Our analysis revealed a total of 1024 linguistic comments. In what follows, these comments will be further analysed by means of an inductive qualitative classification, which will specify the different types of comments (Sect. 5.1) and their implementation in the published legislation (Sect. 5.2)—cf. our methodology in Sect. 4.
Types of Linguistic Comments
All linguistic comments were divided into four main categories: language comments (LC), discourse-specific comments (DSC), translation comments (TC) and comments on non-substantive reformulations (CNSR).
The first category, the language comments (Sect. 5.1.1), regards all comments on mistakes against the Dutch or French standard language. The discourse-specific comments (Sect. 5.1.2), on the other hand, concern comments on features which are problematic or wrong only within the specific context of the law because they are not in accordance with the legal (discourse) tradition or cause problems for the specific text function. The third category, the translation comments (Sect. 5.1.3), include all comments which explicitly address formulation-related differences between the French and Dutch versions of the law (= inequivalencies). The final category, which regards comments on non-substantive reformulations (Sect. 5.1.4), must be understood specifically in light of the context of recodification. Part of the recodification process included the linguistic modernisation of the codes, without substantively changing the legal rules in question. In such cases, the Council recommended the legislator to mention this in the explanatory memorandum.
Looking at our inductive classification from a quantitative perspective (Figs. 1 and 2), we find notable differences. The most frequent category are the discourse-specific comments, which are accounted for 927 times (equal to 90.5% of all linguistic comments). They are followed by the translation comments (53 occurrences or 5%) and the language comments (41 occurrences or 4%). The final category, the comments on non-substantive reformulations, are only marginally accounted for: 3 times, which makes up less than 0.5% of all linguistic comments.
The following subsubsections will discuss the aforementioned categories in more depth and provide some examples, as well as distinguish subtypes for the first two categories (cf. Sects. 5.1.1 and 5.1.2). Section 5.1.5 provides an overview of the distribution of comments across the different opinions.
Language Comments
Language comments were earlier defined as comments on mistakes against the two standard languages. Within this category, a further distinction can be made between grammatical (1), idiomatic (2) and orthographic (3) comments:
(1)
|
À l’article 1:31, alinéa 2, en projet, il y a lieu, dans la version française, de remplacer le mot « visé» par le mot « visées»
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[3: 106]
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‘In article 1:31, subparagraph 2, of the legislative proposal, in the French version, it is necessary to replace the word “visé” by the word “visées”.’
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(2)
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Dans le texte français du paragraphe 1er, on écrira « entre les associés restants» au lieu de « en les associés restants»
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[3: 51]
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‘In the French text of the 1st paragraph, one has to write “entre les associés restants” instead of “en les associés restants”.’
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(3)
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L’avant-projet comporte de nombreuses erreurs typographiques, qui seront corrigées. En voici des exemples dans la version française: […] compétencs […] sociététs […]
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[3: 111–112]
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‘The preliminary draft contains numerous typographic errors, which have to be corrected. Below some examples from the French version: […] compétencs […] sociététs […]’
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The grammatical comments, exemplified by (1), regard all comments on conjugations and accords. This is the most frequent subtype within the language comment-category, with a total of 26 occurrences. The idiomatic comments (2), which are accounted for 5 times, have to do with mistakes against more or less fixed expressions. Finally, the orthographic comments (3), accounted for 10 times, include all comments on misspelled words. A long list containing no less than 28 such orthographic errors,Footnote 10 like compétencs (instead of compétences) and sociétets (instead of sociétés) can be found in the concluding remarksFootnote 11 of the advisory opinion on the Code on Companies and Associations [3: 111–112].
When we look at the distribution of language comments across the different opinions (cf. Table 2), we observe that these comments can be found in six of the three opinions. More specifically, the language comments are absent in the advisory opinions on the Civil Code, Legacies and Gifts, the Matrimonial Property Law and Book 5 (Obligations).
