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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
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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
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In Western Europe, Roman law as a coherent
legal system disappeared with the fall of the
Western Roman Empire in 476
Maintained at a very high level in the
Byzantine Empire
530’s Emperor Justinian codified this law:
Corpus iuris Civilis: basis of ius commune,
founded on a logical system of concepts
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Ius comune – common to countries of
continental Europe
Lawyers from continental Europe (and some
other countries) speak the same conceptual
language
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With the downfall of the Roman Empire,
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)
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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
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In the 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
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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.)
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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Leges barbarorum: lex Salica, lex Ribuaria
Primitive compilations: no general concepts
(e.g.distinction between theft of a pig, a calf,
a dog, etc;theft of a pig: 16 legal provisions)
Barbarian laws – drawn up in Latin
Latin loanwords: e.g. Pacht (‘lease’) < pactum
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Latin of medieval Germanic laws - a mixture
of Germanic and Roman styles
In court hearings – German judges always
used the vernacular (dialects of Old German)
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In 800 the Pope crowned Charlemagne
Roman Emperor
When the empire was later divided, the
tradition continued: Otto I got the centre of
the Empire (today’s Germany and northern
Italy) and was crowned Roman Emperor in
962: the (Germanic) Holy Roman Empire
(Heiliges Römisches Reich Deutscher Nation.
Sacrum Romanum Imperium Nationis
Germanicae)
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Over time, the Empire grew increasingly
powerless in relation to the regional power
centres
Power of the emperor diminished, that of
regional princes flourished
Formally, the Empire lasted until 1806
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Old legal German, based on dialects – not
uniform
Some terms – still used: anfechten (‘annul’),
bescheinigen (‘to certify’), erweisen (‘to
demonstrate’), verantworten (‘to be
answerable for’, ‘guarantee’)
Level of abstraction – low: large number of
words to describe concrete cases
Use of synonyms or quasi-synonyms
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The Holy Roman Empire - no uniform legal
system created by the imperial legislator
Laws – local
Customary law – did not correspond to the
needs of a German society characterised by
rapid progress
Need for an advanced legal system
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European universities taught Roman law
Not classical Roman law but ius commune
(Gemeines Recht), created by medieval
lawyers
In harmony with Canon law, created on the
basis of Roman law
Roman law – stressed the status of the
Empire as a continuation of the original
Roman Empire
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Judges of higher German courts – lawyers
with a university education
In 1495 Imperial Court set up
(Reichskammergericht)
Reichskamergericht applied Roman law (also
partly Canon law)
Recognition by the imperial power of Roman
law as the basis for German common law
(Gemeines Recht)
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Beneath the Reichskammergericht stood the
lower imperial courts, which also applied
Roman law
As the application of Roman law spread in the
German justice system, lay judges began
asking legal scholars for opinions
Case files - sent to universities
German law faculties provided a kind of
higher court service esp. in 16th and 17th
centuries
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First professors of law – trained in Italy, in
Roman law
Primitive commentaries on local German laws
could not match refined legal doctrines of the
Italian universities
Professors moved from country to country
Intellectualisation of German law; need for
judges with a theoretical legal training
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Official languages for the Holy Roman Empire
for the whole of its existence: German and
Latin
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Medieval period: emperor should have a
command of the language of the Church;
heard proposals from his council in Latin,
responding in the same language
After the Reformation, the protestant States
used new German written standard
(Hochdeutsch) since Low German was no
longer accepted in the Diet
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Latin loanwords
Legal German – more abstract and precise
From the end of 15th c. German legal
terminology was systematised and partly
Latinised
During the reception period, Latin gave some
80% loanwords in German
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By mid-18th c. German-language legislation
– still full of linguistically mixed texts, with
many Latin quotations
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17th c. – French became a dominant power,
spreading its language and culture to other
countries, including the Holy Roman Empire
Spanish and Italian – also used in some
situations
Influence of French on German – stronger in
the late 17th and early 18th c. than that of
English today
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Many French loanwords: in the mid-17th c.
