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92 Origins and Use of English Legal Terms through History1 Anne Wagner CERCLE,

92 Origins and Use of English Legal Terms through History1 Anne Wagner CERCLE, équipe VolTer (Vocabulaire, Lexique, Terminologie) et LARJ (Laboratoire de Recherches Juridiques) Université du Littoral - Côte d’Opale. France. 1. Introduction English justice has long been perceived by many who have experienced it, and many more who have not, as highly technical, inadequate, inaccessible, and seemingly unconnected to everyday life (Gridel 1994: 23). Without the help of specialists in law, lay persons are often unable to understand legal procedure and legal language. Indeed, the latter has a peculiar tenacity; an ability to achieve stability within changing social and economic conditions (Gény 1922: 42). However, the impression it radiates is one of conservatism, rigidity (Wagner 1999b) and uniformity ; for the social structure penetrates into the architecture of the English language of the law (Carbonnier 1978). That is why every past and present society has had its own knowledge of words, and many have created or adapted words in order to reflect their particular standards and expectations (attributed to Hobbes 1971: 35). The French lawyer Gény considered that law has its own "living reality" (Gény 1922: 149) which is highly dependent upon context. Consequently, English legal discourse reveals a complex network of interactions between individuals and their environment. Furthermore, a linguistic insecurity emerges as soon as someone is analysing an earlier cultural notion. So, legal language has to be construed within a specific period of time. The interpreter is then confronted with “a web closely woven around production” (Schauer 1992: 500-501, Aitchison 1991: 89-101) which Eco (1976: 86) describes as a multi- levelled maze, representing any different legal situations. 1 This is a revised paper presented at the International Union of Anthropological and Ethnological Sciences (IUAS) Congress at Florence, Italy, July 5th – 12th, 2003 : http://www.icaes- florence2003.com Published in LSP & Professional Communication Volume 3, Number 2, October 2003 - ISSN 1601-1929 © DSFF / LSP Centre Article by Anne Wagner 93 Legal language is, then, a complex and interesting melting pot of intrinsic and extrinsic influences, coming from cultural practices which evolve within the space- time of modernity. So, wherever one turns, individuals have maintained written and hidden proof of this inheritance. The only way to decipher this language is through an analysis of its often “silent” historical and social dimensions. Hall’s concept of “silent language” is worth mentioning here: "Culture acts directly and profoundly upon behaviours; and the mechanisms which link them are often untold and located far beyond the voluntary control of an individual" (Hall 1984: 35) While examples may be found in English law, lay people or even lawyers have not found a ready solution even though there have been many attempts. 2. Historical and social dimensions Sir Francis Bacon explained the multi-cultural origins of these Laws of England through an analysis of the deep and complex English historical elaboration: "It is true, they are mixt as our language, compounded of British, Roman, Saxon, Danish, Norman Customs. And as our language is so much the richer, so the laws are the more complete" (Mellinkoff 1963: 158). This quotation shows how close the link is between the development of English law and the various conquests which arose on English territory. Indeed within English legal language, there remain clear vestiges of this past. The study of historical circumstances therefore demonstrates how this language has evolved and enhanced itself over the centuries: "Scandinavian words were borrowed most freely between the ninth century and the twelfth, French words during the twelfth, thirteenth, and fourteenth centuries, but Latin words have been making their way into English, throughout almost the whole period of its history". (Serjeantson 1968: 9). Moreover when contemplating the legal circumstances of legal discourse development, Goodrich's reflection seems primordial: "To know the law is not to know the words of the law, but the force and property of the words. The textual culture of law, indeed, brings with it an explicit linguistics, a linguistics of fidelity to sources, to originals, to supposed first usages and all that those usages implied". (Goodrich 1990: 115) 94 Consequently, a faithful analysis needs to be carried out by the discerning reader in order to fully understand the “hidden” or “silent” dimension of words within a specified context. This fragility in comprehension is all the more critical when people are confronted with