Agustí Pou Pujolràs
Program on Linguistic Normalization in the Judicial Field
Department of Justice, Generalitat de Catalunya
1. Introduction 1
2. The legal framework in which the linguistic 2
normalization of Catalan is being developed
2.1 Procedural and substantive limitations 3
2.2. Competence limitations 7
3. Basic principles acting as the grounds for linguistic 8
3.1. Official language 8
3.2. Linguistic rights 12
3.3. Own language 13
4. Another instance as a conclusion 15
Within any type of linguistic normalization policy, the relationship established between the set of rules governing the use of the languages coexisting in a territory and their real use by both public powers and citizens, becomes a relevant issue in order to appraise the success of the results achieved, as well as for the planning of new strategies. An appraisal of the incidence of language legislation as regards the re-establishment and increase of the use of Catalan, by means of accurate sectorial data, would doubtlessly become an interesting and necessary study.
However, this paper does not intend to examine the impact of the
regulatory legislation of Catalan with regard to usage –rather related to
sociolinguistics- but only to draft the juridical concepts used as the basis
for linguistic legislation in
2. The legal framework in which the linguistic normalization of Catalan is being developed
To start with, I would however
like to set forth a general reflection about the framework in which Catalan and
its normalization is placed, and where it is likely to be placed in the future.
The Constitution, in its Article 1, defines the
2.1. Procedural and substantive limitations to normalization
The linguistic normalization and the recovery of Catalan is obviously going on through democratic paths, by means of rules approved in the parliaments -in this case and in general, in the autonomous (regional) ones-. The regulatory norms of development must adjust to these rules and, at the most, courts control the legal and constitutional adequateness of linguistic legislation. This is, needless to say, an obvious issue, though it is interesting to highlight those, to a certain extent, special features which have both defined the elaboration and the application and the jurisdictional control of linguistic legislation.
First of all, consensus has been sought in the making of linguistic
(political) normalization laws, which has been generally achieved. This is an
important fact as it indicates that the political-parliamentarian tradition in
Such a factor –a positive one- has also entailed an important refusal to institutionalise more precisely defined or blunt instruments. What is more, the previously mentioned basic agreement is developed within a rather limited framework, being the materialisation of and the development from the Constitution, basically its Article 3, which establishes the following:
(1) Castilian is the
official Spanish language of the state. All Spaniards have the duty to know it
and the right to use it.
(2) The other languages of
(3) The richness of the linguistic modalities of
And article 3 of the Statute of Autonomy:
These are the widest juridical boundaries that the debate allows provided that both the Constitution and the Statute constitute a limitation to policy makers’ actions. However, these are probably too narrow boundaries with regard to a question having so many implications as is the normalization of Catalan, and mainly as regards one of its principal manifestations, the revitalization of its social use. In order to enlighten the narrow space we are referring to, let me take on again the same aforementioned work in which Modest Prats points out with precision that “(the) legislation concerning the Catalan language, made concrete in the Constitution and the Statute, and from which it is developed, presents some positive aspects –specially if we compare it to that of previous situations. Because of this, the presence of Catalan at school has been guaranteed as well as a consolidated publication of books, the existence of some newspapers in Catalan, the access of Catalan in radio and television, and a certain public and official presence of the language. In short, the democratic transition stopped the process towards the total extinction towards which the language was headed and which would have been inexorably effective had the dictator endured a few more years, making thus possible its recuperation in some important aspects. It would seem unfair not to recognize this fact, though I consider it would be wrong not to denounce as well its limitations, ambiguities, insufficiencies and contradictions”4.
In this respect, for instance, one should be aware of the fact that in the Law of Linguistic Policy no reference has been made –at least on a general basis- to the so-called linguistic availability, the duty to know Catalan or a certain sanctioning basis, as has been set up in other countries of our cultural and juridical environs that we usually take as references5.
Secondly, such pactism has also been transferred to the application of the rules. In many cases we could refer to an agreed or consensual application between the parties involved. In this respect, one must only check those collaboration covenants subscribed by the Generalitat (or the different bodies partially or totally depending on it) and other organizations (professional bodies, trade associations, other State institutions, etc.)6. This is at the very least a particular case of legislation development, basically pursuing the involvement of the widest range of the population or, to put it more bluntly, of the several social agents as regards normalization. Let us however notice that this fact reveals as well the difficulties that the Law’s regulatory development undergoes. One should only mention, for instance, the controversy around the so-called “cinema decree”, which has finally concluded with a rather deceiving outcome.
