Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW such as the labor movement and nosey social regulations.25 Unlike Pound,however,Holmes emphasized the importance of plain meaning,not only for reasons of democratic theory,but also for rule-of-law reasons.According to Holmes,our polity could not be a government of laws and not men unless legal standards were exter- nal to the decisionmaker.26 For the same reasons that Holmes fa- vored a "reasonable man"'standard in torts cases,he advocated a "normal speaker"theory of plain meaning.27 The legislature-grounded positivism of Holmes's plain-meaning theory is similar to Justice Keen's opinion in The Case of the Speluncean Explorers.28 Keen makes quite a show of segregating his own moral view-that the defendants should not be punished-from his re- sponsibility as a judge: [A]question that I wish to put to one side is that of deciding whether what these men did was“right''or“wrong,”“wicked'or "good."That is...a question that is irrelevant to the discharge of my office as a judge sworn to apply,not my conceptions of mo- rality,but the law of the land.... Whence arise all the difficulties of the case...The difficul- ties,in whatever tortured form they may present themselves,all trace back to a single source,and that is a failure to distinguish the legal from the moral aspects of this case.To put it bluntly,my brothers do not like the fact that the written law requires the con- viction of these defendants.Neither do I,but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.29 In a representative democracy,the law is the statutes enacted by the 25."I always say that I regard legislation like buying a ticket to the theatre.If you're sure you want to go to the show and have money to pay for it there is an end of the matter.I may think you foolish to want to go,but that has nothing to do with my duty." Letter from Oliver Wendell Holmes,Jr.,to Franklin Ford(Apr.6,1911),quoted in Daniel R.Ernst,The Critical Tradition in the Writing of Americal Legal History,102 YALE LJ.1019, 1053-54(1993)(book review). 26.OLIVER WENDELL HOLMES,JR.,THE COMMON LAW 41,44 (Boston,Little Brown &Co.1881). 27.Holmes,supra note 24,at 417-18. [WJe ask,not what this man meant,but what those words would mean in the mouth of a normal speaker of English,using them in the circumstances in which they were used....[T]he normal speaker of English is merely a special variety,a literary form,so to speak,of our old friend the prudent man.He is external to the particular writer,and a reference to him as the criterion is simply another instance of the externality of the law. Id. 28.Fuller writes that the Justices are "as mythical as the facts"and that,by "seek[ing]to trace out contemporary resemblances where none is intended or contem- plated,the reader should be warned that he is engaged in a frolic of his own."Fuller, supra note 1,at 645 (Postscript). 29.Id.at 632-33 (opinion of Keen,J.). 1993] 1735 HeinOnline--61 Geo.Wash.L.Rev.1735 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW such as the labor movement and nosey social regulations. 25 Unlike Pound, however, Holmes emphasized the importance of plain meaning, not only for reasons of democratic theory, but also for rule-of-law reasons. According to Holmes, our polity could not be a government of laws and not men unless legal standards were external to the decisionmaker 2 6 For the same reasons that Holmes favored a "reasonable man" standard in torts cases, he advocated a "normal speaker" theory of plain meaning. 27 The legislature-grounded positivism of Holmes's plain-meaning theory is similar tojustice Keen's opinion in The Case of the Speluncean Explorers.28 Keen makes quite a show of segregating his own moral view-that the defendants should not be punished-from his responsibility as a judge: [A] question that I wish to put to one side is that of deciding whether what these men did was "right" or "wrong," "wicked" or "good." That is ... a question that is irrelevant to the discharge of my office as ajudge sworn to apply, not my conceptions of morality, but the law of the land.... Whence arise all the difficulties of the case ... ? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth. 29 In a representative democracy, the law is the statutes enacted by the 25. "I always say that I regard legislation like buying a ticket to the theatre. If you're sure you want to go to the show and have money to pay for it there is an end of the matter. I may think you foolish to want to go, but that has nothing to do with my duty." Letter from Oliver Wendell Holmes, Jr., to Franklin Ford (Apr. 6, 1911), quoted in Daniel R. Ernst, The Critical Tradition in the Writing of Americal Legal History, 102 YALE LJ. 1019, 1053-54 (1993) (book review). 26. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 41, 44 (Boston, Little Brown & Co. 1881). 27. Holmes, supra note 24, at 417-18. [W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used .... [Tihe normal speaker of English is merely a special variety, a literary form, so to speak, of our old friend the prudent man. He is external to the particular writer, and a reference to him as the criterion is simply another instance of the externality of the law. Id. 28. Fuller writes that the Justices are "as mythical as the facts" and that, by "seek[ing] to trace out contemporary resemblances where none is intended or contemplated, the reader should be warned that he is engaged in a frolic of his own." Fuller, supra note 1, at 645 (Postscript). 29. Id. at 632-33 (opinion of Keen, J.). 1993] 1735 HeinOnline -- 61 Geo. Wash. L. Rev. 1735 1992-1993
elected representatives in the legislature,which is supreme in law- making."From that principle [of legislative supremacy]flows the obligation of the judiciary to enforce faithfully the written law,and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice."s0 For Keen,as for Holmes,bending the statute to accom- modate the members of the Speluncean Society would be a sacrifice of law's objectivity and hence of both its democratic legitimacy and its usefulness. Although Keen's approach to statutory interpretation was (when Holmes was writing)a progressive approach,it was one that had been undermined by the time Fuller wrote The Case of the Speluncean Explorers.The realists in the 1920s and 1930s had debunked the possibility of objectivity in statutory or any other kind of interpreta- tion,arguing that judges had an enormous lawmaking discretion that was little confined by statutory plain meaning or imaginative reconstruction.31 The realists unsettled the statutory interpretation debate.Although the realists had no use for Lockner-style conserva- tives or natural law,neither were they simple legislative supremacists,as Pound and Holmes were.The realists viewed the sovereign's rules as the results of the judicial and not the legislative process(i.e.,because there is no law until the statute has been inter- preteds2)and also tended to accept the tenets of ethical positiv- ism.33 Moreover,because they believed that judges have great leeway in reading their own policy preferences into statutes,the realists emphasized the importance of instrumental,policy-driven considerations. In The Case of the Speluncean Explorers,Justice Handy reflects the realists'disdain for the "obscuring curtain of legalisms"and"ab- stract theory"s4 and their endorsement of doctrinal solutions that 30.Idat633. 31.See BENJAMIN N.CARDOZO,THE NATURE OF THE JUDICIAL PROCESS 166(1921)("I have grown to see that the [judicial]process in its highest reaches is not discovery but creation .. .")MORRIS R.COHEN,LAW AND THE SOCIAL ORDER:ESSAYS IN LEGAL PHI- LosoPHY 131(1933)("The meaning of a statute...is a juridical creation in the light of social demands.");Charles P.Curtis,A Better Theory of Legal Interpretation,3 VAND.L.REV. 407,407-08(1950)(arguing that"the belief that the interpretation of legal documents consists essentially in a search for the intention of the author"is "orthodox...yet... quite wrong");Jerome Frank,Words and Music:Some Remarks on Statutory Interpretation,47 CoLUM.L.REv.1259,1267-70(1947)("We do not usually speak of [legislative]'delega- tion'to the judiciary,but the fact of such delegation is undeniable,whatever the label."); K.N.Llewellyn,The Constitution as an Institution,34 CoLUM.L.REV.1,31-40 (1934);see also JoHN C.GRAY,THE NATURE AND SOURCES OF THE LAW 124-25(2d ed.1927)(a pre- realist taking the position that"it is only words that the legislature utters;it is for the courts to say what those words mean;that is,it is for them to interpret legislative acts"). 32.Max Radin,Statutory Interpretation,43 HARV.L.REV.863,870-72 (1930). 33.See,e.g.,Karl N.Llewellyn,A Realistic Jurisprudence-The Next Step,30 CoLUM.L. REv.431,431-33(1930).By"ethical positivism,"'I mean the view that law is the com- mand of the sovereign and that the goodness of law(the "ought")is a matter separate from what the law actually requires(the "is").See Owen M.Fiss,The Varieties of Positivism, 90 YALE LJ.1007,1007(1981). 34.Fuller,supra note 1,at 637 (opinion of Handy,J.). 1736 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1736 1992-1993
