Always Speaking: Interpreting the Present Tense in Statutes

Always speaking?

Interpreting the present tense in statutes

Neal Goldfarb, J.D. Butzel Long Tighe Patton PLLC

LAWnLinguistics.com

To appear in the Canadian Journal of Linguistics

Abstract: This article takes a critical look through the lens of linguistics at the always-speaking principle in lawan influential principle that is recited in materials on legislative drafting as the justification for using the present tense, adopted in many common-law jurisdictions as a principle of interpretation, and accepted as a foundation for the linguistic analysis of the use of tense in statutes. The article concludes that the principle is an inadequate basis for interpreting or analysing statutes, for at least two reasons: (i) the interpretive results that the principle is intended to support are explainable in terms of widely accepted prin-ciples in the analysis of tense, without any need to posit special principles that apply only to statutes; and (ii) the interpretations that would be required if the always-speaking principle were taken seriously would in many cases probably be regarded as unnatural by native speakers of English.

1. Introduction

With few exceptions, statutes are intended to affect what happens in what is,

from the enacters point of view, the future. There was a time when this

orientation toward the future was explicitly reflected in the grammar of statutes.

In setting out the circumstances in which legal rules would or would not apply,

or that affected the application of those rules, legislative drafters often used what

traditional grammar referred to as future tense,1 as in (1):

Thanks to two anonymous reviewers for helpful comments and suggestions. Special thanks to Benjamin Shaer for substantive and editorial assistance. Any remaining errors are mine.

1. I have enclosed future tense in scare quotes because many modern linguists argue

that under a strict view of what constitutes a grammatical tense, English lacks a

future tense (see, e.g., Huddleston 2002:20910.) On this view, shall- and will-

Always speaking? Interpreting the present tense in statutes

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(1) Whoever shall assault another person shall be guilty of a felony.

Beginning in the middle of the 19th century, there was a turn toward using

the present tense instead of the future. That turn was traceable in large part to

an English barrister named George Coode, who wrote a treatise on legislative

drafting (Coode 1845). Coode recommended the use of the present indicative,

and supported that recommendation with the statement that indicative lan-

guage describing the case as now existing, or as having now occurred, is

consistent with the supposition of the law being always speaking (Coode 1845:23;

italics in the original).

Coodes treatise was highly influential and his recommendation to use the

present tense has been widely adopted in legislative drafting. So the modern

version of the hypothetical statute in (1) would be (2), with legislative drafting

manuals typically relying on Coodes always speaking formulation to justify

the preference for using present tense.

(2) Whoever assaults another person is guilty of a felony.

That always-speaking principle has also been incorporated into the law govern-

ing statutory interpretation in Canada, the United Kingdom, and elsewhere.

The always-speaking metaphor has influenced scholars working at the inter-

section between law and linguistics. As far as I am aware, all the academic work

on the temporal dimensions of legislative language has taken as a given that

statutes are always speaking, using that assumption as the basis for further

analysis (Bowers 1989, Trosborg 1997, Williams 2007, Graboyes 2010). The

metaphors influence is strongest in Bowers (1989), which uses the always-

speaking metaphor as the starting point for an extensive analysis of how tense is

used (and how Bowers thinks it should be used) in statutes.

In contrast to these scholars, I will argue here that the always-speaking

metaphor should be abandoned. That conclusion will be based on two points.

First, the metaphor is unnecessary: the use and interpretation of the present

future expressions (for example, I shall leave soon and We will eat dinner in half an hour)

are really in the present tense, even though they refer to future situations. While I

take no position on this issue, I will use the terminology of traditional grammar in

this article and speak of English as having a future tense, because the legislative-

drafting materials discussed later in the text rely on traditional notions of grammar

and either refer to future tense or assume that such a tense exists.


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tense in statutes can be analysed perfectly well within existing frameworks that

linguists have developed for analysing tense. In particular, statutes written in the

present tense are analogous to timeless sentences such as water is wet, in that

they denote states of affair that are understood as continuing to exist indefinitely

after the statute is enacted. As a result, there is no need to posit a special lin-

guistic principle applying only to statutes. Second, the always-speaking

metaphor presents an obstacle to clear analysis. It gives a distorted picture of

what is really going on when statutory language is interpreted, and it fails to deal

adequately with some common uses of the present tense in statutes.

The rest of this article will proceed as follows. I will first set out the

framework for the analysis of tense that I will rely on, drawing primarily on the

discussions in Huddleston (2002) and Declerck et al. (2006) (section 2). I will

then discuss the notion that statutes are regarded as always speaking,

addressing the influence of that notion both on the law in various jurisdictions

and on scholars who have looked at law from a linguistic perspective (section

3).2 Next, I will take a critical look at the always-speaking metaphor through the

lens of linguistics. To do so, I will analyse examples of statutory language in light

of the framework sketched out in section 2, and will argue that the principle is

linguistically unmotivated and cannot be squared with the way in which many

statutes written in English are actually understood (section 4). Finally, I will

offer a summary and some conclusions (section 5).

2. The linguistics of tense and time

As noted, I will argue that the use and interpretation of the present tense in

statutes can be accounted for within a widely accepted framework for analysing

tense developed in linguistics. This section will set the stage by describing that

framework.

2. It is worth noting that while my discussion will focus on statutes and statutory

provisionsessentially, the clauses in a statuteit is equally applicable to other

prescriptive texts, such as constitutions, rules, and regulations. Citations of statutes

and other legal sources in the text include the following abbreviations: A.C. =

appeal cases; art. = article; c. = chapter; S. Ct. = Supreme Court Reporter; N.Z. =

New Zealand; R.S.C. = Revised Statutes of Canada; Pa. = Pennsylvania; s. =

section or subsection; Stat. = United States Statutes at Large; U.S.C. = United

States Code; W.A. = Western Australia.


