Using latin words and expressions efectively in legal documents

Study objectives With this thesis, the author hopes to help readers, especially law students and lawyers, understand the importance of Latin language in legal use as well as achieve the

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

GRADUATION THESIS B.A DEGREE IN ENGLISH

Major: Legal English

USING LATIN WORDS AND EXPRESSIONS EFFECTIVELY

Comment of Supervisor

ACKNOWLEDGMENTS

This thesis would not have been fulfilled had I not received so much help, support and encouragement from my supervisor, lecturers, friends and family So, this part is for my great gratitude to all of them

First of all, I would like to give the most sincere thanks to my supervisor, Ms Phan

Le Chi, whose excellent advice and instruction have guided me to make this thesis happen She is the reason that I was able to break through all the limitation that I thought I could have never overcome, progressed and improved myself day by day I also owe great deal of gratitude to all of my lecturers, instructors and friends in the past four years in Ho Chi Minh City University of Law because without them, it would

be impossible for me to get this opportunity to help other students in future years with

my knowledge and experience

Second, I would like to express my appreciation to the help from my fellows, Nguyen Ngoc Minh Trang, Nguyen Ngoc Huynh Anh, and Le Thi Hoang Chau, who have brought me wonderful inspiration They proved themselves to be not only very talented people but also great companions and supporters during my most stressful phase of the work

At last, I would like to give big thanks to all of my family, my biggest support and encouragement I am very grateful of their patience with me, their sponsorship and their restless cheers

This work is still incomplete but I do hope that it will become a good resort, and may be an inspiration, for law students in Vietnam in their way to the international legal world

VO MINH NGA

Ho Chi Minh City

31 May 2020

ABBREVIATIONS

adj Adjective or adjectival phrase

ibid ibidem (in the same place)

ICJ International Court of Justice

misc 2d New York Miscellaneous Reports (1878-2003)

RIAA Reports of International Arbitral Awards

UK United Kingdom of Great Britain and Northern Ireland

UNTS United Nations Treaty Series

US, USA United States of America

4.1 C IVIL LAW SYSTEM , CONCEPTS AND PRINCIPLES 13

In legal practice, Latin legalese is an important part to the extent that it represents basic terms in the science of law Law students are often encouraged to study Latin language in order to facilitate their studies both with common and civil law systems Besides, due to the frequent use of Latin legalese in legal communities, learning how

to use them correctly and effectively in legal drafting remains as an imperial need On the other hand, in Vietnam, the legal regime and language are more or less different from other parts of the world, and rarely has a Latin term been adopted in the law or the jurisprudence except for those in international contexts Therefore, it is typically difficult for Vietnamese law students to research on and familiarize with legal Latin, which is already tricky for law studiers in western societies whose tongues are closer

to Latin language

It is in such context that this work is drawn up with the aim of assisting law students

in Vietnam as well as other learners interested in the subject acquiring basic knowledge of the origin of Latin language as a whole and legal Latin individually, its role in ancient and modern jurisprudence and most importantly, its functions and how

to put it into use effectively in legal writings now

2 Study objectives

With this thesis, the author hopes to help readers, especially law students and lawyers, understand the importance of Latin language in legal use as well as achieve the most basic knowledge of Latin terms and expressions that are commonly used in legal context Furthermore, it is hoped that, after reading this, law students and practitioners will be able to make use of Latin legalese fluently and effectively during their ordinary course of study and business and achieve the targets they desire

3 Study questions

In the following chapters of this thesis, the author will attempt to analyze and explain four main issues:

- Why is Latin language used in legal context?

- How is Latin language used in legal context?

- Is it possible for replacing Latin with plain language? If not, why is that?

- How to understand Latin terms correctly and put them into use effectively?

4 Scope of research

Since the target readers of this thesis are lawyers, law students and others who are interested in researching in law, the thesis will focus on Latin terms and expressions in the context of texts of law, texts about law as well as legal language used in judicial and administrative documents and procedures

5 Literature review

Regarding the role of Latin in modern legal practice, there are three significant points that are widely admitted: (i) it has wide range of popularity both in time and space, (ii) the Roman law associating with Latin is very strong in influence, and (iii) the language is favored by the professionals To depict how popular and strongly impacting legal Latin is, the comment on the use of Latin in international law of Aaron

X Fellmeth and Maurice Horwitz is a clear and interesting example

Aspiring international lawyers may wonder about the ubiquity of Latin in international legal discourse in the first place It may seem that the esoterism of such a prevalent practice can only be intentional The official explanation is that much early international law was developed by the Roman Empire, and the much admired Roman civil law has found its way by analogy into public international law wherever a lacuna or ambiguity in the principles of international law arose When combined with the fact that Latin was the

scholarly lingua franca of most of Europe during international law’s early

development, international lawyers have inherited an even better stocked arsenal of Latin phrases and terms than other lawyers.1

1 Aaron X Fellmeth & Maurice Horwitz, Guide to Latin in International Law (Oxford University Press 2009) vii

(footnote omitted)

The language’s effects are also recognized by Professor Heikki E S Mattila of University of Lapland, Finland:

