Advanced Legal English

Course programme and Reference texts

Course programme

 The first part of the course addresses the essential points members from civil law countries need to understand in
approaching the study of Legal English as a Legal Language and as part of the Common law tradition: (i) A sketch of the
principal threads of English legal history ; (ii)The legacy of English legal history: (iii) The doctrine of binding precedent ; (iv)
The common lawyers attitude towards law: procedural thinking and procedural language; (v) The role of legislation and the
style of law-making; (vi) The interpretation of statutes.

 The second part of the course is intended to help students to read, understand and use English in a range of situations
typical of legal practice, with a focus on specific topics such as (i) Contract law; (ii) Company law, (iii) Employment law, (iv)
Real property law, (v) Intellectual property law, (vi) Transnational commercial law, (vii) Conflict of laws in private
international law.

Reference texts

 For students who regularly attend the course (i.e., four absences maximum) :

- Lectures notes, slides from the class presentations, readings provided during the course and available online
- Amy Krois-Lindner, Translegal, Jeremy Day, International Legal English, Second Edition, Cambridge University Press,
2011 (only the chapters corresponding to the course programme must be studied)

 For students who do not attend the course:

- Amy Krois-Lindner, Translegal, Jeremy Day, International Legal English, Second Edition, Cambridge University Press,
2011
 Legal English as a Legal Language

• Legal language: variant of ordinary language aiming at performing

specific law-related purposes

• Law ‘It is not solely language, since it is a social institution

manifested also in non-linguistic ways, but it is a profoundly
linguistic institution. Laws are coded in language, and the processes
of the law are mediated through language. The legal system puts
into action a society’s beliefs and values, and it permeates many
areas of life . . .’. (Gibbons)
 Legal English as a Global Legal Language

• Status of official language, more or less

completely, in 75 States or administrative
territories
• Some 85 % of international organisations use
English as one of their languages or as their
only language
• International trade: the dominance of English
is virtually absolute
Legal English and English Law
as part of the
Common law tradition
 Legal English and English Law
as part of the
Common law tradition
• The history of Legal English follows the development of English law
during the Middle Ages, particularly after the Norman invasion
• XI and XII century: split in Europe
• Continental Europe: rise of a body of academic doctors who
devoted themselves to the rediscovery of Roman texts (mindset
that accompanied the historical process of codification in the XVIII
and XIX centuries)
• England: development of a “judge-made” common law that
resisted both Roman Law and the codification process
• Continuity as a special feature of the history of English Law
 Presence of the past:
English lawyers are consciuously tied to their past
 A sketch of the principal threads of English legal history
The birth of common law and the system of writs
• New institutions of royal authority and justice established
by the Normans
• Fragmentation of the Curia regis: three Royal Courts of
Westminster
- Exchequer: all questions connected with taxes (tax law)
- Court of King's Bench (or Court of Queen's Bench during
the reign of a female monarch): matters of particular
importance (admnistrative law and criminal law)
- Court of Common Pleas: normal lawsuits between private
individuals (civil law)
• Jurisdiction of the previous local courts slowly removed in
favour of the Royal Courts
• A unified law (“common law”) ruling the whole country
was slowly produced by the Royal Courts (aka, Courts of
common law)
 The system of writs:
new forms of legal action

• At first Royal Courts were only able to judge certain cases falling
clearly within the King’s competence
• Formally, litigants did not have the right to go to the royal
courts: they needed a kind of a “ticket” (royal order) to enter
their case
• Writs: royal orders which would be obtained from the Chancery
section of the Curia regis → specific remedy for a specific wrong
• XIII th century: « Register of Writs » and its wide circulation
among practising lawyers
• Gradual consolidation of the forms of action that defined how
the claimant should present an action in each case-type
 The system of writs:
new forms of legal education
• legal education became to be the monopoly
of the Inns of Court (not of the Universities),
four of which still exist today
• lawyers began indexing and classifying the
cases where a writ can could be issued
(procedural thinking)
 The defects of the common law system and the
birth of Equity
• Common law rules: strict rules of law whose application could
sometime operate harshly (eg. lack of non-monetary remedies)
• One possibility was to petition the king directly since he
remained the source of all justice (eg I could order a party to do
something or not to do something)
• From the 14th century onwards the king would pass these petitions
to his Lord Chancellor (“the keeper of the king’s conscience)
• From the Lord Chancellor to the birth of a royal court dispensing
justice in the name of the king in order to achieve a just outcome:
the Court of Chancery
• Equity: set of legal principles based on many sources (such as Roman
law and natural law)
• 17th century: struggle for power between courts of Westminster
(Lord Chief Justice Coke) and the Court of Chancery (Lord Chancellor
Lord Ellesmere), which eventually ended in a compromise
guaranteeing both courts their proper field of competence
 The Judicature Acts 1873-1875:
the reorganization of the court system

