Legal fiction and fictional legality
The facts of the hypothetical case are straightforward. Five explorers venture into a cave to explore its hidden contents. Once inside, they become trapped. With no means of escape, the explorers learn via radio contact they are likely to be rescued, but only long after their supply of food was depleted.
Faced with this fate, the explorers decided among themselves that one of their number should be sacrificed to function as repast, so that the others might live. Once the unlucky explorer was dispatched, the others were able to sustain themselves until rescue arrived – at which time the four remaining speluncean explorers were charged with murder.
In lower court, the explorers were found guilty of murder. Upon appeal, the case was brought before the Supreme Court of the fictional nation of Newgarth. Since fanciful Newgarth’s Supreme Court is not dissimilar in composition to that which currently our highest U.S. bench, examining its activities may prove prescient.
Newgarth’s statute relevant to the speluncean explorers reads: “Whoever shall willfully take the life of another shall be punished by death.” While legislation can create powerful and life-changing rules, this particular statute is blunt and devoid of nuance or exception.
Unlike cases heard in a judicial context, commands promulgated by the legislative branch seek to shape the behavior of the masses to conform with universalizable principles. The creation of legislatively adopted rules of general applicability hinges on a process in which the odds of success are small. Legislation that does finally emerge from the process’ many opportunities for failure tends to reflect the varied input of hundreds of active interests.
Here’s the question: Should the residue of the efforts of those varied interests to create the law be considered in subsequent efforts to interpret and apply the law? When tasked with divining the purpose of legislation in the course of rendering a legal judgment, courts have changed their approach to such residue over time.
It was once the case that courts held to an economical practice of consulting a defined corpus of authority – namely, the text of the statute and limited contextual clues. In part, courts did so in the name of predictability and with a sense of institutional restraint. Still, there were costs associated with such a penchant for reservation.
By refusing to investigate in a less-inhibited manner the purpose of legislation, courts sometimes were compelled to offer opinions resting upon words devoid of their generalized context and, thus, appearing as simulacra. Decisions borne of this approach have been subsequently painted as synthetic results designed to advance a staid – right-wing – normative vision.
In Fuller’s tale, such are the decisions of Chief Justice Truepenny and Justice Keen. The chief justice affirms the explorers’ conviction because he interprets the statute to be unambiguous in what it requires. Still, the chief justice is mindful of a non-legal imperative to articulate a request for clemency to the chief executive of Newgarth. Justice Keen gives no such quarter. Keen on circumscribing the role of the judiciary, Justice Keen both affirms the conviction AND remonstrates the chief justice on separation of power grounds for using his official position to influence the application of the law.
There are two votes for death.
In response to this mostly unforgiving approach, the 20th Century legal academy presented a new method of accounting for, if not satisfactorily marshaling, the assortment of discrete “truths” which underpin the creation story of any statute. The new method sought to accomplish its goal by eschewing literal readings when a literal reading was believed to confound the statute’s actual “purpose,” as discovered by a court.
In the story, fictional Justices Foster and Handy wrote decisions embodying this approach, though on comically divergent grounds. Justice Foster found a result in which the explorers survived, only to be killed later, absurd. So, he created his own legal rule from the spirit of the statute and it provided an exception narrowly tailored to the explorers’ scenario. Seeming to ignore the law totally, Justice Handy reasoned that public opinion and common sense demanded that the explorers be exonerated.
There are two votes for life.
Today, the legacy of the interpretive approach exemplified by Foster and Handy has been a corpus of statutory construction dizzying in the constructive gymnastics that it is willing to tolerate. At its worst, courts have rendered the process of opinion writing a matter of blithe and perfunctory convention, by seemingly doing away with the need for legal analysis. Instead, they favor divination of goals at a “higher level of generality.”
Though the results are sometimes politically or philosophically satisfying, the consequences of naive and extra-legal constructionism are costly.
The ranks of adherents to such an approach have swelled. As a result, the legitimacy of the judiciary as an impartial, or at least something less than overtly political, decision-making body has suffered. The problem is no longer harsh legal formalism, but rather, the harsh subjective positivism of legal informality.
Subjective positivism brings any inquiry regarding meaning no closer to capturing the “purpose” of legislators in crafting and compromising their way through the various “vetogates” than does dogmatic formalism. Because both attempt to do too much, both fail.
When a court creates law, it simultaneously distorts law. Nonetheless, critics must maintain a certain sympathy for the difficulty of the project courts are asked to complete. To the extent that the “original intent” of a statute’s language is hopelessly lost, courts are left with few satisfactory alternatives. They are seemingly trapped in a binary.
Jurists must choose whether it is preferable to aver to a fiction of text, standing on its own, or to shoulder the burden of omniscience and seek to account for the practically unknowable completeness of a statute’s history. Both approaches, to the extent that they purport to channel the “purpose” of the legislature, can be confounded by a horrendous and even more basic obstacle – that though a legislature speaks, and means what it says, it sometimes does so not knowing what it means!
A hilarious, awful and mind-blowing example of this is the recent passage of major national legislation of which a prominent leader said that it must pass without close inspection since only afterwards could legislators and others find out what it means. No wonder life can be hard for courts, independent of their own self-generated and self-defeating proclivities.
Returning to the Fuller scenario, this is the choice that confronted and confounded the final and dispositive Newgarth Supreme Court vote, belonging to Justice Tatting. The justice authors an opinion sharply critical of the purposive approach taken by Justice Foster. Yet, faced with competing legal rationales and personally mixed emotions, Tatting opts to cast no vote at all and to withdraw from the case.
Two votes for death, two votes for life and one vote for the impossibility of the situation.
Since a tie is not sufficient to overturn the lower court’s conviction, Justice Tatting’s decision dooms the explorers.
Left with the sad death of the imaginary explorers, one is stuck with a few prospective thoughts. First, that absurd results in the name of consistency can, and do, lead to unjust consequences. Second, that the flexibility necessary to overcome formalistic textualism requires such violence to reason that it requires intellectual laxity, or worse, intellectual dishonesty. And third, that not acting at all, as Justice Tatting did, provides no escape from the dire consequences of reality.
Fundamentally, what is necessary to avoid these problems is a reevaluation of the sort of clarity the judiciary is able to provide when tasked with interpreting statute. We must face the fact, if the best we can hope for is the limited application of isolated and descriptive facts, then it is there that the basis of the new interpretive goal should lie. Nothing less than the foundation of jurisprudence is at stake.
Unfortunately, today, a humble and well-circumscribed judiciary which tailors the scope of its rulings to the limits of its understanding may be beyond the scope of wild imagination.