THE MAJOR LEGAL LANGUAGES

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THE MAJOR LEGAL LANGUAGES
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Legal Latin
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Preview

• The importance of Roman law
• Latin in European culture
• Latin universal language of lawyers
• Latin in Canon Law
• Latin in modern legal languages
• Communication value of legal Latin

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Roman Empire
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Latin in European Culture

• 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
  todays Tunisia

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History

• 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
  Empire
• 530s Emperor Justinian codified this law Corpus
  iuris Civilis basis of ius commune, founded on a
  logical system of concepts

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History

• Ius comune common to countries of continental
  Europe
• Lawyers from continental Europe (and some other
  countries) speak the same conceptual language

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Latin in European Culture

• 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)

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Latin in European Culture

• Thanks to Catholic church, Latin retained its
  position in medieval Europe as the dominant
  written language
• After the fall of the Roman Empire written
  Latin was of poor quality
• Carolingian Renaissance (reform of the school
  system by Charlemagne at the end of 8th c.)
  raised the level of written Latin

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Latin in European Culture

• 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

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Latin in European Culture

• From the end of the Middle Ages scientific
  progress, technical inventions
• Printing
• Science- produced in Latin an ocean of Latin
  literature foundations of modern science cast
  in neo-Latin (Kepler, Newton, Galvani, Linnaeus,
  et al.)

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Latin in European Culture

• During the Middle Ages, Latin became transformed
  stylistically and grammatically, moving closer to
  Romance languages medieval authors made use of
  prepositions and subordinate clauses more often
  then authors of Antiquity
• As a reaction, Humanist scholars restored the
  style and grammar of classical Latin, by
  imitating the Latin authors of Antiquity
• Latin became more difficult

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Latin in European Culture

• Restoring the stylistic and grammatical canons of
  the Latin of Antiquity brought about the demise
  of Latin as a tool of communication at the
  national and international level
• Latin too difficult for non-Latinist scholars
  to have a command of
• Strenghtening of nation states, and use of the
  national languages as a tool of their power
  politics

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Latin in European Culture

• Use of Latin as a language of science began to
  diminish even in 17th, above all in the 18th c.
• France sought to replace Latin with her own
  national language
• End of 18th c. national languages had ousted
  Latin
• Smaller nations, whose languages were not
  instruments of power in the international arena,
  kept to the use of Latin

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Latin as Lingua franca of European lawyers

• Given the conservatism of legal circles, the
  transition from Latin to new national languages
  particularly slow especially science and
  teaching of law
• Theoretical legal works written in Latin until
  the 19th c.
• Cc. 4000 new legal works published in Latin in
  16th c.

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Latin in modern legal languages Latin is dead
Long Live Latin!

• Although Latin is no longer the language of legal
  science or of legal practice leaving aside
  canon law it has left important traces in
  modern legal languages
• The style of modern legal languages still
  reflects the rhythm of old legal Latin
• A large proportion of the vocabulary of modern
  legal languages comes from the legal Latin used
  in Antiquity, the Middle Ages, or the beginning
  of modern times

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Latin in modern legal languages

• Modern texts direct Latin quotations terms,
  expressions, maxims
• Latin a stylistic tool an aesthetic medium
  the need to impress the reader
• By using Latin expressions and maxims, a lawyer
  sets out to show his professional competence
• Latin expressions and maxims - beloved folklore
  of lawyers

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The Display Function of Latin

• A high status value in the Western world
• A symbol linking legal science and practical
  lawyering to the common European tradition
• Latin maxims on the walls of courthouses
• Seals of judicial authorities often adorned
  with such expressions
• also emblems of public organs and law societies
  or bar associations

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The Danger of Mistakes and Misunderstandings

• Common heritage - facilitates communication
  between lawyers from various countries
• Often variants of Latin origin look alike, or
  expressions translated directly from Latin mean
  different things in different linguistic zones

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The Communication Value of Legal Latin

• However each languagepossesses 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
• Todays lawyers lack an adequate knowledge of
  Latin

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Mitigating problems

• 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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Legal German
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History of Legal German

• Leges barbarorum lex Salica, lex Ribuaria
• Primitive compilations no general concepts
  (e.g.distinction between theft of a pig, a calf,
  a dog, etctheft of a pig 16 legal provisions)
• Barbarian laws drawn up in Latin
• Latin loanwords e.g. Pacht (lease) lt pactum

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History of Legal German

• 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)

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Holy Roman Empire
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Holy Roman Empire