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The literature on the topic of tense is enormous, and I will make no attempt

to review it here. Instead, I will instead draw on the treatments of tense given in

Huddleston (2002) and Declerck et al. (2006), which provide enough technical

detail for my purposes while hopefully keeping the discussion accessible to

lawyers and legal academics without a background in linguistics. Furthermore,

rather than undertake a broad overview of the linguistics of tense and time, I

will focus more narrowly on the points that will figure in my discussion.

2.1 Tense versus location in time

As explained by Declerck et al. (2006:22), We should make a careful distinction

between tense and time. Time is an extralinguistic category. That is, it exists

independently of language. Tense is a linguistic concept: it denotes the form

taken by the verb to locate the situation referred to in time. The relationship

between the two concepts is a complex oneprobably far more complex than is

recognized by those unfamiliar with linguistics.

The function of verb tenses is to specify the location in time of the situation

(i.e., the occurrence or state) referred to in a sentence (Huddleston 2002:127,

Declerck et al. 2006:94). That temporal location is understood as being relative

to some other point in timetypically the point at which the sentence is

uttered, which I will refer to as the encoding time. Thus, the situation is typ-

ically understood as being either earlier than the encoding time, simultaneous

with the encoding time, or later than the encoding time.

In the case of present-tense sentences in English, the situation to which the

sentence refers is not necessarily located at the same moment in time as the

utteranceor at least not only at that moment. Rather, as shown in (3)(5), the

situation is often understood as being located in the past or the future in relation

to the time of the utterance or as being located in the present time but also

extending in time before and after the time of the utterance.

(3) Present tense locating situations in the past:

a. So I was walking down the street, when all of a sudden some guy

comes along and grabs the bag out of my hands.

b. [Newspaper headline the day after election day:] Obama wins

re-election.

c. [Parent to child:] Your dad tells me you had a little accident with

the car.


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d. [Caption of photograph in newspaper:] Fans in San Francisco

celebrate after yesterdays World Series victory by the Giants.

(4) Present tense locating situations in the future:

a. I leave for Paris next week.

b. If the supplies dont arrive soon, we are in big trouble.

(5) Present tense relating situation to the present, but situation under-

stood to extend into the past or future or both:

a. The author of this article lives in Washington, D.C.

b. Mikey and Laurie are twins.

These facts about the present tensein particular, its ability to relate situations

to the time of utterance even when these situations actually extend in time

beyond the time of the utterancewill play a key role in my discussion of the

always-speaking principle.

2.2 Time of orientation

In describing the function of tense as being to locate the situation referred to in

a sentence in time, I said that the temporal location was typically understood in

relation to the encoding time. The situations location in time can also be

understood with reference to a point in time other than the encoding time, as in

(6), where the situations temporal location is relative to the time that the

sentence is heard or readthe decoding time).

(6) a. [Voicemail greeting:] I cant answer the phone right now.

b. [Highway sign:] You are now entering New York.

In (6a), the caller understands the voicemail greeting as indicating that the per-

son being called is unavailable at the time of the phone call, not that the person

was unavailable when he or she recorded the message. Similarly, in (6b), the

time relevant for interpreting the sign is the time at which a traveller sees the

sign, not the time when the sign was created.

There are also cases (which will figure in my analysis of the always-speaking

principle) in which the time relevant for interpreting a tensed verb form is

neither the time of encoding nor the time of decoding. These include cases like

the following ones (adapted from Huddleston 2002:126, ex. (5)):


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(7) a. If Susan beats Bob, hell claim she cheated.

b. If you eat any more youll say you dont want any tea.

In (7a), the possible situation of Bob claiming that Susan cheated is later than

the encoding time and, if the sentence is uttered in conversation, also later than

the decoding time. What is significant here is that the subordinate clause she

cheated, even though it contains a past-tense verb form, locates the cheating in

the past with respect to Bobs claiming (and by implication with respect to

Susans beating Bob), not with respect to the time of encoding or decoding of

the utterance as a whole. Similarly, (7b) locates the state of your not wanting any

tea at the same time as your possible future saying that you dont want tea, not at

the time of my uttering the sentence or of your hearing it.

Thus, the location in time of the situation referred to by a sentence can be

understood with reference to a variety of different times: the time of encoding,

the time of decoding, or some other time that is salient in the discourse context.

In order to capture these possibilities, discussions of verb tense often refer to the

point in time relative to which the situation is understood to be located as the

time of orientation or To (e.g., Huddleston 2002:125). I will follow this practice.

2.3 The encoding time of statutes

In applying this analytical framework to statutes, the concept of encoding time

requires some fine-tuning. In the simplest case, a statutes encoding time is the

time of its enactment by the legislature. But there are several potential com-

plications. First, in a bicameral legislature, a bill will typically be passed by each

house at a different time. Second, even after the bill is passed by the full legis-

lature, additional steps may be required before it becomes law, such as pres-

idential approval. Third, statutes sometimes include effective-date provisions,

under which substantive provision of the statute do not take effect until some

specified time after the statute has been enacted.

To account for these complications, I will treat the time of encoding of a

statutes substantive provisions as being the time that those provisions take

effect.3 This move is not merely a convenience. Rather, it is motivated by the

3. The substantive provisions of a statute are typically prefaced by performative

enacting language such as Be it enacted that (Kurzon 1986, Trosborg 1995:32). I

will assume that the encoding time of that language is the time at which all the


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fact that it is not until the substantive provisions of a statute have taken effect

that those provisions have the illocutionary force characteristic of statutes.4

3. Statutes as always speaking

3.1 The use of tense in statutes

The heavy lifting of statutesimposing duties, granting rights, establishing

normshas traditionally been accomplished through the use in the main clause

of the statute of the modal auxiliaries shall and may. These uses are illustrated in

(8), with the modal expressions indicated in italics:

(8) a. No person shall hold more than one elected office at the same

time.

(Virginia Code 2.22807)

b. Whoever invents or discovers any new and useful process,

machine, manufacture, or composition of matter, or any new and

useful improvement thereof, may obtain a patent therefor, subject

to the conditions and requirements of this title.

