What is legal language
4.1.1 Preliminary remark on legal terminology
Lawyers mostly use everyday language; they have to do this for the simple reason that legal texts are often not only aimed at experts and must also be understandable for addressees who are unfamiliar with the law or a wider audience.
Examples: Laws, Reasons for judgment, Contracts.
On the other hand, the legal language is also a technical language: It has many peculiarities that sometimes give rise to complaints (in the sense of everyday language!), For example about the impenetrable legal "technical jargon" in an official order or the clauses "small print" in one Contract.
Special features of legal terminology:
Statutory regulations must necessarily be schematic; a determination should always cover a whole group of cases. The casuistic method, which tries to grasp the whole variety of life facts through the most detailed standards possible, has largely been overcome in today's legislation. Instead, the legislature deliberately assumes that a legal order must always and inevitably remain incomplete, formulates the regulations abstractly and trusts the ability of the courts with regard to the appropriate application in each individual case.
Example: “Whoever owns a Thing is, can dispose of it at will within the limits of the legal system. "(ZGB 641 I)
(The abstract nature of the legal language does not exclude the possibility that the legislature sometimes helps general or [generic] terms to be more clear by listing examples.)
Example: ZGB 670
Example: OR 253
Legal language can be compared to a tool that is primarily used to produce clear, unmistakable texts - precision and logic therefore take precedence over elegance and aesthetics. Exceptions are, for example, preambles in international treaties and constitutions, where pathos is not uncommon.
Example: Preamble BV
Conciseness vs. Verbosity
Legal texts are often straightforward and concise. They are usually limited to the most important things, not least in the service of clarity. Sometimes, however, they also show a considerable level of detail; This is mostly the case in areas of law where the principle of private autonomy does not prevail and which the state has largely regulated through mandatory law to protect individuals or the general public.
Example: BetmG 19 I.
But even in contracts, the parties often make very detailed regulations. The point of this is within the framework of the Private autonomy to create an individually satisfactory, "tailor-made" legal relationship and at the same time to prevent ambiguities from arising, which in the event of a dispute a court has to decide on the basis of the general norms provided subsidiary by law. Because then there is the risk for both parties, even for the winning one, that the authoritative determined solution will turn out to be unsatisfactory or suboptimal. In any case, settling a dispute in court is often associated with a risk of loss that is difficult to calculate for both parties, as the outcome of the proceedings is rarely predetermined with complete certainty.
Very detailed regulations can also be found in so-called mass contracts. Here, a party (e.g. a large company) who enters into the corresponding contractual relationship on a commercial basis and has the edge in terms of specialist knowledge and experience, works out a standard contract (which includes its own interests and security needs in detail), which is then issued globally by all customers, i.e. without actual Contract negotiations in detail, is accepted.
Example: General terms and conditions (they are part of the credit card contract) for the use of a UBS Mastercard
Above all, special laws that deal with technical matters and are primarily aimed at experts and specialized authorities are often highly technical. They contain many technical terms, references to other laws and standardized norms.
Example: Art. 7 of the Ordinance on Exhaust Emissions from Ship Engines on Swiss Waters (Emission Limit Values)
Technical terms that require interpretation
One of the pitfalls of legal language is that it uses legal terms, the meaning of which sometimes does not or only partially corresponds to everyday language usage. However, knowledge of the exact meaning of these specific legal terms is a necessary prerequisite in order to be able to decide whether the constituent features of a standard are met (i.e. whether a certain issue is to be subsumed under the law) so that the corresponding, legally established legal consequences occur. Sometimes the law itself defines the terms used (legal definitions; see the "belonging" of a thing in ZGB 644 II). In most cases, however, their meaning has to be determined by interpreting the text of the law.
