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Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders$

Janny H.C. Leung

Print publication date: 2019

Print ISBN-13: 9780190210335

Published to Oxford Scholarship Online: March 2019

DOI: 10.1093/oso/9780190210335.001.0001

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How Official Multilingualism Works

How Official Multilingualism Works

A Symbolic Jurisprudence

Chapter:
(p.87) Chapter 3 How Official Multilingualism Works
Source:
Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders
Author(s):

Janny H.C. Leung

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190210335.003.0004

Abstract and Keywords

This chapter spells out major sociopolitical forces that have contributed to the widespread adoption of official multilingualism, and offers an explanation of how official multilingualism works through law. Jurisdictions that adopt multilingual law are primarily driven by pragmatic rather than normative forces. Official language law can perform a plethora of instrumental functions because such law works chiefly through its symbolic power. This discursive reading of law is contrary to the dominant, positivist view of law as command of a sovereign backed by force. Although symbolism is sometimes defined in opposition to what is real or substantive, law that works through symbolism is not necessarily empty in content or limited in impact. In fact, its semiotic flexibility has allowed it to be used to pursue a wide range of instrumental goals, which consist mostly of political and economic capital.

Keywords:   symbolism, jurisprudence, discursive, realism, official language, national language, rhetoric, symbolic law, symbolic capital, nationism

Law is a resource in signification that enables us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify.

—Robert Cover1

Synthesizing the observations made in the preceding chapters, this chapter spells out major sociopolitical forces that have contributed to the widespread adoption of official multilingualism, and offers an explanation of how official multilingualism works through law. Jurisdictions that adopt multilingual law are primarily driven by pragmatic rather than normative forces. This observation resonates with an instrumental view of law, as articulated by notable legal theorists including Rudolph von Jhering, Roscoe Pound, Oliver Wendell Holmes, and Karl Llewellyn, who see law as a means and not an end.2 Official language law can perform a plethora of instrumental functions because such law works chiefly through its symbolic power. This discursive reading of law is contrary to the dominant, positivist view of law as command of a sovereign backed by force. Although symbolism is sometimes defined in opposition to what is real or substantive, law that works through symbolism is not necessarily empty in content or limited in impact. In fact, its semiotic flexibility allows for interpretive potential that may stretch beyond what is envisioned by the lawmakers.

It is only when motivations are understood that predictions of behavior can be made. The motivations identified in this chapter can therefore help anticipate and explain some of the implementation patterns reported in the second half of this book. Analysis of motivations behind law or policymaking, (p.88) however, runs into the same kind of difficulty as encountered when one tries to identify legislative intention in legal interpretation. When a legislature works as a collective, with negotiations and trades taking place behind the scene,3 any claim of unitary intention has a fictive taste to it. Is it possible to talk about motivation or intention behind law-making, when whatever agreement reached is likely to be a political compromise, as captured by the text of the agreement but no more? Although political compromise is part and parcel of law-making processes, the widespread adoption of official multilingualism in some jurisdictions but not others, in contemporary times but not earlier, suggests that there may be system-wide factors at work. It is therefore necessary to look at not only the text of the law, but also the sociopolitical realities of multilingual jurisdictions, in order to assess what these factors may be.

The Legal and Political Meaning of Status Labels

Language is a marker of jurisdiction. The Latin roots of the term jurisdiction (juris for law and dictio for speech) corroborate the argument that the scope and force of law is founded and enacted through its language,4 which has the power to bring into existence what it utters. Under the Westphalian system of sovereignty, many modern states have indexed their power to govern and marked the boundaries of their sovereignty through unifying the languages spoken within their territory and granting official status to one or more of them. In supranational and international organizations, languages that receive special status often represent a common denominator or dominant sources of power in the organizations.

Labels of language status provide a textual clue to what specific language law is meant to do. Status label is not only an ideological choice but may reflect different “approaches to language management.”5 In supranational and international organizations, the most commonly adopted labels are official and working languages. Choice of labels is more varied in the national context. As shown in the survey presented in the previous chapter, a range of adjectives, such as official, national, working, authentic, link, and state,6 has been used to (p.89) describe languages with special legal status. Just like any other law, the law that assigns status labels to languages is a performative utterance—the act of declaring a language as an official or national language brings such statuses into existence. While the meaning of these labels cannot be determined based on language alone, the choice of label may nevertheless provide some pointers about the intentionality behind the laws that designate them. It is thus possible to make a few general comments about their meaning and their interrelationships. Among the labels, only official language and national language have “currency as terms of art in constitutional law,”7 and the rest of this section will focus mostly on them.

The most commonly used label is official language. An official language is a language of authority. At the national level, an official language has the backing of constitutional or statutory law as a language of the state. The literal meaning of the term creates the expectation that languages carrying this status will be used in official communication. As detailed in the previous chapter, the label of official language has been assigned to not only endogenous languages but also exogenous languages in some sovereign states.

According to the Compendium of Language Management in Canada (CLMC), “(w)ithout a doubt, the most prestigious status for any language is that of official language, because states or countries that grant it automatically commit to using that language in all of their operations.”8 Similarly, in Mentzen alias Mencena v. Latvia,9 the European Court of Human Rights (ECHR) argues that a country that declares a specific language to be the official language undertakes to guarantee its citizens the right to use it without intervention not only in their private life, but also in communication with public authorities when sending or receiving information in that language. There are caveats to the assumptions made in these statements. First, it is not true that jurisdictions that have one or more official languages automatically commit to using them in all of their operations. States have the sovereign power to assign meaning to their official language provisions. In fact, official status has been offered to extinct languages and sometimes only has a tokenistic value. Second, although it is true that an official language is more likely to be used in state operations than a language bearing other status labels, the symbolic significance of a national language during nation-building cannot be underestimated, and the meaning of one status label needs to be interpreted in relation to other labels that are also used in the same jurisdiction (such as the presence of working languages and national languages). The label national language carries strong emotive content. Due to its close ties with national identity and heritage, it is (p.90) normally reserved for endogenous languages. A national language has less legal weight than an official language and may or may not be used by the government in official communication. Owing to the influence of linguistic nationalism on Western nations for centuries,10 national language traditionally appears only in the singular. However, designation of multiple national languages is not uncommon today.

Sometimes languages receive official recognition without being assigned clear labels. The Welsh Language (Wales) Measure 2011, for example, falls short of declaring Welsh an official language but states that the Welsh language “has official status in Wales.” Although neither official status nor official language convey a clear meaning or confer any specific rights or duties, advocates argue that the latter formulation provides a stronger implication that the language will be used in official dealings.11

Despite their frequent appearance in national constitutions, terms such as official language and national language have a remarkably elusive meaning, and thus the adoption of one term over another does not itself guarantee strong commitment to the protection or promotion of a language. In fact, one supporting argument for the Canadian adoption of the term official language is its legal fuzziness, so that its meaning can be determined through jurisprudence over time.12 Similarly, policymakers did not worry that confirming the official status of Welsh would present too many difficulties because such confirmation, of itself, does not confer any specific duties or rights.13 Where more than one label is used within a jurisdiction, the significance of a label changes and a status hierarchy is created among the named languages. For example, if a state confers official and national status to different languages, chances are that the labels differentiate between functional and ideological concerns and that national languages are hardly used in national governance. This is the case in countries such as Cameroon, Mali,14 Mauritania, Niger, Republic of Congo, Republic of Guinea, Senegal, and Zambia. A Cameroon linguist laments that national languages in Cameroon “have no national function.”15 On the other (p.91) hand, where a jurisdiction has both official and working languages, a working language may displace an official language in official communication. This arrangement may be motivated by the multiplicity of official languages in some jurisdictions, where it has become impractical to operate in all official languages. With a strong procedural overtone, the term working language “seeks to remain above the kinds of ideological conflict and power struggle that can surround language selection by appealing explicitly to pragmatic concerns.”16

Official Rhetoric

Closely related to status labels is the rhetoric that supports their placement. On what basis do states justify rewarding one language with a higher legal status than another? The keywords they use fall into three clusters, which will be categorized as universal principles (such as equality and diversity), lineage (such as national identity and cultural heritage), and utility (such as economic value and political stability). These three rhetorical tropes can come into tension with one another.

Universal principles are frequently invoked. Thanks to their close fit with liberal democratic values, once invoked they hardly require further justifications. However, since the celebration of equality and diversity extends only to languages that have received special status in a polity but not others, such principles cannot justify selectivity without being supplemented by a national narrative about lineage.

Equality is emphasized, for example, in Canada and South Africa. The Official Languages Act in Canada seeks to “ensure equality of status and equal rights and privileges” (Section 2) associated with English and French, which are “at the heart of our identity.” Embedded in such provisions is an imagery of two communities that were critical to the formation of the nation now living harmoniously with each other. In South Africa, Nelson Mandela emphasizes equality among the country’s official languages as a corrective of historical oppression:17

[W]e are extremely proud that the new Constitution asserts equality among South Africa’s languages, and that, for the first time, the languages particularly of the Khoi, Nama and San communities will receive the attention they deserve, after years of being trampled upon in the most humiliating and degrading manner. . . .

(p.92) Diversity is often emphasized where there is a multiplicity of official or national languages, such as in Switzerland, which is conceptualized as a Willensnation (a country united by the desire of its citizens to live together with their diversities) and in the European Union, which has “Unity in Diversity” as its motto.

