Definition
Restraining, as a legal term of art, describes the act or function of narrowing, limiting, or holding back the scope of something otherwise broader — whether a legal power, a common law rule, a legislative provision, or a party's conduct. The term functions primarily as a modifier rather than a standalone noun, giving meaning to compound expressions such as restraining order, restraining statute, and restraining powers.
1. Restraining order. A court order directing a party to refrain from specified conduct, typically issued on motion or petition and often on an emergency basis without full adversarial hearing. Distinguished from an injunction in that a restraining order is ordinarily temporary in duration, serving to preserve the status quo until a full hearing can occur.
2. Restraining statute. A legislative enactment that operates to cut back or qualify the common law, reducing the scope of a common law rule to something narrower than it would otherwise reach. The term identifies the relationship of the statute to the pre-existing legal landscape rather than describing the statute's subject matter.
3. Restraining powers. Limitations or restrictions placed by a grantor or donor upon the exercise of a power, confining the donee's authority within narrower bounds than the power would otherwise permit.
Common Language
Modern common usage (Wiktionary): The act by which someone or something is restrained — holding back or controlling a person or thing.
Historical common usage (Webster's 1913): To hold back; to check; to keep within bounds; to repress.
The common meaning tracks the legal meaning closely in one direction — both involve holding something back — but common usage focuses almost entirely on physical restraint or behavioral control of persons. Legal usage extends substantially further: a restraining statute does not restrain any person; it restrains the reach of the common law itself. A researcher who reads "restraining" only through its ordinary sense will miss the technical meaning when the word modifies a statutory or powers context.
Recognized Forms
/SUBTYPES
Restraining Order: The most litigated legal form of the term. Issued on motion, typically ex parte or on short notice, to preserve the status quo pending a fuller hearing on injunctive relief. Modern practice in many jurisdictions distinguishes a temporary restraining order (TRO) from a preliminary injunction.
Restraining Statute: A statute that limits or curtails the operation of the common law. The identification of a statute as "restraining" informs how courts construe it — traditionally, courts read such statutes narrowly, declining to extend their limiting effect beyond what the legislature plainly intended.
Restraining Powers: In the law of powers (particularly in property and trust contexts), the restrictions a donor or settlor imposes upon how and when a donee may exercise a granted power.
Why It Matters in Research
The primary research trap with "restraining" is terminological drift between eras. In older sources — including Bouvier's — "restraining order" frequently referred to a specific procedural device directed at institutions such as the Bank of England or other public companies, preventing transfer of stock or funds pending litigation. Modern researchers who encounter that usage may not immediately recognize it as a precursor to what contemporary practice calls a TRO or asset-freezing order. The institutional target and the procedural context were different from today's typical domestic relations or civil harassment restraining order.
The "restraining statute" concept carries significant interpretive weight in common law research. When a court characterizes a statute as restraining rather than enlarging the common law, it is signaling a narrow-construction canon. Researchers working in areas where courts have debated the relationship between statute and common law — property, contract, tort — should attend carefully to whether historical opinions flag a statute as "restraining," because that characterization drove interpretive outcomes.
The corpus also contains "restraining" in the equity tradition, particularly in connection with the jurisdiction of courts to restrain inferior tribunals from exceeding their authority. That usage connects directly to the writ of prohibition and is distinct from in personam restraining orders directed at parties.
Jurisdictional variation in the law of restraining orders is substantial at the procedural level — notice requirements, duration limits, and available grounds differ across jurisdictions — but the underlying conceptual meaning of restraining as a term of art is consistent.
Historical Dictionary Support
Bouvier's entry is compact but instructive in identifying all three principal legal uses: the restraining statute (narrowing the common law), restraining powers (limiting the donee's authority under a granted power), and the restraining order (procedural relief directed at an institution). The Bouvier framing emphasizes the restraining-statute concept in a way that modern dictionaries have largely abandoned, reflecting the era in which courts regularly had to characterize new legislation's relationship to common law baselines.
What Bouvier does not address is the development of the restraining order as a mass-litigation tool in domestic relations, civil protection, and labor injunction contexts — all of which postdate or are underrepresented in the classical dictionary tradition. Researchers should treat Bouvier's treatment as foundational for the conceptual vocabulary but incomplete for understanding how "restraining order" is used in twentieth- and twenty-first-century sources.
Jurisdictional Note
In U.S. federal practice, the temporary restraining order is governed by Federal Rule of Civil Procedure 65 and is subject to strict durational and notice requirements. State practice varies considerably; some jurisdictions have specialized statutory schemes for particular categories of restraining orders (domestic violence, civil harassment, workplace violence) that operate partly outside ordinary civil procedure rules.
Encyclopedia Cross-Reference
Remedies & Equity Encyclopedia — Prohibition: Restraining Inferior Courts and Tribunals from Exceeding Jurisdiction