The Case of the Speluncean Explorers
– A Study
PROLOGUE
Professor
L. Fuller was adept in explaining law through allegory. It is said that there
is no better way to study law than to read cases. There is no better way to
study legal philosophy than to see how various theories clash with each other.
The Professor achieved all of these objectives in the brilliantly imagined case
that he invented – The Case of the Speluncean Explorers.
Professor
Lon L. Fuller's Case of the Speluncean Explorers is said to be the
greatest fictitious legal case of all time. That is saying a lot, for it has
some stiff competition. While its competitors may outdo it in courtroom drama,
character development, or investigative suspense, none matches it in legal
depth or dialectical agility. It doesn't show what makes some lawyer's caseload
interesting, but what makes law itself interesting.[1] His story of Rex is another interesting
allegory[2] which speaks about the characteristics
which a law shouldn’t have. The following statement by Fuller in his book
Morality of Law outlines his philosophy:
The only formula that might be called a
definition of law offered in these writings is
by now thoroughly familiar: law is the enterprise of subjecting human
conduct to the governance of rules. Unlike most modern theories of law,
this view treats law as an activity and regards a legal system as the
product of a sustained purposive effort.[3]
ABOUT THE AUTHOR
Fuller
(1902-78) is a representative of the school of legal thought known as
‘purposive jurisprudence’[4]. This is a kind of jurisprudence which
sees the activities of the courts as reflecting the very purposes of the law,
which turn upon the subjecting of the human conduct to the control of ‘rules’.
Law and morality are intertwined and, according to Fuller a law which is
completely divorced from morality, ceases to be law.
Fuller
was an American, a Texan to be precise. He served as professor of Law at Harvard University for many years, and is noted
in American law for his contributions to the law of
contracts. His debate with H.L.A. Hart
in the Harvard Law Review (Vol. 71) was of significant
importance for framing the modern conflict between legal positivism and natural
law. Fuller was an important influence on Ronald
Dworkin, who was one of his students at Harvard Law.[5] He is regarded as one of the greatest
legal philosophers of the 20th century. He had a profound effect on
American jurisprudence.
Fuller’s
The Morality of Law, first published in 1964, is his most famous and, perhaps,
his most controversial work. At a time when legal positivism still dominated
jurisprudence, the suggestion that law and morality were not only connected but
connected intimately was such an affront to scientific thinking that it brought
repeated charges of “axe grinding” from one reviewer.[6]
CASE OF SPELUNCEAN EXPLORERS
This
famous fictitious legal case was created by Lon L. Fuller in his article,
"The Case of the Speluncean Explorers," Harvard Law Review,
vol. 62, no. 4 (1949) pp. 616-645. The case tells the story of a group of
spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave
by a landslide. As they approach the point of starvation, they make radio
contact with the rescue team. Engineers on the team estimate that the rescue
will take another 10 days. The men describe their physical condition to
physicians at the rescue camp and ask whether they can survive another 10 days
without food. The physicians think this very unlikely. Then the spelunkers ask whether
they could survive another 10 days if they killed and ate a member of their
party. The physicians reluctantly answer that they would. Finally, the men ask
whether they ought to hold a lottery to determine whom to kill and eat. No one
at the rescue camp is willing to answer this question. The men turn off their
radio, and some time later hold a lottery, kill the loser, and eat him. When
they are rescued, they are prosecuted for murder, which in Newgarth carries a
mandatory death penalty. Fuller wrote five Supreme Court opinions on the case
which explore the facts from the perspectives of profoundly different legal
principles.
The
result was a focused and concrete illustration of the range of Anglo-American
legal philosophy at mid-century- THE SPELUNCEAN EXPLORERS CASE.
It
is generally believed that Fuller’s case is based on two real cases, namely
Ø
U.S. v. Holmes (1842) and
Ø
Regina v. Dudley &
Stephens (1884).
These
two U.S cases can be called as life boat cases in which disaster at sea was
followed by homicide and prosecution. In the Holmes case, the homicides were to
lighten a badly overloaded lifeboat. In Dudley & Stephens, the homicide was
to create a meal for the starving survivors.[7]
One
can easily see the uncanny similarities between the facts of these two cases
and that of Fuller. Fuller borrowed from these cases for his own: extremities
of desperation, lotteries, cannibalism, popular sympathy for the defendants,
politically difficult prosecutions, defenses of stark necessity, jury
convictions and the possibility of pardons. Even small details, like the jury's
special verdict in Dudley & Stephens, comes up again in Fuller's case. But
an inventory of these borrowed elements only brings into relief the extent of
Fuller's creativity. He moved the accident from the high seas to a cave within
Newgarth.