Thirdly, the linguistic policy’s jurisdictional control
has also been a singular one. Initially, the High Court’s jurisprudence in this
respect was specially reluctant with regard to
linguistic legislation. One should recall for instance the rejection made by
this jurisdictional body regarding the requirement to have a knowledge of the
autonomous community’s own language when applying for a public post, a position
which was only changed –though with certain reserves- after the Constitutional
Court Ruling 46/1991, of February 28, which admitted such possibility by
declaring the provisions that the Act on the Catalan Public Function contained
in this respect constitutional. Another example would be the question
concerning unconstitutionality put forward by the High Court before the
A symptomatic and at the same time revealing element: several rulings refer to Catalan as the “peculiar” language of the community -“vernacular”, “singular”, “specific”-, whereas adjectives such as “common” or “general” are used for Castilian. It should be pointed out that none of these denominations is considered legal. Until relatively recent times, very few of the High Court’s rulings on matters concerning the legal framework of languages and linguistic rights mentioned such essential norms concerning this issue as are the statutes of autonomy or linguistic normalization laws7; as a matter of fact, they are the main rules to be taken into account in reasoning; neither do they mentioned the concept of own language, inasmuch as it derives directly from the statutes of autonomy.
All the previous
information is intended to indicate that part of the conflict arisen after the
application of the linguistic policy rapidly reaches court procedures, either
through ordinary jurisdiction or by means of the constitutional one. The
success of a given policy also depends, at least partly, on the interpretation
that courts may make with regard to the normative set to be applied. In order to
illustrate this a bit further, let us finally take one case that could be
considered of a relative practical importance, though it is quite relevant from
a symbolic and emotional point of view: the rulings relative to the declaration
of Catalan as the official language of the Valencian universities; the specific
meaning of it is the declaration of Valencian as being “academically Catalan”.
After the withdrawal of this clause by the Valencian Autonomous Government by
virtue of its capacity to monitor the legality of university statutes, and
having transferred the conflict to the judicial sphere, a literal
interpretation of the Statute of the Valencian Community allowed jurisdictional
bodies to consider that the declaration of “Valencian, as being academically
Catalan” the official language of these universities went against the statutes
(High Court’s Ruling of November 20, 1992), provided that the Statute itself
did not envisage such definition. Fortunately, the
2.2. Competence limitations
The second basic
-and even defining- element of the Catalan model of linguistic normalization is
the circumstance that it occurs in a multi-compound state, in which competences
are shared between the state and the autonomous authorities. Such a situation
substantially conditions all the initiatives undertaken by institutions in
Let us give an example (apart from those I will refer to later on): inscriptions in the Registry Office. These, according to the Rules of the Registry Office, must be done in Castilian (Art. 298.6 of the Rules of the Registry Office). Despite several judicial proceedings in this respect, which have crystallized in resolutions by the High and Constitutional Courts respectively (HCR of January 26, 1993; CT Interlocutory 311/1993, of October 25), as well as recently by the High Court of Justice of Catalonia (HCJCR 1166/1999, of November 26), despite a relatively little used habit among magistrates to write in Catalan in municipal registry offices -notwithstanding what should be recommendable through common sense-, the fact is that provided it is a state register, inscriptions are and must be written in the language established by its holder, that is Castilian10. The distribution of competences radically conditions, or limits, the normalization policy.
Due to all this, and given the current framework of competence distribution, the linguistic policy in a broad sense is not only planned by the Generalitat but also, and in a remarkable way, by the state (Government and Parliamentary Assembly) and the judiciary itself.
3. Basic principles acting as the grounds for linguistic law
Although one could
list in a more or less prolix way a whole set of notions that lay the grounds
for the linguistic law in
3.1 Official language
alongside Castilian, an official language in
We may ask ourselves whether the current state of the linguistic rules satisfies the double officiality. Are Catalan and Castilian really equal as regards the definition of their officiality? We acknowledge that the answer, at least in a good number of areas, is a negative one. We could state that both are official languages, though Castilian is more official than Catalan. Whereas Castilian is “official”, Catalan would be “co-official” (an adjective broadly used in constitutional jurisprudence). Let us give some examples that have also been dealt with in the courts.
