Electromagnetic interferences in the language of the law

by: in Law

Language plays a fundamental role as a channel for law. It can enable members of society to access justice. Conversely, an inadequate use of language may result in a dissociation of law from a specific society. Language is a fundamental means to convey messages, to know the law, and to shape the law. On occasions, law is presented in languages that do not correspond to those of the targeted societies. Comparative legal history can attest of such occasions. Similarly to radio frequencies, on such occasions messages were disrupted by “electromagnetic interferences” and did not reach their destination.

Comparative legal history can help explore the language of the law. It can offer tools to bridge divides, to operate in a peculiar system, and to understand better. Further, it can assist in assessing the channel offered by the law at different times and places. The channel of the law may be hampered or facilitated by the use of specific words. It can be hampered, as reflected in a sarcastic statement by a German law professor in the early 1900s, stating that he could not comment on the merits of the 1900 BGB until that text would be written in German. Yet, the channel may be facilitated. The 1804 French Civil Code offers a seminal example. The code had to be in simple language so that everyone could read and understand the text. Another example is found in the Americas. Andrés Bello, the drafter of the 1855 Chilean Civil Code, was known as a distinguished linguist and his work is considered an example of law drafting and of linguistics. No wonder his text extended at full speed across Latin America.

Language can enable access to justice. Outreaching to the nineteenth century codification movements may help illustrate also this point. Codes can be considered temples, where the rules for society are represented and safeguarded. These bodies of the law provide a common point of reference for lawyers and lay citizens, helping to spread knowledge of the law. Further, they fulfil a pedagogical and regulatory function that may enable access to justice. Yet, once more, language comes to the stage. Codes with clear language empower citizens. Hence, codification can be an empowering tool, when the language is clear, when there are no “electromagnetic interferences.” Conveying clear messages is of the essence!

“Electromagnetic interferences” must be reduced. There is a need to be aware of their presence and of their disruptive function. Comparative legal history can help identify prior interferences and it can help sense the dissociation of law from a specific society at a specific time. There is value in learning from the past. Once current interferences are spotted, legal actors must engage in the task of paving the way for language to be a channel for law.

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  • A. Parise

    Agustín Parise (Buenos Aires, Argentina) is Associate Professor of Law and Chair of the Faculty Council at the Faculty of Law of Maastricht University. He received his degrees of LL.B. (abogado) and LL.D. (doctor en derecho) at Universidad de Buenos Aires (Argentina), where he was Lecturer in Legal History during 2001-2005. He received his degree of LL.M.

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