• 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
  (todays 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)

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Holy Roman Empire

• 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

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The Flowering of Old Legal German

• 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

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Linguistic Consequences of the Reception of Roman
law

• 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

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Linguistic Consequences of Reception of Roman law

• 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

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Linguistic Consequences of Reception of Roman law

• 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)

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Linguistic Consequences of Reception of Roman law

• 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

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Linguistic Consequences of Reception of Roman law

• 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

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Status of Latin and German

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

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Status of Latin and German

• 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

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Linguistic consequences of reception of Roman law

• 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

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Linguistic consequences of reception

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

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Influence of Legal French

• 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

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Influence of Legal French

• 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

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The German Enlightenment and Legal Language

• 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

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The German Enlightenment and Legal Language

• 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

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Germanisation of Legal Language

• 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

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Germanisation of Legal Language

• Legal science the choice of language of works
  presented at book fairs in Leipzig
• Books in Latin
• 170155
• 1740 27
• 1770 14
• Legal theses published in Latin until the mid
  19th c.

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Germanisation of Legal Language

• 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

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Germanisation of Legal Language

• 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

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Linguistic importance of the major codifications

• 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

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Linguistic importance of the major codifications

• 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)

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Legal language of a unified Germany

• 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

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Legal language of a unified Germany

• 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)

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Legal language of a unified Germany

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

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Bürgerliches Gesetzbuch, BGB, 1900

• 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 readers standpoint
• A monument of refined legal scholarship written
  for judges versed in law, not for laymen

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Bürgerliches Gesetzbuch, BGB, 1900

• 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

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Bürgerliches Gesetzbuch, BGB, 1900

• 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

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Bürgerliches Gesetzbuch, BGB, 1900

• 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

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Pure German word-forms

• 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)

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International coherence

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

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International coherence

• 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

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Austrian legal German history

• 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

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Austrian legal German Features

• 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

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Influence of the European Union

• 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

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International importance of legal German

• 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

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International importance of legal German

• 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

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German as a Lingua Franca

• 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

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International importance of legal German

• 19th c. spectacular success of German science,
  which rose to a dominant world position in many
  disciplines
• In 1920s and 1930s German was the main language
  of international congresses in physics and
  linguistics

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International importance of legal German

• 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

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International importance of legal German

• 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

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Legal French

• 7

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History of Legal French Beginnings

• 842 Oath of Strasbourg Latin and Old French
• Philip the Fair (1268-1314) introduced French to
  the royal chancellery the kings 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

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History of Legal French Beginnings

• 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

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History of Legal French Beginnings

• 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

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History of Legal French Beginnings

• 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

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Modern age

• 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

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Universities

• 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.

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Language legislation

• 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

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Discarding Regional Languages

• 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

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Discarding Regional Languages

• 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

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Origin of vocabulary

• Latin terms transmitted from Antiquity by
  continuous tradition (loiltlex, juge ltjudex,
  justice lt iustitia, délit lt delictum,
  sociétéltsocietas)
• Medieval Latin contumace lt 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

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Origin of vocabulary

• Italian loanwords banqueroute, change
• English loanwords franchising, dumping, leasing

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Legal French Style Text construction

• Cartesian spirit texts constructed in a logical
  and methodological way
• Legal rules systematically assembled in codes

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Legal French Style Textual Level

• Legal texts difficult to understand long,
  complicated sentences, impersonal expressions,
  passive and negative forms (il nest pas exclu
  que it is not impossible that) limited use of
  adjectives, abundance of nouns stereotyped
  phrases (e.g. dont acte in witness/faith/verifica
  tion), archaisms, petrified expressions
  (ci-après hereafter, ledit, susdit aforesaid

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Legal French Style Textual Level

• 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

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Improving the quality of legal language

• Association pour le bon usage du français dans
  ladministration, Commission de modernisation du
  langage judiciaire, Centre denregistrement 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

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Radiation of French Legal Culture

• 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.

