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The Civil Law, the Common Law, and the English Language – Challenges and Opportunities in Asia

  • Gary F BELL (a1)

Abstract

This article addresses three questions. First, what is the effect on the civil law in Asia of young (and old) academics adopting English, the language of the common law, as a second language – rather than a civil law language, either a Continental European language (French, German etc), or another Asian civil law language (Japanese, Chinese etc)? Second, what is the effect on the civil law of civil law jurists pursuing their graduate studies not only in English but also in common law jurisdictions, rather than in civil law jurisdictions and returning home to become academics or practicing lawyers in civil law jurisdictions? Finally, since English is the lingua franca of civil law jurists in Asia, how can we adapt English to the civil law so as to make English one of our civil law languages?

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Associate Professor and Director of the Asian Law Institute (ASLI), Faculty of Law, National University of Singapore (NUS). My thanks to Alan Koh, Chong Siew Men, Wilson Tay, and Ayesha Kalpani Wijayalath, Research Associates at the Centre for Asian Legal Studies (CALS) for their research assistance on this article. Any shortcomings or mistakes, and all opinions, are entirely mine. My thanks to CALS and ASLI at NUS for supporting my participation at the conferences entitled ‘The State of Comparative Law in Asia’ and ‘Teaching Comparative Law in Asia’ on 27 and 28 September 2017, which led to this article and this Special Issue.

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1. In this article, when I use the expression second language, I mean the first non-domestic language learned and still spoken. It is often the third or fourth language learned. For example, many in Indonesia would have a local language as their mother tongue – Javanese is spoken by 84 million Indonesians – and their second language would the national language, Bahasa Indonesia, which is the language of instruction in all Indonesian public schools. English would therefore be their third language, unless of course they have learned Arabic as a third language and maybe another local language as their fourth, in which case, English would be their fourth or fifth language!

2. There are of course international meetings where another language is used as the common language – meetings of the Francophonie, and in law, for example, the meetings in French of the Organisation pour l'harmonisation en Afrique du droit des affaires (OHADA) (the Organization for the Harmonization in Africa of Business Law). Similarly, many international meetings are held in Spanish, in Arabic, or in Russian. But when an international meeting is held in a region (for example in Asia) or an organization (for example, the EU and the UN) that lacks a natural common language, English is usually the common working language of choice.

3. Simons, Gary and Fennig, Charles D (eds), Ethnologue: Languages of the World (12th edn, SIL International 2017).

4. ‘English is gaining ascendancy, if not dominance, with international exchanges in the field increasingly conducted solely in that single language, whether in scholarly conferences, in journals targeting an international readership, or in university classes where professors and students do not share a native language.’: Curran, Vivian Grosswald, ‘Comparative Law and Language’ in Reimann, Mathias and Zimmermann, Reinhard (eds), The Oxford Handbook of Comparative Law (OUP 2006) 676.

5. It should be noted that some civil law law schools now offer LL.M. degrees in English and some allow PhD dissertations to be submitted in English. There are many such programmes in the Netherlands, but most do not focus on the civil law in the private law sense, and even if they do focus on private law, they focus more on European law and comparative law (mainly the common law).

6. Both countries also have other non-Western traditions in their legal system.

7. Although Malaysians could study the civil law in Indonesia (their language being very close to the Indonesian language), this in fact rarely happens; the movement is the other way around – Indonesians pursue graduate degrees in Malaysia to learn the common law. An increasing number of young Hong Kong jurists are now more fluent in Mandarin and some have started studying mainland Chinese law in that language.

8. For example, Macao and East Timor had legal systems functioning mainly in Portuguese until the end of Portuguese rule relatively recently (in 1975 in East Timor, but to be replaced by the Indonesian language, a language not indigenous to East Timor). This is not without parallel in many common law jurisdictions where the common law, to this day, is practised in English, a language that the vast majority of the population in these countries either do not speak or do not speak fluently.

9. The best-known example of a complete rejection of foreign law is Cambodia, where Pol Pot destroyed any legal traditions present there by killing the lawyers.

10. On the teaching of the civil law in Japan, see Oda, Hiroshi, Japanese Law (3rd edn, OUP 2009) 19: ‘Lectures were initially given in foreign languages, since it had been difficult to translate legal concepts of European origin into Japanese. It was only in the 1890s that it became possible to give lectures in Japanese.’.

11. ‘Yet even with the arrival of western law two offsetting and related phenomena became visible. The first was the making-over (Japanisierung) of western models in their actual operation; the second was the nesting of the entire concept of formal, civil law in the larger context of informal Japanese normativity. So, you have today a Civil Code in Japan with very few lawyers, very few judges and very few lawsuits, comparatively speaking. The restraint is clearly informal.’: Glenn, H Patrick, Legal Traditions of the World: Sustainable Diversity in Law (5th edn, OUP 2014) 346.

