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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
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
Justice Foster
Decision
Affirms convictions
but recommends
clemency
Sets aside
convictions
Justice
Tatting
Justice Keen
Justice
Handy
Affirms convictions
Aware that 90% of the public want the men to face a lesser
punishment or be released
Sets aside
convictions
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]
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]
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.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
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]