Language teachers talk about translators' "false friends" -- words in a foreign language that sound familiar, but are quite different. The classic example is the Spanish "embarazada," which does not mean embarrassed. Likewise, the Russian "magazin" means a shop, not a magazine (the latter translates as "zhoornal," cognate to journal).
I'm looking for examples of the legal historian's false friends -- terms (mostly English terms) that might sound familiar to a law student doing legal research today, but really mean something different from what the student would at first expect.
I've seen this, for instance, in my Second Amendment work. "Militia," for instance, pretty clearly meant something like "the armed able-bodied citizenry" (limiting citizens to first-class citizens of the time, and excluding blacks, Indians, and women) rather than "National-Guard-like force" or "small military band," which is what many people tend to think of when they hear "militia" today. Likewise, "free State" meant not "state independent of the federal government" but something like "democracy, republic, or constitutional monarchy" as opposed to a despotism. Neither of these terms have entirely lost the old meaning; but they have acquired enough of a modern meaning that the modern meaning may lead modern readers astray. Dean William Treanor points to another example, here of a change in grammatical convention:
Justice Thomas, Professor Amar, and others have assigned critical interpretive weight to the fact that, to quote Justice Thomas, "[i]n the Constitution, after all, 'the United States' is consistently a plural noun." This grammar would appear to suggest, as Justice Thomas and Amar have concluded, that the Constitution, as initially adopted, reflected the view that the United States was a collection of states, rather than one nation. What this reading misses, however, is the fact that, in the late eighteenth century nouns ending in "s" were commonly assigned plural verbs, regardless of whether the noun itself was plural or not, a rule gradually displaced as the nineteenth century progressed. It is true that "United States" was often matched with a plural verb in 1787 and consistently matched with a singular verb after the Civil War. But one cannot conclude simply from this change in grammatical practice that the dominant political theory changed, since the same verb shift occurred for the word "news," and there was no reconceptualization of "news."
(I can't personally vouch for the accuracy of this argument, but my sense is that Dean Treanor enjoys a very good reputation as a historian; and, more broadly, this is an example of the sort of thing I'm looking for, even if some might disagree with Dean Treanor's particular argument.)
Any suggestions? Please pass them along.
Seriously, I'm always surprised when law students misuse enjoin.
But now the unmodifed term "abortion" seems to mean "induced abortion," and no longer includes spontaneous abortion. Those of us educated years ago have endured some vicious verbal attacks when we forget how the usage has changed, at least among the general public.
If anyone has ever seen Top Gear, the hosts are constantly saying things like "Porsche have." So, while I always took the Constitution to mean "united States" (if I recall, that's even the correct capitialization), they very well could have meant "United States" and just been using the, then, proper verb conjugation.
Also, the linguistics term for "false friends" is a "false congnate." A great one in German is "brav." It means good, as in bravo (yet another word the Germans took from the french), but Americans in Germany regularlly talk about how good they were when the recused maidens from castles and when a German is in America isn't unusual to see them talking about how brave they did on a test.
I confess to being a bit confused by the word "enjoin." My understanding is that it can mean BOTH "to order someone to do something" and "to forbid someone from doing something." In most of the cases I have read, however, it usually has only the second meaning. I am not a law student or lawyer myself, but I'm curious if anyone can enlighten mean.
The Russian magazin is just French (magasin), but it is a pretty good example of a false friend. (Just like the Spanish librería/biblioteca fiasco.)
In legal history, thinking about it in this way inevitably leads one to a discussion about legal doctrines and concepts that have changed significantly over time. That's why the example from professor Treanor is a much better example of how a false friend can get in the way of legal research than the militia example.
Just out of curiosity, would you happen to know if the British or US usage of "table" is current in tehe Canadian legislature?
Even though this definition is marked in the OED as "obsolete", I have a hard time calling the use of "enjoin" to mean "join" an error.
And I recently heard a major political figure (Chris Dodd?) tell a story on himself centered on assuming the Spanish word for embarassed would be a cognate.
In legal text, I'm often confused by words with the "ee" ending. Payee is familiar enough, but who is the alienee?
My American Heritage Dictionary gives the origin as the Arabic mahazin, the plural of mahzan, from hazana: to store.
Fascinating. Not being familiar as I would like to be with the philosophical use, could you expand this a bit more?
