Comparative Legal Linguistics

Language of Law, Latin and Modern Lingua Francas

Heikki E.S. Mattila

• Editorial: Routledge
• Año: 2016
• ISBN:
  9781317163022
• Edición: 2
• Categoría: Law
• Categoría: Comparative Law

This book examines legal language as a language for special purposes, evaluating the functions and characteristics of legal language and the terminology of law. Using examples drawn from major and lesser legal languages, it examines the major legal languages themselves, beginning with Latin through German, French, Spanish and English. This second edition has been fully revised, updated and enlarged. A new chapter on legal Spanish takes into account the increasing importance of the language, and a new section explores the use (in legal circles) of the two variants of the Norwegian language. All chapters have been thoroughly updated and include more detailed footnote referencing. The work will be a valuable resource for students, researchers, and practitioners in the areas of legal history and theory, comparative law, semiotics, and linguistics. It will also be of interest to legal translators and terminologists.

PART 1
General Introduction

Chapter 1
Legal Language and Legal Linguistics

1 The Concept of Legal Language

Legal language does not qualify as a language in the same way as French, Finnish, or Arabic, for example. According to Carles Duarte, the Catalan linguist, it operates as a functional variant of natural language, with its own domain of use and particular linguistic norms (phraseology, vocabulary, hierarchy of terms and meanings). Legal language possesses a number of specific features. These are morphosyntactic, semantic, and pragmatic. This language is used in particular social roles: pleading, claiming, and so on.1

It is clear to see that legal language is based on ordinary language. For that reason, the grammar and – in general – the vocabulary of legal language are the same as in the case of ordinary language. However, legal language is a language for special purposes. This means, first of all, that a large number of legal terms exist whose properties vary according to the branches of the law. In addition, the legal languages of different countries and of different periods possess, to a varying degree, characteristics that distinguish them from ordinary written language (e.g., sentence structure). One may speak of a specific legal style. For those reasons, it often occurs that legal language may be incomprehensible from the standpoint of the general public.

Legal language is often characterised as a technical language or “technolect”, which is to say a language used by a specialist profession. That is accurate, but only with certain reservations. True, legal language is, first and foremost, used by lawyers. Nevertheless, in the courts and still more in the government are professionals who are not lawyers properly so-called (jury-members, lay judges, and administrators). At the same time, it seems natural to say that a citizen who, for example, writes his own will following a model form (as often occurs in the Nordic countries) is using legal language. Still more important, by contrast with most other languages for special purposes, the target of messages transmitted in legal language often consists of the whole population, certain layers of the population, or a number of particular citizens. For example, a law normally requires compliance of all the people, while a court judgment relates, first and foremost, to the parties involved in the case. Thus, legal language is not an instrument aimed solely at internal communication within the legal profession.

Use of legal language is notable for the fact that it is very widespread: it governs all areas of social life, and it can, through intertextuality, be combined with language from any and every domain. Furthermore, legal language is very old, which is not necessarily the case with most other languages for special purposes. This is why, historically, it has shaped the ordinary language of various countries, and in a significant way. Illustrations might include documents from royal chancelleries in France at the close of the Middle Ages and the beginning of modern times, as well as Las Siete Partidas in medieval Spain. However, this is not a matter of a unique historical phenomenon. Even today, legal language still influences ordinary language.

It is not clear that the domain of usage of ordinary language and that of language used in legal matters are geographically identical. The population can make use of another language than that forming the basis of a country’s legal language. In the Middle Ages and, in part, at the beginning of modern times, Latin was the language of legal proceedings, and notably of written judgments. Another example: Swedish constituted the sole language of legal life in Finland until the second half of the 19^th century. Today, the official language – as well as the language of legal affairs – of many African countries is French or English, in spite of the fact that the population speaks one or several African languages.

2 Genres of Legal Language

2.1 Division into Sub-genres

Legal language can be divided into sub-genres, particularly according to the various sub-groups of lawyers. This is explained by the fact that the language of each subgroup of lawyers to some degree possesses particular characteristics (vocabulary, style). This is notably so as to the language of legal authors, legislators (laws and regulations), judges, and administrators, as well as advocates.

The division of legal language into sub-genres is a relative matter.2 Here, the traditions of the country concerned play an important part. For example, in continental Europe one can refer to notarial language. The reason is simple. In these countries – notably Latin countries – private-law documents have been drawn up, for a thousand years, by a separate body: the notarial profession. A notary is a lawyer who can be styled part official, part advocate. The long traditions of the notarial college explain the specific characteristics of their language.

The language of legal authors is characterised by greater freedom than the other sub-genres of legal language. At the same time, legal authors employ a good deal of scholarly vocabulary, notably Latin terms and sayings. Courtroom language is especially formal, often archaic. It often has a categorical character, in that judges use unreserved declarations and peremptory orders. In certain countries, such as France, courtroom language is also laconic when it comes to reasoning of judges. By contrast, detailed argumentation, along with an abundance of rhetoric, typifies the language of counsel. In certain domains of legal language, notably in judgments, highly complex sentence construction was formerly used – in some countries, that still remains the case today. Finally, texts of whatever genre of legal language understandably include many legal terms.

