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  • Sandeep Prasanna 3:38 pm on March 9, 2012 Permalink | Reply
    Tags: , , , , law school, may, , parsing, shall, , united states   

    Parsing the Constitution 

    Some of the most delightful moments for an ex-linguistics student in law school are when legal analysis clearly intersects with linguistic analysis. That connection was part of what drove me to come to law school. This semester, for me, that close relationship has appeared most often in Contracts and Constitutional Law, two fields which depend heavily on the parsing of text to divine original and apparent meaning.

    Seth Barrett Tillman, currently a lecturer in the Department of Law at the National University of Ireland, Maynooth (Ollscoil na hÉireann, Má Nuad) and previously an attorney and law professor in the United States, has written extensively on the interpretation of clauses in the U.S. Constitution.

    In a piece that appeared in the American Journal of Legal History in 2010, Nora and Seth Tillman put forth the argument that our modern understanding of the words shall, may, and will in the Constitution are not consistent with their usage in the late 18th century, when it was written.

    [W]here a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.

    As we understand it, prevailing eighteenth century American usage, distinguished shall (indicating futurity) from will (indicating the emphatic tense), as it is still spoken in Anglo-English. Whereas today, we Americans conjugate will as “I will, you will, he will,” and shall as “I shall, you shall, he shall,” in the eighteenth century, the dominant American usage (following southern English standards) was will (I will, you shall, he shall) and shall (I shall, you will, he will).

    [W]e suggest that standards … may have been of import to [the drafters], and, for that reason, knowledge of those (long moribund) standards may be a useful tool with regard to determining original public meaning …

    It’s a short, fascinating piece. Read it here: Nora Tillman & Seth Barrett Tillman, A Fragment on Shall and May, 50 AM. J. LEGAL HIST. 453 (2010). (Opens PDF.)

    Tillman also debated Northwestern Law Professor Steven G. Calabresi in 2008 in the University of Pennsylvania Law Review PENNumbra. Tillman argues that the Constitution did not require Barack Obama to relinquish his Senate seat upon inauguration as President.

    He bases this argument over the precise definition of the word “officer” and whether the President falls into that category, drawing upon Article II, § 4 (the Impeachment Clause), Article II, § 3 (the Commissions Clause) and Article I, § 9, clause 8 (the Foreign Emoluments Clause) to make his point.

    Calabresi rebuts, noting that the rub for Tillman’s argument rests in Article I, § 6, clause 2.

    A fun read. Find it here: Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. PA. L. REV. PENNumbra 134 (2008). (Opens PDF.)

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  • Sandeep Prasanna 5:10 am on March 1, 2012 Permalink | Reply
    Tags: american english, ap stylebook, , differences between british and american english, , style guide, toward, towards   

    Toward(s?) a better understanding 

    Hi all, sorry about the delay in getting new posts out to you. Let’s get to it:

    There are many well-documented differences between British and American English. Even those unacquainted with linguistics can point out some of the more obvious ones: color/colour, apartment/flat, spilled/spilt, and plenty more. Lynne Murphy, an American linguist abroad in the UK, maintains the wonderful blog Separated by a Common Language and writes about how language differs across the pond.

    But some American-versus-British rules are less readily apparent. For example, for years, I struggled with whether to write “toward” or “towards.” A few years ago, Grammar Girl taught me that the rule was simple: “toward” is used in the US and “towards” is used in the UK.

    The British newspaper The Guardian writes in its Style Guide:

    -ward, wards. Contemporary usage … suggests that when it is an adjective a word like upward, downward, backward or forward should not end in s, but when it is an adverb it should.

    I checked The Economist‘s Style Guide and found that it was silent on the issue, but it did write “forward” rather than “forwards” twice within the Style Guide itself. The Economist is published out of London and two-thirds of its journalists are based there, so I wonder whether there is or isn’t internal consistency on the use of the –ward(s) suffix.

    According to a commenter on the Grammar Girl website, “toward” is correct AP style. (The AP Stylebook doesn’t have free access, so I can’t confirm.)

    I wondered why we had that difference and whether it had always been that way. So I checked out the Google Ngram data for both American and British corpora. The data ended up raising more questions than it answered, so I’m hoping for more well-informed readers to suggest explanations for the patterns below.

    Here is the frequency of “toward” versus “towards” in British English from 1800 to 2000.

    It’s clear that “towards” has always been favored over “toward” in Britain during this period. There does seem to be a slight shift after 1980, with “toward” becoming more popular than “towards.”

    Here is the American data from the same period, which is more interesting:

    It appears that “toward” supplanted “towards” as the preferred spelling around 1900. The data show a steady decline in the frequency of “towards” starting around 1840. This trend is strange: why did the spelling preference change at all?

    First, a little background: the Oxford English Dictionary regards “toward” and “towards” as variants of the same word. Their etymology is closely related. Similarly, the OED considers other –ward(s) words as variants of each other as well: e.g., forward(s), backward(s), onward(s). It also notes that while there is no difference in definition between –ward and –wards, there may be a slight semantic difference that ascribes more of a sense of “movement” to –wards. This slight difference is disputed, even by the OED authors.

