European Legal Concepts in Scandinavian Law and Language

in Nordic Journal of International Law
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Abstract

In this article, I present the results of an empirical study of one aspect of what I call discursive implementation of human rights law in Scandinavian legal systems: translation strategies applied by Scandinavian Supreme Courts when referring to judgments of the European Court of Human Rights (ECtHR). My point of departure is a study of the roughly 85 accessible Danish Supreme Court decisions. I look for the strategies applied by Danish judges in their attempt to accommodate the “novel line of thinking” characteristic of the ECtHR. Next I compare and contrast the Danish strategies with the strategies applied by the Norwegian and Swedish Supreme Courts in a selection of 38 and 28 decisions, respectively. The study is based on the assumption that translations, mistranslations or non-translations are actions at the micro-level of law that aggregate with other micro-level actions to form and shape general processes of law. As primary legal actors, national judges determine the legal discourse that accompanies, supports, delays or promotes European legal integration. The results of the study are not conclusive; what is detected are differences in the translational attitudes and styles of the Scandinavian Supreme Courts and, as a general tendency, a transformation of the domestic law and language to hybrids of common European and national discourse.

Nordic Journal of International Law

Acta scandinavica juris gentium

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