8 Legal Language: History

Legal Language: History

H E S Mattila, University of Lapland, Rovaniemi,

Helsinki, Finland

� 2006 Elsevier Ltd. All rights reserved.

This article makes visible the history of legal languagethrough examples taken from various Europeantongues, some of them major, some minor. A fewreferences are also made to non-European tongues.Because legal terminology always reflects the concep-tual system of the law, it is impossible to avoid entirelydealing with the history of legal systems. The follow-ing presentation concentrates on modern history (tothe present), but some examples date back to theperiod of archaic law and to Roman and Medievaltimes. In order to treat logically the complex andheterogeneous materials in the field, the article isdivided into three parts: (1) the rivalry betweenmajor legal languages, (2) legal language and linguis-tic interaction, and (3) the intelligibility of legal lan-guage. Many interesting aspects (e.g., the transitionfrom oral language to written language in law)are found elsewhere (see Language of Legal Texts).

Rivalry between Legal Languages

Language is power, and legal language, used by stateadministration and by law courts, is an instrument ofpower par excellence. This is why all strong rulershave aimed at spreading their own tongue intointernal and international legal use. The Romanssucceeded very well in spreading Latin, and thedominance of legal Latin continued in Europethroughout the Middle Ages, mostly due to the ad-ministrative needs of the Catholic Church. After thedisplacement of Latin in legal activities at the begin-ning of modern times, a struggle between modernlegal languages begun.

Legal Latin and the Vernaculars

The Medieval Dominance of Latin The great com-mon denominator of all European legal cultures isRoman law and its language, Latin, used in law irre-spective of the language of the people. After the col-lapse of the Western Empire, this was first visible inthe former eastern parts of the Roman Empire. Theearly Byzantine Emperors used Latin in their admin-istration, and the great codification of Roman law ofEmperor Justinian, later called Corpus juris civilis,was essentially edited in Latin. In the course of time,the Byzantine administration and law became entirelyGreek even though Latin loan words remained inlegal use.

It is easy to understand that Latin was quite quicklygiven up in the Byzantine Empire because it had tocompete with an older cultural language, Greek, thathad a status comparable, if not superior, to Latin. Incontrast, in the regions of the defunct Western Empirethere were, in the beginning, no written languagesbased on the vernaculars. Even much later, after thecreation of new written languages, the authority andthe use value of Latin was still overwhelming. Latinwas the original language of Roman law, researchedin every university and directly or indirectly appliedby the courts of many countries. Simultaneously,Latin was needed in administrative matters crossinglinguistic borders. Latin was particularly the languageof the central administration of the Catholic Church,used in its legal order, canon law, which was largelybased on Roman law. It is worth noticing that Latinwas also one of the old languages of the common lawof England, in spite of the native origin of this law. Butthe dominance of Latin was not absolute in the MiddleAges. On the coasts of the Baltic Sea, for instance, ithas to compete with Low German in legal activities.

Switch over to National Languages Generallyspeaking, the switch from Latin to the national lan-guages of the various countries was very slow in thefield of law. This switch was especially slow amongacademic jurists. In many European countries, the17th and the 18th centuries were still part of thegolden age of legal literature in Latin, and importantlegal works in Latin were published even later. Thiswas in part due to the rules of the universities.

In the field of international legal affairs, Latin wasthe language of negotiations and treaties until the17th century, when French started to replace it. Thisreplacement was due to the strengthening of France asa great power in relation to the Holy German Empireand to the Pope, both having usurped Latin as theirlanguage. There was much resistance (by the GermanEmpire and other countries) to the use of French indiplomacy and international law: Giving up Latinmeant at the same time giving up the principle oflinguistic neutrality and equality in the relationsbetween states.

In the field of internal legal matters, the records anddecisions of law courts, administrative authorities,and notaries were often drawn up in Latin in theMiddle Ages, and, in some countries, they still wereat the beginning of the modern era. This also appliedto statutes. Differences between individual countrieswere, it is true, considerable. In some countries, thevernaculars were used in addition to or instead ofLatin. In the royal law courts of France, for instance,

Legal Language: History 9

French had already become the language of theproceedings at the end of the Middle Ages.

