Qua Qua Qua
posted by Miriam Cherry
The use of “qua” has always struck me as the worst kind of legalese. It’s a convoluted, inelegant way of saying “as” or “to act in the capacity of.”
For example, Dictionary.com lists the following quote from Judge Richard Posner: “This might be thought a decisive objection to a federal judge’s writing about this subject even if the judge writes qua academic rather than qua judge.”
Not to knock Judge Posner (who must be admired intellectually, regardless of politics), but aren’t there better ways to express this thought? Is “qua” actually adding anything here?
Anyway, as much as I can, I’d like to encourage Qua to go the way of the dinosaurs. I have declared a moratorium on qua qua qua.
June 13, 2006 at 3:45 pm
Posted in: Weird
Print This Post
Responses (20)
Law Student '06 - June 13, 2006 at 4:14 pm
The legal lexicon is full of words that are completely unnecessary in modern writing. For example, is it really necessary to use inter alia in normal, day to do writing?
Another one that bothers me even more is overruse of the word “said.” Such as, “He needs to bring his pencils for said exam.” I realize that the word said is a shortening of “aforesaid.” However, in most cases if the writer would be able to substitute “the,” “those,” or “that” for “said,” and the sentence in question would make every bit as much of sense without appearing antiquated.
Christine Hurt - June 13, 2006 at 4:21 pm
Miriam, I have agreed with all your posts until now. I love the word “qua.” Please don’t get rid of it. We have too few “q” words already!
Bruce - June 13, 2006 at 4:28 pm
It could be worse. Lawyers could mispronounce it. The philosophers I used to hang out with all pronounced it “kway”.
Miriam Cherry - June 13, 2006 at 4:42 pm
Christine,
I am open to persuasion.
Aside from its obvious appeal to the scrabble players for its “q,” why would you suggest maintaining it?
Cheers
Miriam
Michael Risch - June 13, 2006 at 4:59 pm
We read “qua” a lot back in my philosophy classes. I used it (quite well, I think) in my latest article on trade secrets. The issue was whether calling trade secrets property was enough reason to have them. I determined that the property moniker couldn’t normatively support trade secrets qua trade secrets, but for other purposes (e.g. eminent domain), the property moniker was useful.
Sure, other words might have worked, but I thought this one was right on point. It’s like that Judd Nelson movie from years ago, “From the Hip” – is there a word that describes someone better than A**hole? Antagonistic? Belligerent? Those just don’t capture the meaning. Used properly, “qua” falls into this category.
John Armstrong - June 13, 2006 at 5:19 pm
Why not get rid of all the Latin in rhetoric, legal or otherwise? Who needs “id est” or “exempli gratia“? Why hold on to writs of “certiorari“? And what’s the deal with “habeas corpus“, anyway?
Now, to go on a more hyperbolic tangent: Why do we have “bad”, when it’s just the opposite of “good”? Wouldn’t “ungood” suffice? For that matter, why have such different words for mere changes of degree? “Awful”, “terrible”, “horrible”.. all these can be replaced by degree-enhancing markers like “plus-”, as in “plusungood”.
Most of the English language is extraneous. Most natural language at all is, but that’s part of its charm. Who are we to wield the scalpel and decide what’s unnecessary?
Simon - June 13, 2006 at 5:19 pm
Not only in writing, but also in everyday spoken use, yes, certainly. It more concisely expresses the point than the closest English equivalent.
I think “qua” can be overused – Posner is reaching a bit in that example, but there are situations where it seems apt, particularly when it needs to be made clear that you mean “in their capacity as” rather than just “as”. For example, in writing about the DC representation issue, I made the point that “I am not opposed to the cause of giving DC residents representation in Congress, but I am certainly opposed to giving the District of Columbia qua the Federal District representation in Congress.” In that circumstance, and I’m sure many others, it seems appropriate and useful.
Without meaning to accuse Miriam of this, I resent the effort to purge latin from legalese when it’s done for no purpose other than removing it. To be sure, there are some instances when an English term of equal specificity but more economy can be substituted, and that is one thing; but when there is no compelling reason, and a fortiori when it is done purely for its own sake, that is quite another. Stuff like substituting “writ of mandate” for “writ of mandamus” is just obnoxious to me.
Paul Horwitz - June 13, 2006 at 5:38 pm
I think this comment is more a propos of Simon’s comment than Miriam’s post, but as a Canadian lawyer it has always struck me as interesting that Canadian and English courts, which we might have assumed would be more hidebound than their revolutionary cousins, have in many respects simplified and angliziced their legal language more than American courts. (Not that they are more modern in every respect; I don’t use my horsehair wig much in the States. But it seems to me they’ve de-Latinized the law more.) I can’t identify a reason for this. It does strike me, though, that part of the reason is that no one loves tradition more than the arriviste.
Benjamin Weatherwax - June 13, 2006 at 8:19 pm
Paul,
A zinging use of “arriviste.”
And a fine illustration, by opposition, of why qua may drive some quazy — it seems so unthinking. Law latin autopilot.
Miriam Cherry - June 13, 2006 at 8:53 pm
I think that Latin has its uses, and I’m not suggesting getting rid of all legalese. But “qua” has always been particularly problematic, because I just see it confusing rather than clarifying.
Incidentally, I’m with you, Law Student, on “said.” I teach contracts, and my advice is, use sparingly, if at all.
