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Legal Latin.  The importance of Roman law  Latin in European culture  Latin – universal language of lawyers  Latin in Canon Law  Latin in modern.

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Presentation on theme: "Legal Latin.  The importance of Roman law  Latin in European culture  Latin – universal language of lawyers  Latin in Canon Law  Latin in modern."— Presentation transcript:

1 Legal Latin

2  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

3  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

4  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

5  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

6  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

7  “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)

8  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

9  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

10  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)

11  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

12  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

13  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.)

14  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

15  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

16  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

17  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

18  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

19  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

20  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.

21  In canon law 35,000 copies of the great work by Gratian, the Decretum, already in print before 1500

22  “Interestingly, Gratian’s Decretum (which dates from around 1140) was translated into French towards the beginning of the 13th c., or even a little earlier. This translation was probably made in England, where high society at that time spoke French. Because of the translator’s feel for language was so good, the translation of the Decretum had a significant impact on enriching and generally developing the vocabulary of the French language.” (Löfstedt 1989)

23  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

24  Practical lawyering: court minutes, records of administrative authorities, notarial acts - drawn up, partially or wholly, in Latin in the Middle Ages; also: legislation

25  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

26  Throughout the Middle Ages, judgments and orders, as well as other official English documents, drawn up in Latin  In Provence - the language of laws and ordinances of the Angevin princes was Latin until the French conquest (1481)  Registers of municipal resolutions of several Provencal towns – kept in Latin until 16th c.

27  In Central Europe – the status of Latin very strong  In the Kingdom of Naples, Latin used in court minutes and other documents in 18th c.  Napoleonic Code – translated into Latin to ease its application in countries other than France where it had come into force; originally, the translation was made for the Kingdom of Italy; later, published in the Kingdom of Westphalia and the Grand Duchy of Warsaw

28  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

29  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

30  Latin – one of the court languages in Galizia until 1848; Emperor of Austria tried to impose German as the official language, but thanks to Latin, the Poles succeeded in countering his plans; trilingual character of the province – maintained in legal matters until the 1848 revolution

31  Poland: Rural and municipal courts operated in Polish; courts od corporations and aristocracy used Latin in their judgments and official correspondence (but Polish during hearings)  The court of Appeal and specialized courts for mining affairs used German

32  The Austrian Allgemeines Bürgerliches Gesetzbuch – translated into Latin in 1812

33  South Africa – Roman-Dutch law applied  This law – imported from the Netherlands in 17th and 18th c., mixed with British common law – still applied today when political power is in the hands of African majority  African judges base their judgments on Corpus iuris civilis and on legal works in Latin and Dutch of old Dutch scholars albeit in the form of translations into modern languages

34  In Denmark, royal ordinances were promulgated in Latin  In Sweden – language of legal documents – Latin 13-14 c.; in Finland – during the first half of the 14th c.  In Norway – the position of Latin - weaker

35  Medieval legal Latin of the Nordic countries – diverged little from that of the larger European countries  Texts characterized by legal phrases, intended to give them the necessary precision, and by ceremonial formulations, intended to make them high-sounding  The language of documents – compact, difficult to understand.

36  Sentences – quite short, logical structure: the author’s reasoning moves forward clearly; this especially concerns official correspondence  Legal Latin formed the stylistic basis of Nordic legal languages  A large proportion of borrowings, still in use in these legal languages, is based on Latin  Many Latin quotations

37  Ius commune – broadly based on canon law, the law of the Catholic Church  At medieval universities, legal science and theology – closely linked  Canon law – technically highly developed  Procedure for introducing evidence – very modern

38  Diverged in some respects from the legal language of Ancient Romans  The latter – contained very few synonyms: the language of Roman lawyers was characterised by considerable conceptual precision: each word corresponded to a separate concept

39  Legal church Latin developed in another direction  One of the reasons: imprecision of Germanic languages, manifest by the great number of synonyms and binary (two-word) formulas  In the Germanic linguistic zone, two conceptions of style came into collision: it was not only a matter of Romanising the stylistic elements of the Germanic languages but of a contrary influence that likewise made itself felt

