LANGUAGE OF LAW Flashcards
review
Translation of Salus populi est suprema lex
“the welfare of the people shall be the supreme law”
Latin phrase of “the welfare of the people shall be the supreme law”
Salus populi est suprema lex
Salus populi est suprema lex can be found in the book named __writted by ___
De Legibus and Cicero
Translation of Dura lex sed lex
“The law is hard, but law.”
The phrase originated as a principle of canon law (church law) by Bishop ___ . It is a maxim of Roman civil law meaning that, when the law is clear, there is no other recourse but to apply and enforce it regardless of its perceived harshness
Dura lex Sed lex, Bishop Buchard of Worms
Translation of Mandamus
we command
It is a type of writ issued by the higher courts of superior jurisdiction to compel the performance of an inferior government official to fulfill his duties properly
Mandamus
Translation of Centiorari
to be more fully informed.
It is a type of writ of a higher court to a lower court to send all the documents in a case it so the higher court can review the lower court’s decision.
Certiorari
Translation of sub poena duces tecum
"”under threat of penalty or punishment, you will bring it with you.”
compliance in sub poena duces tecum can be in the form of (2 answers)
sending records via e-mail, or providing the records at a specified date without an in-person
appearance if arranged in advance.
It is a court order requiring the person subpoenaed to produce books, documents or other records under his or her control at a specified time/place in a court hearing or a deposition. The subpoena should describe the item requested with sufficient particularity to enable one to produce the document or item.
sub poena duces tecum
It is a writ issued by court authority to compel the attendance of a witness at a judicial proceeding; disobedience may be
punishable as ___. It should give the date, time, and location where the person is supposed to appear. It should also specify which ___
subpoena ad testificandum, a contempt of court, party to the case the person is meant to appear as a witness for.
Translation of Res ipsa loquitur
“the thing speaks for itself.”
Latin phrase of “the thing speaks for itself.”
Res ipsa loquitur
The court can infer negligence from the very nature of an accident or injury in the absence of direct evidence because the circumstances surrounding the case make it obvious that negligence occurred.
Res ipsa loquitur
Translation of Prima facie
“at first sight” or “based on first
impression.”
It is a legal term or a legal claim which is made when the prosecution has enough evidence to proceed with a trial of judgment and to
prove that the defendant is guilty
Prima Facie
Translation of “semper
necessitas probandi incumbit ei qui agit”
“the necessity of proof always lies with the person who lays charges.”
In civil law cases, the burden of proof requires a plaintiff to convince a judge or jury of the plaintiff’s entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover
semper necessitas probandi incumbit ei qui agit”
It is stated that ______ is a tool to interact or tools to communicate, in a sense, means to convey thoughts, ideas, concepts, or even a feeling.
Language
From the view of sociolinguistics, language functions can be viewed from different angles, such as
speakers, listeners, topics, codes, and conversation purpose (Chaer and Agustina, 2004: 15)
Language is a means of communication between members of the community in the form of__
symbols of sound produced by the speech organ.
Through language, we can show our
show our perspective, our understanding of the matter, the origin of the nation and our state, our education level, and even our character.
Enumerate the 6 role of language as a communication tool
1) Language as a tool to interact with others.
2) Language reflects a person’s level of education.
3) Indicates authority.
4) As the force of law.
5) Attract the customer.
6) Indicates a person’s social standing.
Language and law, sometimes referred to as ___, has been defined in a variety of ways, some of which focus on the ___ while others deal with ___
forensic linguistics. language evidence of criminal and civil law cases, statutory language and how it is used in the courtroom
Language and law is considered an area in which the….
research, principles, and methods of the discipline of linguistics are applied to legal contexts that deal with various areas of language and the law
Forensic language deal with various areas of language and the law such as LLOS
Language and the criminal justice system, including police interviews, undercover sting operations, courtroom testimony, and confessions;
language evidence in civil cases such as trademarks, contracts, copyright, discrimination, and product warning labels; and
other legal cases in which language is often the primary evidence, such as authorship analysis and speaker identification.
statutory language, courtroom discourse, translation, and interpretation in multilingual contexts;
3 Nature of Language of the Law
Normative, Performative, and Technical language
Words are not only something we use to say things, we also use them to do things. The ___ use of language is not exclusive to the ___
Performative Nature, not exclusive to law, but law relies heavily on performative utterances.
A type of nature of language that derives from the fact that law has the basic function in society of guiding human behavior and regulating human relations
Normative Nature
A type of nature of language that often operates in a context that makes legal terms have meanings different from those they bear in non-legal contexts of use. (author?)
Technical Nature, Schauer
What are the four most influential approaches to the law.
linguistic, axiological, psychological,and sociological approach.
It perceives the law as a collection of linguistic acts (utterances). Such utterances are called norms or provisions. Also laymen usually understand the law as a ___
Lingusitic approach, system of norms or provisions.
Linguistically oriented legal research distinguishes between two basic types of the legal language:
a language of legal texts (law-making instruments), and a language of legal practice and legal science.
