A challenge to hendiadys in the law

"What part of 'and' don't you understand?"

There's a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of "and" Don't You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution range from the colloquial, as in Julia Child's "good and dry"; to the literary, as in William Shakespeare's "law and heraldry"; to the legal, as in "necessary and proper.")

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I'm delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes "doubt, self-deception, multiplicity, complexity, and ambiguity." Those characteristics make this figure of speech "sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch." But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray's article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author's words and phrases like the shattered pieces of two small whaling boats in Moby Dick: "the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch."

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read "cruel and unusual" and "necessary and proper" as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like "nice and hot"; phrasal collocations or tautologies like "lord and master" or "high and mighty," in which two words are used simply for emphasis and elevation, and expressions using related terms, like "pen and ink" or "wind and rain." For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral's two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., "tried and true" and many other examples in my article). And I also don't think we can draw such a sharp line between the literary and the "everyday." It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of "literary" and "everyday" is most likely to mislead us. Consider the Book of Common Prayer, and its "general confession" (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: "We have erred and strayed from thy ways like lost sheep." "Erred and strayed" is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–"pervasively" would be too strong, but still the point is that it appeared with some frequency and was not marked as only "literary"–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for "fixed meaning" in legal texts may be "[q]uixotic[]." But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don't think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.