Utility is the one and only reason that justifies the granting of a special legal status to an exogenous language, which is most likely to be a colonial language, or a regional or international lingua franca. Singapore, for example, has been upfront about the utilitarian value of English for its nation-building. When Singapore became independent, the dominant ethnic groups were Chinese, Malay, and Indian. Although English, Malay, Mandarin Chinese, and Tamil are all official languages, English was chosen as the working language of the country in order to strengthen connections between Singapore and the external world and to diffuse Malay nationalism and the threat of communism (associated primarily with the Chinese), considering the political neutrality of English in relation to racial conflicts that immediately preceded the country’s independence.18 The idea that a foreign language is capable of uniting a country may seem bizarre at first glance, but the pragmatically motivated policy has been regarded as a huge success and a core element of Singaporean national identity. The nation’s founding father Lee Kuan Yew has stated that English is critical to the political unity of the country:

We decided to opt for English as a common language and it was the only decision which could have held Singapore together. If we had Chinese as a common language, national language, we would have split this country wide apart, and we would be foolish to have Malay or Tamil.19

From his remark it is possible to infer that, although Chinese, Malay, and Tamil are the country’s official languages—with Malay doubling as the national language as well—these statuses have predominately tokenistic value. Despite the fact that between 74% and 79% of the population of Singapore is ethnic Chinese,20 Lee justified his decision not to adopt Chinese as country’s lingua franca by citing extrinsic incentives: “Singapore would be economically isolated from the wider world if Chinese was chosen. And China then could not be of much help to our economic development.”21

(p.93) The Excluded Others

Every act of inclusion is an act of exclusion. It is through inclusion and exclusion that identity is negotiated and shaped. The legitimation of one or more languages tacitly delegitimizes other languages22 and does symbolic violence to speakers of these languages, who may feel that their deserved recognition is denied. Curiously, the same rhetorical tropes that justified the granting of special legal status to some languages can be used to deny it to others. Cynics may say that since these rhetorical tropes can be deployed against one another, they can be used flexibly to justify almost any policy decision.

There is a touch of hypocrisy in the notions of equality and diversity used in the context of official multilingualism. These terms have universal appeal, but they are not applied universally. They are often not extended to, for example, indigenous communities, who have an even longer lineage to the land. In fact, even countries that glorify equality, diversity, and multiculturalism systematically marginalize non-official languages that exist within their national boundaries. In Canada, for example, it has been argued that the national preoccupation with official bilingualism has hindered the development of other languages in the country, most notably the 60 or more aboriginal languages that have quickly diminishing numbers of fluent speakers.23 Despite the formal equality among South Africa’s official languages, English and Afrikaans are used in official communication much more extensively than others. In Switzerland, the Romansh-speaking communities do not enjoy equality with other official language groups either.24 In fact, attempts to introduce formal equality into the country’s language policy have been thwarted. A draft bill, the Federal Language Act, which contained the principle that the four national languages should be treated “identically” (Section 3), was abandoned in 2004 because such a policy would be too expensive.25 Instead, the Federal Act on National Languages and Understanding between the Linguistic Communities, which eventually came into force in 2010, is committed to the equality of only three of its four national languages, with Romansh omitted.

Not only can utility trump equality and diversity, it may also trump authenticity and heritage. The enactment of a state language is often accompanied by language standardization. It turns out that even the semi-official status granted to Romansh is of questionable value to the Romansh-speaking communities. Romansh Grischun (RG) was created in 1982 in order to provide speakers of (p.94) five different Romansh idioms26 with a standard written language. Its invention is sometimes viewed as a cost-cutting measure, adopted to avoid the same material having to be translated and printed in all five idioms. The artificiality of the resulting language has been widely criticized. Until it gains wider acceptance, RG is akin to a language spoken only by an imaginary speech community. “Romansh is something which has grown and become established, you cannot replace that with another language that has been artificially constructed,” says Annemieke Buob, president of an organization that promotes Romansh.27 A local language teacher, Renata Bott, complained to a reporter that it is “ridiculous to make kids learn a language they don’t understand and that no one speaks.” The leader of a Pro-Idioms group Domenic Toutsch has called RG a “bastard language,”28 pinpointing the perceived illegitimacy of the language in his use of a kinship relation term extending the semantic field triggered by “mother tongue.” Official recognition and standardization may end up destructing vernacular vitality and perception of authenticity.

Excluded from official language law inevitably are not only diasporic populations such as immigrants, forced laborers, and refugees, whose linguistic presence in a state may not be stable or deep-rooted, but often also indigenous groups who have become incorporated into later formed states through conquest, annexation, or merger. Indigenous struggles in independent states that were formed from settler colonies tend to be subsumed in the discourse of multiculturalism during the promulgation of official language policies. To avoid isolation, they are under pressure to integrate, at the cost of losing their identity and heritage. Minority-language speakers need to invest time, effort, and sometimes also money in learning the dominant language, and they are at risk of communication failure in their dealing with officials. The distributive impact of a national language policy on them is rarely addressed in official rhetoric.

The omission of immigrants is particularly noteworthy in the context of population mobilization in the globalized world. Outside of well-known immigration countries such as Australia, Canada, and the United States, many European and Middle Eastern states also have a foreign-born population that is much larger in size than their indigenous peoples or traditional minority groups. The expectation is that new migrants will either assimilate to the majority or survive in enclosed communities (in the form of “ghettos” or “expatriate bubbles”). Philosophers have tried to justify the exclusion of immigrants (p.95) in state language policy based on the assumption that they have accepted the risk of losing their language and culture and have agreed to be bound by the law of a different constitutional project by moving to a new environment.29

Languages may be excluded simply because their speakers do not occupy dominant positions in the society. For example, the decolonization of Malaysia has focused on promoting Malay as a national language and fighting the colonial influence of English. But Malaysia is a multiethnic state, consisting of not only Malay but also sizable Chinese, Indian, and indigenous populations. The privileging of Malay over other local languages may be taken as a form of cultural imperialism, making it unpatriotic for speakers of Chinese and Tamil to advance the status of their languages. The hegemony of Malay is effectively used to maintain racial boundaries: even when non-Malays speak the national language, they are often criticized for their impure renditions of the language.30

One may further argue that these populations are not merely excluded. Not only does planning for one language have repercussions on another,31 Kymlicka posits that national language policies are often targeted at ethnocultural minorities in state-building (emphasis added), and that minority language rights are a defensive response to such a threat.32 States may create linguistic domination and limit the use of minority languages or dialects to private domains, and simultaneously play the role of their protector by providing some support for their vitality (such as through minority language legislation), which never truly reverses power relationships. As Safran reminds us, language policy is as much about nation-building as political control.33

Such political control may work by influencing language ideologies,34 such that the dominated participate in reinforcing their own subjugation in social hierarchies. May notes that majority language has come to be lauded (p.96) for its “instrumental” value, leading to increased social mobility and economic opportunities; minority language, on the other hand, is accorded “sentimental” value.35 This is clearly a problematic dichotomy because it assumes that such values are intrinsic properties of the languages. Given such a popular impression, minority-language groups face a vicious circle. Low status associated with their language discourages outside groups from learning it and the younger generation from using it. Its lack of use in public domains means that a language may not be standardized or has not developed a formal register, reinforcing its stigmatization as a backward language. Furthermore, majority language and dominant culture may be masked as politically neutral, and minority language as factional and thus not conducive to a liberal polity that claims to be neutral to cultural and social norms.

The Symbolic Jurisprudence of Official Language Law

Language is often said to have both instrumental and symbolic functions.36 Given that language is constitutive of law, it should not be surprising that law is capable of performing not only instrumental but also symbolic functions, and it does. Notwithstanding the dominant positivist conceptions that see law as a set of rules or a mechanism of social control, some legal scholars have distinguished between the instrumental and symbolic dimensions of law.37 The instrumental function of law orients toward inducing behavioral changes, and its effectiveness relies on enforcement. For example, a traffic law which says that all vehicles on the road must display a valid registration plate works through sanctions against non-compliance. The symbolic function of law, in contrast, focuses on values and attitudes. A symbolic statute makes a statement about who we are as a society and has the potential to influence social norms, which may then influence behavior. Gusfield uses the Prohibition legislation in the United States to illustrate that the significance of law may have less to do with behavioral control than with a public affirmation of one set of (p.97) cultural values over another.38 Whether the legislation was instrumentally effective, the fact that one culture defeated another by winning legal affirmation was what mattered. Building upon Gusfield’s idea, Dwyer identifies Section 112 of the Clean Air Act in the United States as symbolic legislation, for it allows legislators to reap political benefits by pronouncing how much they care about public health, while disregarding feasibility and costs.39 Dwyer calls symbolic legislation pathological because it is unenforceable when read literally. The burden and risk of reformulation is thus transferred from the legislature to regulatory agencies or the courts. Similarly, Tushnet and Yackle have criticized the symbolic nature of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act in the United States, arguing that leaving it to the courts to resolve the conflicts between symbolic and instrumental statutes may sometimes produce peculiar results.40

I am using the term symbolic jurisprudence in place of symbolic legislation or symbolic law, as my interest is not in singling out pieces of law that are symbolic in nature, and suggesting that they are therefore problematic in some ways. Gusfield, Dwyer, Tushnet, and Yackle all criticized the statutes that they identified as symbolic. In my account of symbolic jurisprudence, symbolic law is not an exception, an irregularity, or a disease that needs to be cured. Symbolism is an important function of lawmaking and has a more systematic and persistent presence than usually acknowledged.