the number of French loanwords comparable
to that of Latin loanwords
French – internal language of the Prussian
Ministry of Foreign Affairs;
in some cases – treaties between two or more
German-speaking states – concluded in
French
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18th c.: ideal citizen – active, aware of his
rights, rather than the passive subject of
former times,
Rights of citizens to obtain information on
legal rules
Requirement for clear legal language and
drafting of intelligible codes
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Legal language should be concise, simple and
understandable
It should be short, in the image of military
orders
Legal texts should be clearly constructed,
mysterious abbreviations and complex
sentence structures abandoned, the use of
Latin curtailed, words of foreign origin
replaced by German words
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Herman Conring (1606-1681): “If you use a
foreign language or one known only to the
learned, you are doing a (great) wrong to the
people”
Internal decay of the Holy Roman Empire in
17th c. following the Thirty Years War
To regain national unity, the German
language was needed as a cohesive factor
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Legal science: the choice of language of
works presented at book fairs in Leipzig:
Books in Latin
1701:55%
1740 :27%
1770 :14%
Legal theses – published in Latin until the mid
19th c.
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End of 18th c.: German – the main language
of German legal culture;
Latin – subsidiary means of clarifying new or
difficult terms
Binary formulas - facilitated understanding of
terminology: purely German words clarifying
the meaning of foreign words: publice und
öffentlich, bona fide und unter gutem
Glauben
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More radical demands: Legal German had to
be entirely cleansed of foreign words:
methodical Germanisation (Eindeutschung) of
the German language
No need for loanwords, since any subject
could be dealt with by using purely German
words
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Enlightenment: the world had to be
conceptualised as a rational system,
functioning with virtually mathematical
accuracy
In law: the major systematic codifications
were an expression of this notion
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Allgemeines Landesrecht für die preussischen
Staaten (ALR, 1794), codification of Prussian
substantive law covering constitutional and
administrative rights as well as private law,
Allgemeines Bürgerliches Gesetzbuch (ABGB,
1811), a codification of Austrian civil law
Bavarian Kriminalgesetzbuch (1813)
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In 19th c. Germany was unified and rose to
the position of a great power
National language – important reflection of
nationalism
Cleansing the German language of foreign
influences intensified with strengthened
nationalism; many neologisms
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19th c. number of words of foreign origin fell
from 4-5 to 0.5% (e.g. Alimentation .
Unterhalt, Desertion – Verlassung, Citation –
Ladung ‘ summons’, Kopie – Abschrift)
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Bürgerliches Gesetzbuch (1900) almost
completely Germanised terminology of
German private law (Papierdeutsch)
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The most celebrated piece of German
legislation
Excellent internal logic of the codes (on the
model of natural sciences) but its content is
not easily understood from the reader’s
standpoint
A monument of refined legal scholarship;
written for judges versed in law, not for
laymen
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Conceptual hierarchisation, “pyramids of
concepts”
Rechtsgeschäft ‘legal act’, ‘juristic act’, ‘act in
law’, ‘legal transaction’, ‘transaction’,
‘juridical act’; Willenserklärung ‘declaration of
intent’, ‘declaration of will’, ‘declaratory act’,
‘act of a party’; Schuldverhältnis ‘ legal
relationship etween creditor and debtor’,
‘obligation’, ‘debt relationship’
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Many articles can only be understood when
placed side by side with other articles located
elsewhere in the code
Authors of the code sought to use each legal
term in a single meaning
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Power of BGB lies in the formalisation of its
rules, balance of structures and general
principles of civil law
The code has remained in force despite great
social and economic changes of 20th c.
