Lord Shaw of Dunfermline once remarked that if Res ipsa loquitur weren’t Latin, it would never have been elevated to the lofty heights of legal principle.* Eighty years later, the Supreme Court of Canada agreed, and the historic phrase has been banished from law practice in Canada. The federal Law Reform Commission expressed something of the same view about all Latin in the Criminal Code. In 1991 it encouraged deletion even of terms that had become everyday speech, such as in camera and ex parte. Since then, legal Latin – once the language entire of courts and statutes in the Anglo-Canadian world – has been pretty much ethnically cleansed from legislation and even judgments in many jurisdictions. In 2013, the British Columbia Court of Appeal issued a practice directive requiring lawyers appearing before it to “avoid overly formalistic language such as ‘this Honourable Court,’ ‘hereinafter,’ “heretofore,’ ‘aforesaid,’ or ‘learned.’ Use Latin phrases only when necessary.” Where the word learned is banned, can Latin phrases ever be seen as “necessary?” And “formalistic” is not, uh, formalistic?
Informality can be inclusive, sensible, and pro bono publico. But unilateral injunctions and private hearings will always sound more lopsided, secretive, and dumbed-down than advocacy heard ex parte and in camera. The Latin phrases carry historical and procedural nuance invisible in English. Ex parte motions are certainly unilateral, but generally we seek them in circumstances of great urgency and, occasionally, sharp (unfair) practice. No matter what you do to a technical language, it remains technical to some extent, and while wider access to justice is undoubtedly desirable, we will always require technicians to navigate the law. For better or worse, given its necessary complexity and comprehensiveness, the “people’s law” will always require specialist interpreters and analysts. Picking on Latin as a supposed barrier to justice is a little like calling someone Ms. but still denying her equal pay for equal work.
It surrenders to intellectual laziness, and smacks of the condescension of noblesse oblige. You could argue that such censorship, as political correctness, is yet another symptom of the European guilt-reflex endemic these days, as though correcting historical injustice resides in our own self-effacement, even as we enthuse over multiculturalism – Canadians of European descent being notorious for “I’m sorry,” even regarding our most benign self-expression. On this view, because the colonial imperialism of some of our ancestors caused serious harm, we must be fatally flawed, as with original sin, as though those ancestors had not also built nations that have proved to be the world’s most admired expressions of civil society. It’s a paradoxical, negative, often sanctimonious iteration of elitism or exceptionalism, and shows Quebec to be undoubtedly distinct: Quebeckers generally reject this self-denial as a curative for historical wrongs done to others.
Defensively, bigots glom on to these conspicuous expressions of cultural guilt, turning them back on their subscribers. Rational and empathetic as such impulses of reconciliation might seem, could it be that, paradoxically, they help fuel the irrationality and defensiveness of Donald Trump’s supporters, and maybe even some Brexiters? Many of these folks feel “dissed” by the modern “liberal” ethos of extravagant “inclusiveness,” excluded from it and scorned as others are invited into the expanding tent. They lack the intellectual subtlety to respond more reasonably: if the latest thing is tribalist grievance collection and assertion, they want in.
True enough, the Roman empire fell 1500 years ago, and Latin has had a good run long past that, in our (sacred) Law and our law, never mind that it will always run rich, if mostly unnoticed, in the blood of English and French. Robert Megarry’s Miscellany-at-Law: A Diversion for Lawyers and Others went through seven printings between 1955 and 1981 with its Latin asides and maxims untranslated. Yet in his A Second Miscellany-at-Law, published in 1973, Megarry writes that he has “recognised the accelerating disappearance of the classics as staple of education by inserting in the footnotes translations of those Latin phrases which are not sufficiently well known or explained by the context.” It lately occurs to me that a perfect thumbnail characterization of Donald Trump would be compost mentis, but I’m not sure how widely I can share it: to really get the shit-for-brains aspect, you have to know that when someone was mentally fit, law and medicine used to call him compos mentis – again, shorthand for the more complex “The guy’s got his wits about him.”
So Latin itself refuses actually to die. Like dark chocolate versus the Snickers bar, it never quite gives in to populist whim and self-satisfied ignorance. “Foreignisms,” and especially Latin and Greek, can be pompous and obscurantist. But to cleanse them not only eradicates the patina of a history shared by millions of people – the comfort and also the wisdom of experience – but narrows discourse and restricts wit.
As for res ipsa loquitur, it simply suggests that when the dog escapes your fenced yard, somebody must have left the gate open – in the jargon, there’s “a presumption of negligence”: the thing speaks for itself. It makes you wonder if Lord Shaw and our high court would have picked on the maxim if we had translated it, more vulgarly, “Things are looking bad for Junior.”
* Ballard v. North British Railway Co., 1923 S.C. (H.L.), 43 at 56. Literally translated, the phrase reads, “The thing speaks for itself.”