Statutes are not the only type of law that may have a strong symbolic function. In fact, constitutional law is more frequently endowed with such a function, and international law is largely sustained by its discursive power. Symbolic law is applied more often in constitutional law than in statutory law because the former imposes obligations on governments rather than citizens. Constitutional law often works through its authority to define a concept, an entity, or power relations. Some of these definitions have a relatively clear meaning: for example, a constitutional provision may stipulate the composition of a legislature and the method of elections. Constitutional provisions that grant official status to languages also read like definitions (e.g., “the official/national languages of state S shall be X and Y”)—the only problem is that official status is itself an undefined concept, or it is more undefined than people assume it to be. Under-specification is a common, though not exclusive, property of symbolic law. Official language law works chiefly through its symbolic power rather than coercive sanction. Symbolic law is real law; it may have rich social meaning even if its legal consequence is negligible.

(p.98) It is obvious that any status recognition, socially established or legally conferred, conveys prestige or honor, and thus has symbolic significance. A symbolic jurisprudence takes this a step further and posits that the legal consequences of official language law are derived chiefly from the often underspecified symbolic value of an assigned status only during interpretation. It is open to recontextualization and reconstruction. Viewing law as a discursive practice explains both the nature and varied effects of official language law and has a few analytical consequences, as detailed in the following.

I. Semiotic Flexibility and Narrative Power

Symbolic law is often vaguely drafted.41 Its meaning is unstable and open to negotiation. Official language status may index different meanings for different people and at different times, including meanings that may conflict with one another. Its potential to fit into the narratives of different protagonists provides the necessary ambiguity for a political compromise. Not only is there semiotic flexibility in the status labels themselves, but the parallel listing of languages that receive the same legal recognition can also project a sense of equality, which may or may not be reflected in actual practice. Despite the potential for divergent readings, since the state has a monopoly over legal meaning, legal interpretation can be used to kill off alternative meanings when necessary.42

It is possible for polities to draw symbolic profit from law, such as by proclaiming equality on paper, without disrupting existing power relationships. However, the symbolic power of official language law may be weakened by habitual mismatches between popular understanding of the law and reality. If, for example, a national or official language is hardly ever used by the administration, the symbolic capital of terms such as national language and official language may deplete over time.

Working as a symbolic resource, law must be interpreted in the nomos (or normative universes) in which it is situated.43 According to Cover, law should be understood less as a set of rules and institutions or a source of power, than as a system of meaning that helps define the world we live in. The meaning of official language law must therefore be interpreted in the normative universe of a locality, with all the history that comes with it. Law itself is constitutive of how people make sense of their world. Symbolic law, working more as a political gesture than a mechanism of social control, is especially (p.99) rich as a rhetorical resource. Frequently enshrined in national constitutions, language law has huge narrative potential in political discourse, bridging between reality and divergent visions. In many national contexts, languages of special legal status are a crucial piece to the national epic.

II. Indirectness of Effect and Transformational Potential

Official language law is an ongoing discursive event that is subject to reconstruction and recontextualization. Contextual factors determine the extent to which an underspecified piece of law may be translated into practice, or whether its symbolic capital can be successfully transformed into cultural, economic, political, or social capital. What is important here is that whatever consequences that flow from official language law are derived through interpretation in a facilitating context, instead of being directly created by words of the law. In other words, emancipatory effects such as enhancement of language rights are epiphenomenal. The translation from symbolic capital to substantive legal effects depends on regulatory agencies, courts, and enabling legislation.

Some find such dependence problematic. Mac Giolla Chríost argues, for example, that symbolic law is “good politics but bad law.”44 In the same vein, Sunstein posits that law that is expressive in character should only be supported when its consequences are properly evaluated and taken into account.45 In contrast, some European scholars have adopted a much more charitable interpretation of symbolic law. Van Klink, for example, sees symbolic law as a more communicative and interactive way of law-making than instrumental law, which regulates behavior through imposing sanctions on non-compliance, based on top-down authority.46 For Van Klink, symbolic law stimulates public discussion, raises awareness, and affirms certain social values. It provides a rhetorical resource and a guiding viewpoint that people can use to settle their differences. Through ongoing dialogue that such law triggers, one may aspire that social norms will be developed and their applications concretized over time. Between the interpretations that symbolic law is somewhat reckless or that it is liberating, the truth is likely to be a messier picture, as the case of official language law attests.

III. Hermeneutic Visibility and Social Presence

The language of office is the most basic insignia of legality as administration, providing a visible platform for the public assertion of dogma. Official languages may be displayed and paraded in public notices, wall plaques, (p.100) letterheads, and road signs, such that their symbolic significance radiates not only from the law, but also from their presence in the public sphere. Even where official status has not been translated into substantive rights, it enhances the cultural capital of the communities concerned and may serve as a foundation for social groups to negotiate with one another.

It must be noted, however, that the language of office is not only linguistic. For example, courts also communicate in signs, such as emblems and legal dress, that elude language and are recognizable across speakers of different languages. These signs simultaneously assert the predominance of a certain culture over others in law and public administration, despite the conflicting message that the multiplicity of official languages may send.

For the polity, the meaning and effect of the legal status granted may be less important than the act of granting those statuses, and the impact of the law may be felt stronger outside than within public institutions. The granting of formal equality symbolically negates the social hierarchy among languages and the communities they index. It communicates a sense of solidarity that may facilitate community building among minority-language speakers. Polities profit, such as in electoral politics, from this symbolic act without actually having to disrupt existing power relations, which are simultaneously negated and implicitly confirmed by the act of recognition.

The description of official language law as symbolic capital is, of course, Bourdieu’s terminology from his seminal book Language and Symbolic Power. Bourdieu indeed sees official language policy as the epitome of the symbolic power of language. In his example of revolutionary France, he regards the promotion of French as a national language and the relegation of other languages as patois (which was defined by a dictionary published at the time as “corrupted and coarse speech, such as that of the common people”47) as a way for the dominant group to reinforce its authority. In Bourdieu’s view, the status label of official or national language normalizes such dominance. Linguistic capital that dominant groups enjoy can then be transferred into other kinds of capital, such as economic capital, through the nexus between the national education system and the labor market.

The assumption that official status provides symbolic capital makes sense when a state has only one national language. However, in face of a multiplicity of status labels and of languages that may share the same status label, a more nuanced account is needed. My account of symbolic jurisprudence does not assign a certain amount of symbolic capital to a legal status; in the same vein, it does not assume that languages that share the same status label automatically (p.101) have the same symbolic capital. A legally assigned status has the potential of increasing the competitive value of a language in a linguistic market, but the symbolic capital of a language does not only come from law. Importantly, even when the same legal status is given to two or more languages, the symbolic meaning of the status may be quite different. This is possible because the same language status can index different aspects of context, drawing a connection with, for example, communicative versus identity functions of language; that is to say, for example, one official language may be seen as serving communicative function and another official language as serving an identity function. These languages may then have differential potentials as economic capital.

In noting the rise of multilingual polities, some linguists have posited that what underlies official multilingualism in contemporary states is the increased recognition of multilingualism as a resource or asset. Hornberger observes that a homogenizing and assimilationist discourse has been transformed into discourses about diversity and emancipation.48 To understand these “new ideologies” as underlying national language planning seems to be an optimistic and somewhat superficial reading of state behavior. Even where some states adopt official multilingualism because they see economic value in embracing regional and international languages, it is not so much diversity and emancipation that they care about most. Although it is true that many individuals see value in learning foreign languages in the globalized world, the ideology of multilingualism as resource largely fails to explain state behavior, especially considering the incongruence between policy planning and implementation and the high concentration of official multilingualism in post-colonial polities. The ideology is entirely irrelevant to multilingual practice in international legal order. It is not so much multilingualism per se that is seen as a resource but the discourse about multilingualism that is exploited as a resource. If states are chiefly motivated by multilingualism as resource, one would expect stronger implementation of official multilingualism, more investment in multilingual education, less interest in granting official status to languages that have limited instrumental value, and no reason to honor a language that is extinct. Moreover, such discourse about multilingualism often takes place as legal discourse. It is law that provides a platform for symbolic recognition. If there is any prevalent ideologies underlying the phenomenon of official multilingualism, it is—consistent with Cover’s jurisprudence—the ideology of law as a system of meaning,49 and the realization that legal discourse about multilingualism can be used as a symbolic resource to achieve political and economic ends.

(p.102) Symbolic Jurisprudence in International and Supranational Law

Multiple authenticity is a manifestation of the doctrine of the equality of states developed in modern international law. Equality of states, despite being largely fictional, has a few legal consequences, such as “one state, one vote” and sovereign immunity in international law. It is also manifested linguistically to some extent. Where the number of parties to a treaty is limited, such equality is normally extended to the primary languages of all contracting parties. Here linguistic equality symbolizes equal footing and mutual respect, notwithstanding actual differences in economic, military, and political power among the parties.

