(055–064) Proposals to clarify Articles 6.9–6.13 and Article 41

Abstract

Article 6.10 of the Shenzhen Code (Turland & al. in Regnum Veg. 159. 2018) introduces and defines the terms “new combination” and “name at new rank” together in the same sentence. One might not realize they are also defined in the Glossary, where further information concerning rank is given. It would be preferable to use the definitions in the Glossary in Art. 6.10. “6.10. A new combination (combinatio nova, comb. nov.) or name at new rank (status novus, stat. nov.) is a new name for a taxon below the rank of genus based on a legitimate, previously published name, which is its basionym. A name at new rank (status novus, stat. nov.) is a new name based on a legitimate, previously published name at a different rank, which is its basionym. The basionym does not itself have a basionym; it provides the final epithet1, name, or stem of the new combination or name at new rank. (See also Art. 41.2).” Do new combinations need to be validly published under Art. 41? Article 6.10 defines a new combination as a “name” (which includes a name validly published under Art. 38) based on an earlier name; therefore, one potential misreading is that Art. 6.10 permits valid publication of a new combination under Art. 38. It seems desirable to alert the reader that Art. 41 is the appropriate publication rule. “6.10. A new combination (combinatio nova, comb. nov.) or name at new rank (status novus, stat. nov.) is a new name validly published in accordance with Art. 41 and based on a legitimate, previously published name, which is its basionym.” While the interaction among Art. 6.9, 6.10 and 41 is generally clear, there are a few questions. The rules in Art. 41 state that, in order to be validly published, a new combination must refer to certain items. The first question is whether the “based on” requirement in Art. 6.10 imposes an additional requirement beyond that required by the reference rules in Art. 41. For example, is a name based on an earlier name if there is no evidence that the later author is aware of the validly published earlier name and its author? The Examples in Art. 41.3 and 41.4 dealing with indirect references and “presumed intent” imply that no additional requirement is imposed by the “based on” rule. Another question is whether a name that meets all the publication requirements in both Art. 38 (dealing with names of new taxa) and Art. 41 can be either a new combination or the name of a new taxon with a different type. (This is possible for some replacement names, as seen in Art. 6.13.) Article 48.1 provides the answer: a name is the name of a new taxon if it has an “apparent” basionym but the author “explicitly excludes” the type of that earlier name. This suggests that a name is not “based on” an earlier name if the author explicitly excludes the type of the earlier name; as a result, the earlier name is not a basionym but is an “apparent” basionym. But Art. 6.10 does not mention Art. 48. “6.10. A new combination (combinatio nova, comb. nov.) or name at new rank (status novus, stat. nov.) is a new name based on a legitimate, previously published name, which is its basionym. The new name is based on the earlier name if (1) the earlier name provides the final epithet1, name, or stem of the new name, (2) the new name is validly published in accordance with Art. 41, and (3) the type of the earlier name is not explicitly excluded (see Art. 48.1). The basionym does not itself have a basionym; it provides the final epithet 1 , name, or stem of the new combination or name at new rank. (See also Art. 41.2).” The same concerns giving rise to Proposal (056) apply to replacement names in Art. 6.11 and 6.12. The latter Article is trickier due to its two-part definition. In addition, Art. 6.12(b) seems to state incorrectly that a name as described in Art. 7.5(b) is both a replacement name and name of a new taxon. “6.11. A replacement name (nomen novum, nom. nov.) is a new name validly published in accordance with Art. 41 as an explicit substitute (avowed substitute) for a legitimate or illegitimate, previously published name, which is its replaced synonym.” “6.12. A name not explicitly proposed as a substitute for an earlier name is nevertheless a replacement name either (a) if it is (a) validly published in accordance with Art. 41 and validated solely by reference to that earlier name or (b) treated as a replacement name under the provisions of Art. 7.5.” Under the Shenzhen Code, there are now three