Legal Latin

The importance of Roman law Latin in European culture Latin – universal language of lawyers Latin in Canon Law Latin in modern legal languages Communication value of legal Latin

Initially, Roman law – primitive and formal Birth of iurisprudentia – Roman legal

science Work of jurists – the base on which

medieval scholars built the system of ius commune

In Western Europe, Roman law as a coherent legal system disappeared with the fall of Rome

Maintained at a very high level in the Byzantine Empire530’s Emperor Justinian codified this law:

Corpus iuris Civilis: basis of ius commune, founded on a logical system of concepts

This legal system – common to countries of continental Europe

Also – non-European countries (Latin America)

The Civil Code of Brazil: 1 807 articles, cc. 800 come directly from Roman law

Lawyers from continental Europe (and some other countries) speak the same conceptual language, independently of their ordinary languages

Conceptual unity: it is relatively easy to understand and translate a foreign legal language if the conceptual systems of both source and target languages correspond

“The majority of the immense lexical baggage that the European continent has gained is translatable by reason of its origins linked, first of all, to translation from Latin to French, from Latin to German, from Latin to Italian, then to translation from French and German to Italian, Russian, Hungarian, Spanish, Polish, etc.” (Rodolfo Sacco)

Not based on Roman law Influence of Roman law at the level of legal

concepts, but particularly at the level of language

Great English lawyers who gave a logical system to common law and who first expressed this system in written form – trained in Roman law

Latin – the oldest language of systematic description of the common law

Latin – lingua franca between diverse populations of the Empire

Byzantine Empire – Greek The boundary between the zones of

dominance of these languages ran from north to south along the centre of the Empire: it crossed the Balkans and ran along the eastern side of the territories of today’s Tunisia

With the downfall of the Roman Empire, these two parts separated

Written culture grew weak, and Germanic tribes settled on the western territories of the former Empire

Latin as a spoken language moved further and further away from classical Latin (spoken language already diverged from the written language in Imperial times)

Thanks to Catholic church, Latin retained its position in medieval Europe as the dominant written language

After the fall of the Roman Empire – written Latin was of poor quality

Carolingian Renaissance (reform of the school system by Charlemagne at the end of 8th c.) raised the level of written Latin

In Middle Ages – literary works written in Latin; it is estimated that the number of medieval works in Latin was 50 times greater than that of works in Latin during Antiquity

From the end of the Middle Ages – scientific progress, technical inventions

Printing Science- produced in Latin: “an ocean of

Latin literature”; foundations of modern science – cast in neo-Latin (Kepler, Newton, Galvani, Linnaeus, et al.)

During the Middle Ages, Latin became transformed stylistically and grammatically, moving closer to Romance languages; medieval authors made use of prepositions and subordinate clauses more often then authors of Antiquity

As a reaction, Humanist scholars restored the style and grammar of classical Latin, by imitating the Latin authors of Antiquity

Latin became more difficult

Restoring the stylistic and grammatical canons of the Latin of Antiquity brought about the demise of Latin as a tool of communication at the national and international level

Latin – too difficult for non-Latinist scholars to have a command of

Strenghtening of nation states, and use of the national languages as a tool of their power politics

Use of Latin as a language of science began to diminish even in 17th, above all in the 18th c.

France sought to replace Latin with her own national language

End of 18th c. national languages had ousted Latin

Smaller nations, whose languages were not instruments of power in the international arena, kept to the use of Latin

Former great powers such as Poland and Hungary - Latin remained the language of science longer than in Western Europe

In international relations, French ousted Latin in 18th c. because of the position of France as a great power and of her politico-cultural penetration throughout Europe

All European languages – in debt to Latin and Greek

Corpus iuris Civilis – compiled in Latin Greek - the dominant language in the

Byzantine Empire Latin loanwords and quotations

Regions that had belonged to Western Roman Empire - no new national written languages existed as yet

For the same reason, leges barbarorum (compilations of Germanic tribal laws after the fall of the Roman Empire) – drawn up in Latin

After the birth of new languages (Spanish, Italian, French), the authority of Latin remained superior

Given the conservatism of legal circles, the transition from Latin to new national languages – particularly slow; especially – science and teaching of law

Theoretical legal works written in Latin until the 19th c.

