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 Translation and the Search for Justice in Contexts of Religious and Cultural Diversity: A Persistent and Complex Challenge (Marie-Claire Foblets and Michele Graziadei).

1 Introduction

‘The language of Europe is translation.’ That aphorism, coined by the late Umberto Eco, very aptly expresses the reality of today’s European societies. It is a phrase that has also been the subject of much commentary and interpretation,Footnote 1 but that is not the debate we are interested in here. For the purposes of this special issue, Eco’s quotation offers a concise description of an omnipresent core feature of European daily reality, a reality that also constitutes the broader context within which the contributions to this special issue are situated.

To explain how the contributions in this issue have been selected and organised, we proceed in three steps: first, we outline a collective research project still in progress that has been the inspiration for this special issue; second, we explain the method we have adopted in compiling this rather eclectic collection of individual contributions; and finally, we provide some brief concluding remarks.

2 The Cultural and Religious Diversity under State Law across Europe database project (CUREDI)

2.1 Overview

The genesis of this special issue dates back to late 2023, when most of the authors represented here agreed to contribute, each from their particular area of expertise, to the annual conference of a major ongoing collective project, the Cultural and Religious Diversity under State Law across Europe database project (CUREDI). Because of the many translation-related questions that had been arising on a regular basis in the course of the CUREDI work, the decision was made to devote the 2023 conference to translation issues. Below, we address, separately, what this project entails and why we have such a keen interest in translation.

CUREDI is an initiative of the Law & Anthropology Department at the Max Planck Institute for Social Anthropology in Halle, Germany.Footnote 2 The basic idea that inspired the project is linked to the empirical observation that, in recent years, the number of court cases throughout Europe brought by individuals or groups from distinct cultural or religious minorities seeking recognition of their identity in various areas of life has increased exponentially. European societies are now home to a growing number of socio-cultural communities (both ‘long-standing minorities’ and recently arrived ethnic, cultural, and religious minorities). As a result, decision-makers at all levels of the public sector (national, regional, local), including those in the judiciary, are regularly confronted with the question of how to deal with institutions, traditions, concepts, practices, beliefs, and sensitivities that are not (yet) familiar to them. The way in which cultural and religious diversity is defined in legal texts and the conditions under which it can be recognised are, for obvious reasons, rooted in the history and concrete experiences of each country. In practice, however, the judiciary is increasingly called upon to deal with diversity issues that are not adequately addressed in the existing legislative framework or case law. In such cases, especially when the issue is perceived as highly sensitive, both politically and socially, the legitimacy of what the judiciary does may be disputed. The challenge in such cases is to strike the right balance between the different interests at stake: on the one hand, respect for the law of the state and, on the other, consideration of the claims made by members of minorities who want their culture and what they assert to be their rights to be granted adequate recognition under state law. This search for the right balance between at times highly complex clashes of interests – clashes that raise the question of how much diversity can be guaranteed without putting at risk social cohesion in a democratic legal order – constitutes a serious challenge that involves not only judges, but also speaks to an increasingly wide range of social actors and stakeholders, many of whom engage in public debates about this quest. One highly sensitive issue in this regard concerns the expression of minority identity in the public sphere. Cases relating to religious and personal symbols, religious education in public schools, the organisation of public cemeteries and burials, religious dietary requirements in prisons and schools, and ritual slaughter, to name but a few, are regularly on the agenda in Europe and give rise to heated debates, often fuelled by existing tensions between opposing groups and ideological and political positions.

In sum, CUREDI is a freely accessible online database project that aims to systematically compile a repository of legal data, mainly drawing from case law relating to cultural and religious diversity and, more specifically, to the way in which this diversity is recognised, to varying degrees, within the national legal systems of European countries. By systematically collecting and storing relevant case lawFootnote 3 for each of the countries covered by the database, CUREDI seeks to give greater visibility to some of the work carried out in recent years by domestic courts across Europe in their effort to accommodate increasing cultural and religious diversity, and to highlight the way they proceed to seek fair solutions, often in highly controversial cases that raise pressing issues. Information on each decision and judgment is presented in a standardised format which includes, in addition to basic information on the case, a detailed report on the judicial reasoning, with an emphasis on the legal arguments and techniques used to support the decision; where applicable, the use of expert witnesses by the court; and a detailed description of the court's balancing of the rights and interests at stake. These reports, accompanied by targeted commentary, are written by experts (CUREDI partners) who are thoroughly familiar with the situation in the country to which their report relates.

