Language Skills and Comparative Law – Finding a Balance?
October 18, 2021
Jaakko Husa
University of Helsinki
Theoretically oriented scholarship on comparative study of law makes it clear that language is important. More generally, law and language are deeply intertwined and for a comparative law scholar this causes a specific problem concerning information about foreign law. Now, legal language even within a one system is a complicated phenomenon, as it requires special knowledge in order to be understood correctly. Legal language is a paragon of language for specific purposes (LSP) that is created and used by legal professionals. It is through language we become familiar with the content of the law. It is through language that we use the law. For comparatist the language issue concerns the challenge of understanding foreign legal language. In many cases, language erects barrier for comparative research.
For comparatist, legal language comes with specific problems that are caused by the ambiguity of legal language, which is duplicated when there is more than one language. It goes without saying that language skills (the ability to benefit from legal information in foreign languages) are of particular importance in comparative study of law. Nobody is seriously denying that this is the case although in research practice people have different approaches to the problem. Perusing the most popular comparative law journals shows that English translations are widely used without further ado. What should one think of this state of affairs?
It is commonplace to argue that it is recommendable to acquire the primary sources from official legal materials (statute books, case registries, and preparatory material for legislation) of the systems that are included in the comparison. Either the researcher or those assisting them require sufficient knowledge of the foreign language(s) in question. Today, however, language related problems are mitigated by the fact that materials from different legal systems are available as translations in broadly known languages (mostly in English, sometimes in French or German) exist. Accordingly, it is not impossible to obtain translated material through the various websites, many of which are free of charge while others hide behind the paywall. Machine translation has also been taking huge steps forward, although, machine translations are tricky and not fully reliable as legal language is a LSP.
The issue with language is certainly not a new one. For such a classical comparative law scholar as Ernst Rabel, language was a façade that shrouded law’s substance from an outsider. Language was an obstacle to proper understanding. As Oliver Wendell Holmes famously noted, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” How things stand concerning language and comparison is that it is more widely acknowledged today that language is distinctly important for comparative study of law. Something not to be ignored, to be sure.
However, among scholars there are different views on the significance of language in actual research. While academically ambitious comparative law scholars underline the importance of knowing many languages, others are happy with translations as they rely virtually completely on materials in English. What we might label as serious comparative law scholars refuse to rely solely on translations, thus, they are necessarily confronted with the inconveniences concerning the translation of foreign legal language (terminology, concepts etc.). Those relying on translations do not have this problem, thus, linguistically sensitive comparatists may sneer at their work.
The practical question for comparative law researcher is simple: How many languages one should master. Surely, nobody can master a huge amount of foreign languages and, besides, it would not make sense to use several years of trying to learn foreign languages before one can actually do research. Then again, comparative law scholars of today – by and large – stress the importance of language skills and nurture doubts when they see comparative studies based on translations penned by people who seem to be virtually monoglots.
In my view, the question of “how many” lacks nuance. This is simply because comparative law research is not a monolith. Consequently, linguistic skills needed are different depending on the specific purpose of each research. Different methodologies have different requirements. Language issue should not be discussed in a vacuum as if all comparative law researchers would necessarily need similar kinds of skills. This is not the case.
In essence, the knowledge interest (why and what kind of knowledge is sought after) has an imperative significance. If one is to make deep-level comparative study of law between a very small number of legal systems (say 2 or 3), then, it is indeed important to have sufficient skills in languages in question. Relying purely on translations would not make it possible to understand the deeper levels of law. Yet, having sufficient skills means ability to read and translate those languages. Full mastery of a foreign language is completely different issue as comparatist has the need to understand the foreign materials, not the need to be fully fluent in all aspects of the languages in question. For comparative law researchers foreign languages are, primarily, source languages not languages for communication.
On the other hand, if one were to compare a great number of legal systems, then, it would make absolutely no sense to require linguistic skills in all of the compared systems’ languages. I argue that a simple rule of thumb may be helpful: The more qualitative the comparative study is, the more important language skills are. The more quantitative the comparative study is, the less possible it is to have language skills in all of the compared systems. It is about balancing.
In conclusion, before making over-generalizations about language skills in comparative study of law one needs to think what kind of comparative research one is doing. Only after considering this, it becomes possible to ensure that one’s linguistic skills match to the kind of research one pursues doing. None of this is to argue that language skills would not be crucial for comparative study of law; however, there is also a need to be realistic.