Logic and the Law


“‘And’ may be read ‘or,’ and ‘or’ may be read ‘and’ if the sense requires it.”

So says paragraph (f) of Ohio Revised Code Section 1.02, which provides definitions for terms used in the rest of the Ohio legal code. The line was brought to my attention by Andrew Mills (Otterbein University).

“Or” read as “and”? No problem. That’s the inclusive “or.”

“And” read as “or”? Huh? Professor Mills asked some lawyer friends about it and reports:

First, this is a “cover your ass” clause that helps get the legislature out of sloppily drafted law.
Second, and more interestingly, it applies to uses of the “disjunctive and” (a phrase I had never heard before). An example: “Acme may sell assets and make capital expenditures” and “One is guilty of animal abuse if they whip a horse and stab a horse and kick a horse.” In other words, sometimes the laws use “and” where they mean “inclusive or”. 

Professor Mills also draws our attention to Section 926.01, paragraph V of the code, which notes, “Notwithstanding section 1.02 of the Revised Code, ‘and’ shall not be read ‘or’ and ‘or’ shall not be read ‘and.'”

If you’re interested in a closer look at “and”, “or,” and the law, here’s one.

And if you’re aware of other interesting items at the intersection of law and logic, let us know about them.

 

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Ronald O Bwana
8 months ago

In Kenya ‘and’ cannot mean ‘or’. Neither can ‘or’ mean ‘and’.Report

International
8 months ago

I don’t really mind the law people having some sort of “disjunctive and”, but…

1.02: “‘And’ may be read ‘or,’ and ‘or’ may be read ‘and’ if the sense requires it.”
926.01: “Notwithstanding section 1.02 of the Revised Code, ‘and’ shall not be read ‘or’ and ‘or’ shall not be read ‘and.’”

This straightforward contradiction? How can anyone tolerate this?Report

Brandon J. Wright
Brandon J. Wright
Reply to  International
8 months ago

The second cite is a more specific statute, namely:Agricultural commodity handler definitions. It’s saying that the general interpretive rule does not apply to that chapter of the code. Likely because that section was written more carefully by people who actually knew what they were talking about.Report

International
Reply to  Brandon J. Wright
7 months ago

Ah, this is helpful, thanks!Report

Marshall Bierson
8 months ago

“‘And’ may be read ‘or,’ and ‘or’ may be read ‘and’ if the sense requires it.”

^Sure, this makes total sense, as long as the bolded and is read as or.Report

Fritz Allhoff
8 months ago

Not sure whether it’s logic, but there’s all sorts of interesting cases about, e.g., whether a tomato is a fruit or a vegetable (for taxation purposes). Botanically, a tomato’s a fruit, but it’s treated like a vegetable. See Nix v. Hedden, 149 U.S. 304. Similar cases as to whether a G.I. Joe action figure is a doll.

Scalia and Garner’s, *Reading the Law* is awesome to read more about this stuff. Other “logic” sort of bits include doctrines like noscitur a sociis (i.e., unclear words find their meaning from other nearby terms) or ejusdem generis (i.e., vague terms are clarified by looking at their exemplars). Say a school had a sign: “No weapons allowed (e.g., handguns, machine guns, assault rifles)”, and a kid shows up with a knife. Did he violate the rule–the parenthetical “narrows” the application of ‘weapon’ or no? Etc.Report

Andrew Mills
8 months ago

Thanks for posting this, Justin. Here’s an article I share with students when we get to Propositional Logic: https://slate.com/news-and-politics/2021/04/gorsuch-libertarian-textualist-immigrant-rights.html

Also, there’s a burgeoning discussion of this oddity at the Philosophy Teachers Teach the Darndest Things Facebook group (which, full disclosure, I moderate). I was also wondering if this sort of clause is unique to Ohio or if it’s a standard clause in other states, too. I could investigate that pretty easily, of course, but I have not.Report

Curtis Franks
7 months ago
  1. “Or” read as “and” is not the same as what is referred to as the “inclusive or.”
  2. The disjunctive “and” is an interesting feature of many Germanic languages (like English), but the conjunction in “Acme may sell assets and make capital expenditures” is not really an example because that sentence is just ambiguous in the scope of its modal qualifier (“Acme may sell assets, and Acme may make capital expenditures” does not mean that Acme has the option of doing both of these things, just that it has both options).
  3. Sentences like “All fish and whales are aquatic” are often given as examples, because making the quantifier scope explicit reveals a subsentential “or”: “Show me anything, and if it’s either a fish or a whale, then it’s aquatic.” But this is really just a matter of ambiguous scope again, because the sentence is synonymous with “All fish are aquatic, and all whales are aquatic.” A related example is the sentence “We can’t have folks gambling and drinking on school grounds,” in which the conjunction is operating in dual fashion to the one in “We can’t have folks taking exams and consulting textbooks on school grounds.” Here the ambiguity is about whether you are conjoining two negations or negating a single conjunction.
  4. But a proper disjunctive “and” is found in the sentence “Our Hungarian neighbors are always drinking schnapps and tea.” Here the conjunction does not convey that the neighbors are always drinking schnapps and also always drinking tea. They may seldom mix the two and have some sort of regular schedule about it, but they are always drinking one or the other.
  5. Properly conjunctive uses of “or” are much rarer. Typical suggested examples are constructions dual to those in 2 and 3, so that the fact that the “or” has a conjunctive force is revealed upon scope disambiguation.

