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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

A Mild Case for Latin

“Remuneration!  O! that’s the Latin word for three farthings”

—William Shakespeare, Love’s Labour’s Lost, act III, sc. i

Like most lawyers, I am not fluent in the Pope’s vernacular.  Nor even am I proficient.  Indeed, I am wont to go on humbugging between a priori and a fortiori until my last breath, which I hope is made in the King’s.  I can recognize a men’s restroom more readily than a mens rea, and I’d rather swallow broken glass in the Devil’s snuffbox than decipher Roman numerals beyond X.  I don’t suppose that I am dissimilar to many attorneys who, when presented with a novel turn of Latin, take to Black’s with a doleful sigh.  There is a natural self-reproach when one is presented, after all that legal instructionw and training, with a mystery presented in the tongue of Cicero.  There are a great many et and ex-blanks and ad-this and ab-thats, and I dare say they have a habit of coming on ad seriatim betimes.  In a study by Professor Christopher R. Trudeau, nearly half of juris doctor holders polled answered that they were either annoyed or slightly bothered by an attorney’s use of Latin words or complicated legal words in written documents.1  Yet despite this apparent aversion and despite the continued emphasis on plain language by legal writing experts, lawyers continue to employ Latin in their writing for reasons both practical and aesthetic.  Latin has its allure, this much I cannot but confess.

Some History

Why Latin and not Mandarin?  I guess I don’t know specifically, but I do know that Rome and not China occupied much of Europe for more than a spell.  And Rome was a powerful place.  The civil law that developed in Western Europe is generally a product of Roman influence.  Of all things, the development of jurisprudence was the most important of Roman technical advances.2  Settlement of disputes in the empire became the province of a specialized group of private citizens called jurisconsults, who were recognized experts on the meaning of the laws.  When Greek philosophy was popularized in Rome, the jurisconsults incorporated Greek philosophical methods—exact definition, classification, logical inference—into the topics of Roman law which resulted in a vibrant legal system.3  The seminal triumph of Roman law arose from the Romans’ concern for how the rules would apply in particular cases.  The result was the creation of a system of precedent that was predictable and alike for all.  This feature, according to The Columbia History of the World, “rivals the political union of the Mediterranean world as the greatest achievement of the Roman republic.”4

But it wouldn’t be Rome without a rise and fall.  And Rome did both.  During the fifth century, Roman occupiers abandoned the English island, and took with them the Roman law that would have applied to the territory.  There was no unified English nation to speak of after the Roman retreat, only a disjointed landscape of Anglo-Saxon adventurers.  Christian missionaries arrived in England in approximately 600, and as the Church found foothold, so also did the Latin language.5  The first English laws were produced around this time, and were written either in Latin or Old English.  The most interesting period of English legal linguistic history occurred following the Norman Conquest.  As told by Professor Tiersma, after 1066:

… The rulers of England were now men who spoke a type of French, and their written legal transactions were almost invariably in Latin.

By the end of the 13th century, statutes written in Latin started to become common.  Royal courts were established and a class of professional lawyers emerged.  French was still spoken by the upper nobility at this time, so it stands to reason that proceedings in the royal courts would be in that language.  Also, the language of written statutes shifted from Latin to French at around 1300, and remained so until it was replaced by English at the end of the 15th century.6

When the centralized legal profession and court system arose in England, “French was the primary language in which law was expressed,” and remained so until the 17th century.7  While English lawyers were not regularly trained in Latin, “they would nonetheless have had some knowledge of it.”8  Latin maxims were ever present, writs were in Latin, and records of court cases were maintained in Latin until the early 18th century.9

The use of Latin in the American system was and remains a product of its use in the English system.  By the time of the American founding, both systems were operating entirely in the English language with linguistic remnants remaining from former influential eras.  The continued use of Latin in legal writing by American lawyers and judges was a result of the adoption by America of the English common law system, which included a blend of Latin and French.  Latin maxims have survived in the American model; however “most modern lawyers and judges would be hard pressed to quote more than two or three Latin maxims.”10

Plain Language in Legal Writing

Faith! Madam, I beg you speak plainly.  One criticism of lawyers is, inter alia, that they use words like inter alia.  More generally, common  complaints by nonlawyers are that legal language tends to be like the people who use it most: unclear, boring, haughty, repetitive, wordy, repetitive, packed with foreign words and phrases, bejeweled with suspicious sheen, and that legal language has a habit of giving plain English words unusual meanings.11  Attorneys have a heritage of prolixity and circumlocution, despite the public’s call for plain language in legal documents and the empirical data evidencing lawyers’ and judges’ preference for plain language.  On the writing fashioned by lawyers, Thomas Jefferson complained that lawyers make “every other word a ‘said’ or ‘aforesaid’ and [say] everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means.”12

So what exactly is “plain language”?  The obvious answer is “language that is plain.”  But what does that tell us?  Is it a story of three pigs in a brick house or a complex statute sans legalese?  Is it a legal brief as authored by a bumpkin or a pleading that avoids in propria persona?  Is it simply a lawyer writing like she might have before law school and practice transformed her into the rummest writer in her city?  Perhaps one and all, but I am concerned with legal writing by and for professionals.