Cc. 4000 new legal works published in Latin in 16th c.

In international relations, Latin – sole language of international negotiations and treaties until 17th c. when French began to oust it

Latin – guaranteed the neutrality and equality of inter-State relations

Practical lawyering: court minutes, records of administrative authorities, notarial acts - drawn up, partially or wholly, in Latin in the Middle Ages; also: legislation

From the Middle Ages, courts and admnistrative authorities often heard cases in the vernacular

This was true of the Parlement of Paris from its establishment (cc. 1250) although judgments of the court were drawn up in Latin

Law French in England replaced Latin in the sessions of law courts in 13th c. before their language gradually changed to English

In some non-German regions of the Austrian Empire, Latin formed an instrument of protection against the expansion of German

Since the founding of the Holy Roman Empire (962-1806) Latin – official language, with the same claim as German

When the Emperor of Austria tried to replace Latin with German in Hungary, the inhabitants chose to keep strictly to former practices

Latin preserved the status of an official language of Hungary until 1844

Latin- used in the same way as an instrument of defence in Croatia to reject the Hungarian language

In 12 c. 17,000 letters sent by the papal chancellery

For typical cases, exact formulas developed, included in a large number of compendia, legal and administrative letters sent by the papal chancellery to different parts of Europe

Throughout Europe, the standardised language of the papal chancellery exercised an enormous influence on the legal language of the royal chancelleries, administrative offices, notaries, etc.

In the Middle Ages, the legal and administrative language of the Catholic Church – by far the most advanced in the Western world

In the Middle Ages the lettres de justice of the king of France were drawn up according to the model given by the language of canon law

With these letters, the king ordered that a legal process might be commenced or he guided the course of a process

The royal lettres de justice began with the same expressions as letters from the papal chancellery

Canon law still forms the legal system of the Catholic Church, today based on the Codex juris canonici of 1983

Specific language: use of Latin Until 1917, the language of application of

canon law was Latin; only then vernacular languages began to be used

Codex iuris canonici – exists in different languages, but only the Latin text remains authentic

Canon law and language stick strongly to tradition

According to the instructions of the pope for drawing up the Canonic Code of 1917, the requirement was, “in conformity with the exalted value of Holy Laws, to use Latin as the legislative language, in the same way that it so successfully found its expression in Roman law”

Although Latin is no longer the language of legal science or of legal practice – leaving aside canon law – it has left important traces in modern legal languages

The style of modern legal languages still reflects the rhythm of old legal Latin

A large proportion of the vocabulary of modern legal languages comes from the legal Latin used in Antiquity, the Middle Ages, or the beginning of modern times

In the Romance languages and English, the vocabulary coming from legal Latin appears for the most part in quasi-original form, slightly modified

Legal languages of other European countries (German, Greek, western Slavic languages, Nordic languages) also possess many words of Latin origin; in these languages – loan translations (calques): Latin used as a structural model to form new words in modern legal languages

Legal Latin has often given a new meaning to a word already existing in a modern language (semantic borrowing)

Modern texts – direct Latin quotations: terms, expressions, maxims

Latin – a stylistic tool; an aesthetic medium; the need to impress the reader

By using Latin expressions and maxims, a lawyer sets out to show his professional competence

Latin expressions and maxims - “beloved folklore” of lawyers

Latin quotations – more often used in legal science than in legal practice, e.g. legislation, case law, private documents

In Nordic countries, legislation and case law contain hardly any Latin quotations

Common law countries: English and American judgments and other documents – expressions e.g. erga omnes, inter alia, mens rea, per diem, stare decisis

May be grouped according to their levels of integration: an entire Latin sentence in a modern language text; a Latin maxim as part of modern language sentence, or a Latin term between parentheses in a modern language sentence

