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From page 48 of Law: A Very Short Introduction, by Raymond Wacks:

In other words, you owe a duty to persons whom it is foreseeable are likely to be harmed by your conduct.

To try to parse this, temporarily overlook 'it is foreseeable'. Then persons is the subject of the verb phrase are likely to be harmed. So according to this question,
should the relative pronoun for persons be who instead? Is my parse wrong?

Are the (deleted) comments right: that this style predominates in law texts?
If this is correct grammar, what is the general rule? Is it commonly used in other contexts?

  • 2
    You might be interested in the topic of nominative 'whom'. It is often covered by a decent usage dictionary, such as Merriam-Webster's (Concise) Dictionary of English Usage. One such example, in MWCDEU entry "who, whom", page 782: "Aikman will always have a chilly relationship with coach Barry Switzer, whom Aikman believes is too soft when it comes to player discipline" -- Peter King, Sports Illustrated, 1997. – F.E. Jul 10 '14 at 16:22
  • 4
    This topic of "who versus whom", where the word is the subject of an embedded content clause is discussed in the 2002 reference grammar by Huddleston and Pullum et al., The Cambridge Grammar of the English Language (CGEL), pages 466-7, where the nominative 'whom' is used by "Dialect B" speakers. CGEL states "That this is another place, however, where it is invalid to talk in terms of hypercorrection. . . . It has to be accepted as an established variant of the standard language." – F.E. Jul 10 '14 at 16:34
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    And so, it seems to me that reasonable arguments could probably be made to consider that example in your post to be acceptable in today's standard English. – F.E. Jul 10 '14 at 16:36
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    Perhaps I ought to explicitly mention that "Dialect A" usage (where speakers would use "who" in your example) is mentioned by the 2002 CGEL on page 467 as: "Dialect A, which selects nominative, has more speakers and is the one recommended by the manuals, but there is no reason to say that it is inherently better or more grammatically correct than Dialect B, which selects accusative: the dialects just have different rules." – F.E. Jul 10 '14 at 16:57
  • Actually, I think it is a typo missing the preposition to. "You owe a duty to persons whom it is foreseeable to." – Black and White Aug 13 '17 at 2:02
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The following is my original answer, which I stand by as being logical and on the face of it applicable, though it does not seem to tell the whole story. See below for a revised answer.

You are right: it should be who here.

This is a simple (and fairly common) case of hyper-correction, where people who are not quite sure how to use who and whom correctly end up using whom in places where it should not be used because they think it sounds ‘fancier’ and therefore more formal (a logical enough thing to think, since whom is indeed mostly used in formal contexts). This happens even in places where whom is quite clearly impossible to anyone who distinguishes the two forms, such as “I did not know the person whom was sitting next to me”.

In this instance, however, the mistake is easier to understand, even if made by someone who distinguishes who and whom: the intervening parenthetical phrase “it is foreseeable” probably influenced the choice. It is obvious that it in that parenthetical is the subject, which probably made the author think who(m) would then have to be an object—having two subjects right next to each other is not common and usually avoided.

 


 

Revised answer that tells a fuller story (based on comments by Araucaria and myself below, some of which have been incorporated into the answer itself and therefore deleted to improve the legibility of the comment chain)

As Araucaria has shown below, there appears to be more to this than meets the eye. This particular construction is not as straightforward as an initial analysis that simply removes the “it is foreseeable” as parenthetical information might suggest, for the following reasons:

  1. There are many instances of the oblique-case pronoun whom being used in this type of construction, especially in the field of law, but also in literature and elsewhere

  2. The deletion properties of the pronoun in these constructions match those normally found with object pronouns, rather than subject pronouns

For examples of (1) above, I refer to the quotes unearthed by Araucaria in the comments below and in the comment section of the question itself. They show quite clearly that, whatever prescriptive (or even descriptive) grammar says, forms with whom are quite common and widespread, even in proofread, formal texts written by able language users.