    The OED says:

    In English the history of -wards as an [adverbial] suffix is identical with that of -ward … ; beside every adv. in -ward there has always existed (at least potentially) a parallel formation in -wards, and vice versa. The two forms are so nearly synonymous … that the choice between them is mostly determined by some notion of euphony in the particular context; some persons, apparently, have a fixed preference for the one or the other form.

    It then goes on to observe the preference of Americans for –ward and Brits for –wards.

    Two possible explanations for the American switch from “towards” to “toward” popped into my head at first.

    The first was that Noah Webster’s dictionary, which set out determinedly American spellings for the nascent United States, expressed a preference for “toward.” His dictionary was first published in 1828. I couldn’t find a reliable online source for his original text, so maybe a reader with access to the text can clarify whether this is true. I’m still skeptical whether this is what drove the change. More famous changes like “colour” to “color” happened quicker, according to Google Ngram.

    Another possibility depends on the OED’s observation that “the choice between [toward and towards] is mostly determined by some notion of euphony.”

    According to The Cambridge History of the English Language: English in North America, rhotic accents (accents that pronounce the R in, e.g., “father”) became prestigious in the United States around the 1870s. It may have simply been more euphonic (more pleasing to the ear) for rhotic speakers to pronounce “toward” rather than “towards” — the former has just two consonants in a cluster, whereas the latter would have a three-consonant cluster, making it more difficult to pronounce. This, too, seems tenuous, because written language changes slower than spoken language and Google Ngram depends on data culled from written texts.

    I can’t seem to think of any other explanations, but I encourage readers to share their thoughts below.

     
    • Jonathon 11:20 am on March 1, 2012 Permalink | Reply

      I suspect that the American preference for toward is more of an artifact of copyediting than anything else. I see towards in unedited writing and hear it in speech quite often. And as a copyeditor, I know that a lot of editors have been trained to strike out that supposedly superfluous s.

      I’ve got a copy of Webster’s 1828 dictionary in my office, and it actually combines toward, towards in its entries, so it apparently wasn’t Webster that kicked off the American preference.

      • Sandeep Prasanna 12:29 pm on March 1, 2012 Permalink | Reply

        Thanks for checking Webster’s dictionary out. The copyediting makes sense, but it still doesn’t answer why Americans suddenly preferred “toward” over “towards”… a desire for efficiency can explain it, but surely the Brits like being efficient too, right?

    • Kevin 8:33 pm on March 3, 2012 Permalink | Reply

      >> The Economist is published out of London <<

      What springs immediately to the mind of this British English speaker on reading the foregoing sentence is the thought: "Oh no, it's not: The Economist is published IN London! "Out of London", to me, means "Not in London" — as in "Our facilites are located out of London, in Staffordshire" (i.e at least 200 kilometres distant from the capital) .

      Is this yet another transatlantic difference? How exactly, in (presumably) US English, does "published out of London" differ in meaning from "published in London"?

      • Sandeep Prasanna 10:17 pm on March 3, 2012 Permalink | Reply

        Good question. To me, “published out of London” implies distribution outward from a central location. I guess it implies more movement, and (to me) seems particularly suited to describe a periodical like The Economist. But I could have (and maybe should have) written “published in London” instead.

        So I don’t know if I’m wrong. I also don’t think it’s an American thing. I did a quick google search of “published out of” and I found a couple of other examples: “published out of New York City,” “published out of Delhi,” “published out of Alphadelphia.” This usage is definitely in the minority, though. It doesn’t even register as a blip on Google Ngram compared to “published in”: http://books.google.com/ngrams/graph?content=published+out+of%2Cpublished+in&year_start=1800&year_end=2000&corpus=0&smoothing=3

        Also, if I wanted to say that the facilities were located in Staffordshire, I would probably say “outside of London.”

        tl;dr – I don’t think my usage is wrong, but it’s not common.

  • John Stokes 2:26 pm on February 7, 2012 Permalink | Reply
    Tags: 9th circuit, California, , , gay marriage, gay rights, , prop 8, proposition 8   

    Prop 8: The importance of being ‘married’ 

    The 9th Circuit ruled today that California’s Proposition 8 was unconstitutional, saying that it violated the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution. For a summary of the ruling and a link to the opinion itself, check out SCOTUSblog.

    Most of us probably remember that Prop 8 was the anti-gay-marriage initiative that California adopted a couple years ago. More specifically, though, Prop 8 was a public initiative that amended the California Constitution to prevent same-sex couples from obtaining the official designation of ‘married.’ It left in tact all of the rights afforded to gay and lesbian couples — the same rights that married opposite-sex couples are entitled to — but it forbade them officially to call these relationships ‘marriage.’

    One might argue–as indeed the proponents of Prop 8 did–that if none of the substantive rights of gay couples were taken away, the lack of official designation shouldn’t be a constitutional problem. Having the rights, after all, is more important than what they are called. But the 9th Circuit disagreed:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

    –  Perry v. Brown. 9th Circuit 10-16696. (from Judge Reinhardt, writing for the panel that decided the case)

    In other words, what you call something does matter. And this is a powerful idea. The 9th Circuit says it doesn’t care if you leave the substantive rights in tact; it doesn’t matter if you maintain all the other entitlements that come along with the word ‘marriage.’ No– certain words have such special significance, such special power, that to deny access to their use alone is enough to violate a right.