(35 U.S.C. 101)

The heavy lifting can also be accomplished by the use of non-modal con-

structions in the present tense, as in (9):

(9) a. Copyright protection subsists, in accordance with this title, in

original works of authorship fixed in any tangible medium of

expression, now known or later developed, from which they can

be perceived, reproduced, or otherwise communicated, either

directly or with the aid of a machine or device.

(17 U.S.C. 102(a))

b. Whoever with malice aforethought [...] kills another, is guilty of

murder in the second degree.

(District of Columbia Code 222103)

steps legally necessary for enactment are complete, even if the statute provides that

the substantive provisions will not take effect until a later date.

4. On the nature of that illocutionary force, see, e.g., Searle (1976:28), Kurzon

(1986:524), Bowers (1986:2938), Marmor (2011), and Allott and Shaer (2012).


8

As shown by (8b) and (9), the main clauses in statutes (in which the applic-

able norm is stated) are often qualified in some way by subordinate clauses: for

example, by describing the category of cases in which the norm applies. These

examples are repeated in (10), this time with the subordinate clauses italicized:

(10) a. Whoever invents or discovers any new and useful process, machine, manu-

facture, or composition of matter, or any new and useful improvement

thereof, may obtain a patent therefor, subject to the conditions and

requirements of this title.

(35 U.S.C. 101)

b. Copyright protection subsists, in accordance with this title, in

original works of authorship fixed in any tangible medium of

expression, now known or later developed, from which they can be

perceived, reproduced, or otherwise communicated, either directly or with

the aid of a machine or device.

(17 U.S.C. 102(a))

c. Whoever with malice aforethought [...] kills another, is guilty of mur-

der in the second degree.

(District of Columbia Code 222103)

Note that the verbs in all but one of these subordinate clauses are in the simple

present tense. That use of the present tense is characteristic of modern statutory

drafting, but there was a time when it was common to instead use shall-future

forms, as in (11).

(11) a. [I]f a plaintiff shall fail to comply with such order, to produce

books or writings, it shall be lawful for the courts respectively, on

motion, to give the like judgment for the defendant as in cases of

nonsuit; and if a defendant shall fail to comply with such order, to

produce books or writings, it shall be lawful for the courts

respectively on motion as aforesaid, to give judgment against him

or her by default.

(Judiciary Act of 1789, 1 Stat. 73, 15)

b. No Senator or Representative shall, during the Time for which

he was elected, be appointed to any civil Office under the

Authority of the United States, which shall have been created, or


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the Emoluments whereof shall have been increased during such

time [...].

(U.S. Constitution, art. 1, 6, cl. 2)

3.2 George Coode and the always-speaking metaphor

As noted earlier, the shift from future to present tense is traceable to Coode

(1845), who criticized the use of the future tense (by which he meant

expressions of the form shall + verb) to describe the case and the conditions,

which were his terms for the circumstances would trigger the statutes operation

(pp. 2324, 6163). Note that Coode did not object to the use of these forms to

express obligation, prohibition, and so on (i.e., what are now commonly

referred to as deontic uses5) as opposed to futurity (pp. 1516), as in the

statute given in (8a): No person shall hold more than one elected office at the

same time. Because the circumstances that Coode described as a statutes case

and conditions are typically set out in subordinate clauses, Coodes objection

was thus primarily to the use of the shall-future form in such clauses.

Coode argued that use of this non-deontic shall in statutes renders the

language complicate [sic], anomalous, and difficult to be understood (Coode

1845:6162). More specifically, he criticized formulations such as Where any

person shall find himself aggrieved on the ground that they are ambiguous between

deontic and non-deontic readings. Such forms, he said, confound[] the proper

language of obligation with that of hypothesis, depriving the former (the

peculiar language of the law) of its force, and often leaving a doubt whether the

action described is one merely supposed as a case or condition, or one

imperatively required to be performed (Coode 1845:2324).

Coode noted that the use of non-deontic shall forms was motivated at least

in part by the belief that it is necessary to describe the case and the conditions in

the future or perfect future, for fear that if it were expressed in the present tense,

as when any person is aggrieved, the law would operate only upon cases

existing at the moment of the passing of the Act (Coode:1845:63 [Coodes

italics]). He dismissed that fear as being unfounded and recommended

replacing the future tense with the present tense:

If the law be regarded while it remains in force as constantly speaking, we

get a clear and simple rule of expression, which will, whenever a case

occurs for its application accurately correspond with the then state of

5. On these uses of modals, see, e.g., Huddleston (2002:52, 178, 194).


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facts. The law will express in the present tense facts and conditions

required to be concurrent with the operation of [the portion of the

statute defining the relevant right, obligation, prohibition, etc.]

(Coode 1845:6364; see also pp. 9, 23.)

Coodes description of the law as always speaking is striking. It seems to

reflect an intuitive understanding that the situations that are referred to in

present-tense sentences can be understood as extending into what is, from the

speakers point of view, the future. (More on this point below.) However,

Coodewriting in 1845lacked the vocabulary and analytical framework that

is available to us now, so he resorted instead to a folk-linguistic metaphor.

Whether the metaphor originated with him is unclearI havent found any

earlier use of itbut in any event it has turned out to be very influential.

3.3 Acceptance of the metaphor in legal drafting

Beginning at least as early as 1858, Coodes preference for the present tense over

the future tense was endorsed by legislative drafters, as was the theory that the

law is always speaking (Macauley et al. 1858). And Coodes influence is obvious

in modern-day manuals on legislative drafting. For example, the manuals that

are followed in drafting federal legislation in the United States recommend the

use of the present tense, and justify that recommendation by saying that a statute

speaks as of any time that it is read (Ofc. of Legislative Counsel, U.S. House of

Representatives 1995:2; Ofc. of Legislative Counsel, U.S. Senate 1997:4). Sim-

ilar statements appear in the official drafting manuals in other jurisdictions

(Department of Justice (Canada) 2012, Ofc. of Scottish Parliamentary Counsel

2006:32) and in unofficial materials (Thring 1902:83, Dick 1985:8487, Asprey

2003:136138, Garner 2011:536). The principle has also been said to apply to

the drafting of private legal documents such as contracts (Asprey 2003:13640).6

The always-speaking principle has also been codified as a principle of

statutory interpretation in a number of jurisdictions, starting in 1859 with the

enactment of the following provision by the legislature for Upper Canada:

6. In recent years, the deontic use of shall, which Coode approved of, has also come in

for criticism on the ground that shall is overly polysemous, and there has been some

reduction in its use (Asprey 2003:72, 193201; Garner 2011:95253). In some cases,

shall has been replaced by other modal auxiliaries, such as must (Asprey 2003:195

96, Kimble 2005:xviii, Garner 2011:95253); while elsewhere it has be replaced by the use of the simple present tense, as in (9).