12. Oda (n 10) 115.

13. Oda (n 10) 115ff.

14. For a comparison between the doctrine on the law of novation in Indonesia and France, see Bell, Gary F, ‘The Importance of Private Law Doctrine in Indonesia’ in Lindsey, Tim (ed), Indonesia: Law and Society (2nd edn, Federation Press 2008) 363375.

15. These colleagues did their graduate studies in their own jurisdiction and have therefore been trained entirely in the civil law or the common law.

16. Seoul University School of Law, ‘Faculty Members’ (SNU Law) <http://law.snu.ac.kr/page_en/professor_list.php> accessed 31 May 2019.

17. Thammasat University Law Faculty, ‘Faculty Lecturers’ (Thammasat Law) <http://web.archive.org/web/20170922115908/www.law.tu.ac.th/en/people/lecturers> archived 22 September 2017.

18. Universitas Indonesia, ‘Pengajar [Faculty]’ (Universitas Indonesia) <http://law.ui.ac.id/v3/personalia/pengajar/> accessed 31 May 2019. The information was complete only for permanent full professors (Guru Besar Tetap). For other lecturers, the information was computed whenever it was available, but it was generally not available on the website. With full professors being more senior, it is even more surprising that so few of them have been trained in places like the Netherlands. It further shows that colleagues studying abroad in English in common law jurisdictions is not a recent phenomenon in Indonesia.

19. National Law School of India University, ‘Faculty Directory’ (National Law School of India University) <www.nls.ac.in/index.php?option=com_content&view=article&id=1031&Itemid=58> accessed 31 May 2019.

20. National University of Singapore, ‘Academic Profiles’ (NUS Law) <https://law.nus.edu.sg/about_us/faculty/staff/staffdiv.asp> accessed 31 May 2019. I did not take into account emeritus professors, part-time colleagues, lecturers, teaching assistants, or Sheridan Fellows.

21. Please note that although NUS has a total of nine colleagues (12%) with at least one graduate degree from a civil law jurisdiction, only two are local colleagues – most are foreigners who come from civil law jurisdictions.

22. Including in the case of Thammasat, where three colleagues studied abroad in both civil and common law jurisdictions.

23. Satrio, J, Hukum Perikatan – Perikatan Yang Lahir Dari Perjanjian – Buku I [The Law of Obligations – Obligations Arising from Agreements – Book I] (Citra Aditya Bakti 1995).

24. See eg Gautama, Sudargo, Indonesian Business Law (3rd edn, Citra Aditya Bakti 2006). Gautama wrote mainly in the field of private international law; see Gautama, Sudargo, Hukum Perdata Internasional Indonesia [Indonesia's Private International Law] (Alumni 1992).

25. Bell, Gary F, ‘Codification and Decodification: The State of the Civil and Commercial Codes in Indonesia’ in Wang, Wen-Yeu (ed), Codification in East Asia – Selected Papers from the 2nd IACL Thematic Conference (Springer 2014) 4647.

26. I quote the original Dutch version, ie the version still in force, and unofficial translations in Indonesian and in English.

27. Indonesian Civil Code, arts 1851–1864.

28. Mangunsong, Rany, Indonesian Civil Code (Gramedia 2004).

29. This word, I am told, is very close to the Roman origin of the word ‘obligation’, which means a tie, a bind, or a connection – the same root (ligare) gave us the word ‘ligation’.

30. Although this book in the original French Civil Code is not entitled ‘Des obligations’, but rather, bizarrely, ‘Des différentes manières dont on acquiert la propriété’ [of the different ways of acquiring property]. The Dutch did a better job in choosing verbindtenissen (obligations) as the title for this book.

31. The original Dutch is ‘De bepaling van straf strekt in plaats van vergoeding van kosten, schaden en interessen, welke de schuldeischer lijft uit hoofde van het niet nakomen der hoofdverbindtenis.’ An Indonesian translation could be: ‘Penetapan hukuman dimaksudkan sebagai ganti penggantian biaya, kerugian dan bunga, yang diderita kreditur karena tidak dipenuhi perikatan pokok.’

32. Rahmanata, Antonius Mickey and Wirana, Andjar Pachta, Civil Code of Indonesia (Lembaga Penerbit Fakultas Ekonomi Universitas Indonesia 2009).

33. Old French Civil Code, art 1108 (emphasis added).

34. Dutch version of the Indonesian Civil Code, art 1320 (emphasis added).

35. Gautama translated similarly, see Gautama, Indonesian Business Law (n 24) 79 ff.

36. I am not suggesting that jurisprudence is not an important part of a civil law legal system, only that the civil law would not have formulated the role of jurisprudence in the way this art 8 does.

37. This classical theory has since been abandoned by the French reform of the Civil Code that came into force in 2016. See Rowan, Solène, ‘The New French Law of Contract’ (2017) 66 International and Comparative Law Quarterly 805.

38. Lorenzen, EG, ‘Book Review of Eugene Arthur Perkins, Philippine Business Law (New York, D Appleton & Co., 1920)’ (1921) 30 Yale Law Journal 319.

