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15 Years of the Estonian Constitution

ISBN 978-9985-870-22-8

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Lexica iuridica in Juridica: Latin Terms as a Reflection of Europanisation of Estonian Legal Culture

1. Introduction

Latin has always had a special role to play in the Western legal tradition. The Estonian legal system as part of the legal system of Continental Europe is based on Roman law, which is considered the common denominator of European legal systems; it is also called the lingua franca of the world’s jurisconsults. *1 The same consistency can be observed in the language of Roman law as well — the Latin language. Thus, in Estonian texts we can find juridical terms in Latin that developed more than two thousand years ago.

In recent decades, Latin juridical terminology has gradually been growing more important as regards understanding and communication between lawyers representing different languages and legal systems. *2 It is also observed that the use of Latin expressions facilitates unifying the European judicial system and makes juridical literature internationally understandable. *3 In no way do such Latin words and expressions minimise the importance of developing and using legal terminology in our native language; on the contrary, these terms enrich the language of the law.

The terminology analysed in the present article comprises the terms collected from the Estonian periodical Juridica over the past 14 years, 1993–2006. The aim of surveying the usage of Latin from this perspective was conditioned by the following factors.

This particular period is of interest first and foremost due to the substantial changes in the development of the state and law in Estonia . The Republic of Estonia regained her independence in 1991. A radical legal reform followed, which can be characterised in brief as abandoning the former Soviet law and becoming part of the Western legal environment. In this era, also the accession of the Republic of Estonia to the European Union took place (on 1 May 2004). This, in turn, has brought along the application of European law and the rulings of the European Court of Justice within the context of the laws of the Estonian state. The integration into international trade and cross‑border transactions additionally entails the growing import of private international law. Against this background, the material collected during my survey reflects, in the context of the Estonian language, the integration of one special language, legal language, into the Western European legal environment. Use of Latin is clearly an indicator of that process. Therefore, one of the questions raised in this article is how the changes introduced by the above-mentioned legal reform are mirrored in the usage of language by Estonian lawyers with regard to Latin terms.

The usage of Latin terminology provides an opportunity to assess the educational level of lawyers and the situation of legal culture, including the quality of legal education. That is, we can appraise the quality of the preparation of Estonian lawyers, as their usage of Latin legal terms depends on that preparation. In the span of time under observation, new textbooks were compiled and published in Estonia addressing virtually all aspects of law, which familiarise law students with European legal traditions and teach them the usage of terminology. In acquisition of technical terminology, a central factor is that a basic course on Roman private law is a compulsory subject for Estonian law students, and closely linked to that course are the special juridical Latin classes taught by the author of this article. Both subjects are read in the same term. This has proved fruitful on account of the fact that under the same name the same notions and expressions are taught: in the class on Latin for lawyers, the form and grammar of terms are explained, and in the Roman private law class, the content is discussed. Consequently, the extensive material on Roman law becomes more easily understood by the students and the terminology memorised more quickly and effectively.

To facilitate the teaching of juridical Latin, the author of this article has compiled the course-book Latin for Lawyers *4 , which enables the law students to gain an overview of Latin grammar and whose vocabulary includes, in essence, only legal terminology. The course‑book is based on the special literature that has been or is published in Estonia : the journal Juridica, new course-books for students of law compiled by the professors of the University of Tartu, and various course-books on Roman law. (In addition, several terms and quotations in Latin have been provided in the course-book, concerning international law and diplomacy and the Anglo-American legal system.)

A key point in the research into Latin terms on the basis of the periodical Juridica was the compilation of the Latin–Estonian Legal Dictionary *5 , published in 2005 by Prof. Klaus Adomeit, Merike Ristikivi, and Hesi Siimets-Gross. Until the publication of this lexicon, a comprehensive glossary of Latin legal terms did not exist in Estonia . A handful of Latin juridical terms together with their translations could be found only in general reference books and teaching materials. As a member of the group involved in this work, I held as my main interest and purpose to ascertain which legal terms of Latinate origin, as well as their context, have entered common use in Estonian legal language; to analyse the problems arising from and typical of the use of Latin terms; and to focus on the linguistic aspect of the terms employed, including their orthographic peculiarities, their morphology, and their relationship with Estonian sentence structure.

2. The journal Juridica as the basis for the research

The reason I chose Juridica as the basis of my research was that it has been the most important Estonian juridical journal and currently is the only one in that particular field. The first issue of Juridica was published in 1993 as a journal of the law faculty of the University of Tartu. In 14 years Juridica has developed from a small faculty magazine into a nationwide legal journal.

