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A common EU legal language?

Edward Seymoura
a
European Parliament, Luxembourg

Online publication date: 28 April 2010

To cite this Article Seymour, Edward(2002) 'A common EU legal language?', Perspectives, 10: 1, 7 — 13
To link to this Article: DOI: 10.1080/0907676X.2002.9961430
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 7

A COMMON EU LEGAL LANGUAGE?

Edward Seymour, European Parliament, Luxembourg

Abstract
This article examines some of the cultural features of the EU's 'common legal
language', comparing the English terms 'authentic' and 'shall' with their
equivalents in other EU languages and obliquely pointing to developments in le-
gal Euro-English.1
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'Authentic' texts
Anyone hunting for evidence of cultural diversity in the 'common' texts of
the European Union need look no further than the concluding article of the
Treaty of Maastricht (1992). Article 53 says:

This Treaty, drawn up in a single original in the Danish, Dutch, English, French,
German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of
these languages being equally authentic, shall be deposited in the archives of the
Government of the Italian Republic, which will transmit a certified copy to each of
the governments of the other signatory States.

Pursuant to the Accession Treaty of 1994, the Finnish and Swedish versions of this
Treaty shall also be authentic.

Pausing briefly to marvel at the allusion to a multilingual miracle - the simul-

taneous drawing up of 'a single original' in ten European languages, let us home
in on the other passing reference. It tells us that the text resulting from this un-
precedented effort of co-drafting is equally 'authentic' in each of the languages
concerned.
If we now turn to the dictionary for the primary meaning of 'authentic', we
learn that it is 'genuine: authoritative: true, entitled to acceptance, of established
credibility'.2 The dictionary goes on to identify the etymology of the word in the
Greek 'authentikos', from 'autos', self; it should come as no surprise to find that
the Greek version of the Maastricht Treaty uses this very word.
Literally, then, the English version of the Treaty assures us that the text
'comes from the self - that is, in this case, from the very source of that miracu-
lous event of multilingual authorship, a session of the EU's plenipotentiaries. It
implies that we have good reason to accept the authority of this version of the
Treaty's provisions as a reliable expression of the Council's will.
 8 2002. Perspectives: Studies in Translatology. Volume 10:1

But whether we decide to accept it is up to us. Linguists may prefer to check

with the other language versions, following a practice that the European Parlia-
ment's Rules of Procedure recommend since 'the original version cannot be
taken as the official text as a general rule'.3
The table below compares eleven EU language-versions of the crucial term in
the subsequent Treaty of Amsterdam (1997), incorporating Finnish and Swedish.

Table 1
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'Authentic' (Treaty of Amsterdam, Article 15)

Action Language versions

Imposing an ob- [ist] verbindlich

ligation (German)
Inspiring trust font e'galement fanno ugual- fazem igualment
foi mente fede (Ital- fe (Portuguese)
(French) ian)
Having validity Har samme gyl- 8r lika giltiga
dighed (Swedish)
(Danish)
Having the force Todistusvoi-
of proof mainen
(Finnish)
Coming from the zijn gelijkelijk being equally au- efvm eQcvo son igualmente
source authentiek thentic (English) auGevnKd aut£nticos
(Dutch) (Greek) (Spanish)
Having the force
of law

While all these phrases may be said to 'mean' the same, they imply very dif-
ferent cultural connotations. These range from a demand for compliance (Ger-
man) or trust (French, Italian, Portuguese), through the more neutral assurance of
reliability (Danish, Swedish, Finnish) to the indifferent observation of accuracy
(Dutch, English, Greek, Spanish). At one end, the writer takes responsibility for
enforcement; at the other, the reader is at liberty to comply.
Interestingly, all of these attitudes were present in the four language versions
- in Dutch, French, German and Italian - of the 1957 Treaty of Rome signed by
the founding Member States.
None of the phrases explicitly 'has the force of law', though current usage in
each of the languages concerned may be said to imply that it does. Assuming
 Seymour: A 'common' EUlegal language? 9

that, on reaching Article 53 at Maastricht in 1992, the polyglot author was still
alert enough to remain in touch with the idiom of each of the eleven languages,
we must conclude that the lexical choice in each case reflects normal usage: that
this is the phrase ordinary citizens in a given EU country expect to read in con-
texts of this kind. If so, the use of language in this statement displays an interest-
ingly diverse range of cultural attitudes in the observance of the law. At one ex-
treme, German-speaking readers find that the act of reading has led inexorably to
an obligation, an act of citizenship in which they are already involved, while at
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the other extreme their counterparts in the Netherlands, the UK, Greece and
Spain remain entirely free to take it or leave it. The rest of EU citizens are
somewhere in between.
So the linguistic clothing in which the legislator dresses supposedly uniform
texts of European Union law jangles with a variety of cultural ornaments, sewn
on to the customary verbal fabric but unnoticed until a multilingual context
places them side by side.