In force in DDR before promulgation of the
East German Civil Code in 1975
Reception in far-off countries such as Brazil
and Japan
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In Switzerland – use of foreign words more
common than in Germany; the number of these
words – two times greater in the Swiss Civil Code
(Zivilgesetzbuch, ZGB) than in the German Civil
Code
Legal German – a certain number of words of
foreign origin; apart from Latin, they often come
from Renaissance Italian, esp. in commerce:
Bank, Konto, Risiko, Giro,
French words – terminology of international law:
Konvention, Intervention
Today: English (franchising, leasing)
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German used in several countries:
Federal Republic of Germany
Austria
Switzerland
Eastern Belgium
North of Italy (South Tyrol)
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South Tyrol – German terminology developed so
that it is possible to use it to express every
Italian institution; they sought to know if an
Italian legal concept could be expressed by a
term already adopted in Austria, Switzerland or
Germany without the danger of misleading
conclusions; where that was not possible – Italian
loanword or a neologism created on the basis of
German; as a result, a bilingual dictionary of legal
and administrative language of South Tyrol
published: terms in German and Italian,
definitions in both languages
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Austria had its own legal and administrative
system, whose terminology was created in 19th
c. without the influence of the Eindeutschung
movement
Terms that were unknown in Germany and the
meanings of the same terms could be divergent
Ruling classes in Austria - in contact with nonGerman linguistic groups; a cultivated use of
German developed, with no basis in German
dialects: Schönbrunnerdeutsch or Hofratsdeutsch
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Legal German in Germany and Austria identical: same traditions
Conceptual identity; legal terminology –
similar
Differences: some 650 Austrian terms differ
from corresponding terms in Germany (13%)
Defferences: designations of courts
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Austrian accession – minor changes in legal
and administrative language
Law – harmonized by directives, with their
character of framework laws
This allows preservation of traditional
Austrian terminology because final rules are
formulated in Austria
Regulations of direct application – use the
terminology of the Federal Republic of
Germany
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Historically – German was an important means of
communication in the regions surrounding the
Baltic Sea (notably in the Hanseatic era) and in
Eastern Europe
Solid population base
In 1800, German was the largest language in
Europe
Late 19th and early 20th c. official language in a
substantial part of Europe
Large number of peoples of Central and Eastern
Europe - In the immediate sphere of influence of
German; also: Alsace and Lorraine belonged to
the German Empire
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Defeat in World War II; cultural attraction of
German diminished; eastern regions of the
country annexed to Poland and the Soviet
Union
International position of German – inferior to
that of English and French
Today: 90 million German speakers in
Europe; the corresponding figures worldwide:
120 million
Economic weight: German occupies 3rd place
worldwide
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International spread of laws of Germanspeaking countries (Baltic countries, Nordic
countries, Central Europe, Eastern Europe) German political, economic and cultural
influence
In Middle Ages, the Law of Magdeburg
applied in Vilnius; Ukrainian documents from
16th to 18th c. refer to Sachsenspiegel code
as a valid source of law; in partitioned Poland,
the legislation of Prussia and Austria was
applied
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19th c.: spectacular success of German
science, which rose to a dominant world
position in many disciplines
In 1920’s and 1930’s German was the main
language of international congresses in
physics and linguistics
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The position of German as an international
scientific language weakened after World War
II
German – not an international language
outside Europe; official status only in 3 global
organisations and in 12 European
organisations
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EU: in 1994, only 6% of EU civil servants
mainly used German in oral communication;
the number of civil servants using German
but with another mother tongue - still
smaller
7
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842 Oath of Strasbourg: Latin and Old French
Philip the Fair (1268-1314) introduced French
to the royal chancellery; the king’s example
spread to the chancelleries of dukes and
counts, city administrations and private
documents
The king stressed the importance of dropping
Latin from the administration of law and
government
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In 13th c. French widely used in northern
France
Mid-13th c. French was established language
for legal documents, at least in the north
13th c.: over 2,000 documents drawn up in
French
Judicial matters pleaded in French in the
Middle Ages in northern France
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Expansion of French began after the Hundred
Years War (1337-1453), which had increased
the power of the king of France
Linguistic unification – highly useful from the
standpoint of the exercise of power
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Legal and administrative language of Paris
began to challenge Latin earlier than any
other language
Therefore, the government and the courts
played a role of prime importance in the
development of French; a large part of their
vocabulary transmitted to ordinary language
French orthography also goes back to the
practices of administrative and judicial organs
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Status of Latin weakened as a result of the
Reformation
The Humanists set up the style of the Roman
classics as the model – crippled the use of
Latin for everyday purposes
16th and 17th c. French ousted Latin in
government and courts
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At universities, the change was slower
In mid-17th c. French law faculties – still
used Latin, traditional language of Roman
law, ius commune and canon law
In 1679 Louis XIV had French law included in
law faculty programmes; somewhat later,
ordered that this law should be taught in
French
Teaching of French law in French - only truly
launched in 18th c.
Legal theses still written in Latin in 19th c.
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Decree of Villers-Cotterêt (1539): judgements
and procedural acts were to be pronounced,
recorded and delivered to the parties in “the
French mother tongue and not in any other
form”.
