Legal language in Europe

A more coherent European wide [sic] legal language, by Viola Heutger, of the University of Utrecht, is an online paper (PDF or html) I found through DORES, whose latest set of new publications relating to language and law has just appeared. It doesn’t concentrate, as one might have expected, on the common law – civil law divide.

bq. The German formalistic Civil Law Codification is largely unreadable as far as a non-German lawyer is concerned. Without any special indication as to the use of terminology this codification can rarely be understood. If we remain with the German language we must realize that with a knowledge of German legal language the other German-speaking legal systems of Switzerland and Austria or not automatically accessible (Grossfeld, 180). Very simple terms have different meanings. When a German speaks of Besitz, he means factual possession. However, an Austrian lawyer understands Besitz as the factual possession including the animus domini. What a German understands under Besitz, is for an Austrian Innehabung. So even German speaking lawyers from Austria, Germany, Liechtenstein and Switzerland will not understand automatically each other’s concept-based legal terminology. It cannot be expected e.g. that the German knows what is meant by the Austrian terms of a Präsenzdiener or a Landeshauptmann, a Aufsandungsurkunde or a Superädifikat.

I imagine the varying meaning of Besitz is more of a problem than the last four terms.

The article and bibliography contain some useful links.

7 thoughts on “Legal language in Europe

  1. Well, this is not as much of a problem as it may sound. If German lawyers talk to each other, they know what they mean, same goes for Austrian ones. If Austrian and German layers talk about “Besitz”, at least the Austrian lawyer is bound to know that the German definition is slightly different: Our commercial code, introduced in 1938, remains almost identical to the German one, but we have special introductory legislation (4. Einführungsverordnung zum Handelsgesetzbuch) which highlights and adjusts these differences.

  2. Whether German, Austrian and Swiss lawyers are mutually intelligible is neither here nor there. The German Civil Code is largely intelligible to non-lawyers, as a large part of the German lay population have it on their home book shelves as a reference work.

    The same cannot be said of the Austrian ABGB. Citizens rather look to the Der österreichische Hausjurist as a digest. As for the Swiss Code des Obligations/ Schw. Obligationenrecht, I speculate that comparable digests, e.g. Der kleiner Merkur, are the first lay port of call.

  3. I beg to disagree as far as the BGB is concerned: I meant what I said. (Although the text refers to non-German lawyers rather than German non-lawyers). The Germans have a lot of things on their bookshelves, but whether they understand them is another matter! Probably laypersons, which includes ourselves as far as German / Austrian / Swiss law is concerned, are right to use something written to be comprehensible.
    The Swiss Code has a very good reputation for comprehensibility, but I have no idea how widely it’s bookshelved. I picture the Swiss discussing it in Swiss German.

  4. Actually, the Austrian ABGB, when codified in 1811, tried very hard to be as comprehensible and accessible as possible, even to laymen.

    It is generally understood that it largely succeeded in this endeavour, too. Of course, the language used is now almost 200 years old, and generations of lawyers and judges have created a massive amount of decisions, judgements and learned articles telling us how to read this, or interpret that; but its core part remains accessible and understandable like, it must be said, very few other modern codes, with the possible exception of the penal code.

    Even so, very few non-lawyers will actually read any code, as such, so secondary literature like the (indeed, as you say, highly regarded) Hausjurist fills this need.

    To be perfectly honest, I cannot imagine your average German turning to an uncommented copy of the BGB in search of legal advice, either, he might have it on his bookshelf or not.

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