elected representatives in the legislature, which is supreme in lawmaking. "From that principle [of legislative supremacy] flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice."3 0 For Keen, as for Holmes, bending the statute to accommodate the members of the Speluncean Society would be a sacrifice of law's objectivity and hence of both its democratic legitimacy and its usefulness. Although Keen's approach to statutory interpretation was (when Holmes was writing) a progressive approach, it was one that had been undermined by the time Fuller wrote The Case of the Speluncean Explorers. The realists in the 1920s and 1930s had debunked the possibility of objectivity in statutory or any other kind of interpretation, arguing that judges had an enormous lawmaking discretion that was little confined by statutory plain meaning or imaginative reconstruction.31 The realists unsettled the statutory interpretation debate. Although the realists had no use for Lochner-style conservatives or natural law, neither were they simple legislative supremacists, as Pound and Holmes were. The realists viewed the sovereign's rules as the results of the judicial and not the legislative process (i.e., because there is no law until the statute has been interpreted3 2) and also tended to accept the tenets of ethical positivism.33 Moreover, because they believed that judges have great leeway in reading their own policy preferences into statutes, the realists emphasized the importance of instrumental, policy-driven considerations. In The Case of the Speluncean Explorers, Justice Handy reflects the realists' disdain for the "obscuring curtain of legalisms" and "abstract theory"34 and their endorsement of doctrinal solutions that 30. Id. at 633. 31. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 166 (192 1) ("I have grown to see that the [udiciall process in its highest reaches is not discovery but creation .... "); MORRIS R. COHEN, LAW AND THE SOCIAL ORDER: ESSAYS IN LEGAL PHILOSOPHY 131 (1933) ("The meaning of a statute... is ajuridical creation in the light of social demands."); Charles P. Curtis, A Better Theory of Legal Interpretation, 3 VAND. L. REV. 407, 407-08 (1950) (arguing that "the belief that the interpretation of legal documents consists essentially in a search for the intention of the author" is "orthodox.. . yet... quite wrong");Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1267-70 (1947) ("We do not usually speak of [legislative] 'delegation' to the judiciary, but the fact of such delegation is undeniable, whatever the label."); K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 31-40 (1934); see also JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW 124-25 (2d ed. 1927) (a prerealist taking the position that "it is only words that the legislature utters; it is for the courts to say what those words mean; that is, it is for them to interpret legislative acts"). 32. Max Radin, Statutory Interpretation, 43 HARv. L. REv. 863, 870-72 (1930). 33. See, e.g., Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 COLUM. L. REV. 431, 431-33 (1930). By "ethical positivism," I mean the view that law is the command of the sovereign and that the goodness of law (the "ought") is a matter separate from what the law actually requires (the "is"). See Owen M. Fiss, The Varieties of Positivism, 90 YALE L.J. 1007, 1007 (1981). 34. Fuller, supra note 1, at 637 (opinion of Handy, J.). 1736 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1736 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."85 Handy is Keen's dopple- ganger:Keen emphasizes the stability and externality of law,and Handy emphasizes its mobility and contingency.36 Keen rigidly sep- arates legal interpretation from politics,and Handy responds by making legal interpretation an exercise in practical politics (stressing,for example,the role of popular opinion in his vote to acquit37).Keen is serious and pompous while Handy winks at the reader,deflates the pretensions of his colleagues,and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s,when realism was overtaking the philosophies of Pound and Holmes,a debate between Keen's law/formalism and Handy's poli- tics/functionalism might have been the centerpiece of the case.In- stead,the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s.The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart,young judges and administrators(many of whom were prominent realists)were making policy.Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natu- ral law,positivism found itself intellectually vulnerable.As Ameri- can intellectuals learned about European fascism in the 1930s,the more restive they became with a positivist separation of law and morals.39 Were Nazi decrees"law"in the same way that New Deal statutes were?Were decrees that basically attacked an entire seg- ment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35.1d.at639. 