Deem
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To deem is the anti-Cunis; it is to treat one thing as the other. It enfolds all a legal eagle’s intents and every one of her purposes.
It is of a piece with the equivalence we craves 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 the eurobond we hold, being of the same type and class, that forming part of the same series as but all the same, ontologically, distinct from, the one we have in mind security is, nonetheless, “the same”. We deem it the same.
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 in some ineffable way that is different from a liability being the amount 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 leaving as their legacy these magnificent craggy edifices of legal idiom.
For where to “amend” is to assert the identity — the continuing legal existence, even — of a unitary something that is in a way changed over a period of time, to “deem” is to assert the momentary non-identity of something that, in every legally material way, has not. It is to take Theseus’ ship to a whole other realm of ontological redundancy.
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 beconme not how we sepak 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.