legal terminology chapter 4. terminology terminology - the study of terms and their use. terms are...

Legal Terminology

Chapter 4

Terminology

• Terminology - the study of terms and their use. • Terms are words that in specific contexts are given

specific meanings that may deviate from the meaning of the same words in other contexts and in everyday language.

• Terminology studies how such terms come to be and their interrelationships within a culture.

• Terminology differs from lexicography in studying concepts, conceptual systems, and their labels (terms), whereas lexicography studies words and their meanings.

Legal concepts

• Law – a social phenomenon• Legal rules differ in different legal orders• Legal concepts also differ

Legal concepts

• “…Legal science differs from the natural sciences: the laws of nature are the same everywhere. The difference is evident in the relationship between language and its object. The language of a natural science cannot change reality: if a plant is described wrongly or inaccurately, it remains as it was none the less. But if the legislator, in a new law, describes a legal phenomenon otherwise than in an earlier law, then the legal reality changes: law only exists in human language” (Brækhus 1956)

Legal concepts

• Where the concepts of two legal systems differ, the semantic domains of legal terms do not correspond with one another

• Historical interaction between societies: legal concepts of Sweden and Finland - very close, since Finland formed part of the Kingdom of Sweden for over 6 centuries; England and the US: English law was applied in the former colonies

Legal families and conceptual kinship

• Common law• Civil law• European law

Common law and civil law

• Civil-law system developed in medieval universities on the basis of Roman law; its divisions and concepts formulated first on the basis of substantive law founded on a number of abstract principles

• Common law: formed in the courts of England following the Norman Conquest; the conceptual apparatus – defined by the requirements of medieval judicial procedure

Common law and civil law

• Common law – placed on judicial procedure; English judges – higher status than their continental counterparts

• European law: continuingly unifying the legal orders of the Member States

The Legal System of the European Communities

• A legal system of its own, partly superimposed on those of Member States

• The founding states of the early Communities - part of the civil-law legal family, the legal system of the European Communities also based on civil-law foundations


• French law – considerably influenced the principles and basic concepts of Community law

• Methods of the Court of Justice - essentially based on those of the French Conseil d’Etat; the institution of commissaire du gouvernement served as a model for that of Advocate-General


• German law: principle of proportionality and that of reciprocal loyalty and trust (in performing contracts);

• The role of academic legal writing when the ECJ takes its decision – a feature of the German legal tradition


• English influence: doctrine of precedent (stare decisis) develops in harmony with common law traditions in ECJ;

• The style of judgments: in 1950’s and 1960’s, ECJ judgments - stylistic copies of French judgments, esp. in their construction and disposition (e.g. the signal words attendu que); over time, the style of the Court became more independent: construction of its judgments does not come directly from any legal order of Member States


• A hybrid, mixed law in which legal traditions of Europe increasingly intertwine

• Methods of interpretation of ECJ: a mix of different legal traditions

• Interaction between the Community institutions and national legal orders in a way not directly borrowed from any legal order


• An entirely new type of legal system, with its own characteristics, developing side by side with civil law and common law; applies to legal systematization and to doctrine relating to sources of law and to individual institutions and principles


• New elements - partly evident in the form of new terminology, partly hidden behind established terms coming chiefly from France; these old terms possess a new conceptual content in Community law

Characteristics of legal terminology: Legal Concepts and Legal Terms

• Concept: mental representation of an object• Term: the technical designation of a concept• Term – verbal expression of a concept

belonging to the conceptual system of a LSP; may be a single word, compound or a phrase (e.g. “good faith”, “free movement of persons”)


• Terms – usually nouns• Referent – entity that exists physically or

metaphysically and fulfils the conditions imposed by a concept (e.g. in France, 175 referents of the concept of “general court of first instance (juridiction de droit commun du premier degré de l’ordre judiciaire, expressed by the term “tribunal de grande instance”; by contrast, only 1 referent connected to the concept expressed by the term “Cour de cassation”)