CUREDI draws on a network of scientific research teams across Europe with recognised interest and expertise in this field. The repository is still under development, but we have nevertheless considered it to be sufficiently advanced to be publicly accessible, which it has been since early December 2024.Footnote 4

Ultimately, the goal is to show how, gradually, domestic (for the most part national, but also regional) legal systems are accommodating the reality of increasing cultural and religious diversity in today’s Europe and the claims for recognition that come with it. The information focuses on the arguments used in court to justify claims and, concomitantly, on the part of the court, to grant or, conversely, reject a particular request. Whenever possible, reference is also made to the empirical evidence that legislators and/or judges have relied on to reach their conclusions (e.g., recourse to experts).

The aim of the project is, of course, not merely to accumulate data. Once a sufficient number of critical documents are available, the repository will enable comparisons to be made between countries in at least three ways: first, by helping to identify striking disparities or, conversely, similar developments between countries in dealing with cases directly or indirectly related to cultural and religious diversity and/or highlight specific developments and, where possible, explain these disparities or developments; second, by highlighting innovative and creative solutions that have been proposed in individual cases; and third, of course, by providing the necessary links to other existing databases covering topics relevant to CUREDI.

A significant achievement of the CUREDI project, as we see it, is the fact that all the documentation will be available in English. The original languages in which judicial decisions are formulated within the different domestic systems across Europe are the official languages of the countries concerned. This, of course, is completely understandable. The consequence, however, is that those who are not proficient enough in the language in which the decision is written are unable to follow, let alone to understand, the reasoning behind the decision, or even to be aware of the existence of these decisions. The only conceivable possibility for such users is, therefore, to have access to a reliable translation. From the very start of the CUREDI project, translation into English of the data to be collected was the obvious choice. English has indeed gradually, since around the 1950s, established itself as the main lingua franca of Europeans, not officially – it only counts as one among the many official languages recognised at the EU level – but in practice.Footnote 5 Moreover, in the medium term, for the purposes of the CUREDI project, translation into a single language is a prerequisite for comparing the approaches adopted by the respective domestic systems to issues of diversity.

Hence, while the choice of English for a project such as CUREDI was somewhat inevitable, in practice this choice has been accompanied by considerable translation issues along the way.

It suffices here to give two illustrations of such issues for which solutions had to be found. The first illustration relates to the selection of keywords in English, which are intended to facilitate the search for decisions that are of relevance to the users. A list of basic keywords provides a simple but powerful search tool: users can simply enter one or more terms in the search field. They are then directed to all entries in the database that contain these search terms (in the commentary, the summary of the judgment, etc.).Footnote 6 A condition for the search tool to achieve its goal, however, is that the selected English terms be accurate translations of the legal terminology used in the original language of each of the rulings that are the subject of a comment. This constitutes a major challenge: in the interests of systematisation, uniformity, and mutual understanding, it is necessary to accurately translate into formal legal English all topics and terms falling within the scope of the database. Where terms have no equivalent in English, such as kippa, kirpan, hijab, etc., the choice was made not to translate them but rather to provide a comprehensive glossary (see below), with a view to ensuring the greatest possible precision and, consequently, a more accurate description of the issues examined.

The second illustration relates precisely to this initial agreement among the partners to provide the user with such a glossary,Footnote 7 i.e., a list of brief definitions of terms that require clarification and/or explanation because, due to national specificities, either the concept does not exist in some contexts or its meaning is not necessarily identical in the legal languages of the other countries included in the project. The first attempts to formulate such definitions were extremely enriching in terms of the discussions they sparked among the partners, but in the end they were also, in a decisive way, quite sobering: they indeed raised more questions than could possibly be satisfactorily answered by a glossary, to such an extent that the idea of the glossary was temporarily shelved. For the time being, it was decided that the authors themselves would, in their own comments, propose the English-language equivalents of terms and concepts that they deem necessary and useful, and not rely on pre-established definitions that may not be accurate enough for their purposes and therefore could give rise to misinterpretations. These two examples do not exhaust the list of translation issues that the CUREDI partners have encountered so far, but they may suffice to demonstrate the extent to which such issues are central to a project that seeks to build a body of documentation on specific legal matters that regularly arise across jurisdictions in Europe, but where the answers vary considerably depending on the country context and, sometimes within a single domestic context, on a specific court’s approach. Reasonings are not self-explanatory, let alone transposable from one (domestic) context to another, and linguistic translation alone is not sufficient to grasp the very (legal) relevance of a particular approach or solution as it was developed and applied in a concrete case. For each case (selected court decisions) that is examined closely, it is also important to examine, as far as possible of course, the dynamics and realities that the late Professor Rodolfo Sacco called ‘legal formants’ [9]. According to Sacco, in order to understand how legal reasoning translates what arises in real life situations, one must also take the trouble to include as much relevant information about the case as possible in one's analysis.

