Comparative Legal Linguistics
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1 Comparative Legal Linguistics HEIKKI E.S. MATTILA University oflapland, Finland Translated by CHRISTOPHER GODDARD ASHGATE
2 Contents Foreword Foreword to the Finnish Original xi xiii PART 1: GENERAL INTRODUCTION 1 1 Legal Language and Legal Linguistics 3 1 The Concept of Legal Language 3 2 Genres of Legal Language Division into sub-genres Related linguistic phenomena Legal jargon The counter-language of the criminal fraternity 3 Legal Linguistics as a Discipline The beginnings of interest in legal language -3.2 Legal linguistics today -3.3 Research topics and disciplines connected with legal linguistics Overview: defining legal linguistics Legal semiotics and legal symbolism Legal informatics -3.4 The link with legal science Legal science in general Comparative law Language law Linguistic risk 4 The Importance of Legal-linguistic Knowledge The viewpoint of related sciences -4.2 Practical lawyering -4.3 Translation 4.4 Lexicography and terminological work 5 Structure and Content of this Book Outline 5.2 Choice of legal languages examined The reason for including legal Latin The choice of modern legal languages - Global rivalry of the major legal languages - Rivalry of the major legal languages in the European Union - The Court ofjustice of the European Communities - Conclusion PART 2: LEGAL LANGUAGE AS A LANGUAGE FOR SPECIAL PURPOSES 29 2 Functions of Legal Language 31 1 Importance of the Theory of Communication 31 2 Achieving Justice Speech acts and the legal order -2.2 Form as affirmation ofspeech acts -2.3 Semiotic acts 3 Transmission of Legal Messages Communication theory and law 3.2 Interference in legal communication Message incomplete Message closed Message ambiguous Mutation of message content in transit Signals impeding the message Negative attitude of recipient
3 vi Comparative Legal L inguistics 4 Strengthening the Authority of the Law Overview: aims and methods of legal authority Understanding and memorising legal rules 4.3 Citizens 'commitment to the law Declarations of fundamental values Textual style Personal commitment by the citizen 4.4 Authority of the law and fear of sanctions Peremptory character of the law Sacred character of the law Magical character of legal language Requirement of humility before the court The solemn forms of justice 4.5 Overcoming judicial uncertainty 5 Strengthening Lawyers' Team Spirit Legal language and group cohesion Latin as a cohesive factor in the legal profession 5.3 Legal jargon: the lawyer s secret language 6 Linguistic Policy Minority protection vs. language unification 6.2 An example: Finnish and Swedish in Finland General Evolution of the status of national languages Current situation Conclusion 7 The Cultural Task of Legal Language Preserving the linguistic heritage -7.2 Developing the language -7.3 Tension between cultural heritage and democracy: legal Greek Evolution of the Greek language Transition to Demotic in practical lawyering Conclusion 3 Characteristics of Legal Language 65 1 Precision Importance of political factors and use of written form 1.2 Tautology 1.3 Definitions Rationale, significance, use, classification Legislation Court decisions and private documents Problems of legal definitions 1.4 Enumerations 2 Information (Over)load 72 3 Universality and Aloofness Abstraction and hypothetical character Impersonality and objectivisation -3.3 Neutrality -3.4 Metaphors 4 Systemic Character Interrelationship of different elements of the law Functions of referencing 4.3 Problems of referencing 4.4 Logical and consistent use of terms 5 Structure and Formalism in Legal Texts 81 5./ Logical disposition of legal texts Structure of legislative texts Model forms of judgments and private documents Factors contributing to formalism in legal language Functions of modelforms in legal language Domain of use of legal forms Forms ofjudgment Model forms in private documents 6 Frequency of Initialisations and Acronyms 88 7 Sentence Complexity and Diversity of Language Elements 90 8 Archaism and Solemnity Requirement of gravity 8.2 Causes and results of the phenomenon 8.3 Abandoning conservatism: revolutionary legal language in Soviet Russia
4 Contents 9 Proper Use of Legal Language / Historical survey -9.2 Factors contributing to obscurity of legal language Force of tradition Ensuring the authority of Justice Requirement oflegal protection Complexity of society 9.3 The Utopia of easily understandable law Improving the quality of legal language in our time Establishing the need for improvement Quality assurance of legal language in the European Union 4 Legal Terminology Legal Concepts 105 /./ Distinguishing features of legal language Legal families and conceptual kinship Overview: avoiding conceptual misunderstandings Common law and civil law The legal system of the European Communities 2 Characteristics of Legal Terminology Legal concepts and legal terms Polysemy Diachronic polysemy Orderly and disorderly polysemy Consequences of polysemy 2.3 Synonymy 3 Formation of Legal Terminology Birth and death of legal terms Legal usage of words in everyday use Neologisms of national origin Loanwords - Technical and ideological aspects - Indonesian and loanwords -3.2 The European Union Organisation of terminological work Terms expressing new concepts Formulating terminological equivalents -3.3 Other international organisations PART 3: THE MAJOR LEGAL LANGUAGES The Heritage of Legal Latin The Importance of Roman Law History of Legal Latin Latin language in European culture Latin as lingua franca of European lawyers Historical overview The periphery: legal Latin in the Nordic countries in the Middle Ages -2.3 The language of canon law Characteristics and influences Canonical language today 3 Latin in Modern Legal Languages Overview: "Latin is dead - long live Latin" The situation at the international level The Finnish example 3.2 Quotations Rhetoric The displayfunction of Latin Legal concepts and principles -3.3 Terms of Latin origin in modern legal languages The common heritage of words The danger of mistakes and misunderstandings -3.4 Caiques and borrowed meanings -3.5 Stylistic reflections of legal Latin The influence of legal Latin on modern legal languages Characteristics of chancellery style The abandonment of chancellery style vii