If you transpose various elements in the sentence, you really end up with a fairly complex structure.

… persons whom it is foreseeable are X …

– is made up of a head noun and a following relative clause. The relative clause itself, however, is made up of a main clause and a complement clause (in layman’s terms often called a that-clause). The pronoun (which, being a relative pronoun in a relative clause, must stand at the head of the clause) is really the subject of the complement clause embedded in the main clause. In other words, if we split up the clauses to avoid a relative clause, strange things happen. Compare:

I have two friends who are fans of Lady Gaga. => I have two friends. They are fans of Lady Gaga.

– where the relative clause is the same as the resulting main clause, except for the pronoun; with:

I have two friends who(m) I think are fans of Lady Gaga. => I have two friends. I think (that) they are fans of Lady Gaga.

– where the complement clause (that) they are fans of Lady Gaga is split up to allow the pronoun to be raised to the head, enabling the containing main clause to function as a relative clause. The relativiser is extrapolated from an embedded clause, rather than being present in the main clause itself. The only thing that could be relativised in the main clause (it => which) is left alone for semantic reasons: it is not a possible anaphor for the antecedent persons

With this much moving around, it is hardly surprising, really, that extrapolation of an embedded subject to become the relativiser in the containing clause can wreak some grammatical-logical havoc. Even with this analysis in mind, I still cannot determine what grammatical role the extrapolated pronoun ought to play in the relative clause (as opposed to in the embedded complement clause, where it is clearly the subject). It seems, if we go by actual usage, that it can be interpreted as either subject or object.

One fact that proves that the interpretation as object is real and not just people being confused about when to use whom is relativiser deletion. In a relative clause, the relativiser1 must be present if it is the subject in the clause:

My friend who loves Lady Gaga.

– but is optional if it plays a non-subject role in the clause:

The Lady Gaga song (that) my friend loves most. (object)
The Lady Gaga album (that) my friend gave a 10/10 rating. (indirect object)
The Lady Gaga dress (that) my friend wrote a school essay about. (prepositional object)

In the example from this question, the relativiser can be deleted, which clearly shows that it is interpretable as a non-subject element (my guess would be it’s probably some kind of vaguely adverbial element more than a real object):

[Y]ou owe a duty to persons (who[m]) it is foreseeable are X …

If we consider “it is foreseeable” to be a parenthetical statement and remove it, this deletion is not possible:

*[Y]ou owe a duty to persons (∅) are X …

This suggests that the relativiser in your sentence (with “it is foreseeable”) plays the role of non-subject, and whom is appropriate.

 

On the other hand, if we look closer at the complement clause itself, a very striking and rather annoyingly contradictory phenomenon can be gleaned.

Normally, in English complement clauses, the complementiser (that) is optional. In some cases, it sounds clunky to have it, in others it sounds clunky to leave it out—but it is usually not ungrammatical to do either. This is also the case in constructions like the present ones, but only if the relativiser is a non-subject in the complement clause. Regardless of what role the (also optional) relativiser who(m)/which/that plays in the relative clause (= main clause + complement clause), the complementiser that can be left out or kept in as long as the relativiser is not the subject in the complement clause:

The Lady Gaga album (which) I think (that) my friend is listening to.

Here, both relativiser which and complementiser that can be left out or kept in with no change of any kind.

If the relativiser is the subject of the complement clause, however, the complementiser appears to be mandatorily blocked—it simply cannot appear:

The Lady Gaga album (which) I think (*that) is playing now.

This is most peculiar, and I have absolutely no idea why it is so; but it is. Having the complementiser in the sentence here is completely and utterly ungrammatical in any register or form of English I’ve ever seen.

In your sentence here, adding a complementiser makes the sentence quite ungrammatical:

Persons (who) it is foreseeable (*that) are likely to…

This suggests that the relativiser must be playing the role of subject, and who is appropriate.