In this paper, the parts have been sub-divided as follows:
1. Allegory
2. Opinion of Chief Justice Truepenny.
3. Opinion of Justice Foster.
4. Opinion of Justice Tatting.
5. Opinion of Justice Keen.
6. Opinion of Justice Handy.
7. Conclusion and Findings
PART I: THE ALLEGORY/STORY
Lon
L. Fuller’s the case of Speluncean Explorers was first published in 1949 in the
Harvard Law Review.[8] Fuller wrote this story in order to
illustrate a number of different theories about the nature of law and legal
reasoning. The various opinions are written by fictional judges who represent
different theories, and thus each opinion illustrates one or more of those
theories.
In
the case of Speluncean Explorers, Fuller’s lesson is that the law’s basic
integrity is to be found within the very processes which are utilized ‘in the
attainment of its proclaimed goals’. When Lon Fuller had put together his
Speluncean Explorers hypothetical in the 1949, there were only two significant
jurisprudential philosophies in the air: natural law and positivism. The former
had largely been discredited, but was revived in the hypothetical by Justice
Foster[9], who claimed that the trapped explorers
were in a moral, if not geographical "state of nature."
This
case is set in a mythical future, 4300 A.D. Fuller did not choose the date in
random, he estimated that in 1949[10], ‘the centuries which separate us
from the year 4300 are roughly equal to those that have passed since the Age of
Pericles. The case is heard in the Court of General Instances of the County
of Stowfield in the Commonwealth of Newgarth, which has a charter of government
drawn up originally by the survivors of a past catastrophe (the Great Spiral).
The case is based on a statute N.C.S.A (N.S.) which states in specific terms in
Section 12-A that ‘whoever lawfully takes the life of another shall be
punished by death.’
The facts of the case are outlined as follows:
The
four defendants and Roger Whetmore were members of a Speluncean Society in the
Commonwealth of Newgarth. This society encouraged the exploration of caves.
Early in May of 4299 they, in the company of Roger Whetmore, then also a member
of the Society, penetrated into the interior of a limestone cavern of the type
found in the Central Plateau of this Commonwealth.[11] While exploring the cave, when they were
in a position remote from the mouth of the cave, a landslide occurred. Heavy
boulders fell in such a manner as to block completely the only known opening to
the cave, and therefore, they were all trapped within the cavern. The five men
were carrying scant resources with them. On their non-return the families of
the explorers informed the Society which in turn informed the State. A rescue
party was promptly dispatched for their rescue. In the rescue operations, 10
workmen lost their lives in fresh landslides. A great expense was also incurred
to rescue the trapped men.
It
was found that one of the explorers has a portable radio set
capable of sending and receiving messages.
Therefore, contact was established by the rescue team with the trapped men. The
five trapped men, after learning that it would be at least ten more days until
they were rescued, sought a professional medical opinion as to whether or not
they could possibly survive this duration. Upon being informed that they would
not, they deliberated for eight hours after which they sought counsel first
from the physician, then from a government official, and finally from a
minister as to whether or not it would be advisable to cast lots and kill and
consume one of their members so that the others may survive. None of the three
parties were willing to answer. None of them answered in the affirmative or
negative. With their question unanswered, the men severed radio contact with
the people outside.
On
their eventual release, it became apparent that some twenty three days after
their entry into the cave, the defendants had killed and eaten Whetmore. In
evidence, it was indicated that Whetmore had suggested that the group’s
survival would be impossible without nutrient, and that this would necessitate
the eating of flesh of a member of the group. It was also said that Whetmore
himself had suggested the casting of lots by dice to choose such unfortunate
member. However, Whetmore after reflection withdrew from the offer terming it
frightful and odious. He was accused by the defendants of breach of faith and
they proceeded to cast dice. Whetmore also declared that he had no objection to
one of the defendants casting the dice on his behalf. The throw of the dice was
unfortunately against Whetmore. The other group members therefore killed him
after which they ate his flesh.
After
the defendants had been rescued from the cave and their suitable treatment,
they were indicted for the murder of Whetmore in the Court of General
Instances, the County of Stowfield. The court found all of them guilty and were
sentenced to death by hanging.