5 viii Comparative Legal Linguistics 4 The Communication Value of Legal Latin A caveat on variants of legal Latin 4.2 International coherence of legal Latin Major legal families and legal Latin Coherence of legal Latin in dictionaries of the same linguistic zones Risk of mistakes and misunderstandings External variation in expressions and maxims 4.3 Mitigating problems 5 Dictionaries of Legal Latin 157 English linguistic zone French linguistic zone German linguistic zone - Spanish and Portuguese linguistic zone Italy - Russia Greece 6 Legal German History of Legal German The period of barbarian laws 1.2 Linguistic conditions in the Holy Roman Empire Nature of the Empire Status of Latin and German The flowering of old legal German 1.4 Linguistic consequences of reception of Roman law Reasons for reception Consequences of reception Linguistic consequences ofreception 1.5 Influence of legal French 1.6 The German Enlightenment and legal language The requirement for understandability of legal language Germanisation of legal language Linguistic importance of the major codifications 1.7 Legal language of a unified Germany Rejection of foreign language elements The 19th century schools of law The Burgerliches Gesetzbuch Efforts to spread legal German 1.8 The period following the Second World War 2 Characteristics of Legal German Overview: lexical richness and conceptual distinctions Wealth of terms Pure German word-forms Abstract character 2.2 International coherence Geographical overview Austrian Legal German History Features - Influence of the European Union 3 International Importance of Legal German General position of the German language 3.2 German as a legal lingua franca International radiation of laws of German-speaking countries International importance of legal German An example: legal German in Finland - Medieval Low German The 19th and 20th centuries 7 Legal French History of Legal French 187 /./ National supremacy of the French language The struggle with Latin Beginnings Modern times Discarding regional languages Quality assurance of legal language Style of judgments 1.2 Globalisation of legal French Diplomacy Colonisation - Canada - Africa Radiation of French legal culture 1.3 An example: legal French in Finland 1.4 Defending the position of French 2 Characteristics of Legal French The link between related languages The Romance languages Legal English 2.2 International homogeneity of legal French Belgium 2.2.2
6 Contents Switzerland Canada Africa Origin of vocabulary Legal French style Text construction Textual level -2.5 Improving the quality of legal language Measures of modernization The struggle against anglicisms 3 International Position Today Continuing importance of legal French -3.2 Francophonia Overview: defining 'Francophonia' North Africa Tunisia under the microscope - The legal order - Linguistic conditions Sub-Saharan Africa -3.3 International organisations Overview: extent of use and legislative harmonisation The European Union -3.4 Legal science 8 Legal English The Common Law System Development of the English legal system Birth of common law Birth of equity Continuity of the English legal system -1.2 The English legal system today 2 Development of Legal English The Anglo-Saxon period 2.2 The Latin and French period Dominance of law Latin Rise of law French Decline of law Latin and law French Trilingualism of the legal profession 3 Characteristics of Legal English Multiplicity of linguistic components Influence of other languages Latin Law French 3.2 Ritual and formalism of language The tradition of verbal magic Repetition -3.3 Wordiness of English legal language Influence of the case-law system Law of contract -3.4 Orthography and pronunciation 4 Legal English as a Global Language Expansion of common law and international use of English Legal English in the United States American legal culture American legal thinking - Basic structure of the Federal State Characteristics of American legal English -An example: names of courts - Same concept-different term - Ritualism and complexity of language - American legal English from the translator's standpoint 4.3 Legal English in the Indian sub-continent The Indian legal system - Anglo-Indian Law Expansion and change of legal English in India - General position of English English in Indian legal circles -Islamic law and common law language -4.4 Legal English in international trade Risk of mistakes and misunderstandings Contradictory interpretations -4.5 An example: legal English in Finland PART 4: CONCLUSION Lexical Comprehension and Research Needs Changes in Legal-linguistic Dominance in the International Arena 257 /./ Rivalry of legal systems 1.2 Rivalry of legal languages ix
7 x Comparative Legal Linguistics 2 Terminological Interaction between Legal Languages Influence of Latin on modern languages 2.2 Borrowings between modern languages 3 Problems of Lexical Comprehension Danger of void literal translation 3.2 Danger of misleading literal translation Manifestly misleading translations Translations misleading due to polysemy Misleading legal nuances Curia and tribual The term banca rotta 4 The Need for Jurilinguistic Research on Legal Institutions and Concepts 265 Alphabetic Bibliography 269 Systematic Bibliography 295 Foreign Terms and Expressions 305 Index 317
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