[FOM] Why inclusive disjunction?

Francis Davey 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.

Francis Davey
1 Middle Temple Lane Chambers
Tel. 020 7353 8988 Mobile. 0781 686 8998 Fax. 020 7353 8269
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