Category Archives: Marcos jurídicos

by monzo

Panel: The Legal Framework for Languages and Models of Linguistic Officiality

Panel chair: Juan Jiménez-Salcedo

Is Switzerland as language-friendly as its reputation suggests?

Prof. Dr. Manuel Meune

With its four official languages​,​ Switzerland, where most citizens identify with the Swiss “nation of will”, appears to have “satisfied” its linguistic minorities and rarely makes international headlines because of language conflicts. This success is often attributed to the absence of linguistic enclaves (except for Romansh) and the principle of territoriality. However, language freedom also plays a role along the German-French language border (Biel/Bienne) or in Graubünden, where the decline of Romansh is hard to stop. And some heated legal debates have taken place particularly in multilingual cantons.

In addition, the “language peace” can be linked to pragmatism and non-intervention. Even without legal protection, Swiss German dialects are very much alive, in a stable diglossic relationship with standard German. But Switzerland’s flattering image seems misleading in regards to its “fifth language” – Francoprovençal. The country has not done much better than centralist France in protecting this age-old language. Its recent inclusion in the debate on the implementation of the European Charter for Regional or Minority Languages offers some perspectives of revitalization, as does the proactive policy of the cantons of Fribourg and Valais, but this minimal legal protection comes very late.

Canada’s language regime: policy-choices and the modernization of the Official Languages Act

Prof. Dr. Linda Cardinal

Canada is a federal country. Canadian federalism is the result of a political compromise between its two main groups, Anglophones and Francophones. It language regime is also informed by political compromise. Because of federalism, language is ancillary in Canada. All governments can adopt their own language policies. As a result, Quebec has its own language policies as well as all the other provinces and territories except for British-Columbia.

This paper will discuss language policy-choices at the federal level. It will explain how such compromise has informed four generations of language policies. It will present briefly these different generations and their main characteristics. It will focus on the government’s new proposed legislation to modernize its Official Languages Act (Bill C-13). It will discuss its key points and show how it is continuing Canada’s language compromise while trying to propose change. The paper will conclude by explaining why it is important to look at patterns of continuity and change in the study of language regimes.

The Belgian language regime and the limits of the law as a language policy tool

Dr. Sophie Weerts

The Belgian state is a federal state, bringing together three national linguistic communities (Dutch, French and German speakers). Its linguistic organisation is part of a ‘model of plurilingualism’; based on three principles of freedom, equality and territoriality. These characters are translated into the law – sometimes very imperfectly – with the freedom of language, the linguistic regions (principle of territoriality) and an institutional organization that puts the (two main) linguistic communities on an equal footing.

In this contribution, I will argue that the Belgian language regime has two critical weaknesses. First, the freedom of language is interpreted restrictively under the principle of linguistic territoriality. Second, there is a lack of formal recognition of the plurilingualism of the Belgian state. The former is a matter of legal interpretation, while the latter stems from silence in the law. These elements make it possible to say that the law is undoubtedly necessary to carry out a linguistic policy that ensures linguistic pacification but cannot be seen as sufficient.

by monzo

From theory to practice: school education in regional and minority languages

Michael Forbes

Thirty years after the signing of the European Charter for Regional or Minority Languages, access to schooling in these languages remains difficult for many children and their families. This paper looks at the challenges faced by parents in accessing education in the language spoken at home in Europe, with a specific focus on languages that are recognised as regional or minority languages by individual nation states.

Legal issues relating to regional and minority education are also explored, particularly the difficulties and barriers that parents face in enforcing the legal right for their children to receive education in their native language.

The paper additionally discusses the problems in finding and retaining suitably qualified teachers of minority and regional languages, particularly in countries where speakers of a given language are not concentrated in a specific area.

Issues relating to the denial of access to education in a student’s first language are explored, with particular emphasis on comparing the linguistic policies of devolved political administrations such as those found in Spain or in the United Kingdom with the policies of centralised administrations such as in Croatia or Poland. Finally, potential solutions are presented with respect to the problem of access to education with a particular emphasis on information and communications technology as a key equaliser in respects to broadening and strengthening access to high quality tuition in the student’s own language.

Keywords: minority language, education, tuition, teaching.

by monzo

Ideologías lingüísticas y (no)tematización de las lenguas en los programas de los candidatos a la Convención Constitucional chilena

Diego Gáez, Antonia Reyes, Marco Espinoza, José Ortiz

La comprensión de las lenguas como tema político y las ideologías lingüísticas juegan un rol preponderante en las discusiones en torno a los regímenes sociolingüísticos y las intervenciones políticas sobre las lenguas en contextos sociopolíticos determinados. Mediante un análisis temático de los programas que los actuales miembros de la Convención Constitucional chilena elaboraron durante sus candidaturas indagamos, en primer lugar, en su percepción del actual momento constituyente como coyuntura crítica para (re)pensar el rol de las lenguas en la sociedad chilena. En segundo lugar, identificamos y analizamos una serie de ideologías lingüísticas presentes en estos programas.