No more essential for the plaintiff to raise her action

1) in the appropriate court (equity or common law) → A new
model of central courts (Supreme Court of Judicature),
administering both law and equity (The impact of the Reform
should not be overestimated: the distinction of the two
bodies of law is still vital in the mind of the English lawyer.
Cfr. infra)
2) through the appropriate form of action → abolition of the
writs system and more emphasis on the substance of the
legal claim (Again, the impact of the Reform should not be
overestimated: English law is still dominated by procedural
language and procedural thinking. Cfr. infra)
 The first and the second instance:
The Supreme Court of Judicature (Judicature Acts 1873-1875)
Queen Bench division, the Exchequer division and Common pleas Division → QUEEN BENCH
DIVISION
HIGH Court of Chancery →CHANCERY DIVISION
COURT The Probate, Divorce, and Admiralty Division (after 1970: FAMILY DIVISION)
Of
JUSTIC
E

COURT OF APPEAL
COURT
OF
APPEAL

Why “Supreme” Court of Judicature?

The Judicature Acts 1873-1875 also provided for the abolition of the House of Lords in its appellate jurisdiction: the
Court of Appeal was originally envisaged as being the first and final appeal.
However, after a change of government, the judicial section of the House of Lords was reinstated as the final court of
appeal (Appellate Jurisdiction Act 1876)
 The third instance:
from the House of Lords to the Supreme Court of the UK
(Constitutional Reform Act 2005)

• Historically, the House of Lords, in addition to having a

legislative function, also had a judicial function (final -
and highest - appeal court in the UK)
• Constitutional convention: only those Lords with
distinguished legal and judicial careers (known as Law
Lords) would perform the judicial role
• Part 3 of the Constitutional Reform Act 2005, which
came into force on 1 October 2009, abolished the
judicial functions of the House of Lords (except on
impeachment), and transferred them to a new body,
the Supreme Court of the United Kingdom
 SOME LEGACIES OF ENGLISH LEGAL HISTORY THAT HAVE AFFECTED :
ENGLISH LAW
ENGLISH LEGAL LANGUAGE
THE RELATIONSHIP BETWEEN ENGLISH LAW AND ENGLISH LEGAL LANGUAGE

i) The doctrine of binding precedent (stare decisis)

ii) The common lawyers attitude towards law: procedural

thinking and procedural language

iii) The role of legislation and the style of law-making

iv) The interpretation of statutes

 (i) The doctrine of binding precedent
(stare decisis)
• ‘Declaratory theory' of judicial decision-making

• Reliance on judicial precedents (civil law systems) vs binding force of the precedent
(common law systems)
Civil law systems: the judgments play an actual, but unacknowledged role in the decision-making process  the judge is
typically a civil servant, offering an authoritative rule whose ultimate source is the legislator
Common law system: the judgments play an actual and acknowledged role in the decision-making process  the judge is
typically an advocate, attempting to convince lawyers and scholars that its decision is right in law for it is supported by
previous statements in similar cases

• Style of judgments and precedent-based legal reasoning: judicial decisions are openly
accorded the status of a source of law
“the familiar common law doctrine of stare decisis - i.e. the power and obligation of courts to base decisions on prior
decisions- is obviously inconsistent with the separation of powers as formulated in civil law countries, and is therefore
rejected by the civil law tradition. Judicial decisions are not law. […] [T]he function of the judge within that tradition is to
interpret and to apply "the law" as it is technically defined in his jurisdiction” (J.H. Merryman)

• Importance of accurate and permanent reports of judicial decisions

 Precedent-finding and Precedent-applying.
What should be taken into account?

