Legal language

by Possible Modernist

In my last post I explored the way in which glass defies what would otherwise be a nice clean categorization scheme in which things are either solids or liquids (or other states like gas and plasma). Shortly after that, Feast of Assumption wrote about a context in which muskrats are fish. The first concerns a scientific distinction, whereas the latter comes down to a religious dispensation. Here, I wanted to add a third example, this time with the relevant authority derived from legislation.

As has been somewhat widely covered, including on Scott Alexander’s blog, courts in California recently ruled on the comprehensiveness of a category for the purposes of wildlife protection, especially as this pertains to bees.

The headlines all deploy basically the same hook, e.g. “Bees are legally fish in Calfornia”. More specifically, the California Court of Appeal recently ruled that four species of bees can be included in the category “fish”, as defined by the Endangered Species Act.

This sounds absurd, obviously, until you see the law as written (as many have pointed out). In the General Provisions and Definitions section of the Californian Fish and Game Code, “fish” is defined as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals”. Flying past the seemingly recursive nature of this definition, we see that it indeed includes “invertebrate”. And as any entomologist knows, bees are, in fact, invertebrates, along with 95% of animal species.¹

On one level, this is a classic case of legal language departing from common usage. As a term of art, “fish” cannot be assumed, in a legal context, to align with what the proverbial “man on the street” would take it to mean. In this case, the distinction is long standing: the California Legislature amended its Fish and Game Code all the way back in 1969 to add invertebrates and amphibians to the definition of fish.

The reason this is surfacing now is that this definition was used by the California Fish and Game Commission to classify honeybees as endangered back in 2019, and appeals by various groups are just now working their way through the courts.

The reason this matters of course, is that endangered species protection brings with it the force of law, and means that such species “may not be imported into the state, exported out of the state, ‘taken’ (i.e., killed), possessed, purchased, or sold without proper authorization”.²

On the one hand are farmers and agricultural groups, who want the broadest possible latitude in carrying out their operations. On the other side (in this case) is the Xerces Society for Invertebrate Conservation, whose mission is stated rather clearly in their name.

One question we might have is whether those proposing the addition of invertebrates to the definition intended it to be interpreted so broadly. This gets into very difficult territory, but in the end it is only partially relevant.

While the intentions may matter in how the law is interpreted (when challenged), it is the interpretation that will eventually have force. That being said, this is not necessarily the final word, in that this ruling could eventually be overruled by the California Supreme Court.

The legislature is of course free to alter the relevant definition, as they see fit, so this may end up as a test of the lobbying power of agricultural vs. conservationist interests, rather than common sense. What interests me here, however, is how definitions can sit on the books for many years, remaining unchallenged despite being fairly obviously flawed, and yet not cause any difficulties until someone comes up with a way to stitch together various definitions into something with potential legal power. In other words, this is another nice case of Generalized Hacking.

So far we’ve got science, religion, and law.³ What other systems so routinely engender these kinds of conflicts over definitions?