A few days ago I reported at reference 1 on what for me was the unusual event of reading a paper by a philosopher. Today I report on the even more unusual event of reading a paper by an academic lawyer, a paper turned up by Bing from what I take to be a very superior journal of law. The relevant search term having been intended to turn something up which told me something useful about the then obscure linguistic category of opaque verbs. The paper turned up being reference 2 below.
A paper built around the linguists’ category of opaque verbs. From where, on the one hand, the author links into various important failures of law, involving the legal concepts of de re, de dicto and mens rea. This last being the usual but not universal rule that there has to be intent for there to be crime. And bearing on the common complaint that Anglo-Saxon law is too literal in its application of written law, literality which sometimes leads to unwanted, not to say silly, outcomes. On the other, she links into the difficulty young children and some autistics have with theory of mind, with understanding that other people might see things differently. And into the balance between system 1 (fast, automatic and unreliable) and system 2 (slow, elective but more reliable) thinking.
The first example given by the author is about the difference between eating cupcakes and wanting cupcakes, but for present purposes I think her second example does better:
TRANSPARENT: I am writing on a piece of paper.
OPAQUE: I am looking for a piece of paper.
In the second example there is ambiguity. Am I looking for some particular piece of paper with my shopping list on it or am I looking for any old piece of paper with which to wrap up a bit of chewing gum? Very roughly speaking, the former is particular thing orientated and de re while the latter is category of thing orientated and de dicto. Slightly different we might have:
OPAQUE: I knew that I was breaking a law.
Ambiguity which commonly arises with other opaque verbs like want, looking for, know, personate (fraud by impersonation), obstruct (the administration of justice), intend to (destroy in whole or in part, a national, ethnical, racial or religious group. That is to say genocide in Rwanda) and regard as (disabled. Discrimination in the workplace against the disabled). Verbs often associated with states of mind or belief, rather than with more straightforward actions like eating or writing.
Four examples
Anderson offers four examples, all important areas of law, where failure to properly take into account such ambiguities has had important, mainly bad, consequences.
Impersonation
The statute at issue made it an offense to fraudulently ‘personate any person entitled to vote’. The offense in question being personating a dead voter. On appeal, this turned out not to be an offense as such a person was not entitled to vote and the very real issue was dealt with by amending the statute. Whereas Anderson argues that allowing the wider ‘de dicto’ interpretation of ‘personate any person’, on which one would not have had to be personating a particular, a real person, would have been a cheaper, simpler and quicker way of dealing with the problem.
Obstruction of justice
The offense here was Arthur Anderson shredding documents about Enron right up to the day it was subpoenaed. The statute that might have been thought to be relevant said something like ‘corruptly endeavour to influence the due administration of justice’ – long interpreted to mean that there actually had to be some particular judicial process to be influenced. The expectation that there was about to be such a process was not enough.
So not guilty, although that was not enough to save them. Again, our Anderson argues that the wider ‘de dicto’ interpretation of ‘endeavour to influence’ would have done the trick.
Genocide
This was the genocide trials which followed the war between the Hutus and Tutsis in Rwanda in 1994, a war in which over half a million people from the Tutsi minority died. There was no question but that dreadful things had been done, but there was much legal trouble about whether it amounted to genocide, as then defined. Legal trouble which seems, to the lay mind, to beside the point. The defendant, the person in the dock, had done dreadful things - so did it really matter what exactly you called it?
It seems that in order for violence to be criminalized under the Genocide Convention, the defendant must be shown to have acted ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. The narrow interpretation says that the group must be either national, ethnical, racial or religious. And the Tutsis were no one of these things taken separately. Whereas a wider interpretation would have taken those four descriptors by way of example. I find Anderson’s argument more complicated and difficult here.
I am also thinking that while one might, at the outset, think that one was clear enough what the word ‘genocide’ meant, what a genocide was, it turns out that one is not very clear at all. The world is a complicated place and it is not always easy to shoe-horn something new, be it ever so bad, into some pre-existing category. Which is a problem, as one prefers not to make the law up as one goes along. Which was a problem for the prosecutors at the Nuremburg trials after the second world war.
Disability rights
There were similar legal troubles with the Americans with Disabilities Act (ADA), intended to provide redress for people treated unfairly because of their disabilities. I found the treatment in reference 2 a bit difficult, so supplemented it with the earlier, more extensive reference 3.
