The 21st of February marks UN International Mother Language Day: a day that aims to remind us of the importance of safeguarding linguistic diversity and recognises the value of multilingualism at all levels of contemporary global society. Nowhere is this more important than in the regulation of that global society. The intense progress of globalisation in the latter half of the 20th century has led to a rapid increase in the production of international treaties and agreements, the creation of international courts, as well as reliance on international arbitration. Multilingualism underpins much of this globalised legal work. Many international organisations have multiple official languages, and carry out their functions through multilingual legal and political institutions. But can an institution be truly multilingual? And what implications might multilingualism have on the work of such institutions?
The phenomenon of multilingual law is particularly evident in the context of the European Union (EU), which produces law in 24 languages, for application throughout 27 Member States. The Court of Justice of the European Union (CJEU) produces case law in all 24 EU official languages. It is, in that sense, a truly multilingual institution. However, in order for it to actually function and produce its multilingual case law, the CJEU uses a single internal working language: French.
Cases can be brought before the CJEU in any of the 24 EU official languages. The language chosen by the applicant or referring court will be the language of procedure for the case in question. Documents that are submitted to the CJEU are translated into French, and the case is processed entirely in French. The final judgment is drafted in French, deliberated upon in secret deliberations and the final (French) version is agreed by the judges in the relevant Chamber. That judgment is then translated into the language of procedure and the other EU official languages. The version of the judgment in the language of procedure is considered the authentic version of the judgment.
Translation is thus key to the functioning of the CJEU, and consequently to the administration of justice in the European Union. The CJEU uses a mixed translation system. Where possible direct translation, from one EU official language into another, is used. However, given the sheer number of direct language combinations (552), a pivot translation system is also used: i.e. translation is pivoted through a third language (e.g CzechEnglishSwedish). The CJEU currently uses five official pivot languages: French, English, German, Spanish, Italian).
While the importance of a formal translation process to the functioning of the CJEU is clear, translation at that court cannot be isolated to specific points in the procedure. Owing to the fact that the CJEU is a multilingual and multicultural institution, which uses a single internal language, translation is, in a broad sense, embedded throughout the process and indeed in the culture of that court. French is the working language of the Court. Yet, the staff within the CJEU is linguistically diverse. This means that judges and their legal clerks (known as référendaires) are often working in a language that is not their mother tongue. This necessarily has an impact on the work that they produce: CJEU judgments.
One implication of the multilingual nature of the CJEU involves the type of reasoning developed at that court. Empirical research has demonstrated that although they work in French, the thinking process behind that work, for many judges and référendaires, is done in their own mother tongue. Consequently the legal reasoning applied is a hybrid one: grounded in EU law of course, but based on the legal reasoning embedded in the national legal system(s), or the legal system(s) of the state(s) in which they received their legal education. Such legal reasoning and its associated concepts are developed through intellectual reasoning processes in a particular cultural context, and then expressed in a legal language that develops along with a particular legal order. It is almost impossible to separate a particular type of legal reasoning from the legal language in which that reasoning is embedded.
The CJEU is thus a linguistically hybrid institution. It is multilingual and multicultural, but operates by embracing a single working language internally, at least at surface level. In this manner, the CJEU functions by way of linguistic cultural compromises:
- the linguistic cultural compromise by which CJEU case law is created: the layers of hidden translation in the development of CJEU judgments, together with other factors, have led to the development of a distinct ‘Court French’. Furthermore, the CJEU’s collegiate judgments are decided in secret deliberations. Thus it is, in theory, impossible for anyone other than the judges involved to know where compromises lie in a text. This has implications both for subsequent translation and also for the drafting of future judgments.
- the linguistic cultural compromise by which CJEU case law is filtered out to the wider EU through translation.
Whether or not an institution can be truly multilingual, it is important to acknowledge the impact that multilingualism has on the culture of such institutions. CJEU case law is infused with linguistic complexity; we need to take account of issues of language and multilingualism, if we we are to fully understand how it functions.
Read more information on Karen McAuliffe's research on multilingualism at the CJEU.