a) The Trade Register. The Rules of the Trade Register establish that all inscriptions in the register must be carried out in Castilian (Art. 36). Therefore, whenever a citizen wishes to enter a record in this register and submits a document in Catalan, it will be translated into Castilian. Ruling 87/1997, of April 24, has backed the constitutional correction of such a rule. As Puig Salellas13 has argued, this implies a clear de-officialization of Catalan as it denies the citizen’s right that a public register includes an inscription in the language of his/her choice. Besides, problems related to legal certainty arise. With such good will, what company would find it worthwhile to have documentation to be submitted to the register, in Catalan? The scope of such “de-officialization”, apart from its inherent inequality, directly entails a negative effect on the spread of Catalan within the business world.
b) Patent and
Trade Mark Office. Being a state body, the law requires all applications
for register and documentation submitted to be presented in Castilian. The
c) Justice Administration. One could make the same remarks when dealing
with declarations made by a citizen in his/her relations with the Justice
Administration. Whenever an official takes them in Castilian for the record
(being protected by Article 231.2 of the Statutory Law of the Judicial Power),
the affirmant must ratify him/herself and sign a declaration in a language
different from the one he/she has used. The
In this same respect, any document which by means of bringing an action before the court is to take effect within a central jurisdictional body of the state must be translated, thus entailing the corresponding unavoidable delay. Just imagine how big the administrative enquiry can get to be (reports, administrative resolutions, etc.). Both the High Court and the Constitutional one send back (as jurisdictionally established) all documentation that is not written in Castilian. One can therefore verify the lack of support for the legal-procedural activity in Catalan. The minorization of officiality is reflected to the detriment of normalization14.
The examples above and many others to which we do not refer reveal that one could imply from the current normative and jurisprudential state of affairs -even as regards some other fields- that there exist a first class officiality and a second class one. The respect for and the protection of Catalan are generally set aside when this depends on the state.
According to Prof. Antoni Mirambell15, and gathering the experience from the cases described above, the features defining the officiality of Catalan should be the following:
a) There should be a unique officiality value. One language should not be more official than another.
b) The official language must be a normal means of relation between the public authorities and the citizens.
c) The validity and effectiveness of either public or private legal proceedings and businesses carried out in the respective territorial scope. But also the recognition of extraterritorial effects when the proceeding has implications beyond the autonomous community due to the state’s centralist structure.
d) The right to use the official language in both the public and private spheres.
e) The general presumption concerning the knowledge of the official language, except for specific cases which should be certified (for example, a possible lack of proper defence in a trial). It should be noted, however, that the Catalan Act on Linguistic Policy does not envisage this duty and that the Generalitat’s Advisory Council’s rulings are themselves negative in this respect (203/1997 Ruling).
With such officiality features we might not talk about co-officiality but about double officiality, that is to say, an equal officiality for both languages. On the other hand, one of the arguments to be exploited in my opinion in order to achieve the full recognition of officiality would be the recognition of Catalan within the state central institutions provided that these are –willy-nilly or not- central ones with regard to Catalonia. Accordingly, Catalan cannot be fully official if it is not a language recognized by the Parliamentary Assembly (not only on one single day each year, as happens at present), State Administration and the central bodies of the judicial powers. There is no doubt that this would be the most consistent way in a plurilingual state16.
3.2. Linguistic rights
The Act on Linguistic Policy, in its development of the officiality concept, deploys a range of rights for citizens (art. 4.1 LLP). We will not get into details here but only mention them.
a) The right to know the two official languages.
b) The right to communicate in any of the two official languages in both the public and the private sphere.
c) The right to be attended. In this case it should proved whether the right to be attended includes the right to be replied to in the language used by the citizen. This will to a large extent depend on the sectorial regulation establishing this right. Accordingly, Article 36 of the Law 30/1992, on the legal system of public administrations and ordinary administrative procedures, sets up this right to be replied to in the language used by the citizen.
d) Non-discrimination on the grounds of language. However, this right cannot be understood in the sense that positive discrimination measures should not be adopted towards Catalan. For instance, subsidies for cinematography.
Using this as a starting point, the Act on Linguistic Policy itself plus other sectorial legislations recognize different linguistic rights specified in some particular spheres. In any case, one must bear in mind that in the Spanish State linguistic rights are not fundamental rights a priori, although one fundamental right may possibly have linguistic contents (jurisprudentially, the equality principle and the non-discrimination deriving from article 14 of the Constitution have been dealt with, as well as the access to public posts and functions in equal conditions, from Article 23 of the same text)17.