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The law [...] is to be considered as always speaking, and whenever any

matter or thing is expressed in the present tense, the same is to be

applied to the circumstances as they arise, so that effect may be given to

each Act and every part thereof according to its spirit, true intent, and

meaning.

(Interpretation Act 1859 (Upper Canada), s. 18(1))

With insignificant changes, that language has been part of Canadian law since

then; the current version is found in the federal Interpretation Act, s. 10.

Substantially identical provisions have been adopted in other jurisdictions (e.g.,

Interpretation Act 1924 (N.Z.), s. 5(d);7 Interpretation Act 1954 (Northern Ireland),

s. 31(1); Interpretation Act 1984 (W.A.), s. 8). In the United Kingdom, the always-

speaking principle, though not codified by Parliament, has been recognized and

applied by judicial ruling (e.g., R. v. Ireland, [1998] A.C. 147).

A notable exception to the widespread acceptance of the always-speaking

principle is the United States. Although Coodes preference for the use of the

present tense has been followed by legislative drafting manuals, which have

often repeated the always-speaking metaphor (Office of Legislative Counsel,

U.S. House of Representatives 1995:2; Office of Legislative Counsel, U.S.

Senate 1997:4), the metaphor does not show up in the United States Code (which

sets out federal law) or in any statute currently in effect in any U.S. jurisdiction.

Furthermore, references to the always-speaking principle in U.S. case law are

almost nonexistent.8

In those jurisdictions that do accept the always-speaking principle, courts

have frequently (and perhaps primarily) invoked it not in aid of interpreting

present-tense verbs, but in support of what are sometimes called updating

interpretationsinterpretations that adapt an older statute to the changed

conditions that prevail at the time of the interpretation (e.g., R. v. Ireland, [1998]

A.C. 147; Bennion 2002; Barak 2005; Sullivan 2008). Although that practice

7. Subsequently amended. New Zealands current Interpretation Act reads simply: An

enactment applies to circumstances as they arise (Interpretation Act 1999 (N. Z.), s.

6).

8. A search of all reported American cases on the Lexis research service turned up

only two cases citing the principle: a Pennsylvania case decided in 1882 (Marsh v.

Nelson, 101 Pa. 51, 56 (1882)) and a dissenting opinion in a recent U.S Supreme

Court case (Carr v. United States, 130 S. Ct. 2229 (2010)).


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raises interesting questions, those questions are jurisprudential rather than

linguistic and so are outside the scope of this paper.

3.4 Academic acceptance of the metaphor

As noted in the Introduction, most academic discussions of tense and time in

statutes that I am aware of accept the always-speaking metaphor as a given

(Bowers 1989, Trosborg 1997, Williams 2007, Graboyes 2010). Indeed, for

Bowers, the metaphor is the starting point for analysis: In relating time and its

representation to legislative expression, I think we must start with Coodes well-

known supposition of the law being always speaking (1989:241). Williams

seems not to give the always-speaking principle the same degree of importance,

but he does regard the (assumed) characteristic of continually speaking in the

present as being entailed by the mere fact that [a statute] has been enacted as

law (2007: 85; internal quotation marks omitted).

Williams is the only one of these authors who recognizes that the always-

speaking metaphor is in fact a metaphor, and he sees it as simply a more

colourful way of saying that the law has constant validity (1997:85). The others

take the always-speaking idea more literally, and seem to regard it as playing a

role in how statutes are understood. Bowers says that statutes are pragmatically,

always speaking and heard in the readers present time (Bowers 1989:241).

Trosborg (1997:127) says the same thing. However, Bowers and Trosborg appear

to differ from one another in what they mean by this statement (although I find

neither author entirely clear, hence the hedge appear to be).

Trosborgs main point seems to be rather general and mundanemerely

that the purpose of statutes is to prescribe rules that will apply to conduct

occurring after the statute is enacted:

As a statute is always speaking and heard in the readers present time,

the direction of fit is so to speak words to future world. From the

drafters point of view, the fit of words to the real world is always forward in time, projecting what is happen and anticipating what might

be the case. The language of regulation must anticipate a world that

does not exist at the time of expression, and it must be prepared for an

infinity of possibilities, at least in theory.

(Trosborg 1997:127)9

9. The description in this passage of statutes as having a words to future world fit is,

I believe, mistaken, or at least incomplete. It would be more accurate to describe

the fit as world-to-words-to-world: the statute changes the state of the world so


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Bowers, on the other hand, seems to be saying that the supposed fact that

statutes are always speaking has an effect on how present-tense language in

statutes is understood. At one point, he says that the use of the present tense

synchronises utterers time with readers time (Bowers 1989:28). Elsewhere,

he says:

In normal drafting, all provisions are really future as far as the draftsman is concerned [] However, a statute, not being someones

cry in the night, is a declaration of a new generic state of affairs which

includes its date of effectiveness, and once declared, exists

independently of the draftsman and of his dynamic time, in that what

might be past or future for him is timeless for the text and ever-present

for each reader at the point of reading. A succession of readers time of orientations constitutes the eternal presentness of the text. Clearly,

then, the expression of time from the draftsmans point of view is

irrelevant to the meaning of the statute and quite inappropriate to its

eternal declaration.

(Bowers 1989:244)

I take these statements to mean that when a statute is written in the present

tense, the time of orientation is the time of decoding.