A high status value in the Western world A symbol linking legal science and practical

lawyering to the common European tradition

Latin maxims: on the walls of courthouses Seals of judicial authorities – often adorned

with such expressions; also: emblems of public organs and law

societies or bar associations

Affidavit ‘he affirmed’; legal meaning of a ‘written or printed declaration confirmed by an oath’

Arbitral decisions: pacta sunt servanda ‘agreements should be respected’

Qui elegit iudicem elegit ius ‘choice of judge also implies choice of law’

Latin legal maxims – often appear in shortened form: pater is est quem nuptiae demonstrant ‘marriage makes the father (of a child) presumed, ‘the (identity of the) father o(of a child) is demonstrated (implied) by the fact of marriage – sometimes expressed in shortened form: e.g. “That is clear by virtue of the principle pater is est”

Do legal principles expressed through Latin maxims still correspond to the content of current law?

Ambiguitas contra stipulatorem ‘ambiguity (in a document) should be interpreted to the disadvantage of the drafter’,

lex specialis derogat legi generali ‘a specific law derogates from general law’,

singularia non sunt extendenda ‘specific rules should not be interpreted extensively’; cessante legis ratione cessat lex ipsa ‘once the reason for a law ceases, so does the law itself’

These maxims – not quite exact from the standpoint of current law

Latin maxims – persuasive function: they provide a basis on which to reinforce principles that only appear in a sporadic way in positive law; thanks to Latin – easy to raise these principles to international level

Latin maxims - “a compass indicating the proper direction in legal interpretation

Common heritage - facilitates communication between lawyers from various countries

Often: variants of Latin origin look alike, or expressions translated directly from Latin mean different things in different linguistic zones

Calque – a new word formed in the target language by imitating elements of the original word in the source language

Semantic borrowing - a word already existing in a language obtains a new meaning under the influence of a foreign language

Fons iuris – fonte del diritto, fuente del derecho, source du droit, source of law, Rechtsquelle, rättskälla

Latin – “lingua franca of the world’s lawyers”

Ius commune - gave today’s lawyers the legal Latin maxims guaranteeing respectively the unity of the European legal orders and international intelligibility between jurists

Legal Latin eliminates translation problems and linguistic disagreements: a dead language is hardly polysemic

However: “each language…possesses its own Latin and its own way of using it”

The same expressions and maxims – not used in all countries, and their meaning is not necessarily the same

Today’s lawyers – lack an adequate knowledge of Latin

“This use as a code is especially typical of common law Latin. Very often, the first word (or the first two or three words) of an old Latin sentence is used to express a legal notion. A good example is nisi prius. The literal translation ‘unless before’ gives no idea of the sense of these words.

According to English and American legal dictionaries, it originally involved a situation where jury members only had to come to London if proceedings had not already been commenced in the country beforehand. Today, nisi prius is used to indicate that it is a matter of proceedings at first instance with a jury present. As a result, a nisi prius court is a lower-instance court that tries cases with juror participation”

Oral use of legal Latin – in different countries, the Latin accents differ widely – difficult to understand spoken Latin expressions

Common-law lawyers pronounce Latin almost as they would their own language (Anglo-Latin); young American lawyers – a tendency towards classical pronunciation

Part of legal Latin – international (the heritage of European ius commune); until the end of 18th c. legal science – supranational

Partial coherence between common law countries and civil law countries

Canon law and lex mercatoria – influence in England

Today – convergence of common law and continental law by virtue of the EU

Legal Latin – crossing the boundaries of legal families more easily than before

Anglo-American dictionaries of legal Latin – largely original in comparison with those of the German linguistic zone (e.g. amicus curiae – unknown in continental laws)

Part of legal Latin – national (e.g. lex retro non agit – only used in Polish; in American law: ex posto facto )

A Latin expression may have a different meaning in common law and civil law countries

In the future as today, only some lawyers have a good command of Latin

International legal Latin dictionary should be compiled, bringing together the expressions actually in use in different legal cultures, indicating their meaning in each of these cultures