(1)
One response is to abolish Latin completely. This approach, however,
has unfortunate consequences. It means that such maxims are no longer
identifiable in a judgment, so the novice will not understand, and the
experienced lawyer will lose, the incremental value of analysis or use of the
maxim by courts. It creates a risk that these maxims, and the understanding
that they encapsulate, will be lost from view, buried in an unmarked grave as a
new wave of barbarians seek to tear down our Roman heritage. Requiescant
in pace does not cover it.
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(2)
A better approach is to invent a standard English phrase to serve for all
purposes as a new name for the expression or maxim, while at the same time
preserving the Latin name in the background. This preserves the original
maxim to make it accessible for researchers but gives it an English name to
enable non Latin speakers to understand it. To illustrate, take the maxim
omnia praesumuntur rite et solemniter esse acta – all acts are deemed to be
done rightly and properly. This could be called the presumption of procedural
compliance.
(3)
Another approach is to use the original Latin and provide a translation.
In many ways this is simplest.
Third, by far the best approach is to reintroduce Latin as a compulsory
subject for students who wish to attend university. This is taken up below in
discussion of ways to improve students’ understanding of grammar and
syntax.
Non Sexist Language
There is a perceived need for gender neutral language and judges now write
their judgments in this way.
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Still, there are some reservations. As Sir Harry
Gibbs describes it, for centuries “in ordinary speech and writing masculine
words have been used to include the feminine, but modern dogma has
overruled established usage, with the result that sentence construction is
rendered clumsy and discordant” by the constant use of alternatives such as
“he or she”. Despite this, the writer Sir Harry Gibbs “capitulated”, his rationale
being that the task of a judgment is to enlighten not antagonise the reader.
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Charles A Westmore Maxims of Law, Legal Research Group. This text explains the
meaning of over 1,600 maxims. In a now famous analysis, Llewellyn (1950) list 56
canons and divides them into 28 pairs, which he shows to be in conflict with each
other, either inherently or in some contexts. See Sinclair (2006) for commentary on
this analysis of the canons. For a spirited defence of maxims see Graham (2001).
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“Requiescant in pace” means may they rest in peace.
91
Kirby (1990) pp 702-703
92
Gibbs (1993) p 501
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