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July|August 2003

A to Zzz

Once opinionated and charming, Black's Law Dictionary is at risk of becoming another Webster's.

By Eugene Kontorovich and David Lisitza

THOUGH THE CURRENT EDITION OF BLACK'S LAW DICTIONARY is only four years old, the editor-in-chief, Bryan Garner, recently announced that he has begun work on its successor. Originally published in 1891 by Henry Campbell Black, an English legal scholar who authored treatises on topics from contracts to liquor laws, the dictionary has long been the first book purchased by law students and is one of the few they keep on their desks after they enter practice. Given the book's popularity and its continuing value, let's hope that the new edition will remedy the shift toward bland and lifeless definitions that occurred when the current seventh edition, published in 1999, supplanted the sixth, which came out in 1990. If not, much of the idiosyncratic charm that made Black's beloved for more than a century will be lost.

Law, more than most professions, lives through words, and lawyers and judges leave their legacy through writing. Jurists like Marshall, Holmes, and Hand impress not just with the rigor of their analysis but with the style and wit of their prose. For those who make their living in the practice of law and who read these greats from time to time, occasional encounters with a graceful phrase or a charismatic sentence offer a quiet delight among the billable hours.

The definitions in the dearly departed sixth edition of Black's were at once elegant and hard-boiled, eccentric and informative. All dictionaries take language as their subject, but surprisingly few honor language by using it well. Black's, like Fowler's and Strunk and White, was among the few reference works that could be read for pleasure as well as for practical reasons. The sixth edition gave definitions with panache. It described passion as any of the "emotions of the mind" and defined a trophy as something "treasured up in proof of victory," capturing the pride that accompanies a record of success. Or consider its ode to reason: "a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions." A withersake in Black's is no mere traitor; he is a "perfidious renegade." And to pander is "to pimp; to cater to the gratification of the lust of another."

Though they maintain a workmanlike attention to detail, entries in the seventh edition feel homogenized, impeccably accurate yet flat and lifeless. They suggest the regrettable move toward professional jargon that has crept across the legal landscape. The seventh edition has no entries at all for reason or passion, and no trophy either. And it vacuums the lust and gratification out of pandering, rendering it the "act or offense of recruiting a prostitute, finding a place of business for a prostitute, or soliciting customers for a prostitute." Prostitution is a business all about lust and gratification; the seventh edition's definition sounds like a job description posted by a human resources administrator.

The sixth edition spoke in its own voice, and remained impervious to the linguistic distortions of political correctness. Gender was not a social construct; it was biological destiny. A female was a member of "the sex which conceives and gives birth to young." By contrast, a man remained the universal, "a human being." By the seventh edition, the editors had retreated to "gender neutral" terms, and, as so often happens when language gets hijacked by ideology, the resulting ring is not pleasant. Consider the attack on "gendered" language in which the seventh edition joins. Like it or not, English needs generic pronouns, and the unwieldy his/her doesn't satisfy. The law has always allowed his to be used for both genders, and the old Black's took its cues from the law, not from the language police. But the seventh edition reduces his to being "properly a possessive pronoun of the masculine gender" and makes a passing slap at those who beg to differ, placing them against "the trend toward nonsexist language" that has been adopted by "careful drafters."

Admittedly the sixth edition's wit was at times unnecessarily combative. It reported that gypsies (listed under Egyptians, in a nod to old England) roamed from place to place "pretending to tell fortunes of others." A dictionary with less conviction might not have included the "pretending," allowing readers to form their own opinions of gypsy soothsayers, rather than suggesting they were charlatans, and might have called gypsies by their preferred name, the Roma. But the old Black's was never coy with its beliefs. Venturing dangerously close to its own definition of bigot, it stayed "wedded to an opinion in matters of religion or race."

This hard-headedness extended beyond pronouns to the way in which the dictionary sized up everyday words with the unsentimental tone of the law. Rather than wade into age-old philosophical debates about the meaning of justice, the old Black's stayed unfussy and clear. Justice was simply a "title given to judges." The space saved by such elegant turns as this�it avoids the new edition's reductive effort to tick off the types of justice (commutative, distributive, positive, and so forth)�gave Black's room to be indulgent. The sixth edition had time for an entry on love and affection as well as passion. But don't reach for your handkerchief. In addition to being any of the "emotions of the mind," passion referred to the "rage, anger, hatred, furious resentment, or terror" that may lead one to manslaughter. Black's knew that while love and affection may be nice, they should not be treated as "valuable consideration" where an exchange is required by law. In life, love may bind. In law, one needs harder currency.

The sixth edition was admittedly sometimes quaint or anachronistic. But some of the now-extinguished entries offered valuable counsel. A hobbyhorse of the old Black's was the indeterminacy of even the simplest words: When to is followed by a number, it observantly reports, the phrase should be understood as a term of exclusion (as "up to" but not including the number), except when used as a term of inclusion (as "up to" and including that number). This lesson in linguistic gymnastics could have lent some heartening support to the previous U.S. president. The contention that the word is can have two meanings would not have bothered the old Black's, which supplies is with no less than three distinct legal meanings�past, present, and future. Had President Bush's predecessor truly wanted to take the lawyerly line, he would have argued that his deposition testimony was accurate under the majority of the meanings in Black's dictionary and thus was not perjury under the civil standard of proof.

Despite its changes and omissions, the seventh edition is an admirable and useful work. It preserves many of the lexographic accomplishments of its predecessors, while adding much of use: Nearly 20 percent of the seventh edition's entries, like cyberstalking and euro, are new. In the massive effort of revision and expansion, the values of style and tone may have received less than full attention. Or perhaps such elements can no longer be priorities for a practical reference work.

The seventh edition does not pretend to emulate Samuel Johnson or Ambrose Bierce's dictionaries by stamping definitions with the imprint of a distinctive personality; indeed, the preface to the new edition acknowledges that many entries have been "sharpened and tightened." Unfortunately, in the process, the aesthetic element has been blunted and constricted. Perhaps the next edition will find a way to blend style and scholarship. Until then, lawyers fortunate enough to have the sixth edition shouldn't toss it from their desks�and might even consider keeping a copy on their nightstands.

Eugene Kontorovich is an assistant professor at George Mason University School of Law. David Lisitza is an associate in the Los Angeles offices of Gibson, Dunn & Crutcher.

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