Considering their textual distribution from a qualitative perspective, we must observe that, within the specific comments, these comments are rarely formulated in the main text of the advisory opinions, but instead in footnotes or between parentheses (cf. e.g., [4: 28; 8: 121]). Accordingly, it seems that the Council of State did not—or could not, due to the great workload of the Council and the time limits set by the legislator (cf. Sects. 3 and 4.3)—specifically focus on language correctness, treating them almost exclusively as sidenotes. However, within the concluding remarks of some opinions—for the new Code on Companies and Associations [3: 105–112], the Elimination of the Commercial Code [4: 56–58] and Book 8 (Evidence) of the Civil Code [7: 20–21]–, the Council of State formulated a limitative list of linguistic problems occurring within the laws, which could also contain language comments. Language comments were especially frequent in the list made for the Code on Companies and Associations. In this case, they generated a total of 31 comments. This is the normal approach of the Council: if language mistakes in a proposal are plentiful, the Council will, due to the time limit and its workload, not be able to deal with them one by one. It will then take a sample of the text and discuss the mistakes that were made in the general comments, which the legislator can then use to check for other language mistakes during the revision of the texts.
Discourse-Specific Comments
The discourse-specific comments appeared most frequently in our corpus, making up 90.5% of all comments. These comments have to do with the discourse-specific features and needs of law texts and can be further divided into four categories: general discourse comments (Sect. 5.1.2.1), terminological comments (Sect. 5.1.2.2.), pragmatic comments (Sect. 5.1.2.3) and lexico-grammar comments (Sect. 5.1.2.4) (cf. Fig. 3).
In our classification (cf. Table 2, Sect. 5.1.5), these comments constitute the most frequent category in all texts, with the pragmatic comments being the most frequent subtype in the first six opinions and the terminological comments being the most frequent subtype in the last three. This high frequency, in comparison to the frequency of the other categories, is in part due to the complexity of this category: whereas the language comments-category (cf. Sect. 5.1.1) exclusively regards grammatical, idiomatic, or orthographic comments, the discourse-specific category entails four subcategories, with the terminological and pragmatic comments each entailing two ulterior subcategories, cf. Sects. 5.1.2.2–5.1.2.3.
General Discourse Comments
The first subcategory of discourse-specific comments is entailed by the general discourse comments, which we named as such since they do not single out specific problems at specific passages in the proposals, but rather include general statements about the quality of the proposals’ linguistic organisation (4).Footnote 12
(4)
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L’avant-projet constitue de toute évidence un texte qui n’a pas fait l’objet d’une relecture globale après l’assemblage de ses différentes composantes
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[3: 5]
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‘The draft proposal is clearly a text which has not been subject to a thorough proofreading after the different parts [of the draft proposal] were merged together.’
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In doing so, the Council of State can also call out the lack of effort put into the linguistic redaction by the legislator—which happened for instance for the Code of Companies and Associations—even though within legal doctrine said redaction is considered a crucial part of the recodification process (cf. Sect. 1.2). During our analysis, we accounted for a total of 7 comments pertaining to the general discourse comment subcategory. Notwithstanding their relatively low quantitative frequency, the weight of these comments on the linguistic quality of the proposal is very big, since their qualitative scope regards the proposal in its entirety.
Terminological Comments
The second subcategory concerns terminological comments, which were accounted for 391 times. Within this subcategory, an ulterior distinction can be made between comments on used terminology (243 comments) and comments on definitions (148 comments).
Comments on Used Terminology
The comments on used terminology regard whether terminology was used correctly, consistently throughout the entire law proposal, in accordance with the legal (discourse) tradition and clear enough to secure legal certainty. Some examples of these comments are given in (5):
(5)
|
a. Á l’alinéa 3, la notion d’inefficacité n’a pas de consistance juridique propre. Il est préférable de la remplacer par l’expression « sans effet»
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[6: 15]
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‘In subparagraph 3, the term ineffectiveness has no proper judicial meaning. It would be appropriate to replace it with the expression “without effect”.’
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b. L’article 1100/7 proposé du Code civil utilise à plusieurs reprises la notion de « père et mère» afin de désigner les personnes à l’égard desquels un lien de filiation est établi en ce qui concerne les héritiers présomptifs en ligne directe. Une telle formulation ne permet pas de rendre compte des nouvelles formes de parenté existantes. À l’heure actuelle, un enfant peut en effet avoir deux parents d’un même sexe
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[2: 29]
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‘The drafted article 1100/7 of the Civil Code uses at various points the term “father and mother” to designate the persons with whom the presumed heirs are directly related. Such a formulation does not include new forms of parenthood. Nowadays, a child can have parents of the same sex.’
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Particularly interesting with regard to the recodification process is (5b): the use of the collocation père et mère (“father and mother”) creates problems about other forms of parenthood like same-sex parents, which were already recognised by older legislation. Such terminology, therefore, hinders the (linguistic) modernisation aspect of the recodification. Similar problems arose with other outdated terms as well, like porteur des titres ([3: 32], “security holder”), which no longer exists in Belgian law, and photocopies ([3: 58], “photocopies”), which cannot be used to refer to electronic documents.
The uniformity of the terminology, on the other hand, appears to have been a particular problem in the proposals for a new Code on Companies and Associations [3: 20–21] and Book 2 of the new Criminal Code [9: 91]. Here, the Council of State explicitly pointed out the terminological variation in the introductory remarks and recommended avoiding terminological inconsistencies as much as possible. These inconsistencies, in turn, form a major problem when it comes to the legislator’s goal of “cleaning up terminology” (cf. Sect. 2.1). An additional problem concerning terminological uniformity was that terminology not only had to be used consistently within each legislative proposal, but also across the different recodification proposals, which was not always the case. This has, for instance, been pointed out in the advisory opinion on the Elimination of the Commercial Code [4: 34].
Comments on Definitions
Since the recodification introduced a lot of new legal terminology, the Council dedicated particular attention towards the definitions provided by the legislator. These comments deal with the correct and clear formulation of definitions, whether they are applicable throughout the entire law proposal and whether they are in accordance with the legal tradition. Requests made by the Council of State to provide definitions for certain terms also belong to this category. These comments are exemplified in (6):
(6)
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a. L’article TP-1, 17°bis définit le sexe comme « le sexe d’une personne», l’équivalent néerlandais étant « de sekse van een persoon». Il va sans dire qu’une telle définition n’a guère de sens
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[9: 95]
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‘Article TP-1, 17°bis defines sex as “the sex of a person”, the Dutch equivalent being “the sex of a person”. It goes without saying that such a definition makes no sense.’
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b. L’article T5C1S2SS5-5 définit la malversation comme étant une malversation. Contrairement à ce qui est affirmé dans l’exposé des motifs, cette définition circulaire, qui est peu éclairante, ne se retrouve pas à l’article 489sexies du Code pénal
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[9: 129]
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‘Article T5C1S2SS5-5 defines a malpractice as being a malpractice. On the contrary of what is stated in the explanatory memorandum, this circular definition, which is unclear, cannot be traced back to article 489sexies of the Criminal Code.’
| |
Both comments in (6) regard circular definitions. Another interesting example, particularly in the light of the recodification, regards a comment on the definition of vol (“burglary”) in the proposal for a new Criminal Code [9: 84]. In this case, the Council noted that the legislator proposed a new definition of burglary, but that the previous definition was already very clear and therefore guaranteed a uniform jurisprudence. This led the Council to question whether jurisdiction would profit from a new definition—or recodification—of the term burglary. Consequently, the new definition proposed by the legislator neither formed an improvement compared to the previous one, nor reflected case law on the matter.
The comments on definitions also concerned the key notions of each legislative proposal, like entreprise ([1: 4–5; 4: 33–39], “corporation”) in the two proposals regarding the Economic Code, and société cotée ([3: 17–18], “listed company”) and société à responsabilité limitée ([3: 9–11], “company with limited responsibility”) in the Code on Companies and Associations. In the case of the definitions for entreprise (“corporation”), for instance, the Council pointed out that this notion was not exclusive to Book XX of the Economic Code in Belgian law [1: 4] and that, regarding the compatibility with higher norms, specific rules and definitions also existed on the European level [4: 37]. In such cases, the comments on definitions not only regard the legal scope of a singular term but also the legal scope and legal certainty provided by the new (proposed) code in its entirety.
Pragmatic Comments
The third group of discourse-specific comments, labeled pragmatic comments, regards all comments on formulation-related and interpreting problems above the terminological level. In our classification, this is the most frequent subcategory of the discourse-specific comments, amounting to 519 comments. Once again, a further distinction can be made, with comments on discourse efficiency, on the one hand, (379 comments) and comments on the thematic and formal coherence of the law, on the other (140 comments).
Comments on Discourse Efficiency
The first case addresses whether propositions (word groups, sentences, entire paragraphs) were formulated as concisely as possible, leading to an intelligible text which avoids vagueness and ambiguity as much as possible. Various examples of these comments are given in (7):
(7)
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a. À l’alinéa 1er, deuxième phrase, l’abus d’adverbes dans la définition de l’appréciation marginale (« manifestement», « normalement» et « raisonnablement») nuit à la clarté du texte
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[3: 36]
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‘In the 1st subparagraph, second sentence, the overuse of adverbs in the definition of marginal review (“obviously”, “normally”, “reasonably”) affects the clarity of the text.’
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b. On ne comprend pas qui est visé, dans le texte français, par le pronom « elles» à l’alinéa 4. Il convient d’utiliser le mot « ils» ou préférablement un terme plus précis
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[3: 36]
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‘We do not understand who is intended, in the French text, with the pronoun “elles” [they/feminine] in subparagraph 4. It would be more correct to use the word “ils” [they/masculine] or preferably a more precise term.’
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c. Au paragraphe 2, les mots « que l’interruption de mandat ait ou non été convenue de commun accord» sont dépourvus de portée normative dès lors qu’on se trouve nécessairement dans l’un ou dans l’autre cas. Ces mots seront donc omis
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[3: 47]
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‘In paragraph 2, the words “whether or not the interruption of the mandate was established by mutual agreement” have no normative consequence since one of the two situations is always applicable. These words, therefore, need to be left out.’
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d. À l’alinéa 3, l’expression « causés par …» est impropre. Il convient d’écrire: le « dol, la violence ou l’abus de circonstances, imputables à un tiers complice d’une partie contractante ou à …»
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[6: 12]
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‘In subparagraph 3, the expression “caused by …” is insufficient. It would be better to write: the “fraud, violence or abuse of circumstances, attributable to a third-party accomplice of a contracting party or a …”’
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In (7a), for instance, the Council of State remarked that the overuse of adverbs affected the clarity of the text. In (7b), a problem of coreference was highlighted, since it was not clear to which objects the pronoun elles (“they/feminine”) referred, leading to an unintelligible text. The word group singled out in (7c), in turn, has no normative consequence, and so the Council advised the legislator to remove it. Finally, in (7d), the Council proposed its own formulation to substitute another formulation, which the Council deemed insufficient.
Comments on Thematic and Formal Coherence
The second group of pragmatic comments includes all comments on internal coherence, both thematic and formal. Consider in this regard the examples in (8):
(8)
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a. Le paragraphe 3 est redondant avec le paragraphe 2 et peut être omis. ‘Paragraph 3 is redundant and can be left out.’
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[3: 35]
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b. Il conviendrait de préciser l’intitulé de l’article en projet: «Caractère résiduel de la notion de meuble»
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[8: 31]
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‘It would be appropriate to specify the title of the drafted article: “residual nature of the term property”.’
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[3: 36]
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c. Il convient de numéroter (1°, 2°, etc.) les éléments d’une énumération, pour que ces éléments n’apparaissent pas comme autant d’alinéas distincts. Les articles VII.250, VII.260, VII.270, VII.295, VII.328 en projet du Code de droit économique (article 65 de l’avant-projet) seront revus en conséquence
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[4: 57]
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‘It is appropriate to number (1°, 2°, etc.) the elements of an enumeration, so that these elements do not appear as being different subparagraphs. Consequently, the proposed articles VII.250, VII.260, VII.270, VII.295, VII.328 of the Code for Economic Law (article 65 of the draft) need to be revised.’
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Both comments (8a) and (8b) regard the thematic coherence of the law. In the case of (8a), paragraph 3 states the same thing as the preceding paragraph. As such, it is redundant and should be left out. The comment in (8b), in turn, expresses that the title of a designed article does not correspond to its content, which is why the Council of State suggested another title. In (8c), on the other hand, formal problems with the legal text occur: by not numbering an enumeration the legislator might give rise to the idea that the different parts of this enumeration should be understood as different subparagraphs, instead of subordinated thoughts.
This internal coherence appears to have been a particular problem in the proposals for a new Criminal Code and a new Book 5 (Obligations) of the Civil Code. In the introductory remarks of its opinion on the Criminal Code, the Council stated that (i) the legislator would do best to establish as much internal coherence within the proposal as possible [9: 87–91] and (ii), the proposal displayed an atypical layout for a law text [9: 92]. For Book 5 of the Civil Code, on the other hand, the Council noted within its concluding remarks that many of the internal references (that is, to other parts of the draft) were wrong. As such, the Council provided a limitative list of places where this problem occurred [6: 27].