In central Europe, but also in other regions, par-ticularly in Italy, the position of Latin as the languageof legal activities was strong until the 18th and 19thcenturies. This was due to Humanism, to the recep-tion of Roman law, and to academic traditions. Ifcanon law is not taken into account, Latin was usedin practical legal activities for the longest time (untilthe middle of the 19th century) in certain parts of theAustrian Empire: in Croatia, Hungary, and southernPoland (Galicia). In Hungary and Poland, it wasa safeguard against the Germanization of theseregions and, in Croatia, paradoxically, against theMagyarization of the country.

Today, Latin still is the authentic language of thelegal system of the Catholic Church, canon law. Thejurisdictions of this Church used only Latin until1917; the vernaculars were then introduced into ec-clesiastic legal matters. Even though the Codex juriscanonici (1983) now in force also exists in the verna-culars, the sole Latin text of this codification is legallybinding.

Rivalry between Vernaculars (Modern LegalLanguages)

Rivalry within State Boundaries After the displace-ment of Latin, the rulers of the new national statesaimed at stabilizing their superiority in relation tolocal power centers by different means, among othersby the use of a single language. France is a goodexample of this. French, originally a Romance dialectof Ile-de-France, was made the official language ofthe kingdom by a number of royal ordinances at theend of the 15th century and the beginning of the 16thcentury. In addition to eliminating Latin, these ordi-nances, among other things, put an end to the use ofOccitan (Languedocien) in the courts of law of theMidi. In addition to language legislation, the found-ing of new high courts had a key role in turning therecently conquered territories of the kingdom French.Modern examples are numerous, for example, the useof legal Russian in the Soviet Union.

Sometimes there have been – and still are – cases ofbitter rivalry between two variants of a same lan-guage in legal activities. Greece, in particular, isworth mentioning. The official language, and conse-quently also the legal language, of this country was,from the 19th century until the fall of the militaryjunta (1974), Katharevusa, a variant of ModernGreek that conserves important elements of the clas-sical language. Attempts (also in law) to replace thisvariant with Demotic Greek, which is closer totoday’s spoken language, were made from the begin-ning of the 20th century. They succeeded only in the

1980s after a period of approximately 10 years ofbitter language struggle. In Norway, a similar compe-tition between two language variants (one, Bokmal,based on Danish, a cognate language; the other,Nynorsk, based on West Norwegian dialects) hasbeen going on for over 100 years.

International Rivalry In the modern era, Europeanlegal languages began to spread to other continentsdue to colonial expansion. This was particularlythe case of both the Americas, where Spanish, Portu-guese, French, and English were used in legal activ-ities. Changes in the possession of colonies, forexample, in Quebec, caused different sorts of rivalry.An important part of the struggle between great legallanguages has always taken place in the field of inter-national relations: diplomacy and treaties betweenstates. In this field, the rivalry between French andEnglish over the past few centuries has been of globalimportance. After having gained the position of theleading great power in the 17th century, France spreadits language into many fields, particularly into inter-national relations. After Latin, the French languagedominated this field for a long time.

This dominance started to break down during thesecond half of the 18th century and more clearly inthe beginning of the 19th century, after the defeat ofNapoleon Bonaparte. However, the position ofFrench as an international language of diplomacyand treaties did not become really threatened untilmuch later, in the 20th century, due to the explosiveincrease in the use of English in this field.

The 20th century may be characterized in interna-tional legal activities as a period of transition frommonolingual French dominance to the bilingual use ofFrench and English and more recently to the monolin-gual English dominance. Originally, French was theleading working language of the European Commu-nities (now the European Union); today both Frenchand English (and, less frequently, German) are used asworking languages in the institutions and organs ofthe European Union. The Court of Justice excepted(French is the sole language of internal working of thecourt), some of these bodies use mostly English, andthis tendency is strengthening.

Legal Language and Linguistic Interaction

Interaction between Legal Language andCommon Parlance

The Two-Way Traffic between Legal and CommonVocabulary After social or political changes in dif-ferent times, new vernaculars have been brought intopublic use. It has then been necessary to create legallanguages based on these vernaculars, for example,

10 Legal Language: History

the creation of the Romance legal languages inthe Middle Ages. Later examples are numerous. InFinland, Swedish was the sole official language of thecountry until the second half of the 19th century.When Finnish also gained official status in Finlandat the end of that century, legal Finnish had tobe created: a great number of common parlancewords were given exact legal definitions, whichmade possible their technical use in law. Even morerecently, democratization processes have resulted tothe creation new legal languages. The best example,perhaps, is the Republic of South Africa where therenow are 11 official languages, most of them African(Zulu, Xhosa, Sesotho (Sotho), etc.) used in adminis-trative and judicial matters. A great deal of time haslately been spent on developing administrative andlegal terminology for these African languages.