• Legal terms: • not imaginable without a legal relationship; • can be used in other contexts, but have a

particular meaning in certain legal relationships;• express legal facts in cases where the features

“to which the Law attaches effects answer to the conditions that the Law imposes and thus to a legal notion that confers on them a meaning with regard to the Law (e.g. “error”)


• Legal term can be a word or phrase that only appears in legal language (“abuse of process”, “criminal responsibility”), or a word or phrase that forms part of ordinary language but has a special meaning in legal language (“consideration”)

1 concept – 2 terms: examples

• Sole proprietor (US) – sole trader (UK)• Articles of association (UK) – Articles of

incorporation (US)• Memorandum of association (UK) – by-laws

(US)• Corporate law (US) – company law (UK)• Tort (English) – delict (Scottish)

How do terms and concepts work in law?

• Adverse possession in common law: a situation where someone without being owner acquires under specific circumstances full title to land against all others including the record owner

• To benefit from this, certain acts over an uninterrupted period of time prescribed by statute are necessary

Adverse possession

• Such possession must be actual, visible, open, notorious, hostile, under claim of right, definite, continuous and exclusive

Adverse possession

• 1) factual constellations in which persons occupy land which does not belong to them

• 2) circumstances of the acquisition of property by a non-owner in an exceptional situation

Exceptional situation: requirements

• 1) Legal constellations, like mortgage, which do not lead to adverse possession

• The concept enables a regular argumentation in a case related to acquisition of property under exceptional circumstances

• The argumentation must take place within the indicated set of situations

• These situations must be tested towards the background of the concepts provided by the doctrine to exclude abuse (exception to the general rule that protects the rightful owner)

Adverse possession

• The concepts used in the test must be interpreted

• Interpreting the concepts follows the guidelines of the doctrine, sometimes expressed in definitions

Adverse possession

• The possession is:• notorious when it is open, undisguised and

conspicuous• Hostile when it takes place without the

permission of anyone claiming paramount title and is coupled with the claim of ownership, express or implied, against all others including the record owner (e.g. lease is not a case of hostile possession)

Adverse possession

• Requirements for professional argumentation which may not be accessible to non-jurists

• It must pass the test of rationality within the legal community

• Both situational and conceptual requirements of completeness are necessary to make the conceptual structure work in legal argumentation

• The final test – the test of rationality passed within the legal community

Relative existence of legal notions: discovery

• The existence of a legal notion depends upon the wish of the legislator

• When the comparative lawyer is dealing with the common law procedure of discovery in a case involving a court in a civil law country he will not simply introduce the notion of discovery into his systemic knowledge of this particular civil law but perceive it as part of the other, foreign law system

discovery

• He will not apply the procedures of discovery because they do not exist as long as they are not anchored in the legal system by the legislator

• This anchorage may be constituted by the decision to introduce discovery into this particular civil law system, or it may be a result of a provision related to the conflict of laws, or a result of legislation concerning recognition of foreign judgments

Relative existence of legal notions

• Existing legal notions can be modified, replaced by others or abolished

• Connections between term and concept – arbitrary

Implied terms and concepts

• What happens when a common law term e.g. punitive damages is translated as condamnation à dommages et intérêts punitifs or Strafschadensersatz – unknown in the French or German legal systems

Implied terms and concepts

• E.g. Verhältnissmässigkeitsgrundsatz introduced as principe de proportionnalité into French-language legal acts within the EU although it does not exist in the French terminology

Emergence of new legal-linguistic units

• A new tort termed intentional infliction of emotional distress –added to the list of common law torts

• Japanese law distinguishes between injury to honor and injury to reputation

• Understanding of legal terminology - based upon institutionlized creation and interpretation of legal concepts and terms, mainly by the legislator and by courts