1. malice - to mean reckless disregard for truth as opposed to ill will
2. republican form of government - many lawyers and non-lawyers alike understand that small-d-democratic has a meaning separate from Democratic Party policy, but have no idea that small-r-republican is even a word, let alone a critical concept. Indeed, many of the concepts that I consider truly "republican," in the sense that government is limited, such as free speech, are now called "democratic" values, even though the whole idea is precisely ANTI-democratic.
Kind of like sanction, eh?
Surely there are lots of such legitimate examples.
Also, even though the matter is still under litigation and subject to change, we are given to understand by our government that "enemy combatant" actually can mean financial computer hacker and/or identity thief, as well as [...] .
Don't even get people started on "war on terror," which also is a work in progress, lexicographically speaking.
While "lawyer" and "attorney" are synoyms, their roots are completely different. A "lawyer" is a person trained in the law and authorized to appwar in court.
"Attorney," on the other hand, is a person authorized to act on someone's behalf--whether in court or elsewhere.
Thus someone who holds a Power of Attorney is an Attorney-in-Fact--and may not be a lawyer at all.
Because of this, "Attorney at Law" is not redundant.
As I have started reading British news accounts, I have discovered that the British have different rules for matching verbs with collective nouns. Amar and Justice Thomas may be correct that the verb usage is significant or it could be that American English has evolved away from British English in this area.
Oh yeah and there is this old joke:
Are there any news?
Not a single damn new.
While "lawyer" and "attorney" are synoyms, their roots are completely different. A "lawyer" is a person trained in the law and authorized to appwar in court.
"Attorney," on the other hand, is a person authorized to act on someone's behalf--whether in court or elsewhere.
Thus someone who holds a Power of Attorney is an Attorney-in-Fact--and may not be a lawyer at all.
Because of this, "Attorney at Law" is not redundant.
Good example. That's why I always use the, originally French, word of jurist to describe myself. (I have a law degree but I'm not a member of the bar.)
You wanted to know what Zathras was talking about with respect to subjective/objective. As I faced that exact same problem when I came to law school, I shall attempt to elaborate.
The law views "subjective" with respect to the the individual, and "objective" with respect to majority views. Thus, while my belief that I had permission to enter Blackacre might be subjectively reasonable (i.e., it's really, truly reasonable to me) it might be "objectively" unreasonable in the sense that pretty much everyone else would say that, no, I had no business infering permission from the fact that the sky had turned green and just last night I had been praying for a sign that I could enter Blackacre.
In Philosophy, on the other hand, both of those uses would be subjective, becuse they are both concerned with how people are interpreting things; it doesn't matter if everyone in the world agrees on something -- unless it's actually based in hard, physical reality (or in some valid conclusion drawn therefrom) it's not objective.
It drives those of us who care about such things nuts to hear the phrase "objectively reasonable" because the idea of reasonability inherently involves subjective judgments. Even if every sentient being in the universe acknowledged something's reasonability, it would still be a subjective judgment, made billions and trillions of times over.
That's what, I'm fairly certain, Zathras was talking about.
I think that just as the meaning of "militia" has changed in 250 years, so has the meaning of "individual".
Free Speech Zone!!
:)
So, for example, the President must give a State of the Union address "from time to time." That doesn't mean that he has to do it every once in a while, but rather that when it does, it must cover the period since his last State of the Union address.
My guess would be, one assumes "on the table" while the other "into the table". A similar expression in Russian is "put into a long drawer" (but that has very specific historic connotations). Compare also "run for an office" with "stand for an office" (St.Sebastian-like?). Gives an idea of an American preference for dynamism. Also, on the other end of an office: "step down" vs. "stand down" (moving without moving?)
I don't have it before me to quote, but it's a handy thing.
—Ah, the same thing apparently is included in his book on the Federalist Papers, Explaining America. Here's his lovely example:
"Your argument is obnoxious, but it will be liquidated once its specious character is uncovered." That sentence would not be considered friendly today. But its terms were not hostile in the eighteenth century. We need to translate: "Your argument, though exposed to malice, will become clear when its attractive distinction is revealed."
Tony Soprano: "New Jersey?!"
I liked the case of the diplomat to the US, who, upon seeing a cute child, told people "my wife is unbearable." Upon seeing them confused, he added "my wife is inconceivable." Finally, he explained "My wife cannot have children."
