In the very worst case this terminology provides refuge for spin doctors,
spruikers, special pleaders and muddled headed thinkers. It yields up little
clear meaning and generates much confusion. This will become evident by the
looseness of expression and surreal feel in much of the literature, which tries to
have the terminology do the work rather than the human mind.
Foreign Words
If that phrase [res ipsa loquitur] had not been in Latin, nobody would have
called it a principle. . . . The day for canonizing Latin phrases has gone
past.
84
Law has many Latin expressions, reflecting that Latin was the lingua franca
(the common tongue or language) of European scholars for hundreds of years.
It also has a few French words and phrases imposed on the English by the
Norman Conquest in 1066. Once, most lawyers studied
and spoke Latin so
that judges cited it frequently in judgments without translation.
85
Similarly, part
of their legal training entailed understanding the Norman French expressions
used in law. Given that education of lawyers today does not cover Latin or
Norman French, the question is what should be done about Latin and French
expressions.
86
There are several approaches. First, where there is a word of Latin or French
origin that has become part of fundamental legal terminology, then the words
can still be used. Examples are ‘ratio decidendi’ and ‘stare decisis’.
87
Second, there is the case of the maxim (or canon as it is also called)
88
that is
stated in Latin, as many are.
89
There are three possible responses:
___________________
84
Lord Shaw of Dunfermline, 1923
85
For example, London Joint Stock Bank v Macmillan
[1918] AC 777, 792, 828;
Nelson v Walker (1910) 10 CLR 560, 567, Webb v Syme (1910) 10 CLR 482, 493
86
Kirby (1990) p 702, Gibbs (1993) p 500
87
Gibbs (1993) p 500, where he also recounts an anecdote about a lawyer
getting his Latin wrong.
88
The concept of the maxim or canon has also been criticised. Lord Wright,
(1940) commented “[T]hese general formulae are found in experience often to
distract the Court's mind from the actual exigencies of the case, and to induce the
Court to quote them as offering a ready made solution”. Lord Esher MR (1887)
was also not impressed by maxims: “I need hardly repeat that I detest the attempt
to fetter the law with maxims. They are almost invariably misleading; they are for
the most part so large and general in their language that they always include
something which really is not intended to be included in them”.
89
Sir Edward Coke defined a maxim in the following way: “A maxim is so
called because its dignity is chiefest, and its authority the most certain, and
because [it is] universally approved by all”. For an account of maxims of law see
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