CHAPTER 1 THE HERITAGE OF LEGAL LATIN IN EUROPE In the past centuries, Latin played the role of a common legal

language which was applied across the boundaries of local law. It also can be called the mother tongue of European cultures because it has influenced the development of all major languages. This state of affaire began when Roman forces conquered a great part of the European territory. By means of Roman soldiers, administrators, settlers, and traders the Latin language was carried throughout Europe. Sicily, Sardinia, Corsica and the southern and eastern parts of Spain had been brought under the Roman control until the end of the 3th century BC. The expansion continued until, with Trajans conquest of Dacia , the Roman Empire reached its greatest extent, including Britain in the far west and the Hellenistic kingdoms in the east. The consequence was that a common civilization, varying little from country to country, was developed. After the collapse of the Roman Empire in 467 AD, Latin did not lost its influence. During the Middle Ages, in the Renaissance and in the Reformation period, Latin was used as the language of church, education and scientific realms. Communication between nations was also conducted in Latin language. The place of Latin in the history of the development of the law in European countries is also notable. The importance of Latin as a legal language may be traced back to 450 - 451 BC, when the Twelve Tables were created. The Twelve Tables - was the ancient legislation that stood at the foundation of Roman law, the inspiration for many legal systems. The Law of the Twelve Tables formed the centerpiece of the constitution of the Roman Republic. (www.wikipedia.org) 1.1 The Importance of Roman Law in European Cultures The expression Roman Law designates, in the proper meaning of the words, the legal system developed in the Roman Empire and which left his prints on all systems of law. This influence was more profound in the countries of continental Europe and was extended as far as the Nordic countries and British Isles. 7

Initially, Roman law was primitive and formal in character. With the development of the profession of jurisconsult, the Roman Law rose to a very high level from the technical legal point of view. The high point of this work occurred during the first three centuries AD, when was born the jurisprudentia, Roman legal science. (Mattila, 2006: 124) In Western countries, Roman law disappeared as a coherent legal system along with the fall of Rome. None the less, it was maintained at a high level in the Byzantine Empire, which preserved the cultural heritage of Ancient Rome. The Roman Law is used nowadays as a common denominator of the legal orders in the countries of Europe. Even some non-European countries adopted their legal culture from Europe. For instance, The Civil Code of Brazil contains a total of 1.807 articles; some 800 of these come directly from Roman law. (Xavier 2001: 141142) According to Mattila (2006: 126), the lawyers of Europe and those from countries influenced by the law of continental European countries speak the same conceptual language, independently of their ordinary languages. Despite the fact that the British legislation, known as the common law, is not based on Roman law, its influence can likewise be seen there. This Latin influence appears at the level of legal concepts and at the level of language. The English lawyers who gave a logical system to the common law were trained in Roman law. Thus, Latin became the oldest language of systematic description of the common law. This background helps us to understand the specifics of Latin as used today in the frame of English law. (Sacco 1999: 177) 1.2 A Common Language for Legal Systems After the fall of Rome the capital of the Roman Empire was moved to Constantinople and Latin became the language of State power. The great Byzantine codification of Roman law, the Corpus juris civilis, dating from the reign of the Emperor Justinian, was compiled in Latin. It is understandable that the use of Latin was fairly quickly abandoned in Byzantium. Its place was took by Greek, an even older language, enjoying a cultural status at least equal, if not superior, to Latin. By contrast, in the regions that had belonged to the Western Roman Empire, no national written languages existed as far. For this reason, the