Someone above mentined 'prosecute' noting that it does not always reside in the criminal law. I prefer the even older term 'prosecutrix.' It presumably denotes the plaintiff in a civil suit, although i think i also remember it referring to simply the party pursuing the appeal (so could be a losing defendant).
Its like a sexy combination of prostitute and dominatrix*, which may well accurately describe a sizeable portion of today's plaintiff-side civil bar. Or maybe it was the slip of the tongue of a senile and perverted judge whose mishap made it into the reporters to be followed by other judges. Either way, i think it should get more use. I would love to refer to opposing counsel's (male or female) argument or theory as the prosecutrix's. Some juries and judges may dig it.
(be sure to know your audience before use)
*No offense meant to any members of the civil bar at this site.
In the British usage, the "table" is the one that the government and opposition front benchers sit at. Before a motion can be discussed, or a document can be referred to, it must be put on the table, so that other people can read it and be able to address it. "Tabling" something is the same thing as "introducing" evidence in court.
I work for a minister in the Canadian govt and, yes, to "table" something means to "introduce it [into the record]." One can table legislation; table a document one is quoting from; table one's expenses; table a document about which there is some controversy. Etc.
Actually, sometimes our language is even more antiquated than the Brits. For ex, we refer to 'ridings', whereas now the English now call them constituencies. Same goes, I think, with New york property law, which is far more arcane and antiquated than what is used in England &Wales nowadays.
AV
In British English, an issue is moot if it is appropriate for discussion; it is proper to bring up at a meeting (a moot). In American English, it is moot if it is no longer relevant to discussion. Likewise, "to moot" in British is to place a topic before the meeting, while in American it is to render a topic irrelevant.
Sounds an awful lot like the commentary often seen here.
At least here in northern BC, although we have "ridings", we have "constituency associations" and "constituency assistants".
Huh? So the Founders would said "sassafras are delicious"? Somehow I doubt that. No, anyway you slice it "states" is a plural noun. Now, I can easily buy the argument that "the United States" gradually came to be seen as singular (it is one nation after all), but for a while the plural nature of the noun dominated grammatically, without much bearing on political views. After all we still treat "pants" and "glasses" as formally plural by grammar even though we obviously know they are singular objects. By the way, how did the Founders speak about "the Papal States"? For that matter, isn't "Les Etas units", "os Estados Unidos", "die Vereinigten Staaten" and so forth still treated as gramatically plural in those languages?
But the social invitee is actually a "licensee."
I think that there is no implication about whether these are several united States or one Nation; it is simply more convenient to say it in singular, as other countries' names are also in singular (except The Netherlands ("los Países Bajos"), but we say Holland any way).
In my view, the plural form ("los Estados Unidos") is more elegant.
"Art" was simply a mode of doing things (that's the meaning in German, for instance), basically technology. That's why we still use a qualifier "fine arts" when talking about paintings etc.
The same is true of "monopoly," which once referred to a government-privileged entity against which it was illegal to compete, a la the playing card monopoly in Darcy v. Allen. But during the mid-ninteenth and twentieth centuries, it came to refer simply to whatever successful business the speaker wanted to slander. Justice Brewer commented on the way this word was being redefined in 1892 in his dissent in Budd v. New York: "There are two kinds of monopoly; one of law, the other of fact. The one exists when exclusive privileges are granted. Such a monopoly, the law which creates alone can break; and being the creation of law, justifies legislative control. A monopoly of fact any one can break, and there is no necessity for legislative interference. It exists where anyone by his money and labor furnishes facilities for business which no one else has. A man puts up in a city the only building suitable for offices. He has therefore a monopoly of that business; but it is a monopoly of fact, which anyone can break who, with like business courage puts his means into a similar building."
Whatever one's political attitudes toward modern corporations or "monopolies," it is extremely misleading to quote antique statements about these two things as if the words meant the same thing in 1799 as they did in 1899.
A few months and a couple trips to my Civil Law Property course later I learned that usufruct means, as Black's defines the term, "a right to use another's property for a time wihtout damaging or diminishing it, although the property might naturally deteriorate over time." I am proud to report, despite my friends lack of confidence, that I eventually excaped law school with a degree and am now able to pass over usufruct and similar words without batting an eye.
"Breaking" as in "breaking and entering." Breaking means simply to cross a barrier, even if it is done without damage. If you leave your door unlocked, and I go into your house to steal your TV, I have "broken" into your house, even if I never caused damage.
