Our everyday conversation and social media posts are peppered with phrases such as Et cetera, Bona fide, Ad hoc, Verbatim, Vice versa, Status quo and Ad nauseam. Here’s the linguistic twist. They are all Latin phrases which have survived the test of time for over 3,000 years. Officially, Latin is a dead language, spoken only in the Vatican and in some religious rituals of the Roman Catholic church. Yet, the list of such words in everyday use, more especially in jurisprudence in courts across the world, is, well, pretty much “ad infinitum”.
A recent judgment by a bench of the Supreme Court of India used the phrase primus inter pares in referring to a petition involving the government in power. The petitioner and most people in the courtroom would have no idea what it meant (a Latin phrase meaning first among equals), but judges seem to delight in using Latin phrases while delivering their judgments. Much of this is hereditary and a public display of superior judicial knowledge. Ironically, the word “jurisprudence” is derived from the Latin term juris prudentia, which means the study, knowledge, or science of law. In the United States, jurisprudence commonly refers to the philosophy of law. It is not without its incongruities.
Take the commonly used legal phrase Habeas corpus, which literally means “You shall have the body”. In jurisprudence, however, it is a legal order that requires law enforcement to produce a prisoner and justify their confinement. India has more than a thousand central laws and a larger number of state laws which are riddled with complex language and Latin words (ipso facto, ab initio, ex parte, ex post facto, de minimis, in pari materia, in personam, mens rea, that it boggles the non-legal mind. The lingering legacy of this “Legal Latin” is a complex socio-linguistic phenomenon that endures to this day and age, and not just in India, but in almost every court in the US, UK, Europe, including Finland and Estonia), but mainly in countries subject to prolonged colonial rule, as in India. During British rule, Indian legal systems adopted a large portion of English common law, which itself is heavily influenced by Latin legal terminology, leading to the incorporation of Latin phrases into Indian legal discourse.
That makes it doubly difficult for law students, who are not just studying the legal system and its complexities, but also need to get acquainted with Latin phrases and meanings. The legal system has a language entirely of its own. The Bible for law students and practicing lawyers is Black’s Law Dictionary which provides definitions for legal terms and phrases, many derived from Latin. There is also a book by Anoopam Modak which records 149 Latin aphorisms and 51 Latin phrases in judgments delivered by the Supreme Court of India. That, to many petitioners, accused persons or anyone produced in a court of law in India smacks of elitism.
Latin is still predominantly used in law owing to its historical roots which date back to the Roman Empire which ruled the Mediterranean and much of Europe, Western Asia and North Africa. Owing to the Roman Empire’s legal traditions, Latin became the foundational language for many legal systems in Europe, which was later extended to the colonies conquered by European powers. That included the United States which Britain attempted to colonise and eventually failed when the colonies revolted in 1783. The only survivor of that upheaval was Latin.
The main reason was that Latin usage in law ensured some sense of clarity and consistency in legal texts. Also, since Latin is a dead language, it is not subject to changes over time. This provides a stable terminology for legal concepts. The most plausible explanation may simply be that Legal Latin has always flourished in a multilingual environment, whether the Roman Empire, Renaissance Europe, the Holy Roman Empire and its successor (the European Union), or the modern world of globalization and international institutions. At least 60 percent of words in the English language are derived from Latin and every European language has been influenced by it to some extent. Proto Indo-European language pillars are Sanskrit, Latin and Greek.
In many scientific thought-related works like in philosophy, political science and, of course, law, Latin was the medium. Isaac Newton wrote in Latin. Latin was the language of scholars in Europe. So too was Greek which generally lagged behind Latin when it came to scholarly usage. In India, Sanskrit was a similar medium, now also defined as a dead language. Latin may be a dead language, but that has not prevented new Latin terms from being created in recent years. For example, Societas Europaea, a Latin phrase that translates to “European company”. It is a legal structure for companies that operate in multiple European Union countries. There is also the comparatively recent usage of fumus boni iuris (likelihood of success in the merit of the case) used in European and South American courts and the European Court of Justice.
