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Elizabeth Fajans & Mary R. Falk
ABSTRACT: Until recently, hendiadys has figured only rarely in the analysis of legal texts. This rhetorical device joins two words by “and” in order to express a single complex idea, achieved by the conflict between coordinate syntax and semantic disjunction. In Shakespeare, for example, the playwright does not join sound with sight, an integration of the senses, but sound with fury—a sense and a sensibility elusively related. The meaning of hendiadys is often arrived at intuitively rather than through lexical analysis. The first extensive scholarly contribution on hendiadys in the law was by Professor Samuel L. Bray, who argues that the phrases “cruel and unusual” and “necessary and proper” in the Constitution may be interpreted as hendiadys. The article has sparked considerable comment and other explorations of hendiadys in the law.
This article argues that hendiadys is an obscure and mysterious literary device and that to use it to interpret conjoined phrases in the law is a noble but wrong-headed endeavor, an inter-disciplinary mismatch. Literature and law come from different directions in the quest for textual meaning, and indeed, are at odds on what meaning means. Quixotically or not, lawyers seek fixed meaning, because words are all the law has to shape reality. But literature waves a pirate flag of defiance to hard and fast meaning, and hendiadys is perhaps the ultimate challenge. Thus its use as an interpretive strategy in law is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is mystery and complexity.