LAWnLinguistics

“I really, really like the work in Congress, I really do, but I love my family more. People may try to make it more than that, but it’s really that simple,” [Jason] Chaffetz said on MSNBC. “I just turned 50. I’m sleeping on a cot in my office.”

Chaffetz on No 2018 Run: ‘I Just Turned 50, I’m Sleeping on a Cot in My Office,’ Talking Points Memo xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx

Everyone familiar with the academic literature on statutory interpretation is aware of the no-vehicles-in-the-park hypothetical. It was formulated by the legal philosopher H.L.A. Hart to illustrate the argument that the words in which a law is written must have “a core of settled meaning”—a set of “standard instance[s] in which no doubts are felt about [the law’s] application”—but will also have “a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.”  But Harvard law professor Lon Fuller denied the existence of any core area in which the law’s applicability was clear; for Fuller, the law’s applicability turned not on linguistic semantics but on the law’s purpose. Thus, he asked whether, under the hypothesized prohibition against vehicles in the park, “mount[ing] on a pedestal in the park a truck used in World War II…in perfect working order” would fall within the law’s core or its periphery.

Less well known than Hart’s thought experiment is a separate hypothetical offered by Fuller to support his challenge to  Hart. Fuller posits a law making it a misdemeanor “to sleep in any railway station.” He then supposes that two people have been arrested for violating this law: one who dozed off while waiting for a train, and another “who had brought a blanket and pillow to the station and had obviously settled himself down for the night[,]” but who had been arrested before he fell asleep. “Which of these cases,” Fuller asked, “presents the ‘standard instance’ of the word ‘sleep’?” And would it be faithful to the law to say that the law had been violated by the second person but not the first?

The hypothetical is thought-provoking because applying what is assumed to be the literal meaning of the law—that it prohibits being asleep in a railway station—would yield a conclusion that seems nonsensical: that the law was violated by the dozing passenger but not by the person who was bedded down but still awake. The hypothetical has been discussed by some very smart legal scholars and philosophers over the years, including Kent Greenawalt, Fred Schauer, John Manning, Scott Soames, and Andrei Marmor, and with few exceptions (mainly the linguist Robyn Carston) they have accepted that assumption. Schauer put it as well as anyone: “Sleep is a physiological state, and as a matter of physiology Fuller’s businessman was sleeping. Period.”

But in fact (you can guess where this is going, can’t you?), the assumption’s validity is doubtful at best. It is entirely consistent with actual usage to use sleep in a railway station to mean ‘use a railway station as a place to sleep’ rather than ‘be asleep in a railway station.’

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