This coming month, we’ll take a look at a seemingly obscure but oft-used ‘secret language’ of the law—Latin. But first, we’ll take a detour through music and art. You’ll find that the language used by a profession tells you a lot about its evolution, as well as the persistence of history.
I’ve been listening to a bit of classical music lately, primarily Bach. There is something quite ethereal about his music. At the same time, there is a huge amount of intellectual prowess that goes into each piece. Bach has a special place for those who love maths as his pieces draw both on the symmetric and artistic.
No wonder Bach’s music seems to come from a divine source.
If you happen to be in Melbourne, I recommend checking out the Escher x Nendo exhibition at the National Gallery of Victoria (NGV). It runs until 7 April 2019. M.C. Escher (1898-1972) was a Dutch graphic artist who had an equal taste for the artistic and mathematical. Some of his famous works include Drawing Hands, Reptiles, Waterfall, Hand with Reflecting Sphere, Day and Night. You can see them here.
The NGV exhibition offers a panoramic view of Escher’s work over time. This includes his early works which usually reside at the Hague. Most are unavailable on the Internet.
Notably, one part of the exhibition plays Bach’s music. It makes sense, because both Bach and Escher had an obsession with incorporating puzzles into their work.
They were also masters of their respective arts. Escher was adept in three techniques: printmaking (woodblock), lithography (stone) and mezzotints (copper). This was when most artists were only familiar with one or two techniques. As for Bach, you only have to tune in to Bach’s Brandenburg Concerto to understand the extent of his genius. Listen to this arrangement for the piano:
When quantity leads to quality
All this made me think about how each area of human knowledge builds in different levels of mastery. We can achieve the next level first through passion, then practice and persistence. Bach and Escher may be geniuses of their art, but it was their obsession and intense work ethic which led to a large body of work. Some are now regarded to be of extraordinary quality.
On this note, we need to dispel some myths about how you achieve the extraordinary. I’m reading a book called ‘Originals’ by Adam Grant. He states that the odds of creating a masterpiece increased when a creator generated more ideas:
‘It’s widely assumed that there’s a tradeoff between quantity and quality—if you want to do better work, you have to do less of it—but this turns out to be false. In fact, when it comes to idea generation, quantity is the most predictable path to quality. “Original thinkers” … will come up with many ideas that are strange mutations, dead ends, and utter failures… ’
He notes that:
‘To generate a handful of masterworks, Mozart composed more than 600 pieces before his death at thirty-five, Beethoven produced 650 in his lifetime, and Bach wrote over a thousand. In a study of over 15,000 classical music compositions, the more pieces a composer produced in a given five-year window, the greater the spike in the odds of a hit.’
The same applied to other artists and inventors. He cites Pablo Picasso, Maya Angelou and Thomas Edison, amongst many others.
‘Geniuses’ also have to start from square one, like everyone else. Every domain of human knowledge involves a basic lingua franca of terms or concepts.
This harks back to my days as a piano student. My teacher (it was not clear how I deserved to be her student) hailed from the Moscow Conservatory. Some of the memorable moments included her gigantic eye-rolls at my feeble attempts at getting things right.
‘Candice! Don’t call it a song, it’s a piece!’
‘You need to use your emotion, don’t play like a robot!’
I knew, early on, that I wasn’t destined for the grand stage at Carnegie Hall.
One of the things I struggled with, or had no interest in, was learning about music theory. My thinking at the time ran along these lines: ‘Why do I need to learn the theory? I just want to play!’ One aspect of music theory was memorising the musical terms. These were directions in sheet music in the original Italian, French and German. Things like:
f (forte) = loud
ff (fortissimo) = very loud
p (piano) = quiet
pp (pianissimo) = very quiet
allegro = quick, literally ‘cheerful’
adagio = slow
cantabile = in a singing style
And so it went.
Unfortunately, you need to have an understanding of the basics to start running. I quickly found out that my inadequate understanding of the basics was a problem. Until I resolved this, I would never surpass a certain level of understanding of the music.
The same applies to law.
An obvious area is the use of Latin phrases in law, also known as ‘Law Latin’. There is an implicit understanding between lawyers in the room about shared concepts. One of them is Law Latin.
At this point I acknowledge that there are plenty of jokes about lawyers floating around. They have been around for an eternity. I am almost certain that a couple of them are about not getting stuck in a room/ship/plane with a lawyer, or worse—lawyers. Mainly because they start descending into some kind of incomprehensible verbiage.
Lawyer jokes imply that lawyers remain constant throughout time. But history can throw up surprising titbits. Few people know that medieval English lawyers actually spoke French in courts. The English language was only granted official status in the courts by the Pleading in English Act 1362. It allowed lawyers to use English when debating cases in England, and later in Wales. Despite this, the English law courts continued to use Latin in their formal documents. For another 300 years!
For all the pretentious flutterings of the heart when you trot out a Latin phrase, it in fact (like English) has a patchy history. While its origins were in ancient Roman law, Law Latin was not immune to bastardisation. For one, it was not the most flexible of languages when it came to describing new concepts. One academic, J.H. Baker, notes that:
‘… the main philological difficulty confronting these [law] clerks arose from the obvious fact that their world was not that of ancient Rome. What was the Latin for a petticoat, or a tennis court?’
Despite this glitch, medieval lawyers took their Latin very seriously. Higher courts were more than happy to reverse the judgments of lower courts (in a ‘tut-tut’ sort of move) if they used common English rather than Latin.
Another amusing facet of Latin, given its precision, was that incorrect use led to a comedy of errors. Courts rejected (or ‘quashed’) plaintiffs’ applications even over minor grammatical errors. Some examples from history cited by Baker included:
- A law clerk whose ‘writ of forgery was quashed because the clerk forgot about deponent verbs and wrote imaginavit instead of imaginatus est’.
- ‘Sir Anthony Cooke, former classical tutor to King Edward VI, was furious when his writ of entry sur disseisin [entry into land by a claimant] was quashed for a grammatical error.’
In the final and most amusing example, Baker notes that while a plaintiff could amend a bad writ by buying a new one—stating facts incorrectly was ‘incurable’. This stopped a plaintiff from bringing a fresh proceeding for the same matter:
‘A rather ludicrous example occurred in 1667, when an upholsterer brought an action for the price of four painted hangings, which his lawyer rendered as quatuor pictas pellices (apparently a slip for pellicule). A pellex, however, was not a piece of upholstery but a prostitute. The court exploded with indignation, and ruled that, since a contract for painted whores was illegal, the plaintiff could not recover.’
Perhaps it was due to these unfortunate mishaps that another major development took place in 1650. Parliament introduced legislation called An Act for Turning the Books of Law, and all Process and Proceedings in Courts of Justice, into the English Tongue 1650. It required that practitioners wrote all legal documents in English, rather than Latin. There was a penalty of 20 pounds, then a significant sum, for breaching this.
A final death knell for the extensive use of Law Latin was in 1731. The Proceedings in Courts of Justice Act 1730 made English, rather than Law French or Latin, the exclusive official language of all the Courts of England and Wales. While it took a couple of centuries to reach this point, the Act’s aim was to prevent the ‘many and great mischiefs’ which resulted from ‘the proceedings in courts of justice being in an unknown language’. Again, there was a fine (of 50 pounds) for anyone using languages other than English.
Insiders and outsiders
Everyone knows that the common law and the legal profession progresses at the speed of a snail.
Law Latin may have faded, but it has not completely gone out of use. There are still hangovers from the medieval world in our modern time. One of the reasons lawyers continue to use this secret language is one part pretentiousness, one part history, and one part efficiency.
As for efficiency, Law Latin can explain concepts in a concise way. For example, quid pro quo—meaning ‘something for something’—particularly important in contract law. Or the administrative law writs of mandamus and certiorari, which were once written only in Latin.
The downside is that Latin reduces access by ‘outsiders’. The modern legal world, at least in Australia, is of course far more accessible than the law practised in medieval England or Dickens’ Bleak House. As one other observer puts it:
‘Both internal and external influences affect the language people in the legal community use. On the one hand, lawyers, judges and professors discuss subjects that only exist in the legal world. On the other hand, also creates a barrier that prevents non-lawyers from easily entering the community. To enter the legal world, non-lawyers must learn the language. Thus, both efficiency and community identity influence the language of lawyers.’
A Malaysian lawyer, from the common law tradition, once told me that Latin was the lifeblood of law. Essentially, that you couldn’t practice law without a healthy dose of Latin.
Thankfully, the plain-English movement in Australia means that lawyers do not use excessive Latin or legalese by comparison. As a bit of fun, I’ve categorised some of the most common Law Latin words and phrases under headings below. You can also check out LB’s Instagram feed @legal_brew where we’ll feature Latin Law phrases and related cases.
R = Rex or Regina, meaning ‘King’ or ‘Queen’
habeas corpus = may you have the body
amicus curiae = friend of the court
mens rea = guilty mind
bona fide = in good faith (opposite: ‘mala fide’)
forum non conveniens = inconvenient forum
functus officio = having performed her/his office
ultra vires = beyond the powers
ratio decidendi = rationale for the decision
obiter dictum = that which is said in passing (incidental remark)
affidavit = she / he has stated on oath
subpoena = under penalty
quid pro quo = something for something
quantum meruit = the amount she / he deserves
caveat emptor = let the buyer beware
History informs the way we use language in law to articulate and persuade. But this is open to change. Technology and new social/economic frameworks may usher in new changes. The evolution of law’s ‘secret language’ is beautifully explained:
‘… law has its roots in “history” in the form of prior decisions. A system based on precedent is by its nature backward-looking. The legal community is thus constantly discussing ideas and concepts that began in the past, sometimes in a different language. Some concepts in modern American law began with Anglo-Saxons, Romans or Normans, and the language of the law reflects these influences. Other concepts—such as internet law—are relatively new, a product of later societies, and may bring new vocabulary to the law. Thus, the language of the law may vary depending on where in legal history the substantive subject originated.’
As this happens, arguments about whether the language of law adequately serves our society will continue to play out. I note that frustrations with Latin were not limited to recent times. Sir Edward Coke (1552–1634), an English barrister, judge, and politician once stated:
‘projicit ampullas et sesquipedalia verba [Disdain bombast and words half a yard long]: . . speak effectually, plainly, and shortly . . . .’—Sir Edward Coke