Legal Latin
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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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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
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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 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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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
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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
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“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)
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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
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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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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)
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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 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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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
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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
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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
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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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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
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Practical lawyering: court minutes, records of
administrative authorities, notarial acts drawn up, partially or wholly, in Latin in the
Middle Ages; also: legislation
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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
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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
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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
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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
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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
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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
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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
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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”
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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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In the Romance languages and English, the
vocabulary coming from legal Latin appears
for the most part in quasi-original form,
slightly modified
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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)
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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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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
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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
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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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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’
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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”
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Do legal principles expressed through Latin
maxims still correspond to the content of
current law?
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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’
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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
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Latin maxims - “a compass indicating the
proper direction in legal interpretation
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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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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
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Fons iuris – fonte del diritto, fuente del
derecho, source du droit, source of law,
Rechtsquelle, rättskälla
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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
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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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“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.
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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”
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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 (AngloLatin); young American lawyers – a tendency
towards classical pronunciation
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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
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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)
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Part of legal Latin – national (e.g. lex retro
non agit – only used in Polish; in American
law: ex posto facto )
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A Latin expression may have a different
meaning in common law and civil law
countries
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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