Lexico-Grammar Comments
The final subcategory of discourse-specific comments regards comments on the lexico-grammar choices made by the legislator, which were accounted for 10 times. Legal discourse does not only have its own terminological and formal tradition but also its own lexico-grammar tradition. This lexico-grammar tradition refers to the fact that legal texts prefer to consistently use the same lexico-grammar patterns. Some examples include the use of the definite article de (“the”) instead of pronouns such as hun (“their”) (9a) and the use of verbs in the present indicative if the legislator wishes to express an obligation (9b).
(9)
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a. Dans la version néerlandaise du paragraphe 2, alinéa 2, en projet, il y a lieu de remplacer le mot « hun» par le mot « de»
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[1: 26]
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‘In the Dutch version of paragraph 2, 2nd Subparagraph, in project, the word “hun [their]” needs to be replaced by the word “de [the]”.’
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b. L’expression d’une obligation au sein d’un dispositif est plus adéquatement formulée par le recours à l’indicatif présent plutôt que par l’utilisation du futur
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[7: 13]
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‘To express an obligation in a law it is more appropriate to use the present indicative instead of the future tense.’
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In both cases, the legislator does not make a mistake against the standard language but opts for a lexico-grammar element which is considered less prototypical for legislative texts. Therefore, the Council advises on using the more typical lexico-grammar elements.
Translation Comments
The third main category of comments concerns the translation comments, with 53 occurrences. These comments are mandatory (cf. Sect. 3.3), since all federal legislation is bilingual and the Council of State needs to single out inequivalencies between the Dutch and French versions of the law, which would otherwise create legal uncertainty. These translation comments are exemplified in (10):
(10)
|
a. Par ailleurs, même si sur ce point la version française correspond au texte actuel de l’article 849, il y a lieu, comme dans la version néerlandaise, d’omettre le mot « époux» à l’alinéa 1er
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[2: 18]
|
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‘Furthermore, notwithstanding that at this point the French version of the text corresponds to the current text of article 849, it is, as within the Dutch version, necessary to leave out the word “spouse” in the 1st subparagraph.’
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b. La version française du paragraphe 2, alinéa 3, doit être mise en concordance avec la version néerlandaise afin d’éviter de lire le texte comme signifiant que le gestionnaire doit payer les rétributions
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[1: 18]
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‘The French version of paragraph 2, Subparagraph 3, needs to correspond with the Dutch version to avoid an interpretation of the text according to which it would be the administrator that needs to pay the retributions.’
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The translation comments appear in 8 of the 9 opinions and are only absent from the advisory opinion on the proposed Matrimonial Property Law (cf. Table 2, Sect. 5.1.5). The translation of the proposed Code of Companies and Associations seems to have been particularly problematic. A limitative list with 47 translation problemsFootnote 13 was formulated in the concluding remarks of the corresponding opinion [3: 105] The concluding remarks of the opinion on the proposed Book 3 of the new Civil Code has called out the problematic correspondence between the French and Dutch versions of the law as well [8: 69].
Comments on Non-substantive Reformulations
The final category of comments—the comments on non-substantive reformulations—were only accounted for 3 times (cf. Table 2, Sect. 5.1.5.). These comments are well explained within the advisory opinion on the Code on Companies and Associations (11):
(11)
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La règle d’interprétation selon laquelle il faut donner un effet utile à l’intervention du législateur a pour conséquence que, lorsque ce dernier modifie les termes d’une règle, cette modification doit en principe être interprétée comme une modification de fond
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[6: 5]
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‘The rule of interpretation according to which interventions of the legislator [in the law] are considered to have a useful effect, implies that when the legislator reformulates the wordings of a rule, this reformulation needs, in principle, to be understood as a substantive change.’
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Jurists are inclined to interpret reformulations of legislative texts as substantive changes to the laws themselves. To avoid such a “wrong interpretation” [6: 5], the legislator needs to make explicit in the explanatory memorandum that the reformulation merely had a formal purpose.
The fact that the Council of State only formulated 3 such comments does not mean that this problem did not occur more frequently: 2 of the 3 comments were formulated within the introductory remarks—in the opinion on the proposed Code on Companies and Associations [3: 5] and the proposed Book 5 of the Civil Code [6: 4–5]—and therefore addressed problems occurring at multiple places within those drafts (cf. Sect. 5.2.2). Furthermore, this specific problem with the recodifications was highlighted by various legal scientists, like Storme [54] (cf. Sect. 2.1), who noted this to be a particular problem in the proposed Book 5 of the Civil Code.
