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上海交通大学：《法律与道德》课程教学资源（案例）威廉艾斯克里奇，洞穴奇案：法律解释精要

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The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell William N. Eskridge, Jr.* Roger Whetmore is cannibalized by his cave-exploring colleagues in Lon Fuller's hypothetical case of the Speluncean Explorers.1 The survivors are convicted of violating a law making it a crime that one "willfully take the life of another," 2 notwithstanding their defense of necessity. The explorers were trapped in a cave and would have died but for the sustenance of Roger Whetmore.3 An evenly divided Supreme Court of Newgarth affirms the convictions. Voting to affirm, Justice Keen follows the plain meaning of the statute and refuses to consider the equitable defense of necessity, 4 while Chief Justice Truepenny urges the Chief Executive to grant clemency based upon the defense.5 Voting to reverse, Justice Foster argues that neither the understandings of common society nor the purpose * Professor of Law, Georgetown University Law Center; Visiting Professor of Law, New York University. The intellectual framework utilized in this article will be developed and elaborated in WILLIAM N. ESKRIDGEJR., DYNAMIC STATUTORY INTERPRETATION (forthcoming 1994). I. Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949). The discussion in the text is drawn from Fuller's article and will be more fully elaborated infra. For other cases from the hypothetical Supreme Court of Newgarth, see LON L. FULLER, THE PROBLEMS OFJURISPRUDENCE 71-102, 628-36 (temp. ed. 1949). For excellent introductions to Fuller and his philosophy, see ROBERT S. SUMMERS, LON L. FULLER (1984), and Martin P. Golding, Jurisprudence and Legal Philosophy in Twentieth-Century America: Major Themes and Developments, 36 J. LEGAL EDUC. 441, 473-80 (1986). 2. Fuller, supra note 1, at 619 (opinion of Truepenny, C.J.). 3. Id. at 618. 4. Id. at 631-37 (opinion of Keen, J.). 5. Id. at 616-19 (opinion of Truepenny, CJ.). August 1993 Vol. 61 No. 6 1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1731 1992-1993

of the statute is served by conviction,6 while Justice Handy votes to reverse as well,relying on virtual consensus in popular opinion.7 Anguished Justice Tatting-the potential tiebreaker-recuses him- self because he cannot choose among the various arguments.8 The Justices'opinions constitute a microcosm of this century's de- bates over the proper way to interpret statutes.A historical under- standing of those debates reveals the breathtaking intellectual accomplishment of Fuller's article,which closes one period of American statutory law (legislative positivism),announces its suc- cessor(the legal process school),and anticipates the arguments that will bedevil the successor in its turn. I. The Pre-History of the Speluncean Explorers:The Positivism- Natural Law Debate in Statutory Interpretation, 1890-1940 One way to situate the case of the Speluncean Explorers is to view it as a moment in the Anglo-American debate over the role of equity and natural law in statutory interpretation.Justice Keen's plain- meaning opinion conceptualizes the enterprise as nothing more than implementing the positive law enacted by the legislature.That view,separating law from politics and morals,is challenged in the opinions of Justices Handy(who argues that law is politics)and Fos- ter(who argues that law implicates morality).The debate between positivism and natural law was a prominent theme of statutory inter- pretation debates in the first half of the century,and Fuller's article is an accessible time capsule of that debate. Before the 1890s,American theories of statutory interpretation largely tracked English theory:Follow the plain meaning of the stat- ute,except in the rare case in which the plain meaning is absurd.9 Thus,American theory was in the main positivist,demanding that courts follow the rules enacted by the legislature.It contained a safety valve-the exception for absurd results-that was jurispru- dentially ambiguous,however.A meaning leading to an absurd re- sult should not be imputed to the legislature either because the result was probably not the legislature's intent(the positivist argument)or because it was not.right,just,or fair (the natural-law argument). This ambiguity is illustrated by the Supreme Court's most cele- brated statutory case of the Lochner era. 6.Id.at 620-26 (opinion of Foster,J.). 7. Id.at 637-44 (opinion of Handy,J.). . Id.at 626-31 (opinion of Tatting,J.). 9.See SIR FORTUNATUS DWARRIS,A GENERAL TREATISE ON STATUTES:THEIR RULES OF CONSTRUCTION AND THE PROPER BOUNDARIES OF LEGISLATION AND OF JUDICIAL INTER- PRETATION 143-44 (Albany,William Gould Sons 1871);G.A.ENDLICH,A CoMMENTARY ON THE INTERPRETATION OF STATUTES 4 (Jersey City,Frederick D.Linn Co.1888); THEODORE SEDGWICK,A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW (New York,Baker,Voorhis Co.,2d ed.1874);J.G.SUTHERLAND,STATUTES AND STATUTORY CONSTRUCTION (Chi- cago,Callaghan Co.1891);see also John Choon Yoo,Note,Marshall's Plan:The Early Supreme Court and Statutory Interprretation,101 YALE L.J.1607,1610 (1992). 1732 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1732 1992-1993