84
Radiation of French Legal Culture

• 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)

85
Radiation of French Legal Culture

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

86
International Homogeneity of Legal French Belgium

• 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

87
International Homogeneity of Legal French
Switzerland

• 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

88
The Link between Related Languages

• 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

89
The Link between Related Languages

• 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

90
Globalisation of Legal French Diplomacy

• 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

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Globalisation of Legal French Diplomacy

• 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

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Globalisation of Legal French Diplomacy

• 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

93
Globalisation of Legal French Diplomacy

• 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

94
Canada
95
Colonisation Canada

• 16th c. France became a colonial power colonies
  in North America
• French Canada (1534-1760)
• British Canada (1760-1867)
• Canadian Canada (1867)

96
Colonisation Canada

• 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

97
Colonisation Canada

• 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)

98
Colonisation Canada

• Between the early 1790s 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)

99
Colonisation Canada

• 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
• 1960s Peaceful Revolution the status of Quebec
  consolidated

100
Colonisation Canada

• 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

101
Canada bilingualism

• 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

102
Canada co-drafting

• 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

103
International Homogeneity of Legal French Canada

• 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

104
International Homogeneity of Legal French Canada

• 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

105
International Homogeneity of Legal French Canada

• 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

106
International Homogeneity of Legal French Canada

• 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.

107
Francophone Africa
108
Colonisation Africa

• 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.

109
Maghreb

• Mauritania, Morocco, Tunisia, Algeria, and Libya
• In todays 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)

110
Sub-Saharan Africa

• 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

111
Sub-Saharan Africa

• 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

112
International Homogeneity of Legal French Africa

• 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

113
International Homogeneity of Legal French 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

114
International Position Today

• 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

115
Francophonia

• International community promoting the interests
  of French culture
• Some countries where French is the official
  language not members of Francophonia (Algeria,
  Switzerland)

116
International organisations

• 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

117
International organisations

• Unidroit (Institute international pour
  lunification 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

118
EU

• 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

119
Legal English
120
Migrations of Angles, Saxons and Jutes
121
HISTORY OF THE ENGLISH LANGUAGE

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

122
LATER OLD ENGLISH (c. 850 - c.1100)Language
Contacts

• 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

123
SCANDINAVIAN PLACE NAMES
124
MIDDLE ENGLISH (c. 1100-1450)French Influence

• 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

125
The Statute of Pleading, 1362

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

126
Richard Mulcaster (1582)

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

127
THE SPREAD OF ENGLISH
128
Tripartite model (B. Kachru)
129
Birth of Common Law

• 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 kings competence
• Progressively, increasing categories of cases
  transferred to these Courts

130
Birth of Common Law

• 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

131
Birth of Equity

• 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

132
Equity

• 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.

133
The English legal system today

• 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

134
The English legal system today

• 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

135
The English legal system today

• 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

136
The English legal system today

• 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

137
The Anglo-Saxon Period

• 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

138
The Anglo-Saxon Period

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

139
Dominance of Law Latin

• 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

140
Dominance of Law Latin

• 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 gt murdrum) dog Latin

141
Rise of Law French

• 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

142
Rise of Law 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

143
Rise of Law French

• 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

144
Rise of Law French

• 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

145
Decline of Law Latin and Law French

• 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!

146
Decline of Law Latin and Law French

• 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

147
Decline of Law Latin and Law French

• 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.

148
Dominance of Latin, French and English

• 1000 1200 1500
  2000
• Latin supremacy
• Law French supremacy
• English
  supremacy

149
Characteristics of Legal English

• 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

150
Influence of other languages

• 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)

151
Latin

• 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
  judges order to bring a prisoner before the
  court to clarify the legality of detaining him

152
Law French

• 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

153
Law French

• Word order
• Accounts payable, attorney general, court
  martial, fee simple, letters patent

154
Repetition

• 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

155
Repetition

• triple repetitionnull and void and of no
  effect, authorized, empowered and entitled to
• To tell the truth, the whole truth, and nothing
  but the truth

156
Law of contract

• 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

157
Law of contract

• 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)

158
Legal English as a Global Language Expansion of
Common Law

• 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

159
Legal English in the United States

• 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

160
American legal culture

• Fundamental ideas in line with the English
  tradition
• 1) supremacy of the law (rule of law)
• 2) rule of precedent
• 3) adversarial procedure

161
American legal culture

• Separation between private and public law less
  important than in civil law countries
• Separation of powers
• federalism

162
Differences between UK and US English

• Corporation company
• Visiting rights right of access

163
Similarities

• Traditional expressions hereafter, herein,
  hereof, herewith
• complexity

164
Legal English in the Indian Sub-continent
Anglo-Indian law

• 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)

165
Expansion and Change of legal English in India

• 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

166
Expansion and Change of legal English in India

• 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

167
Expansion and Change of legal English in India

• 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)

168
Legal English in International Trade

• 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

169
Contradictory interpretation

• Where litigation has to be heard by a States
  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