In the early days of the new American republic, Noah Webster argued strongly for a simplification of English spelling throughout the land. This would, he argued, rid the language of the baleful influence of the English aristocracy, which had created an orthography that made learning to read and write English unnecessarily difficult.
Webster did not consider this a new problem, though. In his view, it all began with the influence of the Norman princes, who were responsible for the “dark ages of English literature.” 1 1 Orthography, in A Compendious Dictionary of the English Language (1806).
Unfortunately for Webster, and as I noted in a previous post, Norman French was embedded in the common law from the very beginning. Apart from the orders of the courts, which were written in Latin (and thus known as “writs”), the common law developed as an oral practice. And, until 1731, it was spoken almost entirely in Norman (or Anglo-) French.
But Webster was not critical only of the Normans. He was also scathing of those who, since the Renaissance, had sought to modify English words by attributing to them Latin roots that those words often did not have. In the words of Wikipedia:
From the 16th century onward, English writers who were scholars of Greek and Latin tried to link English words to their Graeco-Latin counterparts. They did this by adding silent letters to make the real or imagined links more obvious. Thus det became debt (to link it to Latin debitum), dout became doubt (to link it to Latin dubitare), sissors became scissors and sithe became scythe (as they were wrongly thought to come from Latin scindere), iland became island (as it was wrongly thought to come from Latin insula), ake became ache (as it was wrongly thought to come from Greek akhos), and so forth.
Webster, of course, is known nowadays principally for his successes in simplifying the spellings of many words in American English. (He also proposed many other simplifications that did not catch on.) So it is somewhat ironic that American lawyers seem to cling lovingly to Latinisms that not only are incomprehensible to the general population, but also were never intrinsic to the common law in any event.
In fact, most of the supposed Latin now spouted by lawyers is not true Latin at all. It was just made up by lawyers and judges from the sixteenth century onwards in an attempt to show off. Some was invented as late as the twentieth century, while the words “syllabus” and “syllabi” never even existed in Latin!
The table below lists a number of Latinisms that American lawyers are fond of using. It also indicates the first recorded date on which the term was used in English law.
While the fact that the common law was primarily oral means that reliable records from the first three hundred years of its existence are notoriously hard to find, it is still striking that only two of the terms listed below have been recorded as being in use by the fourteenth century. They are scienter and habeas corpus. There is good reason for their usage: they were, in fact, the names of two important writs. As I have already noted, writs were, from the very beginning, always written in Latin.
As for the rest of the terms listed, there seems no reason to keep any of them. Few Americans learn Latin nowadays, and each term has a perfectly good English alternative, so such usage is both anachronistic and unnecessarily confusing. Other than a simple inability to articulate thoughts clearly, there is simply no reason for lawyers to retain these Latinisms in preference to plain English.
So it’s time to say goodbye and good riddance. Or, as Webster might have put it: “Good-by!”
|Latinism||First Recorded Usage||Plain English|
|actus reus||early 20th century||criminal act|
|bona fide||1540s||good faith|
|caveat emptor||1540s||let the buyer beware|
|consensus ad idem||1861||agreement|
|de facto||1601||as a matter of fact|
|de iure/jure||1611||by law, as a matter of law|
|de novo||1536||from the beginning|
|ex post facto||1787||after the fact|
|ex turpi causa (non oritur actio)||1775||a person who acts illegally cannot turn that into a reason to obtain a remedy|
|fieri facias||15th century||order to execute the court’s judgment|
|habeas corpus||14th century||show me the person|
|in absentia||1886||in a person’s absence|
|in camera||1872||in private|
|infra||around 1740||see below|
|in situ||1740||in its original place|
|in toto||1796||in total|
|in vitro||1894||in a laboratory setting|
|intra vires||1875–80||within its powers|
|ipse dixit||15th century||unsupported assertion|
|ipso facto||1548||by the very fact itself|
|lis pendens||1784||pending lawsuit|
|mandamus||1530s||a court order requiring an official to perform a function|
|mens rea||1861||criminal mind|
|modus operandi||1654||habitual method or technique|
|nolle prosequi||1681||an undertaking that the prosecution will not proceed|
|pro se litigant||1861||litigant in person|
|qui facit per alium facit per se||1819||whoever does something through another does it himself|
|res ipsa loquitur||1863||the thing speaks for itself|
|res judicata||1693||a matter that has already been settled in court|
|respondeat superior||17th century||vicarious liability|
|res publica||around 1898||the people (as a collective body)|
|seriatim||1680||in a series, one after the other|
|sine die||1607||without a fixed date|
|sine qua non||1602||a prerequisite|
|sub judice||1613||under the jurisdiction of the courts|
|sui generis||1754||unique, of its own kind|
|supra||15th century||see above|
|ultra vires||1793||outside its powers|
|viz||1530s||namely, that is to say|
* There was no such word in Latin as “syllabus,” so the spelling of “syllabi” to indicate a plural truly is fake Latin.
Sources: Merriam-Webster Online Dictionary, Dictionary.com, and Douglas Harper, Online Etymology Dictionary. If anyone can supply examples of earlier usage than the dates shown here, I’ll happily update the table.