1629 French became the language of Church
courts
Language of culture, literature, science
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Decree of Lyon (1510) still refers to langue de
pays
Decree of Viller-Cotterêt (1539) speaks explicitly
of French - end of the use of the Romance
languages of the Midi
Judgements and other legal documents had to be
drawn up in French, old languages of provinces
excluded; protests in non-French speaking
regions
At the time of the Revolution, 25 million
inhabitants: 6 million did not understand French,
6 million understood it at the basic level, 10
million had a passable knowledge of French
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Revolutionary decrees obliged civil servants
to use French and draw up all public
documents in it
French – the language of the army
Compulsory military service, the press, postal
services and railways increased the
movement of the population and
consolidated the central administration
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Latin terms transmitted from Antiquity by
continuous tradition (loi<lex, juge <judex,
justice < iustitia, délit < delictum,
société<societas)
Medieval Latin: contumace < contumax
‘contempt’, ‘non-appearance in court’
Greek: démocratie, politique
Neologisms which were never used in Latin or
Greek: autogestion, monoparental; today,
legal neologisms of Graeco-Latin origin often
come from English
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Italian loanwords: banqueroute, change
English loanwords: franchising, dumping,
leasing
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Cartesian spirit: texts constructed in a logical
and methodological way
Legal rules – systematically assembled in
codes
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Legal texts – difficult to understand: long,
complicated sentences, impersonal
expressions, passive and negative forms (il
n’est pas exclu que ‘ it is not impossible
that’); limited use of adjectives, abundance of
nouns; stereotyped phrases (e.g. dont acte ‘in
witness/faith/verification’), archaisms,
petrified expressions (ci-après ‘hereafter’,
ledit, susdit ‘aforesaid’
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Repetitions less frequent than in legal
English, but: e.g. nous avons arrêté et
arrêtons ‘we have decided and do decide’
Petrified phrases: executory formulas for
judicial decisions systematising the grounds
of judgments: attendu que and considérant
que
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Form requirements in verbs: grounds should
always be written in the indicative; using the
conditional can lead to the judgment being
quashed
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Association pour le bon usage du français
dans l’administration, Commission de
modernisation du langage judiciaire, Centre
d’enregistrement et de révision des
formulaires administratifs
Terms felt to be discriminatory – replaced
Courts should eliminate useless repetitions
Latin maxims should be reduced
Clarity of legal language
Today: struggle against Anglicisms
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University of Paris founded in 13th c.
Professors contributed greatly to the
development of Canon law and ius commune
Added impetus to the theory of international
private law, esp. in 16th c.
Many French legal works translated into
Italian in 19th c.
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From the early 19th c. several foreign
countries have received French codes,
particularly the Civil Code (1804)
The Civil Code - a model for corresponding
codes in various countries (Rhineland,
Belgium, Luxembourg, Italy, Spain, Portugal,
the Netherlands, Poland, Rumania; Quebec,
Louisiana, Latin American countries; Egypt,
Ethiopia, Maghreb)
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French administrative justice contributed to
the birth of German administrative legal
science in the late 19th c.