The analysis of legal reasoning in cases involving culture and religion often highlights considerably sensitive, politically loaded, controversial issues of ethics, morality, and values that inevitably influence court decisions, whether implicitly or explicitly. The systematic documentation of a large number of such cases, as envisaged by the CUREDI project, shows how in some instances the broader societal context impacts the legal reasoning when it comes to adjudicating in concrete situations. This is particularly true when laws are formulated in an open manner or drafted in very general terms,Footnote 8 and it is then up to the court or administration responsible for dealing with a specific case to interpret them.Footnote 9

CUREDI brings together a critical mass of documents showing how similar situations can lead to to very different outcomes, for example between two supreme courts, as was the case with decisions handed down by the Spanish and French supreme courts on full-face veils.Footnote 10 Given the often highly sensitive nature of claims relating to minority protection, when courts engage in a ‘balancing exercise’ between the protection of minority rights and other interests, decisions are often strongly criticised by those who disagree with the approach and who therefore sometimes go so far as to question the legitimacy of the judicial decision-making process: the court is criticised for engaging in a ‘political’ balancing of rights and interests rather than a strictly ‘legal’ or ‘deductive’ one.Footnote 11 To understand why religious and/or cultural factors are taken into consideration in some specific cases more than in others,Footnote 12 it may be important to follow Sacco’s suggestion and to broaden the scope of questions to be raised when analysing a case: Who brought the case before the courts? Is this a strategic dispute and, if so, what is the objective behind the strategy? Did the court call on experts and, if so, was it influenced by their opinions? To what extent are the parties aware of the range of arguments that may be relevant to support their claim? What is the role of precedent? In documenting cases involving religious symbols, cultural defence, unregistered marriages, polygamy, etc., CUREDI endeavours, as far as possible, to reconstruct the particularities of the broader context that may help explain the legal reasoning in a specific case.

2.2 A Conference Dedicated to Translation

Annual CUREDI conferences provide an opportunity to discuss, with the input of all partners who participate in the meeting, what is to be gained by working together with partners from across Europe on issues related to cultural and religious diversity. As our work on CUREDI progressed, translation issues arose with increasing frequency and in relation to a wide range of aspects, not least methodological, that are linked to the request – which is also a conditio sine qua non – that in their shared efforts to comment on rulings and, to the extent possible, to proceed to comparisons, partners can draw on reliable data. Partners have, for example, regularly encountered cases where certain practices, traditions, or beliefs have been misrepresented, particularly due to incorrect translations. It was in light of these kinds of findings that the idea arose to devote the 2023 CUREDI conference to translation. The aim was to enable the partners involved in the project to exchange views, in greater depth and with the help of concrete examples, on the various translation-related issues they face when composing their commentaries on the cases. Partners (who are also the authors of the comments on the court rulings under study), are indeed responsible for ensuring that the quality of their commentaries is not compromised by the fact that they have to produce, in English (which is not the mother tongue for many of them), comments on court decisions that were not initially written in English nor intended to be read by a foreign audience.

Four of the six authors of major articles in this special issue were participants in the conference, while several of the commentators also participated.

3 The Structure of the Special Issue: Five Aspects of Translation

For the conference itself, we initially identified four aspects of translation that we wanted to focus on; we have since expanded that to five. We summarise them very briefly here, as they also explain the choice of topics covered in the contributions selected for this special issue.

