: www.brooklaw.edu/students/journals/bjil.php.
• www.onterm.gov.on.ca/lexicon_e.html Bilingual lexicon of legislative terms in French and English

[The author is Chief Interpreter of the United States District Court, Southern District of New York, editor of Proteus, and a NAJIT director.]

This article has been reprinted with permission from the National Association of Judiciary Interpreters and Translation (NAJIT) (http://www.najit.org). This article appears in their FALL 2003 VOLUME XII, NO. 4 newsletter. NAJIT is a non-profit organization dedicated to the furtherance of the court interpreting and legal translation profession.

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