Tuesday, July 21, 2009

It's all fiction

All definitions from Elizabeth A Martin Oxford Dictionary of Law, 5th Ed unless otherwise stated.

n. An assumption that something is true irrespective of whether it is really true or not. In English legal history fictions were used by the courts during the development of forms of court action. They enabled the courts to ...
extend their jurisdiction.

They surely seem desperate to extend their power over our lives and the lives of our home educated sons and daughters. Well, I've decided to open up a few Law Dictionaries and now I'm beginning to think that those who say that all these Acts and Statutes do not apply to us and that the way they get us to believe they do is through the manipulation of language might have a point... Did you know that Legalese, the language of the Law Society, is not English? I didn't.

child n. 1. A young person.

What does the word person actually mean in legalese?

The interpretation sections of the Education Act 1996 and the Children Act 2004 do NOT define (or re-define) the word “person”; it seems that when words are not defined in the specific Acts we have to go to the Interpretation Act 1978 (c.30). There we find the following definition:

“person” includes a body of persons corporate or unincorporate.

Now, is that what our sons and daughters are?

Black's Law Dictionary, 4th edition, defines the word "include" as follows:
  • include. To confine within, hold as in an inclosure, take in , attain, shut up, contain, inclose, comprise, comprehend, embrace, involve.

Therefore, in legalese, the verb include is clearly restrictive and only has limited scope. Only the participle, including (but not limited to) enlarges the scope. When used in a definition, include does not expand the existing definition of the word it is attempting to define.

That would explain why the expression "including but not limited to" is used so often... Consequently, it appears that the Education Act 1994 and the Children Act 2004 apply ONLY to "a body of persons corporate or unincorporate".

Here's some more definitions from the Law Dictionary to help us understand the meaning of the word "person" in legalese.

corporation (body corporate) n. An entity that has legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties (see JURISTIC PERSON) and possesses the capacity of succession. A corporation aggregate (e.g. a *company registered under the Companies Acts) consists of a number of members who fluctuate from time to time. See also INCORPORATION.

unincorporated body
An association that has no legal personality distinct from those of its members (compare CORPORATION). Examples of unincorporated bodies are *partnerships and *clubs.

juristic person
(artificial person) An entity, such as a *corporation, that is recognized as having legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person.

natural person A human being. Compare JURISTIC PERSON.

So my question is, do all these Acts and Statutes apply to juristic persons or human beings? Going back to the definition of "fiction", what are we, and they, assuming we are? Juristic persons?

Can any of you please enlighten me?

Disclaimer: none of the information in this post should be taken as legal advice.


Working Dad said...

Hi Paula, we've been interested in this whole issue of statutes applying under contract law and therefore do not apply unless you contract with the courts / state.

Unfortunately we haven't found anything concrete yet and are afraid to test the theory without knowing more, still trying to figure it out but only 24 hours in a day and so many other things to do as well!

Anonymous said...

The theory will soon be tested
Results will be shared.