It perceives the law as an expression of values which usually are regarded as prior and independent from the law in their existence. This kind of approach is typical of philosophies of natural law, yet it is not limited to these.
Axiological Approach
The dominant view in ___ was for decades skeptical toward this approach, treating it as a consequence of ___
Polish legal science, philosophical idealism
a philosophical standpoint that affirms the objective existence of values and other non-material beings.
Idealism
It conceives of the law as a social phenomenon. According to this approach, the law might be understood as e.g. ___-
Sociological Approach , acts of social agents (social practices), social relations or social institutions
Sociological Approach is typical of so called ___ and is related to a to the distinction between ____(which is a matter of interest of linguistic approach) and____(how the law ‘works’ in the social reality).
legal realism, distinction between ‘law in books’ and ‘law in action’
This is used in a general sense to refer to any interface between language and law, thus including analysis of the language used within the legal system.
Forensic Language
What is the more widely accepted, and arguably more accurate, meaning of forensic language
the use of linguistic evidence in the judicial process, usually in the form of expert evidence from a linguist.
It refers to the language of and related to law and legal process. It is a type of register, that is, a variety of language appropriate to different occasions and situations of use, and in this case, a variety of language appropriate to the legal situations of use.
language of the law or the legal language
What makes the language of the law difficult?
Linguistic difficulties in legal languages arise from the differences found in the different legal cultures and legal systems.
Legal language is known as __ because legal language is the product of a special history and culture.
sui generis (“of its own kind”)
In legal language writing conventions are different, like
Sentences often have peculiar structures, punctuation is used insufficiently, foreign phrases are sometimes used instead of ordinary phrases, long and complex sentences, and poor organization are all problematic.
This full of archaic words, formal and ritualistic usage, word strings, common words with uncommon meanings and words of over-precision.
Legal lexicon
These are extensively used in legal language.
complex structures, passive voice, multiple negations and prepositional phrases
It characterized by an impersonal style, with the extensive use of declarative sentences pronouncing rights and obligations.
Legal Writing
What are the two features of legal style?
very long sentences and flexible and vague language
The law is always phrased in an ___ so as to address several audiences at once.
impersonal manner
Lawyers both try to be as __- as possible and use ___. As___ notes, “flexible and abstract language is typical of ___” (1999, p.176).
precise, use general, vague and flexible language.
Tiersma, constitutions which are ideally written to endure over time”
Tiersma calls the legal vocabulary that looks like ordinary language but which has a different meaning peculiar to law as
Legal homonyms
Legal language has many common terms with uncommon meanings. According to Danet …
“legal language has an inclination for using familiar words (but) with uncommon meanings” (2005, p.59).
Legal interpretation differs in several ways from ___ In ordinary language, what really matters ___ rather than ___
ordinary understanding. what a speaker means by an utterance (speaker’s meaning), rather than what a word or utterance means (word or sentence meaning).
With statutory interpretation, courts often look to the intent of the speakers
legislative intent
There is a symbiotic relationship between ___. Legal writers do indeed use ___ that are distinct from ordinary language.
encoding and decoding language. legal language and drafting conventions
There are different types of legal writing and all of them can be grouped together in the legal language. Goddard (2010) has discussed the following kinds of legal writing:
a) academic legal writing as in law journals,
(b) judicial legal writing as in court judgments, and
(c) legislative legal writing as in laws, regulations, contracts, and treaties
When two persons not necessarily belonging to the legal field interact on a legal theme or topic, then also it would be termed as__
legal language. There would be minimum legal words and maximum everyday words.
Although certain aspects of the substance of Roman law have persisted into modern times, particularly important in developing these concepts was a class of men____.
Jurist or jurisconsults
Juris were not ____ in the modern sense. Rather, they were men of means who took it upon themselves to ____
lawyers. study the law and to offer legal opinions to litigants, magistrates, and judges
The result of Justinian’s ambitions ___ which is the most comprehensive code of Roman Law or most basic document of civil code. It is also known
Corpus Juris Civilis (the “body of civil law”).
What are the four separate works of Corpus Juris Civilis
Digest, Code, Institutes, and Novels
A work that contains the collection and summarization of writings by classical jurists about law and justice
Digest
A work that outlined the actual laws citing imperial enactments
Code
A work that is a smaller version of Digest intended to be a type of textbook for students to learn law
Institutes
A work that is Justinian’s own enactment
Novels/ Novela/ Novellae
Corpus Juris was written mostly in ___, the language of Roman law, even though the Byzantine language of administration was ___.
Latin, Greek
In the latter half of the eleventh century, what was found?
manuscript containing Justinian’s Corpus Juris Civilis was discovered in a library in Pisa.
In the legal sphere, Latin was long ___. Although trials were generally conducted in ___, the judgments were usually drawn up in ___.
the predominant language of statutes and treaties. local languages, the judgments were usually drawn up in Latin.
