Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality

Abstract

This paper argues that cultural linguistic plurality, which affects us deeply, should be treated as a fundamental right in private law and examines the compatibility of cultural diversity and linguistic plurality with the DCFR. Since plurality is often presented as an obstruction to the single market, any attempt to preserve cultural linguistic plurality appears to clash with the main aim of the DCFR, to promote the internal market. In examining whether and how the DCFR overcomes this dilemma, an enquiry as to the implications of the DCFR, envisaged as creating one set of rules to apply throughout the EU, is carried out. As rules written in one language will require translation engendering complex interpretation difficulties, a twofold enquiry is made concerning the language of the DCFR itself and the language of contracts. The language of the DCFR creates difficulties on two levels: the first, semantic, since many terms of the DCFR denote without connotation. The second major difficulty relates to judicial interpretation, which runs the risk of not respecting linguistic equality, either because of a uniform interpretation or because of the possibility that the original language of the DCFR will prevail. Further, is emphasised that the DCFR fails to take account of cultural linguistic plurality as a fundamental right subject to non-discrimination, thus missing an opportunity to promote such values. As far as the language of contracts is concerned, it is suggested that certain provisions of the DCFR may enable a language-type to be imposed in certain cases. Moreover, provisions for resolving linguistic discrepancies may fail to respect linguistic equality. In sum, the DCFR runs close, perhaps unintentionally, to enhancing English as the default lingua franca in the EU. The paradox, however, is that the DCFR, though written in English, may not make much sense to Anglophones and common lawyers.