1) The relevance of a previous judgment

• A previous case is only binding in a later case if the legal principle involved is the same and the facts are
similar
• A court might decide the holding of a precedent case will not apply due to the point of law involved, or factual
considerations (distinguishing); distinctions between situations could be exceptionally fine
2) The distinction between ratio decidendi and obiter dictum
• Ratio decidendi: the basic reason expressly or impliedly treated by the judge as a necessary step in reaching
his conclusion (binding)
• Obiter dictum: an opinion or a remark made by a judge which does not form a necessary part of the court's
decision (not binding)
• A court might decide to limit the retrospective effect of its overruling decisions to avoid the legal chaos that
might result from an immediate overruling (prospective overruling).
• Problem: if the prospected overulling is technically an obiter dictum, how could it establish a new cause of
action to be followed in future cases? U.S. adherence to legal realism provides a favourable environment for
prospective overruling, whereas U.K. formal adherence to the declaratory theory of judicial decision-making
does not.
3) The hierarchy of the Courts
• Every court is bound to follow any decision made by a court above it in the hierarchy
• In general, appellate courts are bound by their own previous decisions
• The Supreme Court (and previously the House of Lords) might decide to depart from its previous decisions
(overruling) « when it appears right to do so » (Practice Statement, 1966)
 (ii) The common lawyers attitude towards law: procedural
thinking and procedural language

• Legal reasoning as monopoly of the Inns of the Court throughout the whole
Middle Age and until XIX century
• Absence of a long historical tradition of professorial doctrine: leading lawyers
have never been professors or officials but always legal practitioners and judges
• Tradition of “reasoning from case to case”
Legal teaching of this kind naturally led to a rather formalistic treatment of law, dominated
by precedent and analogy . . .Legal practitioners did not aim . . . to produce reasoned
structures but rather lists of contracts and actions which would be useful in practice because
they suited the typical and recurrent particular needs of litigants. […]
They were not general concepts, which are formed by means of abstraction from the
particular and by the logical processes of generalization and subsumption, and then applied
syllogistically in the form of norms. When legal practice and teaching are purely empirical,
legal thinking always moves from the particular to the particular and never tries to rise
from the particular case to the general principles from which the decision in the particular
case can then be deduced. (M. Weber, 1956)

• Legal reasoning is ultimately seen as a matter of categorisation of facts in relation

to the availability of legal actions  remedies model of legal reasoning (ubi
remedium, ibi ius)
 The common lawyers attitude towards law: procedural thinking
and procedural language

The remedies model of legal reasoning: The Judicature Act abolished forms of action.
It did not affect neither causes of action nor legal mentality

“I propose to begin by speaking briefly of the Forms of Action, with especial relation to those which protected the possession and
ownership of land. It may---I am well aware of it---be objected that procedure is not a good theme for academic discussion.
Substantive law should come first--adjective law, procedural law, afterwards. The former may perhaps be studied in a
university, the latter must be studied in chambers. As to obsolete procedure, a knowledge of it can be profitable to no man, least
of all to a beginner. With this opinion I cannot agree. […] Let us remember one of Maine's most striking phrases, "So great is the
ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually
secreted in the interstices of procedure." [Maine, Early Law and Custom, p. 389]. […] The system of Forms of Action or the
Writ System is the most important characteristic of English medieval law, and it was not abolished until its piecemeal
destruction in the nineteenth century.
What was a form of action? Already owing to modern reforms it is impossible to assume that every law student must have heard
or read or discovered for himself an answer to that question, but it is still one which must be answered if he is to have more than
a very superficial knowledge of our law as it stands even at the present day. The forms of action we have buried, but they still
rule us from their graves” (F.W. Maitland, 1909)
 The common lawyers attitude towards law: procedural
thinking and procedural language

• certain kinds of writs still exist in the modern practice of

common law (e.g. writ of habeas corpus)
• modern presentations of the law still often divide up the
material in terms of the traditional forms of action
• the most significant distinction that exists within Anglo-
American law is still based on the remedies that offer,
respectively, equity and common law
- Still today, equity provides a remedy in two typical situations :
1) where common law provides no remedy at all (e.g. trust)
2) where common law provides a less suitable remedy than equity (e.g. specific performance,
injunction)