One contribution, however, by Michele Graziadei, does not fit neatly into any of the five aspects. It is far broader in historical scope, and provides a succinct and highly useful historical meta-overview that serves as an overall frame for the other contributions. Drawing from the broad field of comparative law, Graziadei reflects on the paradoxical status of legal translation, which, despite its growing sophistication, still suffers from a lack of epistemological legitimacy in some quarters. His contribution invites us to take legal translation seriously not only as a matter of technique, but also as a site of first-rate jurisprudential challenges that translators take on when they act as intermediaries between legal systems, with the power to shape the meaning and trajectory of law itself.

Following that come the contributions that illustrate one or more of the five perspectives identified.

3.1 The Search for Equivalents

One major translation challenge involves certain concepts that do not have an equivalent in English, and whose translation is therefore subject to debate. The difficulty of finding a way to convey the meaning of a concept, institution, or practice in a language that does not have an adequate term is well known to comparatists. In Europe, such situations have become more common with the immigration of relatively large communities from all over the world: it may be identity documents issued in the official language of the country of origin that need to be translated or, in private international law, for example, the precise scope of foreign judicial decisions whose effects are to be recognised in the country of the new residence of the parties that must be decided upon, to name but two situations.

An example of the latter situation, which has been and continues to be the subject of heated debate among experts in international family law, is how to translate certain forms of marriage dissolution that are unknown in Europe. One typical example is the dissolution of marriage on the sole initiative of the husband, which is still a very common way of ending a marriage and is fully accepted in the domestic law of countries whose family law is based on Islam.Footnote 13 Does the term ‘repudiation’ adequately reflect the meaning to be given to the dissolution of marriage in such a case? The question then is whether the dissolution of marriage by unilateral repudiation can actually be translated as ‘divorce’. By using, indiscriminately, the term ‘repudiation’, it is very likely that the couple will be refused recognition in Europe of the dissolution of their marriage abroad on the grounds that the woman presumably had no say in the matter and that therefore the principle of equality between men and women has been violated [14]. The reality, however, is more nuanced: in Islamic family law, some forms of marriage dissolution can be initiated by the womanFootnote 14 and/or are accompanied by sufficient guarantees to neutralise the violation of the principle of non-discrimination between spouses.Footnote 15 These nuances are not reflected in the use of the term repudiation. And resorting to the term ‘divorce’, to simplify matters, does not offer a solution either, as it risks obscuring the fact that, as is still frequently the case, the wife has not actually been heard and the dissolution of marriage is pronounced without her consent.

Another example, also related to family law as it is applied in many Islamic countries and widely discussed in the literature, is the institution of kafalah [21]. The purpose of kafalah is to allow a Muslim adult (or adults, the kafil) to assume responsibility for the care and appropriate upbringing of someone else’s child (the makful), for any number of reasons. Kafalah should not be confused with adoption (which is prohibited in Islam), as it does not legally sever the ties with the child’s biological parents, but is more akin to a form of foster care. Since a kafalah decision is usually made by a judge in the child’s country of origin, whereas the kafil who takes over from the biological parents often lives in Europe, the decision must be granted (legal) recognition in the country of habitual residence (in Europe) of the kafil. For the child to come and live in Europe, he or she must therefore also be granted a residence permit. This is where the problem arises: until recently, only adoption gave a child the right to come and live with his or her (adoptive) parents in Europe. A kafalah was not sufficient; legally speaking, it was not to be put on an equal footing with adoption.Footnote 16 With the number of such situations increasing, however, European countries have started accepting that a kafalah decision can open the way to family reunification, except of course in cases that clearly do not have the primary purpose of caring for a child, but are merely trying to circumvent the relatively strict rules that apply to family reunification.Footnote 17

Anthony Good’s contribution to this special issue demonstrates how complicated situations can be when a term proves untranslatable.Footnote 18 Drawing on his extensive experience as an expert witness in refugee status determination procedures in the U.K., Good examines the impact of the use of interpreters on legal processes. He describes the roles played by interpreters in facilitating intercultural communication between asylum applicants and the administrative and legal actors responsible for assessing or defending their claims. Much of the confusion and many of the barriers to communication created by the involvement of interpreters reflect the inherent untranslatability of particular notions, leading to a situation where different interpreters may give different though equally legitimate translations of, for example, certain kinship terms, creating apparent ‘inconsistencies’ in the resulting translated accounts. Given the centrality of notions of credibility in asylum decision-making, even quite trivial divergences over such matters may prove crucial.