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

On the one hand, this is a matter of sentence level: the style of modern legal languages still reflects the rhythm of old legal Latin On the other hand, 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… 2

In addition, Professor Mattila also suggested that the need of using Latin is beyond historical reasons

But Latin elements also appear as such in modern legal languages Modern texts contain direct Latin quotations: terms, other expressions, and maxims This is partly a matter of rhetoric: Latin is used as a stylistic tool; an aesthetic medium This is often explained by the need to impress the reader Thus, by using Latin expressions and maxims, a lawyer sets out to show his professional competence

in front of the uninitiated, or his colleagues ( … ) However, these expressions and maxims often fulfil a more important function They are used to convince the reader or listener of the content of the legal order or to explain a legal concept Moreover, Latin maxims have a mnemonic importance, thanks to their often rhythmic character.3

As can be seen above, the use of Latin in legal context is natural and inevitable It is also admitted that comprehension in Latin legalese will facilitate lawyers to understand laws and each other better So, an instruction or guidelines in using legal Latin is always in need

6 Research methodology

Throughout this thesis, the following methods will be applied in order to illuminate the set-forth issues:

Synthesizing theory method: using academic books, journals, and other materials to

collect and generalize the features of Latin language, its development process to make

2 Heikki E S Mattila, Comparative legal linguistics (Christopher Goddard tr, Ashgate Publishing Ltd 2006) 136

3 ibid

a description of the Latin language and evaluate the language’s contribution in legal communication

Historical method: researching on the history of legal language and legal Latin to

make a summary of the language’s developments and hence, propose the historical impacts that it has on the modern legal systems and practice

Comparative method: comparing the use of legal Latin terms in the past and at

present to make the meaning of the terms as clear as possible and recommend a proper use Also, this method is utilized to compare the use of legal Latin terms of different drafters in different contexts to illustrate the effectiveness of such uses

Analyzing method: analyzing the Latin terms and expressions in respect of their

meanings, components, position in the sentence, contexts; analyzing legal documents which contain legal Latin terms to suggest a practical method to study and use them in legal communication

7 Structure of the thesis

CHAPTER I: INTRODUCTION TO LATIN

CHAPTER II: THE USE OF LATIN LANGUAGE IN LEGAL CONTEXTS

CHAPTER III: LATIN TERMS AND EXPRESSIONS – DEFINITIONS AND USAGE

CHAPTER I: INTRODUCTION TO LATIN

The origin of Latin dated back to the first millennium B.C in the peninsula of Italy.4 Back then, there were wars and conflicts coming one after one another Similar

to the wars caused by human to earn their hegemony, Latin competed with other archaic dialects such as Oscan and Umbrian to gain the dominant influence all over the Italian peninsula In the end, following the victory of the Romans, Latin, which was chosen by the winner, became the official language of Roman Empire, laying the groundwork for the great development afterwards

Latin language belongs to the Indo-European family and is the origin of modern language nowadays including French, Italian, Rumanian, Spanish, and so on.5 At its early stage of existence (before about 75 B.C.)6, Latin was one of the dialects spoken

in the Italian peninsula, along with Oscan and Umbrian The scripts of Latin were scarce at this time or at least, very scarce written evidences have been found up till now However, after 75 B.C., the language started to bloom and reached its golden age

in the period from approximately 75 B.C to the first centuries A.D 7 It is also in this period that a standard for the language could be formed thanks to a number of written proofs that had been left And if take a closer look, we can see that the Latin taught in many classes these days is more familiar with the Latin language of this time period than other stages Also, this was when the Roman literature and science made their greatest contributions to the world history with famous names among which Lucretius, Julius Caesar, Cicero, Seneca, Pliny the Elder were the significant representatives.8 From around 200 to 1300 A.D., the Roman Empire made a huge expansion all over Europe As a result, Latin spread through the continent and gave birth to a number of

4

John Garger, ‘A Brief History of the Latin Language’ (Bright Hub Education)

< www.brighthubeducation.com/learning-translating-latin/17702-brief-history-of-latin-language/ > accessed 19 March 2020

5 ibid

6 John Garger, ‘A Brief History of the Latin Language’ (Bright Hub Education)

< www.brighthubeducation.com/learning-translating-latin/17707-brief-history-of-old-latin/ > accessed 19 March

2020

7

John Garger, ‘A Brief History of the Latin Language’ (Bright Hub Education)

< www.brighthubeducation.com/learning-translating-latin/17710-brief-history-of-the-classical-latin-period/ > accessed 19 March 2020

8 ibid

dialects Those dialects were, later on, the origins of Romance languages (French, Italian, Spanish, etc.).9 This might explain why we can notice some similarities between Latin and some languages currently spoken in European countries at present From 900 to 1300 A.D., Latin truly became the main language in Europe It was the language of Roman Churches, scholarship and science It was the main tool to express ideas on philosophy, technology and literature The vocabulary of Latin then was larger than any previous stages due to the exchange with local dialects of regions where the Romans set foot in One more thing worth mentioning is that during this stage Latin was influenced by Germanic as well.10 Germanic language eventually transformed into English so it is understandable how some Latin words found their home in Old English and in the other way around.11

