<Table Of Contents

Legal Syzygy

by Elodie O. Currier, 2023 Law Fellow

In the Auschwitz-Birkenau Memorial and Museum, Auschwitz I’s Block 20 houses a French national exhibition in remembrance of Jews deported from France to Auschwitz between 1942 and 1943. Seeking to memorialize victims, the exhibit displays dozens of brief summaries of lives cut short. In a room full of pathos, one example is particularly striking. 

Per Plaque D24, Anja Schaul was born in Paris to a German mother—a refugee and children’s book author.1 Like many other children memorialized in the exhibit,2 the plaque describes how Anja “est déportée”—was deported. However, unlike others, the plaque includes two odd sentences: that Anja and her mother “on tète arrêtes” (had been arrested) on July 15 and that on January 27, and “la Gestapo vient arrêter l’enfant de 6 ans a l’école” (the Gestapo went to arrest the six-year-old child at school). 

Reading Anja’s plaque, I was sure my French had gone from rusty to hopelessly corroded,3 or that, as can be the case in memorialization,4 the sharp language was more for effect than accuracy. Surely even under these circumstances, the seizure of a six-year-old by security police could not be a legal arrest.5 However, a hand-scrawled note at the bottom of a memo written by the Commissioner of Police of the French Village of Saumur confirms just that.6 The Commissioner of the Police “has the honor of letting [the Minister of the Interior] know” that along with Savinien Schermann and Madeline Mabileau, “Annia Schaull” was arrested on the morning of January 27th.7 In case their cause of arrest was not clear, the Commissioner notes that “ces deux personnes [Schermann and Maileau] étaient de confession Israelite”—these two people were Jewish.8

In the two weeks prior to visiting Auschwitz-Birkenau with FASPE, I had seen plenty of examples of the ways Nazi Germany had incorporated euphemisms and legal fictions into its genocidal campaigns. From the T-4 “euthanasia” program to the “protective custody” that brought political dissenters to Sachsenhausen, Nazi lawyers and policymakers’ fixation on hiding their wrongdoing in plain sight—or in plain language—was obvious. What made Anja’s “arrest” so jarring was the tension between the language used to describe a legal action and the profound cruelty of that action. And how familiar that tension is in modern legal practice. 

Precise language is an essential part of lawyering. Millions of dollars are spent in accumulated fees negotiating and litigating individual sentences, words, and commas.9 Unfortunately, that precision can easily disguise euphemism and distance decisionmakers from the cruelty of their actions. Take, for example, the shift from U.S. officials’ use of the term “War on Terror” to “Struggle Against Violent Extremism.” In 2005, the Bush Administration shifted to the latter term for their efforts against al Qaeda, the Taliban, and associated forces.10 While spokespersons for the Department of Defense justified the language shift as being more precise in the face of a changing strategy,11 commentators saw an effort by the administration to distance themselves from a “war” they were perceived to be losing.12 The linguistic change, which continued into the Obama administration,13 suggested a downshift from a strategy of all-out combat to a more pacifist, diplomatic approach. In reality, the opposite was true: after the transition to “struggle against violent extremism,” troop levels intensified,14 and drone strikes increased by a factor of ten.15

These linguistic sleights of hand extend beyond the military into corporate and legislative practice. Definitional questions can transform seemingly clear contract or legislative language into a thicket of diffuse meanings. Casebooks are full of disputes over their results: Is a “chicken” any bird of a specific genus, or does it only mean a young chicken suitable for broiling or frying?16 Does “harming” a species include only direct application of force or also destruction of their environment leading to death?17 

But aren’t lawyers and judges there to ensure people say what they mean and are held to account? In the abstract, yes. When language becomes too distant from reality, however, dangers arise for more than just the parties to a case. Legal fictions—when judges incorporate assumptions of fact to reach a legal conclusion often at odds with the truth—can reduce confidence in the judicial systems and mislead citizens.18 When the tension between truth and language goes further, beyond mere euphemism or legal fiction into a sort of doublespeak, these dangers become even more pressing. 

