This article examines the use of the word "hereby" in federal legislation.
The use of the word "hereby" in federal legislation is unnecessary and should be avoided.
The word "hereby" has been gradually falling out of favour in federal legislative texts (like "there- " words). It is currently used only in conjunction with performative speech acts. A speech act occurs whenever language is used to accomplish something — make a statement, ask a question, report, predict, etc. A performative speech act is a special kind of speech act in which the action indicated by the main verb is accomplished at the very moment of utterance.
Most performative speech acts are readily recognizable. They are in the first person, present tense and active voice with an explicit performative verb, for example, "I name this ship Queen Mary", "I welcome you", "I advise you to leave" and "We promise to return". It is quite obvious that these are not simply descriptive statements, but actually accomplish something just by being uttered — naming, welcoming, advising and promising.
In the right circumstances, performative speech acts may also be made in the second or third person. In these cases, the listener or reader has to decide if the statement being made is descriptive or performative. For example, are the statements "the court is now in session" or "you are now husband and wife" descriptive or performative? The crucial factor for a listener or reader making this determination is the social context in which the speech act is uttered. The right conditions must be present for a speech act to be effective as a performative utterance: the words must be uttered in the right socially authorized and authoritative context. If an ordinary person is making either of these statements, they would obviously just be descriptive; however, if a court official is making them at the start of court proceedings or a minister during a wedding ceremony, they would be performative. In addition to the context, it must also be the speaker's intent not merely to describe a state of affairs but to bring one about.
Performative speech acts found in legislative texts are made in the third person, present tense, and passive voice, for example,
- The XYZ Agency is < hereby > established.
- The Board is < hereby > dissolved.
- The Framework Agreement is < hereby > ratified ….
- Every legislative instrument … is < hereby > ratified ….
- There is < hereby > appropriated for these purposes ….
- The Government of Canada < hereby > recognizes ….
All of the above examples include the word "hereby". Linguists use this term in cases of doubt as a test to determine if a speech act is performative — if you can insert the word "hereby" into the statement, it is a good indication that the statement is performative. In legislative texts "hereby" appears to have traditionally been added as an explicit means of indicating that a speech act is intended to be performative. However, if it is clear from the context that a statement is performative (for example, the minister uttering the words during a wedding ceremony), there is no need for the word "hereby". This is the case in our legislative examples — it is clear from the context in which they are made (Parliament speaking by means of an Act or through delegated legislation) that they are performative. There is no need to add "hereby".
In fact, the recent trend in many jurisdictions has been to drop the word "hereby". British Columbia, Alberta, Saskatchewan, the Northwest Territories and Newfoundland and Labrador have all done so. In addition, it does not appear in recent Australian and New Zealand legislation. There are also examples in our own legislation of performative speech acts that do not rely on the word "hereby" to make them explicitly performative. For example, the replacement of a provision is achieved by simply stating "paragraph (a) is replaced by x".
 This article does not apply to the use of "hereby" in formal documents such as proclamations and orders in council.
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