According to Art. 22 of the Federal Act on Spatial Planning, “buildings and facilities” may only be erected with official approval. This will only be granted if the legal conditions are met (e.g. zone conformity, sufficient access, connection to the sewer system, etc.) What about when X, who is tired of civilization, sets up a caravan on his allotment plot, which is outside the construction zone, directly on the edge of the forest want to leave the city noise behind at least on the weekends and spend the night in nature? Here the central legal question arises as to whether or not a caravan is to be understood as a “building” within the meaning of the law. Depending on the situation, the erection of the caravan would either require a permit and the authorities could prevent the project (e.g. due to lack of zone conformity). Or X could easily make himself comfortable in his caravan without worrying about any building law requirements, since the building law provisions are not applicable to his case.
Federal law does not comment on what exactly is meant by “building”; It must therefore be interpreted: According to federal court rulings, buildings are: "at least those artificially created and permanent facilities that are in a certain fixed relationship to the ground and are able to influence the usage regime, because they either change the space considerably from the outside, the development pollute or affect the environment. This also includes mobile structures [Fahrnis = movable object], which are used in a stationary manner for not inconsiderable periods of time. " This is a very general definition with numerous indeterminate formulations, which in any case does not provide a direct, generally applicable answer on the tablet to the legal practitioner interpreting the law, as to how caravans are generally to be classified. So he has to Research the criteria on the basis of which something becomes a “building” in the sense of the law. This ultimately shows whether a certain caravan in a certain area is to be subsumed under this.
In their building laws, the cantons often stipulate further clarifications of the concept of building under federal law in order to promote the application of the law with as little interpretation as possible and uniform handling of the building permit requirement. For example, in the canton of Zurich, the “Ordinance on the detailed description of the terms and content of the building law institutes (General Building Ordinance)” B. the term "buildings and facilities" described more precisely (caravans are not explicitly mentioned here either). The situation is different in the canton of Aargau, for example, where the building law provides a legal definition of “buildings” - with the explicit mention of caravans. If X’s allotment garden was in Aargau, he could see by looking at the law that his caravan is a "building" within the meaning of the law - and therefore requires a permit - if it has been "parked on the same property for more than 2 months".
Ambiguity of legal terms in different areas of law
Another peculiarity of legal language is that one and the same legal term can have a different meaning depending on the legal area or context. Incidentally, it may well happen that this divergence is not noticeable and that it only becomes apparent to the lawyer after a closer examination of the jurisprudence.
Example: Article 7, Paragraph 7 of the Federal Act on Environmental Protection contains a legal definition of “facilities”. However, this concept of an installation is not identical to that in Article 22 of the Federal Act on Spatial Planning (mentioned above).
Can you give an example of ambiguous legal terms?
Answer (click here)
- In criminal law (cf. StGB 14-21) guilt means the personal reproach for the injustice that has been carried out as a prerequisite for punishment.
- In the Code of Obligations there are various terms of debt: On the one hand in connection with an obligation (debtor, confession of guilt [e.g. OR 18 II], assumption of debt [e.g. OR 32 III] etc.); here guilt has the meaning of “liability” / “obligation”. On the other hand, the terms guilt [e.g. OR 53 I] and fault [e.g. OR 43 I] used in the context of tort [OR 41-61] and non-fulfillment of an obligation [OR 97-109]. The guilt terms of private law mentioned here do not necessarily agree with those of criminal law in the first case and in the second case. (That is why the civil judge is neither bound by the criminal law provisions on the sanity nor by the judgment of the criminal judge when assessing guilt or non-guilt [cf. OR 53].)
Latin terms and expressions
One often encounters Latin terms and formulas in the legal language, which is explained by the lasting influence of Roman law on our current legal system as well as by its grip.
in casu ("In the present / specific case"); ratio legis ("sense / purpose of the law"); in dubio pro reo (“In case of doubt, for the accused”; principle of criminal procedure law, according to which a decision must be made in favor of the accused if his guilt has not been properly proven.); pacta sunt servanda ("Contracts must be kept"); volenti non fit iniuria ("Whoever consents to an action, no injustice is done to him."); nulla poena sine lege (“No punishment without a law”; cf. StGB 17); lex specialis derogat legi generali ("If there is a special provision, it takes precedence over the general provision.").
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