In order to claim the ADA’s protection from discrimination (often in employment), claimants had to prove that they had – or were regarded as having – a disability. Claimants who sought to prove that they were regarded as disabled had to prove that they were regarded as having an impairment that substantially limited a major life activity. They had to exhibit both a qualifying impairment and a qualifying activity. They had to prove that this was what the employer had in mind. Which put like this, sounds more or less impossible.
There is also the complication that, for example, what one person regards as an impairment (narrow scope de re) is not, in fact, an impairment in law (wide scope de re). Should it still count?
For this and other reasons, the ADA did not work out very well and had to be amended. Here again, Anderson argues proper consideration of the various literal readings – she provides a table of nine permutations in reference 3 – of the same bit of text would have done the trick without all the expense and bother of new legislation. She also argues that just four of the nine readings fell within the intentions of Congress.
Why do lawyers do this?
Anderson offers various, more or less plausible accounts of why lawyers stick to the facts, perhaps at the expense of the intent of the legislators, often at the expense of some of the men in the street, accounts which I am not qualified to comment on.
She points out that in making more room for ‘de dicto’ readings, one does not depart from the Anglo-Saxon regard for the literal truth of what legislators write, rather than for their intentions. Both ‘de re’ and ‘de dicto’ are literal readings – the point is that they are rather different and lawyers would do well to recognise both.
What might be done about it?
Anderson is not hopeful that these problems will be eliminated at source, at the time statutes are drafted, although clever IT may help. Otherwise, maybe educating lawyers in these matters will help the development of sensible precedent and case law which will deal in a sensible way with the remaining ambiguities.
Other matters
Anderson explains that ADA was built in part with materials drawn from the earlier Rehabilitation Act of 1973, an act concerned with government action for the disabled, rather than action in general. As she says, building on something one has to hand is often convenient, even if one might have, eventually, done a better job by building from scratch.
Another variety of ambiguity figures in the ‘Peerless’ case of references 4 and 5, familiar to students of contract law. In this case, someone had contracted to buy cotton arriving in Liverpool on a ship called ‘Peerless’. Sadly, neither party to the contract realised that there were two ships of this name delivering cotton to Liverpool, one in October (when the buyer wanted it) and the other in December (when the seller had it). The word ‘Peerless’ was not up to its job of identifying a particular shipment of cotton.
It is not just linguists that take an interest in opaque verbs, as philosophers get in on the act too – although they appear to use different, more difficult jargon. See, for example, reference 6.
I have been reminded of the difficulty of protecting the disabled in a reasonable way – and of the sometimes similar difficulties which arise with discrimination involving gender or sexual orientation. I associate first to the celebrated cake case in Northern Ireland where a straight cake maker declined to make a celebration cake for a gay couple. And second to my belief that Mrs. Blair, the wife of past-master Blair, made a very good thing out of tricky cases of this sort. Perhaps, for example, involving someone with one leg complaining that she was not allowed to be a bricklayer.
I have also been reminded of the word ‘praxis’. This word was popular with the foreign agitators of my student days, although I have no idea now what they meant by it.
Conclusions
I cannot comment on the strength of the argument for more consideration of ‘de dicto’ readings that Anderson sets out. Or on her explanation for why things are as they are and her take on what might be done about it. But it was interesting to see how the opaque verbs dreamed up by linguists have made their way into the legal world. They were more than just a curiosity in some academic backwater. Rather a curiosity in some legal backwater?
PS: the custom in the present journal seems to be for all the additional material and references to appear as footnotes to the page, rather than as endnotes or references at the end, in the way of the journals that I am more used to. The one reference that I clicked on turned up free material at the law flavoured bit of the Harvard web presence at reference 4. Something to be said for both ways of doing things and not something on which I offer a view.
References
Reference 1: https://psmv4.blogspot.com/2021/06/implicature.html.
Reference 2: Misreading like a lawyer: Cognitive bias in statutory interpretation – Jill C. Anderson – 2014.
Reference 3: Just Semantics: The Lost Readings of the Americans with Disabilities Act – Jill C. Anderson – 2008.
Reference 4: https://h2o.law.harvard.edu/cases/2282. Peerless: the Harvard story.
Reference 5: https://en.wikipedia.org/wiki/Raffles_v_Wichelhaus. Peerless: the Wikipedia story.
Reference 6: https://plato.stanford.edu/entries/prop-attitude-reports/dere.html.
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