    So indeed – the 9th Circuit’s ruling came down to the fundamental importance of being, specifically and officially, ‘married.’

     
    • John Stokes 2:40 pm on February 7, 2012 Permalink | Reply

      “Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

      -Judge Reinhardt putting the point slightly differently

    • johnwcowan 2:57 pm on February 7, 2012 Permalink | Reply

      Note that there is also an equivocation on married. In Romer v. Evans, gay people were denied certain rights tout court. But, as the anti-marriage-equality folks are forever pointing out, no adult in America is denied the right to marry as such — only the right to marry certain other adults.

      I hope that when the Supremes take this up, as they inevitably must either now or later, that they will look back to Loving v. Virginia, which also purported to allow everyone the right to marry, just not people of another color. The Court struck that one down, and just before Mildred Loving died in 2008, she expressed herself on the subject of gay marriage: she was for it.

      • John Stokes 3:25 pm on February 7, 2012 Permalink | Reply

        Good point. The biggest problem with relying on Loving is that it was a race case and thus triggered strict scrutiny. Sexual orientation only gets rationality review. So it’s not clear that Loving would help on the Equal Protection front.

        But there’s still some language in Loving that could buttress the Due Process claims. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

        This is reminiscent of the language in right-to-privacy cases, e.g. Griswold, Roe, and Casey, saying the state can’t make reproductive decisions for you (the freedom to make these decisions is a fundamental right, so laws that limit that right are put under strict scrutiny). This got pushed farther in Romer and Lawrence, where the Court said the state can’t make decisions about private sexual activity/partners. So the Loving language might be employed to extend the claim to decisions about who to marry — saying that this, too, is a fundamental right and thus gets analyzed under strict scrutiny.

    • John Stokes 10:45 pm on February 7, 2012 Permalink | Reply

      Meant to post this earlier, another good point from a close friend: The whole reason that Prop 8 was passed in the first place was that its proponents thought the word “marriage” was special to them. If the point were the rights associated with the word, they would either have done nothing or passed an initiative that affected the substantive rights of same-sex couples. Instead, the focus was on whether or not same-sex couples could use the term itself — an important difference.

    • Laura Heymann 2:52 pm on February 8, 2012 Permalink | Reply

    • John Cowan 1:58 am on February 11, 2012 Permalink | Reply

      The three levels of scrutiny are judge-made law, and judges can change them.

      • John Cowan 4:31 am on February 12, 2012 Permalink | Reply

        I’ve read the whole opinion and dissent now, and it seems clear that the court remains within the bounds even of rational-basis scrutiny. There is no constitutional right to be on welfare, but a law that prevented Greek-Americans from receiving welfare would be facially unconstitutional, even though people of Greek descent don’t constitute a suspect class. By analogy, there is no constitutional right to marry, but given that people are allowed to marry, removing that right from a particular group is not the kind of law that our constitution allows our legislatures to pass.

        As for the dissent, it’s not so much about rational-basis review as about irrational-basis review. The learned judge seems to think that it’s perfectly fine for a legislature (or the sovereign people) to criminalize the making of strawberry ice cream if they believe that eating strawberry ice cream increases the likelihood of criminal behavior (which is undoubtedly a legitimate state purpose). The fact that that idea is preposterous seems to make no difference to him.

  • John Stokes 3:34 pm on January 31, 2012 Permalink | Reply
    Tags: chad ochocinco, , inherit, magic, , , , nobility, titles   

    Who you callin’ Beezow Doo-Doo Zoppittybop-Bop-Bop? 

    Beezow Doo-Doo Zopittybop-Bop-Bop is the name of a man who was arrested recently in Wisconsin. Yes, that is his legal name. Considering that for much of history, a person’s name was of such weighty import as to be the key to their “power” (in one way or another), Mr. Zopittybop-Bop-Bop is a sign of just how far that history is gone.

    As Wikipedia tells us, certain cultures throughout history have thought that something’s name was so important that it was actually a “separate manifestation” of that thing. If you knew the name of a demon, you could exorcise it from a possessed person. If you invoked the name of a god or another spirit, you somehow impregnated your words with their power. If you knew the name of a person, that person was under your control.

    Most of us probably think this is silly today. But given the names of these legal figures, maybe they were on to something with the idea that a person’s name can bear influence on the course of their life.

    Learned Hand — Every law student comes to know the great Judge Learned Hand. He’s widely considered to be one of, if not the, greatest judge never to become a Supreme Court justice, and his formulation of the test for whether or not a person has been negligent dominates the tort law scene to this day.

    William Wayne Justice — Judge Justice is famous (or infamous) for his role in what’s come to be known as the Texas Prison Litigation. This was a court battle that raged for two decades about the conditions in the Texas prison system. Justice dictated that the system be improved in order to meet minimum Constitutional standards, but his role (the role of Justice, that is) was considered by many to be ‘activist’ beyond what is proper for a judge.