When a large number of states come to an agreement, as in the case of treaties administered by the United Nations, equality among the primary language of all states is no longer manageable. As shown in the preceding chapter, most international IGOs operate in much fewer official languages than the primary languages spoken in all their member states. The pragmatic expediency of giving official status to only a few dominant languages is deemed an administrative necessity. However, the choice of official languages is still an indicator of political power. Political inequality is a reality within the United Nations, evident in the veto power retained by the five permanent member states. That said, incentives for weaker states to join these organizations by far outweigh considerations of inequalities within them, linguistic or otherwise.

Some departures from multiple authenticity cannot be explained by administrative necessity. For example, the Italian Peace Treaty of 1947 was drafted in French, English, Russian, and Italian, but only the French, English, and Russian texts were legally authentic. This linguistic arrangement understandably reflects unequal power relations among the signatories of a treaty: between Italy as a defeated state and the victorious powers of the Second World War. In contrast, the international military tribunal that prosecuted German war criminals after the Second World War produced its official documents and conducted its trial proceedings in English, French, Russian, and in the language of the defendant (based on Article 25 of Constitution of the International Military Tribunal). By emphasizing the language rights of the defendant, the tribunal, which was the first of its kind, wished to project a sense of fairness and justice.50 In other words, the choice of languages in these examples is motivated not only by communicative needs, but also by how such a choice facilitates the political narrative through which these legal events were constructed. The legal consequences of these linguistic arrangements were likely to be secondary to their symbolic significance.

(p.103) That linguistic equality has strong political significance and rich symbolic meaning may be further observed when regular IGOs are compared with the European Union. IGOs deal with relationships among states and have minimal democratic accountability toward individual citizens. In fact, equality of states is at times in tension with equality of citizens, when for example a state of 50 million citizens has the same amount of say in voting as a state of 50 thousand citizens. Unlike most IGOs, the European Union attempts to incorporate all the primary languages of its member states as official languages and thus implement linguistic equality to a fuller extent. This can be explained by the political structure of the Union.

Even though the European Union is a regional IGO, it is distinguished by its supranational character—some sovereign power is ceded by member states to the political union. Despite frequently criticized for its democratic deficits, the European Union aims to be a democratic supranational polity that balances equality of states (as do IGOs) and equality of citizens (as do sovereign states). Although member states retain ultimate sovereignty, the union is organized like a super-state, where citizens of all member states enjoy electoral rights in the Union. Its law is supreme to the national law of member states (the primacy of EU law) and has direct effect on citizens of member states (principle of direct effect).51 These legal foundations of the Union make it necessary that EU law is linguistically accessible to its citizens. However, linguistic accessibility for individual citizens is only a secondary concern—the EU language regime is primarily a mechanism for maintaining inter-state relations.52 Not all languages spoken in all member states are adopted by the Union. The choice of languages that become official and working languages in the Union represent a state-centered policy. This policy is full of internal contradictions: through a system of official and working languages, the regime simultaneously asserts linguistic equality and maintains status hierarchy; linguistic pluralism also potentially conflicts with the communicative requirement of a democratic public sphere and a European Common Market.53 Nevertheless, the Union’s emphasis on equality among its official languages54 and the corresponding elaborate multilingual regime provide rhetorical support for the legitimacy of its unique political and democratic structure.

(p.104) Official multilingualism in international and supranational law achieves its major functions through symbolism. It is an expression of state identity. States assert their status through linguistic presence, but only the most powerful states manage to do so in IGOs. Parallel multilingualism naturally supports an equality narrative, and thus such law can be taken as a formal acknowledgment and manifestation of equality of states among contracting parties of a treaty and member states of an IGO. However, the equality narrative competes with an efficiency narrative, according to which limiting the number of official languages promotes administrative expediency. If some languages have to acquire higher status, the choice of languages can be justified not through state equality, but the rationale that underlies it. The doctrine of state equality is built upon the belief that a balance of power is crucial to collective security. Therefore, when an IGO does not extend full linguistic equality to all its member states, it is the languages of great powers that receive equal treatment, for conflicts between great powers have the biggest potential to destroy international peace. The same logic underlies the most frequent justification given for the continued concentrated powers in a few states in the UN Security Council. From this perspective, the symbolic power of official multilingualism, along with the prevailing practices of multiple authenticity and linguistic equality, serves an instrumental purpose in balancing power relations and maintaining minimum order in international relations. Alternatively, the choice of languages may be justified through their supposed currency in the global linguistic market. However, linguistic demographics cannot be the whole story, for there are more Hindi and Bengali speakers than speakers of German and French, and the former languages rarely become the working languages of IGOs. The geographical reach of English and European languages may prove that these languages have a higher currency, and such reach is itself an index of power (both military might during colonial expansion and economic power in the globalized economy).

EU multilingualism works similarly. Just like the national flags that are displayed outside EU buildings, the 24 official languages form a spectacle of unity in diversity. Despite the visibility of this spectacle, the semiotic flexibility of official language law allows for simultaneous assertion of equality among official languages and further designation of some official languages as working languages. The effect of official language law is therefore indirect and can only be interpreted and developed in context. Notwithstanding the indeterminacy in effect, the equality narrative that linguistic equality supports in turn promotes the democratic foundation of the European Union as a supranational polity. In other words, the narrative potential that official multilingualism fulfills helps the Union strengthen its democratic legitimacy and maintain minimum order.

(p.105) Symbolic Jurisprudence in Sovereign States

Before one may analyze state motivation in adopting official multilingualism, an important premise that needs to be discussed is whether states made the decision voluntarily. An exceptional example where post-conflict nation-building was heavily guided by international bodies is Kosovo. The constitutional framework for the provisional self-government in Kosovo, developed by the United Nations Interim Administration Mission in Kosovo (UNMIK),55 stipulates both Albanian and Serbian as the languages of the Assembly of Kosovo. This was later followed up in the Assembly of Kosovo with the passing of legislation on the use of languages (Law No. 02/L-37) that specifically provides for the equal and official status of Albanian and Serbian in Kosovo. The Kosovo experience demonstrates that official multilingualism has become an international norm, which has particular utility in transitional states.

Although most modern states took nation-building in their own hands, since the Paris Peace Conference of 1919, a system of minority protection has been developed internationally. Newly created states that applied for membership in the League of Nations had to guarantee56 that basic rights would be conferred to all inhabitants in their state, including the right to speak one’s language and the right to teach in minority languages where the minority population was sizable. But such obligations were practically only imposed on weaker states. International law took an individualist turn when the United Nations replaced the League after the Second World War, but there has been more attention to collective rights since the 1980s. Today, weakly worded covenants of the United Nations offer a system of minority protection,57 but still allow plenty of freedom for states to choose their official language(s) as long as basic principles (such as non-discrimination, fair trial, and freedom of expression) are observed.58 No international declaration has asserted a right to official language status. There may also be regional pressure on the protection of minority rights, such as the conditions that the European Union imposes on states that (p.106) want to join the Union. However, the minimal guarantee of minority language rights leaves plenty of scope for the granting of superior status to selected languages.59 In short, while there may be some pressure on states to grant minority rights, states generally grant official status to languages at their own volition, largely based on bottom-up pressure from domestic politics and top-down pressure in global trade.

Granting official status to a language is not the only way of showing solidarity or offering protection to minority-language communities. States may instead choose to pass minority-language legislation that provides specific language rights, such as educational provision in minority languages. Nevertheless, many states have resorted to status recognition. Since the same rights and obligations can be granted in minority-language legislation, the conferral of official multilingualism must serve additional functions.

Although linguistic equality has been interpreted and applied as a legal principle in many advanced multilingual jurisdictions, the constitutional conferral of official status is essentially a political declaration. It is typically included in the opening part of a constitution that articulates the defining characters of the state, such as its name, national anthem, and emblem, before moving on to detail governmental organization and division of powers. These definitional clauses are deeply political, unmistakably depicting the state as a historical and social construction. Provisions on language and symbols may be read as part of the main commitments of the state.60 Although a constitution is supposed to be prior to state politics, it in fact encapsulates the sociopolitical conditions of a state. According to dominant theories, a primary function of constitutional law is to limit the exercise of arbitrary power. It entrenches basic values, broad principles, and fundamental rights such that they are superior to other laws and provide stability over time. While democratic decision-making is grounded on representativeness, a constitution is legitimated by its distance from everyday politics, its provision of “the rules of the game,”61 and its prevention of majority tyranny. Government authority and action are generally considered legitimate if they fall within the scope of constitutional power.

Constitutions generally impose obligations on government institutions but not private citizens.62 However, it is not always clear what obligations are (p.107) supposed to be created by the constitutional conferral of official status to languages—in other words, how a government may act constitutionally or unconstitutionally. Official multilingualism entrenched in a constitution may be read as a broad statement of the state’s commitment to respect diversity and to ensure peaceful coexistence of national groups. However, given that linguistic diversity is a universal condition, such constitutional provisions do not explain why some states but not others have chosen to adopt official multilingualism. In fact, as critiqued by Tierney, traditional approaches to constitutionalism assumes that a people—in the singular—live within the state, taking for granted the political power of the dominant society.63 If a state represents “we the peoples,” then constitutional narratives about political sovereignty and legal legitimacy need to be pluralized.