As well, the creation of a new legal language hasoften been an important factor in establishing thewritten language of the country, in general. This isclearly shown by the development of written Frenchat the end of the Middle Ages. A high court, Parlementde Paris, originating from the King’s Council, startedits activities as a judicial organ in the middle of the13th century. It worked in French from the very be-ginning, constantly creating new words for its pur-poses. Gradually, a great number of these words weretransferred to the written language of other fields andalso to common parlance. Some orthographic prac-tices of French are also derived from the old judiciallanguage. In this way, the language of law has playedan important cultural role in many countries.

Conservatism and Radicalism in the History of LegalLanguage Having been established, legal languagehas normally been conservative: Its development hasbeen slower that that of the written language in gen-eral. Therefore, the legal language, especially legalterminology, sometimes is almost a language muse-um. This is clearly demonstrated by legal English. Thesituation in Greece (mentioned previously), on theother hand, shows that the language used in legalactivities may be brought closer to the common par-lance if the distance between written and spokenlanguage grows too much.

Occasionally conservatism, the typical feature ofthe language of law, has changed into a radical refor-mation of legal terminology. This has happened inconnection with social crises and revolutions. Forexample, during the French Revolution, the old legalterminology expressing feudalism was replaced byterms expressing the values of the bourgeoisie. An-other good example of this kind of radical change interminology occurred during the first years of theSoviet state, when the terminology of legal Russian

was entirely reformed because the Bolshevik leader-ship felt that it was not in harmony with the newspirit of the time. For instance, the term prestuplenie‘crime’ was replaced by the expression sotsialno opas-noe deistvie ‘socially dangerous activity’. However,this change was only temporary. Later, legal Russianagain became more conservative and numerous pre-revolutionary terms were restored, and, during thelast decades of the Soviet regime, Russian legallinguists emphasized that the language of law mustbe stable and that no linguistic experiments should beallowed in statutory texts.

Interaction between Legal Languages

The Transfer of Legal Expressions from Latin toModern Languages During the long transition peri-od from legal Latin to modern legal languages, muchof the Latin legal vocabulary was borrowed by theselanguages. In the Romance languages and in English,Latin words were often adopted with minor ortho-graphic changes. In other languages (German, theScandinavian languages, the Slavic languages, etc.),loan translations were more common. Everywhere,many loaned senses of Latin words were taken intothe modern languages. In addition to these borrow-ings, a great number of direct Latin citations con-tinued to be used in modern legal languages. Duringthe first centuries of the transition, these citationswere so common that legal texts often were a hybridlanguage in which Latin and the modern tonguealternated. This is visible even today. According toone author, Latin terms and maxims belong to the‘‘beloved folklore’’ of the lawyers.

Borrowings between Modern Legal LanguagesLatin has not been the sole source of legal loan words.The French language has also been particularly im-portant during several epochs. Because French wasfrom the 13th century until the end of the 14th centu-ry (and also partly into the 15th century and evenuntil the 18th century), one of the languages of law inEngland, a huge number of French words were trans-ferred into the English legal vocabulary (most beingultimately derived from Latin). Similarly, after therise of France to the position of the dominant greatpower in Europe in the 17th century, several legallanguages adopted many of the French terms frompublic and private international law. Many of thesewere direct citations: lettres de creance, renvoi, ordrepublic, and so on. In the very recent history, a newwave of French lexical influence is perceivable in theactivities of the European Union. For instance, theterm acquis communautaire has been adopted in allthe languages of the member states, either in the form

Legal Language: History 11

of a direct citation, of a loan word, or of a neologismbased on the French expression.

The end of the 19th century was the golden age ofGerman legal science, having great influence all overEurope, even in North America. Due to this influence,a number of German citations and loan translationsrelated to the activity of different schools of legalscience, among other things, spread into internationaluse: Begriffsjurisprudenz, Pandektenrecht, transla-tions of Rechtsgeschaft, and so on.