"Prayer," which means a request, not necessarily one addressed to God.
"Art" means any skill, even one which is technical. Thus, being an auto mechanic is an "art"
"People," "person," and "persons" appear non-interchangeably throughout the Bill of Rights,
"People" meant something rather different than "plural form of person" back then. Hence the fourth Amendment starts with, "The right of the people to be secure in their persons . . ."
Re: the Second Amendment, besides considering the changed meaning of "militia," "well regulated," and "the People," there is the issue of what counts as "arms." E.g. "concealed firearms" made no sense in an era when all firearms were too large to conceal. you might as well wonder whether the right to own a car encompasses the right to carry a concealed car. Likewise with automatic, semi-automatic, easily reloadable, or accurate at any distance firearms. Whaatever they were talking about, it wasn't the firearms we deal with today.
(Digression: I had a professor who used to say that the existence of the term "non-lawyer" tells you everything you need to know about lawyers, adding: "Did you ever hear of a non-dentist?")
To a lawyer, it indicates at least mild approbation: you could make a case for it, but I'm too lazy to do it at the moment, and it's not critical to the point I'm making. To non-lawyers, it tends to have a more hostile connotation - to say it's "arguable" implies that it's unlikely to be valid or true.
a patent (to land)
solicitor (still used in the UK, so not really historical)
Another good one is "equity". This is probably the best one I can think of to make Professor Volokh's point about the terms in the Second Amendment. The colloquial sense of "equity" is fairness. On the other hand, the legal meaning of a court of equity has only a tangential relationship to that meaning. I don't mean that courts of equity are unfair, simply that the term doesn't refer to a court that is more or less fair than any other court. Rather, it refers to a court that hears the kinds of cases that the Chancellor in the traditional English system heard.
The word "science", in the copyright clause of the Constitution, is another example. This is generally taken not to mean "science" as we use the term now (in fact, that is actually subsumed in another portion of the clause, referring to "useful arts"), but rather to literary works of authorship.
An obscure one is "manual tradition" in property law. "Tradition" doesn't refer to something that has been done consistently over time. It just refers to handing a deed from one person to another.
"Actual malice" is a very good one. It doesn't mean that a person is actually malicious; it means the opposite, a sort of presumed malice that comes from recklessly disregarding the truth.
(Of course, if I were to get snarky, I might also mention "citizens of another State" in the Eleventh Amendment, which to a majority of the Supreme Court apparently means "citizens of the same State". I know, I know.)
Maybe she's just inscrutable!
Dilan,
I've got to disagree with you on this one. The Chancellor (and, subsequently, the Courts of Chancery) in England was precisely intended to act as a court that was FAIRER than the common-law courts. In a common-law court, the law may have required a lawful, but unfair, result; the plaintiff's redress was, instead, to pursue his case in Equity. ("Equity will not suffer a wrong without a remedy" is a maxim explicitly in contrast to the common-law courts, which all the time allowed a wrong to exist without a remedy.) Of course, there were limitations on the jurisdiction, power, and remedies of the Chancery, but the fundamental purpose for its existence was to establish justice that could not be found in the common-law courts.
I think the Philippines, the Maldives, the Northern Mariana Islands, and the Turks and Caicos Island are still plural (as were the United Provinces, back when that's what we called the Netherlands).
I would think that countries with two-part names such as Trinidad-and-Tobago and Bosnia-and-Herzegovina ought also to be plural, but it wouldn't surprise me to find that we're forced them into the Procrustean bed of singularity.
In our legal system, Courts sit in both law and equity and while there are some exceptions, the simple way to remember the distinction is that ir something is tried "at law" then a jury can help decide the facts. If, on the other hand, you are seeking an "equitable" solution then the judge alone resolves factual and legal issues (think of injunctions or habeas corpus relief).
In the old English system, the Chancery Courts could issue an injunction preventing a ruling from a Law Court from being carried out. Again using habeas corpus as a current example, a court sitting in equity can enjoin the warden from executing a condemned inmate, even though there is a valid legal judgment calling for that inmate's death.
I realize this is very counter-intuitive.
PRODUCER (offscreen): The post title's been changed -- it's "ideology," not "politics."
LITELLA: Ideology? Well, that's completely different. Never mind, then.
At a museum, I saw several different paintings entitled: "The Deposition of Christ." You can imagine my thoughts.