    Then again, maybe those names are just a happy coincidence. After all, someone, sometime was bound to have a name that coincided with their profession. Either way, in many other societies, your name had an entirely different type of influence on the course of your life. It’s not that if someone knew your name, they had power over you — it’s that if you had the right name, it meant you had power over others. I’m talking about titles of nobility — land, power, and status conferred by inheritance. No mysticism is needed to understand the importance of names in this type of society. With one type of name, you were guaranteed riches and power as a matter of right; with another, well, tough luck.

    Today, there can be no question that one’s name is less important than it was during these other periods in history. This decline is probably the subject of some very interesting historical and sociological literature, but it seems likely that the end of hereditary ruling and aristocratic classes indeed had something to do with it. If there’s no longer a hereditary aristocracy, whereby your name entitles you to certain lands and status, it’s less important to be associated with a particular genetic line. (Interestingly, the US Constitution goes so far as to prohibit the federal and state governments from granting titles of nobility.)

    Even so, one would not expect names to become entirely irrelevant (just ask a Kennedy or a Rockefeller). But, taking Mr. Zoppitybop-Bop-Bop as an example, it has become increasingly popular to forsake the name of one’s ancestors and adopt an appellation that’s slightly less traditional. Here are a couple of interesting examples from the sports world:

    Ron Artest –> Metta World Peace.  World Peace is an NBA player on the Los Angeles Lakers. His choice of names is interesting, as over the course of his career he has garnered more than his fair share of flagrant and technical fouls, and he has generally become reputed for his less-than-peaceful play.

    Chad Johnson –> Chad Ochocinco. Chad Johnson is a renowned wide receiver with great talent and a huge mouth. He is now on the roster of the New England Patriots, where he’s had a less-than-stellar season. The name that’s currently on the back of his jersey, you guessed it, is the Spanglish translation of his jersey number – 85.

    Jon Koppenhaver –> War Machine.  This guy is a mixed martial artist who liked his nickname so much that he legally took it. Haven’t seen him in the Octagon recently? Well, that’s probably because he’s been in jail for the last three years…

    Lloyd B. Free –> World B. Free.   Lloyd came into the NBA to play for the 76ers in the mid ’70s. This name change is particularly cool because his actual nickname was World. He apparently got the nickname for having a 44 inch vertical that allowed him to do a 360 dunk (back in the days before that was a common feat among NBA players). So he went ahead and made it official–how convenient his middle initial!

    Often times, these names smack of caprice and/or arrogance. But as a form of self-expression, changing one’s name can in theory be extremely meaningful. There’s literally no better way of identifying yourself with, say, World Peace than to actually make it your identity (though as I mentioned above, I’m not sure I buy that from Ron Artest).

    And dropping one’s inherited name (though most often done in favor of names less crazy than these examples) is one of the strongest forms of dissociation available to us. Today we take that to mean dissociation from one’s family for one reason or another. But this is actually something the ancients also recognized: by changing your name, you could avoid an ugly fate associated with your inherited name. An interesting idea for sure — I just hope Mr. Zoppitybob-Bop-Bop’s children get that message before it’s too late.

     
    • Laura Heymann 3:44 pm on January 31, 2012 Permalink | Reply

      Love the blog! If you don’t mind a bit of self-promotion, an article I wrote on naming and trademark law might be of interest to readers: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761614.

      Laura Heymann

      • Sandeep Prasanna 1:49 am on February 1, 2012 Permalink | Reply

        Hi, Professor Heymann. This is awesome. Thanks for passing it along. It’ll take a while for both of us to work through the paper, but we will definitely read it soon.

    • Sandeep Prasanna 4:46 pm on January 31, 2012 Permalink | Reply

      I can’t look at Beezow Doo-Doo Zoppity-Bop-Bop Bop’s name without thinking of this: http://i.imgur.com/8AVV9.gif

    • johnwcowan 6:12 pm on January 31, 2012 Permalink | Reply

      Google for “nominative determinism” and “aptonym|aptronym” for a lot more on this subject.

    • randy 10:52 am on February 1, 2012 Permalink | Reply

      David Brooks book, The Social Animal, has any interesting chapter on how one’s name influences his life. The statistics are startling. Among a name’s many influences, if a name relates to a business orr profession, the bearer of that name is far more likely to enter it. For example, people named Lawrence are more likely to enter the legal profession than any other and enter it at a much higher rate than those with any other name. Check out the chapter for a fascinating review of the statistics on “what’s in a name.”

    • emily 11:17 am on February 1, 2012 Permalink | Reply

      Fact – also in Madison WI, there is an actual MD named Dr. Bonebrake.

    • John Cowan 5:13 am on February 12, 2012 Permalink | Reply

      Across the Pond from Judge Justice is Mr. Justice Judge, the current Lord Chief Justice of England and Wales. (He’s now Baron Judge, or more formally The Right Honorable The Lord Judge.)

  • Sandeep Prasanna 12:30 pm on January 21, 2012 Permalink | Reply
    Tags: affirmation, bible, britain, christianity, court, , i swear to tell the truth, , islam, justice, , , , religion, sharia, swear   

    I swear (affirm?) that I will tell the truth 

    I was watching a Kannada soap opera last night (because I have apparently become an elderly Indian woman as of late) and a scene in a courtroom caught my attention. One of the characters was being questioned, and before she gave her testimony she was asked to declare her intention to speak the truth.

