TWTS: Ambiguity notwithstanding, some still like to use "notwithstanding"
Possible objections notwithstanding, the Canadian Justice Department has recommended that "notwithstanding" be replaced in legal writing. But why? The answer takes us deep into some pretty nerdy weeds.
We weren't even aware there was a debate over "notwithstanding" until a listener told us that they "cringe" when talking heads on television use it incorrectly. As it turns out, there is some discussion and disagreement over "notwithstanding" in the legal community, beyond the Canadian Justice Department.
Since legal documents must be read closely, ambiguity can matter. Would you want to sign on the dotted line if the meaning of what you were signing wasn't entirely clear? Perhaps that's why "notwithstanding" has been declining in usage over the past 250 years.
In terms of what this word actually means, one way to think about it is "not standing against" or "not opposing." In the history of English, "with" used to also mean "against." That's why we can say "fight with" to mean "fight against," e.g. "You should try to get along with your siblings instead of always fighting with them."
When followed by a noun or noun phrase, "notwithstanding" usually means "despite." Here's an example from Booker T. Washington's autobiography Up From Slavery: "Notwithstanding my need of money and clothing, I was very happy in the fact I had secured enough money to pay my traveling expenses back to Hampton."
The debate is over whether it matters if "notwithstanding" comes before the noun or noun phrase or after.
Imagine reading a document about a rule that says, "The first sentence notwithstanding, the rule applies." The argument is that this means the rule applies no matter what the first sentence of the document says. But what if "notwithstanding" gets moved? Does "Notwithstanding the first sentence, the rule applies," mean the same thing?
Many of us would say yes, but there are lawyers who argue that the second sentence means that the rule applying doesn't contradict the first sentence. Not everyone in the legal world would agree though. To hear more about that, listen to the audio above.