Appunti di Lingua inglese (completi)

Dipartimento di giurisprudenza

Laurea in scienze giuridiche della sicurezza e della prevenzione

Corso di lingua inglese

Module I - English in legal contexts

English legal texts, contexts and terminology, national and international perspectives.

1.1 - Introduction

In the corridors of the European Union, English is frequently the language of communication and it is one of the many languages of EU treaties and other legal texts. In international trade, English has become a lingua franca that permits people and businesses to interact successfully. Actually, English is not the official language of the law: no language has that status, but it is certainly the most spoken language in legal context.

A much discussed issue is about the difficulty of the legal language, which can be justified or not. Those who think that the difficulty of the legal language is not justified claim that it simply preserves the legal profession’s monopoly of explanation, because those who didn’t study law don’t understand the legal texts. In fact, they think that the social and economic position of lawyers is enhanced by a system of complicated law.

1.2 - Nelson Mandela and the “Long Walk to Freedom”

Nelson Mandela (1918-2013) was the first South African president and he was also the first black president of the Republic of South Africa. All his life he fought for the rights of blacks in South Africa against the apartheid and for this reason he spent 27 years in prison, where he wrote his autobiography “Long Walk to Freedom”.

The text that Mandela wrote in prison is not a legal text but it is about a legal theme, in fact there is a short extract from a legal text, in particular it contains part of the court’s judgement and the pronunciation of the verdict. In the text Mandela used a lot of basic law terms.

1.3 - Texts on legal themes

A legal text has specific characteristics that define it, this is because there aren’t only legal texts but there are also texts that are non-legal, like a letter. It is very important to distinguish between legal texts and non-legal texts.

• Act of Parliament → It is a law enacted by the UK legislature, that is also called “the Queen in Parliament”, and it is the most important source of law in the UK. In Italian we can translate the term Act of Parliament in “legge”. Examples: Terrorism Act 2000, Scotland Act 1998, Hunting Act 2004. An Act of Parliament is composed of:
  • The short title of the law that is used to cite the Act as a legal source → Terrorism Act 2000
  • The numerical reference in the statute book of UK → Chapter 11
  • The long title that is used to describe the aims of the law → An Act to make provision about terrorism [...]
  • The enacting words that are a standard formula declaring the Act to be a legal source deriving by the authority of the “Queen in Parliament”, so from the legislature → BE IT ENACTED by the Queen’s most [...]
• International treaty → It is an international agreement between two states that is binding in international law; treaties are normally concluded by the process of ratification. In Italian we can translate the word treaty in “trattato internazionale”. Examples: ECHR, Treaty of Rome, Treaty of Maastricht. The treaty contains:
  • The parties like States or organizations and the expression of their agreement;
  • The preamble → considering [...], reaffirming [...]
  • The body of the treaty that is a set of articles.
• Commercial contract → It is a legally binding agreement between two or more parties. In Italian we can translate the term in “contratto commerciale”. Examples: work contracts. The contract is composed of:
  • The parties and the date of the agreement;
  • The recitals that contain information relevant for the agreement (premesse);
  • The operative provisions (disposizioni contrattuali);
  • The clauses and subclauses (clausole);
  • Signatures of the parties.
• Decision of an international organ → It is the result of a negotiation and agreement between the parties and it produces legal effects. In Italian we can translate the term in “decisioni di organi internazionali”. Examples: UN Security Council resolution. The text is composed of:
  • The date of the decision and its reference;
  • The recitals (premesse) → reaffirming [...] determined [...]
  • The bulleted list with the decisions of the UN Security Council.
• Constitution → It is the system of rules defining the composition, powers, and relations of the state organs and regulates relations between the state and citizens. In Italian we can translate the term in “Costituzione”. Examples: US Constitution, Italian Constitution. It is a set of:
  • The preamble that is used to express the dreams and hopes on which it is founded;
  • Sections and articles.
• Affidavit → It is a sworn statement (deposizione giurata) used as evidence in court proceedings. Examples: Affidavit in a matrimonial case.
• Judgment → It is the legal reasoning and decision of a court in a case. In Italian we can translate the term in “sentenza”. Example: judgement of the House of Lords. The text is composed of the individual opinions of the law lords who heard the case.
• Directive → It is a law addressed to member states that require them to achieve specific results, but it isn’t directly applicable. In Italian we can translate the term in “direttiva comunitaria”. Example: Directive 95/46/EC.

1.4 - English legal contexts and legal texts

According to the legal context, a legal text can be at national level, when it refers to the legal system of a country, at international level, when it refers to the international order, at regional level in Europe, when it refers to the EU legal system, or in relation to any legal system in the world and English is used like a lingua franca. In common legal systems, there are two categories of legal texts: primary and secondary.

Primary legal texts typical of a common law legal system

In common law legal systems, like in the United Kingdom, the typical primary legal texts are sources of law, that are composed of legislation, judicial precedents and the Constitution, and legal documents, that are documents created by private individuals or in an institutional context, some examples are contracts and divorce decrees. The important characteristic of these texts is that they produce legal effects.

In the European Union legal orders, the most important texts that constitute the primary legislation are:

• Treaties → international agreements between two or more States, they are binding in international law and constitute the equivalent of the legislation. Treaties are normally concluded by the process of ratification, so the approbation of the treaty by the Crown. Some texts like the UDHR have indirect legal effects.
• Community legislation → laws made by the EU institutions, such as regulations, that are directly applicable in all member states without the need for the states to enact them and directives, that are not directly applicable and it is necessary that the member state enact it.
• Resolutions → decision of a meeting of decision-making bodies like the UN Security Council.
• Judgements → texts in connection with dispute resolution, such as judgements of the International Court of Justice.

Secondary legal texts typical of a common law legal system

In addition to the primary texts, there are some legal publications that we can describe as academic and professional literature and classify it as secondary legal texts that don’t produce legal effects like primary legal texts.

Secondary legal texts typical of common law legal systems includes:

• Textbooks → a textbook presents and explains an argument of the law, like criminal law, and provides an excellent overview of the subject as well as detailed analysis of developments in the law.
• Cases and material books → they are edited collections of extracts from the most important cases and other source materials in a specific field of the law, for example cases and materials on criminal law.
• Law reviews → they are important for the analysis and criticism of legal developments found in the leading articles, essential for academic study and research.

1.5 - Opinions on legal language

It is desirable to simplify legal language as much as possible because it is a form of language that is about as far removed as possible from informal spontaneous conversations and this implies that a lot of people don’t understand the law. However, if ignorance of the law is not a valid excuse, knowledge presupposes comprehension. The complexity of legal English is justified by the fact that in this way lawyers can maintain their social and economic position that is enhanced by a system of complicated law and they can continue to be jealous of their monopoly of explanation.

Module II - The language of a legal system

2.1 - Introduction

Laws, courts, and constitution are the heart of a legal system. The English legal system has two principal sources of law: legislation and judicial precedent.

The United Kingdom doesn’t have a written constitution like Italy and the United States of America, but this doesn’t mean that Britain doesn't have a constitution; it is the system of rules defining the composition, powers, and relations of the state organs and regulates relations between the state and citizens. The British constitution, which isn’t embodied in a single written text, derives from many sources including legislation, judicial precedents, and conventions.

The Bill of Rights is one source of the constitution that changed the relations between the King and the Parliament. After this period, England had four constitutions from 1649 to 1659. But in modern times, no single even...