In Jungian psychology, the term syzygy denotes a union of opposites.19 Legal syzygy, then, would be the unification through judicial decree or legislation of two terms with otherwise opposite meanings. Legal syzygy goes beyond mere legal fiction. It arises when the use of hidden or counterintuitive definitions allows statements presented to the public to have opposite or near-opposite meanings. Here, we approach perhaps the most dangerous form of euphemism, the sort that can see the “arrest” of a six-year-old for the “crime” of Judaism.  

Take certification standards for environmental, social, and governance efforts. The Roundtable for Sustainable Palm Oil states that its stamp of approval “is a globally recognized ecolabel that signals the use of RSPO certified sustainable palm oil.”20 The label guarantees that products use “certified sustainable palm oil,” which, per the Roundtable “allows companies to demonstrate that they are responsibly protecting the environment, improving social and labour practices on oil palm plantations, and positively assisting with wildlife conservation.”21 In truth, the standard only prohibits deforestation of the most threatened areas, what it describes as “High Conservation Value” areas where, inter alia, ecosystems and endangered species “are [at] significant [risk] at global, regional, or national levels,” or “High Forest Cover Landscape,” where landscapes have more than 80% forest cover, with “landscapes” defined by a malleable definitional tool.22 By narrowing the definitions of areas deserving of protection, the certification standard becomes near-meaningless. Over the past 30 years, RSPO-certified firms deforested more acreage than non-certified firms.23 In other words, while consumers may feel better buying RSPO eco-labelled products, legal syzygy allows a sort of willful blindness to the reality that their purchases were more likely to directly contribute to deforestation. 

Even by its own certification standards, RSPO’s definitions further distort matters by incorporating syzygy into its “no child labour” policy. RSPO’s Principles and Criteria for the Production of Sustainable Palm Oil clearly state that part of the certification process is “no child labour.”24 However, outside of a “formal policy […] including prohibition of child labour” being in place through the supply chain, the criteria walk back the “no child labour policy,” allowing “young persons [to be] employed only for non-hazardous work.”25 The definitions section further erodes the standard, allowing work by minors so long as it is not one of “the worst forms of child labour,” the child is not under 12, and those 12-14 are only engaged in “light work.”26 Again, legal syzygy allows “no child labour” to mean “some child labour.” While there may be legitimate policy reasons to add nuance to an otherwise all-or-nothing requirement, burying these nuances through syzygy misleads consumers and presents certification as a panacea rather than opening up discussion about the ways it is tailored. 

These issues are not limited to certification regimes. Syzygy allows Facebook and Google to simultaneously not sell location data and “lead in location-based advertising.”27 It allowed the United States to claim that the U.S. would not be engaged in torture so long as the torture it was engaging in took place in a special jurisdictional zone and the torturer did not intend to inflict “prolonged mental harm.”28 

If euphemism allows the transmission of unpleasant truths without the negative consequences of disclosure,29 syzygy allows willful blindness. Mischa Maschman, a member of the Nazi Party, described her complicity in the Holocaust as enabled in part by the doublespeak used by the Nazi Party.30 So too, syzygy risks allowing decisionmakers to carry out unethical conduct without fear of detection or removal. Even for those that are looking for the truth of the matter, syzygy erects barriers for people as they consider what to buy, what to advocate for, and how to vote. 

In many cases, attorneys generate syzygy. Burying meaning in obfuscation and circularity has advantages in the arms race between corporate players and in the battles over legislative drafting, but it comes at a cost. When the public is misled by a legal meaning that stands in opposition to factual practice, it can not only legitimize wrongdoing but also delegitimize the legal system itself. The arrest of Anja Schaul was a kidnapping, but through the operation of law, it was given legitimacy and allowed those complicit an internal justification.  This is not to say euphemisms are not useful linguistic tools: they can spare feelings31 and avoid unnecessary conflict.32 Careful use of language can also serve as a protective measure for victims of crime or violence to discuss their ordeals while avoiding re-traumatization.33 As agents of the law and as guarantors of due diligence, however, attorneys must shine a light on syzygy’s uses and the purposes they serve. To avoid erosion of American confidence in rule of law, it is vital to investigate where syzygy exists, how it is used as a tool, and what methods are available to bring it to light. 

