On the linguistic design of multinational courts: The French capture

Abstract

This article discusses the importance of language in the institutional design of European and international courts, which I refer to as "linguistic design." What is at stake in the choice of a court's official or working language? Picking a language has far-reaching consequences on a court's composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts' inner workings. This is what I call the "French capture."