Linguistic Diversity and a European Legal Discourse
The 26th of September was the European Day of Languages 2003, during which under the auspices of the Council of Europe 'linguistic diversity, plurilingualism, lifelong language learning' were celebrated (see for more information http://www.ecml.at/edl/default.asp?t=celebration). Protecting linguistic diversity is also the aim of the European Union; see the web pages on the European Year of Languages 2003 (http://europa.eu.int/comm/education/policies/lang/languages/actions/year2001_en.html) as well as the pages on linguistic diversity within the European Union: (http://europa.eu.int/comm/culture/action/lingui_en.htm; remarkably enough, this page is only available in Spanish, German, English, French and Italian). Reference can be made to Article 22 of the Charter of Fundamental Rights of the European Union and the Council Resolution of 14 February 2002 on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages 2001 (2002/C 50/01). The Charter can be found at http://db.consilium.eu.int/df/default.asp?lang=en and the Resolution at http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/c_050/c_05020020223en00010002.pdf. Article 22 reads: 'Cultural, religious and linguistic diversity. The Union shall respect cultural, religious and linguistic diversity.' The accompanying explanation is as follows: 'This Article is based on Article 6 of the Treaty on European Union and on Article 151(1) and (4) of the EC Treaty concerning culture. It is also inspired by declaration No. 11 to the Final Act of the Treaty of Amsterdam on the status of churches and non-confessional organisations.' The preservation of linguistic diversity clearly expresses a fundamental principle upon which the European Union is built.
While reading the policy statements with regard to the value of linguistic diversity within Europe, one begins to wonder how this policy relates to the efforts concerning harmonisation and unification of the law. It has often been said that law and language are intimately linked, as language structures the way we think and, consequently, the way we think as lawyers. To give an example: it is generally true to say that (English) common law is only applied wherever English is (one of) the official languages. The European Parliament, in its latest resolution, calls for the setting-up of a database of legal terms. It should furthermore be mentioned that a European database of specific (including legal) terms in various languages already exists: see the Eurodicautom database at http://europa.eu.int/eurodicautom/Controller. See also the introductory web page on translation: http://europa.eu.int/comm/translation/index_en.htm.
It is accepted wisdom that unification or even harmonisation of the law is neither possible without the creation of uniform legal terminology, preferably laid down in a limited number of 'authentic' language versions, nor without a superior authority (frequently a court) that is responsible for reaching uniform interpretation. As to the limitation of languages, such an approach is not possible in Europe as all legal instruments have to be drawn up and published in all the official languages of the member states. In Europe, we now have eleven such languages (Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish), which soon will be twenty (in addition, Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovene and Slovak), and perhaps in the future still more (in addition, Bulgarian, Romanian and Turkish).
However, in spite of all the existing linguistic diversity, the working groups, which try to establish a common European legal framework, have, in fact, chosen English as their language of communication. This is certainly understandable from a more pragmatic point of view, as it obviates the immediate need to develop multi-linguistic uniform terminology and makes it easier to focus more directly on the legal problems to be solved. At the same time, this choice exacerbates the language problem as the English legal language is closely connected with English legal concepts, which sometimes fundamentally differ from civil law concepts. The latter problem occurs at two stages: the working stage, during which the various non-native English-speaking members translate their knowledge into English, and the final stage, during which the English texts have to be translated into the twenty official languages of the European Union, which all have their own legal vocabulary that is closely related to their respective legal systems. Given these linguistic problems, it can only be applauded that the European Parliament (and to some degree the European Commission) favour the creation of a European database of legal terms as a fundamental step in the process leading to a European private law: see the European Parliament resolution on the approximation of the civil and commercial law of the Member States (COM(2001) 398 - C5-0471/2001 - 2001/2187(COS)), to be found at http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/ce140/ce14020020613en05380542.pdf; the communication from the Commission to the European Parliament and the Council on a more coherent European contract law: an Action Plan, (2003/C 63/01), at http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/c_063/c_06320030315en00010044.pdf (see also http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/index_en.htm), the Report by Klaus-Heiner Lehne on the Action Plan presented to the Committee on Legal Affairs and the Internal Market of the European Parliament as well as the final resolution of the European Parliament adopted on 2 September 2003, to be found at the web site of the European Parliament http://www.europarl.eu.int/plenary/default_en.htm (go to 'Reports', 'by word in title or text' and type in 'European contract law' as the query term).
I do not want to suggest that, to avoid the (costly) problems caused by linguistic diversity, the European Union should choose a limited number of official languages or that we should maintain the linguistic diversity as it exists. That is a choice of an extremely political and social-cultural nature, closely connected with questions of sovereignty and the perception of national self-identity. What I do want to suggest is that the European policy to preserve and cherish linguistic diversity is in clear contradiction with the attempts to create a European Civil Code by working groups that have chosen English as their main language of communication.
In my view, we should move, first of all, to the creation of a European legal discourse. This is already happening as a result of European students and teachers' exchange programmes (cf. for more information http://europa.eu.int/comm/education/programmes/socrates/erasmus/erasmus_en.html).
By studying and lecturing in other member states, students and teachers alike not only enrich their personal insights, but also contribute to a better and deeper understanding by students and teachers at both the host and, after their return, the home institution. This in itself already creates the nucleus of a European legal discourse. I also find it hard to imagine that in a European law faculty European law and comparative law, either as separate courses or integrated in other substantive law courses, are not core parts of the curriculum. Furthermore, appointments of lecturers and professors from other jurisdictions for a longer period (or even permanently) also help to create such a trans-national and European legal discourse. Working together in one's own faculty with colleagues who come from other jurisdictions and who bring with them an intimate knowledge of a foreign system and its language, enriches the intellectual environment in which both faculty members and students conduct their studies.
A European legal discourse should not, however, be dissociated from the various national legal discourses. To give an example, discussions among those specialising in European private law are - I can only speak from my own experience - exciting and highly stimulating. Frequently, such discussions will be in English. Many lawyers in the member states do not, however, follow legal debates that are not conducted in their national legal language. Lawyers who only communicate in their national language and do not have the time or the opportunity to follow European developments should not be excluded from the debate. This is what linguistic diversity is all about. It is, in my view, one of the major tasks of those involved in the European legal discourse to 'translate' discussion at the European level into the discussions at the national level in a national language. In this way, the use of a limited number of languages by, e.g., European private lawyers does not contradict the preservation of linguistic diversity in the European Union.
In this issue, we publish articles on diverse subjects. Viola Heutger discusses private law in the process of European integration and Djalil Kiekbaev examines the comparative law method. We also publish two Ius Commune Lectures: Christian Joerges analyses the legitimacy of Europeanising private law and Horatia Muir Watt discusses choice of law in integrated and interconnected markets. Finally, we also publish a review of the book Legal Recognition of Same-Sex Couples in Europe (edited by Katharina Boele-Woelki and Angelika Fuchs), written by Suzette Sandoz.
Sjef van Erp,