Monday, March 23, 2009


I have learned many things by studying German. Germans tell me I have reached “near native” ability, but there are always peculiar words and expressions that elude me. Foreign languages always remain foreign languages, no matter how long you study them. There comes a point beyond which you just cannot really learn any more. If you were not born with a language and did not experience early life with it, you will never achieve the limited fluency you achieve later by abstract, theoretical study. That is not to say that you cannot learn languages later in life. It simply means that you can never master all the idiomatic intricacies that native speakers naturally sense when they speak, read and write. That is a cultural inevitability.

For me, German has been an adventure. From my earliest childhood, I have been fascinated with Germans and their language. I could imitate German when I was a child, but I did not start learning the language until I was 18. For some reason, it was an easy process. I have studied many other foreign languages in my life. But none came as easily as German. It came to me almost by second nature. For years, I have tried to understand why. Was it my ancestry? My family line traces partially back to East Prussia and German-speaking Protestants in modern-day Poland. One hundred years ago, my great-great grandfather was a newly-arrived immigrant in Connecticut who spoke no English at all. By my mother’s time, no one spoke German in my family. Then I resumed the family tradition by speaking German again. Perhaps it is easier to learn your ancestors’ language if only a single generation separates you from it.

German is remarkably similar to English. As a native English speaker, that could also explain why it was relatively easy to learn. In centuries past, English looked even more like German than it does today. They both come from a common “Germanic” tradition. Over the past 300 years, English has changed drastically by assuming numerous French and Latin-based words. Even its word order, grammar and spelling have changed. German has not changed as much. German still retains peculiar rules for spelling, word order and grammar. English used to have similarly peculiar rules. Like the Germans, we capitalized all our nouns (read the Constitution; almost all the nouns are capitalized) and we combined prepositions to create words like “thereof,” “hereby” and “whereby.” The Germans do that all the time, as in “davon,” “hiermit” and “wobei.” Now, English speakers simply say: “I haven’t heard of that.” In times past, they said: “Thereof have I not heard.” Germans still use the old-style syntax: “Davon habe ich nicht gehört.” To understand German, you simply must imagine that you are speaking old-time English. If you can do that, the two languages appear virtually identical.

English used to distinguish between formal address and informal address with the words “You” and “Thou.” “You” was formal. “Thou” was informal. German retains the distinction. In formal address, Germans use the word “Sie.” In informal address, they use the word “Du.” Our linguistic heritage provides an easy explanation for this. In English, the sound “th” is unusual. Many foreign speakers cannot make the sound because it does not exist in their languages. In times past, however, the English “th” used to be a hard “t” sound, almost a “d.” That explains why German words with a hard “d” generally have English counterparts containing “th.” “Du” became “thou.” “Doch” became “though.” And “durch” became “through.” In passing, you can also see that the soft English “gh” used to be guttural, matching the German “ch.” With time and study, these similarities and interrelationships become obvious. They have led me to the conclusion that German and English are extremely close linguistic relatives. Thus, if you can speak English, you simply need to make a few systematic changes and you can speak German. You just need to cut through the Franco-Latin underbrush that has grown over the basic Germanic roots. In some cases, the roots are still visible. “Der Finger” in German still means “finger” in English. “Der Fisch” means “fish,” and the list goes on.

Once I achieved some proficiency in German, I began reading original German texts. This was a remarkable adventure. From philosophy and literature to law and history, I gained insights into a new world of ideas. Many great German texts have not been translated into English. By reading books in German, I began to understand that there are different ways to approach problems and different ways to discuss them. Language channels thought, and when you can speak a different language, the thoughts come out differently. German can analyze ideas and create concepts in a way different than modern English. True, It can be difficult to read. But it is worth the effort.

I spent three years studying American law. During that time, I read almost without pause. I learned how to examine arguments and writing styles. Nonetheless, almost all American judicial writing follows some common patterns. For one, it draws on a common Anglo-American legal tradition. Second, it applies English rhetorical techniques that only make sense within the Anglo-American value system. Third, it is in English. That may sound prosaic, but I mention it for a reason. English has limitations. It is difficult to create concepts in English without clumsily splicing ideas together with “ofs,” “fors” and “-ations.” English sloppily splits and reconstitutes ideas in ways that German does not. When it comes to the law, such imprecision can be confusing.

