Hi, Sasha here — good to be back, after a two-year hiatus. Note to all: If you look at my personal web page, it's seriously (about a year and a half) out of date. I'm working on that.
For my first new post, I'll share a recent time-wasting activity of mine: coming up with "pre-dating" and "post-dating" evidence for entries in the Oxford English Dictionary. You may be aware that the OED has not only definitions but also historical usages, and my impression is that they try to find the first known English usage and list usages at regular intervals from then until the last known English usage, or until the present day if the word's still in use. The OED is also a collaborative enterprise, so they solicit freelance dating work.
So, a blog comment I recently read ("normal humans, rather than lawyers, regard the word 'absent' as an adjective rather than a preposition") made me wonder: is the prepositional sense of "absent" (meaning "without" or "in the absence of") really a lawyerly usage? I didn't think so, but then I may have false consciousness, since I read lawyers all the time. The OED did say this was an American, mostly legal, usage, and showed historical examples from 1944 to 1983. 1944 sounded awfully recent to me, so I did my own digging, and found the following, which I passed on to the nice folks at the OED. What follows is an illustrative, not exhaustive, list — though it's easy to find occurrences of this usage for any year after 1907, I've only given about one occurrence per decade in the 20th century.
1888 South Western Reporter VIII. 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words; but, being made to the wife by the husband, a separate estate, as against him, was the result. 1893 South Western Reporter XII. 629 Absent any evidence to the contrary, a proper and legitimate purpose will be presumed. 1898 South Western Reporter XLV. 303 Absent any one of these ingredients, there is no contract. 1906 South Western Reporter XCIV. 591 Absent one of these ingredients, there is no contract. 1914 South Western Reporter CLXXII. 17 A mere barren and abandoned conspiracy sounding in words, but jejune of acts or results, is not actionable, absent a statute so declaring. 1929 South Western Reporter (2d series) XVIII. 490 Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. 1938 Federal Suppl. XXV. 861-62 The design, absent the color and display thereby created, is not more ornamental than many types of similar shoes.
The funny citation style is me trying to mimic the OED's citation style. The usage is much rarer before 1908, and all the early occurrences I've found have been from Missouri — apparently, a few judges (Justice Sherwood, sat 1872-1902; Justice Lamm, sat 1905-1914) enjoyed using the term.
UPDATE: My reactions to recent comments: My "false consciousness" was that I had seen the "absent" usage a lot; I thought it was pretty common; but in fact, since I read lawyers a lot, it may be true that it's a primarily legal usage. Yes, "false consciousness" is a facetious reference to Marxism. I think false consciousness in the Marxist sense is a useful concept, but in this case all I really meant was my sample was biased.
The "absent" usage doesn't derive from "absque," as one commenter suggests; I agree with Latinist that it's patterned after the ablative absolute form like "me absente" (note: I thought it would be "absenti" because present participles are declined like i-stems — am I wrong?). (Yes, the two words have the same flavor, but that's because they both derive from the same "ab" preposition.)
Finally, Lucia, who has found "loads of uses" of the form in the physical sciences, may be on to something — you should write an e-mail to the OED in which you note that there are all these nonlegal uses!
UPDATE 2: Ann Althouse, whose podcast I used to listen to all the time (I recently unsubscribed from most of them — nothing personal, Ann, just time management!) thinks this usage of "absent" is "ugly" and "feels abnormal." Joe's Dartblog thinks it sounds "nice." Also, he erroneously thinks that I think it's ugly. Did I say that, or even imply it, anywhere?
UPDATE 3: There's an interesting discussion in the comments, mainly between John Jenkins and Adrian Hester, on the likelihood of this usage's being Latin-inspired. For what it's worth, I'm inclined to suspect with Adrian Hester that it does come from the Latin ablative absolute usage — not as an ancient import (say, contemporaneous with the appearance of the word "absent" or the Renaissance or what have you), but perhaps (this is quite speculative) as an 1880s quirk of a Latin-loving Justice Sherwood of the Missouri Supreme Court.
UPDATE 4: A bit more discussion in the comments, now related to an article by one Slotkin about prepositional "absent" in the Fall 1985 issue of American Speech.