ways in which replacement names may be published, yet Art. 6.11 suggests otherwise. A cross-reference to Art. 6.12 and 6.13 should be added to Art. 6.11. “6.11. A replacement name (nomen novum, nom. nov.) is a new name published as an explicit substitute (avowed substitute; but see Art. 6.12 and 6.13) for a legitimate or illegitimate, previously published name, which is its replaced synonym. The replaced synonym, when legitimate, does not provide the final epithet, name, or stem of the replacement name (see also Art. 41.2 and 58.1).” Added to the Shenzhen Code, the new Art. 6.13 provides flexibility regarding the treatment of a name as a replacement name or name of a new taxon if the protologue cites the potential replaced synonym and the rules for valid publication of the name of a new taxon are otherwise met. Literally read, Art. 6.13 does not apply if the protologue of a replacement name published before 2007 meets all the conditions needed to satisfy Art. 41 but does not cite the replaced synonym itself as first required in 2007 (Art. 41.5). Conversely, it is not clear if Art. 6.13 applies to a name published from 1953 onward if the replaced synonym is cited but the protologue does not refer to its place of publication or another item required by Art. 41.5. In addition, the second sentence of Art. 6.13 does not contemplate that a name might already be typified in a manner that was not based on predominant usage; it therefore seems to imply that such a type is unacceptable. Furthermore, it seems undesirable to allow a future designation of a type to be disputed by a later party who disagrees with the earlier party's assessment of the name's predominate usage. “6.13. A name not explicitly proposed as a substitute for an earlier name and not covered by Art. 6.12 may be treated either as a replacement name or as the name of a new taxon if in the protologue1 both (a) a potential replaced synonym is cited all requirements of Art. 41 for valid publication of a replacement name are met and (b) all requirements for valid publication of the name of a new taxon are independently met. Decision on the status of such a name is to be based on predominant usage and is to be effected by means of appropriate type designation (Art. 9 and 10).” “6A.1. The decision on typification under Art. 6.13 should be based on predominant usage of the name.” Article 6.9 states that the name of a new taxon cannot be “based on” a previously validly published name. The term “based on” raises two concerns. First, while the definition of replacement name in Art. 6.11 of the Melbourne Code (McNeill & al. in Regnum Veg. 154. 2012) used the term “based on”, it is no longer used in the Shenzhen Code; no ancillary revisions were made in Art. 6.11 to reflect the new language in Art. 6.11–6.13. Second, some names might qualify as new combinations, except for the omission of a detail required by Art. 41.5, but nonetheless meet the Art. 38 publication rules. Prior to the Melbourne Code, Art. 33.8 of the Vienna Code (McNeill & al. in Regnum Veg. 146. 2006) stated that these names were not validly published; however, Art. 33.8 of the Vienna Code was deleted, because it “serves no useful purpose, but instead does harm” (Turland in Taxon 59: 1921. 2010). However, some might still read Art. 6.9 as precluding valid publication of those names on the basis that such a name is “based on a previously validly published name”. “6.9. The name of a new taxon (e.g. genus novum, gen. nov., species nova, sp. nov.) is a name validly published in its own right, i.e. one not based on a previously validly published name; it is not a new combination, a name at new rank, or a replacement name.” Article 41.5 provides that in order to publish a replacement name after 1952, the publication must refer to the replaced synonym and its bibliographic reference. However, this is not correct in the case of a replacement name under Art. 6.12(b) (i.e. an illegitimate superfluous name under Art. 52); such a name can exist by virtue of including the type of the replaced synonym, even if the replaced synonym is not referenced. (As a result, one could read the Shenzhen Code as providing that illegitimate superfluous names that do not meet the requirements under Art. 41 are not validly published names!) “41.9. None of the foregoing requirements in Art. 41 applies to a replacement name that is illegitimate under Art. 52 if neither Art. 7.5(a) nor (b) applies.” I thank J.H. Wiersema and N.J. Turland for significantly improving these proposals.