The 136 issues of Juridica analysed for the study include 1192 articles and 8077 pages. *6 Table 1 shows how the number of pages in the periodical has increased over the years, as the articles have become longer and more comprehensive, even though they are fewer in number in single issues than they were in the earlier years. For instance, in the first year of publication, 1993, 61 articles in total were published and the total number of pages for the whole year was 135, and in 1994 there already were 104 articles, in 249 pages. Thus, in the earlier years the articles were relatively short, 2–3 pages on average. The biggest qualitative change occurred in 2000, when the periodical had 687 pages altogether. However, the number of articles decreased to 74, making the average length about nine pages. The same volume-to-article-number ratio has been retained to this day – i.e., about 75 articles per 730 pages published in a year.

The articles in Juridica consist of texts concerned with all major areas of law and thus give an objective overview of the different aspects of terminology. Articles have been published on public and private law in Estonia , as well as international law; the laws of the EU; and the theory, history, and philosophy of law. Still, it should be specified that articles concerning the history of law and Roman law — that is, topics that in general involve numerous Latin terms — were few; for instance, there were only two articles about Roman law. Hence, the list of terms and phrases does not represent legal history first and foremost; rather, it offers an overview of the general vocabulary of today’s lawyers.

The circle of co-authors is very wide. Specialists in a variety of legal disciplines have published their articles in Juridica. Besides law professors, we can see among the authors also the legal chancellor, attorneys, prosecutors, and judges.

Table 1: Number of articles and pages in Juridica

Over the years, the journal Juridica has been used as additional study material in teaching lawyers; every year, also summaries of the bachelor’s and master’s theses of law students have been published in it. In special issues covering bachelor’s and master’s students’ work, Latin is used quite often: on average, 29–35 terms perissue of Juridica; in recent years, the usage of Latin terms has even increased. *7 Those articles compiled by students enable us to get a good overview of the tendency in use of Latin by a future generation of lawyers.

3. Frequency of usage of Latin terms and phrases

The research includes issues of Juridica from the years 1993–2006 *8 (i.e., from the beginning until today). All in all, there are 136 issues. In the first year, 1993, six issues were published; the years 1994–2006 each saw 10 issues per annum. There are 732 different Latin terms and phrases to be found in the articles. In total, Latin was used 4602 times — consequently, on average, 30 terms or phrases per issue and 3–4 terms or phrases per article. If we divide the number of pages by the number of terms and phrases, we can see that the Latin language appears on every second page of Juridica, on average.

According to Table 2, the usage of Latin terms has increased significantly over the years. In 1993, 66 terms were used in total, for a rather modest 1.08 Latin expressions per article on average. Seven years later, in 2000, in comparison, Latin terms were used 250 times already, which is 2.9 expressions per article on average. And in recent years, there have been approximately 450 instances of Latin terms used in the articles, which is 5.3 Latin expressions per article on average. It must be remarked that the more frequent usage of Latin terms in 2003 and 2005 was conditioned by the publication of articles on Roman law and legal terminology. If we disregard the Latin terms used in those articles, the average term usage for those years comes to about 450, as in other years.

During the period investigated, international legislation was studied in detail in Estonia and the local legislation was harmonised with international and EU legislation. Legal reforms also influence the usage of legal language. It is important to note at this point that qualitative change in language usage has not occurred in recent years — i.e., since Estonia became a member of the EU, in 2004. The most significant changes in terminology started years earlier when the readiness to try to again become part of the European legal environment surfaced. In a broader sense, it means that language usage must keep up with the developments in society. The legal environment changes; subsequently, language usage must change also. Thus, the rearrangements in the Estonian legal system have caused Estonian lawyers to include in their usage of legal language those Latin terms that have become rooted in the legal tradition of Europe and are widely used in practice.

Table 2: Latin terms through the years

The usage of Latin terms primarily depends on the historical development of the particular area of law concerned. Latin terms often are used in articles on legal theory, philosophy of law, criminal law, international law, succession, and the law of obligations. In all of these areas, the body of terminology in use nowadays had developed already in ancient times or evolved during the Middle Ages. Numerous Latin expressions can be found in the 2002 issues of Juridica: 108 expressions in 2002/1 (special issue on contracts) and 86 expressions in 2002/9 (special issue on codification), 91 expressions in 2001/6 (special issue on fundamental rights and human rights), 156 expressions in 1996/8 (special issue on right of ownership, public procurement, courts administration, and state budget), and even 195 Latin phrases in 1999/4 (special issue on ethics).

