Translating for a Multilingual Legal System: Ambiguity, Hybridity and the Impact of Translation on European Union Law Karen McAuliffe University of Birmingham @dr_KMcA
Law and Language at the ECJ Development of ‘precedent’ in Producing a ECJ judgments multilingual jurisprudence Precedent: • a conscious jurisprudential strategy • a sociology of the ECJ • mechanics of jurisprudential drafting • has the institutional model changed post 2004? BUT • a linguistic cultural compromise at the Court? Translation adds another variable Reinforcement of constitutional pluralism? Is there continuity across languages? Do different scholars construct different meanings and precedents from different linguistic constructions? The changing role of the AG • question of persuasive logics • Deliberative effect of language What does this mean for the development of EU law?
Methodology Interview data Corpus Observa1onal linguis1cs data analysis RQs Systema1c Case law literature analysis reviews
Why Language? • Law: a culture-specific communica1ve system • ECJ: mul1lingual output (up to 24 languages) • Transla1on and the incongruency of legal systems
Why Language? • Pommer (2012): The task of the legal translator is “ to make the foreign legal text accessible for recipients with a different (legal) background ” • Sarçević: “ the ul:mate goal of legal transla:on is to produce parallel texts that will be interpreted and applied uniformly by the courts ”
Transla1on at the ECJ BG BG ES ES CS CS DA DA DE DE ET ET EL EL EN EN WORKING LANGUAGE: FRENCH FR FR GA GA HR HR IT IT LV LV JUDGMENT LT LT HU HU MT MT NL NL PL PL PT PT RO RO SK SK SL SL FI FI SV SV
Transla1on at the ECJ BG BG ES ES CS CS DA DA DE DE ET ET EL EL WORKING LANGUAGE: FRENCH EN EN FR FR GA GA HR HR IT IT LV LV JUDGMENT LT LT HU HU MT MT NL NL PL PL PT PT RO RO SK SK SL SL FI FI SV SV
Transla1on at the ECJ Allocated to judge rapporteur Report of the judge (and AG where relevant) rapporteur prepared by Case brought before CJEU Documents translated into référendaire (in French) French First version of judgment Where relevant, AG and Secret delibera1ons (in draaed by référendaire (in référendaires prepare opinion French) French) (in pivot languages) Judgment translated into language of the case (authen1c version of Final judgment draaed (in French) judgment and version signed by judges) and all other official languages
Transla1on at the ECJ BG BG ES ES CS CS DA DA DE DE ET ET EL EL EN EN WORKING LANGUAGE: FRENCH FR FR GA GA HR HR IT IT LV LV JUDGMENT LT LT HU HU MT MT NL NL PL PL PT PT RO RO SK SK SL SL FI FI SV SV
Transla1on at the ECJ Working on the Reformulated Report case file EL FR FR FR TRANSLATED No1fica1on INTO FRENCH published in OJ TRANSLATED INTO ALL EU OFFICIAL Poten1al LANGUAGES Interven1ons (poten1ally in all languages)
(Hidden) Transla1on and Legal Reasoning • Friedman: a legal “ ...I tend to translate what I scholar is ‘reined in’ want to say into French instead by his/her own legal of really working in language French... ” (interviewee’s emphasis); “ ...all of my own reasoning and thinking about the case is done in my own language and then put into French when I come to the wri:ng stage... ”.
(Hidden) Transla1on and Legal Reasoning “ ...as a star:ng point... I scan my glossary of French terms and phrases frequently used by the Court and find something that covers the gist of what I want to say... ”; “ I will usually have a basic idea in my head of the direc:on I want to go in and what I want to say and then I use the set phrases that I have collated in my glossary to start me off and shape what I write... ”.
‘Court French’ … all this cuhng and pas1ng, repe11on and the conven1ons of wri1ng style etc. lead inevitable to a kind of hybrid language used within the court – a Court French “ … en1re phrases are repeated over and over again to the extent that “we are in a ‘Court eventually a new type of French has French’ bubble – we can’t emerged: the French of the Court of write any other way Jus1ce
Secret Delibera1ons
Pivot Transla1on PIVOT LANGUAGES • EN • DE • IT • ES
Pivot Transla1on (a) Documents draaed in ‘post-2004’ languages Translated into language of Translated into French procedure (where this is not the relevant pivot language) Member State observa1ons or applica1on to intervene Translated into language of procedure (where this is the relevant pivot language) All other documents Translated into French
Pivot Transla1on (b) Documents draaed in ‘pre-2004’ languages Translated into all languages Order for reference (pivot transla1on used for a preliminary ruling where necessary) Translated into French Translated into Language of procedure (i.e. In cases where language of Member State observa1ons procedure is a‘new‘ language and or the original document is not draaed applica1on to intervene in the relevant pivot language) Translated into Language of procedure (where this is the relevant pivot language)
Legal Transla1on • Keenen (1978): Languages are “ efficient only in so far as they are imprecise ”
Legal Transla1on • Šarčević (2000): “ Bound to a par:cular legal system, each language of law is a product of a specific history and culture ” • Didier (1990): “ l’opéra:on de transfert d’un message juridique émis dans une langue et dans un système juridique vers une autre langue et un autre système juridique ”
Lawyer-Linguists: a dual professional iden1ty “ … ok I’m a translator, but before that I am a lawyer. We must balance the two somehow. It’s not easy … and where do our responsibili1es really lie? ” “It’s the perfect blend of lawyer and translator. I would not wish to work “we must walk a simply as [a] lawyer or just [as a] 1ghtrope between law translator. I enjoy the challenge of and language … ” two responsibil:es – to the language and to the law ”
Lawyer-Linguists: a dual professional iden1ty Some1mes it’s important to translate something very literally, because if you don’t the legal meaning may be lost or ‘fudged’. This is oaen difficult as I feel a responsibility to the language At 1mes I cringe inwardly because the too. transla1on seems so clunky. But the alterna1ve is beau1fully wriqen [transla1ons] which may cause confusion legally. We have to choose between the language and the law ul1mately.
Why should we care? 1. Allows us to develop a full/more holis1c understanding of EU law 2. There’s more to the development of jurisprudence/case law than what is necessarily intended by ‘courts’ 3. Supports the pluralist cons1tu1onal narra1ve
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