'Shall'in legal English

A more flagrant, but even less perceptible, example of cultural variation oc-
curs in the quasi-biblical use of 'shall' in English legal texts. This 'legal shall'
wreaks havoc amongst native and non-native authors alike. In the passage quoted
above, the ordinary reader would probably find it hard to discern any shift in
meaning if we converted 'shall' to the more current 'will', though some writers
argue that it is clearer still to replace 'shall' with 'must' (Cutts, point 1.12). Dip-
lomats will no doubt explain that while foreign ministers can lay down the law
about their own action of depositing the Treaty in the archives, they can hardly
use the same imperious verb for the repository of the Rome treaties, the Gov-
ernment of the Italian Republic, 'which will transmit a certified copy'.
Opinions vary about the origin of 'legal shall'. In his magisterial work David
Mellinkoff (1963) devotes several pages to a discussion of the ambiguous use of
'whereas' in legal texts, pointing out that it means the exact opposite of
'whereas' in its everyday sense, but passes over the use of'shall' in silence. This
absence of comment, in a work of 526 pages, comes as rather a surprise. The ex-
planation can only be that, even for Mellinkoff, 'shall' is part of the language's
legal furniture. It goes back to the earliest biblical texts in modern English - cer-
tainly to its most famous usage in the 1611 Authorised Version of the Bible, and
 10 2002. Perspectives: Studies in Translatology. Volume 10:1

beyond that to William Tyndale's 1530 translation of the Ten Commandments.

In the Book of Exodus, the lawgiver Moses stands on Mount Sinai and pro-
nounces the law to the people. 'Thou shalt have none other gods before me'
(Exodus 20,3).4 He clothes his utterances in the formal, sonorous phrases of reli-
gious ritual, in order to attune his listeners to the legal context: 'File this under
"Law" in your minds'. The spoken message is all they have to go on: even his
longest-sighted listeners are likely to have been illiterate and unable to read the
tablets of stone. When it came to finding English words for this event, William
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Tyndale no doubt drew on the equivalent Anglo-Saxon cultural convention, one

that makers and enforcers of the law addressing similar groups of listeners had
been using in the British Isles for centuries. 'Shall' delivers the legal context in
an audible form: 'This sentence is a piece of law'.
Ever since Tyndale, if not before, writers of legal texts in English have strug-
gled to apply 'shall' in the correct manner, confused not only by doubts about
how to define a legal text, but also by interference with the correct form of the
future tense in English, 'I shall - you will - she will - we shall - you will - they
will', now less than current in vernacular English with its widespread preference
for the contractions 'I'll - you'll - they'll' and so on. A speaker at a recent con-
ference on legal translation quoted the following mantra, familiar to many users
of English, as a reminder of the distinction between 'shall' in the future and
'shall' in the legal sense:

'I shall drown, and no one will save me' - swimmer's valedictory prognosis;
'I will drown, and no one shall save me' - suicide's charter.5

If'shall' causes problems for native writers of English, it creates much greater
confusion in the minds of non-native writers working in multilingual environ-
ments, especially when they are more closely attuned to the different conven-
tions of their own languages. As a result, it often poses difficulty in translation.6
The equivalent cultural convention in the other EU languages appears in Ta-
ble 2 on the opposite page.
As we can see, the formula falls into one of three categories: apart from the
prescriptive 'shall', there is the descriptive present tense (German) and the pro-
phetic future (the other nine languages). So the 'shall' line-up takes the flags for
 Seymour: A 'common' EU legal language? 11

Table 2
'Shall' verbs in Article 53 of the EU Treaty
Action Language versions

Prescribing shall be depos-

ited (English)
Describing the wird hinterlegt KaTatOerai talletetaan'
present (German) (Greek) (Finnish)
Describing the sera depos6 sara deposi- sera deposi- zal wor- depon- skall de-
future (French) tato (Italian) tado (Portu- den neder- eres poneras8
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guese and legd (Danish) (Swed-

Spanish) (Dutch) ish)

'authentic' and re-arranges them in a different order, with English now imposing
an obligation, nine languages taking up a new 'predictive' position and German
observing, with apparent indifference, the status quo: 'it is [being] deposited'.
The link with Biblical precedent might lead one to expect an exact parallel in
each of the EU languages between their 'legal shall' convention and the verb
form they use to translate the Hebrew and Greek versions of the Ten Command-
ments. But - even allowing for variation between translations - what emerges
from an interlinguistic comparison of Exodus 20, 3 is yet another line-up of the
flags, introducing a further verb form, the imperative, as shown in Table 3:

Table 3
'Shall' verbs in Exodus 20, 3
Action Language versions (traditional wording)

