Legalese: What are the origins of legal jargon?

In light of the fact that the judicial system is all anybody here can talk about these days, let’s take a look at some legal terminology and see what the words actually mean where they’re from.

 Al Pacino in ‘And Justice for All’ (photo credit: COLUMBIA PICTURES)
Al Pacino in ‘And Justice for All’
(photo credit: COLUMBIA PICTURES)

In the 1979 film And Justice for All, Al Pacino, in the role of defense attorney Arthur Kirkland, famously cries out,“You’re out of order! You’re out of order! The whole trial is out of order!” Given the spate of mass demonstrations that have been staged nationwide in Israel in recent months, one could justifiably exclaim, “This whole country is out of order!”

In light of the fact that the judicial system is all anybody here can talk about these days, let’s take a look at some legal terminology and see what the words actually mean and whence they were derived. 

The history of legal terminology

We’ll start with one of my favorite words, “exculpatory.” Even before I knew what it meant, I always liked the sound of the word whenever I heard it used on TV crime shows or legal dramas. 

“Exculpatory” is an adjective that means ”tending or serving to clear from alleged fault or guilt.” The term is derived from a combination of the prefix ex, meaning “out of” or “away from,” and the Latin noun culpa, which means “blame” or “guilt.” Thus something that is exculpatory frees one from accusations, such as exculpatory evidence. For example, DNA found at a crime scene that does not match that of the defendant can be regarded as exculpatory. 

Conversely, “inculpatory evidence” is the term used to describe any direct or indirect evidence that links the accused to a crime, such as matching fingerprints. The word “evidence,” derived from Latin, is formed by the elements ex, which means “to take out” and the verb videre, which means “to see.” Thus in court, the only kind of evidence that is permissible is something that the judge can actually see or hear, such as objects (“exhibits”), photos, legal documents, emails, text messages, videotapes, taped recordings, and witness testimony. 

 The Jury, an 1861 painting by John Morgan of a British jury, all of whom then had to be men. (credit: John Morgan/Wikipedia)
The Jury, an 1861 painting by John Morgan of a British jury, all of whom then had to be men. (credit: John Morgan/Wikipedia)

An out-of-court statement made by a third party is called “hearsay.” This type of evidence is generally not admissible. Unless the judge can see the speaker and question him or her, such evidence is not deemed sufficient proof, be it proffered by the plaintiff or the accused. 

In regard to the accused, culprits commit crimes at all levels and degrees. But first, the derivation of the word “culprit.” In Anglo-French, the word “culpable” meant “guilty” and was abbreviated as “cul.” in legal briefs and texts. The word “culprit” was formed by combining this abbreviation with prest, prit, meaning “ready” – that is, ready to prove an accusation. Literally, then, a culprit was someone who was ready to be proven guilty. 

In the US, the criminal justice system divides criminal offenses into two categories: felonies and misdemeanors. Felony offenses are serious crimes, while misdemeanors involve low-level offenses. 

A felony is typically defined as a crime punishable by a term of imprisonment of one year or more. Misdemeanors are often defined as offenses punishable by fines or short terms of imprisonment in local jails. 

The term “felony” originated from English common law (from the French medieval word félonie) to describe an offense that resulted in the confiscation of a convicted person’s land and goods, to which additional punishments including capital punishment could be added.

The term “misdemeanor” comes from the word “demeanor,” which means “behavior toward others” or “outward manner,” itself derived from the verb “demean,” which in this context means “to conduct or behave (oneself) usually in a proper manner.” 

The most common types of felony offenses are drug crimes; violent crimes; theft; and sex crimes.

Misdemeanors may include criminal offenses such as drug possession; drunk driving; petty theft; assault; trespassing; vandalism; resisting arrest; and cyber crimes such as stalking or bullying.

However, times change and terms change. Thus in many common law jurisdictions (such as England and Wales, the Republic of Ireland, Canada, New Zealand, and Australia), crimes are no longer classified as felonies or misdemeanors. Instead, serious crimes are classified as indictable offenses, and less serious crimes are called summary offenses. 

The mention of Australia brings to mind the term “kangaroo court.” A kangaroo court is a mock court in which the principles of law and justice are disregarded or perverted. It is characterized by irresponsible, unauthorized, or irregular status or procedures. 

The term “kangaroo court” did not originate in Australia at all; it originated in the United States in the mid-1800s. Some believe that the phrase refers to the fact that these frontier legal proceedings first dealt with claim jumpers in the California Gold Rush; miners who illegally took other people’s land claims and were then tried in one of these quick, mock courtrooms. Others posit that the term refers to circuit judges who “hopped” from place to place, making their money through imposing fines on hapless defendants. 

Either way, a kangaroo court is the antithesis of what the judicial system was designed for. It was created to render justice, fairness, and truth. In fact, “truth” is embodied at the core of some of the most common terms associated with the justice system. 

When judges pronounce their decision at the end of a trial, they render their verdict. The term “verdict” comes from the Latin veredictum, which means “to say the truth.” It is derived from the Middle English word verdit, a compound of ver (“true,” from the Latin vērus) and dit (“speech,” from the Latin dictum, the past participle of dīcere, “to say”). 

By the same token, the jury is a body of individuals who are legally selected and sworn to delve into a matter and to give their verdict according to the evidence presented. The word “jury” is derived from the Middle English jure, from Anglo-French jurer, which means “to swear,” which dates back to the Latin word jurare. Ultimately, what jurors swear to do is to seek the truth. 

A subpoena is a written order to compel an individual to give truthful testimony on a particular subject. It is derived from the Latin phrase sub poena, which means “under penalty.” Essentially, a subpoena requires a person to provide information under oath about the facts that are at issue in a pending case. And, of course, witnesses must take an oath “to tell the truth, the whole truth, and nothing but the truth.”

While all this truth seeking and truth telling is going on, defendants in a criminal trial may try to prove their innocence by means of an alibi. An alibi is a claim or piece of evidence which shows that the person was elsewhere when an act, especially a criminal one, is alleged to have taken place. The word alibi is a Latin adverb which means “in or at another place.” 

Overall, the philosophy and theory of law is called jurisprudence. It is concerned primarily with what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. 

The term is derived from the Latin word jurisprudentia, which means “knowledge of law” or “skill of law.” The word juris means “law” and prudentia means “knowledge,” “science,” or “skill.” Thus “jurisprudence” signifies knowledge or science of law and its application. 

In Israel, it is the perceived tampering with the letter of the law that has half the country up in arms in opposition to the proposed judicial reforms, and the other half rallying to oppose their fellow citizens’ opposition. Let’s hope that this whole debacle resolves itself in an equitable manner – because many Israelis are so hopping mad, that they are threatening to take a leap of ill-faith and move out of the country. ■