3.3 Own language
Independently of the theoretical basis upon which the legislative policy should be based as regards linguistic normalization (in this respect, Professor Branchadell’s contributions18 are specially interesting and suggesting), the fact is that the development of the Catalan Statute of Autonomy, firstly by means of the Act on Linguistic Normalization (1983) and afterwards through the new Act on Linguistic Policy (1998), is in both cases directed (though it does not mean that all possibilities are exhausted) to the exploitation of the concept of “own language” contained in article 3 of the Statute.
According to the law’s preamble “the concept of own language applied to the Catalan language obliges the central state authorities and institutions in Catalonia to respect it, to use it as a general rule and promote its public use at all levels”. The consequence arising from the fact of laying down Catalan as the own language is the general use to be exercised by public institutions and authorities, as well as the obligation to promote and protect it; these are, in short, the two basic instruments for linguistic normalization and which justify it in legal terms.
Article 2 of the
Act on Linguistic Policy delimits the concept. Catalan, as the own language of
a) The language of all institutions in Catalonia, and particularly of the Administration of the Generalitat, local authorities and public corporations, companies and public services, institutional media, education and toponymy. This is practically equivalent to a declaration of the exclusivity of Catalan in all these fields, apart from the exceptions set out for justified reasons by development regulations, while always respecting individual linguistic rights.
b) The language preferentially used by the State Administration in
The concept of “own language” has thus become the basis on which preferential usages within the new act are articulated, with expressions regarding the use of Catalan such as “preferentially”, “normally”, “at least”, “minimum”. Linguistic normalization, being also grounded on the officiality principle as a basic instrument, is mainly based on the declaration of the own language. The concept certainly includes possibilities which, provided the lack of other instruments, need to be explored. However, it should not be misapplied. The use of the juridical concept “own language” –stigmatised by some for considering it to be a conservative, old-fashioned nationalistic or not so liberal one, probably ignoring the reasons that have lead us to make use of it- responds to a basic failure, that is, in the effective equality between Catalan and Castilian as official languages. As long as the state does not accept Catalan as an equally official language as Castilian is (as pointed out previously), protecting it as a normal language in Catalonia and taking it on in central institutions, or as long as Catalan is not declared the only official language, the juridical devices allowing the restitution process of Catalan as the country’s own language will have to be pursued.
4. Another instance as a conclusion
We have tried in this paper to briefly describe the potential of linguistic rights’ concepts, particularly those crystallized in the Act on Linguistic Policy, with a view to providing devices to pave the way towards the normalization of Catalan. Nevertheless, we have also seen the limits, disarrangements and contradictions that one can find within this process. In order to illustrate how all this is manifested in a specific case, which will at the same time be useful as a conclusion, we will describe the situation in a field in which the use of Catalan is rather poor, and in relation to which harsh controversies concerning linguistic issues have recently arisen. We will talk about the appraisement of the knowledge of Catalan among the personnel working for the Justice Administration.
take a look at the status of such civil service we will find out that the
linguistic profile of the different bodies that integrate it is absolutely heterogeneous,
to the extent that it is even contradictory. Thus, judges are worthy of one
point in the officials’ scale when they have an elementary level (B level) of
Catalan language. Senior judges are given a bit more. If they have a higher
qualification, this does not benefit them beyond a further knowledge of the
language. Court officers, responsible for expediting the court action, are not
provided with any points for their knowledge of Catalan: the regulation
awarding up this merit for them was withdrawn some time ago. Neither are public prosecutors given any merit for their knowledge
of Catalan; temporary public prosecutors were, though the Ministry of Justice
did repeal this merit. Obtaining a qualification in Catalan does not entail any
merit either for the legal representatives of the state. On the contrary, those
of the Generalitat must have the medium level of knowledge. Forensic surgeons
have 2, 4 or 6 points when applying for a post in accordance with the level
–elementary, medium or high- they have achieved. Such is also the situation of
1st, 2nd and 3rd court clerks (personnel working in administrative tasks in
court offices), except when working temporarily: then, they may be required to
have an elementary level if they are auxiliaries, a medium one if they are
officers or forensic, unlike 3rd court clerks who, despite performing important
functions directly before the public, are not required to have a language level
at all. In a different situation we find psychologists or court appraisers, who
must have a C level (medium) for they are personnel at the service of the
Justice Administration though depending on the Autonomous Administration.
Beyond their moral duty, lawyers and solicitors are not obliged to understand
Catalan either; although they may have made their professional career in
We would thus be dealing with a paradoxical situation: a lawyer of the Generalitat is allowed to present a document in Catalan (to which he/she is obliged as an officer of the Autonomous Administration), whereas the courts secretary or the judge him/herself must not understand him or her since they were not required to do so when they applied for the post. A citizen is able to address a judicial officer but if he/she does not understand him/her, the former must take on at its own risk and good fortune the defence of the officiality of Catalan. Obviously enough, all this mess strengthens the confusion and strongly restrains the implantation of Catalan.