In the 19th and 20th centuries, English became themost important language of international commerceand commercial law, also used by non-Anglophonecontract parties. Much of the English terminology forcommercial law was borrowed by other languages.During the past few decades, the same phenomenoncan be seen in other modern fields of law, due tothe influence of American legal institutions in allcountries.

Borrowings between European and Non-EuropeanLegal Languages Borrowings between Europeanand non-European legal languages had alreadyappeared in antiquity. With the spread of Christiani-ty, loan words from Hebrew were transferred intoEuropean legal languages. Later on, some wordsof Arabic origin were adopted into these languages,for example, avarie and douane in French (throughItalian). In the opposite direction, the influenceof Greco-Roman legal thinking on the formation ofearly Islamic legal concepts, although disputed, isprobable.

In the modern era, European legal languages havestrongly influenced a great number of non-Europeanlegal languages. The tongues of the colonial powers(Dutch, English, French, Portuguese, and Spanish)were regularly used in the administration of theirpossessions in the Americas, Africa, and Asia and inthe legal proceedings there. When these possessionsbecame independent states and their legal languageswere created and developed, the terms expressingEuropean legal concepts were direct citations, wordsof foreign origin, or loan translations from Europeanlanguages. In Indonesia, for instance, numerousMalay (Indonesian) law terms were created on thebasis of legal Dutch: kasasi ‘cassation, annulment’,eksekusi ‘enforcement’, and so on.

Lexical borrowing from non-European legal lan-guages into European legal languages has happenedless frequently in recent history. However, loan wordsare frequent in cases in which European legal lan-guages are used in non-European context, for exam-ple, in legal texts in which Islamic law is describedor applied in English or French. Indian treatises ofIslamic law are teeming with terms such as hiba,

khula, and mutwalli. The same can be said aboutNorth African treatises in French.

Borrowing of Style Features between Legal Lan-guages Many stylistic features in European legallanguages are derived from the style of MedievalLatin documents, often drawn up by the administra-tion (the judiciary included) of the Catholic Church.Indeed, the importance of papal curia in the develop-ment of coherent administrative Latin in the MiddleAges was crucial. Its language strongly influencedsecular chanceries, courts, notaries, and other organsall over Europe. The language of the administrationand the judiciary of the Catholic Church was highlydeveloped. It was by far technically superior to thelanguage of secular organs. Therefore, it became aparagon to be imitated by these organs. Some of thestylistic features of Medieval legal language have per-sisted for a very long time, for example, the use oflong and complicated sentences. Language specialistshave to fight against this stylistic feature even today.

In certain respects, the styles of the European legalcultures have grown in different directions, due todivergences in legal history. It is particularly strikingthat there are, in various countries, large differencesin the drawing up of legal documents. The best exam-ple is the decisions of high jurisdictions: the styleof these decisions (structure, references to othertexts, length of sentences, formulation of votes, etc.)is strictly bound by the tradition of the particularcountry.

The Intelligibility of Legal Language

The Tradition of Obscurity

Throughout history, legal language has been difficultto understand. This is self-evident when a languagetotally foreign to the population has been used, and itis also clear when legal language has been spiced witha great number of words of foreign origin. But, inaddition, lawyers have traditionally used complexexpressions and sentences in their documents due tothe rituality and technical refinement of the law.

Use of Foreign Languages and Terms of ForeignOrigin In all times, languages not known by thelocal population have been used in law and adminis-tration because of the interests of the central power,which was frequently multiethnic. Simultaneously,the use of such languages has been supported bythe growth of legal professionalism. The Medievallawyers had a corporative interest in acquiring andholding the monopoly on knowledge in legal mat-ters. This was guaranteed by their use of languagesincomprehensible to ordinary people.

12 Legal Language: History

As already pointed out, the most important cipherthroughout Western legal history has been Latin. Inthe Middle Ages, legal proceedings were often carriedon in Latin even when the accused was ignorant of thislanguage, and even later, in early modern times, courtdecisions were sometimes written in Latin. Hence, theapplication of the law was incomprehensible to ordi-nary people – and, due to this, impressive and fright-ening. In addition to Latin, other foreign tongues wereused as well. In Medieval England, law French wasone of the legal languages, and, to take a more recentexample, the judiciary of Finland used only Swedishuntil the second half of the 19th century. Even afterthe transition to using the language of ordinary peo-ple in administrative and judiciary matters (and eventoday, this has not happened everywhere), the intelli-gibility of legal language has been – and still is –hindered by legal terms derived from foreign lan-guages, especially from those that were used in earlierperiods (Latin, law French, etc).

