Updating the OED: Absent --

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 Note to all: If you look at my personal web page, it's seriously (about a year and a half) out of date.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.

John Jenkins (mail):
False consciousness? Isn't this a simple case of sample bias? The lawyers you've read didn't use it, therefore lawyers don't use it. I didn't think the term was used outside of Marxist literature, and certainly not in that way.
7.9.2006 2:47am
Dylanfa (mail) (www):
John, I read him as questioning whether it was a specifically lawyerly usage. If he'd not encountered it at all, I've entered into a Twilight Zone episode.
7.9.2006 2:57am
Gil (mail) (www):
Dylanfa, I'm sure your interpretation is the correct one.

But, to be fair, John may have thought Sasha had encountered the usage outside of legal writing, and less-so within it.

On the other hand, this doesn't prove you're not in a Twilight Zone episode...
7.9.2006 4:29am
Welcome back, Sasha, and happy blogging. I look forward to a more conspiratorial Conspiracy, absent your absence.

As for this post, it would seem that your digging actually supports the proposition that, at least in its origins, the prepositional sense of "absent" is a lawyerly invention after all.
7.9.2006 8:57am
Bottomfish (mail):
As an adjective or verb, absent is clearly useful. Anyway, I don't know of any other single word that even approximately replaces it. It comes from Latin abesse, to be away, so would imply that what is absent does exist, or could reasonably be expected to exist, but is not where we expected to find it.

The preposition without does not seem to me to carry the same implication. Here the thing not present is purely hypothetical, something that could be entirely a product of imagination. Based on Sasha's citations, I would think that the legal use of absent is not really necessary and without would be equally serviceable.
7.9.2006 10:08am
Bottomfish (mail):
Addendum: in my 2nd paragraph above, without does not so much say that the thing present is hypothetical as allow for the possibility that it is. Also the last sentence in that paragraph should begin with "In view of", not "Based on". English is a difficult language.
7.9.2006 10:20am
The Divagator (mail) (www):
Hi Sasha, welcome back. I do some speechwriting and have dropped the prepositional usage in, but then again, my speeches are written for lawyers (and the audience, too, is usually lawyers).

As for non-lawyer usages, seems like I hear it more in so-called semi-official, semi-serious "public discourse," such as policy discussions or the like at universities, think tanks, etc, maybe even the priesthood.

My degree is in literature, and I don't recall off the top of my head a prepositional usage; if I come across one, I'll drop you a note.
7.9.2006 10:32am
Jeremy T:
Now that I think about it, I've frequently used the phrase "absent any evidence to the contrary." So I do use the prepositional version a lot in legal settings.
7.9.2006 10:50am
lucia (mail) (www):
I'm an engineer and it strikes me that some people in the physical sciences use "absent something" occasionally. So, I googled "absent friction":

Absent friction, at the beginning of the horiz. run both cars have accelerated to same speed..."

Absent friction, they would both roll forever on a flat surface, so the question is "does friction care how momentum is divvied up between linear and angular?"

Then I googled Absent viscosity:.
The phrase is used on a power point presentation just after "circulation v*dS is conserved.) (I really doubt a laywer wrote this, though I'm suprised the bullet doesn't say "Inviscid flow.")

Searching another combination:
Absent rotation, what's going on?

You're using linear momentum from the body for power when hitting on-the-run, not angular momentum,..."

So, this use does exist outside lawyerly circles.
7.9.2006 10:57am
Robert G. Natelson Univ. of Montana (mail):
This may be a stretch, but like some other English usages, this might have been a transposition from the Latin "absque", which means "without."
Today, when Latin literacy is rare, we tend to forget that it was not so long ago that schoolboys were immersed in the language from age 8-10 (or earlier) through college, and that for lawyers and members of other learned professions, the immersion was even greater. Those of us who know the classics and study the Founding Era, for example, regularly find patterns in English usage imitative of Latin usage.

However, if "absent" as a preposition is patterned after "absque," there probably should be some usages even earlier than those Sasha found.
7.9.2006 12:12pm
"absque" isn't a bad guess, but I'm pretty sure that's not it. absens is, as someone already pointed out, the present participle of abesse and is used as an adjective with basically the same meaning as "absent" in English. I would guess that the prepositional use comes from the common Latin use of absens in an ablative absolute, e.g. me absente, "with me being absent," that is, "when I am absent."
For those who don't know Latin, it might be easier to understand if you just think of "absent" as having come from a present participle, which meant "being absent." So a phrase like "absent a contract," if we allow for word order, is almost as natural as "a contract being absent," which is a pretty regular English construction.
7.9.2006 1:28pm
lucia (mail) (www):
This is sort of fun!