In the 1400s, the last piece of Roman Empire had collapsed but that did not mean the fall of Latin language The Renaissance period taking place at the same time was the key to the survival of Latin in the following centuries after Roman dominance Greek and Roman literature then were held in high regard as original works of genius.12 Such authors as Cicero are highly praised, and as a consequence the Latin style in the previous stage (75 B.C – 200 A.D.) once again sprang to life It is also because of this Renaissance period that the classical Latin is mainly taught nowadays rather than other forms of Latin from more recent time periods.13

Since 1500 A.D., Romance languages started to raise their voice but Latin remained

as the language of law, religion, and education and was used for communication on

9

John Garger, ‘A Brief History of the Latin Language’ (Bright Hub Education)

< /www.brighthubeducation.com/learning-translating-latin/17768-brief-history-of-vulgar-latin/ > accessed 19 March 2020

10 John Garger, ‘A Brief History of the Latin Language’ (Bright Hub Education)

< /www.brighthubeducation.com/learning-translating-latin/17775-brief-history-of-medieval-latin/ > accessed 19 March 2020

most of the continent.14 Although English and French were popular languages among students then, Latin was still a main subject because of the necessity for studying mathematics, reading and writing In the early eighteenth century, France conquered over Europe It was until then that Latin stepped down from its position as a universal language and gave the way to French From there on, the influence and popularity of Latin language faded By the late nineteenth century, Latin was used by a few branches of science and in the Roman Catholic Church even though fewer and fewer people can understand it By this time, it seemed that Latin had finally expired as a useful language to learn for the purposes of communication Nevertheless, Latin is still present in the modern time Latin classes are still offered to students, though they are mainly for translation and studies in anthropology and archaeology.15

CHAPTER II: THE USE OF LATIN LANGUAGE IN

LEGAL CONTEXTS

1 Roman law – the home of legal Latin

There are many legal systems that used Latin as their tongue of law throughout the history of thousands of years Some of them have stopped using Latin and adopted their national languages but some are still faithful with it like Canon law, the law of Roman Catholic Church, which is still using Latin as the prevailing language in its documents, solemn ceremonies and vital meetings Others play an important role during a certain time in the development of not only the language but also the jurisprudence like German law, which depicted the state of the law and society at the dawn of the Middle Ages, preserved several Roman legal texts that cannot be located

in any of the extant Roman sources.16 But the most outstanding law that laid the seed and brought the whole civil law system as well as the Latin language to their most prosperity is out of question the Roman law

1.1 The background of Roman law

It is hard to trace the exact date where Roman law began There are a number of reasons: lack of material evidence, overlap between law, religious and divine orders and customs As far as we know, the seeds of legal system might initiate during or even before the Monarchy (753–509 B.C.).17 Again, there is no definite statement because like the development of Roman city-state, its law gradually derived from customary orders within the clans in the society, the customs utilized by the clans in their interactional activities with one another18 and orders from the king (rex) It was

until the birth of Roman Republic (509–27 B.C.)19 that there was a written legal text of law – the Laws of the Twelve Tables This was not only the first true legislation of the Romans but also the most important law of the Roman era The Laws of the Twelve Tables, which came into existence in around the middle of fifth century B.C., were used for such a long period of time, for about a thousand years The Romans were hesitated to replace it with a new law so the laws kept their dominant position till the Roman Empire time The only thing that changed was the way to interpret the laws in order to adapt into novel circumstances.20 Such interpretations and commentaries on law were even considered as a source of law during the Republic, the Principate (27 B.C to 284 A.D.)21 and early the Dominate period Until the Dominate (284 A.D to

565 A.D.)22, imperial law which was enacted by the king and emperor became the dominant source of Roman law when the popular assemblies and the senate – two bodies of legislation in the Roman Republic – were more and more influenced by the emperor In the reign of Justinian, Roman law was codified into four main legal texts:

Digesta, Institutes, Codex repetitae praelectionis and Novellae (collectively referred

as Corpus juris civilis of Justinian) and this is the primary sources of reference to

study and research on Roman law these days

17 Wikipedia, the free encyclopedia, ‘Roman law’ (Wikipedia, the free encyclopedia, 27 March 2020)

< https://en.wikipedia.org/wiki/Roman_law > accessed 06 April 2020

18 George Mousourakis, A Legal History of Rome (Routledge 2007) 22

19

Wikipedia, the free encyclopedia, ‘Roman law’ (Wikipedia, the free encyclopedia, 27 March 2020)

< https://en.wikipedia.org/wiki/Roman_law > accessed 06 April 2020

20 George Mousourakis, A Legal History of Rome (Routledge 2007) 26

21 ibid 1

22 ibid

1.2 Contribution of Roman law

System of law: This comprises of all the laws and documents used as sources of law

by the Romans It is admitted that the Roman law was among the most developed and advanced in its own time This is proven by the fact that most European legal systems use it as the basis Moreover, not only had it became the foundation for the civil law system but also had great influence on the common law system via the English law.23

