Taking Language Seriously: An Analysis of Linguistic Reasoning and Its Implications in EU Law

• Author: Susanna Lindroos‐Hovinheimo,Elina Paunio
• Published date: 01 July 2010
• Date: 01 July 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00515.x

eulj_515395..416

Taking Language Seriously: An Analysis

of Linguistic Reasoning and Its

Implications in EU Law1

Elina Paunio2and Susanna Lindroos-Hovinheimo3

Abstract: This article discusses legal reasoning at the European Court of Justice (ECJ).

The following questions are addressed. First, the authors look at the way linguistic

arguments are used in ECJ case-law. Second, they consider whether the requirements of

legal certainty, and more specifically that of predictability, may be fulfilled by reference

to linguistic arguments in a multilingual legal system. The theoretical starting-point is that

of open-endedness of language: no means exists to definitely pin down the meaning of

words. Defining the meaning of words in a legal context is necessarily a matter of choice

involving evaluative considerations. Consequently, when the ECJ uses linguistic argu-

ments to justify a decision, it is an active agent choosing the meaning of words in a specific

case. Essentially, the authors argue that legal reasoning based on linguistic arguments is

particularly problematic from the viewpoint of legal certainty and predictability. In this

respect, the key importance of systemic and teleological argumentation is emphasised in

assuring convincing, acceptable and transparent legal reasoning especially in the context

of multilingual EU law.

I Introduction

We are unable clearly to circumscribe the concepts we use; not because we don’t know their real

definition, but because there is no real ‘definition’ to them. To suppose that there must be would be like

supposing that whenever children play with a ball they play a game according to strict rules.4

This article addresses one particular aspect of law and its relation to language,

namely that of judicial adjudication. The focus is on the legal reasoning of the Euro-

pean Court of Justice (ECJ). In particular, we discuss problems related to the use of

language and more specifically, linguistic arguments in justifying legal decisions and

1An earlier version of this article was published in the Journal of the Finnish Lawyers’ Association, (2008)

Lakimies 230, with the title ‘Kielellisen tulkinnan fiktio EU-oikeudessa’.

2Lawyer linguist, European Court of Justice and doctoral student, member of the Centre of Excellence in

Foundations of European Law and Polity, University of Helsinki Faculty of Law. Email: elina.paunio@

helsinki.fi. Views expressed in the article are solely those of the authors.

3Doctoral student, member of the Centre of Excellence in Foundations of European Law and Polity,

University of Helsinki Faculty of Law. Email: susanna.lindroos@helsinki.fi.

4L. Wittgenstein, The Blue and Brown Books (Blackwell Publishing, 2nd edn, 1969), 25.

European Law Journal, Vol. 16, No. 4, July 2010, pp. 395–416.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

interpretative choices in the context of multilingual EU law. In this respect, the article

also examines the implications of multilingualism for interpreting EU law from the

viewpoint of legal certainty.

The legal reasoning of the ECJ is generally based on ‘the spirit, the general scheme

and the wording’ of the provision in accordance with the early ECJ judgment in the

Van Gend en Loos case.5Later on, the ECJ gave guidelines for interpreting Commu-

nity law inter alia in the CILFIT case.6It observed that interpreting a provision of

Community law involves comparing different language versions.7Every provision

must then be placed in its larger context and interpreted in light of Community law

as a whole in accordance with its objectives.8Although the ECJ has repeatedly held

that not only wording but also contextual and teleological considerations have to be

taken into account in interpreting EU law, it nevertheless continues to use linguistic

arguments in justifying its decisions. These arguments are often related to the ‘ordi-

nary meaning’ of the text in question, ‘everyday use’ of the word, or other linguistic

arguments.

The interrelationship between law and language is an interesting one: law is

expressed by means of language, language is its home. However, within the context

of law, language is used in a way that differs to some extent from the way it is

generally used as a means of communication between people. In addition to its other

communicative functions, language is also a medium for exercising power. The power

element inherent to languages is emphasised in the field of law. Essentially, language

is not only a neutral instrument for expressing the content of law, but also a tool with

which to mould it and control it. The way words are defined is a means for

structuring reality within the context of law. In EU law, the ECJ defines and names

legally relevant social facts. It determines the way words should be used in EU law.

In this respect, the ECJ is actually an active agent using its authority to decide on

meanings and on the most suitable interpretation of a given word, phrase, provision,

or a larger text. Such decisions concern the use of both legal and non-legal words

(although it is not clear whether a clear distinction between such words can really be

upheld).

The theoretical starting-point of this article is that a certain amount of indetermi-

nacy always exists in language in general and thus, in legal language as well. It

follows that indeterminacy is inherent to adjudication too, even when law is

expressed in one single language. By ‘indeterminacy’ we refer to such properties of

natural languages as linguistic vagueness, generality and ambiguity.9Indeed, in EU

law, multilingualism, based on the official EU policy of linguistic equality, adds to

5Case 26/62, Van Gend en Loos [1963] ECR 1. The model for interpreting Community law adopted by the

ECJ can be traced back to the Vienna Convention on the Law of the Treaties. Article 31 of the

Convention gives the general rule for interpreting international treaties. The starting-point is the ordinary

meaning of the treaty text followed by context and other interpretative methods. It should be noted,

however, that the ECJ has never explicitly referred to the Convention. And, in any event, the ECJ inversed

the order of interpretative methods provided in the Convention in the Van Gend en Loos case.

6Case 283/81, CILFIT v Ministère de la santé [1982] ECR 3415.

7Case 283/81, ibid, at para 18.

8Case 283/81, ibid, at para 20.

9See D. Cao, ‘Inter-lingual uncertainty in bilingual and multilingual law’, (2007) 39 Journal of Pragmatics

69, 70, who defines vagueness, ambiguity, and generality in the following terms: ‘[...]aword,phraseor

sentence is ambiguous if it has more than one meaning. [...]Anexpression is vague or imprecise if it

admits of borderline cases in actual use. [...]Anexpression is general when it is applicable to any one

of a number of things whose differences are not denied or necessarily overlooked’.

European Law Journal Volume 16

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