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

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

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 Empire530’s Emperor Justinian codified this law:

Corpus iuris Civilis: basis of ius commune, founded on a logical system of concepts

Ius comune – common to countries of continental Europe

Lawyers from continental Europe (and some other countries) speak the same conceptual language

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)

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

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

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.)

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

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

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

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.

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

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

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

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

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

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

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

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)

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)

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

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

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

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

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)

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

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

Official languages for the Holy Roman Empire for the whole of its existence: German and Latin

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

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

By mid-18th c. German-language legislation – still full of linguistically mixed texts, with many Latin quotations

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

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

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

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

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

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.

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

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

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

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)

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

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)

Bürgerliches Gesetzbuch (1900) almost completely Germanised terminology of German private law (Papierdeutsch)

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

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’

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

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

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)

German used in several countries: Federal Republic of Germany Austria Switzerland Eastern Belgium North of Italy (South Tyrol)

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

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 non-German linguistic groups; a cultivated use of German developed, with no basis in German dialects: Schönbrunnerdeutsch or Hofratsdeutsch

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

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

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

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

International spread of laws of German-speaking 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

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

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

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

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

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

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

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

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

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.

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

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

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

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

Italian loanwords: banqueroute, change English loanwords: franchising, dumping,

leasing

Cartesian spirit: texts constructed in a logical and methodological way

Legal rules – systematically assembled in codes

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’

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

Form requirements in verbs: grounds should always be written in the indicative; using the conditional can lead to the judgment being quashed

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

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.

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)

French administrative justice contributed to the birth of German administrative legal science in the late 19th c.

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

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

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

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

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

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

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

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

16th c. France became a colonial power: colonies in North America

French Canada (1534-1760) British Canada (1760-1867) “Canadian Canada” (1867)

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

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)

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)

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

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

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: co-drafting

The quality of the original draft – more easily revealed by comparing the two language versions than by examining a single version

Terminological work and the principle of co-drafting 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

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

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

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

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.”

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.

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)

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

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

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

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

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

International community promoting the interests of French culture

Some countries where French is the official language – not members of Francophonia (Algeria, Switzerland)

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

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

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

OLD ENGLISH (c. 450- c. 1100) MIDDLE ENGLISH (c. 1100- c.1450) MODERN ENGLISH (c. 1450 - )

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

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

“All lawsuits shall be conducted in English, because French is much unknown in the said realm”

“The English tongue is of small account, stretching no further than this island of ours, nay not there over all.”

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

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

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

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.

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

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 civil-law Europe

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

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

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

Some Latin words Royal legislation and spread of Christianity Examples: convict, admit, mediate,

legitimate

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

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’

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

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

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

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

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!

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

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.

1000 1200 1500 2000

Latin supremacy Law French supremacy English

supremacy

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

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)

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

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

Word order Accounts payable, attorney general, court

martial, fee simple, letters patent

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

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

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

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)

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

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

Fundamental ideas in line with the English tradition

1) supremacy of the law (rule of law) 2) rule of precedent 3) adversarial procedure

Separation between private and public law less important than in civil law countries

Separation of powers federalism

Corporation – company Visiting rights – right of access

Traditional expressions: hereafter, herein, hereof, herewith

complexity

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)

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

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

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)

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

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