This understanding of Bowers is shared by Graboyes (2010), who analyses

the United States Supreme Court case Carcieri v. Salazar (2009). In that case, the

court had to determine the appropriate temporal reference point for interpreting

a statute that defined the term Indian (referring to Native Americans) to include

all persons of Indian descent who are members of any recognized Indian tribe

now under Federal jurisdiction (25 U.S.C. 479). The two possible answers

were, on the one hand, the time the statute took effect and on the other hand,

what Graboyes describes as the time of decoding but what was really the time of

the government action in dispute. Graboyes cites the always-speaking principle

as support for the view that the appropriate temporal reference point is (what

Graboyes calls) decoding time: If the law is always speaking, then now, with the

statute itself, moves through time and references whatever moment at which it

is interpreted (Graboyes 2010:1257). In elaborating on this point, Graboyes

quotes the same long passage from Bowers (1989) that is quoted above, and

that it fits the words, and the words then fit the world as it now exists (Searle

1976:1617; see also p. 18: The performance of a declaration brings about a fit by

the very fact of its successful performance). With regard to the world-changing nature of statutes, see, e.g., Allott and Shaer (2012).


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then says: If a statute is timeless and the draftsmans time is irrelevant to its

meaning, then now should not reference encoding time. Encoding time is, by

definition, draftsmans time, and thus, in the realm of the statute, can have no

bearing on a statutes meaning (Graboyes 2010:12571258; footnotes omitted).

If the always-speaking principle is a valid statement about how statutes are

(or should be) understood, then it ought to be decisive in answering the

question that Graboyes has been considering. But while Graboyes seems to

accept the principle as valid, he is unable to reach a decision, concluding instead

that both interpretations are reasonable. That leads him to suggest that statutes

may have no canonical temporality and that [i]ntuition tugs both ways as to

whether encoding time or decoding time best manifests understandings of

legislative expression (Graboyes 2010:1259; emphasis in the original). Thus,

Graboyes must be regarded as ultimately raising doubts about the accuracy of

the always-speaking principle as a description of linguistic reality.

4. A critique of the always-speaking principle

As noted earlier, the description of statutes as always speaking began its life as

a folk-linguistic justification (or rationalization?) for a prescriptive rule. George

Coode thought that drafting statutes using the present tense was preferable to

drafting them using the shall-future, and he came up with the always-speaking

principle to help him persuade others of that view (Coode 1845). That

provenance suggests that linguists should not treat the idea with any more

respect than they would give to any other folk-linguistic hypothesis. To be sure,

Coodes principle may well have arisen from a valid intuition about how

present-tense sentences are understood, but that hardly means that his

hypothesis provides a useful starting point for analysisquite the contrary, given

that Coode lacked the descriptive vocabulary and analytical tools that are

required for talking about language rigorously. Indeed, Kurzon (1990:309) notes

that one source of interest to linguists in drafting manuals such as Coodes may

be their attempts, amateurish in linguistic terms, to describe linguistic

phenomena without the tools which are available to the professional. It is

therefore rather surprising that the always-speaking principle has been accepted

so readily in discussions of legal language.

What follows, then, is a critical assessment of the always-speaking principle

as a description or explanation of how statutes work linguistically. I will focus on

two overarching questions. One is whether it is necessary to resort to the

always-speaking metaphor to explain how present-tense expressions in statutes


15

are understood, or whether an explanation can instead be found within the

analytical framework that is outlined in section 2. The other question is whether

the always-speaking principle is useful in accounting for what happens when

statutes are interpreted. I hope to show that the principle is both unnecessary

and unhelpful.

4.1 Restating the always-speaking principle

The first step in my analysis is to restate the always-speaking principle in terms

consistent with the linguistic framework laid out in section 2 of this article.

(12) The restated always-speaking principle:

The time of orientation for tensed verbs in statutes is the time of

decoding.

An alternative formulation, which I have rejected, would be to take the always-

speaking metaphor literally. On this formulation, statutes would have an

encoding time that is durative rather than punctualextending from the time of

enactment indefinitely into the futurewith this stretched-out encoding time

functioning as the statutes time of orientation. The reason for rejecting this

alternative should be obvious: since the time of orientation is widely assumed to

be (at least conceptually speaking) punctual (e.g., Kamp and Reyle 1993:539),

this alternative would require the assumption that statutes constitute a unique

and previously unknown kind of utterance. Such a move would be at odds with

my goal here, which is to see whether the always-speaking principle can be

squared with existing linguistic treatments of the present tense. Therefore, I

have followed Bowers (1989) and Graboyes (2010) in taking the always-talking

principle to mean that the time of orientation for statutes is the time of

decoding.

While my restatement of the always-speaking principle may be at odds with

Coodes phrasing of the principle, it is consistent with his purpose in formulating

it: namely, to justify the use of the present tense rather than the shall-future in

drafting statutes. It is also consistent with the characterization of the principle in

materials on legislative drafting, such as the following:

Always use the present tense unless the provision addresses only the

past, the future, or a sequence of events that requires use of a different

tense. A legislative provision speaks as of any date on which it is read

(rather than as of when drafted, enacted, or put into effect).

(Office of Legislative Counsel, U.S. Senate 1997:4)


16

Whenever possible, use the present tense (rather than the past or

future). Your draft should be a movable feastthat is, it speaks as of whatever time it is being read (rather than as of when drafted, enacted,

or put into effect).

(Office of Legislative Counsel, U.S. House of Reps. 1995:2)

The present tense should be used wherever possible. The law should

speak at the moment it is being construed.

(Office of Scottish Parliamentary Counsel 2006:32)

4.2 Assessing the always-speaking principle

With the preliminaries in place, we can now turn to the actual assessment of the

(restated) always-speaking principle. In treating the time of decoding as the time

of orientation for statutes, the always-speaking principle diverges from ordinary

uses and interpretations of the present tense in English in at least two ways. One

is thatat least on the arguments just given in the previous subsectionit

requires the time of orientation to be the time of decoding, even though the

time of orientation for both speaking and writing is normally the time of

encoding (Declerck et al. 2006:110, Huddleston 2002:126). I will argue that this

deviation from the normal case is unmotivatedin other words, that the

interpretation of statutes can be understood perfectly well on the assumption

that the statutes time of orientation is the time of encoding. The other

divergence from ordinary uses and interpretations of the present tense involves

the conflict between the predictions that the always-speaking principle makes

about how particular statutes should be interpreted and what seems to me to be

their most natural interpretation.