laws were drawn up in Latin. Even after the birth of new national languages, the authority of Latin as legal language remained superior. The transition from Latin to the new national languages was particularly slow in the matter of law. Throughout the Western lands, legal works were written in Latin until the 19th century. In central Europe the status of Latin was very strong by virtue of the reception of Roman law and the influence of academic authors. In the Kingdom of Naples, Italy, Latin was still being used in court minutes and other documents in the middle of the 18th century, while in Piedmont judgments were handed down in Latin until 1789. (Waquet 1998: 114.) The Latin epoch also lasted long in some regions of the Austrian Empire. In Hungary and Galizia ( the South part of Poland), for instance, in the 19th century Latin still formed an instrument of protection against the expansion of German. In this two countries Latin had the status of official language, with the same claim as German. When the Emperor of Austria tried to replace Latin with German in Hungary, the inhabitants of that country rejected the order and chose to keep the former practices. Thus, Latin preserved its status of an official language of Hungary until 1844. (Waquet, 1998: 120) In Middle Ages, Latin occupied an important position in the legal systems of Nordic countries, although Scandinavian languages have a tradition in legal dealings going back to pagan times. In Denmark, royal ordinances were promulgated in Latin. In Sweden, the language of legal documents was Latin from the end of the 13th century, remaining so until the middle of the 14th century. In Finland, which then belonged to the Kingdom of Sweden, Latin was the official language of the written laws during the 14th century. Only in Norway the position of Latin always remained weaker. ( Tengstrm 1973: 2325.) To a large extent, Legal Latin formed the stylistic basis of Nordic legal languages. This basis developed gradually from the end of the 14th century. Likewise, a large number of borrowings, still in use, is based on Latin. In international relations, Latin preserved its status as sole language of international negotiations and treaties until the 17th century, when French began to oust it. Despite the rise of French, Latin remained the language of inter-State relations anf of

records. Until the beginning of modern times, court minutes, records of administrative authorities, and notarial acts were drawn up in Latin. 1.3 Latin in Modern Legal Languages Over recent centuries, modern national languages have foreclosed Latin as the active language of lawyers. Although Latin is no longer the language of legal science or of legal practice it has left important traces in nowadays legal languages. The style of modern legal languages still reflects the influences of old legal Latin. On the other hand, a large proportion of the vocabulary of today legal languages comes from the legal Latin used in Antiquity, the Middle Ages, or the beginning of modern times. In the Romance languages and English, the vocabulary coming from legal Latin appears in quasi-original form, a little modified. In legal languages of other European countries (German, Greek, Slavic, Nordic languages) also can be found a great number of words of Latin origin. In these languages can likewise be found many loan translations, also known as calques (Latin words used as a structural model to form new words in modern legal languages). It also has to be remembered that legal Latin has often given a new meaning to a word already existing in a modern language (the borrowed meaning of words). (Mattila, 2006: 136) The Latin heritage has been adapted to the rules of word formation and orthography of each language. Mattila (2006: 146) sustains this affirmation by giving as an example the Latin word codex. He stands out that the word appears in modified national form throughout Europe: code (English, French), codice (Italian), cdigo (Spanish, Portuguese), kodeks (Polish), kod/ kodeks/ kodex (Scandinavian languages) etc. Latin elements also appear as such in modern legal languages. Modern texts contain direct Latin quotations: terms, expressions, and maxims. According to Mattila (2006: 136), Latin quotations are used as a stylistic tool; an aesthetic medium. This explains lawyers need to impress the reader or the audience. According to Ernst Kramer, Latin quotations form part of the beloved folklore of lawyers that law students rapidly make their own, even if Latin no longer forms part of subjects taught. (Kramer 1995: 141142)

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Traces of legal Latin are also evident in some non-European legal cultures which, during the colonial period or through attraction towards the West, have borrowed a part of Western law. An example is Indonesian legal language. Under the influence of legal system of the Netherlands and, more recently, from United States, authors use Latin expressions and maxims frequently. In some countries, especially in the Nordic ones, legislation and case law contain hardly any Latin quotations. By contrast, other countries use these quotations to a considerable extent. This is available for the common law countries as United States of America and United Kingdom. English and American judgments and other documents contain expressions such as: e.g.: erga omnes - in regard to all; inter alia - amongst other things; mens rea guilty intent; per diem - by the day According to professor Dennis Kurzon from the Haifa University, Latin quotations can have three different functions in the major legal languages: rhetoric, display functio, or expressing legal concepts. Rhetoric function In the European cultural tradition, expressions and maxims from the classical languages raise the level of the text and add splendor to it. This is likewise the case for legal science. The authors or the lawyers use a Latin conjunction, a Latin word or even a expression instead of one from their own language to captivate the attention. A such example is taken from a French article: ... Une premire impression serait quelles conviennent des lois qui se veulent novatrices. Sed contra les rformes du droit de la famille de la Ve rpublique nont t precedes daucune.... (Rouhette 1999: 49.) Such rhetorical use of Latin is common even among lawyers from countries far removed from the heart of Europe. The Display Function Legal Latin maxims can often be found on the walls of courthouses. Likewise, the seals of judicial authorities are often decorated with such maxims. This is also the case for