Following
the discharge of the jury, its members joined in communicating with the state’s
Chief Executive and requesting that the death sentence be commuted to
imprisonment for a period of six months. Similar action was taken by the Trial
judge. The defendants brought a petition of error to the Supreme Court of
Newgarth. The court issued its opinions in the year 4300.
In
the trial that ensued, the five judge bench gave differing opinions and
profoundly different ratios for the same. Fuller wrote these five opinions as
representing different schools of thought.
PART II OPINION OF CHIEF JUSTICE TRUEPENNY
In
his argument Chief Justice Truepenny[12] after stating the facts as mentioned in
Part I of this paper ruled in favour for strictly applying the letter of the
law rather than interpreting the law. According to him the jury and the trial
judge followed a course that was not only fair and wise, but the only course
that was open to them under the law. He however also proposed to his colleagues
that they follow the example of the jury and trial judge by joining in the
communications they have addressed to the Chief Executive of the State for
clemency for the defendants.
Chief
justice Truepenny appears to be an Advocate of Textualism or
Institutionalism. He represented the Positivist[13]
perspective. According to this school law should be given a literal
interpretation. Law is what it is rather than what it ought to be. That is, it
is free from moral considerations once it is enacted by a sovereign authority.
VERDICT:
He affirmed the decision of the trial court but however requested clemency
also.
ANALYSIS
The
main thrust of this argument presented by Chief Justice Truepenny is that the
statue under scrutiny is not ambiguous and is plainly stated for applying the
law rather than interpreting the law. And, as the statue states, “Whoever shall
willfully take the life of another shall be punished by death”, he said the
defendants should be hanged till death. However, Truepenny’s argument has much
strength which, at face value, can be applied to this case in question.
Arguably, first, the language of the statue applies directly to what the
defendants did to Roger Whetmore. Therefore, there is no argument not to punish
defendants following the existing law. Also, there is no question into the
matter that the men on trial “willfully” took the life of Whetmore. It is an
admitted fat that they did.
However,
there is another aspect of this peculiar case. As has been stated in the
testimony of the defendants that Whetmore was in concurrence with the decision
to cast lots to determine his own fate. Now, therefore, the question is, does
all accountability of Roger Whetmore’s death reside in the defendants alone, or
should Whetmore be held partly responsible as well for the crime.
Therefore,
it is submitted here that it would be impractical to merely apply the statue on
the grounds of the text and ignoring the basic foundation of why law has become
law. There should be utilization of prudence in decision of cases and each case
should be decided on its merits. What law requires is intelligent obedience,
not idiotic adherence.
To conclude, Chief Justice Truepenny's legal analysis was
short. He recommended a plea for clemency to the Chief Executive because he
felt the statute was clearly against the conspirators. But there is no
reflection or consideration of the statute itself; it is assumed to speak
against the defendants. The appeal for clemency seemed as an abandonment of the
judicial role, a sort of "cop out," or an admission that the legal
system was not really able to handle the complexities of the issue.
OPINION OF JUSTICE FOSTER
Judge
Foster it is said represents the alter-ego of Fuller. He represents the natural
school[14] of jurisprudence. His opinion is the
best written one of the five.
Justice
Foster expressed shock at hearing of Chief Justice Truepenny’s opinion. He
argued that the Law of the Commonwealth is at stake if we try to textually
apply the law in this case. According to him, the defendants when trapped in
the cave were outside the jurisdiction of Commonwealth of Newgarth.
VERDICT: In
his verdict, he set aside the verdict of the Trial court and held that
purposive construction should be given to the statutes.
ANALYSIS
Justice
Foster did not believe that the law compels the monstrous conclusion that the
defendants were murderers. On the contrary, he said it declares them to be
innocent of any crime. He rested this conclusion on two independent grounds. He
said the defendants are not guilty on both of these grounds independently of
each other.
The
first of these grounds is that the enacted or positive law of this
Commonwealth, including all of its statutes and precedents, is governed instead
by what ancient writers in Europe and America called "the law of
nature." When a situation arises in which the coexistence of men becomes
impossible, then a condition that underlies all of judicial precedents and
statutes has ceased to exist. He says, when that condition disappears, then the
force of our positive law disappears with it. It is similar to a situation in
which a crime is committed outside the territorial jurisdiction of the State.
This has the consequences that the law applicable to them is not the enacted
and established law of this commonwealth, but the law derived from those
principles that were appropriate to their condition. He therefore said applying
this principle the defendants were not guilty of any crime.
