Definition
A Latin term meaning to litigate — that is, to carry on a lawsuit, whether as plaintiff or defendant. The term encompasses the full arc of formal legal contest: asserting a claim by action, disputing another's claim by action, or testing the validity of a right through judicial proceedings. It derives from the classical Latin construction *litem agere* (literally, "to drive or conduct a suit"), which the historical dictionaries cite directly as its functional equivalent.
*Litigare* is a source term rather than an operative term in modern Anglo-American law. It does not appear in contemporary statutes or court rules as a standalone legal concept, but it underlies a cluster of English derivatives — litigate, litigant, litigation, litigious — that are in constant use across legal research.
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Common Confusion
*Litigare* is not synonymous with *controversia* (a dispute or controversy) or *actio* (a particular form of action). *Litigare* describes the conduct of a proceeding; *actio* refers to the right or procedural vehicle by which that proceeding is brought. Researchers encountering these terms in Roman law sources or early common law treatises should not treat them as interchangeable. Similarly, do not conflate *litigare* with *lis*, the Latin noun for a lawsuit or matter in dispute — *lis* names the thing; *litigare* describes what parties do with it.
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Why It Matters in Research
*Litigare* surfaces most frequently in three research contexts: Roman law texts and their early modern commentators, Latin maxims embedded in English equity and common law treatises, and the definitional apparatus of older legal dictionaries that used Latin source terms to anchor their English entries.
When tracing the conceptual history of litigation — what it means to "be in suit," the moment at which a proceeding formally commences, or the obligations and disabilities that attach to parties once a suit is pending — *litigare* and *litem agere* often appear as foundational framing terms in the sources you will encounter. Bracton, Coke's *Institutes*, and equity treatises of the seventeenth and eighteenth centuries frequently move between Latin and English, and understanding *litigare* helps a researcher recognize when a source is describing procedural conduct generally versus invoking a specific doctrinal rule.
The practical trap: researchers scanning older digests or abridgments may encounter *litigare* as a headword or embedded term and mistake it for a doctrine with standalone legal content. It is not. It is a definitional anchor for the English verb "to litigate" and its cognates, not a rule of law unto itself.
For corpus navigation in Law Mind: entries built on *litigare* as a root — particularly those governing when litigation begins for purposes of tolling, stay, or lien — will use its English derivatives. Follow the cross-references below rather than treating the Latin term as a research endpoint.
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Historical Dictionary Support
Black's Law Dictionary (both the first and second editions) and Burrill's Law Dictionary are in complete agreement here, reproducing the same definition verbatim: "to litigate; to carry on a suit, (litem agere,) either as plaintiff or defendant; to claim or dispute by action; to test or try the validity of a claim by action." The uniformity across all three sources signals that this is a settled, non-contested Latin gloss rather than a term with competing historical interpretations.
What the historical dictionaries do not address is the procedural significance of the moment *litigare* begins — a question that became increasingly important in common law contexts as doctrines of lis pendens, relation back, and commencement of suit developed. The Latin term carries no internal answer to that question; the historical sources use it descriptively, not as a vehicle for resolving those disputes. Researchers should not read doctrinal content into what the dictionaries treat as a pure definitional entry.
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