Very few Latin terms or none at all are to be seen in articles on labour law, family law, and business law. The development and study of these fields has taken place mostly in the 20th century. Hence, there is very little or no connection with Roman law, from which the greater part of Latin legal terms originates. The graph shows that there are three major dips in the rising line — in the years 1997, 2000, and 2004. In the issues of those years, several articles on the so-called new areas appeared, or special issues even were compiled. For example, in 1997/4 (special issue on employment and service relationships) only one Latin phrase can be found.

Turning to the frequency of usage, one finds that 134 terms and phrases were used at least five times, 192 were mentioned at least three times, and 297 Latin terms and phrases were used at least twice. If we look at the frequency of usage, we can say that approximately 200 Latin terms and phrases are part of the active vocabulary of Estonian lawyers.

4. The most frequent terms

Latin juridical terms are typically single words — stem words or compound words. In addition to nouns, also verbs, adjectives, pronouns, numerals, and adverbs are used as terms. Latin terms are concise and economical, enabling one to convey a notion that otherwise in one’s native language might require a lengthy explanation.

The most frequent Latin words in Juridica are lex (814 times), ius (567), corpus (315), and forum (253). This result is not very surprising, as ‘the law’, ‘the right’, ‘the body’, and ‘the court of justice’ are the basic elements of the law. Similarly, the words following in the list correspond to expectations: culpa (112, ‘fault, negligence’), ratio (98, ‘reason’), res (82, ‘thing, object’), factum (78, ‘fact, deed’), poena (63, ‘punishment’), crimen (51, ‘crime’), vis (44, ‘force or violence’), conditio (42, ‘condition’), pactum (39, ‘pact’), locus (37, ‘place’), causa (35, ‘cause’), actio (32, ‘claim or legal action’), fides (29, ‘faith or trust’), and status (27, ‘state or condition’).

The most frequently appearing terms and phrases are corpus iuris (236, ‘body of law’), lex mercatoria (134, ‘commercial law’), de lege ferenda (118, ‘desirable to establish according to the law’), culpa in contrahendo (79, ‘pre-contractual liability’), lex fori (66, ‘the law of the court’), de facto (64, ‘in fact’), de lege lata (58, ‘according to the law in force’), pacta sunt servanda (43, ‘agreements of the parties must be observed’), lex specialis derogat generali (38, ‘a special statute overrules a general one’), ius cogens (37, ‘peremptory norm’), nullum crimen nulla poena sine lege (35, ‘there is no crime and no punishment without a law fixing the penalty’), in dubio pro reo (24, ‘in a doubtful case, the defendant is to be preferred’), and ne bis in idem (18, ‘not twice for the same’ — i.e., an individual may not be tried twice for the same crime). The most frequent of the expressions are complex terms concerning legal theory, contract law, international law, and penal law. In the expressions, mostly words contained in the above list can be seen.

In addition to juridical terms, widespread Latin expressions and abbreviations often are used in articles: expressis verbis (212, ‘pointedly’), op. cit. standing for opus citatum or opere citato (156, ‘quoted book, in the quoted book’), ad hoc (76, ‘for this, for this special purpose’), ca. standing for circa (61, ‘about, around’), sui generis (58, ‘of its own kind’), prima facie (56, ‘at first sight’), a priori (45, ‘from the former’), ib. or ibid. standing for ibidem (36, ‘in the same place or book’), supra (26, ‘above, upon’), and many others. Such expressions ordinarily are used in their general and neutral meaning in the articles. Yet, at times, an author may employ them in a narrower juridical sense.

5. The context of Latin terms and phrases

One of the sources for enriching specialised vocabulary is borrowing words from other languages. In law, Latin is a very useful source. In the course of time, the bulk of Latin terms now used in the legal environment of Continental Europe have developed on the basis of Roman law. However, various important legal terms in Latin that are in current usage also come from the Middle Ages or the modern age. Namely, the development of law was based on Latin for centuries, even while national languages began to prevail in science. At the same time, Latin was still taken as an example on which to rely not only in terms of vocabulary and phraseology but also in relation to syntax and style. Also, new legal terms in Latin have been coined in recent decades, particularly in order to denote new activities pertaining to various legal contexts, or societies and organisations, and so on. For instance, the European Company uses the Latin name Societas Europaea. The European Court of Justice as well is known to coin new terms and employ less known phrases. Through its materials and publications, the expression fumus boni iuris (‘an air of good law’) has entered Estonian legal texts. *9

