Latin inscription on building

Banish Extraneous Latinisms

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
certiorari 1515–25 quashing order
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
locus 1715 scene, place
mandamus 1530s a court order requiring an official to perform a function
mens rea 1861 criminal mind
modus operandi 1654 habitual method or technique
nisi around 1836 conditional
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)
scienter 1358 knowingly
seriatim 1680 in a series, one after the other
sine die 1607 without a fixed date
sine qua non 1602 a prerequisite
stare decisis 1782 precedent
sub judice 1613 under the jurisdiction of the courts
sui generis 1754 unique, of its own kind
supra 15th century see above
syllabi 1650s* syllabuses
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. 

Footnotes