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The Case of the Speluncean Explorers

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Fuller's hypothetical case involves a group ofcave explorers who are trapped following a cave-in and face the
risk of death from starvation. The case examines how the rescued survivors, who kill and eat one person in
order to survive, should be treated by the law.

"The Case of the Speluncean Explorers" is an article by legal philosopher Lon L. Fuller first
published in the Harvard Law Review in 1949. Largely taking the form of a fictional judgment, it
presents a legal philosophy puzzle to the reader and five possible solutions in the form of judicial
opinions that are attributed to judges sitting on the fictional "Supreme Court of Newgarth" in the year
4300.[a]
The case involves five explorers who are caved in following a landslide. They learn via intermittent
radio contact that, without food, they are likely to starve to death before they can be rescued. They
decide that someone should be killed and eaten so that the others may survive. They decide who
should be killed by throwing a pair of dice. After the four survivors are rescued, they are charged and
found guilty of the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails,
they face a mandatory death sentence. Although the wording of the statute is clear and
unambiguous, there is intense public pressure for the men to avoid facing the death penalty.
The article offers five possible judicial responses. Each differs in its reasoning and on whether the
survivors should be found guilty of breaching the law. Two judges affirm the convictions,
emphasising the importance of the separation of powers and literal approach to statutory
interpretation. Two other judges overturn the convictions; one focusses on "common sense" and the
popular will while the other uses arguments drawn from the natural law tradition, emphasizing
the purposive approach. A fifth judge, who is unable to reach a conclusion, recuses himself. As the
Court's decision is a tie, the original convictions are upheld and the men are sentenced to death.
Fuller's account has been described as "a classic in jurisprudence"[2] and "a microcosm of [the 20th]
century's debates" in legal philosophy.[3] It allows for contrasts to be drawn between different legal
philosophies, with the main two being natural law and legal positivism. In the 50 years following the
article's publication, a further 25 hypothetical judgments were written by various authors whose
perspectives include natural law theory, consequentialism, plain meaning positivism or textualism,
purposivism, historical contextualism, realism, pragmatism, critical legal studies, feminism, critical
race theory, process theory and minimalism.[4]
Contents
[hide]

1Synopsis
o

1.1Facts

1.2Opinion of Chief Justice Truepenny

1.3Opinion of Justice Foster

1.4Opinion of Justice Tatting

1.5Opinion of Justice Keen

1.6Opinion of Justice Handy

2Similar real cases

3See also

4References
o

4.1Notes

4.2Footnotes

4.3Bibliography

5Further reading

6External links

Synopsis[edit]
Facts[edit]
The facts of the case are recounted in the first judicial opinion, which is given by Chief Justice
Truepenny.[5]
Five cave explorers become trapped inside a cave following a landslide. They have limited food
supplies and no sources of nutrition inside the cave. Above ground, substantial resources are spent
to rescue them, with 10 workmen killed in subsequent landslides near the blocked entrance. Radio
contact is eventually established with the cavers on the 20th day of the cave-in, and the cavers learn
that another 10 days would be required in order to free them. They then consult with medical
experts, who inform them that they are unlikely to survive to the rescue given the likelihood of
starvation.

In "the Case of the Speluncean Explorers", the person to be eaten was chosen by throwing a pair of dice. This
method had also been suggested for choosing the victim in the similar real-life case of R v Dudley and
Stephens.

