No Vehicles in the Park

• Publication year: 1999
• Citation: Vol. 23 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 2FALL 1999

No Vehicles in the Park

Pierre Schlag(fn*)

In 1958 H.L.A. Hart posed a hypothetical. Here it is:A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called "vehicles" for the purpose of the rule or not?(fn1)

Over the years, this has become a nearly irresistible hypothetical. Generations of Anglo-American legal thinkers have cut their interpretive teeth on this hypothetical-striving to advance or defend all sorts of insights about law, interpretation, and adjudication.

You can easily imagine how this might happen. It builds on itself. There are the myriad factual variations on the hypothetical. Hart thought that an automobile was plainly covered.(fn2) In a reply to Hart, Lon Fuller asked him about a World War II military truck set on a pedestal as a memorial.(fn3) Is that a vehicle?(fn4) O.K., then what about an ambulance?(fn5) A stroller?(fn6) A wheel chair? A . . . and so on and so forth.

These hypothetical vehicles were all sent out on various missions-namely, to support or wreck some preferred interpretive strategy (of which there was no shortage):The Plain Meaning of the Text: A vehicle is a vehicle is a vehicle.(fn7) Policy Analysis: The meaning of the term "vehicle" depends upon the plausible purposes of the ordinance.(fn8) Framers' Intent: The meaning of the term depends upon what the framers of the ordinance intended.(fn9) Cultural Contextualism: The meaning of the term "vehicle" ultimately depends on shared cultural understandings; for instance, on the nature of the park (e.g., rest, relaxation, amusement).(fn10) Clintonian Parsing: A vehicle is what I say it is.

Additional interpretive approaches could be included here. And a number of adjudicatory considerations, such as certainty, predictability, and prudence, could be added to each of the interpretive strategies.

The debates that have followed in the wake of the hypothetical have been excruciatingly intricate, involving numerous distinctions and multiple acts of analytical subdivision.(fn11) These debates need not be repeated here. I mention them only to show that an abundance of plausible interpretive techniques and adjudicatory considerations can be brought to bear upon the interpretation of the ordinance. It is likely that these techniques and considerations might in some cases produce different results.

So now here's the question I would like to pose. It's a question that we might expect a judge to pose: What does the ordinance really mean? And, of course, we would expect a judge to ask such a question in the context of a specific law(fn12) and a specific factual situation. So the judge would very likely ask something like: "Does the ordinance, or the term 'vehicle,' cover, reach, include, apply to an ambulance, a motorized toy boat, a . . . (and so on)?"

Maybe you don't care a whole lot about this kind of question. There are good reasons not to care-not too many people do.(fn13) But, for the time being, try to care. Pretend that you really do want to know what the rule really means. You want to know this as much as you want to know anything.

Trying to find out what the ordinance really means requires something that I will call "interpretation as retrieval."(fn14) By this phrase, "interpretation as retrieval," I mean nothing terribly fancy. Interpretation as retrieval is the attempt to retrieve the meaning of an artifact or text-a meaning that is found in the artifact or text and that you, the interpreter, do not already have. I am not saying that interpretation as retrieval is easy (quite the contrary).

To illustrate the difficulties of interpretation as retrieval, consider the movie "Basic Instinct."(fn15) This suspense movie begins as the police arrive at a murder scene. A rock star has been killed. Amidst an absence of knowledge, the one thing that is known (almost for sure) is that the murderer used a sharp instrument like an ice pick. The detective, played by Michael Douglas, investigates two female suspects, one played by Sharon Stone and the other played by Jeanne Tripplehorn. He becomes sexually involved with the suspect played by Sharon Stone. By the end of the movie, in the denouement, the tension is broken in classic Hollywood style: it is Jeanne Tripplehorn (not Sharon Stone) who appears to be the guilty one. And in an equally classic display of Hollywood justice, Tripplehorn is killed. But the movie does not end there. Instead, we get one more sexual encounter involving Michael Douglas and Sharon Stone, who is apparently no longer a suspect. The camera zooms back from the bed to offer a wide angle. It...