The announcement that Latin is to be introduced as a new subject in English state schools got me thinking that you really don’t need to know Latin to understand Spanish criminal law, but it helps! Spanish criminal law textbooks generally commence with an explanation of the underlying principles of the discipline, many of which are rooted in Latin. In the event this may be of interest to followers of this blog, here is a brief overview of some of the basic principios del Derecho penal:

Principio de lex scripta, praevia et certa—principle that criminal laws must be written, clear and non-retroactive:

• lex scripta expresses the idea that criminal norms must be written (i.e., enacted in a statute or code)
• lex praevia prohibits retroactive or ex post facto criminal laws, embodying two principles (nullum crimen sine praevia lege; nulla poena sine praevia lege) that provide that only those who commit an act defined as an offense in a previously-enacted law can be convicted or punished, and
• lex certa underscores that criminal laws must be clear and unambiguous, being akin to the common law “void-for-vagueness doctrine” providing that a criminal statute that does not clearly specify what is allowed or prohibited is unconstitutional and a violation of due process.

Principio de nulla poena sine legale iudicio—principle that there can be no punishment without a legal (fair) trial with all due process guarantees

Principio de nulla poena sine culpa—principle that no one may be punished for a wrongful act if not culpable, nor inflicted with a punishment that exceeds the extent of his culpability

Principio pro actione—principle that the courts should facilitate access to justice

There are of course other criminal law principles that are not expressed in Latin (principio de la proporcionalidad de la pena; principio de la humanidad de las penas, etc.), as well as those concerning criminal trials and due process (el proceso penal y las garantías procesales), which I can perhaps address in a future blog post.

In nonlegal as well as legal texts it is customary to italicize foreign words and expressions. But when dealing with legal Latin that’s not always the case. Certain Latin expressions are in such common use that they are considered part of the legal English lexicon. After having checked several legal style guides (Blue Book; Cambridge Law Journal, California Style Manual, among others), I’m sharing below my lists of “don’t italicize” and “do italicize” Latin terms.

Note: There may be no hard fast rules here. Several terms appeared as “do italicize” in some sources and as “don’t italicize” in others. These include: ab initio, in loco parentis, caveat emptor and non compos mentis, etc.

Vacatio legis, literally the “absence of law,” refers to the postponement of the entry into force of a law and denotes the period between the promulgation and publication of a piece of legislation and its actual taking effect.

The Spanish Civil Code (article 2) initially provides that laws shall enter into force 20 days after their publication in the Boletín Oficial del Estado (or in the boletines oficiales of the autonomous communities), unless the text of the law states otherwise. Some laws may be designated as entering into force immediately upon their official publication, but others may require a longer period of preparation and adjustment. Such was the case with Spain’s new (at that time) Civil Procedure Act (Ley 1/2000 de Enjuiciamiento Civil), which replaced the former Ley de Enjuiciamiento Civil de 1881 and radically changed Spanish civil procedure. In that instance a year-long vacatio legis was deemed warranted to allow judges, lawyers and other legal professionals sufficient time in which to learn and implement the new rules.

Un caso aparte is Ley 20/2011 de Registro Civil, which seeks to completely overhaul Spain’s civil register system and was initially designated to enter into force three years after its publication in the BOE. After successive extensions (prórrogas) of this initial vacatio legis, the law was scheduled to completely enter into force on June 30, 2018. But with that date fast approaching, the vacatio was once again extended until until 2020. The law’s “Entrada en vigor” article (Disposición final décima) is worth reproducing to underscore just how complicated a vacatio legis provision can become, since parts of the law enter (or have already entered) into force on four different dates:

La presente Ley entrará en vigor el 30 de junio de 2020, excepto las disposiciones adicionales séptima y octava y las disposiciones finales tercera y sexta, que entrarán en vigor el día siguiente al de su publicación en el “Boletín Oficial del Estado”, y excepto los artículos 49.2 y 53 del mismo texto legal, que entrarán en vigor el día 30 de junio de 2017.

Lo dispuesto en el párrafo anterior se entiende sin perjuicio de la entrada en vigor el 15 de octubre de 2015 de los artículos 44, 45, 46, 47, 49.1 y 4, 64, 66, 67.3 y disposición adicional novena, en la redacción dada por el artículo segundo de la Ley 19/2015, de 13 de julio, de medidas de reforma administrativa en el ámbito de la Administración de Justicia y del Registro Civil.

Hasta la completa entrada en vigor de esta Ley, el Gobierno adoptará las medidas y los cambios normativos necesarios que afecten a la organización y funcionamiento de los Registros Civiles.

Read more here.

A previous blog post examined the meaning of “summons” and the contexts in which it can be translated as either citación or emplazamiento. But what about the related Latin term “subpoena”? “Sub poena” is Latin for “under penalty” (bajo pena), and a subpoena is an order to appear in court in which failure to comply will incur some form of punishment. “Subpoena” (a secas) generally denotes a “subpoena ad testificandum,” an order compelling a witness to appear in court to testify, specifying the time and date on which to do so. After the 1997 Civil Procedure reform, in England and Wales a subpoena is now known as a “witness summons.” A second form of subpoena, a “subpoena duces tecum” (“duces tecum” = “bring with you”) orders a witness to appear in court with documents, records or other items of evidence of interest in an ongoing trial.