Report

Fritz Warfield
Reply to  Curtis Franks
7 months ago

My colleague Curtis Franks has just about commented his way into a guest speaker invitation to myPhilosophy of Law class this semester.Report

Curtis Franks
Reply to  Fritz Warfield
7 months ago

Fritz, I thought you had me down for “The Bad Man Theory of Law: Applications.”Report

Louis F. Cooper
7 months ago

“The life of the law has not been logic: it has been experience.”

https://www.britannica.com/biography/Oliver-Wendell-Holmes-Jr/The-Common-Law

(Sorry, couldn’t resist.)Report

Patrick Lin
Reply to  Louis F. Cooper
7 months ago

Oliver Wendell Holmes, the O.G. legal realist: the law is whatever the courts say it is.

Hard to disagree with that, when you see “how the sausage is made”, esp. tortured legal interpretations and decisions…Report

Paul Taborsky
7 months ago

According to no less an authority than Boole, ‘The words “and” “or” are analogous with the + sign in algebra, and their laws are identical’. (The Laws of Thought, II, 2).

Nowadays, of course, Boole’s + sign (colloquially read as ‘and’) has become the OR of modern ‘Boolean’ logic, and (‘or’ ?) the V operator in propositional logic.

Furthermore, as Ryle has pointed out, sometimes ‘and’ can even mean ‘so’, as in ‘She took arsenic and fell ill’.Report

Last edited 7 months ago by Paul Taborsky
Kaila Draper
7 months ago

“The menu includes meat and vegan options.” Clearly this is ambiguous between “The menu includes options that are both meat and vegan” and “The menu includes both meat and vegetarian options”. Of course, the latter is likely to be the intended meaning. Similarly, “Cruel and unusual punishments shall not be inflicted” is ambiguous between “Punishments that are both cruel and unusual shall not be inflicted” (the standard interpretation) and “Both cruel and unusual punishments shall not be inflicted”, which is the same as “No cruel or unusual punishments shall be inflicted”. I think the latter is the correct interpretation for understanding the eighth amendment. The Founders didn’t think that cruel punishments needed only to be popular enough to escape being prohibited by the eighth amendment. And they thought that unusual punishments in the sense of punishments that do not follow legal precedent or, more broadly, do not follow the law were also prohibited by the eighth amendment.Report

Daniel Harris
7 months ago

There’s a big literature in the philosophy of language (and in linguistics) about when and why “or” seems to behave like “and” and vice versa. This phenomenon often goes under the name “free choice permission.” I believe that label originate in the title of Hans Kamp’s 1973/74 paper in the Proceedings of the Aristotelian Society. Most of the time when this pops up there are modals involved, as in the modal auxiliary, “may,” in the example.

Notably, in relation to that example, is the view, defended by Thomas Ede Zimmerman in “Free Choice Disjunction and Epistemic Possibility” (2000, Natural Language Semantics) and then refined by Bart Geurts in “Entertaining Alternatives: Disjunctions as Modals” (2005, same journal) that a disjunction “P or Q” is semantically equivalent to a conjunction of modals, “⬦P and ⬦Q”. It seems to me that the most obvious reading of “Acme may sell assets and make capital expenditures” has this logical form (we have to treat a second “may” as having been elided if we read the sentence that way). This might explain why the sentence sounds like a disjunction.

(Of course, not everyone agrees with Zimmermann and Geurts about the semantic equivalence that they posit. But even those who disagree tend to think that there is at least some pragmatic explanation—possibly a complex kind of scalar implicature—for why disjunctions tend to have the same import as the corresponding conjunctions of modals.)Report

Kenneth Black
Kenneth Black
Reply to  Daniel Harris
7 months ago

I was hoping someone would bring up free choice permission. This whole legal interpretation business is pretty good evidence that the literature on epistemic modals is not just some niche issue that only linguists and linguistically inclined philosophers have any reason to care about. (A dispute over how ‘and’ behaves with modal operators actually took place in the second impeachment proceedings of Donald Trump.)Report