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the emblems of public organs and law societies or bar associations. This is what could be called the display function of the Latin language. Such an example is the emblem of German notaries: Lex est quodcumque notamus. ( Our mark gives the force of law) . (Bertzel 1993: 775) Another example of the display function of legal Latin is the decoration of the new courthouse of the Polish Supreme Court, inaugurated in 1999. Some of the courthouse walls are flanked, on the outside, by a row of columns. These columns should be decorated with inscriptions that indicate the ideology and use of the building. For example, the first column of the institutions bears a maxim against corrupt officialdom: Qui munus publice mandatum accepta pecunia ruperunt, crimine repetundarum postulantur (Those who violate their public responsibility of office by taking money, are liable to criminal charges of corruption) (Mattila 2000: 281282.)

The display function of Latin also has a high profile in countries on the periphery of Europe, such as Finland. A good example is an old seal of the Court of Appeal of Finland: Sigillcvm svpremi ivdicii magni dvcatvs (the seal of the Court of Appeal of Finald) (Mattila 2000: 282.) Legal Concepts and Principles Even after Latin was abandoned as the lawyers living language, it has often been used to express legal concepts with precision in situations where a term from a new legal language was uncertain. Today, lawyers who seek to guarantee the international understandability of legal texts use Latin. For example, in Article 33, paragraph 2, of the arbitration rules of the United Nations Commission on International Trade Law appears the expression ex aequo et bono (according to the right and good). The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if (). Other examples of Latin expressions often used in these contexts include aequitas mercatoria (commercial fairness) and bona fides (good faith). (Meyer 1994: 14)

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Latin can be used in the countries where are find diverse legal traditions to avoid misunderstandings. Here, Canada is a proper example. The Canadian law is influenced by both common law and law of French origin. Quebecs Code Civil has been translated into English, as foreseen by the countrys linguistic legislation. The preamble to the Code in French appears in the following terms: Le code est constitu dun ensemble de rgles qui, en toutes matires auxquelles se rapportent la lettre, lesprit ou lobjet de ses dispositions, tablit, en termes exprs ou de faon implicite, le droit commun.(...). As for the English version, this is formulated as follows: The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune (...) The use of the Latin expression in the English version is explained by the fact that the literal translation of the term droit commun would be common law, a term quite misleading in this context: the common law refers to law of English origin. Professor Ernst Kramer from Basel University appreciates that Latin maxims and expressions have a major characteristic which make them very important for each legal system in Europe and in the world: they easily rose the principles which they sustain at the international level. (Kramer 1998: 141-158) 1.4 The Risk of Misunderstanding Latin The use of Latin quotations varies from one legal culture to another, especially between common-law countries (England) and Continental Europe. Understanding Latin expressions and maxims is often darkened by the fact that their appearance can vary. Identifying expressions and maxims is made difficult by several factors which result, amongst other things, from the fact that Latin is a synthetic language. These difficulties would originate in the distinction between singular and plural of nouns, in cases, in prepositions or synonyms, in word, and in incomplete or elliptical. (Mattila, 2006: 155) e.g.: pactum pacta, nudum pactum nudo pacto, argumentum ad absurdum
argumen tum in absurdum, compositum mixtum mixtum compositum, lex loci regit actum locus regit actum.

The Latin expressions and maxims appearing in legal documents cause difficulties also from the standpoint of lawyers. That is why the authorities and language specialists 13

from various countries have been determined to limit the use of Latin in judgments. An example is the circular from the French Ministry of Justice issued on 15 September 1977. This circular recommended that higher and lower courts should replace the majority of Latin terms and other expressions with the corresponding French terms.

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