During my last year in law school, I opened Immanuel Kant’s “On the Metaphysics of Morals.” After studying Anglo-American law for almost three years, I was stunned to see a legal work written with such conceptual coherence. The concepts were well-defined. The arguments were logical and concise. There was no muddling about facts. There were no tedious exceptions or qualifications. There was no bad writing or English double-talk. There they were: Concepts and arguments in clear, concise, precise German. Yes, it was difficult to sift through the writing at first. But it is difficult to grasp any legal concept during your first encounter with it. After reading Kant just once, however, I felt like I understood a whole lexicon of new ideas. Unlike American judges who fashion ponderous “fact-based” tests and bizarre English grammatical conundrums such as: “Unless it requires proof of an element that the other offense does not,” Kant labeled his terms, defined them, then made arguments based on them. It was remarkably intuitive. And I have never forgotten them. I re-read them when I must, but unlike American cases and statutes, I do not need to constantly re-read them just to understand what they are saying.

This is the problem with English: There are so many different ways to say the same thing that it can be difficult to grasp immediately what the author is talking about. Studying German made me appreciate that. That is why I strive to be as clear as I can in my English writing. I do not want to confuse; I want to enlighten. I want people to know what I think. You can’t do that if your reader has to re-read your sentences forty times before guessing what you mean.

Lately, I have been reading the German Civil Code, Germany’s all-encompassing authority on civil law. Germany does not have a system in which a contract defense may exist in Arkansas but not in Nebraska. It does not have fifty disparate tribunals that pronounce different legal rules for negligence by referencing strange facts from ancient cases. Rather, it sets forth a uniform standard for claims involving private parties, no matter the facts. Even the concept “tort” makes more sense in German: “Impermissible Acts (Unerlaubte Handlungen) Bürgerliches Gesetzbuch § 823.”

I think it is helpful to understand how other countries resolve legal questions. Although Justice Scalia rejects reliance on foreign law to understand American law, you do not have to use foreign law as a means to decide cases. You can deepen your understanding about the law in general by examining how other countries think about the same issues. Actual reliance on German law to decide an American case presents technical problems in the American federal system. But there is nothing wrong with keeping an open mind to other legal traditions merely for enrichment. Justice Scalia is hostile to all foreign law because he thinks advocates will use it to warp American legal traditions. See, e.g. Roper v. Simmons, 543 U.S. 551, 622-630 (2005)(Scalia, J., dissenting). He buttresses his argument with familiar republicanism by claiming that the “American people” adopted their legal traditions and judges have no right to import European replacements without democratic consent. I do not sound such alarms. I simply believe that it is beneficial for any perceptive person to understand how other countries approach legal problems. I have a simple rule in this regard: The more you know, the better you are. And you can make better decisions if you know more than if you know less. Justice Scalia’s hostility to foreign law proceeds on the rationale that it is better to know less than more. In my view, that is not a good policy.

I often write about debt and the difficult issues it raises with regard to fairness and power. In German law, the Civil Code defines a “Debt Relationship” as follows (my translation): “By the power of the Debt Relationship, the Creditor obtains the right to demand a service or performance from the Debtor.” Bürgerliches Gesetzbuch § 241. What a remarkably concise definition. This is good, clear German explication. Rather than sifting through ancient cases to discover what “debt” means in every American State, here we find a simple, pithy definition that applies in every court in the country. From a substantive perspective, we sense immediately that debt implies a power relationship. There can be no “debt” without a “relationship,” and that “relationship” creates power in the “creditor.” More particularly, the “creditor” has a “right” to “demand” a “service or performance.” These are not uncertain words. They say exactly what it means to be a “debtor” and a “creditor.” They starkly reveal that the creditor can “demand” a “performance,” just as a master might demand a slave’s performance, or a paying patron might demand an artist’s performance. Debt compels action; even if the debtor does not wish to perform, the law gives the creditor the “right” to “demand” performance. He who has the power to compel action necessarily has more power than the person compelled. The law favors the creditor and oppresses the debtor. The relationship is precisely the same in American law; it just does not come across as clearly as it does in the German statute. In that sense, I praise the German statute for getting right to the heart of the matter. The German statute defines the relationship, the parties and their respective powers. It does not mince words and we remember immediately what it means. It is rare to find a similarly concise statute in American law.

I mention this brief example to underscore how much you can learn by studying German or any other foreign language. If I had not learned German, I never would have been able to read this statute or think about how it relates to American norms. I do this all the time. I constantly read, compare, think and reflect. It is not enough merely to read one language. We disserve our minds when we consume only English discourse. There is so much knowledge concealed in foreign discourse. To access it, we must make the effort and learn a new linguistic tradition. Once we do, we never think the same way again. That is a great step forward in itself.

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