What the Oxford Comma Tells Us About Our Sense of Justice.

The New York Times recently published an article entitled “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute”. The article covers the story of a First Circuit Court of Appeals decision that, as the Times put it, “was an exercise in high-stakes grammar pedantry”.

To fully unpack what is going on here, the Times explains to its readers what exactly is an Oxford comma. But I would propose we first take a step back further into abstraction: What exactly is grammar?

Grammar is a set of structural rules relating to language. By agreeing on these rules, societies improve their ability to convey meaning accurately from one person to another. Grammar, in other words, helps eliminate ambiguity.

As such, grammar is a pure instrumental good. There is nothing intrinsically positive or negative about using capital letters to start a sentence. The value in grammar comes purely from its ability to allow us to communicate better with each other, because we all agree to abide by these rules.

Or at least we try to abide by these rules. And therein lies the problem. Our use of grammar is imperfect and, perhaps even worse, inconsistent. As a result, the meaning of a legislative or contractual provision according to the rules of grammar will not always match the meaning meant to be attributed to it by its drafter(s).

Which brings us back to the Oxford comma. When you have a series of items brought together by a conjunction, the Oxford comma is a comma that is placed between the second-to-last and last items. For example, in the phrase “At the grocery store, I bought apples, oranges, and grapes”, the comma after “oranges” is an Oxford comma.

Often, the Oxford comma does not add clarity to a sentence. It therefore loses its instrumental purpose as a rule of grammar, and may be deleted by editors. But sometimes it could add clarity.

In the case cited by the Times, the law provided that overtime rules did not apply to “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” certain products.

The question was: does the term “packing for” apply to both “shipping” and “distribution”, such that only packing for distribution is included in the list (let’s call this “Meaning 1”)? Or does the term “packing for” only attach to “shipping”, such that distribution is included in the list whether it involves packing or not (“Meaning 2”)?

Everyone agrees there was no Oxford comma. Everyone agrees an Oxford comma after “shipment” would clearly point to Meaning 2. But does the lack of Oxford comma mean the legislature really intended Meaning 1? Or was the Oxford comma omitted simply because the legislature didn’t want to bother with one, even though it intended Meaning 2?

(In passing, despite the Times’ rhetoric, the Oxford comma is not the sole culprit in this case. While the presence of an Oxford comma might have easily resolved the matter for Meaning 2, adding the word “or” before “packing” could equally easily have resolved the matter for Meaning 1. In the end, the legislature chose neither of these options, leaving the ambiguity for the courts to deal with.)

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What does all this have to do with our “sense of justice”?

The not-so-subtle undertone to the Times report is that a comma is a rather silly thing to argue about (see its reference to “pedantry” above). The real-world effect of the case is quite important – whether or not workers will be paid millions of dollars extra for overtime work. Is it justice for this question to be determined by something as vacuous – as intrinsically empty, as devoid of fairness and policy considerations – as grammar?

No, it isn’t.

Justice isn’t about editing mistakes and it’s not about correcting grammar. Justice isn’t preoccupied with formalism and it has little time for formality. Justice concerns itself with substantive principles, like human fulfilment, freedom and equality. It pushes us to strive towards an intrinsic good.

A strong sense of justice doesn’t always tell us who wins the debate, but it does tell us what the debate should be about.

And our sense of justice tells us that this debate should not be about a comma.

Crucially, the court had the same instinct. While the Times headline suggests the court was hung up on a comma, in fact the court scoured precedents to ensure consistent treatment; the court examined the statute’s history to learn more about the law; and ultimately, still faced with an ambiguity, the court considered the law’s remedial purposes in determining that the interpretation favouring workers is to be preferred.

In short, the court tried really hard to figure out what the law truly meant and what it was trying to accomplish. It was not debating the necessity of a comma for grammar’s sake. It was using grammar as one tool among many to try to determine what this law stood for. Because the law was trying to achieve a social good, and the court’s role is to let it do so.

The court was, in fact, concerned with just process and just outcome.

And whether you like Oxford commas or not, that’s not pedantry.