Is That a Fish in Your Ear?

by David Bellos

  The European Court of Justice in Luxembourg (ECJ), which resolves questions of law that cannot be answered by any of the national appeals courts of the states that make up the EU, is run in a slightly different way. It has a single working language, which is French. All documents used at every level by the court are either written in French or translated into French by members of the army of language professionals who work there.

  However, plaintiffs—who may be member states or authorities within a national jurisdiction—may bring cases in whichever language they wish, which is normally the language of that state. The language of the state becomes “the language of the case,” and all documents in the file, whatever their source, must be translated into that language. More work for (different members) of the law-and-language team. But that is only half the story. The legal decisions of the court are made by all or some of the twenty-seven European advocates general, one appointed by each of the member states. The ultimate authority consists of a set of distinguished judges collectively speaking and writing all twenty-four languages of the EU. They use French for lunchtime conversation, informal consultations, and committee discussion, but they give their all-important opinions on the cases before them in their home tongues. For example, a case brought by the Portuguese government against a Bavarian dairy-farming consortium that is judged by the Estonian advocate general involves translations in five directions—PORFRE, FREPOR, FRE GER, GERFRE, and ESTFRE, allowing four additional transmissions by relay from French POR[FRE]GER, GER [FRE]POR, EST[FRE]POR, and EST[FRE]GER. The three remaining directions (see here for the math), from French, Portuguese, and German into Estonian, are not needed because, except when giving his opinion, the advocate general operates in the language of the court, which is French. However, since the rulings of the ECJ have force in the entire EU, legal opinions are not released and do not come into effect until they have been translated into all twenty-four of the official tongues. Every section of the 750-strong corps of lawyer-linguists at the ECJ becomes involved at some stage in every decision that is made.

  Euroskeptics treat this lavish provision of multidirectional translation at the ECJ as a scandal of waste—a mere job-creation scheme. It’s true things didn’t happen that way in the appeal courts of the multilingual Ottoman and Hapsburg states, and the ECJ does cost a lot to run. It’s also true that the law of unintended consequences means that language parity as implemented in the steel-and-glass palace on the Kirchberg Plateau creates very awkward disparities of its own. If you are a trained lawyer from Malta, Estonia, or Hungary with excellent French and a good knowledge of one other European language, the job opportunities in Luxembourg are very attractive indeed. The effect is that Malta, Estonia, and Hungary have difficulty recruiting such individuals for their own national civil services, where their skills are very much in need. But if you are a British lawyer with excellent French and one other European language under your belt, you have far more lucrative careers waiting for you in London and New York, and the ECJ thus has a chronic shortage of translators into precisely those languages it most frequently needs.

  But the EU cannot exist without the ECJ. If the ECJ were to abandon its own version of the language-parity rule, it’s not obvious how European law could have force in any of its twenty-seven member states. That’s why for the last fifty years, all supposedly commonsensical or budgetary objections to its translation regime have been overruled. The political will to make Europe work is too strong and too grand to let translation issues stand in its way. Europe really has built a radically new kind of translation world.

  What’s quite specific to the ECJ, however, is that it does not employ translators as such. Language professionals in the Kirchberg complex are all also lawyers, and they are involved in the work of the court at many levels beyond strict language transfer.

  Lawyer-linguists have access to confidential material and work under the same procedural rules as lawyers; they also advise on drafting, down to the small details that might produce ambiguities when expressed in other languages. The work of a lawyer-linguist is much more than translation—it is the manipulation of the law as language and language as law.2

  Many of the cases brought before the ECJ arise from conflicting interpretations in different member states of regulations made by the European authorities—in effect, clashes between different interpretations of different language versions of what is held to be the same text. Given that all language versions have force of law, how does the court deliver the judgment of Solomon that this version is to be preferred over that one?

  They can’t call either version a translation since all versions are originals; because the court’s working language is French, moreover, there are almost always three texts or formulations involved. On rare occasions, the taboo term translation mistake has been used—for example, when the German version of a regulation about the import of sour cherries used the term Süßkirschen, “sweet cherries,” instead.3 Such an easy judgment is untypical of the court’s work. More frequently the court has to decide what the law was intended to achieve, over and above any one of its linguistic expressions. In monolingual national cultures of law, the best evidence of the legislator’s intention lies in the words of the law, and much traditional legal argument is about the meanings of words. In European law, you have to go one further than that. Questions of legal interpretation in the appeals court of the EU are also always questions about language in twenty-four different forms.

