[FOM] Why inclusive disjunction?
fjmd1 at yahoo.co.uk
Thu Jan 11 17:18:05 EST 2007
Neil Tennant wrote:
> This is analogous to the form of the legal provisions brought to the
> list's attention by Francis Davey. "The court may do X if it appears to
> the court that either A or B or C", as Davey points out, invites the
> inclusive reading, since one can easily see that (say) A, B and C are
> perfectly compossible. But of course counsel hoping to get the court to
> do X would be well-advised to focus on establishing whichever of A, B or C
> is most plausible on the evidence available. To aim to do more would be
> belaboring the point, probably to the court's vexation. Though any one of
> A, B or C will be sufficient, counsel ends up giving the
> non-logical but reasonable bystander the impression, however unintended,
> that the disjunction is to be interpreted as exclusive.
Not in my experience. It can be a perfectly sensible strategy to offer
arguments for more than one of a series of options. Of course, it may
involve more work - but that would take us into a consideration of
resource logics would it not?
Consider a statute that had a number of exclusive possibilities. In
order to draft such a list, one would have to be sure that the
possibilities did not overlap. If they did overlap, needless confusion
might be caused. This is, in my view, why legislative drafters -- and
lawyers in general -- tend to use inclusive not exclusive or. It is a
much less error prone exercise.
Surplussage of language can lead to considerable judicial distraction. I
remember one of the first crown court cases I observed involved an
allegation that an elderly lady had breached a "tree protection order"
(which roughly does what it says on the tin). An exception -- that she
raised as a defence -- was for fruit trees "standing or growing in an
orchard or garden".
The puzzle for the judge is what "standing" added to this sentence
(nothing in my view), "growing" is surely sufficient. The additional
words -- probably put in by a nervous drafter -- add only confusion.
Now, if the "or"s in that sentence were exclusive, even more confusion
might arise. The fact that there is an overlap between orchards and
gardens causes no trouble with an inclusive or.
I think that any organised discourse that attempts precise definition of
what it describes will tend to use inclusive not exclusive or, but that
is, I realise, a contentious claim.
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