Besides, legal language can be divided into sub-genres on the basis of branches of law. The main distinguishing criterion then becomes the specialist terminology of each branch. It goes without saying that a large part of the legal terminology of the various branches of the law is universal. However, that is not true of terminology overall. Criminal law, for example, contains scores of terms that are almost never used in texts on the law of property or constitutional law. Equally, in some branches of the law legal terminology is mixed with non-legal technical terminology: for example, criminal law involves psychiatric terminology, while land law involves surveys, and tax law involves accountancy.

2.2 Related Linguistic Phenomena

2.2.1 Legal Jargon The style of legal language forms a spectrum that extends from the solemn cast of the Constitution to everyday legal texts, with their more laid-back style. This spectrum becomes complete with legal jargon. All professions develop their own jargon, which significantly strengthens internal relationships as well as the coherence of the group in question. Part of legal jargon is common to all sub-groups of lawyers (e.g., judges, advocates, civil servants). Nevertheless, other expressions also exist that are only used within the ranks of a single sub-group of lawyers, or even within a particular court or department (e.g., ministry, supreme court).

As to the origin of legal jargon expressions, this varies. For example, in the Nordic countries these expressions are often deformations of legal Latin terms, which illustrates the strength of Roman law traditions in the periphery of Europe. At the same time, it can be said that no clear borderline exists between lawyer-to-lawyer jargon and layman’s slang relating to legal phenomena. Certain expressions referring to legal circles, perhaps somewhat facetious in nature, are also used by the general public. To give a Polish example, an advocate in Poland is an “apostle” (apostoł), a “missionary” (misjonarz), a “parrot” (papuga) or – after the shape and colours of the advocate’s gown – a “green penguin” (zielony pingwin).3

Legal jargon often takes the form of abbreviations, notably in internal court documents. Replacing explanations as to legal institutions by the numbers of articles constitutes a particular genre of abbreviation. This involves a phenomenon known in all legal cultures. In the Soviet Union, this form of replacement was particularly common. Thanks to Russian memoirs and literature about the prison camps, the numbers of certain articles of Soviet penal and procedural legislation became notorious even abroad. To illustrate, in a recent work a Russian legal linguist mentions vypolnit’ 201-iu (выполнить 201 -ю, ‘doing a two-oh-one’, which means ‘disclosing case documents to the accused in line with Article 201’).4

2.2.2 The Counter-language of the Criminal Fraternity Linguists often characterise the language of offenders (the criminal fraternity) as a counter-language of legal language, notably that of criminal law.5 The heart of this counter-language is formed by prison slang.

Counter-language satisfies several needs. It strengthens relationships of groups of prisoners in relation to the “enemy”, that is, prison officers and the justice system in general. Thus, it forms part of the mental resistance, by virtue of which prison society maintains itself against “repression”, through linguistic means. It is symptomatic that, in the slang of Finnish prison officers, the word “rat” (in Finnish rotta) means “prisoner”, whereas in prisoners’ slang this word has the sense of “grass” (informer). At the same time, prisoners’ counter-language operates as a secret code, rapidly-changing, and largely unknown to the prison officers. It is also very much about linguistic “fireworks” that lightens the overwhelming burden of the prison atmosphere. As with slang in general, the frequency of synonyms is typical of prisoners’ slang. For example, in Finland empirical research found that prisoners have around 70 expressions to describe a police officer, and about 30 expressions to describe imprisonment.6

In the major languages, dictionaries exist of the counter-language of offenders – even some bilingual dictionaries on the subject are available. One illustration is Jean-Paul Brunet’s Dictionnaire de la police et de la pègre: américain–français français–américain / A Dictionary of Police and Underworld Language French–American American–French] (2nd ed. 2000). Today, one useful information tool on offenders’ – and police officers’ – argot is the Internet. There you can find, searching under police slang, a large number of Anglo-American, as well as French, lexicons of this kind (some of them bilingual).

3 Legal Linguistics as a Discipline

3.1 The Beginnings of Interest in Legal Language

In the modern sense, legal linguistics is a discipline that has only recently become established. However, legal language has aroused interest for thousands of years, from various angles. Law is necessarily bound to language (notably in matters of legal interpretation), and in that sense legal language has existed as long as the law. In certain contexts, the language aspect of law dominates: legal translation, legal lexicography, and legal rhetoric. In ancient times, the goals of interest in legal language were mainly practical.

Indeed, legal translation has left a particularly long trail behind it. The first legal text translated from one language to another, and which has survived until today, is the peace treaty in two languages between the Egyptians and the Hittites, dating from 1271 B.C. There followed innumerable legal translations, as much in the international sphere as for domestic needs of various States. A famous example is the Corpus juris civilis, first translated into Greek and later into many other languages.7 In medieval times, legal translation focussed around Latin: texts were translated from different vernaculars into Latin and from Latin into the various vernaculars.

Legal research science goes back to Rome and, as to research methods, to ancient Greece. This involved creating a conceptual system of law,8 which presupposes clarifying connections between specific legal concepts. That meant having to define the terms expressing the concepts. This task led to compiling legal lexicons. The first...