So Christ not only saved, he made deposits?
Fee simple absolute!
The first time I ran across those words in law school I think I stared at them for 10 minutes trying to find any combination of meanings for those three words that would make any sense at all when combined.
It became a lot more clear when I learned that "fee" derived from fief.
It's not a legal false friend, but I wish you would've included this in your blog, EV- in German, the word "gift" means poison.
The "to" and "from" are only symbols of the underlying difference between the two; the real difference is that "freedom to" promises opportunity, while "freedom from" promises security, usually by interfering with somebody else's "freedom to". These usages are pretty much antithetical and since the version of "freedom" being talked about is often unspecified, even in the speaker's own mind, the word has developed an ambiguity that can mislead.
The difference you're trying to express sounds similar to the political philosophy notion of "negative rights" and "positive rights", where libertarians usually disfavor claims of positive rights -- but it isn't quite the same. For instance, a "freedom from offensive speech", if it existed, would be a negative right, just as with a "freedom from offensive physical contact", which we call a law against battery.
The difference between the two is not a matter of "freedom from" or "freedom to". It is that certain claims of "freedom" or "rights" are just and defensible, and others are not. The distinction is not to-and-from, but right-and-wrong. It is right to use the force of law to defend others from battery; it is wrong to use the force of law to defend others from speech.
* In the same vein, many readers may not understand the Constitution's references to Bills of Attainder and Letters of Marque and Reprisal.
* When the Framers refer to "inferior" tribunals or "inferior" officers, they are not using that term disparagingly.
* What is "corruption of blood"?
* When writers in the eighteenth and nineteenth centuries refer to "parliaments" and "senates," they are often referring to any legislative assembly, and not necessarily to the British Parliament or the U.S. Senate. Likewise, writers of those periods will sometimes refer to the President as the "Chief Magistrate."
* And, clearly, writers in former centuries used the term "intercourse" to refer to conversation, commerce and a wide range of activites, whereas we limit the word's use to a more specific context. :)
One of the things that struck me years ago was the view of celestial space. They didn't know it was a vacuum so they though of it is a bright space.
But even if you limit the "freedom from" that you disparage to "freedom from private action," why do you think people of the Framing Era wouldn't conclude that "freedom" could indeed mean freedom from private action?
This is only a partial answer to the good questions you raised but it's the best I can do at the moment; I'm bushed, beaten and ground to rubble under the wheels of a gardening wife, and at any rate this thread is pining for the fjords. I may follow up with an e-mail.
Has the abortion thing really gone that far? 30 years ago when I was taking Obs-Gyn, one patient asked, "Why do doctors call a miscarriage an abortion?" I wasn't even familiar at the time with the word "miscarriage", although I'd heard it. But have doctors actually dropped the term "abortion" to apply to spontaneous cases, and picked up the words "miscarry" and "miscarriage"? They sound so quaint, but then you guys use "mistrial", and it's analogous.
Nuisance, mayhem, consideration, constructive, and assault. In each case, the legal meaning differs from the everyday English meaning. (I'm assuming the people reading this thread are familiar with the legal meanings; if not, please post, and I'll elaborate).
Another possibility is person. In everyday English, a pretty simple concept. In the law, a "person" includes a corporation, of course. Laurence Tribe has argued that chimpanzees should be deemed "persons" for the purpose of constitutional rights. Injured prisoners have sued police dogs on the basis that they were "persons."
Nuisance: doing something with one's own property that interferes with a neighbor's right to enjoy his.
Mayhem: dismembering or disfiguring another person (related to "maim").
Consideration: what one party to a contract gives in exchange for the other party's promise.
Constructive: treating something as though it happened, even though it didn't (for example, a landlord's conduct might be so bad as to constitute "constructive eviction" even though he never actually ordered his tenants to leave).
Assault: traditionally, a threatening action or gesture. If blows are actually landed, it's battery
"Molestar" is not the same as "molest." It mostly means to bother, to annoy. One has to be very careful to not translate as the word "molest" because it has mostly nothing to do with sexual abuse. In a court case for example, it would be much better to ask the individual to explain what he means by "molestar."
Another word that often came to mind when translating was to "excite." Mostly, in English we mean to be "upset" or "enthusiastic" but it may not be the case in Spanish. A person must be careful about translating the word as "excitar" which sounds more like "getting sexually aroused."