'Shall'form Thou shalt have none other gods
before me. (English)
Du skal ikke have andre guder end
mig. (Danish)
Imperative Ala pida muita jumalia minun rin-
nallani. (Finnish)
Simplefuture Vous n'aurez point des dieux
Strangers avant moi. (French)
Non avrai altri dei di fronte a me.
(Italian)
No tendras otro Dios frente a mi.
(Spanish)
Du sollst keine anderen Getter ne-
ben mir haben. (German)
Du skall inga andra gudar hava
jamte mig. (Swedish)
Nao teras outros deuses diante de
mim. (Portuguese)
Ouk £aovtai ooi Gsai £repoi nXny
Euot). (Greek)
 12 2002 Perspectives: Studies in Translatology. Volume 10:1

While we may see a prescriptive link between English 'shall' and its other
Germanic forms, we can also see a parallel between the predictive future and the
imperative of direct command. Here we need to distinguish between the 'shall'
of legal documents, using the third person, and biblical 'shall' in the second per-
son - 'thou shalt' - addressed to a listening audience. Clearly, biblical 'shall'
comes much closer than 'legal shall' to the direct imperative. The fifth com-
mandment in English actually says, 'Honour thy father and mother', while the
German has 'Du sollst deinen Vater und deine Mutter ehren'. Nor is use of the
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future tense as an imperative unknown in modern English: 'You will do as I say'.

As a close look at the Ten Commandments and the surrounding context re-
veals, European translators of the Bible drew variously on their own languages'
conventions to express the ideas of duty and obligation. There may be some
point in distinguishing between the Protestant ethic of 'sollen', placing the em-
phasis on individual responsibility, and the Catholic notion of collective and con-
fident solidarity which the use of the future tense represents. But it would be un-
wise to make too much of this. The most we can say is that, in every language,
the Bible's translators, like their modern counterparts who worked on the Treaty
of Maastricht, show signs of cultural diversity in their range of lexical choices.
Whatever its origin, English 'legal shall' is an archaism that the advent of lit-
eracy made redundant several centuries ago, a dodo that has come home to roost
in English legal language - and evidently in English alone. Unfortunately, the
English in use outside the traditional 'Anglo-Saxon' reaches of common law, in
the multilingual contexts of international law-making, has no room for dodos.
The laws of the twenty-first century need a leaner, meaner bird to get them off
the ground. And since the visual context of a legal document itself delivers the
message ('This is law. These words prescribe') which used to depend on 'shall'
in an earlier, pre-literate age, the German language's 'legal present' tense is quite
good enough to do the trick.9 But if the EU process of harmonisation were ap-
plied to language usage and determined by a simple majority vote, the winner
would undoubtedly be the future tense — the verb form that the military have
been using in written orders in English for hundreds of years.10
The revealing use of 'will' in place of 'shall' in the text at the beginning of
this paper, a habitual slip that we can observe not only in EU legislation but also
in its implementing instruments in Ireland and the UK, clinches the argument
more effectively than any amount of doctrinaire theorising. It demonstrates that
 Seymour: A 'common'EUlegal language? 13

the demotic usage 'will' stands closer to the writer's meaning, and so minimises
the reader's effort to understand. Greater efforts are necessary, by both writer
and reader, to convert 'will' into 'shall' and back again.

Concluding remarks
Language that expresses the meaning of the law efficiently is responsible lan-
guage, bringing it closer to the citizen. To be democratically accountable, the
language of European law must speak clearly, and this will usually also make it
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translator-friendly, so as to remain accessible to the citizen after the act of trans-

lation.

Notes
1. The article is an edited version of a paper given at the European Parliament's Novem-
ber 2000 seminar on multiculturalism.
2. The Chambers Dictionary. The definition continues: '(of writing) trustworthy, as set-
ting forth real facts: own, proper (Milton)'.
3. Rule 117, interpretation.
4. Tyndale's translation of the Pentateuch was published in Antwerp. His New Testa-
ment (1525) was published in Cologne and Worms - linguistic environments from
which Anglo-Saxon usages would be likely to draw encouragement; he may also have
had access to the translations of John Wycliffe (1320-1384).
5. The equation of 'I will drown' with 'I intend to drown' has probably always baffled
all but a small minority of educated speakers of standard English.
6. The European Parliament's Legal Service once issued a note to its translators defining
the distinction between 'shall', 'should' and 'must', with French equivalents.
7. Finnish has no separate future tense. In the legal context, Finnish-speakers say, the
present tense 'acquires overtones of the future'.
8. Swedish-speakers point out that 'skall' is cognate with German 'sollen', though it has
come to be used as an auxiliary verb for the future tense. This fact, combined with the
legal context, seems to invest the future tense with a legal connotation.
9. The present tense already appears in certain standard formulations in English legal
texts, as in 'For the purpose of this directive, "toy" means an object which ...'.
10. 'B Cadre will parade at 0800 hours.' Perhaps military English owes its grammar, as
well as its vocabulary, to French precedent.

Works cited
Cutts, Martin. 2000. Lucid Law. Whaley Bridge (UK): Plain Language Commission.
Mellinkoff, David. 1963. The Language of the Law. Boston & Toronto: Little, Brown
and Co.