Vers un Langage Juridique Commun en Europe?

Abstract

The relationships between law and language are so intertwined that it is legitimate to ask, with reference to the Historical School of Law, whether a single legal language is possible within a multilingual Europe. The response cannog be a simple affiramtive or negative one, as some writers rashly claim. It is complex in the same way that legal language itself is complex. It cannot be reduced to the language of legislation, but must include all elements of thelanguage, legislative and jurisprudential. As to the first of these, the problem is not to identify whether the common law and the civil law can be made compatible; it is rather to identify the level at which, in Europe, unification is possible and fate of national differences. If the idea of a European Civil Code is neither practicable nor desirable, how canunity be wrought from the present diversity. A choice must be made between unification, approximation and harmonisation. Unification takes place within the … accorded to regulations (EEC and Euratom). Its sphere of operation should not be elarged. That leaves a choice between approximation and harmonisation. The two techniques must be used as appropriate, depending on the issues involved. From this perspective, approximation should be used for the general law of contract, the main way in which legal relationships are created, building on the work that has taken place with th eframework of the Commission on European Contract Law (Lando Commission) or UNIDROIT. As to the second type of legal language, the language of case law, it is appropriate to stress the great difference between the roles of common law and civil law judges. But on a closer inspection, the difference is not unbridgeable, for judges in the civil law jurisdictions also play a fundamental role in the creation of law. A common 'interpreted law', which is already preceptible in the slow work of the European Court of Justice, will be developed more easily when a body of European jurists has emerged, educated in the many European institutions that already exists, but are not yet sufficiently numerous. No doubt this is a laborious enterprise, because it depends on changes in fundamental thought processes, but it is gradually and irreversibly moving towards the establishment of a 'legal Europe'.