In modern India, this legal system, which was primarily developed during the mid-nineteenth-century colonial rule, has now been seemingly accepted as something which is fully Indian, intellectually and institutionally. Not many lawyers or judges think twice before uttering phrases like pro bono (for the general good), ad hoc (for this purpose), mens rea (guilty mind), ipso facto (by the very fact) or subpoena (under penalty). These have become so imbedded in our jurisprudence that the fact that they belong to a dead language only seems to enhance their usage and credibility. That they transcend geographical borders also adds to a sense of continuity and shared understanding. Literature has helped in no small measure. Much of Shakespeare’s work contains Latin phrases or words. Shakespeare used Latin to demonstrate his learning and also to suit his dramatic purpose, such as when he used the immortal phrase: ‘Et tu Brute’ in his play, Julius Caesar.
However, there is a sense that the usage of Latin in Indian courts may have passed its sell-by-date. The main criticism is that the use of Latin phrases can make the law inaccessible to the general public, untutored in Latin, or even Sanskrit for that matter. Examples abound. In Shiv Kumar & Ors vs Union of India, the Supreme Court judgement used the phrase “actio personalis moritur cum persona” (a personal action dies with the person). In another judgment by the apex court in Jang Singh vs Brijlal & Ors, it used the maxim Actus curiae neminem gravabi (referring to an error in the judgment by a lower court).
Then there is the oft-used phrase Actori incumbit proibatio, which simply means the burden of proof is on the plaintiff. There are other frequently used, but mind-boggling Latin phrases like actus non facit reum, nisi mens sit rea (an act does not make someone guilty unless there is a guilty mind), and audi alteram partem (hear the other side). In their defence, judges do provide a wider interpretation for the benefit of litigants and even their lawyers, but the insistence in using Larin phraseology does add an element of majesty and superior knowledge, which is probably why Indian courtrooms tend to echo with the frequent sound of ancient Latin.
To the common man, such phrases are incomprehensible. Many commentators have pointed out that the use of Latin can create barriers to understanding for the general public, hindering access to justice. Justice Gautam Patel, a former Bombay High Court judge, believes that it is time India followed other countries in simplifying laws, a process Patel believes is long overdue in India. Critics argue that relying heavily on Latin perpetuates a colonial legal system that may not be fully aligned with contemporary Indian society.
Shortly before he retired as chief justice of India, DY Chandrachud said it was imperative to use regional languages in legal proceedings to make the case understandable for general litigants. He said that the inability to explain the principles of law to the general public in simple terms was a shortcoming of the legal profession and legal education.
Article 348(1) of the Indian Constitution provides that all proceedings of the Supreme Court and in High Courts should be in the English Language (which includes Latin phrases) until Parliament by law rules otherwise. In fact, the central government has constituted a team to examine a proposal to have two drafts of every piece of legislation, one in proper legalese and the other in plain English that is comprehensible to the common man. Till then, the courts will continue their lessons in Latin and law students will continue to take Latin lessons to complement their law degrees.
There is another Latin phrase that aptly sums up the judiciary’s propensity for using it in their judgments. Ignorantia legis neminem excusat, which translates to “Ignorance of the law excuses no one”. Even if that law is generally delivered in a language no one speaks, but the Pope and the other 500 or so occupants of the Vatican. Ultimately, the most relevant Latin phrase for all Indians, whether litigants or ordinary citizens, is Fiat justica, ruat caelum. It means “let justice be done though the heavens fall.”
Commonly Used Latin Legal Terms
Suo motu: Used to describe a situation where a court or other authority takes action without being prompted or requested to do so by another party.
Inter Alia: Among other things.
Prima Facie: At first sight.
Ex Gratia: By favour.
Pro Rata: In proportion.
Amicus curiae: A friend of the court.
Caveat emptor: Let the buyer beware.
Obiter Dicta: Other things said.
Quid pro Quo: Something for something.
Ab initio: From the start of something.
Ipso facto: By the fact itself.
In loco parentis: In place of a parent.
De facto and De jure: Used to differentiate between what exists in reality (de facto) and what is recognized legally (de jure).
Bona fide: In good faith.
Mala fide: In bad faith.
—The author is former Senior Managing Editor, India Legal