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Subject: Re: [office-comment] Separating OpenFormula from (the rest of) ODF 1.2

On Fri, May 15, 2009 at 4:54 AM, Brad Hards <bradh@frogmouth.net> wrote:
> On Friday 15 May 2009 09:14:28 pm marbux wrote:
> I agree. However your view is that "the draft standard" means a single entity.
> In the absence of case law, that is an arguable interpretation, and subject to
> all manner of legal opinions depending on what one wished to believe, and how
> much one is willing to pay the esteemed legal adviser.

The corollary to that argument would seem to be that the law can be
safely ignored because a contrary legal opinion can be found if enough
money is paid. But such an argument runs afoul of the well-established
principle that ignorance of the law is no defense. In nearly all
situations, the law creates an *irrebuttable* presumption that the
parties were aware of the law, even if what is the law has yet to be
decided by a judge. I.e., awareness of the law is presumed.

There is also usually a rebuttable presumption that words take their
common and ordinary meaning absent explicit definitions or ambiguity
that cannot be resolved using the common and ordinary meanings. That
presumption casts the burdens of proof and persuasion on the
proponents of non-common and ordinary definitions.

In this situation, one must pay attention to the semantics. The
article "the" is the definite article.
<http://dictionary.reference.com/browse/the> "(used, esp. before a
noun, with a specifying or particularizing effect, as opposed to the
indefinite or generalizing force of the indefinite article a or

Granted, one may walk into any decent law library in English-speaking
nations, pull out the right volume of West's Words and Phrases, and
find citations to a distinct minority of cases that have held "the" to
be indefinite. But I doubt you'd find very many at all that were not
context-specific to a situation where either provisions were at war
with each other or the common and ordinary meaning would lead to an
absurd result.

We're not faced with such a situation here. Instead, it's the
piecemeal review of the complex, exacting,  and highly-interrelated
provisions of a technical standard that is more absurd.

Moreover, even were we faced with "a draft standard" phrase, "a" would
be sufficiently definite in this situation because "standard" is
singular. If the ATBT's drafters had wished to allow piecemeal review,
they could have easily said instead, "a provision of a standard."

Many Anglican legal cases are resolved on the basis of who has the
burdens of proof and persuasion. As the proponent of a meaning
different from the common and ordinary should you choose to assert
one, you would bear those burdens. Such burdens cannot ordinarily be
met simply by saying other meanings are possible without even
identifying a candidate substitute meaning.

In this case, you are in effect arguing that "the dog" could mean
"part of the dog." If you're inclined to pay a lawyer for her time
spent searching for supporting legal authorities, you could probably
find a lawyer willing to take your money. But I doubt you'd have much
luck finding a lawyer who would tell you it's a winning case.

> I think you've reached the ridiculous point. I scarcely think that providing a
> draft standard in two parts is likely to result in violence...
> Nice try though :-)

On the violence in context, perhaps or perhaps not.
The annals of the law are awash with cases where violence was
committed over trivial matters. But the point I was striving for is
that paying heed to the law often avoids the need to argue. I have a
favorite quotation on the topic of ignoring the law:

The law, Roper, the law. I know what's legal, not what's right. And
I'll stick to what's legal. . . . I'm not God. The currents and eddies
of right and wrong, which you find such plain-sailing, I can't
navigate, I'm no voyager. But in the thickets of the law, oh there I'm
a forester. . . . What would you do? Cut a great road through the law
to get after the Devil? . . . And when the last law was down, and the
Devil turned round on you - where would you hide, Roper, the laws all
being flat? . . . This country's planted thick with laws from coast to
coast - Man's laws, not God's - and if you cut them down . . . d'you
really think you could stand upright in the winds that would blow
them? . . . Yes, I'd give the Devil benefit of law, for my own
safety's sake.

R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann
ed. 1967), as quoted in in Tennessee Valley Authority v. Hill, 437
U.S. 153, 195-196 (1978), <http://laws.findlaw.com/us/437/153.html>.
("To sustain that position, however, we would be forced to ignore the
ordinary meaning of plain language").

Best regards,

Paul E. Merrell, J.D. (Marbux)

Universal Interoperability Council

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