4.2.1 Lack of motivation

Lets begin with the statutory provisions given in (13), in which the verbs in the

main clause are in the present tense:

(13) a. Subject to sections 107 through 122, the owner of copyright

under this title has the exclusive rights to do and to authorize any

of the following:

(17 U.S.C. 106)

b. No provision in a private Act affects the rights of any person,

except as therein mentioned or referred to.

(Interpretation Act (Canada), s. 9)


17

The sentences that make up these provisions take the form of assertions that a

particular state of affairs exists. When the relevant legislatures utter those

sentences by enacting them into law, that state of affairs comes into existence in

the relevant jurisdiction. And not only does that state of affairs exist (in the

appropriate jurisdiction) at the moment the statute is enacted, but it continues

to exist in that jurisdiction until the statute is repealed or amended.

These facts are entirely consistent with the assumption that each statutes

time of orientation is the time of encoding. The reason for this is that the verbs

in these statutes describe states rather than events. As noted in section 2,

present-tense descriptions of states can (and typically do) have situation times

that extend from the speakers present into the speakers past and future. States

are generally understood as having no specified boundaries in time, so that

when a sentence describes a state, this state is understood to exist for a period of

time longer than the time needed to make the utterance itselfin other words,

to extend into the past and into the future with respect to the time of encoding

(Huddleston 2002:127, Declerck et al. 2006). This observation about states is

highlighted by the sentences in (14)(15), which respectively identify states that

obtain for only a limited period of time and states that are (at least practically

speaking) eternal (Huddleston 2002:127, Declerck et al. 2006:130).

(14) a. I am hungry.

b. I live in New York.

(15) a. One plus one is two.

b. Water is wet.

c. Lions are carnivores.

Huddleston (2002:127) describes the types of states described in (14) as

limited situations and those in (15) as unlimited situations. The statutory

provisions in (13) describe states that can be seen as falling between those two

poles. On the one hand, the continuation of the states that are classified as

limited situations is contingent on events in a way that the states described by

the statutory provisions are not (as long as the statute remains in effect). On the

other hand, precisely because a statute can be amended or repealed, the

continuation of the states described by the statutes is contingent on events in a


18

way that the states illustrated in (15) are not.10 Thus, one can say that as long as

the provisions given in (13) remain in effect, the states that they describe should

be regarded as unlimited situations. And as a result, the statutes are understood

as describing states that extend into the future, without any need for us to

deviate from the default assumption that the time of orientation for an utterance

is the time of encoding.

Lets move on now to consider provisions that involve events rather than

states, as in (16):

(16) a. Anyone who willfully uses, publishes, or permits information to be

disclosed in violation of this section or who knowingly makes a

false certification under section 239(e) of the Immigration and

Nationality Act shall be subject to appropriate disciplinary action

and subject to a civil money penalty of not more than $ 5,000 for

each such violation

. (8 U.S.C. 1367(c))

b. Everyone who [] challenges or attempts by any means to provoke

another person to fight a duel [] is guilty of an indictable

offence and liable to imprisonment for a term not exceeding two

years.

(Criminal Code (Canada), s. 71; quoted in Allot and Shaer 2012)

In contrast to present-tense sentences describing states, those describing events

are constrained in their ability to locate situations that hold in the future

(Huddleston 2002:132). The nature of those constraints need not concern us,

however; what is relevant here is that the simple present-tense form of an

10. This can be explained by nonlinguistic factors such as social conventions regarding

the effect of statutes. So in this respect, too, there is no need to hypothesize the

existence of special linguistic properties that are unique to statutes, such as the

always-speaking principle.

On a somewhat related point, an anonymous review has suggested that it is at least

an open question whether the differences between (13), (14), and (15) are purely

pragmatic and in no way encoded in the sentence meaning given the extent to which the differences are based on world knowledge. While the point is a good one,

it does not affect my conclusions here, which are the same regardless of whether

the differences between the three sets of examples are semantic in origin or

pragmatic.


19

eventive verb can be used to locate a situation in the future when this verb

occurs in a restrictive relative clause, as in (17):

(17) a. Anyone who misses the meeting will be fired.

b. Everyone who fails the test will have to attend a review session.

(adapted from Huddleston 2002:135)

In both of these examples, a present-tense verb form figures in the description

of a possible event, which it locates at a time subsequent to the time of

encoding.

As in (17), statutory provisions such as those in (16) contain present-tense

verbs in restrictive relative clauses, as shown by the following abbreviated

bracketings, which correspond to (16a) and (16b), respectively:

(18) a. [[anyone [who willfully uses, publishes, or permits information

to be disclosed]] [ shall be subject]]

b. [[everyone [who challenges or attempts by any means to pro-

voke another person to fight a duel]] [ is guilty]]

Thus, interpreting those present-tense verb forms as locating events in the

future is consistent with the ordinary behaviour of present-tense verbs in

English.

Further support for this conclusion comes from the fact that present-tense

verb forms can locate situations in the future when they are used in the

antecedent clauses of conditional constructions (Huddleston 2002:135).

Although statutes such as those given in (16) are not conditionals in their form,

they are logically equivalent to conditionals (see, e.g., Gamut 1991:290). Thus,

the statutes given in (16) can be paraphrased in conditional form, as in (19):

(19) a. If anyone willfully uses, publishes, or permits information to be dis-

closed in violation of this section or knowingly makes a false cert-

ification under section 239(e) of the Immigration and Nation-

ality Act, he or she shall be subject to appropriate disciplinary

action and subject to a civil money penalty of not more than

$5,000 for each such violation.

b. If anyone challenges or attempts by any means to provoke another

person to fight a duel, he or she is guilty of an indictable offence

and liable to imprisonment for a term not exceeding two years.