    ಸತ್ಯವನ್ನು ಹೇಳುತ್ತೇನೆ , ಸತ್ಯವನಲ್ಲದೆ ಬೇರೆ ಏನು ಹೇಳುವುದಿಲ್ಲ , ನಾ ಹೇಳುವುದೆಲ್ಲ ಸತ್ಯ |

    satyavannu hēḷuttēne, satyavanallade bērēnu hēḷuvudilla, nānu hēḷuvudella satya

    I will speak the truth; I will not speak anything that isn’t true; everything I say is the truth.

    That segment caught my attention for a couple of reasons.

    First, that the declaration was different from our familiar U.S. oath, “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.”

    But of course it wouldn’t be the same. While an objectively large number of people in India use English as a second or third language (some 125 million according to the latest census, nearly half the population of the United States), that still only comes out to about 10 or 11 percent of the country’s population.

    It would be fundamentally unjust for court proceedings to be carried out in a language with which the parties were unfamiliar — even though that probably happens regularly, since there are only (!) 22 scheduled languages of India and hundreds more unrecognized dialects and minority languages.

    So, okay, the witness’s declaration was taken in Kannada. The action takes place in the state of Karnataka, where the two official languages are Kannada and English, so a witness could plausibly use either language. That makes sense. (Plus, it was a Kannada soap.)

    Another thing that caught my attention was that there was no religious sentiment expressed in the declaration. India is a highly religious country, with upwards of three-fourths of the country declaring that religion is important to them. In the U.S., that rate is a little lower, at 65%, but the most famous form of our witness declaration here does explicitly invoke God — “… so help me God,” a line that is usually delivered, scripted, by court bailiffs, along with a Bible.

    In American law, an oath specifically references God. The OED agrees: an oath is specifically a type of declaration that “invokes God, a god, or other object of reverence.” Those who don’t want to make an oath instead provide an “affirmation,” which starts with “I affirm…” instead of “I swear…” and omits the reference to God. Affirming is referenced four times in the U.S. Constitution as an alternative to swearing, and Britain has allowed affirmations instead of swearing since 1695.

    Regardless of whether you swear or affirm, if you lie, you can be charged with perjury, a serious crime.

    President Obama

    Other declarations abroad

    In Britain, oaths are given slightly differently from the American version:

    I swear by [Almighty God/Name of God/name of the holy scripture] that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

    Affirmations in Britain require several more hedges than an oath, perhaps because of a cultural suspicion against people who affirm rather than swear: “I swear to tell the truth…” is such a well-known phrase that any deviance from that — regardless of how legal it is — can be regarded with suspicion.

    In Britain, one doesn’t simply “affirm” — one solemnly and sincerely and truly declares and affirms:

    I do solemnly and sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

    In the U.S., one can simply affirm. Atheist and former Governor of California Culbert Olson, in office from 1939 to 1943, famously said to California Supreme Court Justice Waste, “God [can’t] help me at all, and there isn’t any such person.” He chose to say “I will affirm,” rather than “I swear” during his oath of office.

    According to one of my friends in France (hi, Benoît!), the common declaration given by witnesses in France is:

    Je jure de parler sans haine et sans crainte, de dire toute la vérité, rien que la vérité.

    I swear to speak without anger and without fear, to say the entire truth, nothing but the truth.

    My friend writes, “Because France is a non-religious country, there isn’t any trace of God in any institutions.” I’m sure truth is more nuanced than that, but the French people are certainly less religious than the United States. But the word — jurer — used in the oath is similar to “swear.” Jurer usually carries the same valence as the English “swear” (in that it has religious undertones) and it also has the same secondary meaning of “to curse.” But jurer can also translate to “certify” or “pledge,” words that carry no religious undertones in English.

    Another one of my friends, a walking encyclopedia of Islam (hi, Ahmad!), gave me an overview of Muslim declarations of truthfulness. In many majority-Muslim countries, cases that are tried under Shari’ah law (today, usually family law disputes) require an oath to be given by witnesses. However, unlike Western civil courts, the oath is traditionally given after testimony is given. Once the judge collects all the testimony, he asks the parties to swear on the Qur’an or by God that what they have said is true, or else bringing upon them divine wrath. (Incidentally, this traditional oath appeared in the recent Golden Globe-winning Iranian film A Separation, which I highly recommend.)

    Back home

    The U.S. government is explicitly areligious, but a profession of faith is built directly into the common understanding of court procedure. Of course, there’s no law requiring nonbelievers to swear. But it’s undeniably unfair when free deviance from a set religious phrase, scripted and delivered by a court’s bailiff, could color a jury or judge’s perception of a witness. We shouldn’t be suspicious of someone who affirms more than someone who swears, but many of us are.

    Eliminating “I swear…” probably won’t help, but maybe raising the profile of “I affirm…” as an option for nonbelievers (and even believers who object to swearing in a civil setting) will help make the process fairer.

     
    • Dani 9:45 am on January 22, 2012 Permalink | Reply

      As a nonbeliever, I feel it is far more meaningful to affirm than to swear to an entity in which I do not believe.

      And how is our oath not a violation of separation of church and state?