States use the semiotic flexibility of official language law to serve instrumental functions that respond to their social and political needs. While all constitutional provisions are in some ways a product of the social and political circumstances of a state, not all of them work through symbolism. The analysis of state behavior presented here is informed by both contemporary jurisprudential theories, as well as interest-based approaches (as opposed to norm-based approaches64) in constitutional theories, international relations, and international law. This analysis understands law not as a system of rules and principles, but rather as a system of meaning which is used to achieve goals that are extrinsic to the legal system, such as economic efficiency, social values, political agendas, and public policy directions that target situation-sensitive problems.65 Applying an interest-based approach to symbolic law, one can see that the symbolic power of official language law can be used to achieve one or more of these overt or covert goals simultaneously. Symbolic jurisprudence draws special attention to the affective dimensions and promotional function of law, as contrasted with its power in commanding and sanctioning behavior. An interest-based approach to understanding states also assumes that states act rationally, according to rewards and consequences. A norm-based approach, in contrast, argues that states act according to a commitment to norms or moral ideals. My account in the following is consistent with the former approach, locating rationales for law-making in terms of how interests and values are balanced in the wider political system and social context.

(p.108) At the risk of redundancy, a baseline must be acknowledged. State interests are rarely unitary: law-making processes tend to be influenced by divergent groups with conflicting interests. The resultant political struggle can only be fully analyzed in a particular space and time. The purpose of the analysis here is to highlight major forces that have been observed across states.

In LPP research, Ager has proposed that there are seven motives for language planning and policy actions: identity, ideology, image creation, insecurity, inequality, integration with a group, and instrumental motives for advancement.66 These motives are derived from social psychological studies on why people or groups of people are motivated to learn a language. To the extent that official language law may be considered a stage of LPP, these motives are presumed to apply. But it is difficult to see how to apply them. For one thing, these motives appear to be overlapping categories. For example, Ager cites linguistic homogenization in France as an example of LPP with an “identity” motive, but his own analysis of the example covers the ideologies associated with different languages spoken in France at the time and the instrumental goal of reducing regional power bases, so it is not at all clear why the example does not fall under “ideology,” “insecurity,” or “instrumental motives for advancement.” Moreover, the assumption that motives for individuals to learn a language and motives for states to implement a language policy are shared or comparable is built on shaky ground. Importantly, it is doubtful that some of these motives (think, for example, of “inequality”), when acting on their own, are sufficient to drive a state to adopt official multilingualism.

A simpler way to capture what prompts states to adopt official multilingualism is presented here. State motivations will be understood in terms of political and economic capital. These motives may be summarized by Fishman’s use of the term nationism (see related discussion in Chapter 1). By contrasting the term with nationalism, which is at least superficially associated with the ideals of equality and democracy at the time of its inception, Fishman argues that states are primarily concerned with their operational integrity. The political and economic motives discussed in the following may be considered instrumental to the survival of the state. They are not primarily concerned with the interests or survival of official language communities. As the interest convergence thesis67 in Critical Race Theory suggests, minority interests are promoted only when they converge with the interests of the dominant group. Consistent with that logic, minority languages gain official recognition only if the state can reap political or economic benefits from the move.

(p.109) The adoption of an official multilingual policy tends to be reactive (i.e., a response to political crisis or economic need), rather than proactive (i.e., a change led by a vision of what society a state wants to create). Decision about state language law is best explained by an interest in political and economic power, rather than by normative values such as respect for traditions and cultures or the principles of equality and diversity, which dominate the rhetorical tropes that states use in promulgating their official multilingualism policy (as discussed at the beginning of this chapter). Such tropes are not, however, irrelevant to the discussion—although states may be instrumentally motivated in their decision-making, adoption of a multilingual policy can potentially lead to norm creation and the embracing of these normative values.

Political Capital

To gauge motivation behind national language law, it is much more helpful to look at events that lead up to the law, such as social context, legislative debates, and records of policy research, than officially presented rhetoric during the promulgation of the law. Consider the following quote, taken from a report prepared by The Royal Commission on Bilingualism and Biculturalism (1963–69) in Canada:

. . . any community which is governed through the medium of a language other than its own has usually felt itself to some extent disfranchised, and that this feeling has always been a potential focus for the political agitation.68

The Commission was set up in response to renewed Quebecois nationalism that called for the secession of Quebec from Canada. The Commission would lead to the passage of the Official Languages Act, which ended monolingual practices (i.e., English only) in the federal government. It is evident that the Official Languages Act was taken by legislators as a possible solution to calm a threat to the country’s territorial integrity by eliminating linguistic disfranchisement as ground for secessionism. By contrast, indigenous populations in Canada have not posed such a threat, and their languages have only been offered official status at a regional level. By acknowledging that English and French became official languages because these colonial languages were spoken by “people that were able to take hold and maintain their domination in Canada,” Commissioner Rudnyckyj leaves no doubt that power relations form the basis of official bilingualism in Canada.69

(p.110) In South Africa, the expansion of official status from two (English and Afrikaans) to 11 languages, in what is hailed as a transformative constitution, took place at the end of apartheid which saw extreme racial inequality. Given the unrest and resistance that peaked in the decade before the end of apartheid, expanding the number of official languages in the 1996 constitution was at least as much a reflection of political necessity as that of political goodwill and changing ideologies.

Official multilingualism is a strategy for increasing the political capital of a governing body, which helps to secure political stability and legitimacy. This strategy tends to be deployed during important political transitions. The most dramatic kind of political transition is state formation, and thus official multilingualism is often adopted by decolonizing states that need to make a clear gesture about the change in political regime and construct a new national identity. Promotion of endogenous70 language(s) is necessary to establish the legitimacy of the new political power. In multiethnic transitional states, competition for power often continues after the departure of a colonial regime, and official language status may be seen as a marker of dominance. As the experience of Sri Lanka shows, promoting the language of one ethnolinguistic group at the cost of another may trigger conflict. Pluralism in state language law makes a statement that people of different ethnolinguistic groups are full citizens of a state and have legitimate existence within the state. Meanwhile, the retention of colonial languages and the simultaneous promotion of endogenous languages are a means of ensuring political stability. Official multilingualism has thus become a common strategy in transitional constitutionalism. Unlike the equality of two or more endogenous languages, the holding of formal equality between the colonial and endogenous languages does not readily form a coherent national narrative and can only be pragmatically motivated.

My view here concurs with that of Billig, who asserts that official national languages and the suppression of rivals are an achievement of national hegemony. According to Billig, “(s)ometimes when hegemony is assured, or when it is later threatened, this legal suppression of language is relaxed, either in the interests of recapturing a harmless heritage, or to ward off demands from separatist or irredentist groups.”71 Official multilingualism may be understood as a relaxation of such suppression.

More often than not, expanded linguistic inclusivity is born not out of harmony, but rather out of fear of conflict and disintegration. The political atmosphere that underlies it is agitation, not contentment. As observed by de Witte, the granting of new language rights and status tends to be a result of political mobilization instead of legal mobilization (i.e., litigation in domestic (p.111) and international courts).72 In his study of the European impact on domestic law, he found that language rights are most likely to be extended when the move can gather additional legitimacy and where the state’s constitutional identity is not threatened. Groups whose language gains recognition tend to be those that have political leverage arising from the potential for violence. The more ethnolinguistic communities congregate geographically, the higher the threat of separatism. Official multilingualism aims not at preserving the languages or language communities in question, but at preserving the state, by maintaining security and minimum order.

For many sub-state national groups, language is a symbol of resistance against assimilation. From the perspective of minority-language communities, the gaining of official status may be read as an acknowledgment of their nationhood and an affirmation of their group identity. This optimistic reading is shared by Patten and Kymlicka, who argue that the expansion of official multilingualism is a sign of increased acceptance of minority nationalism.73 There is hope that official status may come with the devotion of public resources to minority causes such as cultural survival. Situated in localities with a history of linguistic injustice, official multilingualism may be read as a moral statement: a determination to end inequality, oppression, and marginalization. Read in light of international regimes of human rights, it may be taken to express a constitutional commitment to protect individual and minority rights. As such, official multilingualism may help ease political agitation and unrest from minority populations.

From the perspective of the government, however, an inclusive official language law may also be read as an assertion of the political representativeness and legitimacy of the government, a jurisdictional claim over linguistically diverse territories, and a means of building political reputation. Linguistic inclusivity, and the respect and dignity that it symbolizes, is offered in return for the ceding of political power to a centralized government. As Bourdieu reminds us, giving is a way of possessing.74 Similarly, Tannen suggests that power and solidarity are in a paradoxical relationship—any show of power entails solidarity, and any show of solidarity entails power.75 Accepting the symbolic gesture of the government also means acknowledging the legitimacy in its exercise of power.

(p.112) The semiotic flexibility of official language law thus fulfills competing narratives at the same time: the narrative that the state has sovereign claim over its diverse population, and that sub-state national groups are distinctive and deserve political autonomy. Its narrative potential thus allows it to respond to top-down pressure of nation-building and bottom-up demands for political recognition at the same time. This has conflicting implications for the sub-state national groups. On the one hand, state conferral of language status may acknowledge and strengthen the identity of these groups. On the other, a tolerant outlook on the part of the state weakens the legitimacy of separatist claims by minorities. Language has been used as an organizing principle for the drawing of political boundaries both within states and in the formation of new states. Forced assimilation infringes political freedom and incites nationalistic resistance. If a state appears to be tolerant, however, there may be less sympathy toward sovereignty claims made by sub-state national groups.