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Homogeneity of the legal languages of France
and Belgium – French-speaking part of
Belgium has tended until recently to look for
inspiration almost exclusively to the legal
culture of France, and not to the legal culture
of Dutch-speaking Belgium, not to mention
that of the Netherlands
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Legal French of Switzerland – partly original with
respect to Legal French of France – legal
traditions essentially Germanic
German – the language of preparation of laws
Zivilgesetzbuch (Civil Code) – translated into
French
Fusion of Germanic and Romance legal cultures
French-speaking legal circles imitate the
language of the dominant Germanic legal culture
Belief that concordance of content of the German
and French variants of laws can only be
guaranteed by literal translation of terms
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French law – model abroad
French legal influence – esp. strong in Italy
Italian law and legal science developed in the
direction indicated by French models
New Italian legal terms often came from
France
In Italian regions annexed to the French
Empire (Piedmont, Parma, Piacenza, Liguria,
Tuscany, Umbria, Lazio, Corsica) – decrees
and administrative circulars published in both
French and Italian
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Rumanian Civil Code – almost a direct copy of
the French Civil Code
Not repealed even during the Communist
period
Rumanian civil law terminology – based on
French
The legal order systematised in the same way
in all Romance countries; similarities in legal
terms – not misleading
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Up to the 17th c. Latin was the main language
of inter-state relations
Bilateral and multilateral treaties – drawn up
in Latin
Following the rise of France to a dominant
position, the use of French spread in the
international arena as a language of
diplomacy and international law
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The Holy Roman Empire insisted on the use
of Latin, while French ambassadors presented
documents in French
From 1676, all ambassadors of France spoke
French in their countries of accreditation
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French spread to international treaties to
which France was not a party
Dominance of French – so strong that it was
used in cases where action was directed
against France or even in cases involving her
defeat: at the Congress of Vienna (1815)
French remained the language of negotiations
and Treaty language
1871, during peace negotiations following
Franco-Prussian war, Otto von Bismarck used
French
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End of 18th c: the US decided to use only
English in their diplomatic relations;
20th c. English began to threaten the position
of French in international relations, and
acquired dominance in this field
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16th c. France became a colonial power:
colonies in North America
French Canada (1534-1760)
British Canada (1760-1867)
“Canadian Canada” (1867)
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History of legal language – closely linked to
legal translation
Before the British conquest - Canadian French
– high quality
After the British conquest - poor translators
corrupted the language
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End of 18th c. public law and the judicial system
in Quebec were anglicised; this required rapid
translation into French of a large number of laws
and other legal English texts, to be applied to the
French-speaking population
Laws were prepared exclusively in English until
1867
Translators – no specialised training
Fastidiousness and repetitiveness of legal English
– repeated in legal French of Quebec (e.g. il sera
levé, perçu et payé à sa Majesté ‘it shall be
raised, levied and paid to His Majesty’ –
repetition of synonyms)
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Between the early 1790’s and the mid-19th c.
legal French in Canada moved very far from
that in France
Legal English – expressed a completely
different legal culture
French-Canadian legal texts – full of
anglicisms (acte ‘loi’ (act), délai ‘retard’
(delay); évidence ‘preuve’ (evidence), offence
‘infraction’ (offence)
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Act of Union (1840) prescribed that English
was the only official language in Canada
Strong resistance of French speakers
Recognition of French by public authorities
The Constitution of 1867 recognised the
language rights of French speakers
1960’s Peaceful Revolution – the status of
Quebec consolidated
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Importance of legal translation decreased
thanks to autonomous preparation of laws in
French
Today: French is the only official language in
Quebec
Quebec National Assembly adopts all its laws
in French
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Both English and French – official languages
of Canada, but only at the level of the federal
government and its institutions
Legal texts of the Canadian parliament –
always translated into both languages
Drafts of Canadian federal laws – worked out
simultaneously in English and French: codrafting
The quality of the original draft – more easily
revealed by comparing the two language
versions than by examining a single version
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Terminological work and the principle of codrafting have freed Canadian French from the
patronage of English
Canadian legislative work brings fresh
elements into the French language because
the specific conditions imposed by legal texts
oblige the Canadians to be creators,
surrendering the mental comfort created by
preserving what is old and certain
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Quebec: common law of English origin
intermingles with law of French origin: mixed
law
Public law comes from common law, private
law is mainly continental
A French-style notarial profession – an
important element of the Quebec legal
system
Hierarchy of sources of law - continental
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Quebec legal French: the need to express
traditional common law concepts in French
and vice versa
In some cases – terms from French law
obtained a meaning different from that in
France: danger of mistakes and
misunderstandings in communications with
France
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At the time when English common law was
created, legal circles were using French
Institutions peculiar to common law –
expressed in French
By highlighting the original form of common
law terms, it is possible to fashion terms that
are authentically French, with a character at
once old and new
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Terminological work enabled compilation of
legal dictionaries containing, in French, the
terminology of various branches of common
law (e.g. law of property, trusts, torts)
“The mixed character of Quebec legal French
is also in evidence in the fact that Latin
maxims appearing in this form of French
come both from the traditional Latin of
common lawyers and from the Latin used as
established in France.”
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19th c. French colonies in North Africa and
Black Africa
The Maghreb (Tunisia, Algeria, Morocco) –
multilingual regions
French – the sole official language of the
region in 19th c.