of the statute is served by conviction, 6 while Justice Handy votes to reverse as well, relying on virtual consensus in popular opinion. 7 Anguished Justice Tatting-the potential tiebreaker-recuses himself because he cannot choose among the various arguments.8 TheJustices' opinions constitute a microcosm of this century's debates over the proper way to interpret statutes. A historical understanding of those debates reveals the breathtaking intellectual accomplishment of Fuller's article, which closes one period of American statutory law (legislative positivism), announces its successor (the legal process school), and anticipates the arguments that will bedevil the successor in its turn. I. The Pre-History of the Speluncean Explorers: The PositivismNatural Law Debate in Statutory Interpretation, 1890-1940 One way to situate the case of the Speluncean Explorers is to view it as a moment in the Anglo-American debate over the role of equity and natural law in statutory interpretation. Justice Keen's plainmeaning opinion conceptualizes the enterprise as nothing more than implementing the positive law enacted by the legislature. That view, separating law from politics and morals, is challenged in the opinions ofJustices Handy (who argues that law is politics) and Foster (who argues that law implicates morality). The debate between positivism and natural law was a prominent theme of statutory interpretation debates in the first half of the century, and Fuller's article is an accessible time capsule of that debate. Before the 1890s, American theories of statutory interpretation largely tracked English theory: Follow the plain meaning of the statute, except in the rare case in which the plain meaning is absurd.9 Thus, American theory was in the main positivist, demanding that courts follow the rules enacted by the legislature. It contained a safety valve-the exception for absurd results-that was jurisprudentially ambiguous, however. A meaning leading to an absurd result should not be imputed to the legislature either because the result was probably not the legislature's intent (the positivist argument) or because it was not. right, just, or fair (the natural-law argument). This ambiguity is illustrated by the Supreme Court's most celebrated statutory case of the Lochner era. 6. Id. at 620-26 (opinion of Foster, J.). 7. Id. at 637-44 (opinion of Handy, J.). 8. Id. at 626-31 (opinion of Tatting, J.). 9. See SIR FORTUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES: THEIR RULES OF CONSTRUCTION AND THE PROPER BOUNDARIES OF LEGISLATION AND OFJUDICIAL INTERPRETATION 143-44 (Albany, William Gould & Sons 1871); G.A. ENDLICH, A COMMENTARY ON THE INTERPRETATION OF STATUTES 4 (Jersey City, Frederick D. Linn & Co. 1888); THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW (New York, Baker, Voorhis & Co., 2d ed. 1874); J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION (Chicago, Callaghan & Co. 1891); see also John Choon Yoo, Note, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 YALE L.J. 1607, 1610 (1992). 1732 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1732 1992-1993

Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW In 1892,the Supreme Court decided Church of the Holy Trinity v. United States.10 The church had hired an English clergyman to be its rector and provided for his transportation to the United States.11 The latter action appeared to violate a federal immigration statute making it"unlawful for any person...in any manner whatsoever,to prepay the transportation,or in any way assist or encourage the im- portation or migration of any alien or aliens,any foreigner or for- eigners,into the United States...to perform labor or service of any kind in the United States."12 Although the prohibition against em- ployment contracts facilitating immigration was broad and filled with loophole-plugging language,1s the Supreme Court refused to interpret the statute to exclude the rector from entering the United States.The Court held"that a thing may be within the letter of the statute and yet not within the statute,because not within its spirit, nor within the intention of its makers."14 To determine the statute's "spirit,"the Court first relied on positive evidence,mainly the stat- ute's legislative history,which suggested that the words"labor and service'”really should have read“'manual labor'or‘manual ser- vice'"and assuredly were not meant to cover"brain toilers."15 The Court's opinion,however,then proceeded to a natural-law appeal, arguing that our history as a"Christian nation"should remove all doubt that the statute might intend to obstruct efforts to bring reli- gious leaders into the country.16 Holy Trinity Church was a prolegomenon to the Lochner era,in which the Court expressed a constitutional hostility to socio-eco- nomic regulatory statutes that displaced old common-law rules.17 The judicial philosophy of the Lochner era,scorned by Professor Roscoe Pound as"mechanical jurisprudence,"18 was one nostalgic for the economic,libertarian values of the common law,which 10.143U.S.457(1892). 11.1d.at457-58. 12.Act of Feb.26,1885,ch.164,23 Stat.332,repealed by Act of June 27,1952,ch. 477,§403(a)(2),66Stat.166,273. 13. Elsewhere,for example,the statute listed specific occupations excluded from the prohibition,and clergy were not mentioned.Id.$5,23 Stat.at 333(excepting from the statute professional actors,artists,lecturers,and singers,among others). 14.Holy Trinity Church,143 U.S.at 459. 15.Id.at 464.It appears from the case that the committee was operating under end-of-session pressure and did not believe it necessary to vote an amendment to the statute.Id.The Supreme Court also relied on the statute's title and the circumstances of its adoption to hold it inapplicable to "brain toilers."Id.at 465. 16.Id.at 471;see also id.at 465 ("[N]o purpose or action against religion can be imputed to any legislation,state or national,because this is a religious people.").The author of the opinion,Justice David Brewer,was the evangelical son of Christian missionaries. 17.The standard citation is Lochner v.New York,198 U.S.45 (1905),in which Justice Brewer and his allies struck down a statute setting maximum work hours for bakers in New York. 18.Roscoe Pound,Mechanical Jurisprudence,8 CoLUM.L.REV.605,615-16 (1908). 1993] 1733 HeinOnline--61 Geo.Wash.L.Rev.1733 1992-1993

Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW In 1892, the Supreme Court decided Church of the Holy Trinity v. United States. 1 0 The church had hired an English clergyman to be its rector and provided for his transportation to the United States.11 The latter action appeared to violate a federal immigration statute making it "unlawful for any person.., in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States... to perform lab6r or service of any kind in the United States."'12 Although the prohibition against employment contracts facilitating immigration was broad and filled with loophole-plugging language, 13 the Supreme Court refused to interpret the statute to exclude the rector from entering the United States. The Court held "that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers."' 4 To determine the statute's "spirit," the Court first relied on positive evidence, mainly the statute's legislative history, which suggested that the words " 'labor and service' " really should have read " 'manual labor' or 'manual service' " and assuredly were not meant to cover "brain toilers." 15 The Court's opinion, however, then proceeded to a natural-law appeal, arguing that our history as a "Christian nation" should remove all doubt that the statute might intend to obstruct efforts to bring religious leaders into the country. 16 Holy Trinity Church was a prolegomenon to the Lochner era, in which the Court expressed a constitutional hostility to socio-economic regulatory statutes that displaced old common-law rules.' 7 The judicial philosophy of the Lochner era, scorned by Professor Roscoe Pound as "mechanical jurisprudence,"' 18 was one nostalgic for the economic, libertarian values of the common law, which 10. 143 U.S. 457 (1892). 11. Id at 457-58. 12. Act of Feb. 26, 1885, ch. 164, 23 Stat. 332, repealed by Act ofJune 27, 1952, ch. 477, § 403(a)(2), 66 Stat. 166, 273. 13. Elsewhere, for example, the statute listed specific occupations excluded from the prohibition, and clergy were not mentioned. Id. § 5, 23 Stat. at 333 (excepting from the statute professional actors, artists, lecturers, and singers, among others). 14. Holy Trinity Church, 143 U.S. at 459. 15. Id at 464. It appears from the case that the committee was operating under end-of-session pressure and did not believe it necessary to vote an amendment to the statute. Id. The Supreme Court also relied on the statute's title and the circumstances of its adoption to hold it inapplicable to "brain toilers." Id. at 465. 16. Id. at 471; see also id. at 465 ("[N]o purpose or action against religion can be imputed to any legislation, state or national, because this is a religious people."). The author of the opinion, Justice David Brewer, was the evangelical son of Christian missionaries. 17. The standard citation is Lochner v. New York, 198 U.S. 45 (1905), in which Justice Brewer and his allies struck down a statute setting maximum work hours for bakers in New York. 18. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REv. 605, 615-16 (1908). 1993] 1733 HeinOnline -- 61 Geo. Wash. L. Rev. 1733 1992-1993