Economic Capital

Social cohesion that results from the easing of inter-ethnic conflicts through an official multilingual policy may also contribute to economic development. In other words, symbolic capital derived from official multilingualism can boost a sense of collective community, trust, and altruism, which are social capital that in turn enhances economic capital.76

Under the influence of globalization, some states have adopted a more direct way of harnessing the economic potential of language policy. In stark contrast with linguistic nationalism, state language law has become a means of expanding political alliances and economic partnerships. Such instrumental motivation is clearly outward rather than inward looking. For the sake of profit, some states have given official status to a language that few of its citizens speak fluently and have raised the stakes for the rest to learn it. This is the case in Gabon77 and Rwanda.78 Both countries adopted English as an official language, even though the vast majority of its population have limited English proficiency. Enhancing the instrumental motivation for learning a globally dominant language is a means of translating the symbolic capital of official language status into the economic capital of the state. States that have made such a choice tend to be transitional or developing states that are seeking to develop a sustainable economy and to integrate into the globalized market.

(p.113) It is not news that language can be exploited as commodity. In fact, colonial powers have been benefiting from the spread of their languages for a very long time. Language may be considered a hyper-collective good, in that “the more people use it, the more valuable it becomes.”79 This explains why English language teaching (ELT) is one of the largest and fastest-growing sectors in education, which is valued at US$11.6 billion globally in 2011. In the same year, the United Kingdom has made £17.5 billion (approx. US$21.5 billion) export earnings from education, of which £2.5 billion (approx. US$3 billion) came from ELT.80 English language education is also a big earner for former settler colonies of the British Empire, such as Australia, Canada, and New Zealand. The market dominance by these countries is supported by popular language ideologies about standard language, native speaker,81 and accent82—entrenched beliefs that are often linked up with race.83

Not only has the globalization of economic and legal order stimulated language industries such as translation, teaching, and communication, it has provided a re-legitimizing discourse for former colonial languages to maintain their influence, prestige, and value in newly independent states. This has been described as a kind of linguistic imperialism or neo-colonialism,84 with the effect that social hierarchy established with political power now perpetuates in economic terms. A language that once represented colonial power may now be recast as a language of economic opportunity, allowing former colonial powers to acquire a market share in the economy of post-colonial states. Economic benefit may be extracted not only from the currency of a language, but also from the image that a language projects. The British Council reports that the English language brings a brand value to the United Kingdom, citing an estimate that the benefit it brings to the United Kingdom in both domestic economy and international trade is worth £405 billion (approx. US$497 billion).

As observed by Heller, both language-as-skill and language-as-identity are commodifiable.85 This means that, corresponding with popular language ideologies, both colonial and endogenous languages are commodifiable (p.114) in post-colonial polities. Knowledge of colonial languages is a resource (outsourced call centers in India, Pakistan, and the Philippines being frequently cited examples86) and a sign of accessibility to the foreign visitor or investor. But language is more than a tool of communication. Authenticity of endogenous languages has also become a marketable feature in the tourism industry, which generates a main source of income for many developing states. Endogenous languages may be packaged and sold in the form of printed words on magnets and T-shirts or in the form of a cultural experience, along with displayable heritage, performable traditions, and re-enacted ways of living in a ticketed zone.

The economic role of language has become more prominent in the globalized economy.87 Given the economic value of both exogenous and endogenous languages, official multilingualism becomes a natural way of maximizing the linguistic capital of a state. Indeed, as we have seen in our earlier discussion on official rhetoric, leaders of some countries such as Singapore have been frank about the utilitarian purpose of the language policy they promulgate. Although commodification of language is not a novel observation, the commodifiability of constitutionally conferred state language law takes the relevant discussion to a new level. In essence, state language law directly participates in negotiating transnational economic relations in the globalized world and offers another example of global forces penetrating local institutions and cultures88 and capitalist logic seeping into what is traditionally a nationalist discourse.

An instrumental view of language is not only seen in top-down policymaking. Parents are often made to choose between preserving their family heritage and maximizing their children’s opportunities for upward social mobility. Linguists have documented popular demand for learning languages perceived as valuable or powerful. In Bolivia, parents have reported a desire for their children to be educated in Spanish rather than Quechua; in South Africa, Xhosa-speaking parents prefer sending their children to English-medium schools.89

Apart from embracing the instrumental view of language, state inclusion of colonial or global language into its national institutions may be justified through a conceptual transferral of ownership of such languages. Post-colonial states may reclaim authenticity and autonomy by detaching colonial languages or their adaptive forms from their imperial heritage (de-nationalization) and (p.115) reassigning transnational or national identities to them (re-nationalization), for example through asserting local varieties such as Nigerian English as types of World Englishes.90 It certainly happens that foreign languages acquire local meaning over time, just as Portuguese came to be known as a language of resistance in Indonesian-occupied East Timor (now Timor-Leste). The recasting of foreign languages as having domestic significance is a way of controlling and limiting the narratives derivable from the open texture of official language law.

Finally, ideologies about global languages underlie decision-making in state language law. The desirability of a language is affected not only by its actual utility, but also by feelings and beliefs that people have about the languages. The Education Minister for South Sudan told the BBC that English was chosen as an official language in his country because it “will make us different and modern,”91 notwithstanding the fact that few South Sudanese can speak it. People have in the past preferred French to English because it was believed to be more precise or more refined;92 today many people prefer English to their local languages because it is supposed to be more precise, more refined, or more “modern.” The hope here seems to be that granting official status to a global language will increase the symbolic capital of a state.

Symbolic Jurisprudence in Sub-State Polities

It may be argued that administrative convenience is an instrumental reason for adopting official multilingualism at the sub-state level. Where a region is dominated by a language, governing in that language saves cost. However, in many states such convenience is well served by de facto multilingualism. The question of why official status is conferred still needs to be considered.

Official multilingualism at the sub-state level may be interpreted similarly to the state level, in that the power that official status grants to territorially concentrated languages is primarily symbolic before it acquires substantive legal meaning. Compared with official status at the state level, official status in a sub-state region has a lower degree of recognition, says less about sovereignty, and is less integrated with the national narrative. This policy simultaneously acknowledges the linguistic supremacy of nationally recognized language(s), and the higher status of a regionally recognized language over other local languages. Sub-state official multilingualism does not challenge a dominant national identity asserted across the state. Minority groups that have their (p.116) language recognized at a regional level gain visibility and a strengthened identity, but such recognition is more limited than state-wide recognition, in that these regional groups are not regarded as national groups that are constitutive of the state.

States that grant official status to languages wherever population number warrants may do so for administrative convenience, but the approach may also be used to achieve political ends. We have seen that a blanket policy in Ukraine—granting official status to any language spoken by more than 10% of the population in a region—has the practical effect of promoting the status of Russian in the country. The law may therefore be used to gain electoral support from Russian speakers, even though the law itself does not mention any particular language group. An inclusive linguistic policy may also be used to water down the recognition enjoyed by sub-state national groups, similar to how a multiculturalist discourse that gives attention to not just national groups but also immigrants and indigenous peoples may be seen as a way of drowning sub-state nationalism (as exemplified by the tension between linguistic duality and multiculturalist policies in Canada).

Identity Formation and Norm Creation

The realist, interest-based account of official multilingualism presented in the preceding lies in theoretical opposition to norm-based accounts. For example, Bohl argues that the multilingual turn in national language policies can be explained by discursive changes in the global legal and political environment, such as the increased attention that international law pays to minority identity rights.93 In contrast, my account suggests that norms have relatively little role to play in motivating official multilingualism. Post-colonial states—which constitute the great majority of multilingual states in the world—do not become officially multilingual because they are more drawn to the multiculturalist ideal, but because they need to ensure political stability. Moreover, if official multilingualism is driven by the multiculturalist ideal, one would expect officially multilingual polities to be more tolerant and respectful of their unrecognized linguistic minorities than officially monolingual polities, but there is hardly any evidence that this is the case. Linguistic communities that experience the horror of assimilation are more likely to be hostile to minorities that live among them. For example, concerned with the survival of French in Canada, Quebec has a rigid policy of assimilating its immigrants into francophones. Similarly, to promote and secure their regional language and identity, regional governments (p.117) in Spain (most notably in Catalonia) have adopted defensive language policies that may feel oppressive to linguistic minorities in the region.94

Official multilingualism is more accurately described as a political compromise or economic strategy, rather than a reflection of the long-term vision of a pluralistic state. However, the instrumental motivations of official multilingualism do not imply that such law is devoid of social meaning, that such law fails to induce a national identity, or that norms are irrelevant to understanding the impact of such law. Once official multilingualism is entrenched in law, especially if it is enshrined constitutionally, linguistic pluralism is capable of becoming a powerful national imaginary. The point here is that normative ideas are much more likely a product of than a cause for lawmaking, as captured by Bertrand Russell words,

Ethical notions are very seldom a cause, but almost always an effect, a means of claiming universal legislative authority for our own preference, not as we fondly imagine, the actual ground of those preferences.95

Once established, norms can do what law cannot do, or does at a much greater cost.96 Given the moral weight that law has, regardless of the effectiveness of its implementation, official multilingualism makes a statement about the value of a society and may reinforce tolerance and pluralism as social norms.

