Legal English Shot – Don’t let yourself be “indoctrinated” by legal literature

Beware of false friends: Jurisprudence, doctrines and the legal literature

The French terms “doctrine“ and “jurisprudence“ (in German: “Lehre“ and “Rechtsprechung“) are often mistranslated in English with “doctrine” and “jurisprudence”.

The English term “jurisprudence” normally refers to the theory, philosophy and analysis of the law (Oxford dictionary of law: “Jurisprudence is the theoretical analysis of legal issues at the highest level of abstraction”). It is a subject studied in law schools.

In English, “jurisprudence” is not used to refer to the body of decisions or judgements rendered by a court. The past rulings of a court (“court precedents”) are contained in its “case law”. The notion of “arrêts de principe“ (in German: “Grundsatzentscheide) is usually best translated into English as “leading decisions” (UK) or “landmark decisions” (US).

A “doctrine” in legal English is an established notion or principle of law. One may say, for example, that the doctrine of res judicata in civil cases is similar to the doctrine of double jeopardy in criminal cases, or that the doctrine of stare decisis or doctrine of precedent requires courts to follow earlier judicial decisions when the same points arise again in litigation (Black’s Law Dictionary).

When speaking of the writings of legal experts or scholars (in French: “doctrine”; in German: “Lehre”), it is usually best to use such expressions as “the legal literature”, “the scholarly literature” or simply “the literature”. When referring to the “doctrine majoritaire” or “doctrine dominante” (in German: “herrschende Lehre” or “Mehrheit der Lehre”), one speaks of “the weight of scholarly opinion” (as in: “The weight of scholarly opinion holds that…”)  or “the weight of legal authority” (as in: “[…] the overwhelming weight of legal authority supports the conclusion that section 95.051 does not trump the doctrine of equitable estoppel” (Supreme Court of Florida, Major League Baseball, et al., v. Frank L. Morsani)).

Leave a Reply

Your email address will not be published. Required fields are marked *