      • Sandeep Prasanna 1:59 am on February 1, 2012 Permalink | Reply

        The text of the oath isn’t statutory, as far as I know. It’s only customary. There’s only a requirement that one swears or affirms.

    • Benoit 8:06 pm on January 26, 2012 Permalink | Reply

      Hi Sandeeep!

      Actually, I was not really clear in my quick translation and explanation of the French sence of Justice. So I’ve taken few minutes to think about this topic.
      I do think there is a huge separation between Justice and Religion in France. I guess the Revolution and, maybe deeper with the secular laws under the 3rd republic (1870-1940), the religion was put out of the State and the Justice.

      The French Justice oath are :

      the witness’s one: ” as I said « Je jure de parler sans haine et sans crainte, de dire toute la vérité, rien que la vérité. » which means “I swear to speak without fear and anger and to say all the truth, just the truth”
      the jurys’s one: uses as well the « je le jure. », so “I do swear”.

      But it’s pretty hard to say there is a religious connotations in those two French words. I’ve look around and I’ve realised the word “jurer”, came from the latin “juro, jurare” which means “to take oath” in the law and political sphere, this verb was mostly used toward the emperor/leader more than a religious reference.
      The French Dictionnary I have say “Jurer” (to swear) is actually the verb describing the action of taking an oath, using something or someone as a witness. The dictionnary underlines the fact this person/thing could be a god, a friend, a princip, etc. I guess in the case of the Law Court; witnesses take oath in front of this principle.
      The Dictionnary mentions many other sence of this verb: a religious one “jurer le nom de Dieu” as a blasphemy. ; “jurer” as “saying insults” ; wiktionnary gives nine different interpretation of this verb.

      This topic made me eager to look a little bit deeper in the way France has dvp a very strict seperation between religious principles and Justice.
      http://www.conseil-etat.fr/fr/discours-et-interventions/justice-et-religion-regards-croises-sur-les-systemes-juridiques-francais.html
      in the Cours d’Etat website (the Higher Administrative French Court), I’ve found this résumé of a common UK-Irlande and French conference about links between Religion and Justice. It is said that we could not compare “secularism” (which is, according to Errera an absence of religious reference in the public activities) and “the separation between the State and the Religion” (no organic links between the State and the religious authorities)
      It’s said the US are in the situation where there is a clear separation but no “secularism” in the French sence of “laïcité”, because of the presence of those references in the US State.
      The author said France in the only county (among those 3) using the notion of “laïcité” , placing it in the core of the French Constitution, and applying it in Justice.

      The Law History said the influence of God in Justice ceased with the French Revolution, then with the Napoleanian Code, (which gave us the “Code Civil” we used today -we did renewed it, hum-, and the 3rd repulic as I said which affirmed the “laïcité” principles with differents laws 1901-1905. (But it’s still hard to say precisly when this influence really starts and stopped)

      To conclude about your soap 😉 , I’ve read the part of India which was under the French Influence at the Napoleonian Time : the “French India” , which was mostly composed of portuary towns. So, these town were under the influence of the “Code Civil” of Napoleon since a law of the end of the19th century (this code was secular, and we still use it today), it can explain why the French oath could be closed to the one you’ve seen in your soap.
      By the way Wikipedia says Pondichéry still have a very distinct justice code, close to the French Napoleonian one.
      http://fr.wikipedia.org/wiki/Droit_en_Inde#La_sp.C3.A9cificit.C3.A9_fran.C3.A7aise

      • Sandeep Prasanna 2:15 am on January 30, 2012 Permalink | Reply

        Wow Benoit, thanks so much for taking the time to write such a detailed response. And thanks for clarifying the French use of “jurer” — it’s interesting to compare how both countries incorporate religion (or don’t) into the law.

    • Martijn Coppoolse 3:18 pm on February 8, 2012 Permalink | Reply

      I think Benoît means “Because France is has a very strict separation of state and religion”. That doesn’t mean there are no religious people in France, just that there’s no reference to God or church in legal documents or official events and procedures.
      (Last year, when watching a remembrance service in the UK, it suddenly struck me that there were both military and clerical officers present. In France, you’ll never see a priest officing at a military event, nor a military in official function in a church).

  • Sandeep Prasanna 12:34 pm on January 17, 2012 Permalink | Reply
    Tags: academy, , , precision   

    The English literature academy’s glorification of “elegant variation” in which one attempts to vary one’s nouns and adjectives when referring repeatedly to the same thing is anathema to the law. Kuney and Lloyd. Contracts: Transactions and Litigation. 2011: 40.
     
  • John Stokes 9:15 pm on January 8, 2012 Permalink | Reply
    Tags: E.B. White, , , , quote, , taxes, White   

    Advice from E.B. White (especially good for aspiring lawyers…) 

    “Some day I mean to have a fireside chat with my government, that we may come to know each other a little better, for it is by a better understanding of the other’s traits that a government and its citizens must fulfill their mutual destinies. In my chat I want particularly to take up the first sentence under Section G of Form 1040, which is called ‘Items exempt from tax’ and which starts this way:

     ‘The following items are partially exempt from tax: (a) Amounts received (other than amounts paid by reason of the death of the insured and interest payments on such amounts and other than amounts received as annuities) under a life insurance or endowment contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. . . .’

