Why Write Statutes Which Some People Cannot Read?
Supreme Court Law Review (2d), Forthcoming
16 Pages Posted: 2 Oct 2020
Date Written: August 17, 2020
Bilingual statutes pose a practical and philosophical problem. Many members of the community whose actions are regulated by such statutes will be unable to read them. Why, then, write statutes in language that will be incomprehensible to many? Answering this question helps to ventilate important philosophical and practical issues about legislative drafting and to reveal the nature and purpose of legislation. In this paper, I will consider the various potential justifications for bilingual legislation, concluding that the justification offered in Canada's Official Languages Act, championed by Pierre Elliott Trudeau, is the most persuasive.
First, I consider a knowing the law justification: perhaps bilingual statutes are produced to ensure that speakers of both national languages can understand the laws to which they are subject. However, if the members of a community cannot understand a given language they will not be able to understand laws written in that language. Moreover, in systems of bilingual legislation, knowledge of both official languages might be a pre-requisite to understanding the law. Second, I consider a better law justification: perhaps the discipline of producing multiple language versions of legislation may itself be a justification for bilingual legislation – bilingual legislation might simply be better than unilingual legislation. Whether this is true, however, is difficult to measure and, in any event, if some members of the community cannot understand statutes then it is hard to say bilingual law is better law. Third, I consider whether bilingual statutes simply reflect the balance of political power in a given jurisdiction at a given time. But this justification tends to collapse into the knowing the law justification and, moreover, struggles to explain the passion with which minority groups put their claims for official language status.
Lastly, I consider a dignitarian justification: perhaps producing bilingual legislation is a mark of respect for speakers of all the official languages of a jurisdiction. Canada’s Official Languages Act puts the point very neatly. According to s. 2 the purpose of the Act is to "ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions..." Even if individuals do not read the laws; even if bilingual laws are not better laws; even if bilingual laws cannot be understood and perforce could not be better laws; bilingual legislation can nonetheless serve an important dignitarian function by providing a potent symbol of respect for a country’s official language communities. This is the most persuasive of the justifications for bilingual legislation.
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