40  Church Latin began using binary expressions, whose origin often lay in Old German (e.g. ‘order and ban’ exactio et peractio < twing und bann  Germanic words – often Latinized  Latin used by the Church gradually lost its precision since it was forced to adapt to language traditions of non-Latin peoples

41  The language of church administration became rich in vocabulary but summary in conceptual precision  The language of episcopal tribunals and church notaries diverged radically from the legal language of the Ancient Romans  The language of canon law – created by the central administration of the Catholic Church

42  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

43  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

44  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

45  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

46  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”

47  In the Code of 1917 many concepts have several designations, while many terms express more than one concept  “natural law” – ius naturale, ius naturae, lex naturalis

48  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

49  In the Romance languages and English, the vocabulary coming from legal Latin appears for the most part in quasi-original form, slightly modified

50  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)

51  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

52  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

53  Russia – in the post-socialist period the status of Roman law has strenghtened; today it is obligatory at Russian law faculties  New dictionaries of legal Latin  In Estonia – a significant increase in Latin expressions and maxims  Russian and Estonian lawyers – determined to show that they belong to the old legal- cultural community of Europe

54  Practical legal documents in today’s Finland – no longer any Latin content  Most Latin expressions: civil law, criminal, procedural and international law

55  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

56  Latin expressions raise the level of the text  Finnish theses and dissertations: De facto, prima facie, in casu, ad hoc, numerus clausus, status quo, a priori, a fortiori (causa) ‘with a stronger reason’, sui generis

57  Prima facie ‘at first sight’; In German and Italian dictionaries also: ‘according to the truth that comes from experience’, or ‘according to a principle derived from experience  Common law: prima facie evidence ‘evidence that may be set aside by contrary evidence’  Spanish: orders that can be contested (e.g. temporary detention orders)

58  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

59  Emblem of German notaries: Lex est quodcumque notamus ‘All we write down is binding’  Old seals  Legal publications: e.g. Bibliographia Juridica Fannica

60  Latin – often used to express legal concepts with precision  Legal Finnish – created at the turn of 20th c.  In legal dissertations, the author would clarify a new Finnish term by adding a corresponding Latin term

61  Latin expressions and maxims – common in cases where there is a desire to guarantee their international understandability (international commercial arbitration)  New legal phenomena of an international character often acquire a Latin name  Sometimes –Latin used for mutual intelligibility within the same State – where diverse legal traditions are found in the territory of a single State (e.g. Canada)

62  Often - great liberties taken from the standpoint of Latin grammar  Part of speech – often changed: e.g. assumpsit ‘he undertook’ ‘ he promised’. Formerly, assumpsit made reference to an action based on contract; today, it means ‘ a promise or engagement by which one person assumes or undertakes to do some act or pay something to another’

63  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’

64  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”

65  Do legal principles expressed through Latin maxims still correspond to the content of current law?

66  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’

67  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

68  Latin maxims - “a compass indicating the proper direction in legal interpretation  Direction – may be ambiguous  Ambiguitas contra stipulatorem – interpreted in two opposite ways in common-law and continental countries: either against the creditor or against the debtor, according to the understanding of the word stipulator

69  Latin heritage – terms of Latin origin, adapted to particular languages  Legal Latin – a number of neologisms  Legal-linguistic Latin heritage – common to whole Europe  Codex: code, codice, codigo, kodeks (Polish), kod/kodeks/kodeks (Scand. lang.)