One of the cavers, Roger Whetmore, then asks on the cavers' behalf if the cavers could survive 10
days longer "if they consumed the flesh of one of their number". The medical experts reluctantly
confirm this to be the case. Whetmore then asks if they should draw lots to select a person to be
killed and eaten. No one outside the cave is willing to answer this question. Radio contact is
subsequently lost.
Once the cave-in is cleared, it is discovered that only four cavers have survived; Roger Whetmore
had been killed and eaten by the others. The survivors state that Whetmore had originally come up
with the ideas of cannibalism and choosing the victim through random chance, offering a pair
of dice in his possession.
Before the dice are cast, Whetmore allegedly expresses a wish to withdraw from the arrangement,
preferring to wait another week "before embracing an expedient so frightful and odious". The others
refuse to accept his change of mind, and cast the dice on his behalf. The survivors claim that
Whetmore conceded that the dice were thrown fairly. He is subsequently killed and eaten.
Following their rescue and recovery, the survivors are charged with the murder of Whetmore. The
relevant statute provides that "Whoever shall willfully take the life of another shall be punished by
death", offering no exceptions which would be relevant to the case.[6] The jury seek a special verdict,
so that they can make limited findings of fact without having to return a verdict on whether it
constitutes murder. The cavers are ultimately convicted of murder.
The mandatory sentence for murder in Newgarth is death by hanging. Both the trial judge and
members of the jury petition the Chief Executive to commute the sentence of the surviving
spelunkers from the death penalty to six months' imprisonment. The Chief Executive refuses to act
while the Supreme Court of Newgarth considers the appeal.
Summary of Fuller's five judicial opinions

Judge

Key points

Chief Justice
Truepenny

Statute is unambiguous and must be applied by judiciary


notwithstanding personal views

Clemency is a matter for the executive, not the judiciary

Court should joint petition to Chief Executive for clemency

Justice Foster

Defendants were in a "state of nature" so Newgarth's


normal laws did not apply to them; the laws of nature would
allow them to agree to sacrifice one's life to save the other four

If the laws of Newgarth do apply, then a purposive


approach must be taken to the statute. Judges can find an

Decision

Affirms convictions
but recommends
clemency

Sets aside
convictions

exception to the law by implication, as the Courts had earlier


done with self-defence.

Criticises Foster J's approach

Justice
Tatting

The natural law under the posited "state of nature"


prioritises freedom of contract above the right to life
Purposive approach to statutory interpretation is
difficult when there are multiple purposes (here, retribution
and rehabilitation)

Cannot decide case due to competing legal rationales and


emotions

Criticises Chief Justice's proposed appeal to Executive for


clemency given need to respect separation of powers; should
only make appeal in capacity as private citizens

Justice Keen

Justice
Handy

Principal purpose of the criminal law deterrence


would not be served by convicting the defendants.

Withdraws from case


and makes no
decision

Affirms convictions

Moral considerations are irrelevant in applying the statute

Court should take account of public opinion and "common


sense"

Aware that 90% of the public want the men to face a lesser
punishment or be released

Has heard rumours that the Chief Executive will not


commute the sentence despite strong public opinion

Sets aside
convictions

Opinion of Chief Justice Truepenny[edit]


The first opinion is largely expository; it is used to recount the facts of the case. The Chief Justice
states that the statute is unambiguous, with no applicable legal defences, so it must be applied by
the court.[7] He adds that granting mercy is a decision for the executive branch of government to
make, rather than the judiciary.[8] However, the Chief Justice suggests that the judges of the court
should add their names to the petition of the trial judge and jury requesting the Chief Executive to
show mercy to the defendants. This would allow justice to be achieved "without impairing either the
letter or spirit of our statutes and without offering any encouragement for the disregard of law". [8]

Opinion of Justice Foster[edit]


I believe something more is on trial in this case than the fate of these unfortunate explorers; that is
the law of our Commonwealth. If this Court declares that under our law these men have committed a
crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to
the individuals involved in this petition of error. For us to assert that the law we uphold and expound

compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to
a dispensation resting within the personal whim of the Executive, seems to me to amount to an
admission that the law of this Commonwealth no longer pretends to incorporate justice.
Justice Foster[8]
The second opinion takes a different approach to the Chief Justice's. In determining that the
convictions should be overturned, Justice Foster makes two main points. Firstly, the defendants
were in a "state of nature" at the time of the killing, so the laws of nature applied to them. The laws of
nature allowed to agree to sacrifice one person for the survival of the rest. [8] Secondly, assuming the
laws of Newgarth did apply, a functional approach should be used in applying the statute. As its main
purpose is deterrence, the judge concluded that, just as with a case of self-defence, the purpose of
the statute would not be served by upholding the convictions.[9]
The judge counters potential objections of judicial activism by suggesting that although judges must
obey the will of legislators, they must do so intelligently. He draws analogies to servants who need to
"read between the lines" of their masters' instructions; strict literal compliance may not always be the
actual intention.[10] Thus the "correction of obvious legislative errors or oversights is not to supplant
the legislative will, but to make that will effective."[11]