3.2 Translating International Law into Domestic Legal Systems

A very specific form of translation is linked to the situation in Europe where, for issues that specifically concern religious and cultural diversity and its protection under state law, two international courts have jurisdiction. Through their case law they monitor, each within its own respective areas of competence and in accordance with the applicable procedural rules, how states align their domestic policies with their international obligations, either as Member States of the European Union (and therefore bound by the case law of the Court of Justice of the European Union, hereafter: CJEU) or as members of the Council of Europe (which falls within the jurisdiction of the European Court of Human Rights, hereafter: ECtHR). Since the Treaty of Lisbon entered into force in 2009, the protection of human rights in Europe has been closely followed by both courts.Footnote 19 With the CJEU as a player,Footnote 20 a new dynamic has thus emerged within a Europe that is now integrated into a multi-level European human rights architecture characterised by inherent interaction between the national level and the supranational level of both the ECtHR and the CJEU.Footnote 21

This dynamic interaction between different decision-making levels can be seen as a vast translation undertaking: it encompasses the most diverse facets of an exercise that is at once extremely ambitious and highly complex. Describing this process of bringing national-level laws and policies into alignment with the two European courts as a ‘vast translation undertaking’ may seem unusual, as it is not literally a translation exercise like the first two perspectives discussed above (although it certainly does involve literal translation). It does, however, highlight several complications that are inherent to translation in the more classical sense of the term.

One such complication regards the discrepancies among states in the way they align their diversity policies to international rulings. A closer look at how certain international court decisions are ‘translated’ into a country's legal system shows not only striking divergences among jurisdictions, but also that they do not automatically produce the result expected by the parties that brought the case before the international court. This is obviously true in cases where the application is deemed inadmissible or simply rejected. But it may also be the case when, for example, one of the two courts decides to leave a wide margin of appreciation to the local authorities to deal with a specific situation. The task of transposing a rule of international law in such cases – whether drawing on human rights law or, more specifically, European Union law – falls to the authorities against which the action was initially brought, which seems paradoxical since it risks rendering recourse to international courts largely pointless. This is the main argument that Kristin Henrard advances in her contribution to this special issue.

Henrard critically assesses the discretion that the European regional courts leave to states when translating international norms into domestic law and practice. Human rights indeed leave room for a variety of ways of implementation, thus granting national authorities, including national courts, a degree of freedom when translating international norms in a way that is tailored to the local circumstances. However, the effective protection of fundamental rights requires international courts to adopt a sufficiently elevated level of scrutiny. Early on, the ECtHR granted states a certain margin of appreciation when assessing whether the limitations were proportionate to the legitimate aim invoked. This, however, implied that the Court adopted a lower level of scrutiny, which risked jeopardising the effective protection of human rights. The article identifies and expands on a range of criticisms of the ECtHR for granting such a margin of appreciation and how it is applied. The CJEU, for its part, seemed not to follow the ECtHR’s broad margin of appreciation in its early jurisprudence on religious themes, but in several more recent cases concerning manifestations of Islam, it has embraced the broad margin of appreciation as well. The article concludes with a call for the European regional courts to embrace their supervisory role and provide more guidance to national authorities and courts, thereby narrowing their margin of appreciation.

One contribution in this special issue – that of Tobias Berger – stands out in that the complications with translation discussed therein take place outside the European context. Berger’s article, which details attempts by a European agency to promote human rights and the rule of law through non-state justice institutions in Bangladesh, serves a special and unique role in this issue: it reminds the reader that even the most basic principles of international law, however uncontroversial they may appear at first glance, in casu, human rights and the rule of law, cannot be translated, no matter where, without having to take into consideration what in social and cultural anthropology is studied under the term ‘vernacularisation’, meaning the decisive role of context in shaping meaning. The term ‘vernacularisation’, borrowed from linguistics, was taken up by the late American anthropologist Sally Engle Merry in the 1990s and has since been used by many anthropologists to describe the multifarious local dynamics behind the translation of certain overarching legal concepts in local settings, as well as the processes and strategies of transformation that are linked to adaptation to local conditions.Footnote 22 The discussions that accompanied the introduction of the term ‘vernacularisation’ for the analysis of concepts related to legal practice have, in our view, lost none of their topicality and relevance, both within and outside Europe.Footnote 23

Berger’s contribution analyses Europe as an actor that seeks to engage different legal and cultural systems around the world and have its legal principles translated into non-European settings. More precisely, it focuses on recent attempts by the European External Action Service to promote human rights and the rule of law through non-state justice institutions in Bangladesh. The central question in his contribution is how and under what conditions European understandings of human rights and the rule of law are translated. The article develops a theoretical account of such translation processes by drawing on scholarship in political science and legal anthropology. It then turns to the long trajectory of European engagements with non-state justice institutions that originated in processes of European colonial expansion and its correlative efforts to alter legal systems throughout much of the world.

