What the Analytical Jurisprudent Can Learn from the Linguist: A German and Spanish Perspective

In his series of analytical jurisprudence podcasts, Scott Shapiro made a particularly insightful comment in reference to the Hart-Dworkin debate, which suggests a greater role for language in jurisprudence. In Law’s Empire, Dworkin argues that Hart’s Positivist theory, which claims that law is dependent on social fact, is simply giving a definition to the question ‘What is law?’, rather than answering the question of the very nature of law – what he terms the ‘semantic sting’. Dworkin’s theory is more complex, asserting that it is necessary to engage in political and moral argument to identify what law is. While Hart would simply need to refer to Acts of Parliament to identify a law in the UK, as our legislative process is a social fact, Dworkin would demand deeper analysis into the political and moral traditions of the UK to find a law. Shapiro refuted Dworkin's ‘semantic sting’, commenting that Hart's conception of law could not be a definition, since Hart is using the English language, and the concept of law exists outside these boundaries. 

This blog post demonstrates three ways in which language, using German and Spanish as examples, can unlock perspective which is missed by solely utilising the English language. First, in English we have one word for law, unlike languages such as Spanish and German, which misses the multi-faceted nature of law. Secondly, it is suggested that the English language may indeed misplace the debate between the Positivists and Natural Lawyers. Thirdly, the impact of civil law systems and Roman law on this linguistic understanding is considered. Finally, the blog post offers an observation about how language and its usage may be an indispensable tool to the jurisprudent. 

In Spanish there are two terms to express ‘law’: derecho and ley. There are subtle differences when one is used rather than another. One would say a professor of derecho, not ley, but one would say the ley regarding coronavirus. Derecho refers more to a general concept, whereas ley implies positive law. In German, there are three: Gesetz, Recht, and Jura. Gesetz means rule, and when not in plural form, can also mean system. Recht is more similar to a body of laws like the Spanish derecho, whereas Jura is law as a subject of study. In English, although we have many expressions surrounding law - such as equity, legal system, jurisprudence - these are all either peripheral features of law or portrayals of such features, rather than synonyms for the specific idea of law itself. In Spanish, these expressions are also found – -equidad, sistema legal, jurisprudencia– but, as mentioned, Spanish contains multiple ways of saying ‘law’ itself. 

This limit may cause issues for the English-speaking jurisprudent in many respects. What is ley might point one to Positivism, whereas what is derecho might point one to Natural Law. This suggests that other languages, such as Spanish and German, can pick up on subtle differences in the typology of law which is simply linguistically impossible in the English language. Indeed, through utilising this multiplicity found in other languages, we might come closer to finding law's ‘irreducible core', or even, the ‘central case' of law. Language utilised in this way may be a useful instrument for the legal philosopher in his quest to find an answer to the question of ‘What is law?’; an endeavour which is not specific to one country, one culture, or indeed, one language. Or perhaps, on the contrary, these linguistic observations could demonstrate the futility of a project to define law for the whole world, when the world has so many different ways to express the same concept. 

The limits of the English language may even call into question how we classically place the debate between the Positivists and the Natural Lawyers. Positivists like Hart argue that law is dependent on social fact. In contrast, Natural Lawyers contend that law is dependent on morality. Famously, to Hart, Nazi law is valid law, whereas Natural Lawyers argue that since these laws lack morality, they lack a key defining feature of law.^[1] Radbruch, arguably the most eminent Natural Lawyer, was German. Robert Alexy, who followed in his footsteps, was also German. Germany is also a country which has adopted a Natural Law viewpoint in the German Federal Constitutional Court.^[2] Whilst it could be suggested that this is a result of culture, perhaps the difference lies in the German language's precision, which the English language lacks. In Radbruch's formula he says, 

‘da ist das Gesetz nicht etwa nur ‚unrichtiges’ Recht, vielmehr entbehrt es überhaupt der Rechtsnatur.’ – translated to English, this means, ‘the law is not just a ‘flawed’ law, rather it lacks completely the very nature of law.'^[3]

Observe, in the English translation, the repetition of the world ‘law’, as compared to the German version, which includes the variations of Gesetz, Recht and Rechtsnatur. This could be a demonstration of the subtle differences in the different words for law in German, which in turn, could replace the Positivism-Natural Law debate, and the common way in which it has been posed. Radbruch could be alluding to a higher form of law which is morally acceptable, and also a lower form of law, which could include the moral atrocities to which Positivists refer. 