 

This is rather messy, but it seems to be true: the relativiser here is either both subject and object or neither subject nor object, depending on your point of view. No wonder people get confused about whether to use who or whom!

 


1 For present purposes, I consider it unnecessary to distinguish between complementisers and operators (=relativisers), since they are mutually exclusive anyway. I thus use relativiser for both that and who(m).

  • 2
    +1. Hypercorrection or a mere typo. No way to know, actually, short of asking Mr Wacks. – RegDwigнt Jul 3 '14 at 8:22
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    If you search Google books for "who/whom they say has/have", you find that the overwhelming majority use "who", and the ones that use "whom" are for the most part quite recent ... I'd say that what is going on is mainly overcorrection by people who I suspect never learned how to use "whom" properly. – Peter Shor Jul 5 '14 at 18:35
  • Possibly the form was attracted to "whom" by the proximity of the preposition "to"; on first reading, I thought it should be "whom" until I parsed out the rest of the phrase. – outis nihil Jul 9 '14 at 18:47
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    @Araucaria Sorry for missing your comment above until now. I've asked a moderator to reinstate the comments. – Greek - Area 51 Proposal Apr 9 '15 at 4:15
  • @LawArea51Proposal-Commit Actually, most of the comments, I believe have been incorporated into Janus' post. – Araucaria Apr 9 '15 at 9:50
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Please find below a very short answer that agrees with Janus on most points.

You owe a duty to persons *whom it is foreseeable are likely to be harmed by your conduct.

If the only thing I do is replace the relative pronoun with a personal pronoun and adjust the sentences only just enough to make it work, I get this:

You owe a duty to persons. It is foreseeable they are likely to be harmed by your conduct.

The relative pronoun should therefore have been who, not whom, despite what lawmakers write (whom are not always the best of writers).


So what I did was only this:

  • whom → them/they

  • change the position of the pronoun to fit a main clause, i.e. before its verb, are

The next step was to choose between they and them, and the obvious choice was they.

It is clear that it is foreseeable needs to be followed by a finite that clause, even though that can be omitted—which is unremarkable, as most conjunctions that can be omitted.

It is also clear from this that it is foreseeable is not parenthetical; the sentence it is foreseeable they are x clearly has the same construction, and it is foreseeable is clearly not parenthetical there, but a superordinate clause governing a subordinate that clause.


The reason why some people write whom in such cases is contamination; they confuse this type of sentence with a different type:

...persons whom I consider to be wrong

...persons whom one knows to be wrong

These are examples of accusatives with infinitives, which indeed require whom; notice the infinitives be:

...persons. I consider them to be wrong.

...persons. One considers them to be wrong.

  • That part at the end (“them to be wrong”, etc.) makes sense, given how the subject of an infinitive clause is always in oblique case. – tchrist Jul 5 '14 at 5:24
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Though modern English has nearly lost the distiction between who and whom, in practice this distiction is still honored by many grammarians and professions like law, where traditions change much slower.

I have to disagree for linguistics reasons, that who is preferred over whom. Who is a nominal form or sometimes referred to as the subject case. Whom is technically a dative case sometimes referred to as the object case.

If you look closely at your example, note that it is to persons whom. The preposition to projects a dative case (technically) and will always prefer a dative pronoun. The construction to whom is preferred over to who, since who really wants to be in a subject position which is not the case here. Again, for emphasis, this distiction is not only becoming lost in modern English, but words with different case forms in English are rare overall. The who/whom distinction (and its variants) may be one of the last remnants of this.

Which you use is more a matter of speech register. In more formal writing (such as a legal document) this distinction is clearly still more important than in casual speech.

  • The basic argument you're making here is incorrect. The case of who(m) (or any relativiser in, as far as I know, any language) is not determined by the case of its antecedent, but by the relativiser’s own function in the relative clause. Just because it's “to persons” in the main clause doesn't mean it has to be whom in the relative clause. – Janus Bahs Jacquet Aug 13 '17 at 8:51

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