Genuine ambiguity cause by a that-which error
A commenter writes:
Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
I think the UCC provision is perfectly clear. This made-up distinction between which and that is a lie and doesn't really exist. If I recall correctly, the British use which and that interchangeably.But I say that although failing to distinguish between that and which rarely results in genuine ambiguity, it can create ambiguity and occasionally does. So it's worth observing the distinction. For example:
- A new body of water law was needed in the western states which relied on irrigation for farming.
a. New water law was needed in the western states--all of whom rely on irrigation for farming.To me, it is a genuine ambiguity, and it would disappear if the writer could distinguish between that and which. Like this:
b. New water law was needed only in those western states relying on irrigation for farming.
a. A new body of water law was needed in the western states, which relied on irrigation for farming.That's my position. The examples are from Douglas Laycock, That and Which, 2 Scribes Journal of Legal Writing 37 (1991).
b. A new body of water law was needed in the western states that relied on irrigation for farming.
Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
I think the ambiguity you refer to is cause by the comma that was used to denote a nonrestrictive clause.
Wayne says:
Do you mean the absence of a comma? If so, that is exactly what I'm talking about. "Which" should denote a nonrestrictive modifier and takes a comma.
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You're mistaken about "which" taking a comma. The imaginary rule requiring "that" to introduce restrictive clauses is super-imposed on the settled rule requiring a comma for nonrestrictive clauses. The "which" clause in your example is restrictive; there's no ambiguity because the comma's absence is dispositive. The that/which "rule" is overkill when the comma already does the job, and the distinction between "that" and "which" already carries semantic overtones. (See http://tinyurl.com/yfxwp45.)
Wayne says:
So your rule is--
that = restrictive
which = nonrestrictive
and no comma is necessary. Is that right?
Well, it seems that even fewer people know your rule than know mine, which is--
, which = nonrestrictive
that = restrictive
If your rule is the correct one, many many lawyers are getting it wrong a lot. Lots of legal writing contains "which" where the clause is restrictive--or should be.
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No.
no comma -> restrictive
comma -> nonrestrictive
that -> restrictive
which -> restrictive OR nonrestrictive
Restrictive clauses, which should always be reliably unmarked by an initial comma, can start with either "that" or "which."
Wayne says:
Then how do you know when "which" is restrictive or nonrestrictive? In my example about water law, is it restrictive or nonrestrictive, and how can you tell?
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no comma -> restrictive
comma -> nonrestrictive
In your example about water law, no comma appears before the clause, so it's restrictive.
Wayne says:
I understand. I wish I could be that certain, though, that the author intended a nonrestrictive sense.
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I think you must have meant to write "a restrictive sense." Would you be sure of the restrictive sense if the writer had used "that," instead of "which"? Only if the writer knows the that/which-rule pretender: "that" begins a restrictive clause and doesn't take a comma.
Without the that/which rule, you can be sure the writer intended a restrictive meaning only if the writer knows the comma rule: nonrestrictive clauses, not restrictive clauses, take a comma. Your certainty about the intended restrictiveness, either way, depends on your certainty that the writer knows a specific rule. Why not advise writers to be careful about correct comma usage before relative clauses, instead of teaching them a new rule, which they still need to be equally careful about applying?
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I think I understand your point now: the _omission_ of a comma seems to you a frail basis for confidence about the writer's intent. The point is important, being as its the first time I've seen a rationale for this supposed rule. I analyze the issue further at http://tinyurl.com/y8r7qt8
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Well, I think it has the meaning of (b). To have the meaning of (a), there should be a comma. Of course, I agree there is plenty of room for confusion, and so I would recommend using "that" here.
But, I still think the UCC clause was perfectly clear. There is no general rule that "which" cannot be used for restrictive clauses. In your example, both interpretations are possibly reasonable. I don't think that was the case with the UCC provision.
I will admit to often following that convention, especially in legal writing, since many people and judges disagree with me. I do think there are many examples in the English language where there are two reasonable intepretations. That doesn't make the one construction per se always wrong though.
In conclusion, to be safe, use the that/which convention. But don't be dogmatic about it, especially when it is clear what is meant.
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I agree with everything Stephen wrote. "Which" is used restrictively as well as nonrestrictively; it's the comma that distinguishes a restrictive clause from a nonrestrictive one.
I do, however, think the "that/which" distinction is a useful one because in spoken English it can be difficult to recognize the use of a comma.
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I think the spoken English rationale for the that->restrictive/which->non-restrictive rule carries the day. Also, over-use of "which" can lead to a pompous read (in my opinion, and I suspect several others'). And going back to spoken/informal uses, "that" lends itself much better to contractions (Ex: Meet me at the McDonald's that's in the Wal-Mart). Can't say I've ever seen/heard anyone use "which's."
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