Final Report Summary - LINGLAW (Semantic Spaces, Multilingualism and Diversity in the Law: The Challenge of Legal Knowledge Management within the European Union (LingLaw))
Semantic Spaces, Multilingualism and Cultural Diversity in the Law
LingLaw
Doris Liebwald & Monika Rathert
The interdisciplinary project LingLaw (Linguistics and Law) was motivated by the aim to foster collaboration between linguistics, law and legal informatics. LingLaw was a Marie Curie Intra-European Fellowship (IEF) within the PEOPLE program of the FP7, its full title was “Semantic Spaces, Multilingualism and Diversity in the Law: The Challenge of Legal Knowledge Management within the European Union“. The scientist in charge at the hosting Bergische Universität Wuppertal was Prof. Dr. Monika Rathert, and she received 210,624 € for the project. Dr. Doris Liebwald (who worked previously at the Federal Chancellery of the Republic of Austria and at the University of Vienna) was the research fellow in LingLaw. The project was carried out between June 2011 and May 2013 at Bergische Universität Wuppertal and was localized there at the ZefiS (Center for interdisciplinary language research). The ZefiS, which is directed by Prof. Rathert, offered ideal surrounding conditions for LingLaw.
A detailed documentation of LingLaw is at http://linglaw.eu; the following highlights only the most important aspects of the project.
The law is based on text and language. Compared to ordinary language, the language of the law is very complex and entangled with the legal tradition and with politics. Language as such is vague to a certain degree and in need of interpretation; language is not mirroring reality but rather constructing it. This is true a fortiori for legal language. Every norm is vague to a certain degree because it categorizes reality, thereby necessarily factoring out some of the facts of reality. Although it is common sense that legal language is very precise, this is not true. Behind its complexity, legal language displays a strategic kind of vagueness, which cannot be explained with the vagueness of language as such. Rather, this strategic kind of vagueness results from vague legal terms, combined with flexible methods of interpretation, leading to surprising results.
One striking example is German Marriage Act of 1938, which was reestablished by the Allied Control Council in 1946. The Marriage Act of 1938 uses the essence of marriage as an argument (“bei richtiger Würdigung des Wesens der Ehe”, “by acknowledging the essence of marriage”). The essence of marriage then served as a argument to ban women from work (during National Socialism, during FRG), to demand gainful employment from wifes and mothers (GDR), to declare the indissolubleness of marriage as a principle resulting from higher moral order (FRG), to allow a divorce in case the wife is older than the husband (National Socialism), etc. The Marriage Act of 1938 is still valid in Austria, and the essence of marriage is defined in terms of at least possible parenthood. But what is the true meaning or essence of marriage? It is too obvious that precision is not wanted, as a precise norm such as “homosexual couples are not allowed to marry” is not chosen. A precise norm like that would not need to construct an “essence of marriage”; instead, it would be a good starting point for discussions.
A completely different kind of semantic space opens if different legal cultures and different languages meet, e.g. in the European Union. Legal terms and norms are entangled with the legal tradition and their interpretation is heavily dependent on context and structure. The legal languages and legal terms in the Member States differ from each other and they also differ from those of the European Union. Legal terms cannot be translated 1:1 and even the same norm can be interpreted differently in different Member States. The Member States interpret European Law within their respective political and legal system and culture, which may result in divergent or incomplete transpositions of European Law. Of course, EU legislation and documents of major importance are translated into the 23 official languages, but EU legislation may be implemented in many different ways. Vice versa, the national law is not translated into the official languages of the EU. Thus, it is very difficult for the EU institutions to compare implementation of EU legislation, or for businesses and citizens to locate relevant cross-national legal information. LingLaw investigated typical pitfalls of interfacing between different legal systems using the example of the Services Directive 2006/123/EC. The Directive aimed to revitalize the single market by facilitating the cross-border provision of services within the EC. The Services Directive is a typical compromise Directive. It is the result of a difficult and longdrawn political process in which the proposed so-called country of origin principle had to be dropped and significant amendments to the proposal had to be made to achieve the necessary consensus among the Member States. A compromise law which incorporates a lot of amendments and exceptions rarely results in a coherent and comprehensible text. Shortly after the enactment of the Directive, it became clear that there are a lot of questions of interpretation. Several national studies on the correct implementation of the Services Directive were commissioned, discourse developed, and in 2007 a non-binding Handbook was published by the European Commission. Working within LingLaw on the implementation of the Services Directive in Austria and Germany also led to an intense study of the relevant passages of the Austrian “Legistische Richtlinien” and the German “Handbuch der Rechtsförmlichkeit”, comparing them with the European Guidelines on legal drafting.
These guidelines contain valuable regulations on the quality and rationality of legal norms; however, they are not legally binding and thus dependent on political consensus. But quality and rationality of legal norms are of vital importance for legal certainty, accessibility and intelligibility of the law. LingLaw argued that the European Guidelines on legal drafting should be made legally binding and that basic legal drafting standards should be developed also within the Member States.
Finally, the thoughts about vagueness were applied to legal knowledge management and artificial intelligence in law (AI & Law). Especially AI & Law has a great potential to reveal incoherencies and vagueness in law. The challenge for the AI & Law Community is not so much law’s vagueness but rather its role as a subordinated discipline. AI should enter the discourse on the rationality of law, also to minimize the influence of politics.
To disseminate the results of LingLaw, the ZefiS organized a workshop about the Services Directive as part of the Autumn Academy of the Deutsche Stiftung für Recht und Informatik (DSRI) in September 2012. The Autumn Academy took place at the Historische Stadthalle Wuppertal with more than 200 participants.