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Mauritania, Morocco, Tunisia, Algeria, and
Libya
In today’s Maghreb, only Arabic is the official
language;
more people today with a command of
French than at the end of the colonial era
(French- language of higher education and
upward social mobility)
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French – sole official language in Benin,
Burkina Faso, the Democratic Republic of
Congo (Kinshasa), the Republic of Congo
(Brazzaville), the Ivory Coast, Gabon, Guinea,
Mali, Senegal, Chad, Togo
Traditional justice, based on customary law
and administered by village elders – African
languages
In Rwanda and Burundi- government and
local courts use regional languages, while the
central authorities and higher courts use
French
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Djibuti: justice is administered in four
languages; higher courts only operate in
French, while the Islamic courts (sharia
courts) always use Arabic
In courts applying traditional customary law,
procedural languages: Arabic, Somali or Afar.
In all cases, judgments are drawn up in
French so that they can be enforced
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Sub-Saharan Africa – customary laws
The French colonial power codified some of
these
Customary laws – inadequate for modern
society; completed by French law
France abolished customary rules if they were
in contradiction with the fundamental
European values, esp. in criminal law
French Criminal Code – applicable throughout
French-ruled Africa
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French used in Black Africa - the same as that
in France
North Africa – Islamic tradition; Arabic
quotations in legal French of Maghreb,
notably in traditional branches of law
expressing concepts from the sharia
Local traditions and conditions also reflected
in African legal French
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In a large part of the world French is still the
official language (Canada, Northern, Western,
Central Africa)
In Europe: Belgium, Switzerland, Luxembourg
Establishment of the European Communities –
new importance of French: one of three
procedural languages
Global organisations
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International community promoting the
interests of French culture
Some countries where French is the official
language – not members of Francophonia
(Algeria, Switzerland)
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49% international organisations accord
French the status of official language
International organisations for legislative
harmonisation: e.g. the Hague Conference on
Private International Law, charged with
drafting conventjons in private international
law and international procedural law; until
1960, draft conventions only drawn up in
French; today, French and English are used
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Unidroit (Institute international pour
l’unification du drolit privé) – originally
attached to the League of Nations, today and
international organisation aiming to unify
national legislation on private law; previously
operated only in French; currently, several
languages possess the official status; English
and French used as working languages; Revue
de droit uniforme/Uniform Law Review bilingual
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French – important in preparation of EU legal
rules
Working language of ECJ: decisions drawn up in
French, although only the version in the
procedural language is authentic
French language division has to translate into
French all documents lodged by parties in a
language other than French
Periodicals on European law
Legal culture and techniques - received from the
outset from France: it is always simple to
describe a legal system by using the language by
which the system was originally created
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OLD ENGLISH (c. 450- c. 1100)
MIDDLE ENGLISH (c. 1100- c.1450)
MODERN ENGLISH (c. 1450 - )
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OLD NORSE
Lexical words
Nouns: birth, bull, dirt, egg, fellow, husband, leg, sister, skin,
sky, skirt, window
Adjectives: ill, low, odd, rotten, sly, weak
Verbs: call, crawl, die, get, give, lift, raise, scream, take,
Function words
Pronouns: they (their, them)
Conjunctions: though
Determiners: some, any
Auxiliaries: are
Names
Family names: -son: Johnson, Stevenson
Place names: -by 'farm, town': Derby, Rugby, Whitby; -thorp
'village': Althorp, Linthorp
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Administration
Authority, bailiff, baron, chamberlain, chancellor, constable,
council, court, crown, duke, empire, exchequer, government,
liberty, majesty, mayor, messenger, minister, noble, palace,
parliament, prince, realm, reign, revenue, royal, servant, sir,
sovereign, statute, tax, traitor, treason, treasurer, treaty
Law
Accuse, advocate, arrest, arson, assault, assize, attorney, bail,
bar, blame, convict, crime, decree, depose, estate, evidence,
executor, felon, fine, fraud, heir, indictment, inquest, jail,
judge, jury, justice, larceny, legacy, libel, pardon, perjury,
plaintiff, plea, prison, punishment, sue, summons, trespass,
verdict, warrant
Military
Ambush, archer, army, battle, besiege, captain, combat,
defend, enemy, garrison, guard, lance, lieutenant, navy,
retreat, sergeant, siege, soldier, vanquish
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“All lawsuits shall be conducted in English,
because French is much unknown in the said
realm”
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“The English tongue is of small account,
stretching no further than this island of ours,
nay not there over all.”