    I want to ask my government what it thinks would become of me and my family if I were to write like that. Three sets of parentheses in one sentence! I’d be on relief inside of a month.

    That sentence, above, was obviously written by a lawyer in one of his flights of rhetorical secrecy. There isn’t any thought or idea that can’t be expressed in a fairly simple declarative sentence, or in a series of fairly simple declarative sentences. The contents of Section G of Form 1040, I am perfectly sure, could be stated so that the average person could grasp it without suffering dizzy spells. I could state it plainly myself if I could get some lawyer to disentangle it for me first. I’ll make my government a proposition: for a five-dollar bill (and costs), I will state it plainly.”

    -E.B. White. “Fro-Joy.” One Man’s Meat.

     
  • The Diacritics 7:32 pm on January 7, 2012 Permalink | Reply  

    thediacritics.com 

    Ladies and Gentlemen, we’ve reached a milestone. Our domain is now officially http://www.thediacritics.com!

    Subscribers, don’t worry–you don’t need to change anything. Also, our WordPress domain will redirect you to the new site automatically.

    Oh, and new posts to come soon!

    -John and Sandeep

     
  • The Diacritics 4:19 pm on January 3, 2012 Permalink | Reply
    Tags: , cyrillic, dear leader, dprk, hangul, hanja, hanzi, kim il-sung, kim jong-il, kim jong-il looking at things, korean, , naming conventions, north korea, russia   

    What’s in a Kim? 

    (Posted by Sandeep)

    I’ve been fascinated by North Korea’s late Dear Leader Kim Jong-il for a while now — not just because he liked to look at things or because he died, although many people agree that those were two of his more positive qualities.

    Kim Jong-il looking at a leaflet.

    The reclusive state that he, and his father before him, maintained affected the development of the Korean language in the North by setting forth new standards (via official pronouncements in 1964, 1966, and 1987), which solidified differences between the Seoul and Pyongyang dialects. And while general daily vocabulary is based on a pre-partition standard, South Korean uses a lot of foreign borrowings from languages like English, whose influence is all but absent in the North.

    I was also surprised to learn that Kim Jong-il was born in Siberia with the name Yuri Irsenovich Kim. I couldn’t find any information about that discrepancy, so I did a little sleuthing.

    Kim Jong-il looking at names

    Korean naming conventions place the family name (here, Kim) at the beginning of the name. The name 김, Kim (pronounced /kim/, often mistakenly heard as “gim” because the /k/ is unaspirated) is the most common surname in Korea, with nearly 22% of Koreans named Kim. The name is derived from the Chinese hanzi (called hanja in Korean) 金, jīn, which means gold. In fact, nearly all popular Korean names derive their meaning from Chinese, and are often written in hanzi as well.

    The second part of Kim Jong-il’s name is derived from 正, zhèng (hanja), written 정 jeong (hangul), which means “straight” or “correct.” The third part is derived from 日, (hanja), written 일 il (hangul), which means “day.”

    Kim Jong-il named his sons using a generational name, keeping the character 정 jeong in all of them — Kim Jong-nam, Kim Jong-chul, and finally Kim Jong-un (the current Supreme Leader), although he didn’t do the same for his eldest child, a daughter, Kim Sul-song. Kim Jong-il’s father, Kim Il-sung, kept the character 일 il in his son’s name.

    That all does little, of course, to illuminate Kim Jong-il’s Russian name, Yuri Irsenovich Kim. For that we turn to the Slavs, whose naming conventions differ widely from the Koreans.

    Who is Kim Ir Sen?

    Russians place the family name (Kim) at the end. For males, the second name is a patronym, which means that it’s derived from the father’s name. If Yuri’s father’s name was Ivan, then his second name would be Ivanovich, like cosmonaut Yuri Ivanovich Malechenko. If Vladimir’s father’s name was Vladimir, then his second name would be Vladimirovich, like Russian President Vladimir Vladimirovich Putin.

    So this means that Kim Jong-il’s father’s name was Irsen, right? Right.

    Wait, what? Sort of.

    Kim Jong-il’s father, as we all know, was Kim Il-sung, the Eternal President of North Korea. In Russian, his name was transliterated Ким Ир Сен, Kim Ir Sen. That form is the most commonly used Cyrillic transliteration of Kim Il-sung’s name. However, under the standardized Kontsevich system of transliterating Korean hangul into Cyrillic, his name would be spelled Ким Ильсо́н, Kim Il’són. The Kontsevich system is the main system for Korean transliteration in Russia, but proper nouns such as names are still often treated differently. (Indians can relate to this discrepancy — for example, while my name would be transliterated saṃdīp, it’s most commonly written in English as Sandeep.)

    What a happy brutal autocrat!

    The border between the liquids /l/ and /ɾ/ is frail in Korean, and a word spelled using /l/ can be pronounced as /ɾ/ depending on its position between vowels or at the end of words. However, the “l” in Il-sung is not located in one of those places. Instead, the Russian transliteration of Il-sung as Ир Сен Ir Sen seems to be a sound change that occurred in Russian, not Korean. I’m not familiar with Russian phonology, so maybe somebody can explain in the comments why his name is spelled with “р” r, not “л” l.