It is astonishing that for thousands of years ago the Roman legislators had thought of making use of law to regulate many relations which found the basic laws in almost all civil legal systems later on such as family law, law on persons, law on properties, succession, contract, etc These promulgations covering nearly every relation and dispute arising in the society were so diverse that even the English law – home of the common law system – ought to borrow Roman law to deal with matters that the national law itself had not provided

Legal concepts and terminology: Roman law is an introduction to the study of the

Science of Law, or, as we call it, Jurisprudence For many centuries the Science of Law was Roman law.24 It is also by the Roman law that a number of legal concepts were introduced and eventually became the heart of many legal systems even in the modern time Some of the most outstanding to be named are equity, public and private law, and natural law As a result, Roman jurists who invented these concepts were fathers of the legal terms, and Latin, the language of the Romans, was considered the language of law and legal science It may not be too overestimated to say that Roman law is a key to the terminology and, to a great extent, to the substance of foreign systems.25

Above are the two heritages of the most importance that Roman law had left but its contribution is more enormous than that Not only Europe, the hand of Roman law even reached to further continents where colonies of England, France, Spain, and others were The role of the Roman law as a universal law embodying principles of

23

Edward D Re, ‘The Roman Contribution to the Common Law’, 29 Fordham L Rev 447 (1961)

< https://ir.lawnet.fordham.edu/flr/vol29/iss3/2 > accessed 06 April 2020

24 George Mousourakis, A Legal History of Rome (Routledge 2007) 450

25 ibid

natural law applicable for all time is generally admitted.26 Today Roman law has been replaced by modern codes but is still the common foundation upon which the European legal order is built as well as the stable foundation on which modern legal culture has developed and evolved upon as a whole.27 It is also because of such a great influence of Roman law and its heritages, the Latin terms, maxims and expressions, despite being at stake, are not extinct

2 The use of Latin in legal system in ancient time

2.1 During the Roman Empire

The popularity of Latin language was significantly contributed by the Romans The reason why Latin spread so wide and so long was because the Romans brought this language along with their conquests by the use of the army Latin was the language of administration, jurisdiction and military in Roman Empire After every conquest, lands were distributed to Roman retired soldiers and those soldiers became farmers later on Moreover, young people of the tribes that were conquered by the Romans were called

to serve the military force in which they were taught to use Latin and in turn, these young soldiers made Latin known within their own tribes Gradually, Latin turned into

the lingua franca (the common language) of not only different regions but also

different classes in the Roman society This is what distinguished Latin from other languages at the same time, including those that had been more popular than Latin such as Oscan and Umbrian By the boost of Roman Empire, Latin was the language

of everyone, of the farmers, the soldiers and the city.28

2.2 During the Middle Age

During the medieval time, the Latin-written laws and legal commentaries were open

to study again Many principles and concepts in Roman law, especially the Corpus juris civilis – the collection of codified laws of Emperor Justinian, were highly appreciated and became the reference for national codes Not only was it used as a

26 Edward D Re, ‘The Roman Contribution to the Common Law’, 29 Fordham L Rev 447 (1961)

< https://ir.lawnet.fordham.edu/flr/vol29/iss3/2 > accessed 06 April 2020

27 DailyHistory.org, ‘How has ancient Rome influenced European law?’ (DailyHistory.org, 22 November 2018)

< https://dailyhistory.org/How_has_ancient_Rome_influenced_European_law%3F > accessed 06 April 2020

28 Natalia Zecca-Naples, ‘Lingua latina omnia vincit: How Latin became the language of the Roman Empire’

(Unravel Magazine, 13 November 2015) <https://unravellingmag.com/articles/latin/> accessed 06 April 2020

citing Ostler, N., Ad Infinitum: A Biography of Latin (Walker & Company 2007) 56-57

reference but Roman law was also studied, analyzed and even developed by the medieval glossators such as Azo of Bologna and Accursius who helped to bring about new concepts in the legal field.29

Consequently, Latin was the favorite language again among legislators, jurists, glossators and others who were concerned in legal field In many different countries of continental Europe such as Kingdom of Naples, Austrian Empire, Hungary, court minutes, administrative authorities, notarial acts, judgements, etc were drawn up in Latin until the late of Middle Age and even early modern time Denmark, Sweden and Finland used Latin in legal documents until 11th to 14th centuries.30 In terms of international transaction, it was until 17th century that French was able to take over Latin’s position as the sole language of negotiations and treaties The reason for this was because of the impartial feature of Latin language considered safe for using in inter-State relations.31

3 The use of Latin in modern legal world

In legal system, although Latin is no longer the official language used by judges, jurists and lawyers, the terms and phrases that were invented, or used by ancient Roman jurists remain and are given the name as Latin legalese Lawyers prefer using conjunction in Latin to their own language,32 and Latin expressions and maxims are often inscribed on walls of courthouses, administrative head offices or seals and emblems of public organs and law society.33 Most importantly, legal concepts and principles in their Latin forms are often quoted with the aim of most accuracy as possible.34 The Latin terms and expressions can also function as guarantors for international understandability of legal texts mostly in international organizations, and international commercial arbitration.35

