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Legislature or Legislator?

The German Bundesverfassungsgericht (Federal Constitutional Court, BVerfG) recently made an order (Order of the First Senate of 16 Dec 2021, 1 BvR 1541/20) regarding the lack of regulations for the protection of people with disabilities in the event of the triaging of medical resources (should that become necessary). This is an important decision on the protection of human dignity, but as is usual for this publication, I will ignore all of the substance and focus entirely on a small point of style.

The BVerfG’s English language summary of the decision was headlined:

The legislator must take effective measures ensuring that persons with disabilities are protected in triage situations caused by the pandemic

The word legislator in this headlines is an illustration of an interesting linguistic phenomenon common in English-language European law discussions: the use of legislator in place of legislature. A scan of the literature will readily show that the former term is quite prevalent in EU law academia (the EU legislator, although plenty of papers evidence the same phrase with legislature substituted in. For example (and there are many examples), see L Leone, Farm Animal Welfare Under Scrutiny: Issues Unsolved by the EU Legislator (2020) 12 EJLS 47. Is the use of legislator to refer to a definitive collective institution empowered to make laws (ie, a legislature) ever correct?

Let’s start with a linguistic check. The BVerfG’s translators are working from the German word Gesetzgeber, which literally translates as law giver, but we might more poetically call it law maker for these purposes (not least because lawgiver makes one think of Moses or Solon or someone else on a mural in Lincoln’s Inn). This does, in fact, map reasonably well onto legislator, although the Latin lātor is probably proposer rather than maker. However, the problem lies in the fact that in German, Gesetzgeber clearly bears a wide metaphorical meaning, rather than referring to one member of the Bundestag. By the legislator, what is clearly meant here is the totality of the bodies entitled to make legislation for the Federal Republic of Germany. Perhaps, in cases involving a federal element, it might encompass the parliaments of the Länder as well, but I am too unlearnèd in legal German to know. It may also bear, in part, the idea of the German people, as sovereign, exercising their power as legislator through their representatives, but again, I really am not qualified to say.

As discussed supra, this would obviously ordinarily bear the term legislature in ordinary English usage, as that word can have the broad, encompassing meaning used in Germany. For example, although Ontario’s provincial parliament is the Legislative Assembly , the legislature consists of the Legislative Assembly and the Lieutenant Governor together (the Crown-in-Parliament, if you will). However, it is true that legislator is, on occasion, used to have a broad metaphorical meaning, usually in law journal articles slightly too in love with abstract theory (in your correspondent’s opinion). If a law professor wants to wax lyrical about Montesquieu and the nature of legislative power, one might expect indeed to see legislator used in such a fashion, although I would discourage it. It also can be used more sensibly when talking about an inchoate or unclear body, perhaps identified with ideas of the people ; I have heard people refer to the collective bodies able to amend the United States Constitution as the the Article v Legislator. Yet, in these cases, the usage is always in the minority; it is only in EU law and studies of the law of European countries that I have seen such frequent use of legislator in this way.

This suggests, to my mind, that the case for legislator must rest on their being something sui generis about the German and EU legislative processes. The case, I would think, would rely on the fact that both the German and EU legislatures are not traditional political layouts. In the German case, although the Bundestag is precisely congruent to expectations, the Bundesrat is not really second chamber in any traditional sense, bearing more resemblance to a gathering of ambassadors than a classic senate. (On this point, see excellent discussion in B Ackerman The New Separation of Powers (2000) 113 Harv LR 633, 671 et seq) The same goes, mutatis mutandis for the Council of the European Union (the design which, obviously was quite influenced by inter alia the Bundesrat), and is further complicated by the role of the Commission as the initiator of legislation. We might even add into the mix the oblique rôle in shaping the agenda which gives rise to legislation played by the European Council, as well as the influence of EU citizens via the European Citizens’ Initiative. All of these make for quite the mélange, but I still cannot really see the case for using legislator. Legislature is a wonderful word, delightfully mixing legis and judicature in playful harmony. Perhaps English is not as imaginative a language as German, but I am reluctant to abandon our lovely term for a legislative body and replace it with a word whose modern meaning clearly indicates an individual member of such body. If this means losing some grand metaphor, so be it.