3.3 The Use of Translation and Simultaneous Interpretation by Courts and Administrative Authorities

Third, an extremely important aspect of the judicial process when considering issues of diversity is the use of translation and simultaneous interpretation by courts and/or the parties to a dispute. The offer of translation services is part of the right to a fair trial; it does not, however, come without application issues that are at times very challenging.Footnote 24 In some cases, it is the lack of trust between the translator and one party to the dispute that can distort the process, for example, when the latter for lack of confidence refrains from expressing him- or herself as openly as necessary for a proper understanding of the claim. In other cases, it is the need to reduce to its very essence what the judge wants to know about a specific practice or context that may make a party to a dispute fear that they have not been given the opportunity to make themselves properly understood. Another common complication that is associated with the use of translators (whether professional or not) is the blurring of the dividing line between literal translation and interpretation, especially if the judge, not knowing the other language, is unable to check the content (let alone the quality) of what is being translated [35] and where the translator goes beyond literal translation [36, 37]. It also happens that the judge, seeing that the translator seems to be well acquainted with the cultural context in which a dispute arises, feels tempted to take advantage of the situation and puts a few additional questions to him or her, thereby catapulting the translator into the position of an expert, which is not his or her responsibility.

All the complications mentioned above, in particular the fact that some words have no equivalent in another language and therefore require a more detailed explanation or description, or a periphrasis, and the concomitant risk of using false equivalents or false comparisons, etc., obviously also come into play, if not to a greater extent, in a context of simultaneous interpretation, since the interpreter who finds him- or herself in such a situation does not have the time required to weigh up the various options available and propose one translation rather than another for a particular term. Professional experience, gained over many years, will certainly make him or her a better interpreter, but the right to translation and interpretation does not extend to the right to an experienced translator or interpreter.

To illustrate some of the obstacles to ensuring that a translation is of sufficient quality to fulfil the right to a fair trial, the contribution of Patrícia Jerónimo looks at the case of Portugal. European legal standards on the right to interpretation and translation in criminal proceedings were significantly improved with the adoption of Directive 2010/64/EU, as evidenced by recent developments in the case law of the European Court of Human Rights and in the domestic legislation and case law of EU Member States. Portugal is a good illustration of these developments, while also providing nuance to the overall picture. After initially dismissing the need to introduce any changes to its legal framework, Portugal finally amended its Code of Criminal Procedure in 2023 to comply with the Directive, and its courts have seen an exponential rise in litigation related to linguistic assistance in recent years. There is, however, considerable disparity in the case law of different appellate courts, and there are also still some unresolved issues, such as the time frame to plead the nullity arising from the failure to appoint an interpreter, the measures to ensure the quality of the interpretation and translation provided, and the training of judges, prosecutors, and judicial staff on the particularities of working in multilingual settings more broadly. Analysing the case law and the views expressed by judges, prosecutors, attorneys, and legal interpreters/translators during group and individual interviews, Jerónimo’s article examines the legal developments prompted by Directive 2010/64/EU at the international/supranational European level and in the Portuguese legal system, and discusses the persistence of linguistic obstacles to equal access to justice and an effective right to a fair trial in Portugal.

This approach also relates to translation and interpretation in other legal settings, such as administrative and legislative contexts. A central issue in administrative contexts is the varying degree of official-language proficiency among persons belonging to linguistic minorities. While some of them can navigate administrative procedures in the official language, others depend on the use of their minority language to effectively communicate. Human resources within public administrations might support minority language communication, while the lack thereof can necessitate the involvement of translation services.