36.I believe theirs is an uneven match,however.I read Keen's opinion as a serious intellectual statement refecting the respect that Holmes still engendered at the Harvard Law School in the 1940s.I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism,see Lon L.Fuller,American Legal Real- ism,82 U.PA.L.REv.429 (1934)(stating that realism "reveals rather conspicuously the defects of youth"),and the Harvard Law School's tendency to consider the realist pro- ject as having presented nothing particularly new or productive,see generally Robert S. Summers,Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law,92 HARV. L.REv.433 (1978)(comparing the views of Fuller with dominant theories of law). 37.Fuller,supra note 1,at 639,643-44 (opinion of Handy,J.). 38.Foster's is the opinion that best resonates with Fuller's own work,see LoN L. FULLER,THE LAW IN QUEST OF ITSELF (1940);FULLER,supra note 1,at 693-743;Lon L. Fuller,American Legal History at Mid-Century,6 J.LEGAL EDUC.457 (1954);Lon L.Fuller, Reason and Fiat in Case Law,59 HARV.L.REV.376 (1946).It is the second opinion in the case(following the Chief Justice's,which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously),and it is the primary focus of the critical responses in the opinions of Justices Tatting,Keen, and Handy. 39.This story is told in EDWARD A.PURCELL,JR.,THE CRISIS OF DEMOCRATIC THE- ORY:SCIENTIFIC NATURALISM THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline--61 Geo.Wash.L.Rev.1737 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."3 5 Handy is Keen's doppleginger: Keen emphasizes the stability and externality of law, and Handy emphasizes its mobility and contingency.3 6 Keen rigidly separates legal interpretation from politics, and Handy responds by making legal interpretation an exercise in practical politics (stressing, for example, the role of popular opinion in his vote to acquit 37). Keen is serious and pompous while Handy winks at the reader, deflates the pretensions of his colleagues, and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s, when realism was overtaking the philosophies of Pound and Holmes, a debate between Keen's law/formalism and Handy's politics/functionalism might have been the centerpiece of the case. Instead, the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s. The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart, young judges and administrators (many of whom were prominent realists) were making policy. Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natural law, positivism found itself intellectually vulnerable. As American intellectuals learned about European fascism in the 1930s, the more restive they became with a positivist separation of law and morals.3 9 Were Nazi decrees "law" in the same way that New Deal statutes were? Were decrees that basically attacked an entire segment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35. Id. at 639. 36. I believe theirs is an uneven match, however. I read Keen's opinion as a serious intellectual statement reflecting the respect that Holmes still engendered at the Harvard Law School in the 1940s. I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism, see Lon L. Fuller, American Legal Realism, 82 U. PA. L. REV. 429 (1934) (stating that realism "reveals rather conspicuously the defects of youth"), and the Harvard Law School's tendency to consider the realist project as having presented nothing particularly new or productive, see generally Robert S. Summers, Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law, 92 HARv. L. REV. 433 (1978) (comparing the views of Fuller with dominant theories of law). 37. Fuller, supra note 1, at 639, 643-44 (opinion of Handy, J.). 38. Foster's is the opinion that best resonates with Fuller's own work, see LON L. FULLER, THE LAW IN QUEST OF ITSELF (1940); FULLER, supra note 1, at 693-743; Lon L. Fuller, American Legal Histoy at Mid-Century, 6J. LEGAL EDUC. 457 (1954); Lon L. Fuller, Reason and Fiat in Case Law, 59 HARv. L. REV. 376 (1946). It is the second opinion in the case (following the ChiefJustice's, which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously), and it is the primary focus of the critical responses in the opinions ofJustices Tatting, Keen, and Handy. 39. This story is told in EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM & THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline -- 61 Geo. Wash. L. Rev. 1737 1992-1993