29 Wikipedia, the free encyclopedia , ‘Medieval Roman law’ (Wikipedia, the free encyclopedia, 20 January 2020)

< https://en.wikipedia.org/wiki/Medieval_Roman_law > accessed 06 April 2020

In common law system countries, it is unsurprising that Latin words and phrases are still found useful by judges at the court In the system where precedent is central, a case of the previous centuries when Latin was still the official language of court can possibly be taken as references for a subject matter in present Therefore, having some wisdom of the language is surely beneficial for officers of the court In the European Union, Latin terms, phrases and maxims are welcomed the most If you take a look at

a recent Official Journal of European Union, the journal no C 161 issued in May 2020

reporting cases of the member states for example, ad hoc, de facto, ultra vires, delict, quasi-delict, res judicata, etc show up naturally in the parties’ pleadings like a native

language The same goes with the legislation In decision no 1/2020 of the EPA committee36 adopting the rules of procedure for mediation, the rules of procedure for

arbitration, and the code of conduct for arbitrators on 28 April, 2020, interim, ex parte, mutatis mutandis, amicus curiae can be easily spotted.37

In the international scenario, Latin is even more familiar than in some domestic codes Multilateral treaties usually contain at least one or two Latin terms in its body, whether such terms perform as injunctions or legal terms and maxims The language is particularly embraced by many judges of the International Court of Justice From the year 2010 to 2019, the Court heard and gave advisory opinions for 31 cases and 307 separate declarations and opinions by the judges were presented, in which approximately 300 different Latin terms, maxims and expressions were counted In private international law, sales of goods or commercial contracts utilize Latin as well

but with a less intensity, specifically in such clauses as arbitration and force majeure

However, due to the fact that civil services are increasing and there are more and more people with poor legal knowledge are involved in those processes, a campaign to omit the complicated and hard-to-understand legalese which can be called the plain language campaign is growing It actually does have some effects on the use of Latin terms and expressions now and in fact, there are more and more legal documents

36 The EPA committee is a body set up by the Interim agreement with a view to an economic partnership

agreement between the European Community and its member states, of the one part, and the Central Africa Party, of the other part

37 Decision no 1/2020 of the EPA committee set up by the interim agreement with a view to an economic

partnership agreement between the European Community and its member states, of the one part, and the Central Africa Party, of the other part, of 28 April 2020 adopting the rules of procedure for mediation, the rules of procedure for arbitration, and the code of conduct for arbitrators [2020] OJ L 156/22

written in plain language as a response to this campaign Nevertheless, it is still far from saying that Latin has completely disappeared in the legal culture

4 Plain language and its possibilities to replace the use of Latin legalese

In short definition, plain language is a way of expression that make a lay person who has no professional knowledge of the subject being discussed understand at the first time they read or hear it.38 Plain language is strongly advised for governmental regulations, administrative documents and legal writings, all of them are famous for complicated structure, difficult terms and even alien language to an ordinary person It

is hard to deny that plain language campaign has received a considerable support from the public as it eases the communication between people with the States and even more and more lawyers are more willing to use plain language not only in conversation with the clients but also in legal drafting

The foremost aim of plain language is to make a lay person understand a piece of writing easily at the first glance In contrast, Latin language is not as well-known as it used to be and many, including law professionals, find it too difficult for normal people to understand even just a short term Therefore, Latin is one among many features in legal writing that are urged to be omitted In an attempt to replace Latin legalese with plain language, lawyers, legislators, and judges are encouraged to use the English equivalents or explanations for Latin terms and expressions However, is this

an optimum method? Will Latin legalese be totally washed away in legal drafting of all kinds? It is too soon to make any conclusion What we do know for now is that Latin language has long been the root of legal science The importance of the language

is both reflected in the laws and in the minds of those who study laws There are three good reasons to support the idea that Latin will probably survive in the world legal system for quite some more time

4.1 Civil law system, concepts and principles

We have learnt that the Romans gave birth to many basic concepts and principles in the jurisprudence and the Roman law itself is among the oldest and most essential legal foundations in the world We also know that the influence of Roman law was not

38 Plainlanguage.gov, ‘What is plain language?’ (Plainlanguage.gov)

< https://plainlanguage.gov/about/definitions/ > accessed 06 April 2020

merely in a single state or single continent Roman law was among the legal systems that had the widest range of impact in the world Nearly all European countries more

or less are in debt to Roman law and Latin language In fact, the majority of Europeans countries now such as France, Germany, Spain, and Italy are running under civil law system and their national laws have base mainly on the Roman law Even other foreign states from continents of Asia, Africa and American have borrowed its values and incorporated to their own laws Examples of those basic concepts are:

Ius civile

The civil law At first, it was used as a synonym of private law but with a narrower sense, and it dealt with the Roman citizens’ rights and duties In the Middle Age, the term was imposed to Roman law in order to distinguish from other legal system such

as Common law and Canon law.39

Ius publicum and ius privatum

The public and private law It is needless to say anymore what public law and private law are They have always been the most fundamental concepts both in national and international law The interesting thing is that the Romans were aware of distinguishing between two areas of law in a very early age, as early as the issuance of the Laws of the Twelve Tables The Romans more focused on private law than public law and many of their regulations were reserved civil law tradition in continental Europe.40 On the other hand, their public law inspired political thinkers and legislators, including the writers of the Constitution of the United States.41