Elodie O. Currier was a 2023 FASPE Law Fellow. She is a 2023 graduate of Vanderbilt Law School now working for the Federal Judiciary..

Notes

  1. Anya Schaul’s plaque reads, in full, as follows:
    “Anja Schaul, était née le 16 mai 1937 à Paris ou sa mère, Ruth, allemande, auteur de livres pour enfants, s’était réfugiée. Le père, Hans, après avoir connu le camp du Vernet, fut interne par Vichy dans un camp de travail en Afrique du Nord. Ruth et Anja on tète arrêtes à Rosier-sur-Loire (Maine-et-Loire) le 15 juillet. Ruth est déportée par le convoi et va a l’école. Le 27 janvier la Gestapo vient arrêter l’enfant de 6 ans a l’école même et la transfère à Drancy d’oùelle est déportée le 10 février 1944 par le convoi n. 68. Il ne reste d’elle que cette photo et une carte envoyée à son père en octobre 1942.”
    An extensive record of the Schaul family’s history, along with primary sources, is available at https://shoahpresquile.com/2019/01/03/ruth-schaul-148/. While some sources serve to underline the legalization of cruelty in Vichy France (for example, a memo from the Office of the Prefect in response to a family hoping to house Anja states that « l’hébergement d’enfants juifs dans des familles françaises est considérée comme non désirable […] et n’est autorisé en aucun cas. » - the housing of Jewish children in French families is considered undesirable and is not authorized in any case. https://shoahpresquile.files.wordpress.com/2020/01/15schauladla1694w26correspondancekommandantur.jpg ), it also underlines the deep concern that many French people felt for their Jewish neighbors. See SCHAUL, Ruth, Anja, [Hans] [148], The Shoah in the District of Saint-Naza FC iref, SHOAHPRESQUILE.COM (Jan. 3, 2019), https://shoahpresquile.com/2019/01/03/ruth-schaul-148/. A brief history of Anja’s life was also prepared in 2021 by a primary school in Rosier-sur-Loire which now bears her name. See Commune de Gennes-Val-de-Loire Commission Communication, ANJA SCHAUL ECOLE PRIMARE PUBLIQUE LES ROSIERS-SUR-LOIRE (2021), avail. at https://www.gennesvaldeloire.fr/medias/2021/09/Livret-Anja-BAT.pdf.
  2. For example, Plaque F19, one of the shortest, remembers Jeanine Cahen, who at one year old, was deported with her mother and grandmother. “Jeanine Cahen avait 1 an. Elle était née le 1er Janvier 1943 à Marseille ou elle vivait 9, rue Lafayette. Elle a été déportée avec sa mère, son père, et sa grand-mère par le convoi n. 74 du 20 mai 1944.” (Jeanine Cahen was one year old. She was born on Jan. 1st 1943 in Marseille where she lived at 9 Lafayette Street. She was deported with her mother, father, and grandmother on convoy 74 of May 20, 1944.”
  3. The French for “arrest” (arreter) also translates to “to stop,” though the context here suggests that it denotes the legal principle.
  4. Memorialization of the Holocaust, and other tragedies, is sometimes alleged to be used for political purposes, even when the usage is at odds with fact. See, e.g., Joanna Kakissis, Controversy Surrounds Planned Hungarian Holocaust Museum, NPR (Feb. 6, 2019), https://www.npr.org/2019/02/06/691909937/controversy-surrounds-planned-hungarian-holocaust-museum (Hungarian memorialization of the Holocaust); Paresh Dave, Solider who may have shot Pat Tillman haunted by remorse, LOS ANGELES TIMES, https://www.latimes.com/nation/la-xpm-2014-apr-20-la-na-nn-pat-tillman-soldier-10-years-remorse-20140420-story.html (discussing the U.S. military’s attempts to retroactively paint a friendly fire incident as a heroic death against combat forces).
  5. Cf., Cheryl Corley, In Some States, Your 6-Year-Old Child Can Be Arrested. Advocates Want that Changed. NPR (May 2, 2022), https://www.npr.org/2022/05/02/1093313589/states-juvenile-minimum-age-arrested-advocates-change.