LingLaw
Doris Liebwald & Monika Rathert
The interdisciplinary project LingLaw (Linguistics and Law) was motivated by the aim to foster collaboration between linguistics, law and legal informatics. LingLaw was a Marie Curie Intra-European Fellowship (IEF) within the PEOPLE program of the FP7, its full title was “Semantic Spaces, Multilingualism and Diversity in the Law: The Challenge of Legal Knowledge Management within the European Union“. The scientist in charge at the hosting Bergische Universität Wuppertal was Prof. Dr. Monika Rathert, and she received 210,624 € for the project. Dr. Doris Liebwald (who worked previously at the Federal Chancellery of the Republic of Austria and at the University of Vienna) was the research fellow in LingLaw. The project was carried out between June 2011 and May 2013 at Bergische Universität Wuppertal and was localized there at the ZefiS (Center for interdisciplinary language research). The ZefiS, which is directed by Prof. Rathert, offered ideal surrounding conditions for LingLaw.
A detailed documentation of LingLaw is at http://linglaw.eu; the following highlights only the most important aspects of the project.
The law is based on text and language. Compared to ordinary language, the language of the law is very complex and entangled with the legal tradition and with politics. Language as such is vague to a certain degree and in need of interpretation; language is not mirroring reality but rather constructing it. This is true a fortiori for legal language. Every norm is vague to a certain degree because it categorizes reality, thereby necessarily factoring out some of the facts of reality. Although it is common sense that legal language is very precise, this is not true. Behind its complexity, legal language displays a strategic kind of vagueness, which cannot be explained with the vagueness of language as such. Rather, this strategic kind of vagueness results from vague legal terms, combined with flexible methods of interpretation, leading to surprising results.
One striking example is German Marriage Act of 1938, which was reestablished by the Allied Control Council in 1946. The Marriage Act of 1938 uses the essence of marriage as an argument (“bei richtiger Würdigung des Wesens der Ehe”, “by acknowledging the essence of marriage”). The essence of marriage then served as a argument to ban women from work (during National Socialism, during FRG), to demand gainful employment from wifes and mothers (GDR), to declare the indissolubleness of marriage as a principle resulting from higher moral order (FRG), to allow a divorce in case the wife is older than the husband (National Socialism), etc. The Marriage Act of 1938 is still valid in Austria, and the essence of marriage is defined in terms of at least possible parenthood. But what is the true meaning or essence of marriage? It is too obvious that precision is not wanted, as a precise norm such as “homosexual couples are not allowed to marry” is not chosen. A precise norm like that would not need to construct an “essence of marriage”; instead, it would be a good starting point for discussions.
A completely different kind of semantic space opens if different legal cultures and different languages meet, e.g. in the European Union. Legal terms and norms are entangled with the legal tradition and their interpretation is heavily dependent on context and structure. The legal languages and legal terms in the Member States differ from each other and they also differ from those of the European Union. Legal terms cannot be translated 1:1 and even the same norm can be interpreted differently in different Member States. The Member States interpret European Law within their respective political and legal system and culture, which may result in divergent or incomplete transpositions of European Law. Of course, EU legislation and documents of major importance are translated into the 23 official languages, but EU legislation may be implemented in many different ways. Vice versa, the national law is not translated into the official languages of the EU. Thus, it is very difficult for the EU institutions to compare implementation of EU legislation, or for businesses and citizens to locate relevant cross-national legal information. LingLaw investigated typical pitfalls of interfacing between different legal systems using the example of the Services Directive 2006/123/EC. The Directive aimed to revitalize the single market by facilitating the cross-border provision of services within the EC. The Services Directive is a typical compromise Directive. It is the result of a difficult and longdrawn political process in which the proposed so-called country of origin principle had to be dropped and significant amendments to the proposal had to be made to achieve the necessary consensus among the Member States. A compromise law which incorporates a lot of amendments and exceptions rarely results in a coherent and comprehensible text. Shortly after the enactment of the Directive, it became clear that there are a lot of questions of interpretation. Several national studies on the correct implementation of the Services Directive were commissioned, discourse developed, and in 2007 a non-binding Handbook was published by the European Commission. Working within LingLaw on the implementation of the Services Directive in Austria and Germany also led to an intense study of the relevant passages of the Austrian “Legistische Richtlinien” and the German “Handbuch der Rechtsförmlichkeit”, comparing them with the European Guidelines on legal drafting.
These guidelines contain valuable regulations on the quality and rationality of legal norms; however, they are not legally binding and thus dependent on political consensus. But quality and rationality of legal norms are of vital importance for legal certainty, accessibility and intelligibility of the law. LingLaw argued that the European Guidelines on legal drafting should be made legally binding and that basic legal drafting standards should be developed also within the Member States.
Finally, the thoughts about vagueness were applied to legal knowledge management and artificial intelligence in law (AI & Law). Especially AI & Law has a great potential to reveal incoherencies and vagueness in law. The challenge for the AI & Law Community is not so much law’s vagueness but rather its role as a subordinated discipline. AI should enter the discourse on the rationality of law, also to minimize the influence of politics.
To disseminate the results of LingLaw, the ZefiS organized a workshop about the Services Directive as part of the Autumn Academy of the Deutsche Stiftung für Recht und Informatik (DSRI) in September 2012. The Autumn Academy took place at the Historische Stadthalle Wuppertal with more than 200 participants.