Jonathan Bernaerts's contribution takes the reader ‘into the field’ of administrative practice, albeit in the very specific context of a language minority that is not immediately in a dire situation, but precisely because of this illustrates that problems of language use can arise even in such a situation. Bernaerts undertakes a critical examination of how the Framework Convention for the Protection of National Minorities (FCNM) in Europe and its Advisory Committee address the effects of varying degrees of official-language proficiency of persons belonging to linguistic minorities and the impact of relying on translators. It evaluates the relevant standards concerning minority language use and translation in this context: are they regarded merely as communicative necessities, or is the value of their symbolic meaning to the relevant communities also taken into consideration? Drawing on empirical data from administrative interactions with the Sorbian minority in Germany, Bernaerts’s article illustrates the practical implementation of the FCNM and related advisory opinions.

3.4 Interdisciplinary Translation

Undoubtedly the most demanding form of translation is the translation into legal thinking and reasoning of data or knowledge that draws from another academic discipline, and which we will refer to here, for simplicity's sake, as interdisciplinary translation. Within this special issue, interdisciplinary translation is most clearly illustrated in the contributions of Anthony Good, Tobias Berger, and Jonathan Bernaerts (although the tensions inherent in this interdisciplinary exercise are apparent in all of the contributions). On issues of religious and cultural diversity, most of the relevant knowledge to be translated into legal thinking comes from experts active in the fields of social and cultural anthropology,Footnote 25 religious studies or, in some cases, areas studies, cultural criminology, sociology, or cross-cultural psychology. For the most part, these experts develop their profound familiarity with some communities or religions on the basis of in-depth empirical fieldwork. Thus far in Europe, the use of cultural expertise is still relatively unusual, with the possible exception of the U.K.Footnote 26 In recent years, however, things seem to be slowly falling into place for the use of cultural expertise – by and before courts – to develop in certain countries.

Interdisciplinary translation in the context of judicial practice is highly challenging in both directions: for the expert, who has in-depth knowledge of the empirical reality that is the subject of the dispute, it is a matter of reporting in an accessible, impartial, and targeted manner on the subject for which he or she has been called upon as an expert. And for the judge, who is the adjudicator, it is a matter of finding out which elements of knowledge to draw from the information provided by the expert in order to reach a decision that is optimally inspired by that knowledge while remaining within the limits of what the law allows the court to do with it. What undoubtedly adds to the difficulty for the judge is anthropology’s methodology and anti-positivist epistemology. Ethnographic data are qualitative in nature and can therefore not be generalised; the information available to the anthropologist is usually based on his or her own direct observations and on other people’s explanations and descriptions as gleaned through interviews. What is more, anthropologists – just as other experts – may contradict one another on how to interpret a given practice or belief, or they place the emphases on different elements. All of this can cast doubt on the ‘scientific’ nature of the information that anthropologists can provide.Footnote 27

3.5 Translation in the Literal Sense

Finally, there is translation in the most literal sense – the translation of national court decisions from the original language into English. In order to gain a correct understanding of how a court has been seeking to ‘grasp’ more precisely the element of diversity that is at stake in a concrete dispute and how it may be granted recognition in the domestic legal system, it is important that the documentation compiled on the decision reflect how the judge actually expressed himself or herself on the issue. Authors who provide comments for the CUREDI database project are therefore asked to select excerpts from the decision that relate to the judge's reasoning on that specific issue and to translate them into English.Footnote 28 This can be particularly challenging, as it is indeed essential that the translation reflect this reasoning very accurately. In order to enable users who are proficient in both languages to check how the judge expressed him- or herself in the official language, the selected passages are also reproduced in the original language.

Moreover, in their own CUREDI commentaries the authors must express themselves in English, which is for most of them not their first language. This assumes that they feel sufficiently confident to translate local terminologies into concepts that are understandable for analysis and that both explain and go beyond the specific context. This presents a serious challenge.

It therefore seemed obvious to us to include in this issue a contribution illustrating – through very concrete examples – some of these challenges. The realities of the European Union, with 24 official languages, dictate that English be the common language in which mostly non-native speakers of English (and a few native speakers) communicate about the daily tasks of deliberation and drafting of legal and policy documents. Yet English and its conceptual framework, when it comes to the law, is rooted in the Anglo-American common law tradition, whereas the European continental legal systems, which have contributed most significantly to the EU legal order, are based in the Roman civil law tradition and its distinctive concepts and terms.