He
says that positive law is inherently territorial. Therefore, when a person is
outside its scope, the rules of law would not apply to him. Applying this
principle in the instant case, he says that the defendants were separated from
the State by rock walls. Within them the State was not even able to supply them
with succour. He adds that the State was created by a social contract to
provide peace, order and succour to all.
The
second ground that he takes is that one of the most ancient bits of legal
wisdom is the saying that a man may break the letter of the law without
breaking the law itself. According to him every proposition of positive law
should be interpreted reasonably, in the light of its evident purpose. In the
judgment, Judge Foster says – “Centuries ago it was established that a killing
in self defense is excused. There is nothing in the wording of the statute that
suggests this exception. But the exception in favor of self-defense is not out
of the words of the statute, but out of its purpose. When the rationale of the
excuse of self-defense is thus explained, it becomes apparent that precisely
the same reasoning is applicable to the case at bar.” That is, he argues that
self-preservation is the most basic of all human tendencies. In the instant
case, the defendants did not kill Whetmore out of mala fides but because they
wanted to give succour to their starving bodies. Therefore, this was a killing
in self defence.
He
further sites the case[15] of Commonwealth v. Staymore
wherein it was held that a person cannot be held guilty for anything which was
beyond his control. It is here submitted that arguably, when a man made law is
enacted or enforced, there is always a reason why the law was constructed in
the first place. And therefore, law should be construed within its purpose.
Further,
he adds that if the State could sacrifice 10 lives to save one, why cannot one
life be sacrificed to save four.
To
conclude, Justice Foster based his justification on the following. He says when
we consider a case which has taken place a mile beyond territorial limits of a
state; no one would pretend that the law of the state would be applicable to
the case. This means that law is not absolute, and that the positive law is
predicated on the possibility of men's coexistence in society. When a situation
arises in which the coexistence of men becomes impossible, then a condition
that underlies all of our precedents and statutes ceases to exist. When that
condition disappears that the force of our positive law disappears with it,
then the law of nature works. Self-defense is a right not out of the words of a
penal statute (like the one in this case), but out of its purpose. Even though
there is nothing in the wording of the statute that suggests self-defense, the
exception of self-defense is accepted.
OPINION OF JUSTICE TATTING.
Judge
Tatting had a complete opposite view of that of Judge Foster. He said he cannot
accept any of the latter’s opinions, more so the first part of it. According to
Tatting J. law of contract cannot be more powerful than law of murder. Secondly
he asked a very fundamental question – when exactly did the 5-member company
move from a ‘state of civil society’ to a ‘state of nature’. Was it when the
party entered the cave, or when the landslide occurred or when the party
crossed the threshold of starvation? Further, he asked the Supreme Court of
Newgarth was created out of a positive law. From where does the court arrive
its authority to decide a dispute on law of nature rather than law of the State?
Verdict:
He withdrew from the case.
ANALYSIS
Tatting
J. also represented the positivist school.
Tatting
J. argues that it is true that a statute should be applied in the light of
its purpose, and that one of the purposes of criminal legislation is recognized
to be deterrence. The difficulty is that other purposes are also ascribed to
the law of crimes. It has been said that one of its objects is to provide an
orderly outlet for the instinctive human demand for retribution. He also argued
that law of retribution is equally important if not more than law of deterrence[16] in criminal law. He quoted the case of Commonwealth
v. Scape wherein it was held that the one of the objects of law is also
to provide outlet for retribution. It has also been said that its object is the
rehabilitation of the wrongdoer as in Commonwealth v. Makeover.
He
also said that the there is no doubt that the defendants have committed murder.
Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned
for stealing a loaf of bread, how can one be forgiven for killing a person out
of starvation.[18] Further, he says assuming that we must
interpret a statue in the light of its purpose, what are we to do when it has
many purposes or when its purposes are disputed? The familiar explanation for
the excuse of self-defense cannot be applied by analogy to the facts of this
case. These men acted not only "willfully" but also with great
deliberation and after hours of discussion what they should do.
He
however gave credence to Foster J. for his theory of purposive construction of a
statute. He added that it is a matter of regret that the Prosecutor saw fit to
ask for an indictment of murder. If we had a provision in our statutes making
it a crime to eat human flesh, that would have been a more appropriate charge.
If no other charge suited to the facts of this case could be brought against
the defendants, it would have been wiser not to have indicted them at all.
