A Fullerian Challenge to Legal Intentionalism? *

Legal intentionalism, the theory that the legal meaning of the statute book is a function of the legislative intentions of its authors, is often contrasted with legal literalism, which holds that a provision’s legal meaning is a function of its literal meaning. Each theory purports to explain the practice of statutory interpretation. Legal literalism’s claim to do so was famously disputed by Lon Fuller, who argued that literal meanings can imply outcomes which, intuitively, are legally incorrect (Fuller 1958). Scott Soames has recently suggested that Fuller’s counter-examples also refute primitive versions of legal intentionalism (Soames 2009). I argue, first, that “Fuller-proofing” legal intentionalism undercuts the theory’s explanatory ambition; second, that Fuller’s examples in fact pose no challenge to legal intentionalists. On Soames’ account, there are three kinds of legal cases: those that are easy, those that are merely literally hard, and those that are genuinely hard (ibid., 403). Literally hard cases are ones in which the legally correct outcome is clear, but at odds with the provision’s literal meaning. Genuinely hard cases are those in which a provision’s “overall linguistic content” leaves the legal question undetermined. In such cases, “everything asserted and conveyed in adopting the relevant legal texts” (ibid., 409) is insufficient to resolve the case. In his celebrated exchange with H.L.A. Hart, Fuller stipulated a hypothetical enactment, “It shall be a misdemeanor to sleep in any railway