27 October 2005

I thnk the Judge is Wrong

I read this eagerly because I am trying to put together a petition for the Virginia court of appeals wherein I point out (as politely as possible) that a former decision of the court makes no sense under the plain reading of the statute because of a restrictive dependent conjunctive clause. The judge is spot on in his definition of a restrictive clause:
A restrictive clause identifies a subset of the object described and directs the meaning of the sentence to that subset.
However, he then goes forward with the idea that "that" introduces restrictive clauses but "which" should not. In this I think he is wrong.

There are three words which hold the grammatical position which the judge describes. "Who" is for people. "Which" is for things and creatures. "That" is for people, animals, and things. As far back as 1896 (and probably as far back as the 1877 first printing) Higher Lessons in English and Word Building states:
That is almost always restrictive. However valuable it may seem to confine who and which to unrestrictive clauses, they are not confined to them in actual practice.

The wide use of who and which in restrictive clauses is not accounted for by saying that they occur after this, these, those, and that, and hence are used to avoid disagreeable repetitive sounds. This may frequently be the reason for employing who and which in restrictive clauses; but usages authorizes us to confirm (1) that who and which stand in such clauses oftener without, than with, this, these, those, or that preceding them, and (2) that they so stand oftener than that itself does. Especially may this be said of which.

Pages 176-178
For a more modern confirmation, here is the pertinent definition of "which" from Webster Online:
2which
3 -- used as a function word to introduce a relative clause; used in any grammatical relation except that of a possessive; used especially in reference to animals, inanimate objects, groups, or ideas
usage see THAT4
The pertinent section of "that" referred to is the one describing "that" as introducing restrictive clauses:
4that
1 -- used as a function word to introduce a restrictive relative clause and to serve as a substitute within that clause for the substantive modified by the clause

usage That, which: Although some handbooks say otherwise, that and which are both regularly used to introduce restrictive clauses in edited prose. Which is also used to introduce nonrestrictive clauses. That was formerly used to introduce nonrestrictive clauses; such use is virtually nonexistent in present-day edited prose, though it may occasionally be found in poetry.
Which can be restrictive or not. If the judge were to state that the usage of "which" to introduce a restrictive clause is an unfortunate choice because it might lead to ambiguity he would be correct. However, using "which" and "that" to determine whether a clause is restrictive is an incorrect usage of the words and has been for at least 100 years.

lv SW Va Law

6 comments:

Bryan said...

In my journalism days we followed this rule:
"That" introduces restrictive clauses. Example: The road is closed to vehicles that weigh more than 1800 lbs.

"Which" introduces a descriptive clause. Example: Gasoline, which is flamable, is not allowed in luggage.

I think those rules are grammatically correct, but many writers use "that" and "which" interchangebly.

Descriptive clauses are also supposed to be set off with commas, but restrictive clauses are not.

Zerin Hood said...

Must be getting near Halloween. I see the "which" hunt has started.

Ken Lammers said...

Bryan,

Without doubt "which" and "who" are broader than "that"; I just don't think it's a proper manner to determine restrictiveness. I'd have to look at the rules a little more carefully, but I think you came up with a better test than the judge. However, I am absolutely terrible with commas so I'd have to stick my nose back in a textbook before I could opine authoritatively.

Ken Lammers said...

Zerin,

But which which is which?

Windypundit said...

I'm with Bryan, descriptive clauses are supposed to be set off by commas. I found more about this in Strunk and White, and blogged about it here:

http://www.windypundit.com/archives/2005/10/restrictive_clause.html

(I don't normally try to steer traffic to my blog from the comments, but writing about writing requires more typographical control than Blogger will allow in the comment box.)

ankh said...

Ugh. First you have to decide whether to stop with prescriptive dictionaries (Webster's II) or allow descriptive "whatever people say, is right" dictionaries. The latter should pretty much guarantee full employment to the entire legal profession, since nothing can be relied on for meaning on its face, you'll have to ask everyone who was there what they remember thinking it meant.

We are going to need to treat the language like the law, and make decisions based on a limited subset of the possible authorities -- pick a reference and authority and insist that whatever's there is right.

If you can look anywhere you want for precedent, you can make any argument you want to.

I wrestle with this all the time editing in an international law firm. British usage makes no distinction between 'which' and 'that' but some US courts have made decisions based on the rule found in, for example, the Chicago Manual of Style 15th Ed., rule 5.202:

"that; which. ... In polished American prose, _that_ is used restrictively to narrow a category or identify a particular item .... _which_ is used nonrestrictively .... _Which_ should be used restrictively only when it is preceded by a preposition {the situation in which we find ourselves}...."

Now I ain't saying you're wrong. I'm just saying my authority is the one I rely on in my position.

Unfortunately for the lawyers, grammar, like any other operating system, is a religion, and "Congress shall make no establishment ..."