If you know the types of "things" that might be "absent" when analyzing physicals systems, you'll find the construction all over the place/

While mowing the lawn, I developed a theory of to suggest where I might find loadds of "Absent 'X'" examples. "Absent dissipation" results in a mother lode:

"absent dissipation" appears in the short extract to
Phys. Rev. D 62, 103008 (2000): Field and Carroll - Cosmological ... (The term must be in the paper but not the abstract, which I don't plan to purchase for the purpose of this discussion.)
It's used this way:"The presence of only a very small velocity in Pouquet's solutions raises the question as to how the field can evolve in time, absent dissipation."

"absent dissipation" also appears in
The broad bandwidth paradigm for stimulated Raman scattering in ... where it appears to be used this way:
"It can be shown that absent dissipation, Eqs. (1) to (3), when coupled to the hydrodynamic ..."

You can go down the list and find loads of uses.

My impression based on my nonsystematic searches using google is this: Engineers and scientist use "absent 'X'" to mean "when there is no 'X'" when the use is convenient. That happens in at least two circumstances:

1) When we haven't made up a specific word to mean "absent 'X'" (Examples: Frictionless means "absent friction"; I think everyone knows this. Adiabatic means 'absent heat transfer'. Students learn this term during Freshman physics. )

2) When writing for non-specialists who we expect to be unfamiliar with specialized terms we've made up to describe the absence of some particular item.

Possibly lawyers use "absent 'X'" to mean "without X" more frequently that engineers because there are many, many more things that might be absent and you can't make up specific terms for all of them.
7.9.2006 1:42pm
Sasha Volokh (mail) (www):
Based on the above comments, I've updated the post.
7.9.2006 5:00pm
John Jenkins (mail):
Why isn't it derived from the third declension noun absens, absentis directly?
7.9.2006 6:31pm
Sasha Volokh (mail) (www):
Because "absentis legislatio" just means "absent legislation" in the sense of "legislation that isn't there." Like, "here is some absent legislation!" "Ecce absentis legislatio!" Whereas the ablative absolute ("absenti legislatio," I believe, though Latinist above seems to imply it might be "absente") is a special form that has the specific meaning "the legislation being absent," or "what with the legislation being absent 'n' all," or "seeing as how the legislation is absent." It's quite common in Latin.

Alternatively, if you knew that already and I didn't understand the true meaning of your question, please elaborate.
7.9.2006 7:15pm
Sasha Volokh (mail) (www):
Oopsie, my illustration of the ablative absolute above should be "absenti legislatione," not "absenti legislatio."
7.9.2006 7:16pm
Adrian Hester:
"I thought it would be "absenti" because present participles are declined like i-stems -- am I wrong?"

That's an exception to the declension of the present participle--it takes -i only if it is used purely attributively. If it takes an object or is used in the ablative absolute, it takes the -e ending.
7.9.2006 7:19pm
John Jenkins (mail):
I understand the ablative absolute, my question is why do we necessarily think that the USE has to come from Latin. It's not like we haven't taken words in English and altered their meanings ourselves (e.g. contact, or, God forbid, impact).

We may just have taken the word absent in its adjectival meaning and just adopted it to another use in the same way. There's no need for the particular usage to have a Latin source.

For someone who understood our idiomatic usage, and who was translating into Latin, it might make sense to translate it that way, but there is no reason to believe (or at least I see no evidence) that a person writing in Latin would draft something with the same modern usage. If the question is "what is the proper way to translate this modern English usage into Latin," then the ablative absolute is the answer. However, I took the question to be: "where did this come from?" I don't think that can be answered the same way since your sources seem to indicate it is a particularly modern usage.
7.9.2006 7:49pm
Sasha Volokh (mail) (www):
John Jenkins: I agree. It may not be from Latin at all; that it's inspired by this Latin usage was just my (and at least one other commenter's) speculation. Your question -- "Why isn't it derived from the third declension noun absens, absentis directly?" -- gave me the impression that you were implying some derivation from Latin usage, in which case I argue that the ablative absolute is more likely because that's a common usage. But perhaps it's just a home-grown American idiom.
7.9.2006 7:57pm
Bill Sommerfeld (www):
My observations agree with Lucia's -- the usage Sasha is investigating is quite common in technical discussions among software engineers. The samples I've been searching are archives of groups discussing technical standards and specifications, which is admittedly a rather legalistic corner of engineering. I can find examples dating back to 1993 or so in an archive dating back to 1992.

Absent a domain-specific insight similar to Lucia's, I found quite a few examples by googling for "absent a" with a "site:" limiter restricting the domain of the search to sites containing mainly discussion archives.
7.9.2006 7:58pm
Max Hailperin (mail) (www):
Like Bill Sommerfeld, and concurrently with him, I thought of two variations of Lucia's strategy for finding non-legal usages:

(1) Rather than searching for "absent X" for specific nouns X, such as "friction," I searched for "absent any" which shows up with all sorts of different noun phrases -- "absent any network externality," for example, or "absent any influences from downsteam." This approach avoids building in any supposition regarding what topics might use "absent" prepositionally.