  Let’s suppose in some practical circumstance not foreseen by the drafters of an EU directive there is a substantive difference in the force of the French and the German texts, and that this has given rise to a complaint by France that Germany is not applying EU law correctly. The ECJ has to decide whether France is right. But since there is no master text (in Latin, for instance) to provide a higher authority or a standard of judgment, the court has basically only two ways of working out what it thinks. Using the skills of its divisions of lawyer-linguists, it can list all the language versions that support the French interpretation and all those whose sense in the context of the case leans more toward the German interpretation—and grant victory to the larger group, whichever it is. But the ECJ does not have to proceed by this kind of “majority verdict.” It may identify one language version that it considers to have expressed the legislative intention of the directive more clearly, or more precisely, than any of the others.

  Both these procedures hark back to the tools developed by the Church Fathers for establishing the “word of God” through comparisons of the different translations of the Bible (principally, the Greek and Latin ones). What has been called the “Augustinian approach” to the interpretation of European law effectively seeks to establish a meaning that transcends any one of its language versions but which animates them all. It runs into some fairly obvious problems.

  In Peterson v. Weddel & Co., Ltd., the issue was a criminal prosecution within the U.K. for violation of a regulation setting limits on the operations of trucks. An EU regulation exists that allows member states to make exemptions from the general rule for the “transport of animal carcasses or waste not intended for human consumption.” The firm that had been fined in the U.K. had been transporting animal carcasses to butchers’ shops, which clearly intended to sell them for human consumption. But the trucking firm claimed it was exempted from the rule by the EU clause just quoted and was appealing against an English court’s refusal to allow it to get away with its behavior. The trucking firm’s lawyers claimed that waste not intended for human consumption and animal carcasses in general (whether intended for human consumption or not) were exempted, whereas the English courts had considered that the exemption applied only to waste and animal carcasses not intended for human consumption. It may sound arcane, but the issue was clear enough: Was the trucking firm cheating on the rules or was it not?

  The issue at the heart of this case is a familiar problem in the language of law and in language in general: When you have a list of
nouns followed by a qualifying or restricting phrase, where do you put the punctuation? Does the restricting phrase restrict every member of the list, or only the last one? Does the expression “children and women with babes in arms” include children with babes in arms or does it not?

  In daily usage, we leave disambiguation of this kind to common sense and context. In law, it’s fertile ground for persnickety legalese. When this issue came before the ECJ, however, the lawyers, the linguists, and especially the lawyer-linguists began by reviewing and comparing all twenty-four language versions of the exemption. They found one among them—the Dutch text—where the restriction to goods “not intended for human consumption” precedes both “animal carcasses” and “waste.” It does so for almost exclusively grammatical reasons. The court treated it as a godsend, however, not as a grammatical variant of the same ambiguous text. It chose to regard the Dutch order of words as a clearer and more precise expression than all the others of the true intention of the law—and turned down the appeal. The trucking firm had to pay the fine.4

  Let’s assume that the EU body that first thought of exempting certain classes of trucks from general rules was thinking about trucks full of potentially rotting and smelly flesh. What’s of interest here is not the ECJ’s final judgment, with which we can easily agree, but the reasoning it used to justify itself. The reasoning is of a very simple grammatical kind: it says that qualifications preceding a list of nouns apply to all nouns in the list. This semantic principle is made manifest in the Dutch version, but all the others, which for grammatical or stylistic rules put the qualification at the end of the list, must be taken as expressing the same thought.

  The reasoning does not make sense in most of the languages of the EU and especially not in the court’s working language, French, where all kinds of qualifiers, including simple adjectives attached to single nouns, follow and do not precede the noun. Where does the ECJ’s insight into the clarity of Dutch come from? The most likely answer is the grammar of English. It is English, not French, Spanish, or Hungarian, that lends intuitive support to the view that “not-intended-for-human-consumption animal carcasses and waste” is a less ambiguous expression than “animal carcasses and waste not intended for human consumption.” Despite the huge and conscious efforts it makes in precisely the opposite direction, the ECJ cannot resist the slow but steady homogenization of the languages it uses to uphold European law.

  I don’t mean to snipe at this particular judgment or to undermine the important work that the legal-cum-linguistic contortionists of Luxembourg do. However, the comparative method used to establish the ultimate intention of a law—a method that can be likened to Saint Augustine’s practice of biblical exegesis—must itself be conducted in a language. Suppositions and assumptions about the meanings of words, grammatical structures, and rhetorical turns are necessarily rooted in one language, not suspended on a hook from a supralinguistic legal sky. In the polyglot corridors and canteens at Kirchberg, however, where you may start a conversation with a Spanish judge in French and switch to German to say hello to a nice person from Prague, it’s a truth that is easy to forget. As one lawyer working there said to me when I visited, he never really thinks about which of his four languages he is speaking or writing at any given time—he switches without conscious effort, as if he were just shifting the weight of his shoulder bag from the left to the right side. The outcome of such unconscious linguistic determinations of legal finagling is that the meaning and grammar of twenty-four languages have begun to merge into an ECJ language culture that is all its own—sui generis, in Saussure’s terms, or “Euro-speak” in common language. As one of the few scholars to have studied the language maze of Luxembourg closely puts it, “The unique situational factors in the production of European jurisprudence have led to a hybridization of law and language.” It seems to me—admittedly an outsider and an amateur in this field—that the underlying structure of this new hybrid, even though it is formally expressed through the medium of French, is provided by the English tongue.