Examining the contexts in which Latin terms occur in the writings of contemporary lawyers, we must remember that denoting a legal concept is not so unconstrained as is the case with other terms. Legal terms must be precise, effective, and clear. Legal terms derive from the legal context and constitute the vocabulary of legal language. The terms in legal texts must convey accurately and wholly the content and meaning of the notions they represent. Therefore, the Latin terms found in the articles in Juridica occur, as a rule, as normative arguments and contain specific juridical information, e.g., “Therefore the legal definition of the delict in modern penal codes contains primarily the principle nullum crimen nulla poena sine lege *10 ”. *11 Often such concise Latin terms enable us to convey univocally and precisely ideas that otherwise would have to be described in a long sentence or even several sentences.

Occasionally, the terms are used in rhetoric or for illustrative purposes — e.g., “The appendix of the Directive is mutatis mutandis *12 in the Law of Obligations Act, § 42”. *13 In this category belong mostly generally known Latin expressions such as expressis verbis, ad astra, and dum spiro spero, along with other widely employed maxims. However, it is most difficult to draw a line between juridical argumentation and rhetoric in cases of phrases that may acquire specific meaning in juridical contexts. A legal term might occur in legal language yet also be a word in the common language, having a particular meaning. Expressions like ultima ratio, a priori, prima facie, and de facto are of the kind used by lawyers in their general meaning but also in a specific juridical sense.

Often it can be noticed that, although Estonian lawyers like to use Latin expressions in their articles, the translation into Estonian is missing. *14 It is clear that sometimes Latin expressions in the text can create misunderstanding and misinterpretation on the part of the reader. The problem is not very acute when well-known juridical terms are used. Examples are the nemo iudex principle (Nemo iudex in causa sua, meaning ‘No man can be a judge in his own case’), the lex specialis precept (Lex specialis derogat legi generali, ‘A special statute overrules a general one’), or the stare decisis (‘to stand by matters decided’) concept, or the following quotation from one issue of Juridica:

On certain conditions it can be claimed that what in Germany is with the status of the prosecutor in the criminal procedure de facto is in Estonia at the moment de lege lata, and, in my opinion, it could also be, with slight modifications, de lege ferenda. *15

Although the sentence may be long and difficult to follow, all of the terms used belong to the basic vocabulary of lawyers (according to the frequency of usage) and are therefore actually known.

However, quite often very rare terms can be found that contain specific juridical information. It seems to me that, for those readers without a background in legal studies or special commentaries and explanations, those sentences might not be completely understandable. A good knowledge of Latin alone is not sufficient for the correct interpretation here. Even more, it might happen that the whole concept of the context will be unclear if the meaning of the Latin word or term is misunderstood. We take as an example this quotation from Juridica:

The doctor must replace the paternalistic Hippocratic approach salus aegroti suprema lex *16 with the current principle of contemporary society voluntas aegroti suprema lex, which is specified by the tenet nihil nocere. *17

At the same time, such usage of terms draws attention to the fact that technical language has its own characteristics in comparison with general language. The neutral vocabulary of general language, legal terms, the technical terms of specific fields, and the grammar of modern standard language constitute the instruments of legal language. *18 Accordingly, legal texts have specific characteristics; yet, besides juridical terms, the terminology of the field that is the object of the particular legal text, in addition to general language, has an effect on legal language. *19

6. Problems and mistakes

There occur several problems in using Latin terms. In Latin, a synthetic language, grammatical relationships are represented in the words by applying inflectional endings and suffixes. As a result, the recognition and understanding of a Latin term may be affected by the use of the singular and the plural form, as well as the use of the term in different case forms or with various prepositions. Examples include actio > actiones (‘action’ > ‘actions’), pactum > pacta (‘pact’ > ‘pacts’), lex > leges (‘law’ > ‘laws’), ius > iura (‘right’ > ‘rights’), tacitus consensus > tacito consensu (‘tacit consent’ > ‘in or with tacit consent’), bona fides > bona fide > ex bona fide (‘good faith’ > ‘in or with good faith’ > ‘according to good faith’).

Mistakes frequently appear in the orthography of Latin terms, as well as in the agreement between case forms and gender forms and in translation of Latin terms. The most common problem in using Latin terms, however, is adapting the foreign words to the context and incorporating them into the Estonian sentences. Ordinarily mistakes occur in the usage of two forms — the basic form in the nominative case and the adverbial in the ablative — in the proper context.