Opinion of Justice Tatting[edit]


In the third opinion, Justice Tatting is emotionally "torn between sympathy for [the defendants] and a
feeling of abhorrence and disgust at the monstrous act they committed". [11]He ultimately finds himself
unable to decide the case.
Justice Tatting disagrees strongly with Justice Foster's rationales in overturning the convictions. He
criticizes the "state of nature" concept and is not satisfied with Justice Foster's formulation placing
the law of contract above the law against murder.[12] He also states that the functional approach does
not resolve the case as there are multiple purposes to the criminal law's provisions, including
retribution and rehabilitation.[13] He also distinguishes the self-defence exception that were implied by
past judges on the basis that it is not a "wilful" killing, so it does not contradict the wording of the
statute.[14] He finds that the self-defence exception could not be applied to the present case as it
would raise "a quagmire of hidden difficulties".[15]
The judge cites the case of Commonwealth v Valjean,[b] in which starvation was held not to justify the
theft of a loaf of bread, let alone homicide. These combined objections lead Justice Tatting to reject
Justice Foster's reasoning as "intellectually unsound and approaching mere rationalization." [17]
Despite rejecting Justice Foster's reasoning, Justice Tatting cannot bring himself to reach the
alternative view, that the defendants' convictions should be upheld. He states that "almost every
consideration that bears on the decision of the case is counterbalanced by an opposing
consideration leading in the opposite direction."[17] Concluding with a criticism of the prosecutor for
deciding to bring the prosecution in the first place, the judge makes the "unprecedented" decision of
withdrawing from the case.[17]

Opinion of Justice Keen[edit]


The fourth opinion begins by excluding executive clemency and the morality of the defendants'
actions as relevant factors to the court's deliberations.[18] Rather, the question before the court is
purely one of applying the legislation of Newgarth, and determining whether the defendants wilfully
took the life of Whetmore. He criticizes the other judges for failing to distinguish the legal from the
moral aspects of the case.[18] While he shares their preference that the defendants be spared from
death, he respects the obligations of his office to put his "personal predilections" of what constitutes
justice out of mind when interpreting and applying the law.[18]

Justice Keen objects vehemently to Justice Foster's purposive approach allowing the plain words of
the law to be ignored.[19][20] He emphasizes that laws may have many possible purposes, with
difficulties arising in divining the actual "purpose" of a piece of legislation. [21]
Justice Keen recalls Newgarth's civil war, caused by judicial activism, which established the
supremacy of the legislature over the judiciary.[21] He concludes by criticizing the courts' creation of
the self-defence excuse, stating that waiting for the legislature to enact such revisions would have
led to a stronger legal system.[19]

Opinion of Justice Handy[edit]


In contrast to the other judges, Justice Handy prefers to use a "pragmatic, common-sense
approach", rather than abstract legal theories, to resolve the case. [22] He criticizes his colleagues'
"obscuring curtain of legalisms" when the case simply requires the application of "practical wisdom"
of "human realities".[19] He emphasizes the need for the courts to maintain public confidence, which
requires them to follow the 90% majority in favour of applying a token punishment or releasing the
defendants altogether.[23][22] He is prepared to use Justice Foster's purposive approach doctrine as the
legal rationale.[23][22]
Justice Handy notes that apart from the ambivalent Justice Tatting, the other judges share the
majority public opinion. The judges voting to uphold the convictions simply differ from Justices Foster
and Handy on whose role it is to spare the defendants from the death penalty.[24]

Similar real cases[edit]

R v Dudley and Stephens, an actual English criminal case from 1884 involving cannibalism
at sea

The William Brown was a ship whose sinking led to several passengers being forced out of
an overcrowded lifeboat to save the remaining passengers. It led to the case ofUnited States v.
Holmes, in which crewman Alexander Holmes was charged with murder and convicted
of manslaughter for his actions.

