![Akiyoshicave](https://upload.wikimedia.org/wikipedia/commons/f/fa/Akiyoshicave.jpg)
"The Case of the Speluncean Explorers" is an article by legal philosopher
Lon L. Fuller
Lon Luvois Fuller (June 15, 1902 – April 8, 1978) was an American legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University for many ...
first published in the ''
Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
'' in 1949. Largely taking the form of a fictional judgment, it presents a
legal philosophy
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
puzzle to the reader and five possible solutions in the form of
judicial opinion
A judicial opinion is a form of legal opinion written by a judge or a judicial panel in the course of resolving a legal dispute, providing the decision reached to resolve the dispute, and usually indicating the facts which led to the dispute an ...
s that are attributed to judges sitting on the fictional "Supreme Court of Newgarth" in the year 4300.
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 one of them should be
killed and eaten, so that the others might survive. They determine 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
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they face a mandatory
death sentence
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
. Although the wording of the statute is clear and unambiguous, there is intense public pressure to spare the men from the death penalty.
The article offers five possible court 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
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
and
literal approach to
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
. Two others overturn the convictions; one focuses on "common sense" and the popular will while the other uses arguments drawn from the
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
tradition, emphasizing the
purposive approach
The purposive approach (sometimes referred to as purposivism, purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts ...
when applying law. 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
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
" and "a microcosm of
he 20th
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
century's debates" in legal philosophy. It allows for contrasts to be drawn between different legal philosophies, with the main two being
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
and
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
. In the 50 years following the article's publication, a further 25 hypothetical judgments were written by various authors whose perspectives include
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
theory,
consequentialism
In ethical philosophy, consequentialism is a class of normative, teleological ethical theories that holds that the consequences of one's conduct are the ultimate basis for judgment about the rightness or wrongness of that conduct. Thus, from a ...
, plain meaning
positivism
Positivism is an empiricist philosophical theory that holds that all genuine knowledge is either true by definition or positive—meaning ''a posteriori'' facts derived by reason and logic from sensory experience.John J. Macionis, Linda M. G ...
or
textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the ...
, purposivism, historical contextualism, realism, pragmatism,
critical legal studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
,
feminism
Feminism is a range of socio-political movements and ideologies that aim to define and establish the political, economic, personal, and social equality of the sexes. Feminism incorporates the position that society prioritizes the male po ...
,
process theory
A process theory is a system of ideas that explains how an entity changes and develops. Process theories are often contrasted with variance theories, that is, systems of ideas that explain the variance in a dependent variable based on one or more i ...
and minimalism.
Synopsis
Facts
The facts of the case are recounted in the first judicial opinion, which is given by Chief Justice Truepenny.
Five cave explorers became 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 at least ten 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.
![Two red dice 01](https://upload.wikimedia.org/wikipedia/commons/3/36/Two_red_dice_01.svg)
One of the cavers, Roger Whetmore, then asks on the cavers' behalf if the cavers could survive ten 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 first proposed cannibalism and choosing the victim through random chance, offering a pair of
dice
Dice (singular die or dice) are small, throwable objects with marked sides that can rest in multiple positions. They are used for generating random values, commonly as part of tabletop games, including dice games, board games, role-playing g ...
in his possession.
Before the dice were cast, however, Whetmore declared his withdrawal from the arrangement, preferring to wait another week "before embracing an expedient so frightful and odious". The others refused 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 was 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. The jury seek a
special verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales ...
, 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
Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...
for murder in Newgarth is
death by hanging
Hanging is the suspension of a person by a noose or ligature around the neck.Oxford English Dictionary, 2nd ed. Hanging as method of execution is unknown, as method of suicide from 1325. The ''Oxford English Dictionary'' states that hanging in ...
. 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.
Opinion of Chief Justice Truepenny
The first opinion is largely
expository
Narrative exposition is the insertion of background information within a story or narrative. This information can be about the setting, characters' backstories, prior plot events, historical context, etc. In literature, exposition appears in t ...
; 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. He adds that granting mercy is a decision for the executive branch of government to make, rather than the judiciary. 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".
Opinion of Justice Foster
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
The state of nature, in moral and political philosophy, religion, social contract theories and international law, is the hypothetical life of people before societies came into existence. Philosophers of the state of nature theory deduce that ther ...
" 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. Secondly, assuming the laws of Newgarth did apply, the purpose of the statute should be considered when applying it to the facts of the case. Justice Foster considers the main purpose to be deterrence, concluding that just as a conviction involving
self-defense
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
would not serve the statute's purpose, neither would a conviction in the present case.
The judge counters potential
judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
concerns by noting that while 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. Thus the "correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective."
Opinion of Justice Tatting
In the third opinion, Justice Tatting is emotionally "torn between sympathy for
he defendants
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
and a feeling of abhorrence and disgust at the monstrous act they committed". 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. He also notes the difficulty of applying the
purposive approach
The purposive approach (sometimes referred to as purposivism, purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts ...
to the criminal statute which has multiple purposes, including retribution and rehabilitation. He distinguishes the self-defence exception that was created by past judges on the basis that it is not a "willful" killing, so it does not contradict the wording of the statute. He finds that the self-defence exception could not be applied to the present case as it would raise "a quagmire of hidden difficulties".
The judge cites the case of ''Commonwealth v Valjean'', 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."
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." 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.
Opinion of Justice Keen
The fourth opinion begins by excluding
executive clemency and the morality of the defendants' actions as relevant factors to the court's deliberations. 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. 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.
Justice Keen objects vehemently to Justice Foster's purposive approach allowing the plain words of the law to be ignored. He emphasizes that laws may have many possible purposes, with difficulties arising in divining the actual "purpose" of a piece of legislation.
Justice Keen recalls that earlier instances of judicial activism in Newgarth had ultimately led to
civil war
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
, which established the supremacy of the legislature over the judiciary. He concludes by criticizing the courts' creation of the self-defense excuse, stating that waiting for the legislature to enact such revisions would have led to a stronger legal system.
Opinion of Justice Handy
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. He criticizes his colleagues' "obscuring curtain of legalisms" when the case simply requires the application of "practical wisdom" of "human realities". 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. He is prepared to use Justice Foster's purposive approach doctrine as the legal rationale.
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.
Similar real cases
*''
R v Dudley and Stephens
''R v Dudley and Stephens'' (188414 QBD 273, DCis a leading English criminal case which established a precedent throughout the common law world that necessity is not a defence to a charge of murder. The case concerned survival cannibalism foll ...
'', 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 of ''
United States v. Holmes'', in which crewman, Alexander Holmes was charged with
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
and convicted of
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
for his actions, and jailed for six months.
See also
*
Plank of Carneades
In ethics, the plank of Carneades is a thought experiment first proposed by the Academic Skeptic philosopher Carneades of Cyrene. It explores the concept of self-defense in relation to murder.
In the thought experiment, there are two shipwrecked ...
References
Notes
Footnotes
Bibliography
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Further reading
*
*
*Porciello, Andrea. ''Il caso degli speleologi di Lon L. Fuller e alcuni nuovi punti di vista. Un approccio alla filosofia del diritto attraverso dieci pareri di fantasia'', Rubbettino, 2012.
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Works originally published in the Harvard Law Review