The situation so far described should not be taken as the generalized one but as an example regarding the juridical conditions in which normalization is being developed, that is with a gap between an appropriate and consistent planning and the juridical reality -which is not only non-neutral but also a hindrance. However, it is also certain that normalization is a process and as such it generates contradictions between declining situations and other emerging ones. We should then find out whether the dynamics concerning the use of the Catalan language are emerging or rather declining in spite of everything. What is sure, though, is that the future of Catalan does not only depend on the fact that Catalan speakers have rights; a fairly normal arena where they can be exercised must be achieved.
This work comes basically from a lecture I gave on behalf of CIEMEN and
Mercator in the workshop: Catalan: Looking at the Future, organized by
1 «El català: àmbits de prestigi i àmbits d’ús». In: PRATS, Modest; RAFANELL, August; ROSSICH, Albert. El futur de la llengua catalana. 7th ed. Barcelona. Empúries, 1995, p. 101.
2 «Perspectiva de futur de la llengua catalana» In: II Jornades de sociolingüística: l’ús social i el futur de la llengua catalana. Alcoi: Gabinet Municipal de Normalització Lingüística. Ajuntament d’Alcoi, 1994, p. 34.
3 See Jordi Argelaguet’s book, El procés d’elaboració de la Llei de política lingüística. Barcelona: Editorial Mediterrània, 1998.
4 «Meditació ignasiana sobre la normalització lingüística». In: PRATS, Modest; RAFANELL, August; ROSSICH, Albert. El futur de la llengua catalana. 7th ed. Barcelona: Empúries, 1995, p. 17.
5 About the intervention in the socio-economic field in relation to surrounding countries, one may consult the excellent work by Antoni Milian Massana, Público y privado en la normalización lingüística. Barcelona: Atelier. Institut d’Estudis Autonòmics, 2000.
6 See the collection of agreements and pacts published in each issue of the journal Llengua i Ús.
7 You may consult the several warnings concerning this question in the chronicle of jurisprudence within the journal Llengua i Dret.
8 PONS PARERA, Eva. «Autonomia universitària i denominació de la llengua pròpia de la Comunitat Valenciana (comment on the Constitutional Court’s Ruling 75/1997, of April 21) ». Autonomies, nr. 23, 1998, pp. 193-212.
9 On this question see the works by Miguel Ángel Aparicio
and Iñaki Agirreazkuenaga, Jornades sobre la Llei de política lingüística.
Barcelona, 19 i 20 de febrer de 1998.
10 The obligatory nature concerning the inscriptions in the register office in Castilian has originated an increasingly growing protest movement amongst local bodies and organizations.
11 Find a specific and exhaustive study on this Law in: Estudis jurídics sobre la Llei de política lingüística. Madrid-Barcelona: Marcial Pons. Institut d’Estudis Autonòmics, 1987, pp. 111-145.
12 In relation to this question, one must quote Antoni Milian’s work “Ordenament lingüístic”. In: Comentaris a l’Estatut d’Autonomia de Catalunya. Barcelona: Institut d’Estudis Autonòmics, 1988, p. 177. An obligatory key reference is provided by FONT, Antoni; MIRAMBELL, Antoni; BADOSA, Ferran. «Els conceptes jurídics fonamentals en matèria de dret lingüístic a Catalunya». In: Segon Congrés Internacional de la Llengua Catalana. VI. Àrea 5. Llengua i Dret. Barcelona: Institut d’Estudis Autonòmics, 1987, pp. 111-145.
13 «Otro ámbito de desoficialización de la lengua catalana». Revista Jurídica de Catalunya, 1998, nr. 1.
14 In any
case, these rules and this practice will have to be specified by the
15 «Catalan as
16 See VERNET, Jaume. «Principios constitucionales y derechos en un estado plurilingüe». In: DE LUCAS, Javier (dir.). Derechos de las minorías en una sociedad multicultural. Madrid: Consejo general del Poder Judicial, 1998.
17 MILIAN MASSANA, Antoni. «Derechos lingüísticos y derechos fundamentales en España». Revista Vasca de Administración Pública, nr. 30, 1991, pp. 69-103.
18 You may
consult this critical vision in his work La normalitat improbable.