Classification of terms

• Technical: promissory estoppel, renvoi, certiorari

• Meaning different from ordinary language: consideration, equity

• Overlapping concepts: domicile in UK and USA• Preferences: warranty preferred in US,

guarantee in UK; antitrust legislation (US), competition legislation (UK), corporation (US), company (UK)

Scientific terms introduced into law

• Terms from other sciences introduced into statutes• Do they retain their meaning?• In the materials accompaning preparatory work in

the Parliament, interpretive guidelines, definitions and other information is contained which allows the interpretation of a concept when it becomes part of a statute

• The materials may introduce a specific meaning, broader or narrower than the scientific one

Scientific terms introduced into law

• Medical terms e.g. alchoholic or drug addict may be understood in law differently

• The scientific term becoming a legal term may acquire a different meaning

The legal ‘shall’

• Any person bidding at the auction shall stand surety for his own debt until full payment is made for purchased merchandise

• Shall – the binding character• Institutes the legal speech act and introduces

the binding force of the utterance, i.e. it establishes its enforceability

The legal ‘may’

• In certain circumstances a police officer may ask the driver to take a breath test

• If convicted, an accused person may appeal• May = ‘have right to’

Polysemy

• Term – a verbal expression of a concept• Legal terms – often characterized by

polysemy: depending on context, a single term can express several concepts

• Polysemy - “allows the vocabulary of the language to transmit the infinitely varied ideas that arise in social life” (Vlasenko 1997)

Polysemy

• Rule rather than exception• Legal orders are continually changing over

time • Example: ius civile

Ius civile

• Ancient Rome : referred to classical Roman law as opposed to ius honorarium on the one hand, and, on the other, to the law applied to Roman citizens (as opposed to ius gentium)

• In Byzantium, in medieval Europe and at the beginning of modern times – referred to Roman law and to temporal State law, as opposed to the divine law (ius divinum) or natural law (ius naturale)

Ius civile

• In medieval Europe, legal science focused on the study of those parts of the Corpus iuris civilis dealing with legal relationships between private individuals; a branch of law relative to relations between private individuals

Ius civile

• In English:• Roman law• Continental law• Private law

Ius civile

• In Germany: Zivilrecht synonymous with Privatrecht

• In France, commercial law is not included in civil law

Orderly and disorderly polysemy

• Orderly (consistent) polysemy: a legal term has two or three closely connected meanings; often: the concepts expressed by a term are hierarchical or partly overlapping

• Example: common law: 3 meanings in English; misleading from the international standpoint

Common law

• English common law – different from the pan-European ius commune

• English common law – developed by English courts

• Ius commune – law developed in European universities in the Middle Ages and early modern times

Disorderly (inconsistent) polysemy

• Meanings of the term diverge to such extent that they no longer have anything in common

• French “prescription” and “disposition”• Prescription: 1) different modes of acquisition

or extinction, 2) judicial order or a legal rule• Disposition: 1) action to dispose of a good; 2)

legal rule, a contract clause, or a head in the operative part of a judgment

Consequences of Polysemy

• When p. occurs, interpreters of the text should be able to assign to a term the meaning appropriate to the context

• Often – easy to distinguish between different meanings; sometimes – impossible to tell what is the correct interpretation of the text: ambiguity

Synonymy

• Opposite to polysemy: two or several terms express the same concept

• E.g., where magistrates arrange an inspection on the scene, legal French uses: “visite des lieux”, “transport sure les lieus”, “descente sur les lieux”, or “vue des lieux”

• Synonymy – a common feature of legal terms

Synonymy

• In legal languages with several layers of language, such as English, this is especially frequent

• Legal English often expresses the same concept by an Anglo-Saxon term, a French term, and a Latin term

Synonymy

• Partial synonyms – misleading; mistakes and misunderstandings are possible where the semantic fields of two terms stand side by side

• E.g. judge and magistrat in legal French• Partial s. – can be useful in legal language

