Legalese - The Language of the Courts
MOST PROFESSIONS HAVE THEIR OWN TERMINOLOGY - THE LEGAL ARENA IS NO DIFFERENT
Legalese also known or called court room English or legal jargon, words of art or terms of art,.....Not everything is as it appears in the legal arena nor is everything is spelled out. To understand the language you must be able to think conceptually because not everything in our law is written hence the "Unwritten law" the common law.
Legalese is the language of the American courts...When so called laymen (someone not learned in the law so to speak) walk in a court room and they hear English words being spoken... most people don't think anything of it but it is basically a separate language, it is formal American English and old English with Latin, and some French words making up the language of the court. There would be no need for the creation of law dictionaries if the courts were not using their own language yet there are many law dictionaries on the market by many different companies. First main thing to know is the state that you live in has the right to define a word, so one must look to the states statutory definition first and if the state has not defined a word or a term then you look to a law dictionary preferably one with case law or other authorities backing up the definitions.
One of the most important words to understand is the word "person."
Definitions are integral to statutory scheme and of highest value in determining legislative intent....To ignore definition section is to refuse to give legal effect to part of statutory law of state. State v. Taylor, 30 Wash.App. 89, 632 P.2d 892 (1981)
"When legislative body provides definition for statutory terms, it is that definition to which a person must conform his conduct" Seattle v. Koh, 26 Wash.App. 708, 614 P.2d 665 (1980)
Expressio unis est exclusio alterius. A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another. Burgin v. Forbes, 293 Ky. 456, 169 S.W. 2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100. Mention of one thing implies exclusion of another. When certain persons or things that are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred. Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. Black's Law Dictionary 6th Edition page 581
Hermeneutics. The science or art of construction and interpretation. By the phrase "legal hermeneutics" is understood the systematic body of rules which are recognized as applicable to the construction and interpretations of legal writings. Black's Law Dictionary 6th Ed. page 727.
Construction. Interpretation of statute, regulation, court decision or other legal authority. The process, or the art, of determining the sense, real meaning, or proper explanation of obscure, complex or ambiguous terms or provisions in a statute, written instrument, or oral agreement, or the application of such subject to the case in question, by reasoning in the light derived from extraneous connected circumstances or laws or writings bearing upon the same or a connected matter, or by seeking and applying the probable aim and purpose of the provision. Drawing conclusions respecting subjects that lie beyond the direct expression of the term. The process of bringing together ans correlating a number of independent entities, so as to form a definite entity. Black's Law Dictionary 6th Ed. p. 312-313
Pari Materia. Latin. Of the same matter; on the same subject; as, laws pari materia must be construed with reference to each other. Bac.Abr."Statute," I, 3; Dupont v. Mills, Del., 196 A. 168, 177, 119 A.L.R. 174. Black's Law dictionary 4th Edition page 1270
Definition. A description of a thing by it's properties; an explanation of the meaning of a word or term. Webster. The process of stating the exact meaning of a word by means of other words. Worcester. See Warner v. Beers, 23 Wend., N.Y., 103; Marin v. State, 19 Ind. 181.Such a description of the thing defined, including all the essential elements and excluding all nonessential, as to distinguish it from all other things and classes. Wilson v. Else, 204 Iowa 857,216, N.W. 33, 37. Black's Law Dictionary 4th Ed. page 510
Four Corners rule. Under "four corners rule", intention of parties, especially that of grantor, is to be gathered from instrument as a whole and not from isolated parts thereof. Davis v. Andrews, Tex. Civ.App., 361 S.W.2d 419, 423. Black's Law Dictionary 6th Ed. p. 657
Interpretation. The art or process of discovering and ascertaining the meaning of a statute, will, contract, or other written document. Black's Law Dictionary 6th Ed. p. 817-818
Case system. A method of teaching or studying the science of the law by a study of the cases historically, or by the inductive method. It was first introduced in the Law School of Harvard University in 1869-70 by Christopher C. Langdell, Dane Professor of Law. See case book. Black's Law Dictionary 6th Ed. page 216
Prima Facie. Lat. At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. State ex rel. Herbert v. Whims, 68 Ohio App. 39, 38 N.E. 2d 596, 599. Black's Law 4th Edition page 1353
Color of Law. "Color of Law" means "The appearance or semblance, without the substance, of legal right. State v. Brechler, 185 Wis. 599, 202 N.W. 144, 148. Black's Law dictionary 4th Ed. page 331
Substance. Essence; the material part or essential part of a thing, as distinguished from "form". State v. Burgdoerfer, 107 Mo. 1. Black's Law 4th Edition page 1597
Form. In contradistinction to "substance," "form" means the legal or technical manner or order to be observed in legal instruments or juridical proceedings, or in the construction or legal documents or processes. Antithesis of "substance." Phoenix Building & Homestead Ass'n v. Meraux, 189 La 819, 180 So. 648, 649. Black's Law 4th Edition page 780
Duly. In due or proper form or manner; according to legal requirements. Regularly; properly; suitable; upon a proper foundation, as distinguished from mere form; according to law both form and substance. Black's Law Dictionary 6th Ed. p.501
Supra. [Latin "above"] Earlier in this text; used as a citational signal to refer to a previous cited authority. Cf. INFRA. Black's Law Dictionary 8th Ed. page 1481
Infra. [Latin "below"] Later in this text. Infra is used as a citational signal to refer to a later-cited authority. In medieval Latin, infra also acquired a sense "within." Cf. INTRA;SUPRA. Black's Law Dictionary 8th Ed. p. 795
Ib. See Ibidem.