Rafael Domingo, ‘Roman Law: Basic Concepts and Values’ (2017) SSRN Electronic Journal

< https://www.researchgate.net/publication/318389613 > accessed 06 April 2020

40 ibid

41 ibid

forbid the opposite It is a natural force which drives man to tell what is right and wrong, what is justice and injustice.42

So long as these concepts and principles are deemed vital to the legal science and legal systems still function dependently on them, the study of Latin language to research and analyze on ancient Roman works is inevitable In addition, the benefit of Latin terms can be seen in international scale as well It is not strange when many legal concepts and principles of the Roman law were adopted in many countries around the world As a result, Latin terms became widely familiar and understandable to lawyers from various parts in the planet This helps to ease the communications between lawyers who come from different nations to some extent because they have a common language, legal Latin, and at least the burden of translation is reduced

4.2 Irreplaceable terms and expressions

Even though English, French and other modern languages these days have borrowed a lot of words in the legal subject from Latin and many Latin legal terms have an alternative in these languages, some terms still cannot be translated or have a synonym with the exact meaning Such terms can only be given an explanation or a definition of what it means The point is that the definition for them in many cases is long and consequently making the documents unnecessarily lengthy, especially when those texts are used in professional context where every writer, reader and listener have the knowledge of what it means already

There is also another situation in which Latin term does have an English version However, even with the English term, the true meaning is still vague with those with poor legal knowledge In such cases, between the Latin and English term with approximate vagueness, the Latin normally will be in more favor to lawyers and judges The explanation for this will be discussed in the following

4.3 Habitual use among the legal communities

In the European cultural tradition, expressions and maxims from the classical languages raise the level of the text and add splendor to it.43 Latin has always been crowned as the language of science, especially the science of law From the archaic

42 ibid

43 Heikki E S Mattila, Comparative legal linguistics (Christopher Goddard tr, Ashgate Publishing Ltd 2006) 140

time in city of Rome to the medieval period and even up to 19th century, Latin had been considered as a noble language, the language of scholars and intellectuals So it is always the habit of lawyers and legal scholars to use Latin terms and expressions as the matter of formality Moreover, in our modern society, lawyers, jurists, judges, such people still receive great respect from the public They themselves are highly proud of their achievements as well By using Latin expressions and maxims, a lawyer sets out

to show his professional competence in front of his clients, or his colleagues.44 Thus, apparently using Latin terms and expressions will probably be embraced as a sign of pride and honor

It is as well worth mentioning that the citations of old Latin documents such as legislation, case law, private documents are often seen, especially in legal science A famous legislation that appears in legal textbooks many times, the Magna Carta is an excellent example In legal practice, particularly in common law system, case law is a fundamental source and there are some cases dating back to the previous centuries where Latin use was still a common sense Thus, using Latin terms is not merely a study in the jurisprudence but a demanded skill for any practicing judges and advocates too Moreover, since most Latin terms and expressions are the original forms of legal concepts and principles and they are familiar and understandable in many countries, they are preferable in using for international documents and transactions for their neutrality and preciseness All in all, Latin is tightly bound to the legal system operation and development and from the legal standpoint, it might be harder to alter the Latin words with a more modern and active language than try to understand the Latin terms themselves

44 ibid 136

CHAPTER III: LATIN TERMS AND EXPRESSIONS –

DEFINITIONS AND USAGE

1 Common legal Latin terms and expressions

Comprehension of Latin terms and expressions is inevitable in order to read and use them correctly and effectively in legal writing However, due to the limitation of a graduate thesis and wide variety of legal Latin terms and expressions, it is impossible for the author to list out all the terms across all areas of law in all legal systems Therefore, this chapter will introduce some common terms that law students are likely

to encounter the most during their practice and studies, namely in international law and partly in English and American law system This part is made to help students understand Latin legalese when reading legal materials Furthermore, it is hoped that students will be able to distinguish between terms that seem alike and avoid any mistakes regarding punctuation, grammar, spelling, etc when they use this foreign language in their own writing

1 AB (prep): From, away from, by The word was adopted into English as a prefix

with the meaning of “away from” a space, distance, time and so on But as the

original Latin word, it is a preposition, and a phrase containing ab means “place

from which” It is used when referring to a place which acts as a source, origin of something in the sentence

Ab initio adv From the beginning

E.g.: [The Congo] contends that there is indeed a legal dispute between the Parties, in

that the Congo claims that the arrest warrant was issued in violation of the immunity

of its Minister for Foreign Affairs, that that warrant was unlawful ab initio, and that

this legal defect persists despite the subsequent changes in the position occupied by the individual concerned.45