Translation theory, and in particular the emerging field of legal linguistics (jurilinguistics), has provided some tools for addressing the practical challenges of working across different languages and legal terminologies. Homi Bhabha, for example, speaks of translation as a ‘third space’ [44; see also 45, 46]. This concept of a third space provides practical solutions, but it can also at times obstruct the path with solecisms, false friends and occasional ‘Gallicisms’ that, when unchecked, can lead to misunderstandings. Unfortunately, the author who was tasked with providing a contribution illustrating the many pitfalls and difficulties that come with translation in the literal sense within the very specific context of the European Union was unable, due to circumstances beyond their control, to complete the article, and we did not have time to commission another author to provide the text. For this reason, we do not have an article to accompany this specific dimension of translation.

3.6 Supplementary Commentaries

There are certainly other translation-related issues that deserve to be raised. However, in order to avoid endless digressions and the risk of losing sight of the main issues, we have opted to focus the special issue on the abovementioned key areas. But to enrich and enlarge the perspective, each of the core contributions is supplemented by two commentaries written by authors who are experts in the topic at hand, have read the contributions carefully, and have been invited to take their own look at one or another of the aspects addressed in the core contribution assigned to them. They have each done so in their own way, sometimes referring to their own similar experiences, sometimes offering an alternative analysis to that proposed by the author of the core contribution. One example of such an alternative analysis is the commentary on Tobias Berger’s article by the eminent legal scholar Brian Tamanaha. He looks at the data presented in Berger’s paper from a different perspective and suggests alternative interpretations which, he notes, are always possible. While the diversity of perspectives may at first glance seem confusing, it should ultimately be seen as enriching the range of interpretations. None of the authors in this special issue would claim to be right at all costs; they respect each other's analytical approaches to the data. Brian Tamanaha’s commentary is insightful in its own way and can therefore be seen as complementary to Berger’s analysis.

The aim of pairing commentators with authors of the major articles has not been to provoke controversy but, on the contrary, to allow a wider group of scholars and/or practitioners, all in their own way engaged in translation issues in their multiple senses, to become involved in the discussion and, together, offer a richer palette of approaches.

4 Conclusion

What emerges clearly from the contributions to this special issue is that translation is not just a technical or background activity. On the contrary, the contribution that accurate translation can make and the role it can play in the search for balanced and sustainable solutions to issues of religious and cultural diversity in societies marked by such diversity cannot be overstated, neither legally nor socially. Whether it involves translating judicial decisions into another language, implementing international norms within national frameworks, ensuring effective communication in multilingual courtrooms or in administrative contexts, or incorporating insights from other disciplines, translation is a core part of legal reasoning and practice today.

Looking at translation in this broader sense reveals how much is at stake when law encounters different cultural, religious, or normative systems. These encounters often bring to light tensions and uncertainties, but they also create opportunities for legal systems to become more inclusive, flexible, and responsive. The challenges of translation are not only about language; they involve how legal meaning is constructed, how authority is expressed, and how justice is perceived by those involved.

The CUREDI project aims to make these challenges visible by documenting and analysing legal cases where questions of cultural or religious diversity are at the forefront. In doing so, it highlights how judges and legal actors across Europe deal with these questions in different ways, and how translation (in its many forms) is often part of that process. The case law collected and commented on through CUREDI provides a basis for comparing legal approaches, identifying patterns, sharing good practices, and learning from one another, but it also helps us recognise the limits and risks involved when key terms or values do not travel easily across legal and cultural boundaries.

The contributions gathered here show that translation is never neutral. It can simplify or distort, clarify or obscure, depending on how it is done. This is why it needs to be approached with care and reflection. Translation, in legal settings, always involves choices – about when to translate, which meanings to prioritise, which terms to adopt, which perspectives to take into consideration. These choices have real consequences for people’s rights and for how just and accessible legal processes feel to those who rely on them.

This special issue therefore invites readers – whether they be legal practitioners, translators, scholars, or policy-makers – to think of translation not as a secondary concern, but as something that cuts to the heart of how law operates in society, and even more so in the context of plural societies. It also calls for stronger support for the infrastructures that make good legal translation possible: high-quality interpreting and translation services, interdisciplinary training, clearer legal standards, and more dialogue between national and international legal systems.

Ultimately, it is in the acts of translation, often contested but always necessary, that the quest for justice in plural societies is simultaneously enacted, challenged, and reimagined. This set of contributions offers both a map of the terrain and a set of tools for navigating it.