Deem

Towards more picturesque speech™ →Go uptown A legal eagle soars over the magnificent legacy of the River Pedantry, yesterday. SEC guidance on plain EnglishIndex: Click ᐅ to expand: Plain English Drafting Metaphor Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Triago: Milady! With all due and payable respect, and interest accrued thereon
I wouldst be inclined to be supportive of dissent —

Queen: O, exasperating vapours! Whatever doth he mean?

Herculio: Triago disagrees.
“Inclined”, Triago?
“Supportive”?
As straight as that?
No deemery to wrap it round?

Triago: Aye, deemèd, perchance — I pray just such indulgence
To vouchsafe avoidance of some doubt.

Queen: Doubt, Triago?

Triago: I’ll think of something, Majesty.

—Büchstein, Die Schweizer Heulsuse

Deem
/diːm/ (v.)

(See also ~ery /diːməri/ (n.))

To be anti-cunisian; to treat the one thing as the other. Demnation enfolds all a legal eagle’s intents and every one of her purposes. It is of a piece with the equivalence we crave when, under a stock loan, we return an asset that is, but simultaneously is not, the one we borrowed. It is the means by which we get comfortable saying that a eurobond, being of the same type and class, and forming part of the same series as but, all the same, ontologically, distinct from, another one is, nonetheless, “the same” thing. We “deem” it to be so.

We apply the same sort of Heath Robinson logic to a liability we say is “in an amount equal to the amount borrowed” — as if the sum you pay back is, in some ineffable way, different from the one you borrowed.

These apocalyptic horsemen line up on the ridge and gaze across the ontological chasm. Lined up and marshaled against them are all those that amend, supplement or modify. Deep in the abyss below flows the monstrous River Pedantry whose tedial silted washings have, over millennia, carved out this canyon and left as their legacy these magnificent edifices of legal idiom: deeming; fungibility; equivalence; the hypothetical.

For where to “amend” is to assert the identity of a unitary something that may change over a period of time but, all the same, has existential continuity; to “deem” is to assert the momentary non-identity of two things; to draw a legally material distinction notwithstanding their failure to have any differentiating form, feature or function. It is to say, “these things are the same, but they are not”; or “these things are not the same, but yet they are”.

It is to take Theseus’ ship to a whole other realm of ontological redundancy.

You might wonder why we bother. The JC certainly does. Why do we legal eagles talk in such convoluted ways?

Because it was ever so. So much water has passed before us that it has become not how we speak but how we think. These are our gods and monsters. This is the fabric from which our legal world is woven. This essential subjunctivity; this fixation with a hypothetical state of being one would be in were it not for the inconvenient state one actually is in, is foundational to the legal eagle’s torturous psyche.

Fun fact: The noun form of deem; the act of deeming something, is “demption”.

See also

• Büchstein’s Die Schweizer Heulsuse
• The common law doctrine of demption
• Amend
• Fungible
• Hypothetical
• Bob Cunis