20

The foregoing discussion has obviously not offered a comprehensive survey

of the ways that present-tense verbs are used in statutes. Nevertheless, I can

think of no reason to doubt that the analysis here would could be applied to a

broad range of statutory language. And given that the time of orientation in

English is normally the time of encoding (Huddleston 2002:126, Declerck et al.

2006:110113), the null hypothesis should be that statutes do not represent an

exception to this norm. It is therefore reasonable to suggest that there is never

any need to resort to the always-speaking principle. Certainly the burden of

proof is on anyone who wishes to argue otherwise.

4.2.2 Other conceptual and empirical weaknesses

In addition to the problems for the always-speaking principle just described,

there are various other conceptual and empirical considerations that militate

against it.

To begin with, the principle cannot be reconciled with the most plausible

characterization of a statutes enactment in terms of speech-act theory, which is

as a performativeone that, in fact, often begins with explicitly performative

language (e.g., Trosborg 1995:32) like that in (20):

(20) Be it enacted by the Queens most Excellent Majesty, by and with

the advice and consent of the Lords Spiritual and Temporal, and

Commons, in this present Parliament assembled, and by the auth-

ority of the same, as follows

(Minors Contract Act (U.K.), quoted in Trosborg 1995:32)

Although such language has ongoing consequences, it seems to speak only

once; and it would be absurd to suggest that a statute is re-enacted every time it

is read.11

Of course, one might argue that the always-speaking principle applies only

to the substantive text of a statute, and not to this prefatory performative

language. The problem for such an argument, however, is that in some statutory

provisions, the substantive text itself is explicitly performative, as in the

following examples:

11. However, Bowers (1989:28) takes a different view: he regards the always-speaking

principle as applying both to a statutes enacting language and to its substantive provisions.


21

(21) a. Each agency is granted the authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise.

(5 U.S.C. 559)

b. There is established the Office of Special Counsel, which shall be

headed by the Special Counsel.

(5 U.S.C. 1211(a))

As with the enacting language given in (20), these provisions are best

understood as speaking only once, at the time of their enactment, since the

events of granting authority and establishing the Office of Special Counsel are

complete upon the statutes enactment.

A related problem for the always-speaking principle is presented by the

provision at issue in Carcieri v. Salazar, which (as discussed in section 3) is the

subject of Graboyes (2010). The provision in question is given in (22):

(22) The term Indian as used in this Act shall include all persons of

Indian descent who are members of any recognized Indian tribe

now under Federal jurisdiction, and all persons who are descendants

of such members

(25 U.S.C. 479)

In Carcieri v. Salazar, the United States Supreme Court considered whether the

category of Indians under this definition included members of tribes that had

come under federal jurisdiction after the statute was enacted. The dispute

centred on how to interpret the definitions use of the temporal adverb now. If

the time of orientation for this sentence was the time of encoding, the effect of

the adverb would be to prevent the state described by the relative clause who are

members of any recognized Indian tribe [] under Federal jurisdiction from being able

to extend to any future times. And that, in turn, would mean that Indian did

not include members of tribes that came under federal jurisdiction after the

statutes enactment. On the other hand, if the time of orientation for the

sentence was taken to be the time of decodingas the always-speaking principle

would requirethen members of such tribes would count as Indians under the

statute once the tribe came under federal jurisdiction.

The conclusion required by the always-speaking principle seems

counterintuitive; among other things, it treats the word now as having no effect

on the definitions meaning. Indeed, even though Graboyes accepts the validity


22

of the always-speaking principle, he balks at the conclusion that follows from it,

as noted earlier.

The statutory provisions in (21) and (22) present problems for the always-

speaking principle because they are most naturally interpreted as setting the time

of orientation at the time of encoding. A different problem is presented by

statutes in which the time of orientation is best seen as neither the time of

encoding nor the time of decoding, but rather the time of some situation that is

referred to in the statute or otherwise inferable from the context. Such statutes

are similar to the sentences in (7) (repeated here as (23)), where the time of

orientation for the italicized verbs is a hypothetical situation subsequent to the

time of the utterance, but previous to or simultaneous with the time of a larger

overall situation:

(23) a. If Susan beats Bob, hell claim she cheated.

b. If you eat any more youll say you dont want any tea.

Following Declerck et al. (2006:11718), I will refer to the time of orientation

for the italicized verbs (and the statutes discussed below) as situation time.

An example of such a statute is a provision of United States federal law

requiring that those convicted of certain firearms offences be sentenced to a

prison term of at least 15 years if they have three prior convictions for a serious

drug offense (18 U.S.C. 924(e)(1)). The term serious drug offense is defined by

statute as follows:

(24) As used in this subsection[,] the term serious drug offense means

[] [a drug offense] for which a maximum term of imprisonment

of ten years or more is prescribed by law

(18 U.S.C. 924(e)(2))

The question arises whether, in determining whether a defendants prior

convictions were for offences for which a maximum term of imprisonment of

ten years or more is prescribed by law, the court should look to (i) the

maximum prison term as of the time the firearms-sentencing statute was

enacted (corresponding to encoding time), (ii) the maximum term as of the

time that the defendant was convicted of the prior drug offence (corresponding

to situation time), or (iii) the maximum term as of the time that the defendant is

sentenced on the firearms offence (roughly corresponding to decoding time).

Although the question is purely academic if the maximum prison term at each

of those times is at least ten years, it has real consequences if there has been a


23

change in the law such that the maximum term was at least ten years at one of

those times but not at another.

For example, consider a defendant who has been convicted of one of the

firearms offences that is subject to the sentencing provision discussed above, and

who has three prior drug convictions. At the time of each of those prior

convictions, the maximum prison term for the drug offence was at least ten

years. But by the time of the sentencing on the firearms offence, the statute

underlying one of the drug convictions has been amended so that the maximum

prison term is now less than ten years. Does the 15-year minimum apply?