This idea is reflected in the Spanish language. For example, the Spanish constitution states that Spain is ‘un estado del derecho’, meaning that it is a state which follows the rule of law. Note how derecho has been utilised to develop this concept in Spanish, rather than ley, despite both of them translating to law in English. Derecho meaning a higher, morally perfect, form of law could be further supported by the fact that another meaning of derecho is ‘right’ – for example, derechos humanos are human rights. This multiplicity of law’s potential variable forms could reset the boundaries of many debates within jurisprudence. 

The specificity of the German language is further reinforced by the German Federal Constitutional Court. In BVerfGE 23 in 1968 the court affirmed the possibility of revoking the legal validity of National Socialist ‘legal’ provisions when they conflict with fundamental principles of justice so forcefully that the judge who elected to apply them or to acknowledge their legal consequences would be administering lawlessness [Unrecht] rather than law.^[4] Note that the court uses Recht to refer to this higher ideal of law, as Radbruch does. Perhaps the Positivists and the Natural Lawyers are arguing over each other, rather directly meeting in conflict. Social facts could explain ley and morality could be necessary for derecho.

The tradition and legal history of the respective countries may be significant in further explaining this. Spain and Germany are, of course, civil law systems, which are more closely related to Roman Law. The influence of Roman Law is much more notable in these countries, in contrast to the United Kingdom. We see this for example, through Spanish law of contracts rather than English law of contract. This may have important explanatory power in two ways. Roman Law was multifaceted in its structure, allowing multiple sources and types of law. We see this, for example, through the ius honorarium produced by jurists, as well as ius gentium (law common to all people) and ius naturale (natural law; not to be confused with Natural Lawyers). There were also instances of law which adhered to our more modern understanding of law, such as the edictum of the Emperor. Importantly, posited law is referred to as leges, whereas the broader concepts such as ius honorarium, are ius. This emulates a similar relationship between ley and derecho. Perhaps the more potent influence of Roman law upon Spain and Germany as civil law systems is demonstrated through this multifaceted linguistic approach, and the understanding of law in the German Federal Constitutional Court. Further, the role of Latin may be significant. Latin has multiple words for ‘law’ including ius, jus, and lex.^[5]The heightened endurance of Roman Law in the civil systems may have fossilised this linguistic distinction into the language and legal thought of these countries.  This second point may have more relevance in Spanish, a Latin language. The understanding of law and language may be an heirloom of varied legal tradition, and exploring this would further hone the analytical jurisprudent’s thoughts. 

What this discussion thus far has also demonstrated is the importance of how we utilise the word ‘law’, both in English and in other languages. How we use a certain word in English can inform us about the word and the concept’s meaning. Due to a rapidly changing society, words separated from their context may be completely unfamiliar. That is to say, many words are relics of their previous use. For example, the word ‘rewind’ by itself may mean very little to my younger brother who has never used video tapes, but makes sense to him when he uses the rewind control on the TV. So, when explaining the concept of rewinding to him, using the explanation of a video tape would be pointless. How and when we use the word ‘law’ in English may have similar instructive effects. In modern Western society, law is often heralded as something positive, and something moral. For instance, the Spanish Constitution would not enshrine itself as a state of law, un estado del derecho, if there were mostly negative connotations associated with the law. Similarly, the European Convention on Human Rights and its inclusion of the ‘rule of law’ is a demonstration of the positive connotations surrounding the use of the word ‘law’. Although this is a different concept to law, it utilises the word ‘law’. How the word ‘law’ is used could be a key to understanding its modern nature. Since language evolves, this could place greater importance on the work of modern jurisprudents. Perhaps the law Hart was talking about in The Concept of Law, was law as conceived in 1961, rather than law as conceived in 2020.

This post raises some questions about the study of jurisprudence, and the increased attention which needs to be paid to language. Though some points represent roots rather than fully developed theories, the use of the word 'law' in the modern day, and its meaning in other languages should raise doubts as to the monopoly that law as a word has on the study of jurisprudence to the English-speaking jurisprudent.