The beauty and mystery of a symbolic jurisprudence are that the same law is capable of communicating different messages, allowing for divergent uptake. This property of language is what Bakhtin calls “heteroglossia,” a condition that every language is rooted in, where a plurality of voices from different socio-ideological strata inhabit every utterance.97 The language of the law bifurcates into a double voice, simultaneously expressing different intentions and meanings, creating the potential for both an internal dialogue and divergent discourses.98 This double-voicedness draws its energy from social realities. Depending on the uptake, the law may have impact that does not directly flow from the original motivation(s) for law-making. Pragmatically made policy decisions can nevertheless contribute to the consolidation of identity and the creation of norms, even if such effects may be indirect, unintentional, or incidental. Official multilingualism may even improve linguistic access to justice or strengthen language rights for certain language groups. But these are all (p.118) epiphenomena, flowing from context-dependent interpretation of official multilingual law. Moreover, a symbolic jurisprudence admits the potential not only for varied interpretation, but also for the evolution of interpretation: a motivation that brings a policy into being does not have to be identical to the motivation behind the continuation of the policy.

As argued earlier, the dominant ideology underlying official language law is more about law as language than about language per se: law as a resource in signification. As a resource in signification, official language law is able to speak to different ideologies of language. On the one hand, adding an official language for gaining access to trade echoes a clearly instrumental view of language: taking language as a communication tool, or multilingualism as a resource. This instrumental ideology of language tends to be associated with ideologies about specific languages, such as English as a language of empowerment. On the other hand, official multilingual law also views language as a proxy to identity—in fact, it is awareness of the connection between language and identity that drives the pragmatic adoption of multiple official languages as a means of keeping a country together, or, in international organizations, as an act of power balance. Official multilingual law reinforces existing ideologies about specific languages: for example, labeling a minority language a national language and then using a dominant language as official language may have the effect of validating the popular ideology that minority languages have high identity but low instrumental value.99 Meanwhile, this ideology may be countered to some extent if a polity does decide to expand the use of a minority language in the public realm.

The craving for political and economic capital does not offer a direct explanation to some observations associated with official multilingualism. Instead, they may be better understood through norms that are potentially created or reinforced by official multilingualism. This is where behavior cannot be fully explained by an interest-based account. For example, in addition to the effect of political reputation, it is likely that equality as a norm motivates the official recognition of sign languages. It may also be norms that encourage some states to make more than minimum effort to recognize minority language rights, which give the dominant power structures of the state no apparent benefit (other than appearing to be norm-abiding, which can, again, potentially increase political legitimacy). For example, where states such as Bolivia offer official status to extinct languages, it is doubtful that political or economic reward fully justifies the decision. At the same time, one may also say that the conferral of official status does not cost anything, since no official communication will actually take place in these languages, so the normative force that drives this move does not have to be strong. Or consider the fact that settler (p.119) colonies such as Canada and New Zealand have offered some official recognition to indigenous languages. Such a decision is, at least in part, a response to emergent international norms in minority language rights.100

Kosovo provides an illustrative case that official multilingualism has indeed become an international norm, by offering a glimpse of what official language law may be created by an external authority that is presumably not deeply entangled with domestic interests. Although motivations behind official multilingualism diverge across jurisdictions, it has been adopted widely enough to become an international norm.

In the great majority of cases, however, norms remain secondary in their ability to shape official language law. Norms alone are generally not sufficient to drive official multilingualism at the state level, unless such law is only tokenistic, as in the case of extinct languages in Bolivia. Conformity to norms is restricted by political interests. Official status and minority language rights are granted insofar as they do not disrupt existing power structures in a society. In states that adopt more than one status label (such as national and official languages), the status differentiation created tends to preserve entrenched interests and reproduce social hierarchy. As in many other social domains, preservation of the status quo is often confounded with the maintaining of peace and order.

Even though it does not fundamentally challenge the status quo, the symbolic value of official multilingual law may still help protect national minorities or endogenous speech communities from globalizing influences and provide thrust to democratic development and political struggles. As the next chapters will show, when linguistic equality is taken seriously, official multilingualism can create ripples and ruptures in existing legal practices and public institutions. These potential changes may be wide-reaching (in terms of administrative structure and costs), but tend to be less than radical (in terms of power relationships between groups).

Part II of the book will examine the practical changes that official multilingualism may induce in public institutions and legal processes, and how equality is negotiated in official language practice. Theoretical implications and wider significance will be discussed in Chapter 8. (p.120)

Notes:

(2) Roscoe Pound, “The Need of a Sociological Jurisprudence,” The Green Bag 19, no. 10 (1907): 607–15; Rudolf von Jhering, Law as a Means to an End (Boston: Boston Book, 1913); Karl N. Llewellyn, “Some Realism about Realism: Responding to Dean Pound,” Harvard Law Review 44, no. 8 (1931): 1222–64, https://doi.org/10.2307/1332182; Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10, no. 8 (1897): 457–78.

(3) William N. Eskridge, Philip P. Frickey, and Elizabeth Garrett, Legislation and Statutory Interpretation (New York, NY: Foundation Press, 2006).

(4) See discussion in Justin B. Richland, “Jurisdiction: Grounding Law in Language,” Annual Review of Anthropology 42, no. 1 (October 21, 2013): 209–26, https://doi.org/10.1146/annurev-anthro-092412-155526; Marianne Constable, Our Word Is Our Bond: How Legal Speech Acts (Stanford, CA: Stanford University Press, 2014).

(6) And of course, their translation equivalents, which cannot be detailed here.

(7) Lecomte, “Official Languages or National Languages?”

(9) No. 71074/01, admissibility decision of December 7, 2004.

(10) Nancy H. Hornberger, “Multilingual Language Policies and the Continua of Biliteracy: An Ecological Approach,” Language Policy 1, no. 1 (2002): 27–51.

(11) See Chapter 7 of Diarmait Mac Giolla Chríost, The Welsh Language Commissioner in Context: Roles, Methods and Relationships (Cardiff: University of Wales Press, 2016).

(12) Lecomte, “Official Languages or National Languages?”

(13) Mac Giolla Chríost, The Welsh Language Commissioner in Context, 160.

(14) In Mali, although governance is primarily in French and to a limited extent in Bamanankan, national languages have been introduced as medium of instruction, together with French, in schools since 1994.

(15) Anchimbe, “Functional Seclusion and the Future of Indigenous Languages in Africa: The Case of Cameroon,” 95. The author further notes that the “honorary and inconsequential recognition and appellation” of indigenous languages as national languages came just after the abolishment of indigenous language teaching in the 1970s (p. 97). Assessment of literacy is based only on knowledge of English or French, not of indigenous languages. He argues that the role of indigenous languages in the national life actually diminished after these languages became national languages.

(16) Janny H. C. Leung, “Negotiating Language Status in Multilingual Jurisdictions: Rhetoric and Reality,” Semiotica 209 (November 4, 2016): 377.

(17) Nelson Mandela, “Don’t Silence Mother Tongues,” Sunday Times, April 25, 2004, sec. Editorial.

(18) Rappa and Wee, Language Policy and Modernity in Southeast Asia.

(19) T. P., “The Language Holding Malays, Tamils and Chinese Together,” The Economist, January 28, 2011, http://www.economist.com/blogs/johnson/2011/01/singapore.

(20) According to the Singapore Department of Statistics.

(21) Kuan Yew Lee, “Speech given at the Launch of the English Language Institute of Singapore (ELIS),” September 6, 2011.

(24) Romansh has semi-official status.

(25) Doris Lucini, “Romansh Row Inspires Strong Language,” SWI Swissinfo.Ch, October 6, 2004, http://www.swissinfo.ch/eng/romansh-row-inspires-strong-language/4132548.

(26) The term idiom enjoys wide usage in the Swiss language context; more commonly known as varieties in sociolinguistics.

(27) Isobel Leybold-Johnson, “Controversy Rages over Standardised Romansh,” SWI Swissinfo.Ch, August 6, 2006, http://www.swissinfo.ch/eng/controversy-rages-over-standardised-romansh/41074.

(28) Deborah Ball, “Swiss Effort to Save a Language Opens a Rift,” Wall Street Journal, September 1, 2011, sec. World News, http://www.wsj.com/articles/SB10001424053111903352704576540252076676760.

(29) See related discussion and some counter-arguments in Heinz Kloss, “Language Rights of Immigrant Groups,” International Migration Review 5, no. 2 (Summer 1971): 250–68, and Will Kymlicka, Multicultural Citizenship (Oxford; New York: Oxford University Press, 1995).

(30) Rachel Leow, Taming Babel: Language in the Making of Malaysia (Cambridge: Cambridge University Press, 2016).

(31) Nancy H. Hornberger, “Frameworks and Models in Language Policy and Planning,” in An Introduction to Language Policy: Theory and Method, ed. Thomas Ricento (New York: John Wiley & Sons, 2006), 24–41.

(32) Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford; New York: Oxford University Press, 2001).

(33) William Safran, “Introduction: The Political Aspects of Language,” Nationalism and Ethnic Politics 10, no. 1 (January 1, 2004): 1–14, https://doi.org/10.1080/13537110490450746.