Further,
it seems from the allegory that Judge Tatting believed in the power of judicial
precedents. He was confused as to what effect this precedent
[19] would have on future cases before the
courts.
Since
He was wholly unable to resolve the doubts that beset him about the law of this
case, He declared his withdrawal from the case
From the allegory, it can be said that Judge Tatting ultimately withdrew from the case
because of the overwhelming dissonance he felt after thinking through the
issues. He disagreed with Foster on the state of nature issue, but he agreed
with Foster that there is precedential value in his theory of self-defense.
He however, did not see statutes as having just one purpose, and according to
him there are other explanations of self-defense stressing the importance of
"non-willful" conduct. But
the conspirators acted "willfully." And that is the reason for his
confusion. He sees that both perspectives (acquittal and conviction) have
equally strong arguments and he cannot decide.
OPINION OF JUSTICE KEEN
At
the outset of his opinion, Judge Keen says Executive clemency is a question for
the Chief Executive, not for the judges to direct the Chief Executive. He
therefore disapproved of that passage in the opinion of the Chief Justice in
which he in effect gives instructions to the Chief Executive as to what he
should do in this case.
He
said while deciding whether what these men did was "right" or
“wrong" "wicked" or "good’ is not for a judge to decide. He
should not apply his conceptions of morality, but the law of the land. The sole
question before us, therefore, he said, for decision is whether these
defendants did, within the meaning of N.C.S. A. (N.S.) § 12-A, willfully take
the life of Roger Whetmore. On this count, any candid observer would concede at
once that these defendants did "willfully take the life" of Roger
Whetmore. He then proceeded to acknowledge that hard decisions are never
popular, but that hard decision may even have a certain moral value by bringing
home to the people their own responsibilities toward the law that is ultimately
their creation and by reminding them that there is no principle of personal
grace that can relieve the mistakes of their representatives, i.e. the
legislators.
VERDICT:
He found the defendants guilty.
ANALYSIS
Keen
J too belonged to the positivist school. He appears to be an advocate of
Textualism. He stressed that asking for executive clemency is improper
for judges, although they may do so in their capacity as private citizens. He
said that the major problem in the case is the failure of others to separate
law and morality. Once this is done, one realizes that statutes are not
necessarily embodiments of moral thoughts and a decision is much easier.
He
said there was a time in the Commonwealth when the judges did in fact legislate
very freely. But we now have a clear-cut principle, which is the supremacy of
the legislative branch of our government. From that principle flows the
obligation of the judiciary to enforce faithfully the written law in accordance
with its plain meaning without reference to our personal desires or our
individual conceptions of justice. Here, he outlines the principle of strict
adherence to separation of powers of the three chief organs of government.
Then,
he goes into the history of the community, stressing that judicial activism or
indeterminacy of interpretation actually was a factor in precipitating a civil
war.[20] He also declines to accept the theory
that there is only one purpose for a statute. It really is impossible for a
judge to divine legislative "purpose." Finally, a hard and harsh
decision here is probably good, for it forces the legislature to reconsider the
statute. He says it is for the people to remind the Legislature of his mistake
and not for the judiciary. The scope of the exception in favor of self-defense
as it has been applied by the Court is plain: it applies to cases of resisting
an aggressive threat to the party's own life. It is therefore too clear for
argument that this case does not fall within the scope of the exception, since
it is plain that Whetmore made no threat against the lives of these defendants
To
conclude, it can be said that according to him a law in the form of a law can
be enforced if it is a good law or a bad one. And lawyer should think of the
letter of the law not personal moral. And the process of the judicial reform
requires steps on the part of the Legislature/executive.
OPINION OF JUSTICE HANDY.
Justice
Handy believed that law should be what the public wants. He disproved of what
he called his colleagues' ability to throw an obscuring curtain of legalisms
about every issue presented to them for decision. Judges should not go into
positivism or natural law, right or wrong. According to him, since by a poll it
was said that the majority populace wanted the defendants to be let off with a
token punishment, the judges should comply with this popular opinion.