Any translation of subpoena must reflect the fact that there will be a penalty for failure to comply with the terms of that order. Thus possible Spanish renderings of subpoena include citación con apercibimiento, citación coercitiva and citación intimatoria.

Venia, from the Latin meaning “grace,” “indulgence” or “favor” is frequently used in legal Spanish in at least two different contexts. When a lawyer in court addresses the judge asking for permission to proceed, he inevitably commences by saying “con la venia, Señoría” or “con la venia del Tribunal (or) de la Sala.” This corresponds to the English expression “May it please the Court,” a formalism dating from the early 17^th century that is still used in many Anglo-American jurisdictions when lawyers commence their oral arguments, as well as in written briefs submitted for the judge’s consideration.

In Spain venia also denotes a lawyer’s agreement to transfer a case to another colleague. When a client changes lawyers, his newly-appointed counsel must solicitar la venia, asking that the case be transferred to him. Likewise, the former attorney is said to dar (or) conceder la venia, turning over all of the case documents to the new lawyer and pledging to cooperate with him to ensure that it is successfully prosecuted.

Read more here and here

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of Latin expressions used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not generally used in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I believe legal translators will encounter most often.

fumus boni iuris ; periculum in mora

These two Latin expressions are not used in legal English, but they are nevertheless fundamental concepts in civil procedure in Spain and in many other Spanish-speaking jurisdictions. Indeed, these are the two requisites that must be present in order for a judge to grant a plaintiff provisional remedies (medidas cautelares)* in a civil proceeding. In that regard, the plaintiff must first demonstrate fumus boni iuris or, in Spanish, aparencia de buen derecho. It must be apparent that the plaintiff has a legal position warranting interim relief (situación jurídica cautelable) and that he has a prima facie likelihood of success on the merits. Secondly, the plaintiff must demonstrate periculum in mora or peligro por la mora procesal. Often translated literally as “danger in delay,” the periculum in mora requisite ultimately requires the plaintiff to demonstrate that there is a real risk of irreparable injury to him due to delay in the resolution of the proceedings.

*(In addition to “provisional remedies,” medidas cautelares can be rendered in English as “interim/interlocutory remedies,” “interim relief” and, if the relief ordered is an injunction (orden de hacer o no hacer), “injunctive relief.”)

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

 A few Latin expressions used in common law courts

When a party files a “motion to proceed in forma pauperis,” he is asking for legal aid and to be allowed to litigate without costs. In Spanish this is often rendered as solicitud de asistencia jurídica gratuita or, formerly, solicitud del beneficio de pobreza. A party who decides to defend himself at trial is said to “proceed pro se (or) pro per” (litigar sin abogado or ejercer el derecho de la autodefensa) and is known as a “pro se (or) pro per litigant”. In order to bring an action or appear in court a party must have standing (legitimación procesal), often rendered in Latin as locus standi, especially in British usage. One of the parties at trial will bear the burden of proof (carga de la prueba), called onus probandi, or simply onus, also most often used in Latin in British usage. And a lawyer who renders free legal services is said to work pro bono or pro bono publico (“for the public good”), a Latin expression also used among Spanish lawyers who provide trabajo pro bono.

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

Latin expressions with animus

Spanish legal texts (particularly textbooks on Derecho civil and Derecho procesal) are riddled with dozens of Latin expressions containing the word animus, denoting “willingness,” “intent” or “intention.” The required animus contrahendi, for example, must be present in order for parties to enter into a valid contract, or the presence of animus auctoris will determine whether the perpetrator of a crime actually acted with criminal intent. Here are these and some of the other expressions with animus that translators may encounter in their work:

• animus auctoris—intention or will to perpetrate a crime
• animus contrahendi—intention to enter into a contract
• animus derelinquendi—intention of abandoning property
• animus domini—intent to own
• animus donandi—intention of giving; intent to make a gift (donación)
• animus furandi—intent to steal or commit theft
• animus laedendi—intent to injure
• animus necandi—intent to kill (willful element of homicide)
• animus nocendi—intent to harm or cause damage
• animus novandi—intention of the original parties to an obligation to replace an existing obligation or party to an obligation with a new one (novación)
• animus possidendi—intention to possess as owner
• animus recuperandi—intention to recover property
• animus revocandi—intention to revoke a will
• animus socii—intention or willingness to assist in the commission of a crime as accomplice
• animus solvendi—intention of paying a debt or discharging an obligation (also rendered in Spanish as ánimo solutorio)
• animus spoliandi—intent to deprive or dispossess another of possession or enjoyment of property or rights in property
• animus testandi—testamentary intent; intention to make a will
• animus transigendi—willingness to make concessions or compromise; willingness to settle or to enter into a settlement agreement (transigir)

de cuius

The Latin term de cuius often appears in texts dealing with inheritance law (Derecho de sucesiones) and is an abbreviation of the expression de cuius hereditate agitur meaning “the one whose estate is at issue.” Thus, like causante (and often difunto, fallecido or finado) de cuius denotes la persona que causa o produce una herencia. In this context de cuius (as well as causante and the other terms mentioned above) may be rendered in English simply as “the deceased” or “the decedent.”