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After the Norman conquest (1066)
To consolidate his dominance, the king
sought to centralise the justice system by
establishing the Royal Courts of Justice at
Westminster
Powerful vassals resisted the centralisation of
justice
Royal Courts – able to adjudicate cases falling
clearly within the king’s competence
Progressively, increasing categories of cases
transferred to these Courts
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Court judgments - importance that went
beyond the particular cases in which they had
been pronounced
To specify the conditions and limits of the
binding effect of judgments, a refined rule of
precedent was progressively created
The legal system built by case law
strengthened the position of judges
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During the Middle Ages, Royal Courts –
archaic and formalistic judicial organs
The Chancellor began to recify judgments of
the Courts of Westmionster on the basis of
natural justice
Court of Chancery – created its own remedies
and legal concepts of highly technical nature,
maintaining only a distant link with fairness
and reasonableness
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17th c. fierce struggles for power between
the Courts of Westminster and the Court of
Chancery
Ended in a compromise guaranteeing both
courts their proper field of competence
Division betweeen equity and common law
was formed; maintained even after unification
of the English justice system in the 19th c.
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The amount of English legislation –
comparable to that of continental countries
Statutes- considered to be incomplete until
the moment when they are “covered” by
numerous precedents specifying the
interpretation of their main provisions
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Divisions of law and legal concepts- different
from civil law
Common law – equity division – unknown in
continental countries
Many institutions, e.g. trust, foreign to civillaw Europe
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Consists of an exceptionally large amount of
detail
Explanation: originally developed by judges
Unlike the legislator, the courts have to draw
very fine distinctions since they have to
decide highly varied individual cases
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Rules of law induced from cases – remarkably
concrete
These rules – cannot be raised to a level of
abstraction as rules formulated by legal
science
Since case law is composed of a network of
rules, laws have to be written in the same
way, i.e. highly detailed to ensure
compatibility of the two types of rules
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Verbal magic
Acts of transfer required complicated and
precise language rituals; a single mistake
could nullify the act
Use of rhythmic expressions
Alliteration – common in maxims and binary
expressions
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Some Latin words
Royal legislation and spread of Christianity
Examples: convict, admit, mediate, legitimate
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The Norman Conquest brought to England a
French-speaking upper class
Latin – dominant in law
Normans – used Latin in important contexts
11-12 c. Latin was the language of legal
documents in England
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In this period – common law was created
Many essential common law terms were
originally formulated in Latin (e.g. breve
‘writ’)
Meaning diverged from that of classical Latin
Often, Norman French or even English words
were Latinised (e.g. morder > murdrum) ‘dog
Latin’
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1st law promulgated in French in 1275
End of 13th c. both Latin and French used as
legislative languages
Early 14th c. French used in drafting laws
(except in Church matters)
Late 13th c. the Royal Courts used French
during sessions; case reports – prepared in
French
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French became the legal language in England
from the late 13th c., both for legislation and
the law courts
The use of French in English legal circles – a
strange phenomenon because in 13th c.
French had already begun to disappear in
England as a language of communication; yet
the rise of French as language of the law only
started at that time
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Reasons:
A section of the English aristocracy – still
French-speaking at the end of 13th c.
French as the language of culture
Centralisation of justice system consolidated
the status of French
Secularisation of the justice system – clerics
no longer operated as judges
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With its general disappearance from England,
French had become the mark of the true
elites
Legal profession – monopoly of the elites
French – guarantee that the people could not
meddle in the justice system because they
were unable to follow the trial
Law French – even then a dead language: its
expressions had a clear legal meaning;
appropriate for use as legal terms
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1362 Statute of Pleading – drafted in French!
– prescribed that judges were to use English
but that court minutes could still be prepared
in Latin
According to Sir Edward Coke, it was better
that the unlearned were not able to read legal
materials because they would get it all wrong
and harm themselves!
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End of 14th c. parliamentarians were using
spoken English
Still in 17th c. possible to hear law French in
the Inns of Court, and, occasionally, in the
courts; a number of legal works – still written
in law French
French and Latin finally abolished in 1731
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Latin – declined in 16th and 17th c.; remained
an important legal language: court records,
writs and other legal documents written in
Latin until 18th c.
