CHAPTER 3 THE CONTINUING USE OF LATIN IN LEGAL ENGLISH

The language used in the legal system is simple, universal and rhetoric. The words make the statements to be phrased in the way so that cases can be treated consistently and fairly. This is also the case of English legal language. As we have seen in the previous chapter legal English reflects the mixture of languages that has produced the English lexicon generally. However, modern legal English owes a particular debt to Latin. Throughout history, its authority and influence on English were continuous, although fluctuating in intensity. The major contact between the two languages was always in the learned sphere and mostly through the written language. Latin influenced the legal English at the level of the vocabulary and also at the level of syntactic style. The Romans language provided an example of excellent grammatical structure and an oratory contrast that English eventually adopted. 3.1 Traces of Latin in Modern Legal English Although the British legislation, known as the common law, is not based on Roman law, Latin traces are still evident everywhere in legal English. The vocabulary of legal English abounds in Latin terms. Quotations, expressions and maxims, constitute Latins most striking influence on modern legal English. As we have seen, courts had an important contribution to the creation of the English legal system. It is not by chance that Latin maxims are traditionally used to describe the intellectual process formulating legal rules on the basis of precedents. e.g.: obiter dictum (opinion given by a judge but not needed in support of the decision), stare decisis (these words express the principle of the binding power of precedents). Another example is the large number of Latin maxims or words in Defamation Law. Thats because in the past, defamation cases were judged by Church courts, which used Latin in their proceedings. A part of this words kept their Latin form while others were Anglicized. A good example in this way is even the word libel which is originating from Latin. Another words originating from Latin which are used in defamation cases are:

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colloquium, defamation, innuendo, mitior, sensus, per quod. Latin has also persisted in expressions relating to the names of cases and parties. Such examples are: versus (against), pro se (for him/herself), in personam, in propria persona(in ones own person), in forma pauperis (exempted from paying court costs), in re(in matter of), ex parte (on or from one party only). Latin terms are also many in cases where ones mental state has to be defined: mens rea (guilty mind), scienter (knowingly), animus testandi (testamentary intention). Besides, Latin has lasted in the modern legal English by means of the writs. Originally, a writ was a letter issued in the name of sovereign, addressed to a sheriff ordering him to undertake some actions. (Baker, 2002: 67) Its name often came from the first word or two, or from another important phrase in the text. For example, after the greeting from the king, Rex vicecomitati X salutem ( the king to the sheriff of X, greetings), one such writ continued with the Latin expression praecipimus tibi (we command you). Therefore, this type of writ is called writ of praecipe. A similar meaning has the writ of mandamus ( we command). Another writ frequently used is the writ of habeas corpus (you should seize the body).Other Latin writ names that have survived until today, more pregnant in United States, are certiorari, quo warranto, subpoena and supersedeas. The Latin heritage in modern legal English is also showed in terms of Latin origin, adapted to the rules relative to word formation and orthography of the English language. The words below are an example that sustains this idea (Anglicized Latin words): demonstrative, testament, testify It should be noted that Latin has not only influenced the legal vocabulary but also the grammar and the sentence structure in legal English. Sentence structure in legal English is often exceptional because it copies a Latin sentence, in which the word order is particularly free because of the noun declension and the terms could be moved easily. The linguists Crystal and Davy illustrate in one of their book a situation of odd sentence structure coming from an insurance contract: a proposal to effect with the Society an assurance

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The two linguists explains that when a verb is followed by both a prepositional phrase and a noun phrase, the normal word order is for the noun phrase to come first as in the example: a proposal to effect an assurance with the Society (Crystal & Davy, 1969: 204) The typically Latin practice of using double negatives can also be seen in legal English. An example is jury instructions of an instance in California: Innocent misrecollection is not uncommon. ( Tiersma, 1999: 66) As with legal languages in general, use of so-called legal pronouns, a heritage of Latin-speaking medieval lawyers, remains in evidence in legal English. These include the words like aforesaid and said. John promises to pay o deposit. Said deposit shall accrue interest at a rate of live percent per annum. The word said could easily be replaced by the or this. Used in this way, it is clearly an oddity from the standpoint of the regular English Language. Expressions of this kind originates from Middle Age and early modern times Latin texts: The seid (= said) Viage, this his seid Realme. (Rissanen 2000: 121) 3.2 Pronunciation Problems Nowadays English lawyers pronounce the Latin terms in the same way as genuinely English words. For example, following the tradition of Anglo-Latin (the combination between Latin words and English accent), the phrase res judicata is pronounced rees ju-diKATE-uh and rea in mens rea is pronounced REE-uh. (Tiersma 1999: 55) Some younger American lawyers try to lay down this practice by adopting a pronunciation of Latin that imitates the one of the classical period, taught in schools and universities. In spite that, there is a great number of lawyers who stands up against these changes. For them Anglo-Latin pronunciation have a tradition that should be kept. In this situation, there are confusion amongst American lawyers regarding the pronunciation of Latin words. For instance, most American lawyers who have chosen the Anglo-Latin