Quasi-synonymy

• It is possible to draft a legal provision or a clause in a contract without leaving gaps: listing a number of quasi-synonyms leads to a blanket coverage of the semantic field intended: contract practice in common law countries

• E.g. Russian enables reference to a contractual relationship through several terms which are wholly or partly synonyms: dogovor, kontrakt, soglashenie, pakt, konventsia, konsensus, angazhement

Towards modernized legal terminology

• Modernization – replacing outmoded lexical units by contemporary ones, creation of neologisms and semantic change, the modernisation of legal language through plain language rules based on readability or understandability

Towards modernized legal terminology

• Replacement of the term writ of certiorari by certification does not increase the understanding although it modernizes the language

• His conviction and sentence were affirmed on direct appeal and certification was denied

• - understandable to laypersons only if the procedure is explained

Updating legal terminology

• Lord Woolf’s reforms (1999)• Writ – claim form• Pleading – statement of case• Plaintiff – claimant• Minor/infant – child• In camera – in private• Ex parte – without notice• Guardian ad litem – litigation friend• Mareva injunction – freezing injunction• Anton Pillar order – search order

Dissolution of terms or concepts?

• Legal terminology usually followed the conceptual framework of the Roman law

• Legal maximes: Lex retro non agit (recent origin)

• New tendency: the term does not rigidly correspond to a concept any more

• Different terms in different linguistic forms reflect the content of a concept

Dissolution of terms or concepts?Examples

• Example: piercing the corporate veil (US); lifting the corporate veil (UK); levantamiento de velo (Sp); Durchgriffshaftung

• A rule permitting veil-piercing in undercapitalized firms can be seen as a penalty default that creates an incentive for firms with low net capital to disclose that fact when contracting with potential creditors, so that the creditors will be estopped from piercing


• Reasonable man – a standard in common law to determine the appropriate interpretation of party intent in the contract law or the appropriate action in tort law

• Clinical negligence: reasonable doctor• Reasonable bystander – synonymous with the

reasonable third party (contract formation)• Reasonable person


• The terms piercing the corporate veil and reasonable man are dynamic; their linguistic status varies and depends upon the structural (textual) circumstances of use. They rather adapt to requirements of ordinary syntax than force the syntax to follow the rules of legal language

The future?

• Future legal language – more descriptive than conceptual and closer to ordinary language

• More guidelines with reference to the linguistic aspects of creation and application of law

Problems

• Modernized legal terminology – tendency to refer to ordinary language

• US state securities laws referred to as blue sky laws; derive from a court decision which described the purpose of securities legislation as aiming to prevent “speculative schemes which have no more basis than so many feet of blue sky”

Problems

• Lemon laws (US) provide for procedures for consumers who are confronted with mechanical problems concerning their vehicles; applied in cases where a car dealer does not correct a recurring defect in a vehicle within a specified period of time; the purchaser can rescind the sale contract and recover a full refund of the purchase price

Problems

• Some efforts directed towards the modernization of legal terms may not lead to an increase in their understandability

• Legal vocabulary – rarely used and understood in an isolated form

• Attempts to increase understandability should focus on the structure of legal texts

• The impact of modernization of legal vocabulary should not be overestimated

Legal Thesaurus

• Electronic dana processing allows for broad lexical corpus to be included into a lexicon

• Legal thesaurus – includes not only lexical material but also samples of context, example of use, phraseological units, texts and doctrinal commentaries

Legal Thesaurus

• Traditional lexicographicalapproaches – based on terms

• Approaches based on concepts (mental abstractions)

• Lexicographic works based on legal concepts may map the whole conceptual field which includes the typical terms used in it

• Legal translators need dictionaries

Legal pragmatics

• Depicts how the legal concepts are used as a structural background for the legal argumentation

• Opposes the banalization in modernizing the legal terminology

• Legal language – more than terminology; becomes operative in speech acts

legal terminology chapter 4. terminology terminology - the study of terms and their use. terms are...

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