The use of Latin words and phrases has declined greatly during the ____. Nonetheless, the civil law continues to use Latin to label certain key concepts, especially those that derive from Roman law. For instance, ____ are still encountered in contract law, while ___ remain important with respect to citizenship.
the past two or three centuries.
causa , ex aequo et bono , and culpa in contrahendo.
jus soli and jus sanguinis
Latin phrase for contacts must be carried out.
Pacta Sunt Servanda
It’s the bedrock principle that ensures agreements are not mere words but are binding promises under contract backed by law. Without this principle, contracts would be meaningless, and there would be no assurance that agreements would be honored
Pacta Sunt Survanda
This principle serves as a guarantee that an individual cannot be punished for a deed if there is no law that deems it a crime.
nulla poene sine lege
Latin phrase for “no punishment without law”
Nulla Poene Sine Lege
Latin phrase for “in case of doubt, favor the accused”
in dubio pro reo
Nulla poena sine lege upholds two vital scenarios.
(1) No individual can be penalised for an action that wasn’t illegal when it was committed;
(2) A person cannot receive a punishment harsher than what was applicable at the time the offence was committed
This means that a defendant may not be convicted by the court when doubts about his or her guilt remain. This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt.
in dubio pro reo
The law developed by the Catholic church—applied to marriage and family.
Canon law
These law were important for
respect to property and succession.
Customary and feudal law
These are the customary rules and procedures developed within merchant communities to support trade in medieval Europe, without the assistance of government.
lex mercatoria or law merchant
Canon, indigenous, and mercantile law - these elements were known as the ___ since it was common to much of Europe
jus commune, or “common law,”
A compilation of Saxon law that was composed in both Latin and the Germanic Saxon
Sachsenspiegel
In France, the north became known as ___ and the south as the ___.
the pays de coutumes (the land of customary law)
pays de droit écrit (the land ofwritten—mostly Roman—law)
Much of the law in continental Europe was ___, and could also be viewed as a type of customary law.
Customary, and the English common law
He advocated converting customs into statutory law by means of codification.
Jeremy Bentham
Customs would be ___ and enacted as ___ by___. The statutes would ___ and published ___ that contained all of the law on a specified
written down and then enacted as statutes by the ruler or legislature.
be logically organized by subject matter and would be published in the form of a code
Bentham’s proposal did not bear fruit in his own country, but it found favor on the continent, especially in ____, which made Bentham ___
France, an honorary citizen.
The somewhat later French Civil Code also strove to ___ while___. Like the Prussian code, it aspired to be ___ but ___
unify and reform French law while repealing all former law.
accessible to ordinary citoyens , but it avoided detailed rules and instead chose to state the law in relatively broad principles.
Codification took a somewhat different turn in Germany. ____ was ultimately deemed a failure. Meanwhile, these two law were both influential.
The Prussian Landrecht
Roman Law and French Civil Code
When Germany was unified in the nineteenth century, legal scholars drafted a new civil code that was based on ___ while__. Their efforts ultimately produced the ___ or __ in 1896
Roman law, but incorporating native Germanic elements.
Bürgerliches Gesetzbuch, or German Civil Code of 1896.
The widespread adoption of the ___ also promoted the use of French legal concepts and terminology.
Code Napoléon
The French high court known as ____ was imitated in many of those countries, and as a result Belgium has ___ and Italy has a ___.
Cour de Cassation
Hof van Cassatie
Corte de Cassazione
The Roman retreat left ___, which the Angles, Saxons, and other Germanic warriors and settlers from the continent quickly exploited. Their related languages eventually merged into one, which we now refer to as ___
a power vacuum of sorts.
Anglo-Saxon, or Old English.
The Anglo-Saxons were ___ and their law was ___. Legal decisions were often made by a type of popular assembly, sometimes called ___.
not literate at the time, entirely customary.
Moots
These were often used to decide cases. The words of the oath were ___ without ___ or the person will ___.
Oaths
fixed and had to be recited verbatim, without stammering, or the person would lose his case
Several of the Anglo-Saxon kings issued ___were also memorialized in writing. Many of these texts were drafted in ___
codes of law, and some private legal transactions (wills and transfers of land)
Latin, but others were in Old Emglish
Words relating to courts and trials are almost entirely of French origin:
action , appeal , attorney , bailiff , bar , claim , complaint , counsel , and court
Latin phrase for “the law is not concerned with trifles”
in de minimis non curat lex
Latin phrase for “let the buyer beware”
caveat emptor
Latin phrase for “the expression of one thing is the exclusion of the other”
expressio unius est exclusio alterius
These are orders from the king or judge to a sheriff or lower court were in Latin, and even today many retain Latin names, including the .
Writs
writs of certiorari, habeas corpus, and mandamus
This Law French term is being supplanted by the more common word beneficiary.
cestui que trust
This phrase was once used to introduce a pleading, has been modernized as
Cometh now plaintiff
Comes now plaintiff or simply Plaintiff
The term is often used in reference to jurisdictions that have aspects of both civil and common law.
Mixed legal system
This country has an interesting case of what might be called a mixed system.
China
A Confucian approach that emphasizes social order, and __ a legalist approach that emphasizes ___
Li, social order
Fa, punishment