Overview
Textual Distribution
Table 2 gives an overview of the comments’ distribution across the different advisory opinions:
The numbers outside of the parentheses (the numbers above) regard the absolute frequencies of comments. The numbers between the parentheses (the numbers below) concern the relative frequencies of comments, which regard their occurrence per million words. As mentioned in Sect. 4.3, is it impossible to use these data for a contrastive analysis between the different texts due to a variety of reasons (cf. the reasons listed in Sect. 4.3). In this regard, we specifically want to draw attention to the fact that the length of certain proposals differs greatly (cf. Table 1, Sect. 3.4).
Table 2 Textual distribution of comments Linguistic Challenges of the Recodification
Many of these comments are problematic when it comes to the goals of the legislator, which included, among other, promoting legal certainty, enhancing the readability, cleaning up terminology and improving internal coherence (cf. Sect. 2.1). For instance, inconsistently used terminology, insufficient definitions (cf. the examples in Sect. 5.1.2.2.) and inequivalencies between the French and Dutch versions of the law (cf. Sect. 5.1.3.) do not contribute to legal certainty and pose more problems than the legislator was able to resolve in terms of terminology. Regarding the pragmatic comments (cf. Sect. 5.1.2.3.), we should note that issues relating to discourse efficiency do not enhance the readability of the texts and that the comments on thematic and formal coherence (cf. Sect. 5.1.2.3.) do, of course, call out the insufficient coherence of these texts. When it comes to the definition of vol (“burglary”) in the proposal for a new Criminal Code [9: 84], we also mentioned that in this case, the legislator was neither able to improve the content of the law, nor reflect the case law on the matter (cf. Sect. 5.1.2.2). Furthermore, collocations like père et mère and archaic terminology like porteur de titres and photocopies do not contribute to a more modern law book.
Similar observations can be made for the benefits that legal doctrine assigns to the recodification (cf. Sect. 2.2). However, these observations are only valid for the first versions of the legislative proposals, since the legislator can rework and improve the draft afterward. Furthermore, our observations are limited to the language of the drafts, and more specifically to the opinions of the Council of State. The legislator can have valid reasons to not implement the comments of the Council. Consequently, it seems worthwhile to look at the implementation of these linguistic comments and consider why some of them were not implemented by the legislator (cf. Sect. 5.2).
Implementation of Linguistic Comments
For the second part of our analysis, the implementation of the linguistic comments, we will look at the laws as they were eventually published in the Belgian Official Journal. We are, however, only able to look at the implementation of seven of the nine proposals, since Book 5 of the Civil Code and Books 1 and 2 of the Criminal Code have not yet been turned into laws.
Furthermore, as already mentioned in our methodology (cf. Sect. 4.2) we will limit ourselves to the implementation of the specific comments. This is done because (i) both the introductory and concluding remarks contain problems that reoccur at various places in the proposals, making their implementation more difficult to account for, (ii) the introductory remarks also include descriptive comments made by the Council, which require no further action from the legislator, and (iii) because the concluding remarks were absent in three of the seven proposals.
The specific comments of the seven accepted laws (cf. Table 3) amount to a total of 650 comments. However, 31 of the comments lost their relevance, since during the redrafting process the paragraphs or articles to which these comments belonged were deleted and their linguistic problems with them. Consequently, we will look at the 619 comments (equal to 60.5% of the linguistic comments singled out in our analysis) whose implementation we can check in the laws themselves.
Table 3 Implementation of specific comments across the different texts In doing so (Fig. 5), we find that 325 of the linguistic comments of the Council of State were fully implemented by the legislator, 93 comments were partially implemented and 201 comments were not implemented at all. In relative data (Fig. 6), this means that the legislator acted upon more than 2/3 (67.5%) of the linguistic comments, with 52.5% being fully and 15% of the comments being partially implemented.
It should be noted that the non-implementation of comments does not necessarily imply a lack of care from the legislator. The legislator can have other opinions than the Council of State on what kind of language formulae are desirable or not (see, for instance, our discussion regarding the implementation of definitions in Book 3 of the Civil Code below). Furthermore, we would like to stress that this implementation only regards comments related to language. Consequently, optimisations regarding the content of the law, which may have been included in the final version of the drafts, are not included in our analysis.