I found that the most common errors in Juridica were misprints, usually involving incorrect vowels and consonants: use of vocatio legis for vacatio legis; preater (or prater) legem for praeter legem; numerantur sententie, non ponderander for numerantur sententiae, non ponderantur; summa summarium for summa summarum; nebisin idem for ne bis in idem; op. cot. for op. cit.; ubiquae for ubique; lucrum sessum for lucrum cessans. When one uses unadapted foreign words, it is customary to spell them as in the original. In a few isolated cases, though, the authors of the articles had applied the pronunciation rules of the Latin language and changed the orthography of a term if the pronounced form was different from the written variant: c — [ts] and x — [ks] as in ekspressis verbis for expressis verbis, lex spetsialis for lex specialis, and sine periculo sotsiali for sine periculo sociali.

Also, mistakes in declension and agreement were found. Several such errors concern the agreement between nouns and adjectives, which in Latin must always be in the same case: strictu sensu for stricto sensu, ultimo ratio for ultima ratio, lex posteriori derogat priori for lex posterior derogat priori, lex posteriori derogat leges priori for lex posterior derogat legi priori, lex generali for lex generalis. Moreover, nouns and adjectives always agree in Latin where gender is concerned. The Latin word mos (‘custom, tradition’) is masculine and requires the masculine form for an adjective used with it. In the given phrase, however, the feminine adjective form is used: bonae mores instead of boni mores. Also, the term ius (‘law’) sometimes is used erroneously. This word in Latin is neuter, and thus its attributive adjective should also be neuter. Yet, in a couple of cases masculine endings were to be found in the articles: ius naturalis for ius naturale and ius animatus in place of ius animatum.

It must be pointed out that mistakes as such were typical of the first issues and earliest years of the Juridica journal. In recent years, serious errors no longer can be found. Avoiding mistakes and checking Latin and other foreign terms is particularly important, because the journal is also used as study material. Incorrect grammatical forms, especially in an article by a legal professor, can be misleading to students. For example, the term strictu sensu — with the wrong grammatical ending — appeared first in an article by a professor and later in the article of one student. Such repeated mistakes and undesirable constructions indicate that legal language is, above all, acquired through work with the existing texts.

7. Conclusions

Law is a field where linguistic means of expression are of utmost importance. This discipline operates directly through language; a word or expression acquires juridical power in it. Estonian law, including the usage of legal language, is based on the historical traditions of Europe. The time span considered in the present research has been a decisive era in the development of Estonian law: once again we have turned back to the Western legal environment, which largely depends on the Latin language. The legal reform in Estonia has been accompanied by changes in the usage of terms by Estonian lawyers. In the periodical Juridica, the integration of Estonian legal language into European legal culture is reflected by a relatively great increase in the usage of terms in Latin, both in the sense of the general occurrence of terms and with regard to the adoption of numerous new Latin terms. It can be observed that the biggest changes in terminology and its usage originate from a time preceding the official accession to the EU. Hence, the current study clearly reveals preparedness for reforms on the linguistic level as well.

The spread of Latin juridical terms in the contemporary world and the principles of their usage depend on the conditions arising from historical development, the linguistic economy of Latin terms, and their effectiveness in communication in the field concerned. For the most part, Latin terms occur in the fields of legal theory, legal philosophy, law of obligations, succession, and penal power, which evolved, and whose terminology was formed already, in the time of Ancient Rome or in the Middle Ages. In newer fields of law like commercial law or labour law, terminology was formed when Latin no longer predominated as the language of science. Consequently, in articles concentrating on these matters, Latin terms are few. On the one hand, Latin expressions are used for rhetorical and illustrative purposes; in general, though, Latin terms as normative arguments convey specific juridical information.

The principles of and trends in terminology usage take shape in legal education. The combination of teaching a basic course on Roman private law and juridical Latin has provided Estonian lawyers with good preparation and conditions for acquiring and employing Latin terms. At the same time, the mistakes made in the orthography and morphology of the terms draw attention to the practical problems accompanying the usage of a foreign language. The regular utilisation of Latin terms in the special issues of Juridica containing summaries of bachelor’s and master’s theses reveals that we are likely to witness a similar use of terminology in the writings of the future lawyers in Estonia. Hence, we may hope that changes in law and the usage of Latin terminology, which reflect the present Estonian legal culture, develop along with the legal traditions of Europe. Tempora mutantur, nos et mutamur in illis.