According
to him government is a human affair, and that men are ruled, not by words on
paper or by abstract theories, but by other men. They are ruled well when their
rulers understand the feelings and conceptions of the masses. They are ruled
badly when that understanding is lacking. Judges need to be in tune with
popular opinion. He disapproved of the practice of the courts. He observed-
“Lawyers are hired by both sides to analyze and dissect. Judges and attorneys
vie with one another to see who can discover the greatest number of
difficulties and distinctions in a single set of facts. Each side tries to find
cases, real or imagined, that will embarrass the demonstrations of the other
side. To escape this embarrassment, still further distinctions are invented and
imported into the situation. When a set of facts has been subjected to this
kind of treatment for a sufficient time, all the life and juice have gone out
of it and we have left a handful of dust.”
According
to him, the case before the court was a question of practical wisdom, to be
exercised in context, not of abstract theory, but of human realities. He said
the most obvious advantage of treating forms and abstract concepts as
instruments is that it permits one to go about one’s daily tasks with
efficiency and common sense. When these conceptions are applied to the case
before the courts, decision becomes perfectly easy. He further added that this
case has aroused enormous public interest. In one widely read newspaper chain’s
poll, on the question, "what do you think the Supreme Court should do with
the Speluncean explorer?” about 90% expressed a belief that the defendants
should be pardoned or let off with a kind of token punishment. It is perfectly
clear, then, how the public feels about the case. And this is the decision the
judges should give.”
VERDICT: He set aside the verdict
and said that the court should follow public opinion.
ANALYSIS
Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he echoed the
views of sociological school of jurisprudence. Practical wisdom is a
significant category for Aristotle in his Nicomachean Ethics and refers
to the skill needed in life to deliberate and reach decisions (in contrast to theoretical
knowledge or practical skill).[22] This judge is very solicitous of
public opinion, believing that the legitimacy of the judicial enterprise is
because it reflects the will of the people. This aspect has practical
implications in our media-driven society. Many a times we see that popular
media has had an effect on judges.[23] Further, trial by media has been an
issue of hot debate in legal as well as popular circles since some time now.
This
was the last of the five opinions. The Supreme Court being equally divided, the
conviction and the sentence of the Court of General Instances was affirmed. The
defendants were ordered to be hanged.
CONCLUSION AND FINDINGS
Fuller’s
case looks at separation of powers issue (through the notion of recommending
clemency to the Chief Executive), natural law theory, positivism, statutory
interpretation (whether there are "gaps" in statutes and how to
"fill" them), the purpose(s) of statutes, the role of precedents and
how to use them, the relationship of law and morality, judging as the
manifestation of practical reason, various theories of self-defense. All in all
it deals with almost all the issues that could be contemplated in mid-20th
century.
As
said earlier, it is widely believed that Fuller based his case on two real
cases. A brief gist of the cases is produced below for the benefit of the
reader.
U.S. vs. Holmes (1842)[24]
FACTS:
In 1841, the U.S.
immigrant ship William Brown sailing from Liverpool to
Philadelphia, sank after hitting an iceberg.
42 people, including the mate and several sailors, found themselves on one of
the life boats; after a day or so it began to spring leaks and was sinking.
Crewmen, including the defendant Alexander William Holmes, believed that their
overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers
overboard to their inevitable deaths in the frigid water. On his return to Philadelphia,
Holmes was arrested and charged with murder.
However, the grand jury rejected the indictment
and substituted manslaughter. The judge in the United States circuit court for the
Eastern District of Pennsylvania instructed the jury that necessity might be a
complete defence but that "before the protection of the law of necessity
can be invoked, a case of necessity must exist, the slayer must be faultless,
he must owe no duty to the victim." The jury convicted Holmes and the
principle of necessity was not tested by any higher court.
·
Holmes was found guilty and
sentenced to six months in prison and a fine of $20; he served the time but did
not have to pay the fine, because he was eventually pardoned by President John
Tyler.
Regina vs. Dudley & Stephens (1884)[25]
There
was another case in 1884 (Queen v. Dudley) which resembles the
Speluncean Case even more closely, insofar as it too involved cannibalism,
albeit cannibalism on the high seas. The facts of the case are as follows:
· A yacht sailing from Essex, England to Sydney, Australia
sank, leaving four crew members in a 13-foot lifeboat: the captain (Dudley) and
the mate (Stephens), and two seamen, Brooks and Parker. Parker was 17 years old
and already weak.
After several days without food and
water, Dudley suggested to Stephens that they conduct a lottery to choose one
person to be killed and eaten by the others. Stephens refused. Later Dudley convinced Stephens that they should kill
Parker, who was already ill and without family, and eat him. They did so and
consumed about half of Parker over the next few days, at which point they were
rescued by a German Boat. The boat put in at Falmouth, England
on its way back to Germany. There the men were charged with murder. The public was on the side of the
defendants, so the judge asked the jury for a special verdict: not a finding of
guilt or innocence, but simply a finding on the facts.