According to the always-speaking principle, the answer would seem to be

no. In deciding whether the drug conviction was for a crime for which a

maximum term of imprisonment of ten years or more is prescribed by law, the

court would look to the maximum penalty under the drug law at the time of the

firearms sentencing, not the maximum penalty when the defendant was

convicted of the drug crime. While such an interpretation would be defensible

as a purely linguistic matter, the other interpretations would also be

linguistically reasonable. Indeed, when this issue came before the United States

Supreme Court, it adopted one of the other interpretations.

In the case of McNeill v. United States (2011), the court held that for the

purpose of firearms sentencing, the focus should be on the maximum

authorized prison term as of the time of the drug conviction:

The statute requires the court to determine whether a previous

conviction was for a serious drug offense. The only way to answer this backward-looking question is to consult the law that applied at the

time of that conviction. []

Use of the present tense in the definition of serious drug offense does not suggest otherwise. McNeill argues that the present-tense verb

in the phrase is prescribed by law requires federal courts to deter-

mine the maximum sentence for a potential predicate offense by

looking to the state law in effect at the time of the federal sentencing,

as if the state offense were committed on the day of federal sentencing.

That argument overlooks the fact that ACCA is concerned with

convictions that have already occurred. Whether the prior conviction

was for an offense involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled

substance can only be answered by reference to the law under which

the defendant was convicted. Likewise, the maximum sentence that is


24

prescribed by law for that offense must also be determined according

to the law applicable at that time.

(p. 2222)

This interpretation in effect regards the time of orientation for the verb phrase is

prescribed by law as being the situation timethe relevant situation being the

prior drug conviction. The courts interpretation strikes me as more natural than

the interpretation that would be required by the always-speaking principle, but

the line here between linguistic analysis and legal analysis is a fuzzy one. In any

event, the important point is that under the always-speaking principle, this

eminently plausible interpretation would seem to be ruled out 12

Another example of a statute for which situation time serves as the time of

orientation is provided by the rules of evidence in United States federal courts.

Under those rules, hearsay (out-of-court statements) is generally inadmissible,

but there are exceptions to that general rule (Fed. R. Ev. 802804). Some of

these exceptions apply only if the person who uttered the hearsay statement

(known as the declarant) is unavailable as a witness (Fed. R. Ev. 804(b)). The

declarant is deemed to be unavailable if (among other things) he or she refuses

to testify about the subject matter despite a court order to do so, testifies to not

remembering the subject matter, or cannot be present or testify at the trial or

hearing because of death or a then-existing infirmity, physical illness, or mental

illness (Fed. R. Ev. 804(a)). For the purpose of deciding whether the hearsay is

admissible, the question is whether any of these conditions exists at the time of

the trial. That time is thus the time of orientation for the purpose of interpreting

the rules present-tense verbs.

Admittedly, the always-speaking principle can deal adequately with this rule

in the case of the rules application during the trial, since the time of decoding

coincides with the time of the trial (at least if the time of the trial is treated as a

single point in time). But a difficulty arises if the trial judges ruling is later

reviewed by an appeals court. Under the always-speaking principle, the time of

orientation would be the time of the appeal, by which time all of the relevant

events and states (e.g., the refusal to testify) would be in the past. And that in

turn would be problematic because the rule does not fall into any of the cases in

12. It might be possible to follow the always-speaking principle but still use the time of

the drug conviction as To, based on a type/token ambiguity in the word offense.

But even if such an argument worked, it would require jumping through analytical

hoops that would not be necessary were it not for the always-speaking principle.


25

which a present-tense verb form can locate a situation in the past (Leech

1987:1012, Huddleston 2002:13031, Declerck et al. 2006:17681).

A similar problem for the always-speaking principle is presented by statutes

such as the ones quoted in (16) (repeated here as (25)):

(25) a. Anyone who willfully uses, publishes, or permits information to

be disclosed in violation of this section or who knowingly makes

a false certification under section 239(e) of the Immigration and

Nationality Act shall be subject to appropriate disciplinary action

and subject to a civil money penalty of not more than $ 5,000 for

each such violation.

b. Everyone who [] challenges or attempts by any means to pro-

voke another person to fight a duel [] is guilty of an indictable

offence and liable to imprisonment for a term not exceeding two

years.

In any prosecution for violation of these statutes, the alleged violation will by

definition already have occurred. If the time of orientation for interpreting the

statute is the time of decoding, the statute would not apply to the alleged

violation, since the present-tense forms in these statutes cannot reasonably be

understood as describing events in the past. This argues against the always-

speaking principle, not merely because it is a bad legal result, but because it is

contrary to how most people are likely to understand the statutes.

Indeed, I suspect that those who accept the always-speaking principle would

not apply it literally to statutes such as these, and would say that the statutes

should be interpreted in any given case as of the time the alleged crime was

committedin other words, that the statutes should be deemed to have stopped

speaking at that time. Qualifying the always-speaking principle in that way

would be unprincipled, in that it would be motivated by nothing more than a

desire to avoid an undesirable result that the principle would otherwise compel.

And the necessity for such a move would highlight the always-speaking

principles inherent flaws.

5. Conclusion

Although statutory language certainly has characteristics that mark statutes as

belonging to a genre of their own (e.g., Tiersma 1999), they are nevertheless

products of natural language. One would therefore expect their interpretation to


26

be subject to the same generalizations and regularities (I hesitate to say rules)

that apply to any other English-language text. The always-speaking principle

defies that expectation, by positing a time of orientation for statutes that differs

from what is overwhelmingly the norm for other types of texts.

Up until now, the always-speaking principle has been assumed to be valid,

without any critical examination of that assumption. This article has provided

evidence that this assumption is unfounded: that the always-speaking principle

is linguistically unmotivated and unnecessary, and that at least some of the

predictions it makes are incorrect. I would therefore suggest that there is no

justification for continuing to accept the always-speaking principle as a given. If

the principle is not to be abandoned, it needs to be defended on the merits, like

any other hypothesis.

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Always Speaking: Interpreting the Present Tense in Statutes

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