When we only consider the implementation of specific comments across the different texts (cf. Table 3), we find that the non-implementation of this category of comments was particularly high within the new Book 3 (Property) of the Civil Code. Here, 102 of the 149 comments (equal to 68.5% of the comments) were not implemented.Footnote 14
In what follows, we will consider this last code in a more detailed manner. We will therefore look at (i) the implementation of the different types of comments and (ii) compare these data with the explanation of Book 3 provided by Sagaert [51], who was one of the main legal architects of the code in question.
The specific comment-section for Book 3 contained 1 language comment, which addressed an orthographic mistake, 140 discourse-specific comments, including 73 terminological comments, 66 pragmatic comments and 1 lexico-grammar comment, and 8 translation comments. Their implementation is illustrated in Fig. 7:
The terminological comments made by the Council are discussed by Sagaert [51]. Here, Sagaert makes explicit that (a) in Book 3 of the new Civil Code few definitions were provided, (b) the Council commented at various points on this fact, but (c) the comments on missing or vague definitions were mostly not implemented in the law, for which Sagaert provides two reasons:
-
(i)
The authors of Book 3 of the new Civil Code intended the code to be an “instrument for society” [51: 406], starting therefore from a functional approach towards legislation [51: 407]. This implies that, rather than providing the exact definition of legal rules within the law, the legislator intends to give the judicial power the freedom to consider the implications of legal rules and terminology from context to context.
-
(ii)
Imposing too fixed definitions might cause the law to be outdated rather quickly [51: 407]. In this regard, the use of “open categories” contributes to the durability of the law book [51: 410].
Concerning (i), the use of “open categories” can here be seen as what has been called “purposeful vagueness” within legal linguistics [22: 18; 23: 170; 61: 13–14] and is best exemplified by the open categories de bonne foi (in good faith) and de mauvaise foi (in bad faith) [8: 18, 38], which the legislator left without a definition in the final version of the law: what good or bad faith is, can be left for a judge to decide.
Looking at the unimplemented terminological comments in the opinion relating to the relevant law book, we notice that 32 of the 53 of these comments were comments on definitions. However, this particular argument does not explain why 4 pragmatic comments (cf. Fig. 7) were not implemented by the legislator, in particular those which entail more technical matters, like the comments in (12a) on discourse efficiency, and (12b) on the internal coherence of the text. The same applies to the terminological comments not covered by this explanation, like comments on unnecessary (13a) or wrongly used terminology (13b).
(12)
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a. Dans un souci de clarté, les termes « faisant séparation entre les biens ou fonds concernés» seront ajoutés à la fin de l’article 3.118, alinéa 1er, en projet
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[8: 49]
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‘For reasons of clarity, the words “which serves the separation of the relevant goods and funds” need to be added at the end of article 3.118, subparagraph 1, of the proposed article.’
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b. La version néerlandaise des articles 3.121, alinéa 3, in fine, et 3.123, in fine, sera par ailleurs harmonisée
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[8: 51]
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‘The Dutch version of articles 3.121, subparagraph 3, in fine, and 3.123, in fine, need to be harmonised.’
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(13)
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a. Le terme « réacquérir» paraît superflu dès lors que le terme « acquérir» est en effet suffisant pour viser toutes les hypothèses
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[8: 32]
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‘The notion “reacquisition” seems unnecessary, since the notion “acquisition” is broad enough to cover all possible cases.’
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b. La référence qui est faite à la valeur de la « pleine propriété» résulte probablement d’une erreur. Logiquement, il devrait s’agir d’une référence à la valeur de la « nue-propriété»
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[8: 60]
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‘The reference made to the value of “full property” appears to have been a mistake. It would be more logical to refer to the value of “naked property”.’
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Why such comments were not implemented by the legislator is a question that our current analysis cannot answer. The same is true for similar unimplemented comments in other codes. More qualitative research might enable us to better understand the other motives for their non-implementation. Moreover, it would be interesting for future studies to also consider the parliamentary documents of the House of Representatives, which, due to reasons of space, were not considered here. These documents entail the discussion of the advice in parliament and can therefore shed light on the (ideological) stances taken concerning these comments.