  6. Image available at: https://shoahpresquile.files.wordpress.com/2020/11/03locauxjuifsvacantsadml97w40.jpg.
  7. Id.
  8. Id.
  9. See, e.g., O'Connor v. Oakhurst Dairy, 851 F.3d 69 (2017) (Circuit Judge Baron writing, in approving a settlement in a dispute in which the critical issue was interpretation of an oxford comma, “for want of a comma, we have this case.”).
  10. Bruce Ching, Echoes of 9/11: Rhetorical Analysis of Presidential Statements in the “War on Terror” 51 SETON HALL. L. REV. 431, 442 (2020).
  11. Id. (“Chairman of the Joint Chiefs of Staff Richard Myers justified [the shift] by positing that going forward, the effort of the U.S. and its allies would be ‘more diplomatic, more economic, more political than it is military.’”) (citing Eric Schmitt & Thom Shanker, U.S. Officials Retool Slogan for Terror War, N.Y. TIMES (July 26, 2005), https://www.nytimes.com/2005/07/26/politics/us-officials-retool-slogan-for-terror-war.html.).
  12. Id. at 442-443 (suggesting that the Bush Administration shifted away from the more powerfully all-consuming war footing because the new phrase “would not highlight ‘the failure of the president’s war policy’—in contrast to ‘the war frame [that] includes an end to the war—winning the war, mission accomplished!”).
  13. Ari Shapiro, Obama Team Stops Saying ‘Global War on Terror’ But Doesn’t Stop Waging It, NPR (Mar. 11, 2013), https://www.npr.org/sections/itsallpolitics/2013/03/11/174034634/obama-team-stops-saying-global-war-on-terror-but-doesnt-stop-waging-it.
  14. Average monthly boots on the ground in Afghanistan and Iraq increased every year from FY2003 to FY2008, with the exception of a 1% annual decrease in FY2006, and peaked in FY2008 at 187,900. See Amy Belasco, Troop Levels in the Afghan and Iraq Wars, FY2001-FY2012: Cost and Other Potential Issues, CONGRESSIONAL RESEARCH SERVICE, at 9 (July 2, 2009), avail. at https://sgp.fas.org/crs/natsec/R40682.pdf.
  15. Jessica Purkiss & Jack Serle, Obama’s Covert Drone War in Numbers: Ten Times More Strikes Than Bush, BUR. OF INVEST. J. (Jan. 17, 2017), https://www.thebureauinvestigates.com/stories/2017-01-17/obamas-covert-drone-war-in-numbers-ten-times-more-strikes-than-bush. See generally Elodie O. Currier, After Action: The U.S. Drone Program’s Expansion of International Law Justification for Use of Force Against Imminent Threats, 76 VAND. L. REV. 259, 287-282 (2023) (discussing shifts in drone policy between the Bush, Obama, Trump, and Biden Administrations).
  16. Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (1960).
  17. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463, 1465 (D.C. Cir. 1994), rev’d. 115 S. Ct. 2407 (1995).
  18. See generally, Elodie O. Currier, Myth of Anonymity: De-Identified Data As Legal Fiction, 54 N.M. L. Rev., 17-30 (forthcoming 2024).
  19. Carl Jung uses “syzygy” to denote two opposing traits that are “yoked together” or unified. See, e.g., C.G. Jung, The Syzygy: Anima & Animus, in COLLECTED WORKS OF C.G. JUNG, VOL. 9 (PT. 2) (Princeton, 1969).
  20. RSPO, RSPO Trademark Ranks Among Top 12 Food Ecolabels, RSPO (May 24, 2022), https://rspo.org/rspo-trademark-ranks-among-top-12-food-ecolabels/.
  21. RSPO, Our Trademark, RSPO (last visited July 9, 2023), https://rspo.org/as-an-organisation/our-trademark/.
  22. RSPO, 2018 PRINCIPLES AND CRITERIA FOR THE PRODUCTION OF SUSTAINABLE PALM OIL (2018), at 14.
  23. Roberto Cazzolla Gatti & Alena Velichevskaya, Certified “Sustainable” Palm Oil Took the Place of Endangered Bornean and Sumatran Large Mammals Habitat and Tropical Forests in the Last 30 Years, 742 SCIENCE OF THE TOTAL ENVIRONMENT 140712 (2020).