Rituality and Technical Refinement The mainte-nance of the authority of the state has always beenone of the major functions of the law. In this purpose,the state has throughout the history emphasized thesacredness of the law, and often connected it withmagical elements. Ritual language has been used(e.g., in oaths) to strengthen this effect. Even today,this is clearly discernible in legal English: repetitionsand binary expressions are typical of this language,making legal texts complicated and often difficult tounderstand.

In more developed societies, the complexity of legallanguage was increased by the birth of the legal pro-fession and the growth of the technicality of the law,connected with the demands of exactitude and legalsafety. The development of the Latin notary institu-tion, first in Italy and then in other countries, in thebeginning of the 2nd millennium had this kind ofeffect. The legal documents drawn up (in Latin) bynotaries were more technical and complicated thanearlier documents. In England, common law grew ascase law. The development of this kind of law re-quired subtle distinctions between different cases,that is, between their facts and circumstances. Theconceptual system of common law therefore becamevery complicated. This system, again, required a com-plex terminology, and within this framework eachterm had to be interpreted in a narrow way. Simulta-neously, the completeness of common law, as finelybuilt case law, presupposed that detailed situationcombinations were taken into account in all legaltexts. As a consequence, common-law statutes andcontracts have always been – and still are – verycomplicated and verbose.

The Growth of the Concern for the Quality ofLegal Language

All the phenomena mentioned so far – the strengthen-ing of the authority of the law by using languagerituals, the complexity of the law due to its growingtechnicality, and the use of terminology of foreignorigin – have made legal language difficult to under-stand even when it has coincided with the tongue ofthe people. Therefore, demands for simplifying legallanguage have been made throughout the ages.

However, the first serious measures to create plainlegal language were only taken during the Enlighten-ment (18th century). This took place mostly in theGerman language area. The famous Prussian codifi-cation of 1794, Allgemeines Landrecht fur die preus-sischen Staaten, is a major monument of the plainlanguage planning of the epoch. This codificationaimed at stylistic clarity. It also avoided words offoreign origin: Such words are much less frequent inthe Allgemeines Landrecht than in earlier Prussianstatutes. The concern for the quality of legal languagein the Enlightenment was down-to-earth but preju-diced. In Hungary (then a part of the Austrian Em-pire), for instance, an intelligibility test was in use:Statutory drafts were shown to an ordinary subject,unhesitatingly called buta ember ‘stupid man’, inorder to see how much of them he could understand.These Enlightenment ideas became important in otherparts of Europe (e.g., Russian) as well.

The ideology of the Enlightenment died in Europeat the beginning of the 19th century. This was alsovisible in the language of law. Germany is an illustra-tive example. It is true that in this country more andmore words of foreign origin were eliminated fromthe legal language, partly due to the ideology ofGerman nationalism. However, statutes were nolonger written for ordinary citizens but, rather, forlegal professionals. The great codification of the endof the 19th century, Burgerliches Gesetzbuch (1900),still in force, is in appearance written in clear German(it includes very few words of foreign origin), but itsterminology gives expression to a very complicatedconceptual system. Furthermore, the legal rules in thiscodification are often formulated in an abstract waythat makes them hard to understand.

After the Enlightenment, legal language seems tohave become obscure everywhere (although in differ-ent ways). It is therefore understandable that a newconcern for the quality of this language has grown upat the present time.

See also: Language of Legal Texts; Language Politics;

Latin; Law and Language: Overview; Legal Translation;

Pragmatics: Linguistic Imperialism.

Legal Pragmatics 13

Bibliography

Brunot F (1966–1979). Histoire de la langue francaise desorigines a nos jours I–XIII (rev. edn.). Paris: ArmandColin.

Eckert J (ed.) (1991). Sprache – Recht – Geschichte. Heidel-berg: C. F. Muller Juristischer Verlag.