· Based on the facts found by the
jury, the judge found the men guilty and sentenced them to hang. They were
pardoned by Queen Victoria.
As
said earlier, when Lon Fuller had put together his Speluncean Explorers
hypothetical in the 1940s, there really were only two significant
jurisprudential philosophies in the air: natural law and positivism. The former
had largely been discredited, but was revived in the hypothetical by Justice Foster,
who claimed that the trapped explorers were in a moral, if not geographical
"state of nature." It seems that Fuller included a natural law
argument in the hypothetical was that the one of the underlying real
cases was US v. Holmes, where the defendant's attorneys unsuccessfully
tried to argue such a defense for Holmes. Positivism, the other theory, was all
the rage in the 1940s. Positivism is a "big umbrella" word, which
covers all things from the utilitarianism of Jeremy Bentham to any effort that
wants to separate law from morality. Justice Keen is the exponent of positivism
in the hypothetical.
Through
this allegory, Fuller is seeking consideration of the purposes for which law
exists. The varying nature of judgements of the Supreme Court are used to
illustrate a variety of approaches to law. The opinion of the Chief Justice
seems to be based upon a belief in the significance of executive clemency in
appeals against conviction and sentence. Foster J (who accepts Fuller’s own
views) draws attention to the importance of the spirit of the law rather than
the letter. Tatting J. evades responsibility by declaring his inability to
reach a decision. Keen J. follows the philosophy of positivism in separating
matters of law and morality. Handy J. advocates a decision which he believes to
be administratively convenient and popular.
Through
the decision of Foster J., Fuller affirms his belief in the need for
intertwining of law, morality and reason in deciding legal questions. Each
strand of the process is necessary. Positivism provides a distorted view of
law, which is seen as a ‘one-way projection of authority’ – the law is set out
and it is the duty of the citizen to obey its letter.
Fuller’s
own postscript to the case is of particular significance. The case, he notes,
was constructed for the sole purpose of bringing into a common focus certain
divergent philosophies of law and government, philosophies which have existed
since the time of the ancient Greeks. Even after we have sought solutions to
the problems raised in earlier times, the debates will continue. He ends with
saying that if there is any element of prediction in the case, it does not go
beyond a suggestion that the questions raised here are permanent questions
before the human race. This statement, it is submitted here is particularly
true. Debates on judicial accountability, judicial activism, separation of
powers, role of media, retributive theory of punishment v. reformative theory of
punishment are still constant topics of debate and discussions even after 60 years
of this allegory. And it seems unlikely that these debates will be settled
soon.
It
is also pertinent to mention here that D'Amato's "Further Proceedings,”[26] added further
proceedings. The author in his article imagines that the decision of the Court
was given over to a Committee of three professors’ for review. His article
deals with the opinion of these professors. It would not be wrong to mention
here the reasons for the article as mentioned by the author himself in its
first paragraph
“……………is a classic in jurisprudence. Set in the Supreme
Court of Newgarth in the year 4300 the case presents five judicial opinions
which clash with each other and produce for the reader an exhilarating
excursion into fundamental theories of law and the state and the role of courts
vis-i-vis legislatures and executives. Though the issues articulated by
Professor Fuller in 1949 are timeless, the past thirty years in jurisprudential
scholarship have produced at least one major new vantage point- the
"rights thesis" as advanced by Professor Dworkin and others. Simply
stated, the rights thesis holds that there is a "right" answer, and
only one right answer, in every case. The litigants have a "right" to
that and finally-to add one more shade of meaning to the comprehensive term
"right"-the answer thus arrived at is dictated by general
requirements of justice. Since justice is a branch of morality, the "right"
answer is not only correct but also right in a moral sense.”
BIBLIOGRAPHY
- Bodenheimer, Edgar; “Jurisprudence
–the Philosophy and Method of Law”, Universal Book Traders, New Delhi,
1974.
- Curzon, L. B; “Q & A
Series Jurisprudence”, Cavendish Publishing Limited, London 2005, Third
Edition.
- Dias, R. W. M.; “Jurisprudence”
3rd Edition, London Butterworths 1970.
