The Role of Latin in the Legal System
For centuries, Latin has been at the forefront of the legal world. The word "law" itself traces its origins to the Latin term "lex", and the Latin influence on modern law is undeniable. Roman law has left an indelible mark on our contemporary legal systems, with Latin being used in legal practices throughout the Middle Ages and up until today.
Latin has long been the lingua franca of all serious legal practitioners. There has always been a presumption that any educated lawyer must be well-versed in the language of Aeneas. Not only are there legal norms and traditions that take their names from the Latin language, like Ad hoc, in iure suum, in rem, usus fructus, and pro bono, but the vast corpus of professional literature created over the centuries has been written in Latin. If you wanted to delve into any substance of the law, it was necessary to be able to refer to any relevant text written in Latin. The vast literature cataloged over the years amounts to hundreds of tomes, and may prove to be utterly useless if you can’t understand the language.
Indeed, the influence of Latin on the law cannot be overstated. The influence of Latin on the legal system has also had a profound impact on the evolution of many modern languages, with similar French, Spanish, and Portuguese terms for many legal principles tracing their origins to their Latin counterparts. It has been said that learning legal language is a lot akin to learning a language of its own. In some ways this is true; many of the Latin variations we use today have become entrenched in legal language, and what may seem like a simple translation does not imply that the underlying concepts are similar.
Even for native Latin speakers, Latin phrases present a conundrum. In fact, some of the most famous lines even au courant Latins say for drollicus though they are entirely incomprehensible to native speakers of the language. It is not uncommon for those fluent in Latin to discover that a word’s usage in modern vernacular has transformed completely beyond recognition. What might have once been a familiar adverb could now be used as a verb or even as a noun .
Even though Latin was used as a standard reference for centuries, actual judges and juries preferred not to dispense justice based on abstruse phrases or concepts originating in documents long since passed. The common folk and experts alike have always turned to the practical and plain meaning of legal texts where possible, for good reason. Even judges of high rank often seem indifferent to Latin-based nomenclature when they dispense justice.
In the absence of any agreement between civil law and common law traditions, much of our modern legal jargon finds its roots in Latin. Words like confidential and prima facie are derived from the Latin language. For this reason alone, Latin is a highly important language in the legal profession today.
While generally not spoken on the streets, Latin is still the lingua franca of the judicial class. Common phrases such as in camera and mens rea were once fittingly used to describe secrecy and guilt respectively. The meaning of these words is firmly established and rarely challenged by litigation. Usage in daily life may not be consistent, but Latin terminology still provides certainty in the law.
Latin has also been an important reference in the realms of philosophy, religion, science, art, and architecture. While different from other languages in many respects, Latin still influences a wide variety of fields today. Latin vernacular still provides reference for different professions and vernacular from medicine to aeronautics still rely on Latin roots.
Finally, some may wonder why Latin would be selected instead of other languages with more common usage today, such as French, German, or even Chinese. One reason may be that these modern languages have regional boundaries, while Latin has had more universal acceptance across countries and cultures. The continued prevalence of Latin pre-pejoratively known as "the language of the lawyers" further legitimizes its position as the most common legal standard.
In short, Latin has been, and will continue to be, highly relevant in the field of law. The historical use, coupled with the de facto need of its continued reference in the twenty-first century will make Latin continue to be an important language in the legal field for years to come.
Habeas Corpus: Security by the Law
One Latin legal term that continues to have a significant and widely known place in modern legislative language is habeas corpus. As is the case with many other Latin legal terms, the phrase originates from England and has survived centuries of use. The phrase habeas corpus translates as "you should have a body." Although this English translation may sound somewhat silly outside its context, the term refers to a very real and essential component of a fair legal system. Habeas corpus is enacted when a judge requires a custodian of an individual to bring that person to court to explain why that individual was deprived of his or her freedom. The terms of habeas corpus translate into Latin as "that you have the body," and judges will use it when issuing a writ of habeas corpus requiring a custodian to bring a prisoner before him or her. An example of how habeas corpus might be used in a modern system of law is as follows: Assume that a police officer has violated a person’s constitutional rights by arresting them without probable cause. In this situation, the arrested person’s lawyer could file a writ of habeas corpus requiring a judge to hold a hearing and determine whether the arrest was lawful. If the judge finds that the arrest was unlawful, the attorney can file a civil suit against the investigating officer and relevant city or county officials for the illegal arrest and related damages.
Pro Bono: Legal Work as Public Service
Lawyers becoming a part of the Latin language has always amused me. Not because it’s silly, but because of how little thought we usually give toward its meaning. ‘Pro bono’ is one such term that I’ve recently learned more about, and if I had to take a guess, I would say there are others out there just like me, who aren’t entirely certain what the term means. Pro bono is actually short for pro bono publico, literally meaning "for the public good." In law, pro bono refers to voluntary legal work undertaken by a professional, typically at no charge for a person unable to afford legal representation. Many lawyers believe strongly that law practice should include pro bono legal work, just like in many other professions, from doctors to accountants.