Fiorelli P (1994). ‘La lingua del diritto e dell’ammini-strazione.’ In Serianni L & Trifone P (eds.) Storiadella lingua italiana. Torino: Giulio Einaudi Editore.553–597.

Gandasegui J (1998). ‘Historia del lenguaje judicial.’ InBayo Delgado J (ed.) Lenguaje judicial. Madrid: Consejogeneral del poder judicial. 143–248.

Gemar J-C (1995). Traduire ou l’art d’interpreter. Langue,droit et societe. Elements de jurilinguistique 2: Applica-tion. Sainte-Foy, Canada: Presses de l’Universite duQuebec.

Hattenhauer H (1987). Zur Geschichte der deutschenRechts- und Gesetzessprache. Hamburg: JoachimJungius-Gesellschaft der Wissenschaften.

Legal PragmaticsB Kryk-Kastovsky, Adam Mickiewicz University,

Poznan, Poland

� 2006 Elsevier Ltd. All rights reserved.

A discussion of the intersection of two crucialdomains of human activity, language and law,requires an interdisciplinary approach, which is theunderlying assumption of this article and one of themain tenets of pragmatics, the study of language inuse. The language of the law is not only notorious forits lexical and syntactic complexity, which has givenrise to criticism (e.g., Mellinkoff, 1963; Danet, 1980,1985; Lakoff, 1990), but it also has certain pragmaticpeculiarities. The present study on legal prag-matics will provide a pragmaticist’s account of legalissues rather than a lawyer’s view of the linguisticproblems he or she faces. Since the direction of fit isfrom language to law and not from law to language,the assumption is that the aim of legal pragmatics isto construct an interface between the two domains bysearching for pragmatic peculiarities in the languageof the law. Thus, this article will investigate theinstantiations of selected pragmatic concepts in thelanguage of the law. The starting point of my analysisconsists of a few observations on the topic made byothers before.

Hiltunen R (1990). Chapters on legal English: aspects pastand present of the language of the law. Helsinki:Suomalaisen tiedeakatemian toimituksia.

Mattila H (ed.) (2002). The development of legal language.Helsinki: Talentum Media.

Mellinkoff D (1963). The language of the law. Boston andToronto: Little, Brown and Co.

Pigolkin A S (ed.) (1990). Iazyk zakona. Moscow: Iuridi-cheskaia literatura.

Polenz P von (1991/1994/1999). Deutsche Sprach-geschichte vom Spatmittelalter bis zur Gegenwart(3 vols). Berlin: Walter de Gruyter.

Schoek R (1973). ‘Neo-Latin legal literature.’ In Ijsewijn Jand Kessler E (eds.) Acta conventus Neo-Latini Lova-niensis. Munchen: Wilhelm Fink Verlag. 577–588.

Tiersma P (1999). Legal language. Chicago and London:University of Chicago Press.

Waquet F (1998). Le latin ou l’empire d’un signe. XVIe–XXe siecle. Paris: Albin Michel.

Zilliacus H (1935). Zum Kampf der Weltsprachen imostromischen Reich. Helsinki: University of Helsinki.

1. The turn-taking system used in court is similar tothat of other institutional settings (e.g., classroomsor chaired meetings) in that it is more rigid andless flexible than the one operating in everydayface-to-face conversation (Levinson, 1983: 301).

2. The institutionalized character of the court isreflected in formulaic, if slightly archaic and stiltedlanguage (Lakoff, 1990: 94).

3. According to Danet (1985: 276), legal discourse isconcerned with ‘‘the nature, functions and conse-quences of language use in negotiation of socialorder.’’ Despite its formulaic character, legal lan-guage employs a wide range of registers. It canrepresent various styles, ranging from frozenthrough formal and consultative to casual.

4. Verbal interaction in court exemplifies variousquestioning strategies, which lend themselves toa pragmalinguistic analysis, since ‘‘courtroom dis-course is unilateral in that barristers enjoy a one-sided topic control of discourse’’ (Luchjenbroers,1997: 477). This control is a sign of power, a socio-pragmatic concept discussed in the section ‘Powervs. Solidarity’ below.

5. Kurzon (1995) emphasized the role of silence in trialproceedings, and his more recent analysis (Kurzon,2001) addressed the politeness of the judges. Heclaims that in formal language politeness may be