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pronunciation of res judicata get the vowels approximately right, but use English consonants, pronouncing the first syllable in judicata as Jew. In Classical Latin, it is pronounced you. The pattern is available for the word vivos in inter vivos, where many lawyers say veevos. The classical articulation would be weewos but it is never heard and sounds odd. Most law dictionaries still favor the traditional Anglo-Latin pronunciation. In some dictionaries the articulation of the word amicus is listed as uh-MIKE-us. Intending to reveal these conflicting pronunciations, the British writer A. P. Herbert portrayed the case of Rex v. Venables and Others: Mr. Ambrose Wick, an advocate appearing before the court for the first time, applied for a writ of certiorari, which he pronounced in the Classical mode as kairtiorahree. He spoke of an order pro hahk weeky (pro hac vice) and the day yooray (de jure) tentant. The judge was not amused. Finally, the lawyer admitted that he was using the new Latin that he had been taught in school. His Lordship retored: His Majestys judges will not permit the speaking of the Latin after that fashion in kings Courts It is not for the Kings judges to remodel their diction according to the Junior Bar. The bitter conclusion is that you must go away and learn to pronounce the Latin tongue correctly (Tiersma 1999: 55) There is no longer an accepted usage today even among the senior bar and the judiciary. The majority of legal terms are pronounced in two or three different ways. Thats why the same attorney may alternate from one style to another. A reason for this inconsistence is that the pronunciation of foreign terms are difficult for the lawyers. Now the lawyers must choose between professional requires, which doesnt accept the use of odd and uneducated pronunciations, or the prestigious accents of classical Latin. But, while the Anglo-Latin pronunciation seems barbaric to some, for others it reflects the fact that many legal words were adopted centuries ago and have participated in the phonetic changes that have affected the whole English language. (Tiersma, 1999: 53). From the standpoint of continental lawyers, this reign of inconsistency represents a more difficult understanding of the Latin spoken by English-speaking lawyers.

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3.3 Advantages and Disadvantages in Using Latin Language Ordinary Latin is, often, of little or no help in understanding Latin expressions in legal documents. The meaning of an expression may be purely technical, in which case information can be had from a good common law dictionary. A good example is amicus curiae. Literally, these words mean friend of the court. The expression is more common in the United States than in England. An amicus curiae, who may be a private individual but also a legal person, even the State, gives the court specific legal information or draws the attention of the court to matters that fall within the interest of a party and at the same time in the public interest. Such may be the case in matters of civil rights. Another example is the phrase habeas corpus. Literally, it means you may have the body. This involves a judges order, a writ, to bring a prisoner before the court with the aim of clarifying the legality of detaining him. ( Mayrand 1994: 171) Understanding the Latin expressions is also further hampered when a shortened version is involved. That short version of a maxim or a phrase may be totally incomprehensible. A good example is the phrase 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 fi rst instance with a jury present. As a result, a nisi prius court is a lower-instance court that tries cases with juror participation. (Mattila 2006: 151)

Further, Latin words in legal English are sometimes given a meaning where the original form or part of speech of words is changed. Is the case of the word affidavit. This Latin word means literally he affirmed and has the legal meaning of a written or printed declaration confirmed by an oath. (Mattila, 2006: 145)

As we have just seen, lawyers from various countries still use direct Latin quotations. It is natural to think that this use facilitates international cooperation between lawyers. To

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describe legal Latin, one author coined the metaphor of the lingua franca of the worlds lawyers. Another referred to the former jus commune of Europe. According to one author, over recent decades legal Latin terminology has acquired growing importance from the standpoint of reciprocal message understanding between lawyers. He emphasizes that Anglo-American legal language is very rich in legal Latin. Finally, legal Latin eliminates translation problems and linguistic disagreements because a dead language is hardly polysemic. However, English lawyers with wide international experience have noted that it is not always easy to understand the legal Latin of foreign colleagues. The same expressions and maxims as those used in England and United States are not used in all countries, and their meaning is not necessarily the same. Besides, many of todays lawyers doesnt have the necessary qualifications for a linguistic grasp of Latin expressions and maxims. This means that they are unprepared to understand an expression or a maxim written in a different form from one learned by heart. For example, if a lawyer with no command of ordinary Latin has only learned the expression nudum pactum by heart, then he is not capable of recognizing the form nudo pacto. To avoid this situation the European legal systems must benefit of some studies that show to the lawyers how widely and on which points expressions and maxims in use in various countries differ in reality. Because of these difficulties in understanding Latin, some American judges requested, lately, to outlaw Latin words in American Law. In fact, the elimination of Latin terms in our common law system is virtually impossible. A brief look at some common legal terms tells that not all Latin is shrouded in mystery or lacking in clarity. Affidavit, alibi, alias, and bona fide are standard, if not everyday English words. Latin terms like prima facie, versus, and habeas corpus are accepted parts of the English language. The professor John Arriter from the Florida Costal School Law admitted that: Latin will never be eliminated from American law because legal language has specialized needs for consistency and certainty that daily speech does not have. It is a false criticism to charge that legal language is losing touch with common speech, for everyday language changes too rapidly to give it the certainty and precision

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necessary to law. Time-proven Latin terms fill the need far better and, therefore, shall continue to be used. (www.johnaritter.com)

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