Absurd, unjust, and pointless intended meanings
There is no doubt that, on occasions, even the best rule-maker will promulgate a canonical legal text, the intended meaning of which will be absurd, unjust, or pointless. This is not an embarrassment for our position on interpretation of canonical legal texts - far from it.
Only if one eliminates all vestiges of formalism within law - which we would equate with eliminating law itself - and reduces the meaning of all humanly posited legal rules to the injunction, ‘Do the right thing', can one escape the possibility of laws that properly interpreted are absurd, unjust, or pointless. And even ‘do the right thing' will, given human fallibility, often lead to doing the wrong thing. If rules are ‘interpreted' as ‘Do the right thing', settlement of what to do can never occur. Doing ‘the right thing' will inevitably lead to doing the wrong thing because of the moral costs that lack of settlement produces and that we adumbrated in Chapter 1. On the other hand, settlement inevitably will result in some moral errors - some cases of absurd, unjust, or pointless rules. Our view is no more vulnerable to these problems than any view that sees law as settling moral controversies - that is, any view that characterizes law as positivistic, at least in part.Indeed, on our view, proper interpretation - recovery of the rulemaker's intended meaning of his text - will lead to absurd, unjust, or pointless results less often than would certain other recommended approaches to interpreting legal texts, especially strict textualism. (We take up this point in the following chapter.) For the fact that ascribing a particular meaning to a legal text would make that text absurd, unjust, or pointless is strong evidence that the rule-maker did not intend that meaning.
There are numerous real-life examples of instances where what at first looks like an absurd or unjust result was clearly not the intended meaning of the rule-maker.
In Cernauskas v. Fletcher,1 the case in which a party cited a recently enacted law that by its terms repealed ‘all laws previously enacted' to argue that the law relied on by the other party was repealed, it was clear to the interpreting court that the Arkansas legislature's intended meaning was not the repeal of the entire corpus juris, an absurd and surely unjust result. And it is abundantly clear that, despite its punctuation, the Seventeenth Amendment was intended to apply indefinitely rather than for only six years.[29] [30] And it is arguable that, in the Holy Trinity case,[31] the Supreme Court reached the right result in finding that Congress's intended meaning in proscribing bringing foreign laborers into the United States did not encompass religious ministers. (We are assuming for purposes of argument, and in line with the Court's majority, that excluding ministers would have been seen at the time to be a policy error.)Nonetheless, at times even the best of rule-makers will make an error in terms of assessing the present facts, forecasting future facts, or weighing moral considerations. Take another frequently mentioned case, United States v. Locke.[32] In that case a litigant filed a claim on December 31 under a statute that required such claims to be filed ‘before December 31'. The litigant argued that Congress undoubtedly meant ‘on or before December 31’, as there was no conceivable reason for it to have chosen December 30 rather than December 31 as the last day to file. Nonetheless, the Court rejected the litigant’s argument and held the claim not timely filed. The Court may have erred in terms of Congress’s intended meaning, as the losing party contended. On the other hand, Congress’s intended meaning may have been to require filings by December 30, perhaps overlooking the fact that December has 31 days, although, if confronted with this issue, Congress might have admitted that it was pointless or wrong for it to have so intended.
Or, take our hypothetical ‘no wild animals’ rule from the preceding chapter. Perhaps the rule-maker did not realize that red pandas were completely harmless; had he realized that, he would have exempted them from his rule. Nonetheless, he might say that, although he intended to include red pandas within his rule, he was mistaken to have done so. That is, his ‘no wild animals’ rule, which was intended to include red pandas, is inferior to a ‘no wild animals except red pandas’ rule. The rule-maker erred by intending to include red pandas. This type of error - the infelicitous but intended rule - is different from a felicitous intended rule that has infelicitous applications; for, as we have stressed throughout, almost any rule will have some infelicitous applications or omissions that cannot be eliminated without undermining the value of the rule qua rule.
Infelicities - absurd, unjust, or pointless rules - are ineliminable, given human fallibility. Equating the proper interpretation of canonical legal texts with the intended meaning of the authors of those texts - the rule-makers - surely leaves the door open to interpretations that result in absurdity and injustice. Ultimately, however, as we have consistently argued, given the settlement function of canonical legal texts, the possibility of such substantive infelicities is not a point against our approach to interpretation but a point in its favor.
3.2