In the United States, the American Bar Association has recognized annual goals for the pro bono work of every lawyer in the country since 2004. Every year, they set the goal at fifty hours of pro bono service each year by every American lawyer.
The problem of access to justice in America is a pervasive issue with poor and lower-income people not having equal access to lawyers in court systems. Many lawyers can’t afford to represent each potential client and lawsuits run the risk of more losses than wins, both of which suggest that it’s difficult to have a legal system that offers adequate representation to the people who need it the most.
Amicus Curiae: Court-Friend
Translated as "friend of the court," amicus curiae is a neutral third party who volunteers to provide insight or information into the matter before the court that may help in resolving the case. If an individual or organization believes that they have something to add that is relevant to the adjudication of a case, then they can file an amicus brief. This brief must be approved by the court and, in most cases, the amicus brief is filed before oral arguments are scheduled so that the information contained in the brief can be considered when deciding how to resolve the matter. While many defendants and claimants will file their brief directly with the court or through their attorney, an amicus brief is intended to aid the court in reaching a decision, not to represent a party in the litigation.
Ipso Facto: By Fact of That
One of the most commonly used Latin terms heard in law is ipso facto, which means "by the fact itself." Its use in law clarifies that something is certain, unambiguous and definitive. By this definition, we have the reformulated "the fact in itself." And that, of course, is mere tautology.
An ipso facto clause, however, does substantiate that something is definite. It is a provision in a contract that causes the contract to terminate once an event occurs. For example, a lease may stipulate that if the tenant fails to pay rent for more than ten days, then the property owner may terminate the lease and the leasehold estate will immediately terminate. The lease would state that the lessor may terminate the lease "ipso facto," meaning "by the fact that rent is unpaid," the lease would terminate. There need not be any action on the part of the lessor for the lease to terminate.
In the law, the term ipso facto is also used to clarify that a consequence must result from an action by a party. For example, a court held in In re Bell & Beckwith that a debtor has no recourse against an attorney under Ohio law for disbursements made prior to the filing for bankruptcy because the actions taken by the debtor were undertaken before the severing of the attorney-client relationship. The court stated that, "the events leading to the disbursements and thus the debt owed to the debtor’s fiduciary took place prior to the bankruptcy filing ipso facto."
Ipso facto clauses are exceptionally useful tools in drafting contracts for LLM candidates who are adviced to include such clauses in their transactional law studies and practices.
Ex Parte: Excluding the Other Party
So now here’s a word that even some lawyers don’t fully understand but it has come up in the news recently. Ex parte literally translates to "on one side." Ex parte is defined as "done or made by one party alone in the absence of another party." Although this could apply to any one-sided action, ex parte finds its most common usage within the context of litigation. Ex parte procedures include testimony given without notice to the other side, and issuing orders based solely on papers filed by one side.
A frequent use of ex parte hearings is in a request to obtain an injunction before trial. It is a well settled principle of law that the party seeking injunctive relief must give prior notice of the injunction motion to the opposing party unless there is a danger of irreparable injury. So a motion for a temporary restraining order must show extraordinary circumstances warranting an immediate proceeding without the other party. In other words, if by giving one side notice of the Petition you would destroy the very purpose of the document request. For example, if the other side was seeking incriminating evidence in your home, giving them notice of a pending document request would likely render the request useless. At least that’s the theory.
In practice, ex parte applications are granted far too liberally in family law. A third party spouse can leave the marital home, "ex parte" request an emergency move-out order, and expect the restraining order to be automatically issued without hearing on the merit. Only later when the other side files for what is called a "hardship hearing" can the order be set aside, but more often than not divorce litigants abuse this procedure as a weapon to further their financial goals. Of course everyone is allowed to leave the other spouse’s house but it is also well settled that a person cannot be thrown from a house where he or she has a legal right to stay. So, what happened to the "open access" or "live and let live" philosophy when it comes to divorce litigation?
Sub Poena: On Penalty
Putting it simply, sub poena means under penalty. This term has a specific meaning in legal terminology that is more commonly known as a subpoena. A subpoena is an order to compel a witness to appear and give testimony for an action now pending before the court. The subpoena will set forth the time of the appearance and/or the documents that are required to be presented at the time of the appearance.
If a subpoena is served on you, you must comply with the subpoena unless you bring a motion to quash or modify the subpoena. If you do not comply with the subpoena and you do not file a motion to quash or modify, then the attorney who served the subpoena on you may have you held in contempt of court.
