‘And/or’ part 2: The fault lies not in conjunctions, but in ourselves

It has been called “a Janus-faced verbal monstrosity,” the “crutch of sloppy thinkers,” “an attempt to cover all the bases without having to think about any of them.” We’re talking about and/or. The authors of these criticisms have something in common, besides their dislike of the conjunction in question. They are all lawyers or judges – and/or has caused trouble in the legal realm. 

Ironically, and/or originated as a term meant to make legal documents less confusing. It first appears in an 1885 contract specifying that a ship should be loaded with “sugar, molasses, and/or other lawful produce.” This is pretty clear: just make sure the boat is full of something. 

The term rapidly became known for producing more problems than it solved. To give an example, when Edmond Higgins tried to collect on a policy taken out in the names of “Edmond K. Higgins and/or Thomas Wood o/a [operating as] Tom Wood Marine and Sport,” his insurance company denied the claim, on the basis that it was unclear who was actually covered. His case went to trial, and the court too had great difficulty “ascertaining the precise coverage intended by the policy.” The issue was the pesky “and/or,” which “created confusion and ambiguity.” Eventually the court split the difference and gave Mr. Higgins half of what he thought he was owed.

Is this confusion the fault of and/or itself, or of writers who have been careless with how they use it? Courts have had similar problems parsing plain old and and or. According to law professor Lawrence Solan, “the difficulty in interpreting and and or is so well-recognized in the law” that jurisdictions all over the country allow these conjunctions to be switched if a law doesn’t make sense as written. One statute in New York explains that and and or “may be construed as interchangeable,” since “a common mistake made by the drafters of statutes is the use of the word ‘and’ when ‘or’ is intended or vice versa.” If we can’t figure out when to use them separately how can we deal with their combination? The fault, dear Brutus, lies not in our conjunctions but in ourselves.

American Sign Language cuts through this confusion. It has one sign, which linguists write as “COORD,” that can mean both and and or. Linguist Kathryn Davidson explains that the signs “MARY WANT TEA COORD COFFEE” can be interpreted as “Mary wants tea and coffee” or “Mary wants tea or coffee,” depending on the context. Given that COORD can cover all the bases, it might seem as if it would only muddy the waters further. But paradoxically, it forces those who use ASL to slow down and consider what is actually meant. COORD’s inherent flexibility works against the sloppy thinking so many lawyers and judges blame on and/or.

Click here to read Part 1 in this series.