To achieve the focus of the plain language approach, “legal-writing experts have encouraged legal writers to start by eliminating archaic terms, doublets and triplets, obsolete formalisms, and ‘other common affronts to plain style.’”13  Professor Plate writes that “plain-language legal writing is about much more than just the words you choose to use.”14  In the words of Professor Joseph Kimble, “[P]lain language is not just about vocabulary.  It involves all the techniques for clear communication—planning the document, designing it, organizing it, writing clear sentences, using plain words, and testing the document whenever possible on typical readers.”15  Whatever the variegated definitions of plain language, it necessarily does violence to the language of Nero.  In other words, it would reduce the use of Latin to a thing of history.  At times, it is not difficult to see the merit in such a movement.  From an order of then-U.S. Bankruptcy Court Chief Judge Robert J. Kressel, one can observe the rascality perpetrated by a party’s Latin gaucherie:

Further violating Rule 9011, Goins insists that the debtor conspired with other licensees in violation of 18 U.S.C. §151 et seq. This assertion confuses me. Again, Goins has dipped into his bag of obscure latin [sic] terms. Looking at the definition is no help. Et seq. is an “abbreviation for et sequentes or ‘and the following’.” Black’s Law Dictionary 553–54 (6th ed. 1990). So, do I consider section 151 of Title 18 alone? Do I consider section 151 and all of the sections that follow? I do not know. Goins gave me no direction or legal argument. I am left in the difficult and uncomfortable position of determining exactly what he believes his cause of action to be. A determination, frankly, I am unwilling to make. Goins was responsible to communicate his proposition in a reasonable manner. A signer cannot expect that opposing council or the court will do its legal research. The onus is on the signer. When that duty is not fulfilled, like here, the signer violates Rule 9011.16

Mind you, Mr. Goins was not a lawyer.  But the lesson is the same.

The Endurance of Latin

For the purposes of this article, I am narrowing “plain language” to language that avoids archaic terms, pompous formalisms, obscure legalese, and conceited dandyism.  Within this context, I must acknowledge the perceived roguery of Latin in the contemporary legal apparatus.  And I readily admit that the phrase minimis non curat lex constitutes an affront to plain style, and even to fashion. But I defy anyone who absolutely denies either the utility or aesthetic of Latin as used by lawyers and judges writing for lawyers and judges.  Even the staunchest opponents of Latin must concede that to strip legal writing of Latin altogether would at least be daunting, if not impossible.

On this latter point, Latin arguably is too entrenched in the professional psyche and history to admit itself to purge.  Moreover, the inherent quality of language alone would enjoin attempts at formulaic removal of Latin.  Short of prohibiting it outright, reducing the use of Latin would require a kind of specialized tribunal to sift through the elusive number of Latin terms and phrases in the American legal vernacular.  The process would be plagued by subjective biases, lexicographic choices, and unconscious judgments on aesthetic and utility.  For instance, every jurist might readily agree that “place of the crime” reasonably replaces locus delicti, while the same cannot be said of “and others” and et cetera.  Casually, we might say that et cetera has a common enough usage to escape the observation of this comparison, but what of in camera, certiorari, de facto, modus operandi, habeas corpus, per se, de novo, or prima facie, to name but a few?  And we needn’t forget the previous example of et seq.  Even a short list of common terms betrays the utter difficulty (and calumny) that would attend any conference to eradicate Latin from legal writing.  The process would have as much probability of success as had the reign of Queen Dick.

One of the central aims of the plain language movement is to widen the scope of access to legal documents and writings.  Another is to enhance understanding of the law by nonlawyers.  Within the profession, the plain language push aims to enhance the persuasiveness of lawyers’ writings and the clarity of judicial opinions by writing as simply, as directly and economically as the circumstances permit.17  The empirical data urges an abandonment of Latin phrases.  I am loath to accept such a future.

My advocacy for Latin’s preservation is not because I am one of those garrulous hurlers of “the case sub judice,” but rather, because I pay homage to a meaningful heritage concerned with the written word.  I esteem the law because of its ground and lofty tumbling.  While the work of lawyers is often in the dirt, it is an affront to human nature to prevent their planting flowers in it, or their exploiting the wisdom unearthed from the timeless soil.  Imagine the horrid work of lawyers where everything reads as though a children’s book, and the breadth of the collective idiom is limited to a finite number of acceptable words and phrases!  If the administrator of a hospital required all doctors to call a trachea a throat would she not be considered the most ridiculous of tyrants?  Why cannot I call a case a cause?  Is not a connection more ambiguous than a nexus?  Why must the law condense itself out of proportion with its custom?  How strange the aversion of academics to de lege lata!

Conclusion

This short case for Latin is mild mostly because I am ignorant of most Latin.  As I know very little of it, I can hardly be its chief apologist.  I would not expect a treatise on string theory by a rustic yokel with fleas in his collar, and I am confronted by the reality in my own circumstances that Latin is a thing more foreign to me than the Bog of Allen.  I nevertheless am opposed to its extinction.  If we might learn anything from the case of the dodo, it is that once a thing is gone, its only revival is by legend.  This isn’t to say that lawyers should speak in a kind of whale, only that an outright opposition to Latin is at odds with the distinctive quality of effective and satisfying composition.  There are precious facets to legal writing in addition to mere simplicity, directness and economy.  With these truths in mind, I hope Latin survives the plain-language pox that hounds it.

Adam T. Johnson is a criminal defense attorney at Meshbesher & Associates, P.A. in Minneapolis.  He can be reached at adam@stevemeshbesher.com.

Notes

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