Language, Culture, Legal Traditions, and International Criminal Justice

Abstract

Our view of the world is to a large degree a function of our own language and culture. English has become the lingua franca in international legal academic and practical dialogue, and there is a related concern that the Englishor its direct descendant, Anglo-Americanintellectual and legal culture has drawn a thick veneer over the canvas of international criminal law as well. The differences in linguistic and cultural influence need attention as they are a primary determinant of that dialogue, not merely in form but possibly also in substance. The conversation, even in the lingua franca, does not seem to happen with the same intensity from all sides to the exchange, because in addition to the question of ability to engage there seems to be a difference in willingness or interest based not merely on lack of language command, but possibly also on cultural aversion. The main systemic divide in the conversations in international criminal law still is the dichotomy between common and civil law, and coinciding with that between a practical/pragmatic approach on the one hand, and a doctrinal/principled attitude on the other. This paper will attempt to elaborate on some of the conceptual and cultural differences, beyond the superficial labels often used in the discussion, such as "adversarial vs. inquisitorial", "statute vs. judge-made law" etc., as they may impact on the creation of international criminal law.

Article 36. Qualifications, nomination and election of judges

“…English was thus more than twice as frequent as the 14 languages represented only once each, it accounted for more than the sum of all other multiple languages except French. English and French together were roughly double the percentage of the other multiple languages and still about 15% above the sum of all other languages 21 . A previous study of ICTY judges disclosed a difference in multiple language capacity between judges from common law backgrounds on the one hand and civil law backgrounds on the other, with the latter on average being the more polyglot of the two 22 .…”

Is critique part of the practice of international law?

“…The ICC, in contrast, is a social space subject to significant fracturing, as the contradictions of its project between traditions 175 and teleology 176 have curbed the development of intersubjective knowledge. Its actors face a perpetual anxiety with near constant pushback from external parties, and performance review describing the workplace culture as toxic.…”

Towards a Conceptualization of Legal English as a Lingua Franca?

“…Thus, the differences between systems make the use of a common language a necessity, rather than a chimera, and, consequently, a fascinating topic for investigation. What is more, at least in Europe, the two main legal traditions of Civil Law and Common Law are gradually converging (Orts Llopis, 2009; for a discussion of the distinction between the two systems, and its partial and relative nature, see Bohlander, 2014). In this respect, the use of LELF may be seen as both a cause and a consequence of this process, determined primarily by the need for mutual understanding and the integration of common practices and procedures.…”

“…On a practical note, another issue which should be taken into account is that existing legal doctrines are not autonomous crystallized concepts, but rather they derive from a given contextual framework, and the divergent understanding of legal doctrines may even affect the very fulfilment of justice. For instance, the question of the appropriateness of the usage of English in international criminal law is extensively discussed by Bohlander (2014). The author, by means of an example, analyzes the Lubanga Trial (Note 1) judgment and shows that more than 80% of the sources used in the judgment were in English.…”