Newgarth Revisited: Using Fuller’s Framework to Examine Two Modern Theories of Statutory Interpretation

Published in 1949, Lon L. Fuller’s The Case of the Speluncean Explorers is widely renowned as a “classic in jurisprudence” for its artful presentation of different legal philosophies, such as natural law and positivist law.1 In this paper, I revisit Professor Fuller’s Newgarth in order to examine a similar relationship between two popular theories of constitutional and statutory interpretation: originalism and pragmatism.2 Drawing from Professor Fuller’s framework, I use fictional opinions to highlight the ways in which originalism and pragmatism can both be used to fall on either side of the opinion. I also place these opinions within a wider fictional framework in order to draw attention to current issues within the modern understanding of the purpose of these interpretive theories. My purpose in presenting this is to highlight the ways in which theories of interpretation, unlike legal philosophies, rely heavily on the discretion of the user, and why this is not necessarily a bad thing. Overall, I mean to demonstrate that although these theories cannot be said to meaningfully restrain judges, this does not warrant a dismissal of the theories as a whole. Rather, it signals the need for a restructuring of our understanding of the roles of academia and judgment within judicial opinions.