I thnk the Judge is Wrong

I read this eagerly because I am trying to put together a petition for the Virginia court of appeals wherein I point out (as politely as possible) that a former decision of the court makes no sense under the plain reading of the statute because of a restrictive dependent conjunctive clause. The judge is spot on in his definition of a restrictive clause:

A restrictive clause identifies a subset of the object described and directs the meaning of the sentence to that subset.

However, he then goes forward with the idea that "that" introduces restrictive clauses but "which" should not. In this I think he is wrong.

There are three words which hold the grammatical position which the judge describes. "Who" is for people. "Which" is for things and creatures. "That" is for people, animals, and things. As far back as 1896 (and probably as far back as the 1877 first printing) Higher Lessons in English and Word Building states:

That is almost always restrictive. However valuable it may seem to confine who and which to unrestrictive clauses, they are not confined to them in actual practice.

The wide use of who and which in restrictive clauses is not accounted for by saying that they occur after this, these, those, and that, and hence are used to avoid disagreeable repetitive sounds. This may frequently be the reason for employing who and which in restrictive clauses; but usages authorizes us to confirm (1) that who and which stand in such clauses oftener without, than with, this, these, those, or that preceding them, and (2) that they so stand oftener than that itself does. Especially may this be said of which.

Pages 176-178

For a more modern confirmation, here is the pertinent definition of "which" from Webster Online:

²which
3 -- used as a function word to introduce a relative clause; used in any grammatical relation except that of a possessive; used especially in reference to animals, inanimate objects, groups, or ideas
usage see THAT⁴

The pertinent section of "that" referred to is the one describing "that" as introducing restrictive clauses:

⁴that
1 -- used as a function word to introduce a restrictive relative clause and to serve as a substitute within that clause for the substantive modified by the clause

usage That, which: Although some handbooks say otherwise, that and which are both regularly used to introduce restrictive clauses in edited prose. Which is also used to introduce nonrestrictive clauses. That was formerly used to introduce nonrestrictive clauses; such use is virtually nonexistent in present-day edited prose, though it may occasionally be found in poetry.

Which can be restrictive or not. If the judge were to state that the usage of "which" to introduce a restrictive clause is an unfortunate choice because it might lead to ambiguity he would be correct. However, using "which" and "that" to determine whether a clause is restrictive is an incorrect usage of the words and has been for at least 100 years.

lv SW Va Law