Keeping things under the chapeau

The common law has always existed, at least since the French invaded England in 1066. The High Court spends its days discovering and applying it.

Much the same might be said of the English language. On reading High Court judgements one finds odd terms used as though they were always part of the legal lexicon, no explanation needed. From time to time they pop up in the depths of judgments, leaving readers to work out their meaning from context. Then they disappear again. Who could forget, for example, this splendid line from the Bank Nationalisation case …

“Very conflicting views of the meaning of this placitum were there expressed.”*

Others might have been content to say They couldn’t agree on the meaning of the paragraph.

The term placitum has gone the way of majority (now known as plurality). But onwards, the discovery of words which always existed (even if they were never used) continues. The latest is chapeau, as in:

“… the requirement of “intentionally”, as expressed in the chapeau to the sub-section, imports a necessity of consciousness … [etc, etc] ” **

Others might have been content to refer the introductory words to the sub-section.

Modern legislative drafting frowns on the use of words to follow a series of paragraphs, so it is unlikely that the High Court will need to make reference to top hats and tails. As for the use of the French language, William the Conqueror would be proud.

* Bank of NSW v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at para. 19 (referring to an earlier case).

** The Queen v Tang [2008] HCA 39 at para 108. Or should I say placitum 108?