Legal Terminology

The language of law differs from most other role-specific languages in that legal language is culture-bound and intertwined with each particular society and its legal system. Legal language is not a universal language. It is developed in laws or sentences, in administrative acts or in private negotiations, and it is always based in the dialectical relationship between being and having to be, between legal prescription and concrete case. Understanding general legal terminology is useful in a variety of fields, and in understanding civic duty.

Lesson Structure

There are 8 lessons in this course:

1. Scope and Nature of Legal Terminology
   • Codification
   • Origin of legal words
   • Development of Legal Language
   • The Role of Latin in the Development of Legal Language and Law
   • Common legal language
   • Sources of law
   • Broad Categories of Law
   • Substantive Vs Procedural Law
   • Private vs. Public Law
   • Civil vs. Common Law
   • Types of Law Administrative Law,
   • Adversarial (Accusatorial Law)
   • Civil Law
   • Constitutional Law
   • Continental Law
   • Contract Law
   • Common Law (English Law)
   • Criminal or Penal Law
   • Intellectual Property Law
   • International Law
   • Inquisitorial Law
   • Islamic Law
   • Property Law
   • Public Law
   • Roman Law
   • Socialist Law
   • Statute Law
   • Tort Law
   • Trust Law
   • Separation of Powers (Judicial, Legislative, Executive)
   • Essential Features of the Westminster System
   • Common legal terms.
2. The Legal Workplace
   • People & Processes
   • Types of Lawyers: Attorney (or Advocate)
   • Barrister Vs Solicitor
   • Criminal Defense Lawyers
   • Corporate Lawyers
   • Bankruptcy Lawyers
   • Civil Lawyers
   • Other specialisations
   • Court Solicitors
   • Barristers
   • Court Agents
   • Paralegal Professionals
   • Law courts
   • Role of courts
   • Jurisdiction
   • Judicial Immunity
   • General jurisdiction
   • Limited (bounded or special) jurisdiction
   • Criminal jurisdiction
   • Monetary jurisdiction
   • Original jurisdiction
   • Intermediate Jurisdiction
   • Appellate jurisdiction
   • Ancillary jurisdiction
   • Concurrent jurisdiction
   • Exclusive jurisdiction
   • Pendent jurisdiction
   • Subject matter jurisdiction
   • Levels of Courts
   • Appellate Court
   • Civil Court
   • Constitutional Court
   • Article Courts
   • Circuit Courts
   • County Court
   • Court of Assize
   • Court of Equity
   • Court of Record
   • District Court
   • Family Court
   • Federal Court
   • Full Court: (or full bench)
   • Privy Council
   • International Court of Justice
   • International Criminal Court
   • Juvenile Court
   • Magistrate’s Court
   • Open Court
   • Probate Court
   • Small Claims Court
   • Superior Court
   • Supreme Court
   • English Court Structure
   • Dispute Resolution
3. Legal Systems
   • Australia, UK, International Law etc.
   • Common law legal systems
   • Civil law
   • Codification of law
   • Separation of powers
   • Australian law system
   • International law, etc.
4. Contract & Business Law
   • Nature of Contract
   • Unilateral contracts
   • Bilateral contracts
   • Classes of contract
   • Formal Contracts
   • Simple contracts
   • Validity and enforceability
   • Agreement
   • Rules as to offer
   • Rules as to acceptance of an offer
   • Revocation of an offer
   • Rules as to rejection of an offer
   • Rules as to lapse of an offer
   • Intention to Create Legal Relations
   • Consideration
   • Rules relating to consideration
   • Lawful Object
   • Capacity to Contract
   • Discharge and Conclusion of Contract
   • Formation of Simple Contract
5. Property Law
   • Real Property
   • Personal Property
   • Conveyancing
   • England and Wales, Scotland, USA, Australia
   • Intellectual Property
   • Patent, Trademarks, Copyright, Design patent
   • Confidential information (trade secrets)
   • Related terminology
6. Wills, Probate, Estate Law
   • Estate
   • Wills
   • Heirs
   • Inheritance
   • Beneficiaries
   • Probate
   • Will Requirements (Testamentary intent, Testamentary capacity, Lack of duress, Absence of undue influence, Witnesses)
   • Trusts
   • Related terminology
7. Criminal Law
   • Social construction
   • History of punishment
   • Reasons for Punishment (Rehabilitation, Deterrence/Prevention, Protection of Society/Incapacitation, Restoration, Retribution, Education)
   • USA - Criminal Law or Penal Law
   • Australian Criminal Law
   • Canadian Criminal Law
   • Tort Law
   • Classification of Torts (Intentional Tort, Unintentional Tort)
   • Purpose of Tort Law (Compensation for Damages, Financial Responsibility, Deterrence, Avoiding self-help)
   • Negligence
   • Statutory Torts
   • Nuisance
   • Defamation
   • Intentional Torts
   • Economic Torts
   • Duty of Care
   • Breach of Confidence
   • Causation
   • Related terms
8. Other Categories
   • Family Law (Decree nisi, De facto marriage, Equitable adoption, Adoption by estoppels, Interlocutory decree, Judgement nisi, etc)
   • Civil Actions
   • Bankruptcy
   • Insurance Law
   • Accidents Compensation
   • Related terminology.

Each lesson culminates in an assignment which is submitted to the school, marked by the school's tutors and returned to you with any relevant suggestions, comments, and if necessary, extra reading.

Aims

• Explain the scope and nature of terminology used in law and allied professions.
• Identify and describe legal occupations and roles
• Compare and contrast different Legal Systems worldwide and discuss the role of International Law
• Explain the meaning of Business Law and describe the processes involved in the formation of simple contracts
• Explain the meaning of property law and its processes.
• Research and explain common terms and processes related to wills, probate, estate law and Trusts.
• Investigate and describe the meaning of terms and processes associated with Criminal Law and Torts (Civil Law)
• Describe and investigate legal terminology associated with the areas of
  • Family Law
  • Bankruptcy
  • Insurance
  • Accident Compensation

WHO USES LEGAL TERMINOLOGY AND WHY LEARN IT

Anyone who works with the law, will encounter and use legal terminology. This includes everyone from law enforcement officers and prison staff to lawyers and their employees. Most people will at some stage encounter legal language at some stage in their life, even if only when dealing with a will or buying a property. Accountants, public servants and many other professionals also deal with legal terms on a daily basis.

An understanding of legal terminology is a great advantage in many jobs, and a distinct asset for anyone living and dealing with others in the modern world.

Understanding the Nature and Scope of Law and Lawyers

Lawyers are legal experts who specialise in the Law. 

According to Black's Law Dictionary 6th ed. (West Publishing, 1990) a lawyer is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."

Lawyers are required to uphold the rule of law and the proper administration of justice. The adherence to the rule of law and the pursuit of just resolutions underpins the effective economic, social and political functioning of society. This enforcing of the moral values that societies consider important enables individuals to interact in a fair and predictable way, to the mutual benefit of all.

When people hear the word “lawyer” they usually think of an individual who goes to court everyday and stands before a judge defending the freedom of another individual. This is true in some cases; however, there are many different types of lawyers with a variety of job responsibilities and duties. Some of these are described in the following section.

Generally speaking, a lawyer is an individual who defends a person or entity in various legal proceedings. The legal proceedings may fall into a variety of different categories.  Most will be either considered criminal litigation or civil litigation. The lawyer is a person who acts on behalf of another and voices the opinion of their client in a manner which is in their best interest. They will represent clients in court, mediations, business transactions and other important legal proceedings or arrangements where the law will be discussed.

There is a number of different specialisation that a Lawyer may pursue. These functions may vary depending on the country or jurisdiction. The following is only a small sample of these with an over view of their primary functions. Terms will often differ depending upon the country or the jurisdiction concerned.

Attorney (or Advocate)

An attorney is someone who represents someone else in the transaction of business:

Barrister Vs Solicitor

It is important to understand the distinction between these roles. A barrister is a lawyer found in many common law jurisdictions that employ a split profession (as opposed to a fused profession) in relation to legal representation. In split professions, there are “Barristers” and “Solicitors” who operate as largely separate entities. Solicitors have more direct contact with the clients, whereas Barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly.

The historical difference between the two professions is that a solicitor is an attorney, which means they can act in the place of their client for legal purposes (as in signing contracts), and may conduct litigation by making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that while the barrister speaks on the client's behalf in court, the barrister does so when instructed by a solicitor.

Many countries such as the United States do not observe a distinction between barristers and solicitors. Attorneys are permitted to conduct all aspects of litigation and appear before those courts where they have been admitted to the bar. Thus the legal profession in the United States is fused; however, an individual licensed to practice law is referred to as an Attorney at law or, more often, simply an attorney - the terms barrister and solicitor are not typically used.