judges felt were under assault from new regulatory statutes.19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional in- terpretation.?0 The common law had long been a natural-law surro- gate in statutory interpretation,and a nostalgic Supreme Court pursued that theme episodically for two generations,from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist:They contended that the common law was no longer sufficient to the needs of a complex,strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society,and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy.Pound argued,for example, that the importation by judges of their libertarian values into stat- utes was "spurious"statutory interpretation and inconsistent with the proper role of courts in a democracy.21 According to Pound,the proper method of statutory interpretation was an "imaginative re- construction"of the legislature's specific intent.22 That view had many adherents among progressive jurists2s but was not so jurispru- dentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes,Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound,Holmes was a positivist who astringently believed in the separation of law and morals.Like Pound,he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound,Common Law and Legislation,21 HARV.L.REv.383,384-85 (1908). 20.Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co.v.Journeymen Stonecutters'Ass'n,274 U.S.37,39 (1927)(narrowing interpretation of Clayton Act's labor exemptions),Duplex Printing Press Co.v.Deering, 254 U.S.443,446-48 (1921)(similar),Caminetti v.United States,242 U.S.470,491 (1917)(expansive interpretation of morals statute to cover fornication),Loewe v. Lawler,208 U.S.274,292-93(1908)(expansive interpretation of Sherman Act to cover labor unions),Northern Sec.Co.v.United States,193 U.S.197,327 (1904)(expansive interpretation of Sherman Act to cover corporate size),and United States v.E.C.Knight Co.,156 U.S.1,16-17 (1895)(narrowing interpretation of Sherman Act to exempt man- ufacturing monopolies). 21.Roscoe Pound,Spurious Interpretation,7 CoLUM.L.REV.379,382 (1907). 22.For Pound,the role of the judge should be to discover "what the law-maker meant by assuming his position,in the surroundings in which he acted,and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them,his intention with respect to the particular point in controversy."Id.at 381;see also Roscoe Pound,Enforcement of Law,20 GREEN BAG 401 (1908).Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court,90 F.248,251 (C.C.S.D.1owa1898). 23.Judge Learned Hand was perhaps the most notable of these.See Fishgold v. Sullivan Drydock Repair Corp.,154 F.2d 785,788-91 (2d Cir.),af'd,328 U.S.275 (1946);Lehigh Valley Coal Co.v.Yensavage,218 F.547,553 (2d Cir.1914),rert.denied, 235U.S.705(1915). 24."We do not inquire what the legislature meant;we ask only what the statute means."Oliver Wendell Holmes,The Theory of Legal Interpretation,12 HARV.L.REV.417, 419(1899). 1734 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1734 1992-1993

judges felt were under assault from new regulatory statutes. 19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional interpretation. 20 The common law had long been a natural-law surrogate in statutory interpretation, and a nostalgic Supreme Court pursued that theme episodically for two generations, from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist: They contended that the common law was no longer sufficient to the needs of a complex, strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society, and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy. Pound argued, for example, that the importation by judges of their libertarian values into statutes was "spurious" statutory interpretation and inconsistent with the proper role of courts in a democracy. 2' According to Pound, the proper method of statutory interpretation was an "imaginative reconstruction" of the legislature's specific intent.22 That view had many adherents among progressive jurists23 but was not sojurisprudentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes, Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound, Holmes was a positivist who astringently believed in the separation of law and morals. Like Pound, he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound, Common Law and Legislation, 21 HARv. L. REV. 383, 384-85 (1908). 20. Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co. v. Journeymen Stonecutters' Ass'n, 274 U.S. 37, 39 (1927) (narrowing interpretation of Clayton Act's labor exemptions), Duplex Printing Press Co. v. Deering, 254 U.S. 443, 446-48 (1921) (similar), Caminetti v. United States, 242 U.S. 470, 491 (1917) (expansive interpretation of morals statute to cover fornication), Loewe v. Lawler, 208 U.S. 274, 292-93 (1908) (expansive interpretation of Sherman Act to cover labor unions), Northern Sec. Co. v. United States, 193 U.S. 197, 327 (1904) (expansive interpretation of Sherman Act to cover corporate size), and United States v. E.C. Knight Co., 156 U.S. 1, 16-17 (1895) (narrowing interpretation of Sherman Act to exempt manufacturing monopolies). 21. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REv. 379, 382 (1907). 22. For Pound, the role of the judge should be to discover "what the law-maker meant by assuming his position, in the surroundings in which he acted, and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy." Id. at 381; see also Roscoe Pound, Enforcement of Law, 20 GREEN BAG 401 (1908). Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court, 90 F. 248, 251 (C.C.S.D. Iowa 1898). 23. Judge Learned Hand was perhaps the most notable of these. See Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 788-91 (2d Cir.), aff'd, 328 U.S. 275 (1946); Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914), cert. denied, 235 U.S. 705 (1915). 24. "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899). 1734 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1734 1992-1993

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