David S. Cohen - June 13, 2006 at 9:11 pm
Latin phrases that are not terms of art referring to specific legal procedures or items really are pointless. Why ever use “inter alia” when “among other things” works? I haven’t come across any Latin phrases, other than the specific terms of art mentioned earlier, that can’t be substituted out to make writing clearer and easier for all readers to understand.
Simon - June 13, 2006 at 9:44 pm
Because that form is more economical in both spoken and written communications, and because it has been in use for a long time and there is no particularly compelling reason to change it of which I’m aware. Change for the sake of change, that is, change that is not remedial of some genuine problem which the change will fix, and particularly when talking of pointless and undirected change to a longstanding tradition, is almost never justified.
Paul Horwitz - June 13, 2006 at 11:59 pm
I don’t have much of a dog in this hunt. But one reason why we might discard legal Latin, Simon, is that it takes effort — perhaps unnecessary effort — for law students to learn it, and it draws an unnecessary veil between lawyers and judges, on the one hand, and litigants on the other. Assuming, as I mostly do, that it is a good thing to strip away the sense of law as a privileged and mysterious profession, then that’s a perfectly serviceable reason to get rid of unnecessary legal Latin. (No view on my part as to whether “inter alia” meets the bill.) While there are often good reasons to assume that change for its own sake is not a good idea, I should think that is more true in cases when we lack sufficient information about the potential consequences of our choices, in which case the fact that a custom has worked reasonably well for a long time puts a thumb on the scales in favor of maintaining the current custom. Is this really such a case? Is there a compelling reason why legal Latin is necessary? Is there a compelling justification for this “longstanding tradition?” Or is it a case of conservatism for the sake of conservatism?
Eh Nonymous - June 14, 2006 at 10:34 am
Proper use of definitions early in a document make “said” as a modifier almost entirely unnecessary. Improper use of definitions means a court’s going to ignore what you said in favor of what it thinks you meant to say _anyway_.
The problem that “said” is supposed to solve, is making clear that subsequent clauses refer to the same object as prior clauses or sentences. “The very same contract,” or “the employer just mentioned.” There are more artful ways to do it. There are more clear ways to do it. But it’s important not to leave gaps in your drafting where a failure to construct the sentence properly makes the later clause general, when you meant it to be specific.
_Qua_ is usually the shortest, stupidest way to say nothing at all, and to say it pompously.
“As” is indeed the best substitute, as in Posner’s quote, in many instances. Too much qua-ckery makes Jack a dull boy, qua boy.
Maryland Conservatarian - June 14, 2006 at 11:13 am
“Not to knock Judge Posner (who must be admired intellectually, regardless of politics),..”
on the broader subject of extraneous words; why would anyone think the intellect of one the most widely-read and cited legal minds of today would need defending?
Miriam Cherry - June 14, 2006 at 11:53 am
If it looks like a duck, and qua’s like a duck…
(Sorry, couldn’t help it
.
I disagree with Judge Posner on a number of political matters, but respect him nonetheless. I certainly didn’t want to criticize his thinking because he uses qua.
Of course, there are many, many academics who have criticized Posner over the years. Coming to mind immediately, I would think of the excellent exchange between Posner and Robin West about the meaning of Franz Kafka’s “The Trial.”
Simon - June 14, 2006 at 2:05 pm
I really don’t see any of that as meeting the burden. I don’t really think latin contributes to a “sense of law as a privileged and mysterious profession”, but even if it did (or does), that would not really be a compelling reason to change it. It really doesn’t involve that much effort; it is simply part of the vocabulary, both in and beyond the legal community. I don’t imagine anyone in normal usage pauses to give any thought to whether “e.g.” is supposed to be short for “eggsample”; it is part of the language, and quite aside from traditional concerns, is even further bolstered by its readily-apparent utility. I’m not going to suggest that there isn’t some pruning that can be done; I don’t have a problem with saying “expression of one thing is exclusion of the other” instead of “expressio unius est exclusio alterius” (although I do think it tends to rob the canon of some force in its inelegant translation), but as a general matter, there has to be a better reason than laziness to make a change, particularly when that tradition is bolstered by utility or elegance. And I really don’t think either of the concerns you raise meet that standard.
(As a side note, I cannot resist adding that, if learning what is, frankly, not all that difficult a vocabulary to grasp the basic of, is really causing that much trouble for an attendee of a law school, one really has to wonder what has happened to admissions standards).
Miriam Cherry - June 14, 2006 at 2:31 pm
Simon: I’m not suggesting eliminating qua because of intellectual laziness; I’m suggesting it because it is neither useful nor elegant.
So far, Michael’s example (trade secrets qua trade secrets) is the only example given. But I’m still not sure this couldn’t have been written more clearly without this construction.
I am at this point, not convinced, and am in fact starting to shore up my opinion, bolstered with the comment from Eh Nonymous:
“Qua is usually the shortest, stupidest way to say nothing at all, and to say it pompously”
Mike - April 29, 2008 at 10:04 am
Qua is only useful when playing Scrabble. Otherwise, the use of qua should be limited.
Qua Qua Qua Qua « Hysteron Proteron - January 14, 2010 at 8:30 pm
[...] Qua Qua Qua Ran across this post on the use of ‘qua’ in legal discourse and whether it is justifiable. Short answer: according [...]
Leave a Reply