A challenge to hendiadys in the law
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
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