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1000
1200
1500
2000
Latin supremacy
Law French
supremacy
English
supremacy
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English – a global language
Varies according to different situations;
sometimes: stiff and conservative, sometimes
innovative and creative
Difference between the spoken language of
court sessions and written legal language
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Legal English – a language of interaction
between Old English (Anglo-Saxon, with
Scandinavian elements), Medieval Latin, Old
French
Latin and French expressions - part of the
most basic vocabulary of English law;
foundations of English legal thinking
Calques – translations from Latin and French
(originally, common law was comune ley)
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shortened expressions
Nisi prius (‘unless before’) = a matter of
proceedings at first instance with a jury
present
Affidavit (‘he affirmed’) = ‘a written or
printed declaration confirmed by an oath’
Habeas corpus (‘you may have the body’) = a
judge’s order to bring a prisoner before the
court to clarify the legality of detaining him
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Influence on word formation:
Old French past participle: -e or –ee (for the
person obtaining sth or forming the object of
an action
Doer of the action: -or/-er
Employer/employee, trustor/trustee,
vendor/vendee
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Word order
Accounts payable, attorney general, court
martial, fee simple, letters patent
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Binary expressions: words with the same
meaning existed at the same time in the form
of Latin-French variants and Anglo-Saxon
variants .
Repetitions ensured that legal messages were
understandable in a multilingual society
Acknowledge and confess, act and deed,
devise and bequeath, fit and proper, goods
and chattels, will and testament
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triple repetition:
null and void and of no effect, authorized,
empowered and entitled to
To tell the truth, the whole truth, and nothing
but the truth
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Case law – fundamental
If the parties omit sth from the contract, they
cannot rely on the courts to insert it later on
their behalf by way of interpretation
Terms of a contract – always interpreted
narrowly: parol evidence rule: if the meaning
of a written contract is clear, then no other
evidence is allowed as to its content; the
contract should contain all that is needed
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The language of a contract governed by
common law should be general enough to
cover every situation, yet precise enough to
ensure that the legal position of the parties is
unambiguous
The contract should show with certainty what
it includes and what it does not (Ibid: 237)
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Some 1,200-1,500 million people in
command of English; 670 million native
speakers
English – official language in 75 states or
administrative territories
85% international organisations use English
as one of their languages
Dominance in international trade
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The influence of English law – terminated with
the independence
Nevertheless, the approach to the legal order,
fundamental principles and concepts of law,
essential legal terminology - the same in
England and the US
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Fundamental ideas in line with the English
tradition
1) supremacy of the law (rule of law)
2) rule of precedent
3) adversarial procedure
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Separation between private and public law
less important than in civil law countries
Separation of powers
federalism
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Corporation – company
Visiting rights – right of access
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Traditional expressions: hereafter, herein,
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complexity
hereof, herewith
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Common law took root alongside the
traditional systems of law: Hindu law and
Muslim law – application limited to traditional
branches of law (family law, inheritance)
19th c. a large number of laws came into
force; prepared by the British, often in
London
The highest judicial organ: the Judicial
Committee of the Privy Council (London)
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English – language of higher education and
colonial administration
1837 English became the official language in
India
From 1844 only those educated in English
could be appointed civil servants
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Republic of India – English remains the
language of higher education and science;
Hindi – National Official Language
English – language of government and the
higher justice system
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Pakistan – Urdu
Bangladesh – Bangla (formerly: Bengali)
Legal terminology and style in India and
Pakistan – essentially British
English sometimes operates as a linguistic
tool even of Islamic law; differences: terms
expressing original concepts of Islamic law
“In Pakistan, the language of Islamic law is in
fact legislative English” (N. Ahmad)
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Lawyers in non-English speaking countries
daily drawing up contracts in English; often
contain language similar to traditional
common law contracts – serious problems
Cultural collision
Civil law lawyers may copy common law
contracts without fully understanding them
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Where litigation has to be heard by a State’s
court, the interpretation may cause considerable
surprise to one of the parties
A British or North American court tends to
interpret the terms of a contract drawn up in
English in line with traditional common law
thinking
The terms may acquire a meaning completely
different from that imagined by the party from a
continental country
Efforts to develop terminology that is not too
closely linked to the legal orders of particular
States