2

For example, some torts have names that aren't used in other contexts in English and appear to have come in from French for their legal usage's purpose. But what is the origin of the name of trover for that civil wrong, and what causes a judge in a common law case through the ages to decide that instead of simply ruling on an issue before him at hand, he is going to define and name and in a certain sense completely canonise a more general and fundamental concept?

3 Answers 3

4

This is a purely linguistic question, despite the hope to discover a special legal process. Somebody uses a word or phrase in order to communicate an specific idea. Somebody else thinks "That's a good way to put it" and uses the same or very similar expression to convey that idea. Enough people do this and it becomes "conventional". The word itself is not made up, it already existed, and was simply applied in a specialized way (e.g. "tort" is an ordinary French word meaning "wrong, mistake" taken into English in a more specialized manner).

If you want to know the history of a legal term, you have to read relevant historical rulings to see when the word was first used. That is how we know that current technical term "consideration" derives, from around the time of Henry VIII, that it derives from rulings referring to "assumpsits" which were made "in consideration of" an obligation. "Trover" is a sufficiently old term in law that you will have a hard time pinning down first use and the pattern of expansion.

1
  • Anedoctally, Ryan George's "The first guy to ever..." video skits illustrate this naming process very well. Jul 8, 2022 at 17:57
3

The same way as any other word

enter image description here

One judge uses it. Other judges quote it. Voila.

3
  • But I'm not asking a linguistics question, I'm asking a specifically legal question of the actual process whereby the legal system adopts a name for something. Are you saying we have a judge who probably ruled before the age of written decisions that heard a case and said "this is not right that you took someone's things and kept them for yourself. I hereby deem this a naturally wrong tort called trover"? Jul 8, 2022 at 13:54
  • I mean it seems like that is actually a lot more leeway than judges now have to introduce novel concepts as axioms into their common law canons. Nowadays judges don't have a power to "create law" other than in case of an ambiguity or lacuna if there's no such offence defined in statutes or precisely citable precedents. Why did judges in the past have the power to arbitrarily define new torts and coin/make up words to name them, but seemingly not judges today? What gave them the power to do so and then what took away that power? Doesn't that remove the principle of legal certainty? Jul 8, 2022 at 13:58
  • 1
    "Nowadays judges don't have a power to "create law" other than in case of an ambiguity or lacuna if there's no such offence defined in statutes or precisely citable precedent" It's not any different, there's just far more precedent and far fewer offences left undefined
    – TCooper
    Jul 8, 2022 at 17:23
2

what is the origin of the name of trover..?

Trover:

Common-law action to recover the value of personal property that has been wrongfully disposed of by another person.

Late 16th century from an Anglo-Norman French noun use of Old French trover ‘to find’.

A lot of legal terms are of French origin due to that being the principal language used by the Crown and nobility following the arrival of William the Conqueror in 1066. And before that, the Romans and Vikings also put their stamp on the lexicon.

1
  • Yes, obviously it comes from French but that is not what this question is getting at. Whether it comes from French or Latin or Swahili or English, what I'm wondering is basically, what is the process whereby a judge decides that this will be the formal legal name for this tort? Often terms are defined in statutes and sometimes we can cite a particular precedent case which has an exact date and author/judge. But when was it determined that trover in English derived common law would have the meaning that we understand by it? Jul 8, 2022 at 8:20

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .