Lawtalk: Volokh Abets Observations on “Aid and Abet”

In addition to the scores of specific words and phrases dissected in Lawtalk: The Unknown Stories Behind Familiar Legal Expressions, we also discuss more generally what may be the most ridiculed characteristic of legal language — its predilection for redundancy: “aid and abet,” “over and above,” “goods and chattels,” “ordered, adjudged, and decreed,” and so on and so forth. In law school it was explained to me that this was the result of combining words from Old English (like goods) with substantially synonymous words of French origin (like chattels) to assure comprehension in an age in which both languages were used in England, particularly in legal contexts.

But this common explanation doesn’t hold water. Aid and abet, for example, are both from French; over and above are both native English. In Lawtalk we point out a number of considerations that fostered — and in many cases still foster — the use of such phrases, such as the fear that omitting some customary word would open the door to an argument that some shade of meaning is not covered. A factor now mostly forgotten is that for centuries court clerks, and even some lawyers, were paid by the page — an approach unaccountably neglected in the search for alternatives to billing by the hour, about which Beth Thornburg wrote in this space two days ago. And we emphasize an even more overlooked factor: that the use of redundant expressions is not specifically a lawyerly habit, but a common stylistic feature of general English, sometimes adding gravity (e.g. wrack and ruin) and sometimes whimsy (jot and tittle).

An e-mail the other day from Eugene Volokh, however, raises the interesting question of how redundant such phrases really are. He noted that abet historically referred to verbal encouragement rather than physical assistance, so that aiding and abetting actually covered two different types of participation in a crime.

The point is a good one. It is undoubtedly the case with any number of fixed phrases of this sort that the words have, or originally had, different meanings or different nuances, but the distinction blurs to the point of nonexistence when they are used together. For example, at least originally, a nook was an interior corner, and a cranny was a small hole or fissure in a wall. Possibly in some early uses the phrase nooks and crannies was a deliberate conjunction of two distinctly different types of small partially enclosed space, but it is doubtful that many people today are conscious of the distinction.

So it is with aid and abet. It is quite true that the original meaning of abet was to “urge on, incite.” The word is actually distantly related to bait as in bear-baiting, in which dogs were incited to attack a chained bear. It thus was distinguishable from aid in the narrow sense of providing concrete assistance. So it is no doubt true that the phrase aid and abet in the common law was chosen to cover the gamut of participatory conduct by a secondary actor in a crime.

But the concepts could never be entirely distinguished. Physical assistance encourages one to proceed with a task, and verbal encouragement helps one to accomplish it. That’s why football teams have cheerleaders.

Moreover, in law it seldom matters anyway whether one directly aids or only solicits or encourages the commission of a crime. Blackstone’s definition of “principal in the second degree” in 1769 (Commentaries, vol. 4, p. 34) was “he who is present, aiding, and abetting the fact to be done.” (Blackstone then immediately explained that “presence” may be constructive rather than actual.) And modern law likewise lumps the two together: the American Law Institute’s Model Penal Code, § 2.06, defines an “accomplice” as including anyone who “(i) solicits . . . or (ii) aids or agrees or attempts to aid” the commission of the crime. The confederate of a second-story man would get nowhere by arguing that she merely requested the thief to steal certain jewelry but did not help him, or merely held the ladder but did not encourage him. The law doesn’t care. (On personification of “the law,” see our entry on “the law is a ass.”)

The impossibility and pointlessness of distinguishing “assistance” from “encouragement” led to a loss of the distinction, so that now the Oxford English Dictionary defines abet as “To encourage or assist (a person) to do something,” and gives examples as early as 1840 of aid and abet — and 1883 of abet alone — used in everyday nonlegal contexts in which only physical assistance is referred to.

Why, then, do we continue to use both words when just “abet” would do? The answer is that such redundancies — and we cite lots of examples in the book — are characteristic not just of legal writing but of English generally. Why else would Abraham Lincoln, in a public address celebrated as a model of concision, say that it was not just fitting but “altogether fitting and proper” to dedicate a portion of the Gettysburg battlefield as a cemetery for the fallen soldiers — and then go right on to use three virtually synonymous words to say that “in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground”?

And why the particular words “aid and abet,” and not, say, “help and encourage” or “assist and exhort”? Because if there’s one thing English likes even better than redundancy, it’s alliterative redundancy, like hale and hearty, safe and sound, and even, as in my opening sentence above, so on and so forth.

To borrow a legal expression: for the rest, residue, and remainder of what we have to say on this subject, see the book!