See also[edit]

Plank of Carneades

References[edit]
Notes[edit]
1.

Jump up^ Fuller addressed his decision to date his scenario in the fifth millennium in the
article's postscript, writing that "the reader puzzled by the choice of date may wish to be reminded that
the centuries which separate us from the year 4300 are roughly equal to those that have passed since
the Age of Pericles [i.e. the fifth century]".[1]

2.

Jump up^ This reference invokes Jean Valjean, the protagonist in Victor Hugo's 1862
novel Les Misrables. In the novel, Valjean is imprisoned after stealing bread to feed his sister's
starving children.[16]

Footnotes[edit]
1.

Jump up^ Fuller 1949, p. 645.

2.

Jump up^ D'Amato 1980, p. 467.

3.

Jump up^ Eskridge Jr. 1993, p. 467.

4.

Jump up^ Roederer 2003, p. 388.

5.

Jump up^ Fuller 1949, p. 1851.

6.

Jump up^ Fuller 1949, p. 1853.

7.

Jump up^ Fuller 1949, p. 619.

8.

^ Jump up to:a b c d Fuller 1949, p. 620.

9.

Jump up^ Fuller 1949, p. 624.

10.

Jump up^ Fuller 1949, p. 625.

11.

^ Jump up to:a b Fuller 1949, p. 626.

12.

Jump up^ Fuller 1949, p. 627628.

13.

Jump up^ Fuller 1949, p. 628629.

14.

Jump up^ Fuller 1949, p. 629.

15.

Jump up^ Fuller 1949, p. 630.

16.

Jump up^ Caron & Gely 2004, p. 7071.

17.

^ Jump up to:a b c Fuller 1949, p. 631.

18.

^ Jump up to:a b c Fuller 1949, p. 632.

19.

^ Jump up to:a b c Fuller 1949, p. 637.

20.

Jump up^ Caron & Gely 2004, p. 67.

21.

^ Jump up to:a b Fuller 1949, p. 633.

22.

^ Jump up to:a b c Caron & Gely 2004, p. 69.

23.

^ Jump up to:a b Fuller 1949, p. 640.

24.

Jump up^ Fuller 1949, p. 642.

Bibliography[edit]
Cahn, Naomi; Calmore, John; Coombs, Mary; Greene, Dwight; Miller, Geoffrey; Paul, Jeremy; Stein, Laura
(1993). "The Case of the Speluncean Explorers: Contemporary Proceedings".George Washington Law
Review 61: 17541811.
Caron, Paul L.; Gely, Rafael (2004). "Affirmative Refraction: Grutter v. Bollinger Through the Lens of the Case
of the Speluncean Explorers". Constitutional Commentary 21: 63106.

D'Amato, Anthony (1980). "The Speluncean Explorers Further Proceedings". Stanford Law Review 32: 467
485. doi:10.2307/1228393. JSTOR 1228393.
Easterbrook, Frank H. (1999). "The Case of the Speluncean Explorers: Revisited". Harvard Law Review 112:
18341917.
Eskridge Jr., William N. (1993). "Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation
in a Nutshell". Washington Law Review 61: 17311753.
Fuller, Lon L. (1949). "The Case of the Speluncean Explorers". Harvard Law Review (The Harvard Law Review
Association) 62 (4): 616645. doi:10.2307/1336025. JSTOR 1336025.
Roederer, Christopher (2003). "Negotiating the Jurisprudential Terrain: A Model Theoretic Approach to Legal
Theory". Seattle University Law Review 27 (385): 385451. Retrieved15 January 2015.

Further reading[edit]

Suber, Peter (1998). The Case of the Speluncean Explorers: Nine New Opinions. London:
Routledge.

Butler, Paul; Dershowitz, Alan; Easterbrook, Frank; Kozinski, Alex; Sunstein, Cass; West,
Robin. "The Case of the Speluncean Explorers Revisited". Harvard Law Review 112: 1876
1923. doi:10.2307/1342398. JSTOR 1342398.

External links[edit]

An electronic reprint of Fuller's original article.

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