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Legal Terminology Chapter 4.

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1 Legal Terminology Chapter 4

2 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.

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

4 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)

5 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

6 Legal families and conceptual kinship
Common law Civil law European law

7 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

8 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

9 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

10 The Legal System of the European Communities
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

11 The Legal System of the European Communities
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

12 The Legal System of the European Communities
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

13 The Legal System of the European Communities
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

14 The Legal System of the European Communities
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

15 The Legal System of the European Communities
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

16 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”)

17 Characteristics of legal terminology: Legal Concepts and Legal Terms
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”)

18 Characteristics of legal terminology: Legal Concepts and 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”)

19 Characteristics of legal terminology: Legal Concepts and Legal Terms
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”)

20 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)

21 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

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

23 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

24 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)

25 Adverse possession The concepts used in the test must be interpreted
Interpreting the concepts follows the guidelines of the doctrine, sometimes expressed in definitions

26 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)

27 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

28 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

29 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

30 Relative existence of legal notions
Existing legal notions can be modified, replaced by others or abolished Connections between term and concept – arbitrary

31 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

32 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

33 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

34 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)

35 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

36 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

37 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

38 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’

39 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)

40 Polysemy Rule rather than exception
Legal orders are continually changing over time Example: ius civile

41 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)

42 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

43 Ius civile In English: Roman law Continental law Private law

44 Ius civile In Germany: Zivilrecht synonymous with Privatrecht
In France, commercial law is not included in civil law

45 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

46 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

47 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

48 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

49 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

50 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

51 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

52 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

53 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

54 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

55 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

56 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

57 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

58 Dissolution of terms or concepts? Examples
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

59 Dissolution of terms or concepts? Examples
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

60 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

61 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”

62 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

63 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

64 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

65 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

66 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

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