(34) Language ideologies are, broadly speaking, beliefs that people have about language and about the relationship between language and society, politics, and morality. The study of language ideologies corrects long-lasting neglect of subjective ideas that people hold about language in formal studies of linguistics, and provides analytical attention to non-referential functions that language plays through these ideas. See Paul V. Kroskrity, “Regimenting Languages: Language Ideological Perspectives,” in Regimes of Language: Ideologies, Polities, and Identities, ed. Paul V. Kroskrity (Santa Fe, NM: School for Advanced Research Press, 2000), 1–34.

(35) Stephen May, “Language Policy and Minority Rights,” in An Introduction to Language Policy: Theory and Method, ed. Thomas Ricento (New York: John Wiley & Sons, 2006), 263.

(36) In the study of language, the former is sometimes also known as communicative and the latter as expressive. I have chosen the terms instrumental and symbolic intentionally for their broader semantic scope.

(37) Tushnet and Yackle have further identified a third category which—following Sunstein—they called “expressive” statutes, which sits in between the instrumental and symbolic dimensions of law. However, Sunstein himself has not clearly distinguished between “expressive” and “symbolic” functions, and thus this third category will not be discussed here. Mark Tushnet and Larry Yackle, “Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act,” Duke Law Journal 47, no. 1 (1997): 1–86; Cass R. Sunstein, “On the Expressive Function of Law Special Reports,” East European Constitutional Review 5 (1996): 66–72.

(38) Joseph R. Gusfield, “Moral Passage: The Symbolic Process in Public Designations of Deviance,” Social Problems 15, no. 2 (1967): 175–88, https://doi.org/10.2307/799511.

(39) John P. Dwyer, “The Pathology of Symbolic Legislation,” Ecology Law Quarterly 17, no. 2 (1990): 233–316, https://doi.org/10.15779/Z388J9K.

(41) Bart Van Klink, “Symbolic Legislation: An Essentially Political Concept,” in Symbolic Legislation Theory and Developments in Biolaw, ed. Bart Van Klink, Britta Van Beers, and Lonneke Poort, Legisprudence Library (Cham: Springer, 2016), 19–35.

(42) Robert M. Cover, “Violence and the Word,” Yale Law Journal 95 (1985): 1601–29.

(44) Mac Giolla Chríost, The Welsh Language Commissioner in Context, 191.

(50) There are, of course, many criticisms of these trials as victor’s justice. See review in Kirsten Sellars, “Imperfect Justice at Nuremberg and Tokyo,” European Journal of International Law 21, no. 4 (November 1, 2010): 1085–1102.

(51) In Skoma-Lux, Case C-161/06 [2007] ECR I-10841, EU law that has not been published in the language of a new member state was precluded from imposing obligations on individuals in that state.

(52) Anne Lise Kjær and Silvia Adamo, “Linguistic Diversity and European Democracy: Introduction and Overview,” in Linguistic Diversity and European Democracy, ed. Anne Lise Kjær and Silvia Adamo (Surrey, England; Burlington, VT: Ashgate, 2011), 1–15.

(53) Peter A. Kraus, “Neither United nor Diverse? The Language Issue and Political Legitimation in the European Union,” in Linguistic Diversity and European Democracy, ed. Anne Lise Kjær and Silvia Adamo (Ashgate, 2011), 17–33.

(54) Their institutional use is regulated by Council Regulation No.1/58.

(55) After NATO intervened during the two-year war in the Federal Republic of Yugoslavia in 1998–1999, the United Nations was involved in the administration of the territory and in overseeing the institutional development of a democratic self-government.

(56) In the form of minority treaties during the life span of the League of Nations.

(57) For a summary, see Dominik Bohl, “Language Rights in the World Polity: From Non-Discrimination to Multilingualism,” in Language Rights Revisited: The Challenge of Global Migration and Communication, ed. Dagmar Richter et al. (Oisterwijk; Berlin: Wolf Legal Publishers; Berliner Wissenschafts-Verlag, 2012), 113–28.

(58) Essential Linguistic Provisions at the Paris Peace Conference for example provides, among other things, that “[n]otwithstanding any establishment . . . of any official language, adequate facilities shall be given to . . . nationals of [other] speech for the use of their language, either orally or in writing, before the courts.” See Jacqueline Mowbray, Linguistic Justice: International Law and Language Policy (Oxford; New York: Oxford University Press, 2012), for an overview of international law on state language policy. See also discussion on international law on language rights in Chapter 7 of this book.

(60) Ruth Gavison, “What Belongs in a Constitution?” Constitutional Political Economy 13, no. 1 (March 1, 2002): 89–105, https://doi.org/10.1023/A:1013691208701.

(61) Gavison, 90.

(62) See Chapter 4 of this volume for examples of how constitutionally conferred official language status may indirectly impose obligations on private actors. For general discussion of how constitutional rights may also exert their effects horizontally such that private actors could not obstruct the rights enjoyed by others, see Stephen Gardbaum, “The ‘Horizontal Effect’ of Constitutional Rights,” Michigan Law Review 102, no. 3 (2003): 387–459, https://doi.org/10.2307/3595366.

(63) Stephen Tierney, Constitutional Law and National Pluralism (Oxford; New York: Oxford University Press, 2006).

(64) Integrated approaches also exist, see Oona A. Hathaway, “Between Power and Principle: An Integrated Theory of International Law,” The University of Chicago Law Review 72 (2005): 469–536. Although these approaches are primarily used to explain state behavior in the international arena, I am borrowing them here to explain state decisions on a domestic matter.

(65) William Michael Reisman and Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law: Cases, Readings, Commentary (New Haven, CT: New Haven Press, 1987).

(66) Dennis Ager, Motivation in Language Planning and Language Policy (Buffalo, NY: Multilingual Matters, 2001).

(67) Derrick A. Bell, “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93, no. 3 (1980): 518–33, https://doi.org/10.2307/1340546.

(69) Lecomte, “Official Languages or National Languages?”

(70) Or sometimes known as “autochthonous” in European human rights instruments.

(72) Bruno de Witte, “Language Rights: The Interaction between Domestic and European Development,” in Linguistic Diversity and European Democracy, ed. Anne Lise Kjær and Silvia Adamo (Surrey, England; Burlington, VT: Ashgate, 2011), 167–88.

(75) Deborah Tannen, “The Relativity of Linguistic Strategies: Rethinking Power and Solidarity in Gender and Dominance,” in The New Sociolinguistics Reader, ed. Nikolas Coupland and Adam Jaworski (Basingstoke, UK: Palgrave Macmillan, 2009), 168–86.

(76) Amy H. Liu, Standardizing Diversity: The Political Economy of Language Regimes (Philadelphia: University of Pennsylvania Press, 2015).

(77) More than 80% of Gabonese are estimated to have fluency in French.

(78) According to the 2012 census in Rwanda, only 6.6% of the population claims to be bilingual in Kinyarwanda and English, and 5.8% of the population claims to be trilingual in Kinyarwanda, English, and French.

(79) François Grin, “Economic Considerations in Language Policy,” in An Introduction to Language Policy: Theory and Method, ed. Thomas Ricento (New York: John Wiley & Sons, 2006), 81.

(80) Department for Business, Innovation and Skills, “International Education – Global Growth and Prosperity: An Accompanying Analytical Narrative,” July 2013, www.gov.uk/bis.

(81) See Ben Rampton, “Displacing the ‘Native Speaker’: Expertise, Affiliation and Inheritance,” in The Language, Ethnicity and Race Reader, ed. Roxy Harris and Ben Rampton (London; New York: Routledge, 2003), 107–11.

(82) Lucie Moussu and Enric Llurda, “Non-Native English-Speaking English Language Teachers: History and Research,” Language Teaching 41, no. 3 (2008): 315–48, https://doi.org/10.1017/S0261444808005028.

(83) Ryuko Kubota and Angel Lin, “Race and TESOL: Introduction to Concepts and Theories,” TESOL Quarterly 40, no. 3 (2006): 471–93, https://doi.org/10.2307/40264540.

(86) Tariq Rahman, “Language Ideology, Identity and the Commodification of Language in the Call Centers of Pakistan,” Language in Society 38, no. 2 (April 2009): 233–58, https://doi.org/10.1017/S0047404509090344.

(88) Michael Peter Smith and Luis Eduardo Guarnizo, Transnationalism from Below (New Brunswick, NJ: Transaction Publishers, 1998).

(90) World Englishes has developed as a subfield of sociolinguistics and linguistic typology for a few decades.

(91) Quote of Edward Mokole, Ministry of Higher Education. Goldsmith, “BBC News - South Sudan Adopts the Language of Shakespeare,” October 8, 2011, https://www.bbc.co.uk/news/magazine-15216524.

(94) Charlotte Hoffmann, “Monolingualism, Bilingualism, Cultural Pluralism and National Identity: Twenty Years of Language Planning in Contemporary Spain,” Current Issues in Language and Society 2, no. 1 (April 1, 1995): 59–90, https://doi.org/10.1080/13520529509615435.

(95) Cited in Oona Anne Hathaway and Harold Hongju Koh, Foundations of International Law and Politics (New York: Foundation Press, 2004), 29.

(98) See Bakhtin, “Discourse in the Novel,” for discussion of double-voiced and dialogic discourse, which is commonly observed in rhetoric.

(100) On the other hand, it is the four major former settler colonies—Australia, Canada, New Zealand, and the United States—that voted against the United Nations Declaration on the Rights of Indigenous Peoples in 2007, suggesting a limited commitment to indigenous rights.