A subpoena is signed by the clerk of the court or the attorney for the person who is requesting the information. A subpoena will not be issued nor should it be served on you without permission of the court if the action is not already pending before the court.
In a divorce , family law, workers’ compensation and personal injury actions, the subpoenas will generally come from the lawyers representing the parties in the pending case. The subpoenas should be issued on the form provided by the clerk of the court where you are physically located. Thus, an attorney in the State of New Jersey will issue a subpoena from the State of New Jersey, etc.
The subpoena will be served on you and if you are not complying with its terms, then when you appear before the court the attorney will ask the judge to order you to comply with the subpoena. You can bring a motion to quash it or you could go back to your residence, review the subpoena and comply with it so that you do not have to go to court again.
A Priori: From What is Before
A Priori: This term refers to what is known or assumed without having to be proven. Commonly used in the context of assumptions that are made or implied based upon experience and for which further evidence is not required. For example, it may be said that the parties’ present state of mind can be inferred or assumed a priori from the circumstances of the case. In contrast, a legal inference which requires more proof would be considered a Posterior.
De Facto: From a Fact
"De facto" means "in fact; in reality; actually." It refers to an existence that is real, as opposed to one that is statutory or ordained by law. This term is used to establish a distinction between the official or formal nature of something, and the way it may exist in practice.
Take, for example, the disagreement between the United States and the United Kingdom over the use of "de facto." Because "de facto" is often used to distinguish between official and unofficial forms of government, the two nations disagree on whether the term should be used to describe a U.S. territory. In the United States, Guam is a full territory of the United States, while in the United Kingdome, it is a de facto protectorate (though calling it a protectorate may be undiplomatic), neither sovereign nor fully independent.
"De facto" is commonly used to refer to a ruler who does not have legal right over a land. For example, if a king were to give up his crown but continue governing, he would be a de facto king.
Bona Fide: Good Faith
"Latin legal terms are used to express a variety of concepts in many different fields of law," and bona fide is no exception to this rule. Despite its common use, "even among lawyers, the term remains infrequently and imprecisely defined." Merriam-Webster defines the term as "made, carried on, or undertaken in good faith and honest intent," and notes that it applies to various legal situations, including contract law and the sale of goods.
Bona fide is a concept which addresses the intention behind one person’s actions, and assesses whether, those intentions were honest or fraudulent in nature. When used in legal contexts, bona fide is essentially synonymous with the term good faith, and as such there are several different applicable areas of law to which it may be referred.
For example, in the United States, many states have enacted laws that require certain transactions to be made in "good faith," reflecting bona fide’s use as a synonym. While for the most part, bona fide will carry the same meaning as good faith, in some legal situations, bona fide is used in addition to good faith, and may carry some difference in meaning. For example, bona fide’s specific requirement of genuineness, sets it apart from other terms such as fair dealing, that may carry slightly different meanings. As such, courts have noted that the difference between bona fide and good faith is that, "the latter requires honesty in fact, fair commercial standards of decency and fair dealing, while [the former] requires only honesty in fact." Accordingly, courts have concluded that courts may find, in fact, that a party may act in good faith, but not bona fide.
Consequently, for attorneys working in commercial law, the difference between bona fide and good faith can be the deciding factor in a given situation. For instance, a plaintiff may need to argue that a defendant did act bona fide, but that their actions lacked the requisite genuineness. Similarly, sometimes a plaintiff may concern the defendant’s actions in relation to good faith or fair commercial standards, but to also note that despite the fact that those actions may have been fair and true, they may also not have been genuine, and thus not bona fide.
For anyone working in the area of commercial transactions, it is therefore vital to study not only how bona fide differs from good faith, but also how bona fide may work in coordination with good faith to strengthen legal arguments and increase the chances of favorable outcomes.
The Enduring Legacy of Latin
Though the modern world is now governed by new, contemporary legal systems, the language of these laws remains an unchanged constant. Law today continues to be based on concepts that originated back in the Roman Empire and its Latin — along with all of its rules and jargon unwittingly borrowed from Roman law — are woven into modern belief systems and thought processes without its guardians even noticing. Latin has paved the way for the multitude of procedures, principles, doctrines, conventions , and regulations that fill the justice systems of most countries around the world. The power of Latin terms to mold modern law cannot be emphasized enough. They are the fundamentals that bridge centuries-old customs with the contemporary legal philosophy of nations in all corners of the world. Though time will inevitably bring an end to many a Latin word’s use, and though some of these words have been replaced by the vernacular of modern times, it is clear that many of these terms have transcended time and have stayed relevant due to their nature, subtlety and universal meanings. This is why they continue to be such widely taught and utilized tools in the modern practice of law.
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