(2) To get published usages, rather than informal language, one can search in rather than the ordinary google.
7.9.2006 8:10pm
Sasha Volokh (mail) (www):
Interesting! I tried "absent any" in the cases database and found occurrences back to 1842. Unfortunately, all the pre-1888 occurrences were either of the type "It does not appear that he was absent any considerable length of time," see Breed v. First Nat'l Bank of Central City, 6 Colo. 235 (1882), or were similarly unhelpful.
7.9.2006 8:17pm
Sasha Volokh (mail) (www):
I've added a second update.
7.9.2006 8:17pm
Adrian Hester:
"For someone who understood our idiomatic usage, and who was translating into Latin, it might make sense to translate it that way, but there is no reason to believe (or at least I see no evidence) that a person writing in Latin would draft something with the same modern usage."

Except that it is a common Latin usage. Thus, Tacitus: "Haec Valentino absente gesta" (Histories, Book 4 Chapter 70), These happenings occurred in the absence of Valentinus. Moreover, it was a common construction in Roman law, as in the set phrase "absente reo," in the absence of the defendant (often abbreviated to "abs. re."). It seems quite likely to me to have inspired the English usage.
7.9.2006 8:47pm
John Jenkins (mail):
Adrian Hester, I don't think that's necessarily so. I would have translated the first as "while Valentius was absent," and the same with the other phrase and I think that's how they were intended. That to me is not the same as "Absent X," which seems to be a conditional statemente (if NOT(X), then) rather than telling us what conditions obtained at the time (as in your two usages). A trial "in the absence of the defendant" doesn't seem the same to me.
7.9.2006 9:31pm
Tom Anger (mail) (www):
Re: "absent," meaning "without" or "in the absence of." I've used it dozens of times in blog posts. (I know because I've just googled my blog for the word.) I'm not a lawyer, but I've been accused of thinking like one. "Absent" is a handy preposition: crisp and clear. Keep using it.
7.9.2006 9:32pm
Adrian Hester:
"I would have translated the first as "while Valentius was absent," and the same with the other phrase and I think that's how they were intended. That to me is not the same as "Absent X," which seems to be a conditional statemente (if NOT(X), then) rather than telling us what conditions obtained at the time (as in your two usages)."

You're introducing a distinction that Latin didn't recognize. The ablative absolute was used for a variety of senses generally described as giving the time, condition, or attendant circumstances of action in the main clause and whose exact sense would have to be determined from context, including cause, description, and condition. The passage from Tacitus shows at least one of those senses, "while," and perhaps causation as well ("because of Valeninus's being away"). The second is an abbreviation of a Roman legal dictum that was certainly a conditional: "Absente reo, accusator non audiatur" (Gratian's Decretal C.3 q.9 c. 3), "In the absence of the defendant/if the defendant is not present, the accuser will not be heard/let the accuser not be heard." My impression is that ablative absolutes were quite common in Roman law for the conditional sense.
7.9.2006 10:00pm
John Jenkins (mail):
I still don't think the sense in which we're talking about "absent" being used here is quite the way those Latin writers were using the ablative absolute but this is taking way too much time away from bar preparation, so I'll have to beg off at this point.
7.10.2006 12:56am
John Jenkins (mail):
Okay, I lied. I do really need to do bar review, but I figured out my problem here. We're not talking about the tendency of lawyers to use the phrase "in the absence of." We're talking about the use of the word absent alone to mean "in the absence of."

"In the absence of X, Y obtains," has the same meaning as "Absent X, Y obtains." The question is about how that second construction come to pass. My position is that this construction did not come down through Latin, and I think SV's research bears that out. Otherwise, it would go back much farther than those citations provided. It is a relatively modern *English* language development to use the word absent alone in this way. Irrespective of the proper Latin translation and the use of the ablative absolute in Latin, the development is one that came long after we had taken the word absent into the language from Latin.
7.10.2006 1:12am
Adrian Hester:
"It is a relatively modern *English* language development to use the word absent alone in this way. Irrespective of the proper Latin translation and the use of the ablative absolute in Latin, the development is one that came long after we had taken the word absent into the language from Latin."

I agree that the usage appears to be much later than the borrowing of the word "absent" into English. That still doesn't mean the usage is not itself inspired by the Latin usage. How many other adjectives have been converted into prepositions? Not too many. And consider that it's a highly literary usage associated especially with professionals who had to be quite familiar with Latin.
7.10.2006 11:31am
Sasha Volokh (mail) (www):
I've added a third update.
7.10.2006 2:17pm
lucia (mail) (www):
While searching a bit more, I discovered that Professor Alan Slotnik of Tennesee Tech wrote this article.

"Absent 'without': Adjective, Participle, or Preposition." American Speech (Fall 1985), 222-7.

Evidently, he predicted that absent would become one of the standard prepositions in English. Having googled a bit, I'd say either it's now standard or it's well on it's way to being standard. It appears in scholarly articles across many fields; it also appears in informal writing.

I don't think it's going to go away any time soon.
7.10.2006 2:49pm
Adrian Hester:
"I'm inclined to suspect with Adrian Hester that it does come from the Latin ablative absolute usage...perhaps (this is quite speculative) as an 1880s quirk of a Latin-loving Justice Sherwood of the Missouri Supreme Court."

For what it's worth, I searched through a number of on-line legal texts, such as Coke, selected chapters of Blackstone, and a number of Supreme Court cases (such as the most famous decisions of John Marshall and Roger Taney), and didn't find a single use of "absent" as a preposition.
7.10.2006 3:09pm
On the absente/absenti question: I wrote my earlier comment without thinking about it, but I'm still pretty sure it was right. Gildersleeve says that the participle takes an -e in the ablative when acting as a participle, but usually -i when acting as an adjective or substantive (at least in the classical period). And under absum in Lewis and Short, all the examples of the specific construction we're discussing here (only two or three) have absente, not absenti

I agree with Adrian Hester that the usage probably came into English from Latin. In addition to the points already made, it's worth noting (as I sort of tried to explain, but not very well, in my first post) that "absent a plea" sounds like a more natural English phrase if you're aware that "absent" comes from a Latin present participle. Even in English, we can often use present participles in ablative-absolute-like clauses, e.g.: "The jury having decided in my favor, I went out and bought a case of champagne," or "Things being how they are, the back of the police station is out." You usually can't do that with adjectives, but if you knew Latin, and so thought of "absent" as at least the descendent of a participle, and had also acquired a Latin disregard for word order, then "absent a plea" might be a plausible construction even if it weren't already a familiar one.
7.10.2006 3:44pm
Christopher M (mail):
A parallel example with English rather than Latin roots: "notwithstanding" is a preposition that was originally a present participle. (To my ear it still sounds like an absolute construction with a participle when it's used postpositively: "I'm having a cigarette, my doctor's orders notwithstanding.")
7.10.2006 3:57pm
Sasha Volokh (mail) (www):
Lucia -- Does Slotnik say anything interesting about the history of the prepositional usage?
7.10.2006 4:46pm
Christopher M (mail):
Does anyone have JSTOR access? The Slotnik article is available there.
7.10.2006 10:31pm
lucia (mail) (www):
I need to order the paper from the local public library, so I don't know what else it says yet. I don't personally have JSTOR access.

The google scholar "blurb" contained this:

Absent'Without': Adjective, Participle, or Preposition
AR Slotkin - American Speech, 1985 - JSTOR
... quotation attributed to Joseph M. Kelly, assis- tant to the vice president of the
Communications Workers, District 6: "Absent any unexpected developments, we ...

When I posted Slotnik predicted "absent would become one of the standard prepositions in English", that's based on email from Slotnik. I googled, found him and asked him if he had any particular insights post-1985.

I did waste a bit more time. Based on my google scholars search and noting the dates of what I find, it looks like the evolution in scholarly articles progressed this way: Law-> economics-> finance , polysci, politics &management -> physical sciences &engineering.

During this time, the usage was also breaking out into everyday and religious speech.

I need to organize the list of uses I cut and pasted into a file, placing them in order of dates. I can say that, when used outside the legal arena, particularly in papers containing PDEs, ODEs, asymptotic expansions, and/or terms like "Hamiltonian equations", the use does not sound like legalese!
7.11.2006 10:45am
Sasha Volokh (mail) (www):
I just checked the Slotkin article. He lists no occurrences before 1945. He says -- based on the evidence he was provided -- that it's mostly legal.

Frederick Mish, editorial director for Merriam-Webster, agreed with him that this usage probably developed from an absolute construction, but he "would feel surer of this if the standard law dictionaries recorded a lot of Latin phrases beginning with absente. They do not, in fact: absente reo is the only one. Still, a person who had the mental habit of rendering this as "absent the defendant" instead of "the defendant being absent" or "in the absence of the defendant" or "since [or while] the defendant is absent" might easily extend the use of absent in the belief that it was a neat, concise (even elegant?) turn of phrase."

Slotkin goes on to say that "absent" is achieving true prepositional status, since it occurs in cases where it's impossible to conceptualize it as an absolute (i.e., "absent X" meaning "X being absent"): "In a world absent politics...."
7.11.2006 11:02am
Sasha Volokh (mail) (www):
I've added a fourth update.
7.11.2006 11:05am