Legal Research

Ladies First? Not in Legal Language

By Simon Fodden

Readers will likely know that I enjoy the blog Language Log. Law is, after all, a language game (in the serious sense of game), and it helps to see what the folks who study language per se have to say about it. Recently they’ve been musing about which of the sexes gets preference in a two-word phrase, such as “mum and dad”, which got me thinking about what we do in the same circumstance within the more formal settings of Canadian legislation and caselaw.

Trouble is, I’m no scientist. So all I can do is use what a statistician once described contemptuously to me as “mere counting.” So there’ll be no chi squares here — and no deep analysis of any kind: I’ll leave that to you, dear reader.

And analysis there could be. As Mark Liberman on Language Log put it:

This discussion faced a basic empirical problem: there were more plausibly-relevant principles (a long list of apparent semantic and phonological preferences) than there were facts to explain.

I simply searched within CanLII for occurrences of each three phrase pairs, first within legislation and then within decisions. The bare facts, then, for Canadian law are these:

It seemed to be the case that where women and girls came before men it was a function of a special context: either the topic was equality or family. The simplest illustration of that might be “mothers and fathers”, which carries with it the familial context; notice here, though, that legislatures seem to be made of sterner stuff than judges, preferring “fathers and mothers” despite the stereotypical pull of family.

Of course, where there are two and where language is sequential (is there any that is not?), one must come first. How might we do things differently — presuming that anyone cares even to think about changing things? Should we have a rule such that we switch precedence every year? (Which sex would get the odd years and which the even?) Should we deliberately run counter to the established idioms?

Perhaps we English speaking people should count ourselves lucky that we have so many sex-neutral terms and that we don’t have to decide whether to put female or male “doctors” first, as do the Germans, or to give priority to male or female Canadians, as might a French speaker.

Full post as published by Slaw.ca on December 27, 2009 (boomark / email).