El análisis revela que las lenguas no constituían un tema político para todos los candidatos de igual manera. En estos programas, la representación de las lenguas oscila entre un reconocimiento parcial y el borrado. En los programas que mencionan las lenguas ha sido posible inferir particulares conceptualizaciones de las lenguas y su relación con determinados territorios y hablantes. Discutimos críticamente las posibles implicancias para la discusión del futuro régimen sociolingüístico del país tanto de la (no)tematización de las lenguas como de las ideologías lingüísticas identificadas.

El presente análisis, además, apunta a ampliar nuestra comprensión de la relación entre las lenguas y los procesos constitucionales, sobre todo porque se suele prestar mayor atención al tipo de disposiciones lingüísticas presentes en las constituciones desde perspectivas comparadas descriptivas, ignorando muchas veces el rol (y la historia) de las ideas en torno al lenguaje de los agentes locales encargados de tomar decisiones políticas en este sentido, así como el carácter histórico complejo y dinámico de los procesos deliberativos y sus efectos en dichas representaciones ideológicas del lenguaje y en las decisiones políticas que se adopten en torno al ordenamiento sociolingüístico institucional.

Palabras clave: convención constitucional chilena, ideologías lingüísticas, borrado sociolingüístico, regímenes sociolingüísticos

by monzo

The Regulations of the Chilean Constitutional Convention and multilingual deliberation: legitimacy, inclusion, linguistic justice, and hegemonic monolingualism

Marco Espinoza

The constitutional moment in Chile has been highly participative and characterized by the political incorporation of traditionally excluded groups. Conversation and public deliberation have been central in this process. In this context, the diversity of languages and communicative practices has become so relevant that the Convention’s General Regulations explicitly state a series of principles acknowledging the importance of linguistic matters for the deliberative work the Convention (and their relation to rights, non-discrimination, and democratic participation). These include plain language, gender-inclusive language, and linguistic diversity. This presentation focuses on those principles concerned with plurilingualism, multilingual deliberation, and translation of documents from Spanish to the different languages of the territory. 

The analysis and discussion will first focus on the debates, arguments, and agents involved in the promotion of this type of language regulations and language regime for the workings of the Convention. This will be followed by a critical discussion of these regulations in relation to legitimacy, inclusion, and linguistic justice. It is argued that these principles and regulations mainly operate on a symbolic level as a legitimating mechanism of the Convention itself as a representative and inclusive institution. The fact that these regulations are entirely written in Spanish, the absence of actual multilingual deliberation, interpretation, and the multiple translations, are a clear indication of the language hierarchies in the territory, and reproduce assumptions about the monolingual functioning of society. It is concluded that the Regulations, despite their possible interpretation as an attempt at linguistic justice, contribute to validate the hegemonic monolingualism in Spanish that characterizes the country’s institutions, and can hardly contribute to prefigure a context of multilingual deliberation and participation in Chilean institutions. 

Keywords: Chilean constitutional convention, multilingual deliberation, linguistic justice, hegemonic monolingualism.

by monzo

The contribution of the European Charter for Regional or Minority Languages to the construction of language public policies

Victor Guset

Associate Professor of Public Law at the University of Rouen

The European Charter for Regional or Minority Languages is an international treaty whose exclusive purpose is the protection and promotion of the linguistic diversity present on the European continent. The need to promote linguistic diversity is explained by the vulnerable situation of regional or minority languages. Several factors explain this vulnerability. On the one hand, some States, such as France, had adopted a policy aimed at the eradication of minority languages on their territories. On the other hand, even in the absence of such a ‘repressive’ policy (Moutouh, 1999: 223), social and economic factors may well have rendered these languages vulnerable (Kymlicka & Patten, 2007: 38).

These different factors are taken into account by the Charter. In order to protect and promote regional or minority languages, the Charter requires the State to establish a language public policy in their favour. The Charter is therefore the framework of national language policies. This influence of the Charter has two consequences. Firstly, through this policy, a State party to the Treaty must direct the linguistic behaviour of individuals in favour of the practice of regional languages. In doing so, it takes the form of a “Propulsive State” (Morand, 1999) that not only legally authorises the use of these languages but also “propels” their use. If the Charter requires such a propulsive State intervention, this intervention is necessarily flexible. It adapts to the characteristics of these languages as well as to the States’ specificities (Guset, 2017).

