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 1992-1993of 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 TheJustices' 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 ofJustices 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.). 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 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 Interpretation, 101 YALE L.J. 1607, 1610 (1992). 1732 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1732 1992-1993