    But… Yuri?

    The name “Yuri” is derived from the Greek word γεωργός geōrgos, which roughly means farmer. It’s unlikely that naming Kim Jong-il “Yuri” was an attempt to translate “Jong-il” into Russian, because the component parts of Jong-il translate into “straight” and “day.” Maybe Kim Il-sung just really liked the name Yuri for his son.

    Yuri is a nice name, although if Kim Jong-il had kept it, he probably would have been teased on the playground — Yuri (유리, transliterated yuli but pronounced /ju:ɾi/) is a girl’s name in Korea.

    And nobody — nobody — teases the Dear Leader.

    So there you have it — a “look” at Korean and Russian names. Kim Jong-il — sorry, I mean Yuri Irsenovich Kim — would have been proud:

    Yuri Kim looking at jam.

     
  • The Diacritics 9:00 am on December 30, 2011 Permalink | Reply
    Tags: ape, cormac mccarthy, , evolutionary anthropology, , monkey,   

    Aping McCarthy 

    [This is a guest post from my friend and former research colleague Joel Bray, a junior at Duke studying evolutionary anthropology. He is recently back from projects and adventures in Uganda and Madagascar and writes about his experiences and all things primate here. -S.]

    I just finished Cormac McCarthy’s masterpiece, Blood Meridian, an epic tale about the depravity and brutality of the American Old West, revolving around a teenage boy who joins a band of Native American scalp hunters. An unpleasant read, to say the least.

    I was struck, however, as any good primatologist should be, by McCarthy’s obsession with the word “ape.” He uses it not once, not twice, but nine times throughout the story to describe the primitiveness and wretchedness of humanity. For example:

    • “Men whose speech sounds like the grunting of apes.”
    • “He turned to the men and smiled and they once again began to hoot and to pummel one another like apes.”
    • “They were half naked and they sucked their teeth and snuffled and stirred and picked at themselves like apes.”
    • “…where the company sat among the rocks without fire or bread or camaraderie any more than banded apes.”

    The frequent use of “ape” got me thinking about the word’s etymology and current popular usage. I did some browsing on the web, and it appears that the word can be traced to pre-12th century and has its roots in Middle English, from the Old English apa. Its origin is uncertain, possibly alluding to animal chatter, but it seems to have first referred to all primates and was a synonym for “monkey.” Since medieval times, it was believed that apes were prone to imitative human behavior, and the word was used to describe a “fool,” leading to the modern, secondary definitions of “ape” as a mimic, or large uncouth person. Recent cognitive studies suggest, however, that humans are in fact the expert imitators, which explains why you see children mimicking ape behavior at the zoo more often than the reverse.

    As the use of “ape” among the public changed over the centuries, so did the biological definition evolve over time with advances in our scientific understanding of primates. For a long period, and even among some holdouts today, it was used to describe all members of Hominoidea except humans. Homo sapiens remained exceptional until recently, when they were finally placed within the other apes — chimpanzees, bonobos, gorillas, orangutans, and gibbons — a victory for monophyly (grouping all descendants of a common ancestor together).

    Colloquially, “ape” and monkey” continue to be used interchangeably to the constant vexation of primatologists (shortcut: monkeys have tails, apes do not). From personal experience, if and when people do differentiate, “monkey” simply refers to all primates while “ape” retains some specificity. To be fair, even “monkey” refers to a paraphyletic group (a group descended from a common ancestor, but not including all descendants) and thus is not reflective of true evolutionary history, but that’s a discussion for another day.

    An amateur investigation at Google Translator suggests that most languages (Spanish, Dutch, French, Korean, Portuguese, Arabic, German – exceptions include Japanese and Chinese) do not even distinguish between the two and use the same word or character for both. For example, in Spanish “mono” means both “monkey” and “ape,” although due to English influence there seems to be a movement for the less-used “simio” to signify “ape,” though traditionally it too refers to both. Complementing this usage is the phrase “grandes simios,” or great apes, which parallels the English in referring to all apes except gibbons.

    Other languages likely have similar etymological histories. However, since English is the modern language of science, it may have been the prime mover in officially separating the two words and their meanings. That being said, I’d be curious to know if languages from regions of the world that are home to both apes and monkeys (e.g. equatorial Africa, Indonesia) have historically had more subtle terminology to describe them. [The English word “orangutan” comes from the Indonesian/Malay words orang hutan, forest man, suggesting that Indonesians viewed orangutans as more similar to humans. The word kera is translated as both “monkey” and “ape,” but in a scientific context monyet is “monkey” and kera is “ape.” –ed.]

    Ultimately, with such a complicated and dynamic etymological and evolutionary history, it’s no surprise that the public can hardly keep up with the wishes of primatologists on what to call the primates. I won’t give up the good fight, but I realize that it’s pretty much a big deal to fewer than a hundred people on the entire planet.

    Thinking back to the connotations in Blood Meridian though, I would like to know how other people perceive the word “ape” and what it suggests to them. So I ask you: does ape make you think smart, thoughtful, creative? Or primitive, nonhuman, backwards? Do you imagine monkeys? Savages? King Kong? Yourself?

     
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