  Some people from both “Europhile” and “Euroskeptic” factions think that it would be better if European institutions were run in English anyway. This is because the language-parity rule of the EU is a constant cause for delay and also tends to make official decisions and opinions more contorted and obscure than they really need to be. As stated earlier, the rulings of the ECJ come into force when they are published, simultaneously, in all the official languages of the EU. Judges are therefore under constant if discreet pressure from their permanently overworked lawyer-linguists to keep it short. European jurisprudence is thus typically tight-lipped and does not provide the many pages of argument and justification that normally accompany a ruling from the House of Lords or the U.S. Supreme Court. The laudable political aim of treating all the languages of Europe as equal produces the unwanted but perhaps inevitable result that ECJ rulings are sometimes so pithy as to defy comprehension in any of them.

  TWENTY-TWO

  Translating News

  In 1838, when traveling on a slow boat to Trieste, the poet Robert Browning imagined how in times past news was brought from Ghent in Belgium to Aix in Germany:

  I sprang to the stirrup, and Joris, and he;

  I gallop’d, Dirck gallop’d, we gallop’d all three …

  What he doesn’t say, however, is how the mounted couriers turned the information they bore from Flemish into German, which is what people understand in Aix. In ages past, news rushed from any European A to B would most likely have been issued and received in French. But nowadays we are accustomed to receiving topical information in print and on radio, television, and the Web in our home languages, with minimal lag between event and report. But how do good and bad tidings now get from Shenzhen to Chicago, from Marseille to Melbourne, from Rio to Ryazan? Electronic media account for the speed but do not explain how political and human events deemed to be news happen in a language that is rarely our own but reach us almost instantaneously in the language that is.

  The quantity of information flowing around the globe in uncountable languages might be taken to suggest that in some hidden anthill a busy troop of language insects lives on permanent standby, ready to turn news from any of the world’s languages into all the others at the drop of a hat. But it can’t be so, because that would require almost 49 million separate teams of language ants (see here)—and a human anthill of that size would be difficult to hide. Even if a hypothetical global news translation HQ served only 80 vehicular languages, it would still require 6,320 different language desks. Given a forty-hour workweek for each translator and allowing for sudden peaks in demand when great events happen in Paris or Peoria, you couldn’t house the enterprise in anything less than the Empire State Building. But no skyscraper in New York, London, or Rio houses a world news translation center. In fact, news bureaus the world over have hardly any translators on their staff at all. Like the lawyer-linguists at the European Court of Justice, language mediators in the news business are almost always something else as well.

  Most of the world’s languages are spoken by quite small groups, and news media do not exist in many of these tongues. Even so, there are hundreds of languages—perhaps more than a thousand—that have some modest level of news service in print or on the air. Latin, for example, has daily thirty-minute news bulletins broadcast from Helsinki; Gaelic has seven hours of programming per day, part of which is news, on BBC Alba TV. But most consumer news media don’t make the news, save on rare occasions. Most of them are themselves consumers of worldwide agency services, called wires, which process and put out news in no more than half a dozen tongues. The main hubs are Reuters (the first news agency in the world, founded in 1851), Associated Press (AP), Agence France-Press (AFP), and Inter Press Service (IPS), massively supplemented in recent years by CNN, Al Jazeera, the BBC on the Web, and, for financial news especially, the Bloomberg wire.1

  News of flooding in Bangladesh or a coup d’état in Rwanda or Kyrgyzstan does not co
me to you, wherever you are, from Dhaka, Kigali, or Bishkek. It comes to your local news source from the agencies, in English, French, Spanish, German (all agencies), Portuguese (Reuters, AFP), Dutch (AP only), or Arabic (Reuters since 1954 and AFP since 1969). It is rewritten almost instantaneously by journalists working for your local paper or radio station from whichever language version they receive from one or more of the wires. The global transmission languages are those of the colonial empires of the nineteenth century, plus Arabic. Chinese, Japanese, Hindi, Indonesian, and all other languages are not in the game.

  Journalists who compose the articles and stories you actually read often have language skills, but they do not think of themselves as translators. They would be offended if you said that’s what they are—even if some news stories you can read in the London press, for example, are very close indeed to what you read in yesterday’s Le Monde. Journalists think of their jobs as turning plain information into arresting, entertaining, or readable prose suited to the culture, interests, and knowledge of the people who read them—and that’s more than what most people think translation is. The pecking order is reflected in pay and conditions of service the world over: “journalist” outranks “translator” everywhere.