70  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

71  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

72  Legal German - a wealth of legal neologisms based on models provided by legal Latin  Old words in German often obtained a new legal meaning under the Latin influence  From legal German, these words were transmitted into the legal languages of Nordic countries and Central and Eastern Europe

73  Fons iuris – fonte del diritto, fuente del derecho, source du droit, source of law, Rechtsquelle, rättskälla

74  In Denmark : medieval statutes written in Latin but were later rapidly translated into Danish, the language of the people; the stylistic characteristics of legal Latin – highly important in these translations  Germanic languages. Strongly influenced Medieval Latin, as much from the standpoint of vocablary as of style: use of metaphors and rhythmics; German tradition of alliteration taken up by medieval Latin

75  Nordic countries – the influence of legal Latin on legal languages in process of formation - often indirect  Nordic countries imitated the Low German document style of the Hanseatic city chancelleries, but the Hanseatic style goes back to medieval legal Latin style

76  The language of old Danish documents. Often followed Germano-Latin models to such an extent that the reader unfamiliar with these models was unprepared to understand the language  Latin left its mark on legal Danish through the medium of German legal science, notably in administrative law  Mixture of Danish, German and Latin rhetoric – chancellery style

77  Long sentences, numerous subordinate clauses  Every detail (conditions, exceptions etc) relating to the theme of the sentence should be included in the sentence itself, to avoid omissions, mistakes and misunderstandings  Complicated structures at the beginning of sentences, use of passive, legal pronouns (the said) and heavy verbal nouns; double negatives and inverted means of expression

78  The passage of Latin into modern legal languages accentuated the heaviness of chancellery style  Latin – a synthetic language that enables authors to express themselves laconically, by virtue of the system of cases;  Laconic style - reinforced by frequent omission of conjunctions  Translating a Latin sentence into a modern language often results in verbosity

79  Features of chancellery style accentuated towards the end of the Middle Ages  Strenghtening of State power and increasing complexity of society – centralized government  A strong central power, far from citizens  Presupposed creation of a language more abstract than before: laws written in a general way so that they could be applied to individual matters in different parts of the country

80  Chancellery style developed at a time when written culture was a privilege of social elites  Simplicity of language – foreign to the tradition of legal Latin  Lawyers sought to achieve legal and stylistic elegance  Extremely long sentences, in harmony with the inherent rhythmics of Latin  Long sentences – typical of legal languages throughout Europe

81  Recently – style of legal and administrative language began to change  Growth of the civil service: legal and administrative language - often used by bureaucrats lacking legal training who are unaware of the tradition of chancellery style  Demands of democracy: administrators should justify their decisions; citizens should be able to understand documents that express the grounds of decisions involving the exercise of power

82  Some features of chancellery style – positive  Legal and administrative language should not become like spoken language  A compromise in which the logicality and lucidity of thought, typical of chancellery style, combine with the clarity of expression of the spoken language

83  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

84  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

85  “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.

86  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”

87  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 (Anglo- Latin); young American lawyers – a tendency towards classical pronunciation

88  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

89  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)

90  Part of legal Latin – national (e.g. lex retro non agit – only used in Polish; in American law: ex posto facto )

91  A Latin expression may have a different meaning in common law and civil law countries

92  “One example that well illustrates the differences in meaning is the word exitus. In the laws of the German linguistic zone (as, for example, in Nordic countries), exitus means, exclusively or mainly, ‘decease’. But common law authors give it the sense of ‘children’; ‘offspring’; ‘the rents, issues, and profits of lands and tenements’, ‘an export duty’; ‘the conclusion of the pleadings’. They do not even mention ‘decease’.

93  Differences within each country: concise dictionaries often define a legal Latin expression in a very limited context (e.g. a die only in the case of debt) while the field of application of the expression is in reality clearly wider

94  Distinction between singular and plural forms (pactum – pacta), cases (nudum pactum – nudo pacto), prepositions or synonyms (e.g. argumentum ad absurdum – argumentum in absurdum), word order (compositum mixtum – mixtum compositum), incomplete or elliptical forms (lex loci regit actum - locus regit actum)

95  In some cases – several variants:  “Sometimes, the same maxim can appear in five variants: Quod ab initio non valet in tractu temporis non convalescet (‘what is valueless from the start does not appreciate (‘become valid’) with time’); Quod ab initio non valet in tractu temporis non convalescit; Quod ab initio vitiosum est, tractu temporis convalescere non potest; Quod initio vitiosum est, non potest tractu temporis convalescere; Quod nullum est nullo lapsu temporis convalescere potest

96  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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