Introduction to Legal Latin
The use of Latin terms and phrases is ubiquitous in the legal system. One may wonder why we still rely on a language (or language fragment) that has not been spoken conversationally for hundreds of years. In this modern era, using a dead language seems particularly out of place. However, as Matthew Hale wrote, "In all lawful matters this Rule is generally observed, that a man shall not depart from the ancient use of the Law, but to afford Justice, and prevent Fraud." Efforts to legislate an alternative to Latin have been made by several states, notwithstanding 2 U.S.C. § 288a, which permits the rewording of Latin to avoid "confusion to persons unfamiliar with the expression." A Welsh law-firm has even made some modest efforts to put the case back in favour of Latin terms, but so far, the status quo reigns.
Broadly, the utility of Latin extends beyond its jurisdiction-displacing capacity. In many cases, Latin is still used because it carries its original meaning from its ‘parent’ language, French, and thus remains in current legal context.
This is perhaps also why Latin terminology is generally accepted because it has not yet been forced out by widespread technological advances as with email, broadband, etc. Latin terminology remains in everyday use because it has not been replaced by words that are more ‘convenient’ to use. In the field of law, many of the Latin terms used today can be directly related to their English equivalent. Some examples include bona fide (good faith), mens reacus (guilty mind), actus reus (guilty act), pro bono publico (for the public good), and scienter (knowledge) .
Not a dead language or a forgotten art, Latin remains in the observer’s toolkit because of its rich history and in-depth usage in legal matters as well as its ability to add power and clarity to legal documents. These key features have given Latin a well deserved permanent place in the courts and in law. For example, referring to the Institute of Advanced Legal Studies, here’s a comprehensive list of the ten most popular Latin terms that are used in law (US): Ante Litem Motam ("before the lawsuit is moved") refers to the time prior to when a claim has been started in court; Certiorari ("to be fully informed") refers to an order issued by a superior court to a lower court so as to understand what has transpired in the lower court; De facto ("in fact") refers to something that is considered legitimate or legal, though it is not authorized by law; De jure ("by law") refers to something that exists by only recognition of the law; Hablitatur ad delinquere (Hablitaur) ("allowance to punish") refers to an authorization allowing the court to pass a sentence; In camera ("in chambers") refers to something that takes place in private in the judge’s chamber; In limine ("at the start") refers to a pretrial motion that requests a certain decision made by the judge; Non obstante veredicto ("notwithstanding the verdict") refers to a judgment entered by a judge regardless of the jury’s verdict; Per curiam ("by the court") refers to something that is a court opinion of more than one judge; Res judicata ("a thing decided") refers to a case or matter that has already been judged by another body.
Common Latin Terms in Criminal Law and Their Meanings
Habeas corpus: A Latin term meaning "you have the body," or "you have the body of the accused." It is a legal order that directs the person detaining another to release the detainee upon a safe arrival in court. Habeas corpus is fundamental in protecting individuals from unlawful imprisonment, and it is often considered the right to be free from unlawful and indefinite imprisonment.
Mens rea: Translated literally as "guilty mind," mens rea refers to the second component of a crime’s commission, or the mental state of a perpetrator. For example, a person could commit battery without intending to do so if they were pushed into someone else, but with mens rea, it is believed that an individual is conscious of and wants to engage in the crime. While many crimes require specific mens rea to be committed, others do not and therefore strict liability applies.
Actus reus: The first component of a crime’s commission—the physical act of the crime. In order for a crime to be considered committed or completed, both the actus reus and mens rea for the crime must exist. An example of actus reus without mens rea could be a driver who hits an object in the road due to not being able to see it and therefore has committed an act of negligence, but does not have the intent to harm or cause damage with their vehicle.
Latin Term Used in Constitutional Law
Criminal law is not the only area of law where Latin terms appear with some frequency, though it is perhaps the most pronounced. Those seeking to navigate, and understand, the criminal law system must be prepared to interpret and define their own legal terminology.
In addition, some of these legal terms, particular those originating from constitutional law, may undoubtedly prove frustrating in instances of overused jargon.
In constitutional law, you will likely find yourself doing some extensive Latin term translation as well. The U.S. Constitution includes a number of the words that play a role in long-standing legal principles that have been applied in today’s society.
These legal principles fall in line with those of non-Latin origins, which is why those seeking to gain an understanding of the system are encouraged to study and learn the meanings of these commonly used terms.
The U.S. Constitution is rife with Latin phrases—we can take a look at the four "Lost Amendments," which were removed from the Constitution because their objectives had already been accomplished. These include ex post facto and lex talionis.
You’ve probably heard of ex post facto, which translates to "after the fact." An ex post facto law is one that criminalizes an act after the act is committed. These have been outlawed since before the creation of the United States—any criminal laws that were applied before the crime was committed would be considered ex post facto, and violate a citizen’s right to Due Process.
Lex talionis involves the principle of "an eye for an eye and a tooth for a tooth;" ancient laws were punished with the same degree of punishment as the original offense. For example, under a lex talionis law, if someone were to slap another person in the face, the law would require you slap the offender in the face in return. Thankfully, our modern American law system does not follow this principle (it would be terrifying).
Additionally, the Latin term de facto is often used in constitutional law. This means "in practice or actuality," and refers to something that exists in fact, such as a system of government.
Usage of Latin Terms in the Study of Law
Latin is not only a relic of the past; it continues to play a crucial role in law school education and the legal field as a whole. Since Latin terms are interspersed throughout laws, regulations, and cases, they serve as cornerstones upon which the entire legal profession is built. Therefore, it’s essential that through their studies, law students become well acquainted with the most common Latin terms in the legal world. The Royal Dublin Society (RDS) has even linked Latin to the making of excellent lawyers. The RDS states, "A good lawyer knows no more Latin than is necessary for his business; for all legal purposes Latin is now part of the English language…. The student who blunders through a Latin grammar and learns but one rule, let it be this: ‘Don’t begin any more sentences with a conjunction than you can help…’". Though some Latin phrases are so well-known in the legal world that their meanings have cemented in English vernacular, there still are many Latin words, phrases, and proverbs that only those in the legal community are typically familiar with. For those who wish to join this community, learning Latin is essential. Because in Latin’s early days, the phrase "Ignorantia juris non excusat" was ultimately shortened to "Ignorantia juris." "Ignorantia juris non excusat" translates to, quite literally, "Ignorance of the law is no excuse . " In other words, if someone is accused of breaking the law, they can’t get off scot-free merely because they claim ignorance of the law. Though some may consider learning Latin an unnecessary requirement, it’s essential that law students not only become fluent in the most common Latin terms in the legal world, but also embrace this opportunity to explore the history of the Latin language in the legal context. For instance, many students become confused when determining the difference between an "indictment" and an "indictment." It’s normal to be confused by pronouncing seemingly similar words, but this Latin lesson will help clear up your confusion. The term "indict" is taken from the Latin phrase "indictare," which means "to declare formally." Because "indictment" refers to the formal, legal declaration of someone’s involvement in a crime, "indictment" is what you must use when referring to someone accused of breaking a law. On the other hand, "indict" is the case "indict", the present form of the same word. Students will often use "indictment" and "indict" interchangeably and being able to identify the difference between the two would not only help students get better grades in law school but also to develop a better understanding of the legal system.
Criticisms of Latin in Law
Deferred, Mareva, Proponent – these terms you will become very familiar with if you are dealing with a criminal matter. Below is a list of a few important terms that you should know:
The use of Latin in the legal profession also has its challenges and critics, especially in areas where access to justice is a concern. For many years now, there have been initiatives geared towards making legal jargon more accessible to the general public. Some even ask whether Latin terms like non est factum and bona fides should be replaced by English equivalents like "not my deed" or "good faith", respectively. These critics argue that when it comes to the justice system, the importance of accessibility, clear communication, and inclusivity cannot be overemphasized. In light of this, some states have adopted policies restricting or regulating the use of foreign languages in their courts. In Saskatchewan, for example, the Regulations to the Saskatchewan Court Rules has an entire section on the "Use of Foreign Languages" in the courts. The concern here is that the use of foreign languages in the court can be problematic as it adds an additional layer of complexity to legal proceedings that many people might find difficult to comprehend.
Conclusion about Latin in Criminal Law
However, even as the legal lexicon evolves, the essence of these Latin terms endures; the influence of these legal phrases can be seen throughout our judicial system from the British colonial days to the modern era. In all areas of the law, brief terms are needed to encompass an entire concept in a succinct and efficient manner. Although many modern-day terminologies for legal concepts have developed and branched out as our language has evolved , a base understanding of their Latin etiology can still assist students and legal professionals in grasping their meaning. In modern law as in all fields, though formal Latin is fading as a necessary part of study, it remains relevant and most useful when combined with knowledge of related terminology and history, and ultimately, a personal understanding of the words through experience.