Secondly, the deployment and success of these public policies required by the Charter presuppose that States recognise the linguistic diversity present on their territories. The identification of languages benefiting from language public policies amounts to an indirect recognition of culturally ‘situated’ (May, 2016: 30) individuals, which is a feature of the ‘multiculturalist’ thought movement (Taylor, 2019).

Guset V. (2017), L’interprétation de la Charte européenne des langues régionales ou minoritaires, Thèse dactylographiée, Université de Bordeaux.

Kymlicka W., Patten A. (2007), « Introduction. Language Rights and Political Theory : Context, Issues and Approaches », in Kymlicka W., Patten A. (dir.) (2007), Language Rights and Political Theory, Oxford, OUP, 2007, 1-51.

May P. (2016), Philosophies du multiculturalisme, Paris, Presses de Sciences Po.

Moutouh H. (1999), « Vers un statut des langues régionales en droit français ? », in Guillorel H., Koubi G. (dir.) (1999), Langues et droit – Langues du droit, droit des langues, Bruxelles, Bruylant, 221-249.

Morand C-A. (1999), Le droit néo-moderne des politiques publiques, Paris, L.G.D.J.Taylor C. (2019), Multiculturalisme. Différence et démocratie, Paris, Flammarion.

Keywords: European Charter for Regional or Minority Languages, language public policies, regional or minority languages, language rights

by monzo

The constitutional contours of preferred-gender-pronoun policies at U.S. public institutions of learning

Manuel Triano López

The United States Supreme Court has held that the Fourteenth Amendment to the federal Constitution directs the government to treat alike “all persons similarly situated.” Accordingly, the judiciary reviews with heightened scrutiny laws or policies that discriminate against individuals in a so-called “protected class.” Although the Court still has not ruled on whether transgender individuals constitute a protected class for Fourteenth-Amendment purposes, it has ruled that the category of “sex” in Title VII (a federal law on workplace discrimination) includes transgender individuals. Consequently, an employer may not dismiss an employee merely for being transgender. In 2021, the Education Department extended this protection to transgender students under a 1972 law that forbids sex-based discrimination in institutions of learning receiving funds from the federal government. 

These institutions could therefore invoke that 1972 law to justify disciplinary measures against professors who violate preferred-gender-pronoun policies, i.e., those that require professors to address their transgender students with the gender pronouns (“he,” “she,” etc.) that these students prefer. From a legal standpoint, however, the disciplinary measures could clash with the professors’ constitutional right to free speech, which includes the right to refrain from speaking. In other words, the government —in this case, represented by public institutions of learning— may not compel people to affirm a belief with which they disagree.By analyzing relevant court rulings handed down over the last two years, this presentation aims at resolving the tension between a public educational institution’s interest in eradicating sex-based discrimination against transgender students and a professor’s constitutional freedom from compelled speech.

Keyword: Public Education, Free Speech, United States of America, Transgender Community

by monzo

The concept of linguistic equality in Canadian constitutional law: cutting the Gordian knot between Quebec’s Bill 101 and the Canadian Charter of Rights and Freedoms

Érik Labelle Eastaugh

Panel: Linguistic equality and justice in the face federal diversity: A Canadian perspective

Chair: Karine McLaren

Since 1969, Canada has adopted an array of legal measures aiming to address various inequalities between Anglophones and Francophones.  These measures have been adopted by a range of actors in a variety of different contexts, giving rise to apparent inconsistencies or conflicts between them.  The most widely remarked-upon of these apparent conflicts have been those between Quebec’s Charter of the French Language (Bill 101), a law whose purpose is to protect the right to use French in a variety of public and private settings, and the Canadian Charter of Rights and Freedoms, a constitutional bill of rights which contains standard civil and political rights as well as several sui generis language rights based on a principle of equality between English and French.  These two instruments are often described as being ‘fundamentally’ incompatible, on the grounds that they instantiate radically different principles of language policy and linguistic justice.  This supposed incompatibility is usually framed in binary terms, with proponents claiming that Bill 101 protects ‘collective’ rights, while the Charter protects only ‘individual’ rights, that Bill 101 adopts a ‘territorial’ approach, while the Charter rests on a ‘personal’ one, and/or that Bill 101 represents an exercise in self-determination by the Québécois, while the Charter is a centralizing force that deprives them of their autonomy. However, this paper will argue that the degree of conflict between the two measures is in fact substantially overstated as it rests on a series of false dichotomies, and that both the Charter and Bill 101 can be seen as pursuing a common goal of ‘advance[ing] the equality of status or use of English and French’ as set out in s. 16(3) of the Charter.  In doing so, the paper will offer a critical examination of the use (and misuse) of certain key concepts in the debates over linguistic justice, such as collective rights and territoriality.