Transsystemic studies in Law: One eye on the left for the French, the other on the right for the English

Posted on Thursday, May 4, 2017

“My objective – to defend legal bilingualism – is not only ideological,” says Law professor Johanne Poirier. “It is primarily pedagogical.”

By Johanne Poirier

All first-year courses in the Faculty of Law at McGill are required and are offered in both English and French. In Quebec, the law has been “mixed” since 1774. Public law (constitutional, criminal and administrative law) is derived from the British system (common law), while private law (contracts, labour relations, insurance, family law, etc.) is derived from the French “civil” system. Quebec lawyers – especially those who have studied in the Faculty of Law at McGill – have recognized this linguistic and normative duality for many years.

I teach constitutional law in French to first-year students. Roughly half of my students come from outside Quebec, and 40 per cent of them have a mother tongue other than French. Together, we learn a “new foreign language” – public law. Although our “lingua franca”  in class is French, the students live in a world that is mainly English-speaking. However, the somewhat fragile “bilingualism” of the Faculty of Law does hold immense pedagogical potential.

I insist that the students read Supreme Court decisions, and most legal texts, in both languages, so they learn this new vocabulary in both French and English. When I was a law student (in the 1980s and ‘90s), texts were printed in both languages, and we read the printed versions. While many lawyers used to ignore one column, that was not the case for my classmates… Today, with everything on the Internet, accessing bilingual versions of Supreme Court case law or federal legislation requires an additional step – simple but deliberate. I state firmly that this step must become systematic.

My objective – to defend legal bilingualism – is not only ideological. It is primarily pedagogical. This way, we learn to read in French with the left eye, and at the same time check what we’ve just read in the English version with the right eye (or vice versa). And so we read the same crucial passages twice, which makes it easier to understand and memorize the text. This brings up some questions: Why did they use the term Y to translate X, instead of W? Was it a translation error or an intentional difference? Is it helpful to compare the terms when we’re trying to figure out what the legislator, government or judge really meant to say?

A recent example of this type of question was Prime Minister Trudeau’s Mandate Letter to the members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. Those who read the letter (available online, in a commendable gesture of transparency) in English noted that candidates were required to be “functionally bilingual.”  That concept is not unequivocal, and it has stirred up some debate. A McGill student’s immediate reflex would be to find the French version, in which the chosen candidates were required to be “effectivement bilingues.”  At the mere mention of the two criteria, bilingual people would either burst out laughing (the difference is so obvious!) or throw up their hands (either no one in the Prime Minister’s Office was paying attention to the French version, or the ambiguity was deliberate and strategic). For most bilingual lawyers, there is an undeniable difference of degree between “fonctionnellement bilingue” and “effectivement bilingue.” In English, there is a difference between being “functionally” and “genuinely, really, effectively, actually bilingual,” terms that are closer to “effectivement”…. What did the Prime Minister really intend to say?

This method, which requires reading two texts side by side – constantly going back and forth – means extra work for McGill students, work that the vast majority of lawyers trained elsewhere in Canada are spared. But this way of reading – which should become automatic over time – is a terrific technique for understanding, decoding and creating Canadian law. Pluralism, which is one of the values we encourage our students to respect and promote, is also based on a methodology that precludes a single reading, and thus, a single way of thinking.

Johanne Poirier is a full professor in the Faculty of Law and holder of the Peter MacKell Chair in Federalism

 

 

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