Ab invito adv From unwilling person, against one’s will

45 Arrest Warrant of 1 I April 2000 (Democratic Republic of the Congo v Belgium), Judgement [2002] ICJ rep 3

para 25

E.g.: The following excerpts, as illustrations, from Valluzzi’s testimony, will not be

amiss at this time as corroborating proof that, so far as defendant was concerned, Valluzzi’s status as proctor counsel for defendant by uninvited devolution, was solely

a representation ab invito.46

2 ACTIO (n): Interestingly, this is the Latin equivalent with the English word

“action” and similar to the English fellow, it has various meanings: action, legal

process, suit, act, etc The term’s plural form is actiones It first appeared in the

Roman procedural law where it indicated the right of the plaintiff to bring a suit before the court.47 From thereon, the term has been used to refer to litigation or an

initiation of a lawsuit

Actio criminalis n A criminal action.48

Actio damni injuria n An action for damages.49

Actio de judicato n An action to seek for a judgement for a dispute rather than an

advisory opinion.50

E.g.: [P]rocedure has developed, the existence of purely declaratory awards has come

to be admitted, especially in Germany and the United States: the applicant is for some reason-to have his right declared, without desiring that it shall subsequently

content-be rendered effective; at the same time, however, he retains the right to bring another

action of a purely executory nature: actio de judicato.51

3 ACTUS REUS (n): Guilty act, the physical conduct that constitutes a crime This

is one of the two basic components to identify a criminal offense The other

component is mens rea The two terms came about in Sir Edward Coke’s definition

of murder in the Institutes of the Laws of England in 17th century In his definition which is still applicable in present, Sir Edward Coke laid out six elements to prove the offence of murder including: the unlawful killing, of a human being, by an act

or omission, which results in the death of that human being, within the Queen’s

46 People v Betillo 53 Misc 2d 540 (1967) (New York Supreme Court)

47 Oxford University Press, ‘Du Plessis: Borkowski's Textbook on Roman Law 5e’ (Oxford University Press

online resources centre) < https://global.oup.com/uk/orc/law/roman/borkowski5e/resources/glossary/ > accessed

12 May 2020

48 Gordon W Brown and Kent D Kauffman, Legal terminology (6th ed, Pearson 2013) 428

49 ibid

50 Aaron X Fellmeth & Maurice Horwitz, Guide to Latin in international law (Oxford University Press 2009) 10

51 Corfu Channel case, Dissenting opinion by Judge Azevedo [1949] ICJ Rep 4

Peace (all five elements were collectively referred as actus reus), and with malice aforethought (which was referred as mens rea) 52

4 AD (prep): With, towards, for, to This is one of the most popular prepositions in

Latin language and probably among the handiest ones as well Ad usually appears in phrases expressing purposes and places When present in a phrase of location, ad points the direction toward such location, not away from it

Ad hoc adj For a special purpose Someone or something selected or designated for a

special purpose, such as an ad hoc committee; also used to describe an act done at the spur of the moment, such as an ad hoc solution or an ad hoc demonstration.53

E.g.: The Seabed Disputes Chamber shall form an ad hoc chamber, composed of three

of its members, for dealing with a particular dispute submitted to it in accordance with article 188, paragraph 1(b).54

Ad infinitum adj, adv To infinite, to an infinite degree or without limit

E.g.: National regulations often lay down restrictions as to the number and tonnage of

ships, the repetition of visits, etc ; this is evidence of the menacing character of warships, and serves to controvert the erroneous argument that if one ship is admitted,

a second must also be allowed and then a third and a fourth, ad infinitum.55

Ad hominem adj To a man Directed to an individual personally, especially made with

insulting intent or without relevance to the issue under consideration.56

E.g.: First, the appellants submit that since the criterion relating to the link with IRISL expressly named that entity, it had to be considered an ad hominem criterion, so that

the Council was under an obligation to inform them of the amendments it envisaged making and to enable them to submit their observations.57

Ad valorem adv For the value This term is often used in tax law It indicates that the

tax of a certain good, property or service is calculated upon its value

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16

November 1994) 1833 UNTS 3 art 36

55 Corfu Channel case, Dissenting opinion by Judge Azevedo [1949] ICJ Rep 4

56 Aaron X Fellmeth & Maurice Horwitz, Guide to Latin in international law (Oxford University Press 2009) 18

57 Case C-225/17 P Islamic Republic of Iran Shipping Lines and Others v Council of the European Union [2019]

EU:C:2019:82

E.g.: "customs value of imported goods" means the value of goods for the purposes of levying ad valorem duties of customs on imported goods.58

5 AEQUITAS (n): equity, fairness Aequitas is a concept and also a term of

importance in Roman law and many modern law systems Back in the Roman era,

on finding resolutions of the case, magistrates took consideration of the aequitas

and based on it to give decisions or opinions on case-by-case basis According the

Roman, aequitas are both an intrinsic justification of the existing legal norms and

an ideal objective to which the law is made and innovated.59

Aequitas contra legem n Equity opposite to the law, equity is applied to the matter at

issue as an exemption from the law because if the law is applied, unjust results may occur.60

Aequitas infra legem n Equity under the law, equity is applied to interpret the law and

such interpretation will bring about the most just result.61

Aequitas praeter legem n Equity apart from the law, equity is applied when the law is

silent or vague on the matter at issue.62

E.g.: [A] certain application of equitable principles might have become a necessity,

but where equity has a role in a boundary dispute, that role is invariably limited

