The Theory and Practice of Statutory Interpretation by Frank B. Cross

Author:Frank B. Cross
Language: eng
Format: epub
Publisher: Stanford University Press
Published: 2011-07-27T00:00:00+00:00

The Absurdity Doctrine

By its nature, pragmatism seldom fits within the dogma of legal doctrines. Pragmatism is fundamentally a circumstantial, rather than rigidly doctrinal, approach to adjudicative decision making. Pragmatic considerations are occasionally captured in doctrinal authority, though, and the most obvious of these in the context of statutory interpretation is known as the “absurdity” doctrine of statutory interpretation. This principle simply states that laws will not be interpreted in a fashion so as to yield absurd results, even when the text superficially seems to command such an interpretation. Lon Fuller observed that it is plainly apparent that when the master tells the housemaid “to ‘drop everything and come running’ he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel.”21 In the statutory context, this would mean that a statute making it a crime to “spill blood on the street” should not be applied to a “physician doing emergency surgery at the scene of an accident.” 22 Most findings of absurdity are not so dramatic, and its application is usually an assessment of the “reasonableness, rationality, and common sense” of an interpretation.23

Significantly, advocates of virtually all theories of statutory interpretation accept the validity of the absurdity doctrine. The doctrine is consistent with the theory of delegation of judgment to the courts. Absurd results may well only reflect the unforeseen circumstances that result in the background delegation. The absurdity doctrine is most comfortably consistent with pragmatism. Intentionalists have embraced the doctrine on the grounds that the legislature would surely not intend to create absurd results. The very core of formalistic textualist theories, by contrast, seemingly rejects the judicial discretion implicit in the absurdity doctrine, though textualists such as Justice Scalia are untroubled by the doctrine.

The absurdity doctrine turns some of the arguments for textualism on their heads. For example, textualists have suggested that the legislative process might be improved if judges limited their consideration to text. Conversely, the judicial process might be improved if judges could less easily evade responsibility by deference to text or other legislative materials. W. David Slawson suggests that judges “are increasingly reluctant to accept responsibility for making difficult policy decisions or to offer reasoned justifications” and therefore may rely on legislative history to “deflect responsibility onto past Congresses.”24 By using tools like legislative history or text, judges can generally save time and effort, as well as evading responsibility. The absurdity doctrine, though, is contrary to this concern; it shows a judiciary assuming responsibility for righting a bad statute. It is the essence of pragmatic judging and the real question is how constrained the theory should be.

While textualists have universally not rejected the absurdity doctrine, they necessarily have some unease with its principles, and John Manning has directly criticized the approach. The legal process school’s view of interpretation sought to apply statutes from the perspective of a “reasonable policymaker.” It questioned how a reasonable policymaker would apply given language. A prominent textualist like John Manning rejects

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