Conferring Official Language Rights in Legal Communication

This chapter asks two questions about the nature of official language rights. The first is a practical one—whether and how official language law enhances language rights for the communities concerned. A comparative approach is taken to answer this question, which will also reveal situations where official language rights conflict with existing legal principles and norms. The second question is a philosophical one. Should language rights derived from official status be distinguished from language rights derived from fair trial rights? Since natural justice rationale only seeks to ensure effective communication and fair trial, and is indifferent to the choice of particular languages, the enlargement of language rights through official status must be justified through additional principles. Courts in multilingual jurisdictions have been trying to come up with persuasive principles that justify the derivation of language rights from official status. Such justifications include a constitutional promise about linguistic equality, the cultural survival of official language communities, and respect for the cultural identity of these communities.

Interpreting Multilingual Legislation

This chapter discusses the intricacies of interpreting multilingual legal texts. Multiplicity of legal languages potentially amplifies linguistic indeterminacy, which in turn contributes to legal indeterminacy. It would be a nightmare for a bilingual or multilingual jurisdiction if the application of two or more language versions of the law to the same case leads to two or more different legal outcomes. Such legal indeterminacy could give rise to chaos. Indeed, these nightmares have periodically haunted bilingual and multilingual jurisdictions. Established rules of legal interpretation, having been derived with the assumption that there is only one official text of the law, are not always helpful in resolving interpretation problems in a multilingual jurisdiction. In multilingual jurisdictions, the authority of the law is shifted away from the text that represents it. The cost of linguistic inclusivity is that each constituent group of a multilingual jurisdiction has to surrender predictability of legal outcome derivable from a single version of the law.

Institutionalizing Multilingualism

This chapter compares some of the ways official multilingualism has transformed public institutions across jurisdictions, and comments on why these transformations fall short of expectations. This gap is a product of, among other things, the general lack of specificity in constitutional provisions. The status of official or national language does not carry a fixed legal meaning. What does a government have to do to “enforce” an official language status? Polities that have granted official language status diverge in their understanding of the legal implications of such a status, their degree of commitment, and their corresponding institutional adaptation. The chapter goes on to consider the significance of the current state of legal implementation. It is observed that bureaucratic and funding structures of official language offices limit their power and representativeness, and attempts to create linguistic equality may inadvertently enlarge inequalities among speakers of the same language.

How Official Multilingualism Works

This chapter spells out major sociopolitical forces that have contributed to the widespread adoption of official multilingualism, and offers an explanation of how official multilingualism works through law. Jurisdictions that adopt multilingual law are primarily driven by pragmatic rather than normative forces. Official language law can perform a plethora of instrumental functions because such law works chiefly through its symbolic power. This discursive reading of law is contrary to the dominant, positivist view of law as command of a sovereign backed by force. Although symbolism is sometimes defined in opposition to what is real or substantive, law that works through symbolism is not necessarily empty in content or limited in impact. In fact, its semiotic flexibility has allowed it to be used to pursue a wide range of instrumental goals, which consist mostly of political and economic capital.

Mapping a Global Phenomenon

Having explored how official multilingualism has emerged as a product of historical and sociopolitical development, this chapter moves on to survey the extent of the phenomenon in the contemporary world. The data set offers a panoramic view of jurisdictions around the world that are officially bilingual or multilingual. Although there is not enough room to provide a detailed history of any particular jurisdiction, the chapter annotates the data and makes a number of generalized observations. The global data provide a sense of scale that speaks for itself and allow one to observe patterns and trends that help make sense of the phenomenon. Although linguistic demographics and the ideology of linguistic nationalism have a role to play, they are insufficient to explain the data. Official multilingualism is largely a post-colonial legacy, but there is also an emergent trend that official language policy responds to market forces under late capitalism.

Concluding Remarks on Linguistic Equality, Strategic Pluralism, and Linguistic Justice

Since equality is a foundation of liberalism and a moral norm, the value of linguistic equality is easily taken for granted. This chapter offers a characterization of linguistic equality as it is claimed and practiced in bilingual and multilingual jurisdictions today. It argues that shallow equality must not be confused with equality that is difference-blind and universal. Both symbolic jurisprudence and shallow equality are properties of a policy of strategic pluralism. The symbolic nature of official language law and the shallow character of linguistic equality do not prevent official multilingualism from serving legitimate goals. Official multilingualism is not morally superior to official monolingualism. Both are viable strategies for the survival of a polity. Although this book has been primarily concerned with the descriptive and analytical questions of how to make sense of official multilingualism, it concludes with some insights that may illuminate normative questions about linguistic justice.

Introduction

This chapter introduces the intertwined relationship between language, identity, politics, and law, and provides a road map for the book. It begins with an example of a language conflict that invites the reader to consider complexities involved in the promulgation of an official language law. It then outlines the steps that this book will take to help the reader make sense of multilingual legal orders today. It sets the stage for the project by reviewing existing literature that has tackled related issues in various academic fields, including linguistics (and its subfields such as sociolinguistics, linguistic ecology, and language policy and planning), law, and political science, and evaluating the limitation in scope and reach of such works.

Creating Multilingual Legal Texts

This chapter assesses the challenges in producing multilingual legal texts, especially where these texts are supposed to be equally authentic. The first of these challenges is translation. The risk is that a failure to achieve translation equivalence compromises legal certainty. Equivalence aside, there are also deeper political tensions in the process of legal translation: power struggles among speakers of the source and target language may be reflected in translation strategies adopted. Apart from translating the law, the legislature also needs to revise drafting procedures to ensure that different language versions of the law are consistent with one another, and that they respect linguistic equality where it is emphasized by the law. Where the new official language has not developed a legal vocabulary and a formal register, further linguistic engineering may be necessary. Sometimes ideological engineering is also called for.

Tracing Linguistic Management through Time

This chapter offers a historical account of how polities have operated in a linguistically diverse society. Although societal multilingualism has been commonplace throughout human civilization, official multilingualism is clearly a modern phenomenon. However, whether the use of a language is mandated by policy or law, or is a matter of convention, polities have always had to deal with linguistic diversity. Therefore, instead of comparing the language(s) that receive official recognition, the chapter uses law as a site to examine the internal language practice of a polity in different historical periods. The account shows that official multilingualism today, encapsulating contemporary ethics and politics, has characteristics that distinguish it from treaded paths of linguistic management.