cultural, legal or historical dimensions which they do not really master. So we need to invest in terminology, "for it is worthwhile if it is validated and informed homogeneously" (Lebreton 1994: 87). The language of the law is and always will be evolving in accordance with politics, social behaviours and historical circumstances. That is why we can say that each period of time contributed and continues to contribute to the construction of English legal architecture, leading to semantic variances. Owing to Peter Tiersma (1999), “Our law is a law of words. Although there are several major sources of law in the Anglo-American tradition, all consist of words. Morality or custom may be embedded in human behavior, but law –virtually by definition- comes into being through language. Thus, the legal profession focuses intensely on the words that constitute the law, whether in the form of statutes, regulations or judicial opinions” (Tiersma, 1999:1) So, the more complex the culture, the more important the institutional body, and the more complex the language used to codify it. As already mentioned, the features of the language of the law derive not only from the legal institution itself but also from history, from social functions, actors, goals of the law and eventually linguistic usage. If law has to be simultaneously fixed and flexible (Wagner: 2002c), several communicational and institutional strategies are necessary in order to organise the linguistic means to enhance its understanding within the sociolinguistic community. 2.1 Emergence of the concepts ‘Law Latin’ and ‘Law French’ At the very beginning, there was no language of 'the law' and no one could have ever talked about a language for particular legal purposes. Let's first note that the word law is of Scandinavian origin2. Law came into the Old English word lagu, well known in England since the fifth century, which derived from an Old Norse noun log. All these terms mean "something laid or fixed" (Mellinkoff 1963: 5), as do the Greek thémis, the Latin statutum, the German Gesetz (Onions 1966). As Holdsworth underlined, "a primitive system of law had no technical terms" (Holdsworth 1922: 43), for example the word lawyer: The closest approach Old English had to a name for lawyer was forspeaker (O.E. forspeca or forspreca), i.e., one who speaks for another, an advocate, a defender (Mellinkoff 1963: 52). 2 It does not mean a legal language formerly existed. Article by Anne Wagner 95 Consequently, the creation of the legal semantic architecture relied on common language. It specified words and even forms, sometimes modified them (see Tournier 1985) or even radically changed their use. From there arose specially adapted expressions to achieve particular goals (Gény 1922b: 460). Mellinkoff (1968) was the first jurist to pay attention to a systematic definition and contextualisation of what has been called so far ‘Legalese” or the way to use English law. He was the first one to go back to the Celtic Invasion in order to re- define the language of the law. More recently, Peter Tiersma (1999) and Anne Wagner (c: 2002) have added to this work several commentaries and examples. Indeed, the very first element to English semantic legal architecture was to be found during the Anglo-Saxon period which permitted the creation of new terms through composition3, with each term fitting perfectly in the social reality of that period (Mellinkoff 1963: 46-47). The second element appeared after the Norman Conquest. In the system of the Common Law, much of the forms of legal language deriving from that period persist to this day. Indeed, owing to Maley (1994: 11) “It seems that there has never been a time since the Norman Conquest when the English of the Law has been in tune with common usage. It has always been considered a language apart and there are good historical reasons why this should be so” So, the language of the Common Law really appears as such after the Norman Conquest. Before this historical event, there were rules and/or common practices and usages but nothing professional. The written languages of the law were Latin and English, with Latin far more common. Most acts of the French institutions were drafted in Latin (Woodbine 1943: 405), because the scribes of documents were churchmen who learned Latin. Consequently, Latin made its way into the language of the law, because neither Old English nor Old French could have ever adapted to the Normans’ needs (Holdsworth 1922: 44). Both were considered as "vulgar" (Shelly 1921: 90) tongues, unlike Latin, the "universal language of mediaeval learning" (Woodbine 1943: 411). However, two concepts have since made their way into the current language of the law: law French and law Latin. On the one hand, French terms uploads/Geographie/ ljbj.pdf