Ibidem. Lat. In the same place; in the same book; on the same page etc. Abbreviated to "ibid." or "ib." Black's Law Dictionary 6th Ed. p. 744 Note ibidem is now usual abbreviated as id or ID.
"For nearly 130 years, Black’s Law Dictionary has been the gold standard for the language of the law."
MORE DEFINITIONS FROM BLACK'S LAW
Common law. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of the those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from the usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American Revolution. People v. Rehman, 253 C.A.2d 119, 61 Cal. Rptr. 65, 85. It consists of those principles, usage and rules of action applicable to government security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. Bishop v. U.S., Tex., 334 F.Supp. 415, 418.
As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals. Calif. Civil Code, Section 22.2 provides that the "common law law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the Constitution or the laws of this State, is the rule of decision in all the courts of this state." In a Broad sense, "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking of special or local rules or customs. For Federal common law see that title. As a compound adjective "common law" is understood as contrasted with or opposed to statutory and sometimes also to "equitable" or to "criminal." Black's Law Dictionary 6th Ed. p. 276-277
Unwritten law. All that portion of the law, observed and administered in the courts, which has not been enacted or promulgated in the form of a statute or ordinance, including the unenacted portions of the common law, general and particular customs having the force of law, and the rules, principles, and maxims established by judicial precedents or the successive like decisions of the courts. See Natural law. Black's Law Dictionary 6th Ed. p. 1540
Common-law action. Action governed by common law, rather than statutory, equitable, or civil law. Black's Law Dictionary 6th Ed. p. 276
Case system. A method of teaching or studying the science of the law by a study of the cases historically, or by the inductive method. It was first introduced in the Law School of Harvard University in 1869-70 by Christopher C. Langdell, Dane Professor of Law. See case book. Black's Law Dictionary 6th Ed. page 216
Precedent. An adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established by prior cases. prior cases which are close in facts or legal principles to the case under consideration are called precedents. A rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. Also see Stare decisis. A course of conduct once followed which may serve as a guide for future conduct. See Custom and usage; habit. Black's Law Dictionary 6th Ed. page 1176
Stare Decisis. Lat. To adbide by, or adhere to, decided cases. Black's Law Dictionary 6th Ed. page 1406
Res Judicata. A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgement. Rule that a final judgement rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes as absolute bar to a subsequent action involving the same claim, demand or cause of action. Matchett v. Rose, 36 Ill.App.3d 638, 344 N.E.2d 770, 779. And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made. The sum and substance of the whole rule is that a matter once judicially decided is finally decided. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 415, 66 L.Ed.2d 308. See also Collateral estoppel doctrine; Final decision rule; Issue preclusion. Black's Law Dictionary 6th Ed. pages 1305-1306
Natural Law. This expression, "natural law," or jus naturale, was largely used in the philosophical speculations of the Roman jurists of the Anteonine age, and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning that by the word his whole mental, moral, and physical constitution. The point of departure for this conception was the Stoic doctrine of a life ordered "according to nature," which in its turn rested upon the purely supposititious existence, in primitive times, of a "state of nature;" that is, a condition of society in which men were universally governed solely by a rational and consistent obedience to the needs, impulses, and promptings of their true nature, such nature being as yet undefaced by dishonestly, falsehood, or indulgence of the baser passions. In ethics, it consists of practical universal judgments which man himself elicits. These express necessary and obligatory rules of human conduct which have been established by the author of human nature as essential to the divine purposes in the universe and have been promulgated by God solely through human reason. Black's Law Dictionary 6th Ed. page 1026