39. Kelemen, R Daniel and Sibbitt, Eric C, ‘The Americanization of Japanese Law’ (2002) 23 University of Pennsylvania Journal of International Economic Law 269.

40. Thomas L Blakemore, ‘Post-War Developments in Japanese Law’ [1947] Wisconsin Law Review 632, 653.

41. Maxeiner, James R and Yamanaka, Keiichi, ‘The New Japanese Law Schools: Putting the Professional into Legal Education’ (2004) 13 Pacific Rim Law & Policy Journal 303.

42. Jingen, Wang and DiMatteo, Larry A, ‘Chinese Reception and Transplantation of Western Contract Law’ (2016) 34 Berkeley Journal of International Law 44, 98: ‘In the case of China, it adopted the CISG as its (domestic) international sales law, which was the first transplant. China then used the CISG as a source in drafting the CCL [Chinese Contract Law], the second transplant.’

43. There are civil law undergraduate programmes in English, for example at the University of Indonesia, Gadjah Mada University (Indonesia) and Thammasat University (Thailand).

44. See eg Allard, France (ed), Private Law Dictionary and Bilingual Lexicons: Obligations (Yvon Blais 2003).

45. Asian Law Institute, ‘Home’ (ASLI) <https://law.nus.edu.sg/asli/index.aspx> accessed 31 May 2019.

46. West's Louisiana Statutes Annotated, Civil Code Series (1952, 17 vols). See also On, Alexandru-Daniel, ‘Making French Doctrine Accessible to the English-Speaking World: The Louisiana Translation Series’ (2012) 5 Journal of Civil Law Studies 81, 83 fn 9: ‘The translations of Planiol and Aubry & Rau are the ones that can be cross-referenced with the annotated series.’

47. Planiol, Marcel, Traité élémentaire de droit civil conforme au programme officiel des Facultés de droit [Elementary Treatise of Civil Law Consistent with the Official Curriculum of the Law Faculties] (2nd edn, Pichon 1903). An edition of this book was translated as Marcel Planiol, Civil Law Treatise, vols 1–6 (Louisiana State Law Institute tr, West 1959).

48. Gény, François, Méthode d'interprétation et sources en droit privé positif [Method of Interpretation and Sources in Private Positive Law] (2nd edn, Librairie Générale de droit et de jurisprudence 1919). An edition of this book was translated as Gény, François, Method of Interpretation and Sources of Private Positive Law (Louisiana State Law Institute tr, West 1963).

49. Aubry, Charles and Rau, Charles, Cours de droit civil français traduit de l'allemand de MCS Zachariae [French Civil Law Course Translated from the German book of MCS Zachariae] (2nd edn, Lagier 1844). An edition of this treatise published in several books was translated as Aubry, Charles and Rau, Charles, Obligations (Louisiana State Law Institute tr, West 1965); Aubry, Charles and Rau, Charles, 2 Property (Louisiana State Law Institute tr, West 1966); Aubry, Charles and Rau, Charles, 3 Testamentary Successions & Gratuitous Dispositions (Louisiana State Law Institute tr, West 1969); Aubry, Charles and Rau, Charles, 4 Intestate Successions (Louisiana State Law Institute tr, West 1971); Aubry, Charles and Rau, Charles, 5 Prescription (Louisiana State Law Institute tr, West 1972).

50. Baudry-Lacantinerie, Gabriel and Tissier, Albert, Traité théorique et pratique de droit civil – De la prescription [Theoretical and Practical Treatise of Civil Law – Prescription] (Larose 1895). An edition of this book was translated as Baudry-Lacantinerie, Gabriel and Tissier, Albert-Anatole, Prescription, Traité théorique et pratique de droit civil [Prescription, Theoretical and Practical Treatise of Civil Law] (Louisiana State Law Institute tr, West 1972).

51. For a full account of this translation project and its influence, see On (n 46).

52. Murchison, Kenneth M, ‘Judicial Revival of Louisiana's Civilian Tradition: A Surprising Triumph for the American Influence’ (1988) 49 Louisiana Law Review 1.

53. I was the founding Director of ASLI.

* Associate Professor and Director of the Asian Law Institute (ASLI), Faculty of Law, National University of Singapore (NUS). My thanks to Alan Koh, Chong Siew Men, Wilson Tay, and Ayesha Kalpani Wijayalath, Research Associates at the Centre for Asian Legal Studies (CALS) for their research assistance on this article. Any shortcomings or mistakes, and all opinions, are entirely mine. My thanks to CALS and ASLI at NUS for supporting my participation at the conferences entitled ‘The State of Comparative Law in Asia’ and ‘Teaching Comparative Law in Asia’ on 27 and 28 September 2017, which led to this article and this Special Issue.

The Civil Law, the Common Law, and the English Language – Challenges and Opportunities in Asia

  • Gary F BELL (a1)

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