[1] From the introduction to Peter Suber, The Case of the
Speluncean Explorers: Nine New Opinions, Routledge, 1998, excerpted online
at http://www.earlham.edu/~peters/writing/csepref.htm
[2] An allegory is a story with multiple layers of meaning
underneath the primary surface story will be found a secondary layer of more
profound meaning. Essentially, an allegory seeks to teach a lesson.
[3] Lon L. Fuller, The Morality of Law, New Haven and
London: Yale University Press, 1969; [1964]): p. 106
[4] E.g. if there is a statute which says vehicles are
prohibited in parks. Fuller would say that the interpretation of the term
‘vehicle’ would depend on the purpose for banning vehicles from the park. For
example, if the purpose were to prevent noise pollution, a bicycle would not be
a vehicle for the purposes of the law. Because of this focus on purpose instead
of meaning, a judge using a natural law interpretation of statutes relies much
more heavily on legislative history.
[5] Source –en.wikipedia.com/lonfuller
[7] These cases shall be some detail in the last part of this paper.
[8] Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645
[9] A judge in the 5-Member Bench of the Supreme Court in the
hypothetical. Refer subsequent pages.
[10] The year when the story appeared in Harvard Law Review.
[11] In the words of Fuller himself in the case published I
Harvard law Review 1949.
[12] According to him- The language of the relevant statute was
well known and it permitted of no exceptions applicable to this case. But
sympathies may incline us to make allowances for the tragic situation in which
the defendants found themselves. In such a case, the principle of executive
clemency seemed ‘admirably suited to mitigate the rigors of the law’. The Chief
Justice then proposed that his colleagues should join him in following the
example of the trial judge and jury by joining in their communication to the
Chief Executive, asking for clemency. He presumed that some form of clemency
would be shown to the defendants and, if this were done, then justice would
have been accomplished without impairing either the spirit or the letter of the
statute and without offering any encouragement for the disregard the law.
[13] Legal positivism is the thesis that the existence and
content of law depends on social facts and not on its merits. The English
jurist John Austin (1790-1859) formulated it thus: “The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one enquiry;
whether it be or be not conformable to an assumed standard, is a different
enquiry.” (1832, p. 157)
The fact that a policy would be
just, wise, efficient, or prudent is never sufficient reason for thinking that
it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent
is never sufficient reason for doubting it. According to positivism, law is a
matter of what has been posited (ordered, decided, practiced, tolerated, etc.);
as we might say in a more modern idiom, positivism is the view that law is a
social construction.
Positivists believe in a separation
between the law as it is and the law as it should be. They
believe law is what it is. And it should be strictly applied.
[14] The natural law view believes that the creation of law
should be based on natural laws or common morals. Laws are viewed based on
purpose, not on meaning of the words.
[15] Hypothetical. Created by Fuller.
[16] In his judgement, Judge Foster speaks of deterrence, that
law of murder is created on law of deterrence. Self-defense being a basic
tendency of all beings, therefore cannot be governed under this deterrent rule.
[17] ‘Valjean’ seems to have similarity with the protagonist by
the same name of a German novel. There in the novel, protagonist is a 7year old
orphan boy. One day out of starvation, he steals a loaf of bread from a shop.
He is caught and put on trial. On trial he is found guilty
[18] The important point in Justice Tatting's analogy is that a
man is not innocent if he steals bread from a store because he is starving to
death, and similar manner these four cannot be said that they were innocent and
they killed Whetmore just to save four lives. There is one problem with the
argument. It is submitted here that one should use prudence as a form of
reasoning, and this analogy has many problems.
[19] He shows two opinions on this case. He seems to agree that
the defendants being in the peculiar condition that they were cannot be charged
with murder.
[20] Here, it seems Fuller could foretell the possible turf war
between judiciary and executive over judicial activism/interference in
executive and legislative functions. There is a fire brewing in many countries
including India on this count.
[21] He however conceded that there are a few fundamental rules
of the game that must be accepted if the game is to go on at all. These include
the rules relating to the conduct of elections, the appointment of public
officials, and the term during which an office is held. Here he says rules on
discretion and dispensation, form, dos and don’ts are essential.
[23] It is widely believed that popular opinion had a big role
to play in the convictions in Jessica Lall and Nitish Katara cases. The popular
media, TV, print and all played a pivotal role in mass mobilization.
[25] (1884) 14 QBD 273 DC
[26] The Speluncean Explorers-Further Proceedings by Anthony
D'Amato, 32 Stanford Law Review 467 (1980) Code A80
