Helping Lawyers with Their Prose

by Jon N. Hall6/2/18
President Trump wants to end the nearly 70-year conflict with North Korea and get Kim to sign a peace treaty. But what is a treaty if not language? Let’s hope the lawyers drafting any agreement with NOKO know enough to avoid “and/or.”

In the third edition of Fowler’s Modern English Usage (1998), the entry for “and/or” reads: “First recorded in the mid-19c. in legal contexts, and still employed from time to time in legal documents, and/or verges on the inelegant when used in general writing.” In Webster’s Dictionary of English Usage (1989), the entry for “and/or” presents an excellent little history of the term which lawyers should read: “And/or thus began in a cloud of legal ambiguity, but such an inauspicious infancy proved no deterrent in its use.” The entry also alleges that “the interpretation of and/or became a matter of litigation in 1854.”

In Chapter IV, “Words and Expressions Commonly Misused,” of the fourth edition of Strunk and White’s popular The Elements of Style, the entry for “and/or” reads: “A device, or shortcut, that damages a sentence and often leads to confusion or ambiguity.”

Far more opprobrium for “and/or” is meted out by Bryan A. Garner, perhaps the dean of American usage experts. In Garner’s Dictionary of Legal Usage (2011), we read that “and/or has been vilified for most of its life — and rightly so.” His entry for “and/or” (page 57) cites several court cases that do indeed vilify the term. Garner also rails against the term in Lesson #209: Ban “and/or” at his website LawProse, where he reports that “and/or has been held to invalidate provisions in affidavits, wills, indictments, judgments, contracts, statutes, and findings of fact.”

Page 57 and Lesson #209 are required reading regardless of whether one is writing law or merely practicing it. But the hubbub surrounding “and/or” by Garner’s legal eagles needs context. You see, “and/or” is a form of the “inclusive or,” and the “inclusive or” is perfectly logical.

The first thing one must understand about the conjunction “or” is that it can be either inclusive or exclusive. One can usually tell which “or” is intended by the context. For instance, were an ad for a job to stipulate that applicants must possess a college degree or experience, folks wouldn’t expect to be denied an interview if they possess both, the “or” would be inclusive. However, if the FBI says you can become an informant or go to prison, they’re using “or” in its exclusive sense. Whereas the “exclusive or” stipulates A or B but not both, the “inclusive or” is rather less stern with its alternatives: A or B or both.

The “inclusive or” can be used when it doesn’t matter whether one or more than one is the case. For instance, if your host asks you if you’d like your drink freshened, and you say, “Yes, thank you, I could use a splash or two,” it’s of no importance whether you get one splash or two; you don’t really care.

Correctly used, the “exclusive or” has perhaps the most unambiguous “sense” of any conjunction. With the “exclusive or,” only one alternative can obtain, i.e. be chosen or true. If you are issuing an ultimatum, then the “exclusive or” is for you. If anyone says “or else” to you, know that the “or” is exclusive and that you had best choose what came before it. In binary uses, such as “on or off,” “yes or no,” and, yes, “exclusive or inclusive,” we’ve got an “exclusive or.”

But sometimes the “exclusive or” needs a little help. If one needs precision, then one may need to add qualification, such as: Coffee, tea, or milk, but only one; Pie or cake, but not both. Also, the correlative conjunction “either” can be used to indicate the exclusive: Either eat your vegetables or get no dessert.

Garner is right in Lesson #209 to urge banning “and/or.” So if you come upon an “and/or” in a contract that your attorney has written up for you, tell him to strike it out and use more precise language, because the last thing you want is to stand before some judge someday who’s making rulings affecting you based upon such piddling matters as the original intent of some dang conjunction.

Our two English language “ors” both have their own analogs in formal logic and in computer programming. The analog for the “inclusive or” is OR while the analog for the “exclusive or” is XOR. The execution of a computer program might help clarify the difference between the two “ors.” Both “ors” make comparisons, and when an OR in a computer program makes a match, the program can bypass all the remaining comparisons because the condition has been met. But when an XOR makes a match, the program must make all the remaining comparisons to ensure that they don’t match.

One problem for Anglophones is that there doesn’t seem to be a “default or” in the English language, which has only one word for both OR and XOR. That means we must work around little old “or” with: “either,” “or both,” “but not both,” and other added verbiage. Although the English language is known for its neologisms, its creative new words, one doubts that many Americans would be very receptive to this construction: Coffee, tea, xor milk. (Sic.)

Some very sophisticated, elegant thinkers, people I admire, misuse conjunctions all the time. But that’s not what’s as concerning as the fact that some language experts are offering illogical advice on the matter of conjunctions. For instance, there seems to be a trend for “or” to be paired with the correlative “neither.” If that’s legit, then so is this: Either eat your vegetables nor get no dessert.

In June of 2013 at Columbia Journalism Review, Merrill Perlman delved into this trend in an article headlined “Neither regions.” The article is short and fun, and it’s worth reading because it shows there are a lot of language experts who don’t fully understand conjunctions.

Jon N. Hall of Ultracon Opinion is a programmer/analyst from Kansas City. • (164 views)

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6 Responses to Helping Lawyers with Their Prose

  1. Timothy Lane says:

    One of the required courses for a computer science degree at Purdue in my day was a course on computer design (EE 466, as I recall, in which I got an A). In this course I learned about OR (also called IOR) and XOR gates, as well as NOR (and NAND) gates. As I recall, the NOR was a negation of an IOR, so in essence it was a NEITHER. They had only 2 inputs, but one could do strings of gates. (Timing could be a problem, but I don’t intend to explain that. I’m not sure I could do so properly.)

    As for “and/or”, I would see it as being useful in certain situations as an explicitly inclusive or. I’ll take your word for it that legal documents aren’t suitable places for the expression.

    • Brad Nelson Brad Nelson says:

      There’s a clever little time-waster app for Android called Circuit Scrambler. I’ve played the first 14 levels of it. It’s pretty well done and certainly exercises the brain and/or is fun.

      • Timothy Lane says:

        I hit the link and got nothing. So what exactly does the app do? I suppose it has to do with circuit design (hence mentioning this as a response to my posting).

        • Brad Nelson Brad Nelson says:

          Link fixed.

          And isn’t there a place in this world for a construction that means “either one or both”?

          • Timothy Lane says:

            I got into it. At some point I’ll probably see if I can play it.

            • Brad Nelson Brad Nelson says:

              It’s a fun little time-waster for a while. Gotta hand it to the developers for doing a professional job of this sort of one-trick pony. But fun to ride for a while and/or to play this logic game.

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