- Senior Courts Act 1981, s 49: whenever conflict still existed between the rules of the two
systems, the rules of equity are to prevail in favor of those of common law.
 (iii) The role of legislation
and the style of law-making

• The influence of Roman Law on Common Law has never been more than
peripherical (Equity, mercantile law, maritime law)

• Notwithstanding Bentham’s passionate propaganda in the 18th century,

England was never affected by the idea of codification (no centuries-old tradition
of university-taught doctrine on which to build. Blackstone’s Commentaries on the Laws of
England , published between 1765 and 1767, was the first systematic portrayal of the
whole of English Law)

• England never had an explosive political upheaval such as occured in France

in 1789
 The role of legislation
and the style of law-making
• The main result of the reformist proposals of Jeremy Bentham: the Judicature
Acts (1873-1875) and, to a lesser degree, the enactement in the 19th and 20th
centuries of several statutes affecting substantive law, [e.g. the Bills of Exchange
Act (1882), the Sale of Goods Act (1893), the Law of Property Act (1925)]

• However, these statutes did not represent any legal breakthrough in the history
of English law

- the cover only particular areas of private law

- they could only be understood against the background of the unwritten common
law, as they use concepts and categories which invariably presuppose the rights and
doctrines which have been developed by the courts
 The role of legislation
and the style of law-making

• The differences between statute law ad common law (that is, judge made law)
in terms of the lawmaking authority can also be assessed by looking at the style
of legislation
• Typically English statutes consist of an exceptionally large amount of detail, at
the risk to be pedantic.

Article 6 of the European Directive on Liability for Defective Products :

A product is defective when it does not provide the safety which a person is entitled to expect, taking
all circumstances into account, including:
(a) the presentation of the product […]

Art. 3 Meaning of “defect” under the British Consumer Protection Act 1987:
[…] In determining for the purposes of subsection (1) above what persons generally are entitled to
expect in relation to a product all the circumstances shall be taken into account, including
(a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of
any mark in relation to the product and any instructions for, or warnings with respect to, doing or
refraining from doing anything with or in relation to the product […]
 (iii) The role of legislation
and the style of law-making

• the procedural attitude towards law  the very peculiar

style of English legislation

• originally courts regarded statutes “as an evil, a

necessary evil no doubt, which disturbed the lovely
harmony of the Common Law” (Zweigert and Kötz, 265).
This led the English legislators to go into great detail in
order to force the courts to give effect to their intentions
 (iv) The interpretation of statutes
• Literal rule: meaning is to be ascertained by application of the
rules of grammar and the finding of dictionary definitions

• Golden rule: the grammatical and ordinary sense may be

modified to avoid an absurdity or an inconsistency

• Mischief rule: when statutes are enacted to counteract some

mischief or defect for which the common law did not provide,
courts should “make such construction as shall suppress the
mischief and advance the remedy” (Heydon’s case 1584)

 To what extent does a purposive approach allow the courts to

depart from the words of a statute?
 The interpretation of statutes
AIDS TO CONSTRUCTION FOUND OUTSIDE AN ACT OF PARLIAMENT
• Parliamentary materials – Hansard
The days have long passed when the courts adopted a strict constructionist view of interpretation which
required them to adopt the literal meaning of the language. The courts now adopt a purposive approach
which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous
material that bears upon the background against which the legislation was enacted. Why then cut
ourselves off from the one source in which may be found an authoritative statement of the intention
with which the legislation is placed before Parliament? (Pepper v Hart 1993)
• Explanatory Notes and Pre-parliamentary materials
Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute,
and the mischief at which it is aimed, such materials are therefore always admissible aids to
construction. They may be admitted for what logical value they have. Used for this purpose Explanatory
Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory
committees, Government green or white papers, and the like. After all, the connection of Explanatory
Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle
are already treated as admissible (Westminster City Council v National Asylum Support Service 2002)
• Interpretation of legislation and the Human Rights Act 1998
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights [sect. 3(1) HRA]
If the court is satisfied that the provision is incompatible with a Convention right, it may make a
declaration of that incompatibility [sect. 4(2) HRA]