Equity may be applied only to fil1 in a gap It could be aequitas infra legem or aequitas secundum legem but not aequitas praeter legem or contra legem.63

6 ANTE (adj, adv, prep): Before, in front of Nowadays, it is more familiar as a

prefix in words to prefer to previous action or event, a thing before another (for

example: anteroom, antedate) In Latin language, ante often goes in time phrases

and it denotes the period preceding a certain point of time

Ante factum adj, adv Indicate an action or event taking place before the action in

question Synonym: Ante hoc Antonym: Ex post facto, post hoc

E.g.: The Court gives an advisory opinion endowed with the limited force proper to it

Such force as provisions, agreements, statutes or rules emanating from States or

58 Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into force 1 January 1995) 1868 UNTS 279 art 15

59 George Mousourakis, A Legal History of Rome (Routledge 2007) 53

60 Aaron X Fellmeth & Maurice Horwitz, Guide to Latin in international law (Oxford University Press 2009) 23

61 ibid

62 ibid 24

63 Territorial Dispute (Libyun Aruh Jamuhiriyu/Chad), Separate Opinion of Judge Ajibola [1994] ICJ Rep 6

organizations may bestow on the opinion ante factum or ex post facto neither

diminishes nor enlarges the jurisdiction of the Court.64

Ante hoc adj,adv Like Ante factum

Status quo ante n The status in which before, a condition or state of something before

a certain event occurs

E.g.: With regard to aid of a fiscal nature, the Court of Justice has held that establishing the status quo ante means restoring, as far as possible, the situation which

re-would have prevailed if the operations in question had been carried out without the tax reduction.65

7 BONA FIDE (n, adj): Good faith, in good faith Bona fide can be considered as an

important element in law as there are some rules depending mainly on it, whether a

bona fide is present or not will determine the outcome of the case The bona fide

concept bears origin from the Roman who was influenced by the Greek This term has been used in several contexts in the legal field In the ancient Roman court,

bona fide and aequitas often went together, the judge would consider the bona fide (which represent the honesty) of the parties and the aequitas (the fairness in the

transaction) to decide which right should be protected.66 In private law, the term was associated with the general expectation that persons should behave honestly and fairly in legal transactions From a subjective point of view, when a person acted with the belief that his actions were just and lawful and did not violate

another person’s legitimate interest, such belief could be considered as bona fide 67

In modern time, regulations on bona fide have advanced to fit in the new society

but the core principle is not much different from the past Especially, the term holds an essential role in international treaties where the parties are loosely binding

and it is bona fide that keeps them going

64

Application for Review of Judgement No 158 of the United Nations Administrative Tribunal, Dissenting

Opinion of Judge de Castro [1973] ICJ Rep 166

65 Case T-445/05 Associazione italiana del risparmio gestito and Fineco Asset Management SpA v Commission

of the European Communities [2009] ECR II – 295 para 194

66 George Mousourakis, A Legal History of Rome (Routledge 2007) 53

67 ibid 214

8 CORPUS (n): (1) A body or main part, collection of writing (2) Principal sum or

capital of a trust Synonym: trust fund, trust res, trust property, trust principal 68 The two meanings mentioned here are the modern ones Originally, corpus means

“the body” merely and it can refer to a human body or body of a thing In fact, the

most famous term that goes with this word is Corpus Juris Civilis, the collection of

works in jurisprudence of the Roman Emperor Justinian I The word as well as its meaning as the body of writings is preserved up till present in some modern

English dictionaries for daily use On the other hand, corpus also means, in legal

context, the object which is inflicted by a wrongful act, for example, the dead body

in murder case, the stolen item in thief

Corpus delicti n Body or substance of the crime; any object proving that a crime may

have been committed.69

E.g.: Regulation 27 of the Conservation of Wild Birds Regulations sets out the way in

which an infringement of the Regulations must be dealt with and provides for a series

of penalties which, for offences committed in the context of the derogations, range from a minimum fine of EUR 500 together with the immediate suspension of the special licence to a fine of EUR 15 000 together with imprisonment for a term of two years, disqualification from holding a licence issued under the Regulations for life, as

well as confiscation of the corpus delicti.70

Habeas corpus n That you have the body A law stating that one cannot be kept in

prison unless it is decided by the court of law A person can report an unlawful imprisonment to a court and request that the court determines whether such detention

is lawful by a writ of habeas corpus

9 DAMNUM (n): An injury or harm or loss The English alternatives for this word

are many such as loss, injury, harm and damage In fact, as national laws have developed the definition of damage for their own, borrowing an old Latin is not

very necessary Yet, damnum still appears in some phrases where it is accompanied

by other Latin words to name different types of damage

68 Gordon W Brown and Kent D Kauffman, Legal terminology (6th ed, Pearson 2013) 405

69 Lazar Emanuel, LATIN FOR LAWYERS The Language of the Law (Emanuel Publishing Corp 1999) 69

70 Case C-557/15 European Commission v Republic of Malta [2018] EU:C:2018:477 para 12