There is a tradition which is stronger on the continent than in the UK, that of the Festschrift or Liber Amicorum. ‘Celebratory book’ is probably the closest in English. For the second time, I have been asked to contribute to one, and it is thoughts about the lawyer in whose honour the book is being produced which form the background to what I want to say this week. Since the eventual publication is intended as a surprise, no identity will be disclosed.
The lawyer concerned - I shall call her Catherine - is a francophone and loves the French language above most things. She feels correctly that language does more than communicate surface meaning. It conveys cultural concepts which are embedded in a society, and are often untranslatable.
In the law, there are many such concepts. We could start with our very own title, the word ‘solicitor’. It should never be translated - and in proper texts is not - since nothing in another language can convey its significance. To consider its nearest French equivalents, a solicitor is neither an ‘avocat’ (more or less a barrister in our terms, typically allied to court work and advocacy) nor a ‘notaire’ (which in its purest form is a public officer carrying out delegated acts on behalf of the state).
Catherine is particularly exercised by legal professional privilege, which is called ‘professional secrecy’ in her system. Again the two concepts have apparent surface similarities which conceal deep differences of approach. Legal professional privilege is at root a case-based rule of evidence, which can be waived by the client. ‘Professional secrecy’, on the other hand, is derived from the penal code, whose breach is a criminal offence. ‘Professional secrecy’ is not simply a professional or contractual duty, but a matter of public order, and it cannot be waived by the client. (And don’t let’s start on ‘public order’, which again means different things in the two systems.)
There are many more examples, but the point is that language conveys cultural concepts, as all translators know, and the use of just one language risks errors and misunderstandings not only across legal cultures, but in understanding oneself at home. This latter point is the most important. Catherine argues for the retention of French at international level, not only to help unlock the meaning of civil law systems used in many countries around the world, but also to reflect better on the common law, whose advantages and disadvantages would not be fully known to us otherwise, since it would not have been properly compared to anything else.
This is the heart of the argument. Real understanding, whether of the law and justice or anything else, comes not just - or even not much - from consideration of the concept on its own, but from comparison across as wide a range of other notions as possible. Is the world really understandable in just one language, whose range of concepts is necessarily limited by the cultural imagination which gives rise to its words? If everyone who had ever lived had only ever spoken English, would we be as advanced in our understanding as we are today? Catherine would say ‘no’.
This is the time to undertake an exercise. For a moment, we anglophones should put ourselves in the shoes of a non-English speaker. The world immediately becomes a less accommodating place, since English has invaded so many spaces, and continues to do so. There are a million possible examples from airports, museums, loan-words, shops and street conversations between strangers in foreign cities, in all of which English dominates or is the only second language used after the local native tongue.
This never-ending spread of English has turned the unlikely figure of Catherine into an anti-colonial warrior. She worships the French language and the cultural products it has engendered, for instance its literature and its law. She believes that by speaking French when she can, and so supporting its strength for as long as possible, she is striking a blow against the notion that one language - it happens to be English at the moment - can explain everything in the world. (That is a shocking idea, to think that we cannot understand everything through the use of our native tongue.)
You might ask whether Catherine would be such an anti-colonialist if it were French which were dominant, as it was for so long. Knowing her, and being honest, I think the answer would be ‘no’, since she so believes in its unbeatable beauty. But she has learned the hard way. By having English forced on her, she has come to see that two are better than one on the road to understanding. The pros and cons of her beloved ‘avocat’ or ‘secret professionel’ can best be realised by standing them against similar concepts from a different culture, and so seeing their outlines better. As a result, we anglophones should all wish Catherine well in her one-woman linguistic warfare.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs