Preview Terminology definitions Characteristics of terms Legal
terms: synonymy, polysemy, metaphor Legal concepts Legal families
Modernisation of legal terminology
Slide 3
Terminology 1) the set of practices and methods used for the
collection, description and presentation of terms 2) a theory
required for explaining the relationship between concepts and terms
3) a vocabulary of a special subject-field
Slide 4
Terms and Concepts Concept: mental representation of an object
Term: the technical designation of a concept Term verbal expression
of a concept belonging to the conceptual system of a LSP; may be a
single word, compound or a phrase (e.g. good faith, free movement
of persons)
Slide 5
Terms Terms should be : Accurate Concise Easy to spell and
pronounce Allow the formation of derivatives Linguistically
correct
Slide 6
Characteristics of terms Terms should be: 1) monosemous (having
1 meaning) and 2) mononymous (consisting of one word), 3) a member
of a term system
Slide 7
Legal terms and concepts Legal science differs from the natural
sciences: the laws of nature are the same everywhere. The
difference is evident in the relationship between language and its
object. The language of a natural science cannot change reality: if
a plant is described wrongly or inaccurately, it remains as it was
none the less. But if the legislator, in a new law, describes a
legal phenomenon otherwise than in an earlier law, then the legal
reality changes: law only exists in human language (Brkhus
1956)
Slide 8
Legal terms and concepts Legal terms: not imaginable without a
legal relationship; can be used in other contexts, but have a
particular meaning in certain legal relationships; express legal
facts in cases where the features to which the Law attaches effects
answer to the conditions that the Law imposes and thus to a legal
notion that confers on them a meaning with regard to the Law (e.g.
error)
Slide 9
Legal terms and concepts Terms usually nouns Referent entity
that exists physically or metaphysically and fulfils the conditions
imposed by a concept (e.g. in France, 175 referents of the concept
of general court of first instance (juridiction de droit commun du
premier degr de lordre judiciaire, expressed by the term tribunal
de grande instance; by contrast, only 1 referent connected to the
concept expressed by the term Cour de cassation)
Slide 10
Legal terms A) pure legal terms (estoppel, abuse of process) B)
law terms found in general language (pig, chicken) C) everyday
words assigned a special meaning in a given legal context
(consideration)
Slide 11
Everyday words assigned a special meaning in a given legal
context: example Welfare of Pigs Act 1998 definition of a pig for
the purposes of that law: pig means an animal of the porcine
species of any age, kept for breeding or fattening If a pig fails
to fulfil either of the two qualifying conditions, its owner stays
outside the scope of that law
Slide 12
Scientific terms introduced into law Terms from other sciences
introduced into statutes Do they retain their meaning? In the
materials accompaning preparatory work in the Parliament,
interpretive guidelines, definitions and other information is
contained which allows the interpretation of a concept when it
becomes part of a statute The materials may introduce a specific
meaning, broader or narrower than the scientific one
Slide 13
Scientific terms introduced into law Medical terms e.g.
alchoholic or drug addict may be understood in law differently The
scientific term becoming a legal term may acquire a different
meaning
Slide 14
English legal terms Multi-word expressions and phrases Polysemy
Synonymy
Slide 15
Polysemy Legal terms often characterized by polysemy: depending
on context, a single term can express several concepts Polysemy -
allows the vocabulary of the language to transmit the infinitely
varied ideas that arise in social life (Vlasenko 1997)
Slide 16
Polysemy Rule rather than exception Legal orders are
continually changing over time Example: ius civile
Slide 17
Ius civile Ancient Rome : referred to classical Roman law as
opposed to ius honorarium on the one hand, and, on the other, to
the law applied to Roman citizens (as opposed to ius gentium) In
Byzantium, in medieval Europe and at the beginning of modern times
referred to Roman law and to temporal State law, as opposed to the
divine law (ius divinum) or natural law (ius naturale)
Slide 18
Ius civile In medieval Europe, legal science focused on the
study of those parts of the Corpus iuris civilis dealing with legal
relationships between private individuals; a branch of law relative
to relations between private individuals
Slide 19
Ius civile In English: Roman law Continental law Private
law
Slide 20
Common law English common law different from the pan-European
ius commune English common law developed by English courts Ius
commune law developed in European universities in the Middle Ages
and early modern times
Slide 21
Consequences of polysemy When p. occurs, interpreters of the
text should be able to assign to a term the meaning appropriate to
the context Often easy to distinguish between different meanings;
sometimes impossible to tell what is the correct interpretation of
the text: ambiguity
Slide 22
Synonymy Opposite to polysemy: two or several terms express the
same concept E.g., where magistrates arrange an inspection on the
scene, legal French uses: visite des lieux, transport sur les
lieus, descente sur les lieux, or vue des lieux Synonymy a common
feature of legal terms
Slide 23
Synonymy In legal languages with several layers of language,
such as English, this is especially frequent Legal English often
expresses the same concept by an Anglo- Saxon term, a French term,
and a Latin term
Slide 24
1 concept 2 terms: examples Sole proprietor (US) sole trader
(UK) Articles of association (UK) Articles of incorporation (US)
Memorandum of association (UK) by-law (US) Corporate law (US)
company law (UK) Tort (English) delict (Scottish)
Slide 25
Synonymy: preferences Preferences: warranty preferred in US,
guarantee in UK; antitrust legislation (US), competition
legislation (UK), corporation (US), company (UK)
Slide 26
Synonymy Partial synonyms misleading; mistakes and
misunderstandings are possible where the semantic fields of two
terms stand side by side E.g. judge and magistrat in legal
French
Slide 27
Quasi-synonymy It is possible to draft a legal provision or a
clause in a contract without leaving gaps: listing a number of
quasi-synonyms leads to a blanket coverage of the semantic field
intended: contract practice in common law countries E.g. Russian
enables reference to a contractual relationship through several
terms which are wholly or partly synonyms: dogovor, kontrakt,
soglashenie, pakt, konventsia, konsensus, angazhement
Slide 28
Legal concepts Law a social phenomenon Legal rules differ in
different legal orders Legal concepts also differ
Slide 29
Legal concepts Where the concepts of two legal systems differ,
the semantic domains of legal terms do not correspond with one
another Historical interaction between societies: legal concepts
may be very close (e.g. legal systems of Sweden and Finland - very
close, since Finland formed part of the Kingdom of Sweden for over
6 centuries; England and the USA: English law was applied in the
former colonies)
Slide 30
Legal families and conceptual kinship Common law Civil law EU
law
Slide 31
Common law and civil law Civil-law system developed in medieval
universities on the basis of Roman law; its divisions and concepts
formulated first on the basis of substantive law founded on a
number of abstract principles Common law: formed in the courts of
England following the Norman Conquest; the conceptual apparatus
defined by the requirements of medieval judicial procedure
Slide 32
Common law and civil law Common law placed on judicial
procedure; English judges higher status than their continental
counterparts EU law: unifying the legal orders of the Member
States
Slide 33
The Legal System of the EU A legal system of its own, partly
superimposed on those of Member States The founding states of the
early Communities - part of the civil-law legal family
Slide 34
The Legal System of the EU French law considerably influenced
the principles and basic concepts of EU law Methods of the Court of
Justice - based on those of the French Conseil dEtat; the
institution of commissaire du gouvernement served as a model for
that of Advocate- General
Slide 35
The Legal System of the EU German law: principle of
proportionality and that of reciprocal loyalty and trust (in
performing contracts); The importance of academic legal writing a
feature of the German legal tradition
Slide 36
The Legal System of the EU English influence: doctrine of
precedent (stare decisis): case law The style of judgments: in
1950s and 1960s, ECJ judgments - stylistic copies of French
judgments, esp. in their construction and disposition (e.g. the
signal words attendu que); over time, the style of the Court became
more independent: construction of its judgments does not come
directly from any legal order of Member States
Slide 37
The Legal System of the EU A hybrid, mixed law in which legal
traditions of Europe increasingly intertwine Methods of
interpretation of ECJ: a mix of different legal traditions
Interaction between the EU institutions and national legal orders
in a way not directly borrowed from any legal order
Slide 38
The Legal System of the EU An entirely new type of legal
system, with its own characteristics, developing side by side with
civil law and common law; applies to legal systematization and to
doctrine relating to sources of law and to individual institutions
and principles
Slide 39
The Legal System of the EU New elements - partly evident in the
form of new terminology, partly hidden behind established terms
coming chiefly from France; these old terms possess a new
conceptual content in EU law
Slide 40
Towards modernized legal terminology Modernization replacing
outmoded lexical units by contemporary ones, creation of neologisms
and semantic change, the modernisation of legal language through
plain language rules based on readability or understandability
Slide 41
Towards modernized legal terminology Replacement of the term
writ of certiorari by certification does not increase the
understanding although it modernizes the language His conviction
and sentence were affirmed on direct appeal and certification was
denied - understandable to laypersons only if the procedure is
explained
Slide 42
Updating legal terminology Lord Woolfs reforms (1999) Writ
claim form Pleading statement of case Plaintiff claimant
Minor/infant child In camera in private Ex parte without notice
Guardian ad litem litigation friend Mareva injunction freezing
injunction Anton Pillar order search order
Slide 43
Dissolution of terms or concepts? Legal terminology usually
followed the conceptual framework of the Roman law Legal maximes:
Lex retro non agit (recent origin) New tendency: the term does not
rigidly correspond to a concept any more Different terms in
different linguistic forms reflect the content of a concept
Slide 44
Dissolution of terms or concepts? Examples Example: piercing
the corporate veil (US); lifting the corporate veil (UK);
levantamiento de velo (Sp); Durchgriffshaftung A rule permitting
veil-piercing in undercapitalized firms can be seen as a penalty
default that creates an incentive for firms with low net capital to
disclose that fact when contracting with potential creditors, so
that the creditors will be estopped from piercing
Slide 45
Dissolution of terms or concepts? Examples Reasonable man a
standard in common law to determine the appropriate interpretation
of party intent in the contract law or the appropriate action in
tort law Clinical negligence: reasonable doctor Reasonable
bystander synonymous with the reasonable third party (contract
formation) Reasonable person
Slide 46
Dissolution of terms or concepts? Examples The terms piercing
the corporate veil and reasonable man are dynamic; their linguistic
status varies and depends upon the structural (textual)
circumstances of use. They rather adapt to requirements of ordinary
syntax than force the syntax to follow the rules of legal
language
Slide 47
The future? Future legal language more descriptive than
conceptual and closer to ordinary language More guidelines with
reference to the linguistic aspects of creation and application of
law
Slide 48
Problems Some efforts directed towards the modernization of
legal terms may not lead to an increase in their understandability
Legal vocabulary rarely used and understood in an isolated form
Attempts to increase understandability should focus on the
structure of legal texts The impact of modernization of legal
vocabulary should not be overestimated
Slide 49
Legal Thesaurus Electronic data processing allows for broad
lexical corpus to be included into a lexicon Legal thesaurus
includes not only lexical material but also samples of context,
example of use, phraseological units, texts and doctrinal
commentaries
Slide 50
Legal Thesaurus Traditional lexicographical approaches based on
terms Approaches based on concepts (mental abstractions)
Lexicographic works based on legal concepts may map the whole
conceptual field which includes the typical terms used in it Legal
translators need dictionaries