Criminal Defence Lawyers

Defend persons charged with criminal offences; provide advice to victims, witnesses, sureties, and persons under investigation.

Corporate Lawyers

Specialise in Corporations law. Their function is to ensure the legality of commercial transactions, and to advise corporations on their legal rights and duties. They need to be familiar with aspects of contract law, tax law, accounting, securities law, bankruptcy, intellectual property rights, licensing, zoning laws, and the laws specific to the business of the corporations that employ them.

Bankruptcy Lawyers

Specialise in the area of bankruptcies – they are certified specialists or lawyers with substantial experience in bankruptcy. Bankruptcy is an area of law that can be far more complex than appears on the surface.

Civil Lawyers

A term used to refer to those lawyers who deal with that branch of law involved with disputes between individuals and/or organizations, in which compensation may be awarded to the victim.

Some other specialisations include:

LEGAL SYSTEMS

Common Law is derived from the broad principles encompassed within the unwritten laws of England. These principles are created and modified by judicial decisions; and are passed on through customs, traditional usage, and precedent.

The body of precedent or “doctrine of precedent” applies to and binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis - Latin for “to stand by things decided”).

Common Laws are not generally codified, thus they are adaptable when presented with new facts or changing circumstances. As explained above, a decision in a currently pending legal case depends on decisions from previous cases, the outcome of this case may then affect the law that is applied in future cases. A judge is bound by decisions of courts of superior jurisdiction but not necessarily by those of inferior courts.

CIVIL LAW

The term "civil law" as a legal tradition actually originated in English-speaking countries and was used to lump all non-English legal traditions together and contrast them to the English common law.

The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written (or codified) laws. Civil law developed out of the Roman law of Justinian's Corpus Juris Civilis (Body of Civil Law). Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.

There are now several generally accepted sub-groups of civil law, although not all civil law legal systems neatly fit into these:

• French civil law: Applied in France, Belgium, Luxembourg, Italy, Spain and former colonies of those countries;
•  German civil law: Applied in Germany, Austria, Switzerland, Greece, Brazil, Portugal, Turkey, Japan, South Korea, and the Republic of China (Taiwan);
• Scandinavian civil law: Applied in Denmark, Finland, Iceland, Norway and Sweden; and
• Chinese law: Includes a mixture of civil law and socialist law.

MIXED SYSTEMS

So-called "mixed systems" combine aspects of both common and civil law systems, such as the laws of Scotland, Louisiana, Quebec, the Philippines, Namibia and South Africa.

 
CODIFICATION OF LAW

In law, codification is the process of collecting and restating the law of a jurisdiction and forming a legal code.  Codification is by no means the defining characteristic of a civil law system. For example, Sweden and other Scandinavian countries do not possess the expansive codes that characterise the German and French Civil law systems.  Conversely, many common law jurisdictions have codified parts of their law. Examples include the Australia Criminal Law and the federal statutes of the USA. The difference between civil law and common law lies not just in the act of codification, but also in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law and courts base their judgements on the provisions and rules provided in the codes and statues. Common Law systems use case law as the major (but not exclusive) source of law.

SEPARATION OF POWERS

The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial.

• The legislature makes the laws
• The executive put the laws into operation
• The judiciary interprets the laws

In the ideal situation, the powers and functions of each are intended to be separate and to be carried out by separate personnel. No single agency should exercise complete authority and each should be interdependent on the other. The intention of this division of power is to prevent absolutism (such as occurs in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine is extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps to keep the others from exceeding their power.  This ensures the rule of law and helps to protect individual rights.

The underlying principle of the separation of powers is treated differently under the different systems of law. The separation of powers in the USA, for instance, differs from that of Australia, France or Mexico. Each nation has differing social and political traditions that influence how the principle is applied. The following example gives an overview of the complexity of the Australian system.

Separation of Powers Applied - Australian Law System
Under the Westminster System (the parliamentary system of government Australia adopted and adapted from England) true separation of powers in its classical form does not fully exist.

While the three branches of government exist (legislature in the form of parliaments; executive in the form of the ministers and the government departments and agencies they are responsible for; and the judiciary or the judges and courts), the ministry (or executive) is drawn from and responsible to the parliament (legislature) there is a great deal of interconnection in both personnel and actions. The separation of the judiciary, however, is more distinct.