  24. Id. at 71 (“The size of a landscape may be determined by identifying the watershed or the geographical land unit containing a cluster of interacting ecosystems; (b) selecting a unit size that encompasses the plantation concession and a buffer of the surrounding area (e.g. 50,000 ha or 100,000 ha); or (c) using a radius of 5 km from the area of interest (for instance, the planned concession.”)
  25. Id. at 46-47.
  26. Id. at 65.
  27. Jennifer Valentino-DeVries, Natasha Singere, Michael H. Keller & Aaron Krolik, Your Apps Know Where You Were Last Night, And They’re Not Keeping it Secret, N.Y. TIMES (Dec. 10, 2018) https://www.nytimes.com/interactive/2018/12/10/business/location-data-privacy-apps.html?smid=tw-nytimes&smtyp=cur. While Facebook and Google’s claims that they do not sell location data may be legally accurate, compliance with those claims do not prevent the platforms from using location data to create a more detailed (and more valuable) profile of your habits, nor do they preclude internal use to track ad performance. Id.
  28. John Yoo, MEMORANDUM FOR WILLIAM HAYES II, GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE (Mar. 14, 2003), avail at https://www.aclu.org/documents/memo-regarding-torture-and-military-interrogation-alien-unlawful-combatants-held-outside at 41 (among other claims, writing that “Because the presence of good faith would negate the specific intent element of torture [a good faith claim that the inflictor did not intend to cause prolonged mental suffering] is a complete defense to such a charge.”)
  29. A 2021 study published in the journal Cognition shows that use of euphemistic language improves public approval for unpopular actions while avoiding perceptions that the speaker is being dishonest. See Alexander C. Walker, Martin Harry Turpin, Ethan A. Meyers, Jennifer A. Stolz, Jonathan A. Fugelsang, & Derek J. Koehler, Controlling the Narrative: Euphamistic Language Affects Judgements of Actions While Avoiding Perceptions of Dishonesty, 211 Cognition 104633, 9-11 https://doi.org/10.1016/j.cognition.2021.104633.
  30. Maschmann at 59 (“I did not read the Nuremberg Laws […] until I had to give a course on them at a Labour Service camp. Previously I had been satisfied with a very imprecise knowledge of tehir contents. Doubtless this is because I did not want to know exactly what they contained. I did not want to be obliged to think about it.”); Id. at 105 (Here, as there, a different attitude could perhaps have lead to suicidal consequences. If I had inquired further, I would have become inextricably entangled in conflicts which would have caused the total collapse of my ‘world.’ Clearly our subconscious energies and I can speak here for many of my companions were fully concentrated on protecting us from such crises.”)
  31. Theda C. Snyder, How Euphemisms Improve Your Lawyering, ATTORNEY AT WORK (May 30, 2022), https://www.attorneyatwork.com/how-euphemisms-improve-your-lawyering/ (“The sister [in a eulogy] said that [decedent] maintained an “air of innocence” throughout her life . . . In fact, [decedent] was a total airhead.”).
  32. Id. (cautioning that non-euphemistic phrases like “lied” are “guaranteed to antagonize opposing counsel.”)
  33. The line between euphemism and trauma-informed language is somewhat blurry: even guides on journalistic coverage and social work seem to blend the two. See, e.g., Isobel Thompson, Dart Center Style Guide for Trauma-Informed Journalism, DART CTR. FOR JOURNALISM & TRAUMA (last visited Jul. 7, 2023), https://dartcenter.org/resources/dart-center-style-guide; Screening and Assessment in TRAUMA-INFORMED CARE IN BEHAVIORAL HEALTH SERVICES (Center for Substance Abuse Treatment 2014), avail. at https://www.ncbi.nlm.nih.gov/books/NBK207188/.