Statute, n. An act of legislature; a particular law enacted and established by the will of the legislative department of government; the written will of the legislature, solemnly expressed accordingly to the forms necessary to constitute it the law of the state. Federal Trust Co. v. East Hartford Fire Dist.(C.C.A.)283 F. 95, 98 ; In re Van Tassell's Will, 196 N. Y. S. 491, 494, 119 Misc. 478; Washington v. Dowling, 92 Fla. 601, 109 So.588, 591. This word is used to designate the written law in contradistinction to the unwritten law. See Common Law. Black's Law Dictionary 3rd Ed. p. 1655
Rule of Law. A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "Rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called "the supremacy of law" , provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. see e.g. Rule against perpetuities, above; also, Shelley's Case, Rule in. See also Stare decisis. Black's Law Dictionary 6th Ed. p. 1332
Organic Law. The fundamental law, or constitution, of a state or nation, written or unwritten. That the law of system of laws or principles which defines and establishes the organization on its government. Black's Law Dictionary 6th Ed. page 1099
Law of the Land. Due process of law (q. v.). By the law of the land is most clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgement only after trial. Dupuy v. Tedora, 204 La. 560, 15 So.2d 886, 891. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Rich Hill Coal Co. v. Brashore, 334 Pa. 449, 7 A.2d 302, 316; In re Stobie's Estate, 30 Cal.App.2d 525, 86 P.2d 883, 885. Everything which may pass under the form of an enactment is not the law of the land. Sedg. St & Cost.Law,(2d Ed.) 475. When first used in the Magna Charta, the phrase probably meant the established law of the kingdom, in opposition to the civil or Roman law. It is now generally regarded as meaning general public laws binding on all members of the community. Janes v. Reynolds, 2 Tex. 251; Beasley v. Cunningham, 171 Tenn. 334, 103 S.W. 2d 18, 10, 110 A,LR. 306. It means due process of law warranted by the constitution, by the common law adopted by the constitution, or by statutes passed in pursuance of the constitution. Mayo v. Wilson, 1 N.H. 53.
"Law of the land", and "due course of law" and "due process of law" are synonymous. People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, R.I. 284, 43 A.2D 323, 326; Black's Law Dictionary 4th Ed. pages 1031-1032
RULE OF DECISION ACT 1789. Section 34 of the Judiciary Act of 1789-the famous Rules of Decision Act-provided that the " laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. The statute has remained substantially unchanged to this day. See U.S.C.A. SEC. 1652 Black's Law 6th Ed. p. 1333
Court of Record:
1. Keeps a record of the proceedings
2. The Tribunal is independent of the magistrate
3. Proceeding accordingly to the common law
4. Power to fine or imprison for contempt
5. Generally has a seal
Jones v. Jones, 188 Mo. App. 220, 175 S. W. 227, 229; Ex parte Gladhill, 8 Metc. (Mass.) 171, per Shaw, C. J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N. E. 688, 689. Black’s Law Dictionary 3rd Edition 1933, page 458
The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution. Mulger vs. Kansas, 123 U.S. 623 (1887)
CASE LAW EXCERPTS FROM MICHIGAN AND WASHINGTON STATE
Definitions are integral to statutory scheme and of highest value in determining legislative intent....To ignore definition section is to refuse to give legal effect to part of statutory law of state. State v. Taylor, 30 Wash.App. 89, 632 P.2d 892 (1981).
"When legislative body provides definition for statutory terms, it is that definition to which a person must conform his conduct" City of Seattle v. Koh, 26 Wash.App. 708, 614 P.2d 665 (1980)
"A related, consistent principle of statutory construction is that the express mention in a statute of one thing implies the exclusion of another similar things. Stowers v. Wolodzko, 386 Mich. 119, 133.
"...when a statute specifically defines a given term, that definition alone controls. Detroit v. Muzzin & Vincenti, Inc., 74 Mich.App. 634, 639 (1977)
