Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders

321 Pages·2019·18.396 MB·Oxford Studies in Language and Law

by  Janny H.C. Leung

Shallow Equality and Symbolic Jurisprudence
in Multilingual Legal Orders
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Language Influences Jurors in Capital Cases Shallow Equality and Symbolic
Robin Conley Jurisprudence in Multilingual Legal Orders
Janny H. C. Leung
Shallow Equality and Symbolic
Jurisprudence in Multilingual
Legal Orders
Janny H. C. Leung
1
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Library of Congress Cataloging- in- Publication Data
Names: Leung, Janny H. C., author.
Title: Shallow equality and symbolic jurisprudence in multilingual
legal orders / Janny H. C. Leung.
Description: New York : Oxford University Press, 2019. |
Series: Oxford studies in language and law | Includes bibliographical references and index.
Identifiers: LCCN 2018031469 (print) | LCCN 2018041224 (ebook) |
ISBN 9780190210342 (updf) | ISBN 9780190210359 (online content) |
ISBN 9780190930608 (epub) | ISBN 9780190210335 (hardback)
Subjects: LCSH: Linguistic rights. | Multilingualism. | Linguistic
minorities—L egal status, laws, etc. | Law— Language. | Discrimination in
language. | Language policy. | BISAC: LANGUAGE ARTS & DISCIPLINES /
Linguistics / Sociolinguistics. | LANGUAGE ARTS & DISCIPLINES /
Linguistics / Historical & Comparative.
Classification: LCC K3259 (ebook) | LCC K3259 .L48 2019 (print) |
DDC 340/ .14— dc23
LC record available at https://l ccn.loc.gov/ 2018031469
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
For the struggle against disciplinary boundaries.

CONTENTS
Acknowledgments ix
Synopsis xi
Introduction: Language and Law in the Whirlpool of Politics 1
Making Sense of Multilingual Legal Orders 4
A Search for Meaning at a Multidisciplinary Crossroads 8
PART I Causes
1. Tracing Linguistic Management through Time: Law as a Lens 17
Functional Multilingualism in Medieval Class Society 18
Colonial Diglossia in European Imperialism 22
Linguistic Nationalism and the Birth of Monolingual Modern States 26
Linguistic Rivalry during Decolonization 31
Parallel Multilingualism in International Legal Order 33
Characterizing Contemporary Legal Multilingualism 35
2. Mapping a Global Phenomenon: The Spectacle of Official
Multilingualism 39
Some Precursors 40
Inclusion Criteria 41
Contestable Issues 43
Bilingual and Multilingual Sovereign States 49
Bilingual and Multilingual Non- State Jurisdictions 69
Jurisdictions with De Facto Bilingual or Multilingual Law 77
Observations 78
3. How Official Multilingualism Works: A Symbolic Jurisprudence 87
The Legal and Political Meaning of Status Labels 88
Official Rhetoric 91
The Excluded Others 93
The Symbolic Jurisprudence of Official Language Law 96
Identity Formation and Norm Creation 116
viii Contents
PART II Consequences
4. Institutionalizing Multilingualism: Watchdogs on a Leash and the
Bureaucratic Trap 123
Negotiating the Legal Meaning of Language Status 123
Mechanisms for Implementation and Their Limitations 130
Resource Constraints 141
Reality Check: Status Quo, Undisrupted 150
5. Creating Multilingual Legal Texts: Domination and Dependence 157
Challenges in Legal Translation 158
Reinventing Legal Drafting: Translation and Beyond 167
Constructing and Developing a Legal Language 171
From Linguistic to Ideological Engineering 172
The Impossibility of Textual Equality 180
6. Interpreting Multilingual Legislation: The Limits of Language and
the Certainty of Uncertainty 183
Multiple Expressions, One Law? 183
To Be Equal or Not to Be Equal 185
Equal Authenticity 187
Textual Equivalence as Legal Fiction 190
Legislative History and Implicit Preference 192
A Teleological Approach to Legal Interpretation 194
Routine Comparison and Textual Interdependency 197
The European Union as a Radical Example 199
Rethinking Legal Interpretation 204
7. Conferring Official Language Rights in Legal Communication: Access to
Justice and Conflict of Laws 209
The Notion of Language Rights 210
Official Language Rights in Multilingual Courtrooms 213
The Language Criterion in Jury Selection 233
Unrepresented Litigants 243
Paradox of Language Rights 246
8. Concluding Remarks on Linguistic Equality, Strategic Pluralism,
and Linguistic Justice 249
Inherent Dilemmas about Upholding Linguistic Equality 250
The Shallow Character of Linguistic Equality 254
The Linguistic Justice Debate 259
Pluralism as a Strategy 262
A Tale of Caution and Opportunity 264
Bibliography 267
Index 295
ACKNOWLEDGMENTS
This book would not exist if my colleague Christopher Hutton did not infect
me with the idea that studying law is “fun.” Two post-d octoral degrees later, my
exploration in language and law continues. His thirst for knowledge, character-
istic humility, caring for humanity, and endless patience have been a constant
source of inspiration.
I am indebted to Alan Durant, a long- term collaborator whom I have
learnt a great deal from. I have not met a more conscientious academic and a
more detail- minded thinker, writer, and reader.
I am also grateful to Janet Ainsworth, Lawrence Solan, Peter Goodrich,
and William Alford for their unfailing support, continuous encouragement,
and professional guidance at different stages of my intellectual pursuit.
The manuscript has benefited from my discussions with Daniel Markovits
and Michael Reisman from Yale Law School; constructive feedback I have re-
ceived from Brook Bolander, Christopher Hutton, and other colleagues from
the School of English and Faculty of Law at the University of Hong Kong; as
well as editorial support from Hallie Stebbins and Hannah Doyle at Oxford
University Press.
My gratitude extends to Jennifer Allison (librarian from the Harvard Law
School Library), and my research assistants Brian Chan, Zena Prodromou,
Patrick Jiang, and Matthew Yeung.
The time and resources required for the undertaking of this project were
made possible by the generous support from a Hong Kong government grant
(HKU 747812H of General Research Fund), a visiting scholarship from the
Harvard Yenching Institute in 2013–2 014, and a Universitas 21 fellowship
that supported my stay at McGill Law School during the revision period of
the book.
Last but not least, I would like to thank my parents, Leung Yung Fuk and
Ng Man Yin, for their love and trust through the years, and Joseph Yang for
always challenging me to think deeper and harder.
ix